Private environmental governance

Abstract

Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now play an important role. Corporations report that their toxics use is regulated more by private supply chain contract requirements than the federal toxics statute. The fate of 14% of the temperate forests and 7% of the fisheries around the world is in the hands of private certification systems. More money is spent on private environmental inspections than on the entire federal environmental enforcement office. The emergence of private governance is hiding in plain view because the conceptual model by which environmental law is viewed and the metrics by which legal activity is measured do not square easily with private governance. Environmental preferences are expressed in private market decisions, not through voting or lobbying. Standard-setting, enforcement, and dispute resolution occur through private actions and institutions, not legislatures, agencies and courts. This Article demonstrates the value of conceptualizing seemingly disparate private activities as a discrete new model of environmental governance. Viewing private environmental governance in this way provides new insights about collective action problems, re-frames the standards used for environmental instrument choice, and suggests new actors and actions to address environmental problems.