A tale of two continents: environmental management-based regulation in the European Union and the United States.

• Author: Deming, Rachel E.

1. INTRODUCTION II. AN EMS PRIMER A. What Is an EMS? B. EMS Use Globally C. The Relationship of EMSs to Environmental Performance and Compliance III. EMAS AND PERFORMANCE TRACK A. EMAS B. Performance Track C. Summary IV. IMPACT ON ENVIRONMENTAL PERFORMANCE A. EMAS B. Performance Track C. Comparative Analysis V. CONCLUSION I. INTRODUCTION

   Since 1990, Congress has not been able to pass any legislation that addresses the current and emerging global environmental concerns. (1) Most environmental control legislation in the United States date back to the 1970s: the National Environmental Policy Act; (2) the Clean Air Act; (3) the Clean Water Act; (4) the Safe Drinking Water Act; (5) and the Solid Waste Disposal Act, (6) which became the Resource Conservation and Recovery Act. (7) (RCRA) when it was amended in 1976. The last major piece of legislation imposing federal control was the enactment of the Clean Air Amendments of 1990. (8) The three statutes that are focused on controlling pollution from industrial operations, the Clean Air Act, the Clean Water Act, and RCRA, primarily establish command-and-control rules for plants and facilities, (9) and their purpose was to establish national baselines for emissions, discharges, and waste management in order to address impacts that cross state boundaries. (10) Congress assigned the United States Environmental Protection Agency (EPA) the responsibility to implement and enforce those provisions." These laws and EPA's compliance and enforcement efforts have made a significant impact on the quality of the environment in the United States. (12) These laws did not, however, empower EPA or any other federal agency to require environmental stewardship or to incentivize improvements beyond compliance with applicable statutes. (13)

   As a result of these statutory and regulatory voids, some scholars and regulators have focused on the ability of voluntary regulation to address current environmental concerns. (14) Two of the most well-known and prolific authors writing about voluntary regulation, Cary Coglianese and Jennifer Nash, observed, "[w]ith only remote prospects for statutory and regulatory solutions to environmental concerns about global warming and exposure to toxic substances, among other things, voluntary approaches are one of the few means through which government is currently able to respond." (15)

   An environmental management system (EMS) is a systematic planning, implementation, and review process that organizations use to continuously improve environmental performance. (16) The importance of EMSs as a well-recognized environmental management tool is demonstrated by the widespread use and steady increase in implementation of EMSs by facilities and organizations throughout the world. (17) The major outlier to this worldwide trend is the United States; EPA shut down an experimental program designed to encourage the implementation of EMSs in facilities in the United States. (18) In contrast, the European Commission has made its EMS-based program a cornerstone of its environmental regulations, and also touts its own participation in that program as leadership-by-example to improve the environment. (18) An analysis of these two management-based regulatory programs is particularly timely in light of the management-based approach included in the 2015 Paris Agreement on climate change, (20) and a parallel focus by corporate counsel on compliance and regulatory issues as their top two concerns. (21) Because management systems such as an EMS employ an integrated and interdisciplinary approach to operations and compliance, (22) they also provide a proven framework for compliance programs, (23) and U.S. regulators should reevaluate their potential benefit in the United States.

   Accordingly, this Article explores the relationship between government-sponsored programs based on EMSs and their potential to spur improvements in environmental performance in the absence of legislation, as well as to provide a tool for ensuring better compliance. The Article accomplishes this through a comparative analysis of the use of EMSs as a regulatory tool in the European Union and the United States. While there have been other articles and studies addressing the topic of the regulatory value of EMSs, very few have done them on a comparative basis; (24) and none of them have compared the studies evaluating the effectiveness of the European Union's Eco-Management and Audit Scheme (EMAS) and EPA's Performance Track program. This comparison is especially timely with the release of a new and comprehensive evaluation of EMAS, (25) which as an environmental program of all members of the European Union, is an appropriate level of governance to compare to Performance Track.

   Part II describes what EMSs are, how they operate, and why they are important in a global context. Part III discusses how the European Union has utilized EMSs as the base of EMAS, and how EMAS has developed over its 20 years of existence. It also describes how U.S. federal regulators promoted the use of EMSs during the Clinton and Bush presidencies through an initiative that evolved into the Performance Track program, but then reversed that policy and suspended Performance Track at the beginning of the Obama administration. Part IV evaluates the literature on the claimed impact each of these programs has had on environmental performance and compliance. The EU studies have examined a wider range of environmental performance impacts, while the U.S. studies have focused on the delivery of measurable benefits and compliance. (26) Part V discusses the relative merits of two regulatory approaches and suggests possibilities for further research. The Article concludes that the Europe Union's EMAS program demonstrates the potential EMS-based regulations have to produce significant environmental performance and compliance benefits, and that the United States and other nations could benefit from finding ways to utilize EMSs for transforming national governmental environmental regulation from enforcing a set of baseline rules for compliance to instigating actions that improve our global environment.

2. AN EMS PRIMER

   EMSs are used in over 170 countries around the globe. (27) The emergence of EMSs coincided with the exploration of transforming regulatory systems from governmental command-and-control policies to more flexible regimes that allow private actors a greater range of options to meet governmental requirements. (28) At the same time, the laws of individual nation-states have become just one of several considerations operating entities must take into account to compete in an increasingly global marketplace. (29)

   EMSs provide an internationally recognized standard for evaluating environmental processes. (30) In addition, they have been suggested as a tool for providing a more uniform global approach to environmental governance (31) as well as leveraging the capabilities of constrained environmental enforcement agencies, something particularly important for developing nations. (32) Despite their widespread prevalence, EMSs are not often mentioned in standard legal textbooks on environmental law, (33) and many legal practitioners and scholars may not be familiar with them. However, as described below, they are an increasingly important mechanism in worldwide environmental governance, compliance programs, and supply chains. (34) Therefore, it is important to understand what they are, how they work, and how they interact with regulations and compliance.

   1. What Is an EMS?

      An EMS is a globally recognized tool for evaluating and improving environmental performance. (35) The process underlying an EMS is the establishment of a management system for production that was originally developed by W. Edwards Deming to improve the quality of products, often called the Deming circle or the "Plan-Do-Check-Act" model. (36)

      The most widely used form of EMS in the world was developed by the International Organization for Standardization (ISO) and launched in 1996. (38) ISO is a global nongovernmental organization whose members are national standards bodies. (39) There are currently members from 163 countries. (40) ISO used the Deming model to develop its 9000 standard series for quality management. (41) ISO then chose that globally successful series as the basis for its ISO 14000 series to improve environ mental performance in a manner similar to the improvements achieved for product quality through the implementation of the ISO 9000 series. (42) The core principle of management systems is the delivery of improved performance through improvements in processes. (43)

      EMSs can be implemented throughout an entire company, for a facility, or just for certain activities. (44) An essential component of every EMS is the identification of all environmental requirements of the operation: governmental laws and regulations, company policies and procedures, and requirements imposed by third-parties, such as customers and trade associations. (45)

      Once a company or facility develops an environmental policy and identifies requirements as well as other desirable environmental endpoints ("plan"), the company or facility implements what is necessary to achieve those endpoints ("do"), then evaluates whether the implementation is successful ("check"), and finally corrects any deficiencies that are found ("act"). (46) The action to correct the deficiencies then becomes part of a new plan-do-check-act cycle, and should result in continuous environmental improvement. (47)

      The widely used ISO 14000 series provides companies with guidance on overall management of their environmental responsibilities. (48) This series consists of 14001, which establishes the requirements for an EMS meeting ISO standards and gives guidance for use in operations, and several other additional standards for other environmental aspects such as communication, auditing, labeling, and reporting of...