An Introduction to Private Environmental Governance

• Pages: 3-23
• Author: Michael P. Vandenbergh,Sarah E. Light,James Salzman

3

Chapter 1

AN INTRODUCTION TO PRIVATE

ENVIRONMENTAL GOVERNANCE

I.Why Study Private Environmental

Governance?

Just over 50 years ago, a flurry of laws launched the modern era

of environmental protection. The Clean Air Act, Clean Water Act,

Endangered Species Act, and other innovative statutes created a

powerful set of tools to clean up and protect the nation’s environment.

This dynamic period, though, was brief. By the 1990s, increased

partisanship had set in; environmental initiatives in Congress had

slowed to a dribble. Yet public concern over environmental protection

remained strong as new kinds of environmental threats took center

stage—from climate change and microplastics pollution to

agricultural runoff and toxic chemicals.

As government efforts slowed, other groups stepped forward. It

turned out that when it came to environmental protection,

Washington, D.C., and state capitals were not the only places that

mattered. Around the country and the globe, managers of civic and

advocacy groups, corporations, investors, universities, and other

organizations began to develop new ways that they could address

environmental problems. The result was an explosion of private

environmental governance (PEG).

PEG complements, spurs, and even competes with government

environmental laws, policies, and programs. In many respects, PEG

has become one of the most effective and exciting aspects of

environmental protection in the 21st century. To put it bluntly, you

cannot understand the range of environmental protection efforts that

really matter today unless you understand PEG.

If this seems an exaggeration, consider the following. When you

eat some fish, perhaps a Filet-o-Fish at McDonalds or a filet bought

at a Whole Foods grocery store, the fish was probably from a fishery

regulated by a private certification organization such as the Marine

Stewardship Council. If you bought some furniture at IKEA or

lumber at Home Depot, the wood likely came from forests certified

for sustainable timber management. If you bought an LED light bulb

at Walmart, you were part of the store’s shift to promoting LED bulbs

for households, which has led to annual carbon emissions reductions

greater than the reductions from any major industrial sector. If you

borrowed money from one of the six largest national banks in the

4

TOOLS AND CONCEPTS

Pt. I

United States, the bank you borrowed from likely had adopted

climate-conscious lending practices that bar lending to some large

carbon-emitting projects. If you participated in an effort to preserve

a local forest, you may have worked with a private non-profit

organization that purchased or placed a conservation easement on

the land. In doing so, you were participating in a form of PEG that

has protected an area as large as the state of Utah.

These actions, and thousands of others, are shifting behavior

and in many cases leading to significant environmental protection.

These are all private initiatives, and it is well past time for students

and practitioners of environmental law and policy to broaden their

understanding of environmental protection strategies.

Environmental laws, of course, are important but so too are actions

by private actors. Accounting for PEG can not only unlock a more

nuanced understanding of the tools available to solve environmental

problems, but also identify legal and business risks and opportunities

that were unimaginable decades ago.

To be sure, these approaches are controversial. Critiques abound

from the left that private action does not go far enough, smacks of

“greenwashing,” or validates a market system that caused the

problem in the first place. And more recently, critiques on the right

argue that “woke” firms engaging in PEG (or more broadly, in ESG—

environmental, social, and governance initiatives) are straying too

far from their profit-maximization mandates. We will explain and

address these critiques throughout the book. Whichever side of this

debate you support, though, realize that both critiques spring from

the common understanding that PEG represents an important

development.

This Chapter provides an introduction to the concept of PEG,

explains why it is a subject worthy of study, and offers three brief

cases to highlight issues that make this young field both exciting and

challenging.

II. What Is PEG?

When the authors of this book took introductory environmental

law courses in the 1980s and 1990s, the courses were taught as part

of administrative law, focusing on the constitutional authority for

environmental statutes, the processes, functions, and review of

agency regulations, and enforcement of government requirements.

International environmental law courses focused on the agreements

among nations and the activities of the United Nations and other

international governmental organizations. This focus on the role of

governments was entirely appropriate at the time—roughly two

dozen major U.S. environmental statutes were adopted from 1970 to

1990, and many international environmental agreements were