2015] CONTRACTING FOR CONTROL OF RESOURCES 2509
Policy discussions increasingly envision a role for private actors in a wide
variety of governance contexts.1 Growing awareness that industry actors and
nongovernmental organizations play vital leadership roles in the
development of law and policy call traditional notions of the government as a
unilateral decisionmaker into question.2 Environmental law is a particularly
fertile ground for studying public–private approaches.3 Collaborative
1. See Kenneth W. Abbott & Duncan Snidal, The Governance Triangle: Regulatory Standards
Institutions and the Shadow of the State, in THE POLITICS OF GLOBAL REGULATION 44, 70–71 (Walter
Mattli & Ngaire Woods eds., 2009) (discussing standard bargaining and public–private
governance arrangements); Orly Lobel, The Paradox of Extralegal Activism: Critical Legal
Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 983 (2007) (explaining that non-
state actors play an important role in areas of management once thought to be controlled solely
by state actors). See generally Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV.
543 (2000) (emphasizing the role of private actors in administrative regulations); Eric W. Orts
& Cary Coglianese, Debate, Collaborative Environmental Law: Pro & Con, 156 U. PA. L. REV.
PENNUMBRA 289 (2007) (debating the proper role of private actors in determining
environmental policy); R.A.W. Rhodes, The New Governance: Governing Without Government, 44 POL.
STUD. 652 (1996) (noting a trend towards “new governance” approaches that emphasize the role
of private parties).
2. See generally Freeman, supra note 1 (describing agencies and private organizations
working together to resolve conflict).
3. Burgeoning literatures on topics including regulatory negotiation, new governance,
bottom-up approaches, and insurers as regulators benefitted from early empirical studies in
environmental law. See, e.g., WILLIAM D. LEACH, CTR. FOR COLLABORATIVE POLICY, IS DEVOLUTION
DEMOCRATIC? ASSESSING COLLABORATIVE ENVIRONMENTAL MANAGEMENT 1 (2004) (proposing “a
framework for assessing devolution in terms of inclusiveness, representativeness, procedural
fairness, lawfulness, deliberativeness, and empowerment”); Jody Freeman, Collaborative
Governance in the Administrative State, 54 UCLA L. REV. 1 (1997) (using examples from
Occupational Safety and Health Administration (“OSHA”) and the Environmental Protection
Agency (“EPA”) to argue current collaborative models are not ideal); Cameron Holley, Aging
Gracefully? Examining the Conditions for Sustaining Successful Collaboration in Environm ental Law and
Governance, 26 ENVTL. & PLAN. L.J. 457 (2009) (investigating the factors that impact long-term
success of corporate collaboration); Guy Mundlak & Issi Rosen-Zvi, Signaling Virtue? A Comparison
of Corporate Codes in the Fields of Labor and Environment, 12 THEORETICAL INQ. L. 603 (2011)
(examining motivations behind corporate social responsibility in the labor and environ mental
sectors); Haitao Yin et al., Risk-Based Pricing and Risk-Reducing Effort: Does the Private Insurance
Market Reduce Environmental Accidents?, 54 J.L. & ECON. 325 (2011) (analyzing variations in
financing of cleanup of accidental leaks from underground fuel tanks).