Fisheries, Forests, Agriculture, and Habitat

• Pages: 237-256
• Author: Michael P. Vandenbergh,Sarah E. Light,James Salzman

237

Chapter 11

FISHERIES, FORESTS, AGRICULTURE,

AND HABITAT

The environmental harms and resource management issues

arising from fisheries, forests, agriculture, and habitat or land use

are among the most difficult problems confronted by environmental

lawyers, managers, and advocates. These problems reflect many of

the barriers to public governance that we outlined in Chapter 2—

they often involve multiple, small, hard-to-regulate sources of

pollution, as well as sources such as farmers that have been

surprisingly successful at resisting government regulation. They also

often create water and air pollution problems that cross national and

state government boundaries. Many of these problems arise in

commons situations, such as open oceans that create motivations to

over-exploit resources that are outside the regulatory boundaries of

any one government. Moreover, concentrated resource interests such

as the agriculture and timber lobbies can have strong influence on

legislatures and agencies. This chapter examines how PEG

initiatives have emerged in response to these barriers for regulation

of fisheries, forests, agriculture, and land use. The chapter also

explores how PEG initiatives on these topics often use a combination

of the instruments in the PEG toolkit, including persuasion,

payments, and prescription.

I.Fisheries

A.The Marine Stewardship Council

We explained the origins of the Marine Stewardship Council

(MSC) in Chapter 1 and discussed how it has filled gaps in the

international regulation of major fisheries. Now that we have

explained the motivations for PEG and the tools commonly developed

by lawyers, managers, and advocates, it’s time to examine where

MSC fits into the governance of fisheries and how it functions. As we

mentioned in Chapter 1, MSC is a leading example of a certification,

standards, and labeling system that emerged as a result of a gap in

government action. The World Wildlife Fund and Unilever formed

the MSC in response to concerns by European consumers and

environmental groups about the sustainability of the fish sold in

Europe. The MSC is now a global organization.

The MSC uses prescription (via standards and certification

requirements for fisheries) and persuasion (via labels for seafood

from certified fisheries). It develops and administers standards for

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PEG IN ACTION: TOXICS, WASTE, WATER,

AND NATURAL RESOURCES

Pt. III

sustainable fisheries, updates the standards periodically with input

from a stakeholder advisory group, evaluates fisheries, allows those

fisheries that meet its sustainability criteria to label their fish as

MSC certified, and includes a dispute resolution process at several

steps in the process.

1

Private auditors assess a fishery’s compliance

with the MSC standards and report the status of the fishery to the

MSC. Like public governance mechanisms, the MSC also modifies its

standards and implementation in response to shifting stakeholder

wishes and new scientific developments.

Importantly, the administrative process followed by the MSC

and other resource certification and standards systems closely tracks

the administrative law processes that public agencies must follow. As

described in Chapter 1, the MSC uses a notice-and-comment process

to develop and modify its fisheries standards, and this process

parallels the approach required for informal rulemaking by the U.S.

Administrative Procedure Act and many state analogues. The MSC

process is more flexible than the process followed by government

agencies, though. For instance, any stakeholder at any time may

propose new or revised standards. Proposals are submitted to the

Board of Trustees, which makes the decision to accept or deny the

proposal after consultation with the Standards Advisory Board (SAB)

on technical issues and the Stakeholder Advisory Council (STAC) on

stakeholder engagement issues. An accepted proposal is then

distributed for a period of public consultation (one sixty-day period

for revision, two for new standards) during which time all

stakeholders can submit suggestions for modifying the proposal.

Following the public consultation period(s), the MSC staff submits

the final draft of the standard again to the SAB and STAC, which

make final comments before the Board formally adopts the standard.

Once adopted, fisheries have up to three years to come into

compliance with a new standard. Should they fail to do so—or should

they fall out of compliance with an existing standard—MSC will

revoke their certification. Upon revocation, the MSC instructs the

fishery to stop selling fish with an MSC label until it is re-certified.

Fisheries then have two avenues to pursue re-certification: correction

or adjudication. Fisheries may submit a correction plan and

corresponding documentation proving that the correction plan has

been fully implemented and has addressed the issue that resulted in

suspension. Alternatively, if the fishery believes its certification has

been improperly suspended, it may challenge the decision and enter

adjudication. If the fishery and MSC are unable to reach an

agreement, the complaint is submitted to an independent adjudicator

who, after hearing arguments from the MSC and the affected fishery,

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See ABOUT US,MARINE STEWARDSHIP COUNCIL.