'Private' Environmental Certification Systems and American Law: Closer than You May Think

35 Pages Posted: 23 Sep 2000

See all articles by Errol Meidinger

Errol Meidinger

University at Buffalo Law School

Date Written: July 2000


Many industrial organizations are committing to achieve improved environmental performance through privately instituted environmental certification programs. Such programs typically define the environmental standards that firms must meet as well as the organizational mechanisms required to achieve and "certify" compliance. Well known examples include the chemical industry's "Responsible Care" program, the International Organization for Standardization's "ISO 14000" environmental management program, and the Forest Stewardship Council's well-managed forests program.

Because of their ostensibly private and voluntary nature, environmental certification programs are often presumed to be separate and distinct from law. In fact, however, they are deeply intertwined with law, and seem likely to have a significant influence on it over time. This paper describes the main areas of law likely to be affected, including traditional "environmental" law, as well as tort, property, tax, information, financial, and trade law. It ventures that many of the change processes will be informal and barely visible, as legal agents adjust their behavior and expectations to take account of the standards and organizational mechanisms established by certification systems. Because of the potentially high degree of legal influence wielded by certification systems, the legal system is likely to try to constrain or seek to channel certification systems, so the paper also describes the primary means through which this may happen.

The effects of certification systems on environmental performance and economic efficiency have dominated discussion of their desirability to date. Preliminary scholarship indicates moderate gains on both dimensions, provided certain framework conditions (particularly functional public information systems and watchdog groups) exist. This paper argues that certification systems also pose larger questions for public governance. These include a structural expansion in the power of industrial organizations, a possible redefinition of the nature of public legitimacy, and a potential reconfiguration of the legal system itself, wherein law making processes may once again be privatized.

Keywords: legal system, environmental law, governance, privatization, legal pluralism, legislation, enforcement, democracy, legitimacy, political power

JEL Classification: K10, K23, K32, K33

Suggested Citation

Meidinger, Errol, 'Private' Environmental Certification Systems and American Law: Closer than You May Think (July 2000). Available at SSRN: https://ssrn.com/abstract=238742 or http://dx.doi.org/10.2139/ssrn.238742

Errol Meidinger (Contact Author)

University at Buffalo Law School ( email )

520 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-6692 (Phone)
716-645-2064 (Fax)

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