Environmental Governance at the Edge of Democracy

65 Pages Posted: 16 Feb 2021

See all articles by Joshua Galperin

Joshua Galperin

University of Pittsburgh - School of Law

Date Written: February 15, 2021

Abstract

Private environmental governance describes the affirmative efforts of private organizations to deliver public environmental goals, such as climate change mitigation, without government leadership or control. The scholarship on private environmental governance has grown quickly over its short life, but has largely described, catalogued, and quantified private environmental governance. This article begins the project of more fully theorizing private environmental governance. It is the first to explore and critique its political and democratic roles and responsibilities.

This article argues that despite the promise that private environmental governance is private and therefore “beyond politics,” it in fact calls loudly for democratic consideration. Private environmental governance is an effective instrument for advancing environmental protection, but the reason it is instrumental is because it wields substantial coercive power over the global environment and human relationships with the environment. Unlike public governance, private governance makes fast and dramatic strides because it wields this coercive power without the procedural burdens of the state. But procedural burdens are not just inefficiencies, they are often important parts of the practice of democracy.

Many factors can recommend democratic consideration in place of private fiat. In the case of private environmental governance, democratic practice is necessary for at least three reasons. First, the endeavor is political in the way it uses power and displaces public law. Second, private environmental governance assumes significant conclusions about whether and how to protect the environment. These conclusions should result from public choice, not private will. Third, substantial power imbalances allow private governance to interfere with and dominate individual interests. The power of private firms to encroach on individual liberty is the reason their environmental governance strategies work. Democracy is the forum to authorize, redistribute, or revoke that power.

After making the case that private environmental governance should not escape democratic reflection simply because of its private designation, this article concludes that further careful study is necessary to determine whether private environmental governance institutions provide sufficient dimensions of democracy. Private environmental governance not only risks governing without democracy, it risks lulling people into a sense that the messy politics of public governance are no longer necessary. Closer attention to private environmental governance’s democratic credentials can therefore improve private governance and help maintain a functioning state.

Keywords: liberalism, liberty, politics, political economy, democracy, environmental law, private environmental governance

Suggested Citation

Galperin, Joshua, Environmental Governance at the Edge of Democracy (February 15, 2021). Virginia Environmental Law Journal, Forthcoming (2021), U. of Pittsburgh Legal Studies Research Paper No. 2021-02, Available at SSRN: https://ssrn.com/abstract=3786277

Joshua Galperin (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://law.pitt.edu/people/joshua-galperin

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