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Volume 44, Issue 2 — February 2014


A Summit on Private Environmental Governance: Facing the Challenges of Voluntary Standards, Supply Chains, and Green Marketing

by Deborah P. Majoras

On June 10, 2013, ELI, the Advertising Self-Regulatory Council, and the Council of Better Business Bureaus cosponsored a conference to provide an overview and to initiate a dialogue about the legal issues taking shape amidst the growing popularity of private governance approaches. Deborah P. Majoras offered the conference keynote.

The Emergence of Private Environmental Governance

by Michael P. Vandenbergh

Environmental law has long been viewed as a public law field, with policymakers and practitioners conditioned to look to government for solutions to environmental
problems, but private governance is playing an increasingly important role. Will private environmental governance become a mainstay of environmental law and policy, or is it another passing fad wrongly heralded as the future of the field? Several issues will determine the answer to this question and the early evidence suggests that although private environmental governance is not a substitute for public governance, it is a discrete field worthy of attention by policymakers, practitioners, and theorists.

The BP "B1 Bundle Ruling": Federal Statutory Displacement of General Maritime Law (Part II)

by John J. Costonis

Part I of this two-part study probed within the context of the 2010 BP Macondo Well blowout whether and to what extent the Oil Pollution Act of 1990 (OPA) displaces general maritime law negligence tort remedies for private economic and property losses. unscathed. Part II’s province is twofold. It critiques the ruling’s “silence means approval” canon on the basis of a framework it constructs to illuminate otherwise indeterminate U.S. Supreme Court displacement jurisprudence and policy. It then turns to B1 Bundle’s reliance on the Supreme Court’s rulings in Exxon Shipping Co. v. Baker and Atlantic Sounding Co. v. Townsend, exposing palpable inconsistencies— termed here “category errors”—that undermine the precedential force attributed to them by B1 Bundle.


Interviews With Private Governance Experts

by Linda Breggin

Corporations and other nongovernmental entities now regularly work to develop voluntary agreements, standards, and other practices aimed at fostering sustainability and reducing environmental impacts. This growth in “private governance” is implemented through various vehicles, including collective standardsetting, certifications, supply chain agreements, and other mechanisms. The influence of private governance is broad, impacting industries from electronics to forestry to apparel, as well as many others.

Marine Stewardship Council: A Case Study in Private Environmental Standard-Setting

by Will Martin

This Comment will examine key features of the Marine Stewardship Council (MSC), one of the main private environmental standard-setting organizations, and describe MSC’s standard-setting process, the status of MSC’s review of its standard currently underway, and lessons learned in setting and adjusting the standard.

Private Governance of Green Claims in the Marketplace: The Role of NAD and Advertising Self-Regulation

by David G. Mallen

Private environmental governance encompasses a broad range of private actors creating systems and mechanisms for promoting various environmental or “green” attributes. Increasingly, companies are conducting life-cycle analyses, evaluating supply chains, partnering with nongovernmental organizations (NGOs), developing environmental standards, and utilizing certification schemes designed to ensure third parties and consumers that certain criteria for reducing environmental impact have been met. What is the driving force behind these efforts?