I. Introduction

In rapidly growing numbers, business firms are committing to meet environmental standards set by nongovernmental environmental certification programs. Such programs claim to harness the incentives of the market to promote the public interest. They typically define the environmental standards that firms must meet and establish organizational mechanisms for achieving and "certifying" compliance. Depending on the program, firms are entitled to signal their certification status by displaying labels on their literature, facilities, or products. Examples of important environmental certification programs include the Forest Stewardship Council's (FSC's) well-managed forests program,² the International Organization for Standardization (ISO) 14001 environmental management program,³ and the chemical industry's Responsible Care(R) program.⁴

Although environmental certification programs have immense potential to reshape environmental management practices and their affiliated legal rights and duties, American environmental lawyers have largely ignored them. It is difficult to say why. Perhaps they assume from decades of experience that important environmental mandates necessarily come from governments. Perhaps they are constitutionally [31 ELR 10163] different from corporate and securities lawyers, who, over the years, have made much more extensive use of nongovernmental ordering mechanisms. In any event, the nearly exclusive focus of American environmental lawyers on government mandates is increasingly anachronistic, given the apparent incapacity of legislatures to seriously reassess existing laws and the sluggishness of administrative agencies in restructuring regulatory frameworks.

This Article argues that environmental certification programs are likely to become important engines of change in American environmental law, and that they deserve the serious attention of environmental lawyers. Section II describes common features of environmental certification programs to date, and compares them to governmental legal systems. Sections III and IV review areas of law likely to be implicated by certification programs, and describe how they may relate to certification. Section V offers some concluding thoughts about the implications of certification programs.