Is Private Governance Changing the Practice of Corporate Environmental Law? (2015 Corporate Forum)

Corporations are taking on functions that traditionally have been performed or driven by government, including standard setting, monitoring, enforcement and dispute resolution. In the environmental realm, corporations are adopting voluntary standards; participating in private certification and labeling initiatives; collecting information from and enforcing requirements on their supply chains; and making agreements with stakeholders to address environmental as well as social and other issues.

This private governance activity is changing the legal framework for environmental lawyers, including in-house lawyers, their outside counsel, and government and NGO attorneys as well. While some are ahead of the curve, in many cases counsel are not included in corporate private governance activities. This creates risks for the companies, the stakeholders, partnering organizations, and the standards and activities being created by these activities. For example, important antitrust and consumer protection issues are raised that nonlawyers often overlook, and standards are created with little or no transparency, public involvement, or recourse for aggrieved participants.

Our panelists engaged in an in-depth discussion of the legal risks and benefits of private governance and how it is changing the role of environmental lawyers.

AGENDA