Parallels in Public and Private Environmental Governance

Abstract

Private actors, including business firms and non-governmental organizations, play an essential role in addressing today’s most serious environmental challenges. Yet scholars have not fully recognized the parallels between public environmental law and the standard-setting and enforcement functions of private environmental governance. “Instrument choice” in environmental law scholarship is generally understood to refer to government actors choosing among options from the public law “toolkit,” which includes prescriptive rules, the creation of property rights, the leveraging of markets, and informational regulation. Each of these major public law tools, however, has a parallel in private environmental governance.

This Article first provides a descriptive account of these parallels, which highlights two underappreciated tools used by both public and private actors: procurement and insurance for environmental risks. It then considers the normative criteria that should inform choices among instruments by using the example of climate change. The resulting portrait of a multi-tiered, global regime of environmental governance with both public and private options promises greater flexibility and institutional power to address otherwise intractable environmental problems than the traditional paradigm of relying only on public regulation.

Keywords: environmental law, private environmental governance, instrument choice, climate change