5 Mich. J. Envtl. & Admin. L. 1 (2015-2016)

handle is hein.journals/michjo5 and id is 1 raw text is: 








     PARALLELS IN PUBLIC AND PRIVATE

        ENVIRONMENTAL GOVERNANCE

                      Sarah E. Light & Eric W. Orts*

         Private actors, including business firms and non -governmental organiza-
    tions, 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 scholar-
    ship 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: pro-
    curement 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 environ-
    mental governance with both public and private options promises greater flexibil-
    ity and institutional power to address otherwise intractable environmental
    problems than the traditional paradigm of relying only on public regulation.

                            TABLE OF CONTENTS

INTRODUCTION ......................................................            2
     I. THEORIES OF INSTRUMENT CHOICE IN PUBLIC ENVIRONMENTAL
         LAw ....................................................... 13

    * Assistant Professor of Legal Studies and Business Ethics, The Wharton School,
University of Pennsylvania; and Guardsmark Professor of Legal Studies and Business Ethics,
and Faculty Director of the Initiative for Global Environmental Leadership (IGEL), The
Wharton School, University of Pennsylvania, respectively. For helpful comments, we thank
participants in the Sabin Colloquium for Innovative Environmental Law Scholarship at
Columbia Law School; the Colorado/Duke Law Schools' workshop on Natural Resources,
Energy, and Environment in a Climate Changed World; the junior faculty in the Legal
Studies and Business Ethics Department at Wharton; and an environmental law seminar at
the UCLA School of Law. Thanks to David Adelman, William Boyd, Jonathan Cannon, Ann
Carlson, Michael Gerrard, Gwen Gordon, Miranda Helmes, Michael Herz, Sharon Jacobs,
Sarah Krakoff, Doug Kysar, Jennifer Mnookin, Jed Purdy, Deepa Badrinarayana, Jim
Salzman, Mark Squillace, Richard Revesz, Carol Rose, Barton Thompson, Michael
Vandenbergh, Alex Wang, and Kevin Werbach for their comments and insights on earlier
drafts. Special thanks to James Klima, Michael Steele, and Kristin Teager for excellent
research assistance. This Article represents solely the views of its authors, and any errors are
our own. For general research funding support, we are indebted to the Legal Studies and
Business Ethics Department at the Wharton School, as well as IGEL.

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