Professor Michael Vandenbergh of the Vanderbilt University School of Law has posted this interesting article arguing for a new concept—private environmental governance—to understand environmental law. He contends that environmental law is shifting from its founding in government regulation to a model of solely private, or public-private partnerships. He further argues that private markets can be good tools for achieving the “public” ends of environmental law that many in the environmental community believe can be achieved largely, or perhaps exclusively, by government.
The key conceptual step offered by private governance is that public action is not the only way to achieve public ends. This is a deceptively simple proposition, but it is remarkable how often the next question after an environmental problem is identified is “what can government do about it?” The existence of private governance suggests that the question should be whether a public or a private actor can or should be mobilized and whether a public or private governance option, or some mix of the two, will produce a better outcome.
Undoubtedly not a truly new or revolutionary idea, but welcome nonetheless.