The administrative law of global private-public regulation: The case of forestry

European Journal of International Law

Volumn 17, Issue 1, 2006, Pages 47-87

  Meidinger, Errol ^a,b  

^a UNIVERSITY AT BUFFALO   (United States)

^b UNIVERSITY OF FREIBURG   (Germany)

Author keywords

[No Author keywords available]

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EID: 33645941242     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chi168     Document Type: Article

References (188)

1. See generally, A.C. Cutler, V. Haufler, and T. Porter (eds), Private Authority in International Affairs (1999)
2. J.N. Rosenau and E.-O. Czempiel (eds), Governance Without Government: Order and Change in World Politics (1992)
3. Cashore, 'Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority', 15 Governance (2002) 503
4. Burns, Drahos, and Shearing, 'Nodal Governance', 30 Australian J Legal Philosophy (2005) 30.
5. Gulbrandsen, 'Overlapping Public and Private Governance: Can Forest Certification Fill the Gaps in the Global Forest Regime?', 4 Global Environmental Politics (2004) 75
6. Levy, Young, and Zürn, 'The Study of International Regimes', 1 European J Int'l Relations (1995) 267.
7. I call it a 'system' because the various parts, although operating at different levels and sometimes with different constituencies and goals, are dependent on and adapt to each other in ways that orient their overall activity. This is different from the concept of a legal system as it is sometimes used to refer to a set of rules and assumptions that are logically consistent with each other and perhaps derived from the same source of authority. My concept of system is more akin to an ecological than to a logical or mechanical one.
8. For a more detailed exposition of forest certification as a form of law making, see Meidinger, 'Forest Certification as Environmental Law Making by Global Civil Society', in E. Meidinger, C. Elliott, and G. Oesten (eds), Social and Political Dimensions of Forest Certification (2003).
9. Indeed, corporate managers often refer to a 'social licence to operate', and forest certification may be one effort to institutionalize such licences in forestry: See, e.g., Gunningham, Kagan, and Thornton, 'Social License and Environmental Protection: Why Businesses go Beyond Compliance', 29 Law and Social Inquiry (2004) 307.
10. International Federation of Organic Agriculture Movements (IFOAM), available at http://www.ifoam.org/.
11. Marine Stewardship Council, available at http://www.msc.org.
12. Mining Certification Evaluation Project, available at http://www.minerals.csiro.au/sd/SD_MCEP.htm.
13. The Global Partnership for Safe and Sustainable Agriculture has produced a coffee standard and is now working on standards for fruits and vegetables, flowers and ornamentals, and aquaculture, available at http://www.eurep.org/Languages/English/index_html.
14. See Kingsbury, Krisch, and Stewart, 'The Emergence of Global Administrative Law', 68 Law and Contemporary Problems (2005) 15.
15. See also the Working Papers of the Global Administrative Law Project of the Institute for International Law and Justice, New York University School of Law, available at www.iilj.org. For an early effort to map the influence of emerging global issues and discourses on domestic administrative law, see A.C. Aman, Jr., Administrative Law in a Global Era (1992), at 131-156.
16. Brown, 'Cut and Run? Evolving Institutions for Global Forest Governance', 13 J Int'l Developments (2001) 852.
17. A. Kolk, Forests in International Environmental Politics: International Organisations, NGOs and the Brazilian Amazon (1996). Particularly important were Friends of the Earth in the UK and the Rainforest Action Network in the US: Bartley, 'Certifying Forests and Factories: States, Social Movements, and the Rise of Private Regulation in the Apparel and Forest Products Fields', 31 Politics & Society (2003) 433. These organizations were also important players in the subsequent movement for forest certification.
18. Ibid.
19. C. Elliott, Forest Certification: A Policy Perspective (2000), at 5.
20. F. Gale, The Tropical Timber Trade Regime (1988).
21. Elliott, supra note 14
22. Gale, supra note 15.
23. Gulbrandsen, supra note 2, at 80-81.
24. SmartWood® Certified Forestry, available at http://www.rainforest-alliance.org/programs/forestry/smartwood/images/ smartwood-seal.gif.
25. For more detailed histories, see Elliott, supra note 14
26. Meidinger, 'Human Rights, "Private" Environmental Regulation, and Community', 6 Buffalo Environmental LJ (1999) 123,
27. and B. Cashore, G. Auld, and D. Newsom, Governing Through Markets: Forest Certification and the Emergence of Non-State Authority (2004).
28. FSC, available at http://www.fsc.org/gr/en/home_header/logo.gif.
29. Forest Stewardship Council Principles and Criteria for Forest Management, available at http://www.fsc.org/keepout/en/content_areas/77/ 71/files//FSC_STD_01_001_FSC_Principles_and_Criteria_for_Forest_ Stewardship_2004_04.PDF
30. 101 PL 648
31. 104 Stat 4969 (1990).
32. See, generally, Hamilton, 'The Role of Nongovernmental Standards in the Development of Mandatory Federal Standards Affecting Safety or Health', 56 Texas L Rev (1978) 1329
33. R.E. Cheit, Setting Safety Standards: Regulation in the Public and Private Sectors (1990)
34. H. Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (2005).
35. See generally Meidinger, supra note 19.
36. See generally, Roht-Arriaza, 'Private Voluntary Standard-Setting, the International Organization for Standardization, and International Environmental Lawmaking', in G. Handl (ed.), 6 Yearbook of Int'l Envt'l L (1995), at 107, 119. Essentially, the ISO 9000 standards sought to create standards for good business management, or, as it was often called at the time, 'total quality management'.
37. See generally, T. Tibor and I. Feldman, ISO 14000: A Guide to the New Environmental Management Standards (1995).
38. International Federation of Organic Agriculture Movements, available at http://www.ifoam.org
39. Courville, 'Standards and Certification', in P. Kristiansen and A. Taji (eds), Organic Agriculture: A Global Perspective (forthcoming); Personal Interviews.
40. Meidinger, 'Forest Certification as Environmental Law Making by Global Civil Society', in Meidinger, Elliott, and Oesten, supra note 4, at 293, 304-308.
41. See Bernstein and Cashore, 'Non-state Global Governance: Is Forest Certification a Legitimate Alternative to a Global Forest Convention?', in J.J. Kirton and M.J. Trebilcock (eds), Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance (2004).
42. Forest Stewardship Council AC Bylaws, available at http://www.fsc.org/ keepout/en/content_areas/77/84/files/ FSC_By_laws_revised_November_2002.PDF. Members for the most part choose the chambers of which they are members, although profit-making organizations are expected to join the economic chamber. The idea that participation by environmental, economic, and social interests is key to good forest policy had been adopted in non-binding form for governments in the Rio Forest Principles: United Nations, 'Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests', A/Conf.151/26, Principle 2d, available at http://www.un.org/ documents/ga/conf151/aconf15126-3annex3.htm.
43. Statutory Motion 2 to Allow Participation of Public Owned Companies. Final Motions and Results from the FSC General Assembly 2002, available at http://www.fsc.org/keepout/en/content_areas/77/75/files/ FSC_General_Assembly_2002_Final_Motions.pdf. The bylaws also provide for independence from governments as well as commercial organizations, although they permit acceptance of funding from and collaboration with governments: Supra note 29, para. 8.
44. FSC 2005 General Assembly Statutory Motion 2. The sponsor's primary rationale was that a staff member who was also a member of a specific chamber could not avoid the appearance of partiality when responsible for carrying out the policies settled upon in the General Assembly. This view carried some weight with many participants, but ultimately gave way to a pragmatic sense that these problems could be handled in practice without barring staff members from membership and losing the value of their experience for open deliberations. One reading of this decision is that the FSC's concept of how to have an adaptive governance structure includes allowing the broadest possible legislative participation.
45. See http://www.fsc.org/keepout/en/content_areas/77/82/files/ 5_2_2_FSC_Membership_List_2005_03_16.pdf. Individuals are limited to 10% of the total voting power in each sub-chamber, thus giving effective control to organizational members: Bylaws, supra note 24, para. 13.
46. FSC Principles and Criteria of Forest Stewardship, available at http://www.fsc.org/en/about/policy_standards/princ_criteria. The tendency to enunciate and attempt to propagate core principles seems to typify not only the sustainable development and international human rights domains, but also more technical areas of international regulation, such as banking and securities: See, e.g., Zaring, 'Informal Procedure, Hard and Soft, in International Administration', 5 Chicago J Int'l L (2005) 547, at 580.
47. National and regional standards are developed by National Initiatives, which are supposed to be structured so as broadly to reflect important interests in the relevant locale. In some particularly large countries, such as the US and Canada, specific standards are developed for individual regions. For a current list of National Initiatives, see http://www.fsc.org/keepout/en/content_areas/77/77/files/ 5_1_2_2005_10_20_FSC_National_Initiatives.pdf.
48. Nash, 'Industry Codes of Practice: Emergence and Evolution', in T. Dietz and P.C. Stern (eds), New Tools for Environmental Protection: Education, Information, and Voluntary Measures (2002), at 235, 237-238.
49. Canadian Standards Association Standard for Forest Management, available at http://www.sfms.com/csa.htm.
50. See Meidinger, supra note 19, for an early history.
51. See generally Cashore, Auld, and Newsom, 'The United States' Race to Certify Sustainable Forestry: Non-State Environmental Governance and the Competition for Policy-Making Authority', 5 Business and Politics (2003) 219.
52. Meidinger, Elliott, and Oesten, 'The Fundamentals of Forest Certification', in Meidinger, Elliott, and Oesten, supra note 4, at 12-14.
53. Ibid.
54. Ibid.
55. Austria adopted such a statute in 1992 and shortly thereafter repealed it in the face of criticism from developing countries and pressure from Austrian industrialists who feared a trade war: D. Humphries, Forest Politics: The Evolution of International Cooperation (1996), at 73.
56. Meidinger, Oesten, and Elliott, supra note 40, at 17-18.
57. PEFC Members and Schemes, available at http://www.pefc.org/internet/html/ members_schemes/4_1120_59.htm.
58. Endorsed non-European programmes currently exist in Australia, Brazil, Canada (the CSA programme), and Chile. Countries with programmes likely to receive future endorsement include Gabon, Malaysia, Russia, and the US SFI programme: Ibid.
59. Current members include the Fairtrade Labelling Organizations, the Forest Stewardship Council, the International Federation of Organic Agriculture Movements, the International Organic Accreditation Service, the Marine Aquarium Council, the Marine Stewardship Council, the Rainforest Alliance, and Social Accountability International. See http://www.isealalliance.org/membership/founding.htm.
60. ISEAL Alliance, available at http://www.isealalliance.org/about/ index.htm.
61. Humphreys, 'The Certification Wars: Forest Certification Schemes as Sites for Trade-Environment Conflicts', paper presented to the 'Privatizing Environmental Governance' Panel, 46th annual convention of the International Studies Association, Honolulu, Hawaii, 1-5 Mar. 2005.
62. World Standards Services Network, available at http://www.wssn.net/WSSN/ aboutwssn.html.
63. Among the most important have been the Ford, Macarthur, and Rockefeller Brothers. See generally Elliott, supra note 14.
64. For a general discussion of the brand manipulation involved, see Haufler, 'New Forms of Governance: Certification Regimes as Social Regulations of the Global Market', in Meidinger, Elliott, and Oesten, supra note 40, at 237-247.
65. Home Depot Announces Record Fourth Quarter and Fiscal Year 2004 Results, available at http://ir.homedepot.com/ReleaseDetail.cfm?ReleaseID=156400.
66. Personal interviews.
67. Carlton, 'Against the Grain: How a Tiny Council Cut Logging Abuse', Wall Street Journal, 26 Sept. 2000, at A12.
68. This has been mentioned as fact by several interviewees, although documentation has not turned up. Similar campaigns have been carried out in other countries. For example, Greenpeace Germany ran a successful campaign to persuade the wood processing company, Rettenmeier, including some of its suppliers in the Archangelsk region of Russia, to obtain FSC certification.
69. Boise Cascade Timber and Fiber Procurement Policy, available at http://www.bc.com/environment/policyProcure.jsp.
70. See also Rainforest Action Network, '19 Years of Impact: Annual Report for 2003', available at http://www.ran.org/about_ran/ran_annual_2003.pdf.
71. See generally, Sasser, 'The Certification Solution: NGO Promotion of Private, Voluntary Self-Regulation', paper presented at the 74th Annual Meeting of the Canadian Political Science Association, 29-31 May 2002, at Toronto, Ontario.
72. See http://www.ran.org/ran_campaigns/old_growth/.
73. Goldman Sachs recently announced a major greenward shift in its investment policies: Goldman Sachs Environmental Policy Framework, available at http://www.gs.com/our_firm/our_culture/ social_responsibility/environmental_policy_framework/docs/ EnvironmentalPolicyFramework.pdf.
74. Personal interviews.
75. Sasser, 'Gaining Leverage: NGO Influence on Certification Institutions in the Forest Products Sector', in L. Teeter, B. Cashore, and D. Zhang (eds), Forest Policy for Private Forestry (2002).
76. See, e.g., Bartley, 'Institutional Emergence in an Era of Globalization: The Rise of Social and Environmental Certification Systems', Working Paper, Dept. of Sociology, Indiana University (2005).
77. E.g., Paschalis, 'Forest Certification in Poland', in B. Cashore, F. Gale, E. Meidinger, and D. Newsom (eds), Confronting Sustainability: Forest Certification in Developing and Transitioning Countries (forthcoming);
78. Actins and Kore, 'Forest Certification in Latvia', in ibid. Many other national and provincial land management agencies have also chosen to have their lands certified, although no comprehensive summary appears to exist.
79. See generally, FERN, 'To Buy or Not to Buy: Timber Procurement Policies in the EU', Jan. 2004, available at http://www.fern.org/pubs/reports/ procure.pdf
80. Sprang et al., 'Public Procurement and Forest Certification: Assessing the Implications for Policy, Law and International Trade', Report to the European Commission (forthcoming).
81. See, e.g., the case studies of Bolivia, Guatemala, Latvia, and Poland in Cashore et al., supra note 63.
82. Ibid.
83. Tacconi, Boscolo, and Brack, 'National and International Policies to Control Illegal Forest Activities', Center for International Forestry Research (2003), available at http://www.cifor.cgiar.org/publications/ pdf_files/events/Illegal-logging.pdf.
84. By 'institutions' I mean standardized sets of practices, norms, and relationships for performing and stabilizing social function: See, e.g., 13, R. Scott, Institutions and Organizations (1995).
85. Licensing (or permitting) is classified as a form of adjudication in US administrative law.
86. But note that the FSC does not make any claim that certified forestry is in fact sustainable, first because some of its own members object that no one can know for sure until many years after the certification occurs, and secondly because ISO policies caution against use of the label.
87. For an illuminating review of the scientific elaboration of the sustained yield criterion, see Lowood, 'The Calculating Forester: Quantification, Cameral Science, and the Emergence of Scientific Forestry Management in Germany', in R. Frängsmyr, J.L. Heilbron, and R.E. Rider (eds), The Quantifying Spirit in the 18th Century (1990).
88. E.g., D. Humphreys, Forest Politics: The Evolution of International Cooperation (1996), at 66-69.
89. On the development of the concept of sustainable development in international environmental law see P. Sands, Principles of International Environmental Law (2nd edn., 2003), at 252-266.
90. Schanz, 'Sustainable Forest Management', in J. Burley, J. Evans, and J. Youngquist (eds), Encyclopedia of Forest Sciences (2004), 1345-1350
91. Romm, Sustainable Forestry: An Adaptive Social Process', in G.H. Aplet et al. (eds), Defining Sustainable Forestry (1993), at 280-293.
92. Meidinger, supra note 19, at 206-207. As noted below, 'continuous improvement' is a hallmark of ISO-style certification programmes.
93. The SFI's explanation at the time was that these were matters of other policies and of state and federal law.
94. The CSA eventually offered a substantive standard based on criteria and indicators developed by the Canadian Council of Forest Ministers in tandem with the Helsinki and Montreal processes. Firms could adopt this substantive standard if they wanted to, but could also opt to develop their own: See http://www.csa-international.org/product_areas/ forest_products_marking/program_documents/Z809-02_revised_1030.pdf.
95. PEFC, available at http://www.pefc.org/internet/resources/ 5_1177_286_file.1038.pdf
96. MCPFE, Resolution H1, Preamble, para. D (1993), available at http://www.mcpfe.org/resolutions/helsinki/resolution_h1.pdf.
97. Cashore, Auld, and Newsom, supra note 39
98. Meridian Institute, Comparative Analysis of the Forest Stewardship Council and Sustainable Forestry Initiative Certification Programs (2001)
99. Humphries, 'The Certification Wars: Forest Certification Schemes as Sites for Trade-Environment Conflicts', paper presented to the Privatizing Environmental Governance Panel, 46th annual convention of the International Studies Association, Honolulu, Hawaii, 1-5 Mar. 2005
100. Overdevest, 'Treadmill Politics, Information Politics, and Public Policy: Toward a Political Economy of Information', 18 Organization and Environment (2005) 72
101. McDermott, Noah, and Cashore, 'Differences That "Matter"? Identifying Analytical Challenges in the Comparison of Forest Certification Standards', Working Paper, Yale Program on Forest Certification, available at www.yale.edu/forestcertification/pdfs/McDNoahCash120205.pdf.
102. Tysiachniouk and Meidinger, 'Using Forest Certification to Strengthen Rural Communities: Cases from Northwest Russia', Paper prepared for the ASA Mini-Conference on 'Community and Ecology: The Intersection of Community Sociology and Environmental Sociology', 12-13 Aug. 2004, San Francisco, under journal review, available at www.law.buffalo.edu/eemeid/ scholarship/FCNWRussia.pdf
103. Cashore et al. (eds), supra note 63.
104. See http://www.fsc.org/keepout/en/content_areas/77/71/files//FSC_STD_ 01_001_FSC_Principles_and_Criteria_for_Forest_Stewardship_2004_04.PDF
105. Ibid.
106. National standards are prepared for countries in which forestry conditions are comparable across areas, and regional standards for larger countries with significant variations among regions. See, e.g., the US regional standards, available at http://www.fscus.org/documents/ index.php. There is an ongoing discussion in the FSC about how to define geographic areas appropriate for individual standards.
107. See, e.g., C. Coglianese and J. Nash (eds), Regulating from the Inside: Can Environmental Management Systems Achieve Policy Goals? (2001)
108. Potoski and Prakash, 'Covenants with Weak Swords: ISO 14001 and Facilities' Environmental Performance' 24 J Policy Analysis and Management (2005) 745
109. Parker, 'Reinventing Regulation Within the Corporation: Compliance-Oriented Regulatory Innovation', 32 Administration and Society (2000) 529.
110. Starting in 2002 the FSC moved to create regional offices for the various continents. It has also spent considerable effort on revising its standards for accrediting national initiatives. A policy document prepared for the 2005 General Assembly in Manaus, Brazil, contains the following statement: 'In addition to globally consistent objectives, systems, quality, integrity and credibility, FSC increasingly needs regional and national flexibility in implementing its systems, standards and approaches. Different regions need to develop specific approaches to building and servicing market demand (e.g., North America, Europe), to promoting and servicing market supply (e.g., Canada, Russia, tropical hardwood forests and plantations), and to linking demand and supply (e.g., China and east Asia)' (emphasis in original). Forest Stewardship Council, FSC Strategy, 'Institutional, Organizational and Operational Development of the Global Network of the Forest Stewardship Council', Draft for Discussion by the FSC General Assembly 2005, Nov. 2005.
111. Forest Certification Watch, Interview with Heiko Liedeker, FSC's Executive Director, and Ben Gunneberg, PEFC's General Secretary, 2 July 2004, available at http://www.certificationwatch.org/ print.php3?id_article=1845. Subsidiarity refers to the idea that any given policy decision ought to be made at the least centralized level at which it can effectively be made.
112. Sustainable Forestry Board, available at http://www.afandpa.org/Content/ NavigationMenu/Environment_and_Recycling/SFI/ Sustainable_Forestry_Board/ Sustainable_Forestry_Board.htm.
113. Solicitations for comments on proposed Brazilian, Slovak, and Estonian endorsements are posted on the PEFC website at this writing: See http:// www.pefc.org/internet/html/.
114. ISEAL Code of Good Practice for Setting Social and Environmental Standards. P004 - Version 3 - Jan. 2004, available at http://inni.pacinst.org/inni/General/ISEALCodeFinal.pdf.
115. Ibid., section 5.
116. ISO/IEC Guide 2:1996, 'Standardization and related activities - General vocabulary'
117. ISO/IEC Guide 59:1994, 'Code of good practice for standardization'
118. ISO/IEC Guide 14024:1999, 'Environmental labels and declarations - Type 1 environmental labelling - Principles and procedures'
119. WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS)
120. WTO Agreement on Technical Barriers to Trade (TBT), Annex 3: Code of good practice for the preparation, adoption and application of standards
121. WTO Agreement on Technical Barriers to Trade (TBT) Second Triennial Review, Annex 4: Principles for the Development of International Standards, Guides and Recommendations with Relation to Arts 2, 5, and Annex 3 of the Agreement.
122. ISO/IEC Guide 2: 1996, supra note 90.
123. ISEAL Code, supra note 88, Sect. 3.2. This is a relatively broad definition. Some standard-setting organizations limit the term to those who are directly affected by standards. ISO 14004 opted for the broader definition, however.
124. Ibid., Sect. 7.1.
125. Margaret Shannon argues that unconstrained participation is inherent in the concept of sustainable governance: Shannon, 'What is Meant by Public Participation in Forest Certification Processes? Understanding Forest Certification Within Democratic Governance Institutions', in Meidinger, Elliott, and Oesten, Social and Political Dimensions of Forest Certification, supra note 40, at 179.
126. Most stakeholder consultation processes to date have been developed by certification organizations. The FSC is working to systematize information on and approaches to local consultation.
127. In order to reduce costs, the peer review requirement does not apply in FSC's programme for Small and Low Intensity Managed Forests, essentially small operations and operations that do not carry out intensive logging. See http://www.fsc.org/slimf/.
128. Thornber, 'Overview of Global Trends in FSC Certificates: Instruments for Sustainable Private Sector Forestry', Report of the International Institute for Environment and Development (IIED) (1999).
129. PEFC press release, 12 April 2005, available at http://www.pefc.org/ internet/html/news/4_1154_65/5_1105_1174.htm.
130. Although the FSC has required third party verification from the beginning, the other programmes made it optional to various degrees. There has been a long evolution among them encouraging and gradually urging or requiring third party verification, but this has been largely tied to labelling requirements, discussed below.
131. FSC Interim Dispute Resolution Protocol, Approved by the Board, 27 Jan. 1998, FSC Document 1.4.3, available at http://www.fsc.org/keepout/en/ content_areas/77/47/files/ Interim_Dispute_Resolution_Protocol.PDF. The FSC is currently working to revise its dispute resolution protocol, and ongoing discussions suggest that it is likely to loosen some of the constraints in the current system and as well as reduce the number of steps.
132. The Committee is most likely to be the first decision-maker in complaints involving decisions of the Board. Otherwise the Board is likely to be the first decision-maker, although it may choose to send a dispute directly to the Committee: Ibid., para. 21.
133. SFI Audit Procedures and Qualifications, Section 9.3.2, Disputes or Appeals Questioning the Validity of a Certification (http://www.aboutsfb.org/generalPDFs/SFBStandard2005-2009.pdf). The complainant must first bring the problem to the attention of the certified programme participant, but if not satisfied after 45 days can take it to the President of the Sustainable Forestry Board, who sends it to the Certification Appeals Subcommittee, which decides whether to pursue the matter or close it.
134. Amended Motion 26A, 1999 General Assembly, available at http://www.fsc.org/keepout/en/content_areas/77/76/files/ FSC_General_Assembly_1999_Final_Motions.pdf. This has since been elaborated into a detailed set of requirements in the Accreditation Standard: Forest Certification Public Summary Reports, FSC Std 20-009, Version 2.1, available at http://www.fsc.org/keepout/en/ content_areas/77/106/files/ FSC_STD_20_009_Public_summaries_V2_1.PDF_V2_1.PDF.
135. Ibid.
136. Ibid.
137. Press Release, 12 April 2005, supra note 98.
138. FSC Accredited Certification Bodies, available at http://www.fsc.org/en/ about/accreditation/accred_certbod.
139. E.g., FSC Press Release, 'FSC Reinstates Skal Chain of Custody Accreditation', 16 May 2001, available at http://www.forestrycenter.org/ headlines.cfm?RefID=74391.
140. FSC Accreditation Process for Applicant Certification Bodies, 18 Jan. 2004, available at http://www.fsc.org/keepout/en/content_areas/77/35/ files/ABU_GUI_10_111_final.pdf.
141. Report by Alistair Monument, head of the Accreditation Business Unit, to the FSC General Assembly in Manaus, Brazil, 7 Dec. 2005.
142. Examples include the American National Standards Institute/Registrar Accreditation Board and the Canadian Environmental Auditing Association. This requirement only becomes effective one year after the relevant national accreditation body accepts SFI audit experience as appropriate for meeting its experience requirements.
143. The SFB does have a 'verifiers accreditation subcommittee', however, and it is possible that more requirements will be introduced. See http://www.aboutsfb.org/committees.cfm.
144. FSC Chain of Custody Policy, available at http://www.fsc.org/coc/. PEFC Chain of Custody Policy, available at http://www.pefc.org/internet/ resources/5_1177_452_file.1299.pdf.
145. see FSC, SFI Certified Participant, SA+ Content from a Certified Forest, LEI,© PEFC ™.
146. Supra note 113.
147. This is the sanction the AF&PA retains in regard to SFI, but in order to suffer it a company must actually refuse to apply the principles of the programme even to the extent of self-regulating. Retaining membership does not require subscribing to third-party certification: SFI Audit Procedures and Qualifications, Sect. 1, Scope, available at www.aboutsfb.org/generalPDFs/SFBStandard2005-2009.pdf.
148. See Sasser, supra note 61.
149. There are several perspectives in organization theory on why embedded routines persist. In general, see DiMaggio and Powell, 'The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields', 48 American Sociological Rev (1983) 147.
150. For perspectives emphasizing the importance of cultural understandings, see Zucker, 'The Role of Institutionalization in Cultural Persistence', 42 American Sociological Rev (1977) 726,
151. and also the classic by P. Berger and T. Luckman, The Social Construction of Reality: A Treatise on the Sociology of Knowledge (1966), esp. at 95-96.
152. For interest-based models, see, e.g., David, 'Clio and the Economics of QWERTY', 75 American Economic Rev (1985) 332
153. and Pierson, 'Increasing Returns, Path Dependence, and the Study of Politics', 94 American Political Science Rev (2000) 251.
154. For a recent synthesis see Colyvas and Powell, 'Roads to Institutionalization', in B. Staw (ed.), Research in Organizational Behavior, 11/05, available at http://www.stanford.edu/group/song/papers/ colyvas∝well.pdf.
155. S. Bass et al. (eds), Certification's Impacts on Forests, Stakeholders and Supply Chains, Report of the International Institute for Environment and Development (May 2001);
156. Nussbaum and Simula, 'Forest Certificaion: A Review of Impacts and Assessment Frameworks', paper prepared for The Forest Dialogue (2004), executive summary available at http://research.yale.edu/gisf/assets/pdf/ tfd/certreview.pdf:
157. Cashore, Gale, Meidinger, and Newsom, supra note 63. Certification is disproportionately concentrated in relatively developed countries, however, and has taken hold much more slowly in most developing countries.
158. Ibid.
159. See, in addition, e.g., D. Newsom, V. Bahn, and B. Cashore, Does Forest Certification Matter? An Analysis of Operation-Level Changes Required During the SmartWood Certification Process in the United States, manuscript on file with author, 9 May 2005
160. Spillsbury, 'The Sustainability of Forest Management: Assessing the Impact of CIFOR Criteria and Indicators Research', CIFOR Impact Assessment Papers No. 4 (2005), available at www.cifor.cgiar.org/ publications/pdf_files/Books/BSpilsbury0503.pdf.
161. For an arguably self-interested, yet interesting, set of reports see WWF European Forest Programme, 'The Effects of FSC Certification in Estonia, Germany, Latvia, Russia, Sweden and the UK: An Analysis of Corrective Action Requests Summary Report', available at http://www.panda.org/ about_wwf/where_we_work/europe/where/uk/publications/ index.cfm?uNewsID=18510, as well as the individual country reports linked to the website.
162. E.g., Bass, 'Certification in the Forest Political Landscape', in Meidinger, Elliott, and Oesten, supra note 4, at 27.
163. See Cashore, Gale, Meidinger, and Newsom, supra note 63
164. Ebeling, 'Market-based Conservation and Global Governance: Can Forest Certification Compensate for Poor Environmental Law Enforcement? Insights from Ecuador and Bolivia', thesis presented to the Albert-Ludwigs Universität Freiburg in partial fulfillment of the requirements for the degree of Magister Artium in Political Science, June 2005.
165. This effort is moving forward, however. For recent examples, see Bartley, supra note 62
166. Cashore, Auld, and Newsom, supra note 19
167. and Pattberg, 'The Institutionalization of Private Governance: How Business and Nonprofit Organizations Agree on Transnational Rules', 18 Governance: An International Journal of Policy, Administration, and Institutions (2005) 589.
168. E.g., Counsell and Terje Loraas, 'Trading in Credibility: The Myth and Reality of the Forest Stewardship Council', Report of the Rainforest Foundation (2002), available at http://www.rainforestfoundationuk.org/ files/Trading%20in%20Credibility%20full%20report.pdf
169. Carrere, 'Certifying the Uncertifiable: FSC Certification of Tree Plantations in Thailand and Brazil', Report of the World Rainforest Movement (2003), available at http://www.wrm.org.uy/actors/FSC/text.pdf. These reports are both attacks on the FSC policy for certifying forest plantations. Plantations policy is currently a major point of contention both in the FSC and among environmentalists, many of whom argue that plantations are destructive monocultures consistent only with destructive industrial forest practices, but a growing number of whom argue that plantations are desirable ways of protecting natural forests, particularly in tropical regions.
170. Most were never completely comfortable with the Weberian version of the concept - the ability of a legal system to elicit compliance without using coercion even from those who disagreed with the rule involved: M. Weber, Economy and Society: An Outline of Interpretive Sociology (ed. G. Roth and C. Wittich, trans. E. Fischoff et al., 1978, orig. 1922), at 31.
171. For an illuminating analysis of the genealogical conception of legitimacy see E. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (2005), ch. 5.
172. The 2005 FSC General Assembly in Manaus, Brazil, approved a resolution for the development of guidance on the participation of observers in forest management assessments and audits. The guidance is to discuss criteria for selection and acceptance or rejection of observers, how they will be involved in the certification process, confidentiality requirements, observer conduct, and costs: Amended Motion 14, 2005 General Assembly of the Forest Stewardship Council. This seems to move the FSC in the direction of making observer access to certification inspections commonplace and routine. The motion was widely supported, even by forest managers, evidently on the premise that it will contribute significantly to the credibility of the programme.
173. Overdevest, 'Codes of Conduct and Standard Setting in the Forest Sector: Constructing Markets for Democracy?', 59 Industrial Relations (2004) 172.
174. Tysiachniouk and Meidinger, 'Using Forest Certification to Strengthen Rural Communities: Cases from Northwest Russia' (forthcoming)
175. Cashore, Gale, Meidinger, and Newsom, supra note 63.
176. Scott, 'Spontaneous Accountability', in M.W. Dowdle (ed.), Public Accountability: Designs, Dilemmas and Experiences (2006, forthcoming).
177. Scott's analytical categories are based largely on Robert Goodin's distinctions among political, market, and civil society accountability structures: Goodin, 'Democratic Accountability: The Distinctiveness of the Third Sector', 64 Archives of European Sociology (2003) 359. These in turn reflect the foundational analytical traditions of Hobbes, Smith, and Rousseau.
178. For a more diverse list of accountability mechanisms, see also Freeman, 'Collaborative Governance in the Administrative State', 45 UCLA Law Review (1997) 1.
179. The preliminary findings of the NYU IILJ Global Administrative Law project provide support for this view. See www.iilj.org.
180. Grant and Keohane, 'Accountability and Abuses of Power in World Politics', 99 Am Political Science Rev (2005) 1.
181. See, generally, J. Habermas, Between Facts and Norms: A Discourse Theory of Law and Democracy (trans. W. Rehg, 1996). Habermas offers his own elaborate analysis of the polarity between who gets to make a decision and the normative justification of the decision in his distinction between 'facticity' (the positive promulgation of rules by politically authorized law-makers) and 'validity' (the claim that law is legitimate based on its rational acceptability which is in turn generated through non-instrumental discourse).
182. For an effort in this direction that is much more attuned to the real world of modern regulatory practice, see Black, 'Regulatory Conversations', 29 J Law and Society (2002) 163.
183. E.g., Cohen and Sabel, 'Administrative Law and Global Politics: A Possibility for Democracy?', 38 NYU J Int'l L and Politics (2006, forthcoming);
184. Dorf and Sabel, 'A Constitution of Democratic Experimentalism', 98 Columbia L Rev (1998) 267
185. Sabel, 'Theory of a Real Time Revolution' (manuscript on file with author)
186. Simon, 'Toyota Jurisprudence', in G. de Bùrca and J. Scott (eds), Law and New Governance In the EU and the US (forthcoming).
187. Sasha Courville has provided a description of how several of the individual certification programmes affiliated with ISEAL have sought to institute learning structures and cultures, and has also explored some of the tensions of the concept of a learning organization with concepts of principle agent accountability: Courville, 'Understanding NGO-Based Social and Environmental Regulatory Systems: Why We Need New Models of Accountability', in Dowdle (ed.), supra note 130.
188. The concept of 'society' in forest certification remains contested. The founding understanding in the FSC programme was expansive, essentially global, while also including local communities with particular needs. The move to create stronger national programmes in the FSC, together with the centrality of national programmes in the PEFC, may indicate a tendency to pull back toward conceiving the global system as consisting of many 'societies', presumably national ones.