Chapter 25: Between Soft Law and Greenwash: The Compliance Dynamic of Civil Forms of Environmental Regulation
Oren Perez Over the last few years, the environmental regulation system has undergone radical changes. Various private normative schemes, including voluntary corporate codes,1 environmental management systems,2 “green label” schemes,3 environmental reporting standards,4 green financial schemes and green indexes,5 have taken an increasingly important role in the environmental regulatory field.6 One of the key questions raised by this phenomenon is the issue of efficacy. To what extent do these multiple instruments of private ordering have a meaningful social effect? This question has to be considered in the context of the recurring accusation that these “soft” instruments are nothing but a “greenwash” ploy: a façade of environmental regulation, whose only objective is to enable corporations to continue without disruption with their ecologically destructive practices (Waddock 2008: 105; Schwartz and Tilling 2009: 296).7 The “greenwash”/private regulation conundrum reflects a broader dilemma concerning the circumstances under which firms will take environmental actions that go beyond what is prescribed by law. The chapter begins by outlining the evolving terrain of private environmental ordering. It argues that these new forms of private governance have taken on a globalized “face” – a process that began in the mid-1990s. The chapter first discusses the unique features of this emerging field of transnational private governance, highlighting, in particular, the multiple links and cross-sensitivities between the distinct schemes, which create a novel ensemble regulatory structure. The chapter then discusses the efficacy puzzle, contrasting between different theoretical accounts of compliance. It argues that the...
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