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Greater Transparency and Participation by Civil Society

Despite frustration over the lack of progress, the players in the policymaking arena on environmental issues have been multiplying. Private sector organizations, from environmental groups to corporations, are playing increasingly important roles in preparing the groundwork for, writing, and enforcing multilateral agreements or other environmental safeguards.

In many ways these new players have strengthened international agreements. Corporations had a key role in adopting, upgrading, and implementing the Montreal Protocol, which phased down use of ozone-thinning CFCs and halons. Without support from CFC-maker E.I. du Pont de Nemours and Co., the agreement would never have moved so far or so fast.

Some corporations have integrated environmental considerations into their planning and operations. Many companies require their units to file internal reports on their environmental impacts, and some publish those reports. Some firms have drafted plans to recycle materials used in their products. And some business groups have shown growing interest in promoting sustainable practices. The World Business Council for Sustainable Development has a membership of 140 top international companies. The World Economic Forum, made up of the world top 1,000 global enterprises, meets once a year at Davos with national political leaders, leaders of the United Nations, and top academics. It is working now to develop a pilot environmental sustainability index.

Civil society groups are widely credited with pushing the nations of the world to agree to limit the production and trade of land mines. World Wildlife Fund's TRAFFIC network has become a crucial source of information on the illegal trade in endangered species.

Private sector organizations are also providing crucial scientific information and assessment of environmental problems, which is often a necessary foundation for consensus that a problem must be solved. The World Resources Institute and several research-oriented environmental advocacy organizations, for instance, are helping to compile ecosystem assessments to help policymakers deal with biodiversity, desertification, and marine issues. And by weighing-in at international conferences, civil society groups and corporations often provide crucial expertise on the potential impact of various steps.

This is widely welcomed, at least in the developed world. Daniel Esty, director of the Yale Center for Environmental Law and Policy says that "there's a convergence of opinion," that openness and wider participation of civil society "produce superior results in almost all cases."

Of course, civil society groups can play roles only to the extent that information and environmental decisionmaking is open to them. The European Community and 39 European nations endorsed greater transparency of policymaking and participation for private groups in 1998, when they signed the 1998 Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters.

The new world order, in fact, may not be the UN-imposed solutions that concern some groups, but a leaderless forum in which multiple players exert influence and contribute expertise and information. Dartmouth's Von Moltke suggests that this need not be a flaw. In the U.S., for instance, environmental authority is dispersed among several agencies. The diffusion of authority in international governance, he writes, "may represent a harbinger of more complex and more comprehensive international relations within an interactive structure that will involve numerous public and private actors in a large number of international regimes."

It is already happening. For decades, old-style hierarchies like states and the United Nations have been ceding influence to diffuse international networks of activists and corporations. Unlike the old hierarchies, their network structure may derive from the Internet, where people and groups with common interests can swap ideas, get information, and plan actions, both within nation states and across borders.

Today, international communications are instantaneous, and governments have lost their former stranglehold on crucial information. Technology is helping to dissolve barriers between countries. Advances in communication helped trigger the collapse of communist regimes in Eastern Europe. Armed with a cellular phone, a visitor to the United Nations today could monitor an industrial accident affecting many countries -- for instance, a second Chernobyl accident spewing radioactive fallout across Eastern Europe. He or she could help organize protests on a global scale and alert the International Federation of the Red Cross and Red Crescent and Doctors Without Borders to respond. And he or she could do it all before the UN could convene an international meeting on the problem.

In fact, some nimble civil society groups have influenced international events through direct action rather than waiting for governments to move. Critics were able to stop Mitsubishi's plans to build a salt plant near whale calving areas in the Gulf of California. Greenpeace and the Antarctic and Southern Oceans Coalition won international support for the 1991 Environmental Protocol, which prohibits mineral exploration in the Antarctic for 50 years and lays out a framework for it to become a world park.

Both nations and corporations have learned that public opinion campaigns can inflict pain. The Economist magazine observed that "a multinational's failure to look like a good global citizen is increasingly expensive in a world where consumers and pressure groups can be quickly mobilized behind a cause."

A boycott of Shell Oil products by Greenpeace International helped convince Shell to drop plans to scuttle the decommissioned oil rig, Brent Spar, in the North Atlantic -- despite considerable scientific evidence that Greenpeace had greatly overestimated the rig's environmental threat.

Codes of conduct, certification, and standardization schemes may influence global markets without governmental involvement. The Coalition for Environmentally Responsible Economies (CERES) principles, Total Environmental Quality Management, the Global Environmental Management Initiative, and other corporate environment charters have prodded dozens of multinational corporations to expand their disclosure of environmental impacts. Other companies have adopted the ISO-14000 standards to integrate sound environmental management into their operations, products, and management standards.

The use of market forces by civil society groups is also pushing corporations to be more sensitive to environmental considerations. One example is the Forest Stewardship Council (FSC), which certifies lumber and timber products produced by sustainable forestry for the marketplace. A decision by Home Depot to carry FSC-certified products was a major victory for green consumption, though supporters say the certification will gain widespread influence only when consumers are willing to pay a premium for certified goods. One commodity that may prove that principle is "fair trade" coffee, which pays growers a higher price while encouraging environmentally sound growing practices. In the midst of street protests against the World Bank at its annual meeting in Washington, D.C., in the spring of 2000, Starbucks Coffee announced its decision to buy and market fair trade coffee.

The Internet has proved a potent tool for organizing protests against the WTO in Seattle and both the WTO and the World Bank in Washington, D.C., but it is only one tool for marshaling civil society's influence. The crucial element is communication among networks of like-minded activists.

Throughout the 1990s, for instance, teams of lawyers helped less-developed countries to draft environmental laws and regulations that would equip them to police pollution and environmental degradation. They have put a legal foundation in place in many countries to protect citizens and the environment, according to Bill Futrell, president of the Environmental Law Institute. The next challenge, he says, is to develop in these countries the capacity to administer and enforce such laws.

There, too, international networks are starting to provide solutions. Citizens and civil society organizations have begun using state laws to force their own companies and governments to clean up pollution and halt destructive projects.

In India, Futrell reports, the courts have closed hundreds of small companies that were unable to comply with local laws and moved large facilities away from ecologically crucial sites. Popular support has enabled the courts to sustain these rulings, despite India's pervasive poverty. To promote this trend, the Environmental Law Institute is launching a series of exchanges to India.

E-Law, a Eugene, Oregon-based organization, has facilitated broader international exchanges between public interest lawyers, including several winners of the prestigious Goldman Environmental Prize. The latest Goldman winner, Vera Mischenko, co-founded Ecojuris, Russia's first public-interest law firm that works to protect native forests and halt ill-conceived development and energy projects. E-Law's network of lawyers trades information about statute language, enforcement strategies, and scientific bases for various laws. Formed in 1989 with 10 lawyers, it now connects about 300 lawyers in 50 countries.

Citizen Lawsuits Spread

With nations hesitant to charge each other with environmental misdeeds, citizen lawsuits are a growing forum to influence multinational corporations and national governments. Just as former Chilean dictator Agusto Pinochet was held in Britain and returned to Chile to face trial for crimes against his people, citizens in third-world countries have filed suits against corporations for violations of environmental rules and human rights. U.S. immigrants from Papua New Guinea have sued the British firm Rio Tinto Zinc, for instance, over a mining project in their native country. The oil company Unocal has been sued for activities in Burma.

"The U.S. has made our courts available to people who can show they've been damaged by a violation of international law," says American University's Hunter.

Yet so far, these cases tend to hang on human rights issues on which international consensus is fairly strong. They seldom succeed on purely environmental issues, where standards and values vary more widely.

A few international agreements have begun to make it easier to weave such cases through thorny problems of jurisdiction and standing. The environmental side agreement to the North American Free Trade Agreement, for instance, allows citizens of Mexico, the U.S., or Canada to bring complaints to the North American Free Trade Agreement's (NAFTA's) Commission on Environmental Cooperation -- without getting their nation to take the initiative -- that one of the countries is failing to enforce its own environmental laws. Though the commission has no enforcement powers, it can enhance public pressure if it investigates and reports that the complaint has validity. Nordic countries have a similar provision that allows citizens of one country to seek redress of environmental harms in another.

Some lawyers turn to U.S. law for international models. Some activists would like to inject into international law the provisions that allow citizens to file lawsuits under the U.S. Clean Water Act and several other statutes. American University's Hunter also calls for an international set of procedural rules for openness and citizen participation similar to the U.S. Administrative Procedures Act.

Limitations of Civil Society's Growing Role

Still, such ideas face hostility from many countries that lack similar protections at home, and both ideas are foreign to the culture of state-to-state diplomacy. Some in the diplomatic community fear that openness will subject trade negotiations and other talks to fickle public-relations campaigns. Also, civil society groups, or nongovernmental organizations (NGOs), that seek influence face questions about who they represent, how democratic their own decisionmaking processes are, and whether they have the resources and attention span to take part in complex, long-term negotiations. Noted one writer, "To their critics in Washington and elsewhere, they are unelected interest groups encroaching on the prerogatives of national governments."

Moreover, participation by nongovernmental players does not guarantee greater environmental protection. Courts and other legal mechanisms can be used by businesses, for instance, to challenge environmental regulations. In 2000, Metalclad Corp., a U.S.-based company, won $16.7 million in court-ordered cash damages from Mexico after the Mexican state of San Luis Potosi blocked it from operating a new waste disposal site. Under the North American Free Trade Agreement, Metalclad charged Mexico with regulatory expropriation of its property, an international claim analogous to the challenge to regulations domestically under the U.S. property rights movement. The same claim can be raised under other treaties to which the U.S. is a party.

Also, though open participation of many groups has advantages, it does not fill a leadership vacuum. A diffusion of influence among many groups may hamper international forums' ability to make decisions and see them through. Protestors against WTO and the multilateral banks in Seattle and Washington, D.C., for instance, were effective at raising concerns, but unable to agree on the solutions. Moreover, the reliance of some environmental groups and business associations on publicity to raise funds and stay alive tends to push them to extremes, which bodes ill for reaching international compacts.


Next section: Functions Needed for Environmental Governance:
What Functions Do You Think Are Important?

Acknowledgments
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Sections
New World, Old Order?: Front Page
Finding Global Environmental Solutions
The Evolving Context of Global Environmental Governance
Greater Transparency and Participation by Civil Society
Functions Needed for Environmental Governance: What Functions Do You Think Are Important?
Future Paths: A Look at Four Leading Concepts

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