February 10, 2020

Leadership Needed For Sustainability Law and Private Environmental Governance

Matt Bogoshian

Research and practice of what we call environmental law reveals that it is too narrow in several important respects to add the kind of value to society it can and should offer. First, environmental law too often emphasizes public governance interventions (e.g., laws and regulations) without addressing additional and important pollution reducing opportunities that lay with private environmental governance (e.g., private certifications, for-benefit enterprises, etc.). To be sure, public governance is and always will be critical to limiting pollution and its consequences to human health and the environment. Yet, unless and until the legal profession and society at large find better ways for individuals and organizations to create, improve, and consistently maintain stronger private standards of performance, reliance on public governance mechanisms alone will likely be insufficient to avoid the worst pollution consequences, especially as it relates to mitigating the climate crisis.

Exacerbating these challenges is our insistence on the study and practice of environmental law” as a separate, narrow legal discipline unto itself, in a silo by name and too often in practice. In the real world, environmental issues rarely, if ever, lay outside of the interdisciplinary scientific and practical realities where these issues reside. Yet, by staying in its self-imposed silo of environmental law, the field risks remaining far too irrelevant, far too often, to far too many. Therefore, progress demands that we do more to expand the study and practice from the more narrow environmental law into the broader and more relevant sustainability law. That expansion, which is already underway in some quarters, will require more leadership by law students, law schools, and lawyers determined to lead their clients, the legal profession, and American society toward more sustainable prosperity in the twenty-first century.

In August of 2019, reflecting the demand that the legal profession transform itself as described above, 181 leading American CEOs from the group called Business Roundtable signed a new “Statement on the Purpose of a Corporation,” committing themselves and their companies to a broader and more complete view of corporate purpose. Long overdue, these corporations declared that their purpose is not only to serve narrow shareholder interests, but that they must also serve a broader and more complete set of stakeholders that includes customers, employees, suppliers, and communities. Although serving this broader set of stakeholders seems to many as an obvious recognition of reality for any enterprise, the fact that this declaration has only just occurred underscores why our governance systems, both public and private, have been insufficient to adequately address society’s needs.

As such, each of these newly dedicated corporations and those like them will need lawyers who can help lead them to transition toward serving this broader set of stakeholders. Lawyers need to be at the forefront of this transition starting now and can do so by helping to address the climate crisis and other critical issues using a broader sustainability law lens.

Further, by helping more private enterprises experience the benefits of greenhouse gas (GHG) reductions derived from improving a company’s own private governance standards, the legal profession will help overcome resistance preventing the enactment of public governance GHG-reducing measures that we will ultimately need to avoid the worst consequences of climate change. As Professors Michael Vandenbergh and Jonathan Gilligan have written, “[a] focus on actions by the private sector is particularly important because climate policy is deeply polarized along liberal and conservative lines, but private sector responses, which we call private climate governance, can bypass ’solution aversion’— the resistance to climate change that arises from concerns about a big government response.”

It’s time that we ask and answer key questions about our own lack of leadership in advancing sustainable prosperity and responding to the climate crisis in the twenty-first century. Professor John Dernbach frames some of these key questions well:

With this kind of change underway, and the substantial risks and opportunities it presents, should lawyers do anything differently? Or should they—we—just keep behaving the way we have ordinarily behaved, counseling clients, drafting legal documents, and litigating cases? It sometimes appears that the ’new normal,’ when climate change is raised as an issue or concern, is to acknowledge that the climate is changing in disruptive ways, to say that we can’t or won’t do enough to stop it, and then go back to what we were doing. Is that good enough? Are we called to do better, to be better?

Taking actions that broaden environmental law into sustainability law and developing better private environmental governing standards are two sets of many activities our profession needs to lead on to accomplish the great work of our time.

    Matt Bogoshian

    Matt Bogoshian is a sustainability leader, lawyer, and a former policy advisor in the Obama administration and California’s Schwarzenegger administration.