October 16, 2020 Public Contract Law Journal

A Common Taxonomy for Carbon: How States and Cities Use Public Procurement to Combat Climate Change

by Lauren Olmsted

Lauren Olmsted is a Government Contracts Associate at Faegre Drinker Biddle & Reath LLP and a graduate of The George Washington University Law School. Ms. Olmsted thanks Professor Chris Yukins for his encouragement to write this article, and Mr. Chris DelGiorno for his thoughtful feedback throughout the editing process. Any views expressed herein are Ms. Olmsted’s own and not those of her employer.

Abstract

The global marketplace is facing an existential threat — climate change. As governments and public institutions grapple with this risk, these bodies increasingly are seeking innovative public procurement solutions. This paper assesses the use of environmentally sustainable procurement by state and local governments and develops a common taxonomy to encapsulate the myriad of strategies, processes, and tools used by these jurisdictions. This paper proposes that, although environmentally preferable purchasing policies are commonplace, states and cities should pursue greenhouse gas emissions-focused procurement tools, in particular the use of source selection evaluation criteria, to aggressively counteract climate change.

I.  Introduction

From record-breaking Australian wildfires to devastating hurricanes, global climate change impacts pose urgent and critical threats to environmental sustainability, human safety, and livelihoods.1 Current levels of greenhouse gas (GHG) emissions, a leading driver of human-caused climate change, are unsustainable and continue to affect millions of lives adversely.2 Many Americans nationwide now consider global warming a crisis and are turning to carbon emissions reduction as a means of mitigation.3 As a result, governments and organizations around the world are turning increasingly to public procurement as an innovative tool to combat these climate risks.4

Traditionally, public procurement focuses wholly on economic efficiency, giving little consideration to secondary non–cost objectives.5 However, as the concept of sustainable development has progressed in recent decades, policy makers have become increasingly aware of the strategic advantages that public procurement offers in regards to furthering sustainable objectives.6 The concept of sustainable public procurement reflects the idea that best value does not always equate to lowest cost.7 Rather, public authorities strive to balance the inclusion of economic, environmental, and social components8 appropriately in the value determination.9 This idea stems from the sustainable procurement principle that, as the holder of the public purse, the state should always seek to procure with the public’s interests in mind.10

Environmental sustainability, commonly referred to as Green Public Procurement (GPP), is the most prevalent pillar of sustainable public procurement.11 GPP directly links government waste, emissions, and environmental risks to the goods and services procured by the government.12 Because buying and using environmentally friendly products often saves money and improves efficiency over the product’s lifecycle, GPP practices have become an integral component of public procurement.13 Although the U.S. federal government once championed GPP, its dedication to environmental sustainability has fallen to the wayside in recent years.14 State and local governments have now been put in the position to “lead by example” and use their purchasing power to advance the goals of GPP.15

Implementing a green procurement program, however, is fraught with many challenges, including “administrative hurdles, technical barriers, and skepticism from purchasers and product end-users.”16 This article first discusses environmental sustainability as a concept, and provides a brief overview of GPP trends at the federal level. This article then identifies a common taxonomy of green procurement tools and examines how these tools are manifested at the state and local levels. Finally, this article proposes that the future of green procurement rests with GHG emissions and recommends how tracking carbon emissions can fit into the taxonomy at any hierarchical level.

Premium Content For:
  • Public Contract Law Section
Join - Now