Breaking the Environmental Law Logjam: The International Dimension
Published by NYU Law Journal (2008)
Breaking the Logjam in environmental policymaking will not be easy. The forces arrayed against action are significant. But the need to reframe environmental law is great, not only domestically but internationally, where an effective worldwide response to issues that transcend national borders is urgently required. In this regard, the core principles of the Breaking the Logjam Project-especially Principle 3 regarding the scale of regulatory authority-must be extended to the international domain in support of a revitalized global environmental governance system.
My central argument extends the logic of having regulatory authority match the scope of the environmental problem at hand to the global realm, with some refinements to reflect the differences between the international and national settings. This theoretical claim builds on public goods economics as well as broad-based scholarship on the collective action problem. Often the "matching principle" implies a need for greater regulatory decentralization.
In a few cases, however, issues spill across country borders and sometimes even reach worldwide scope. Problems at this scale require a degree of transboundary regulatory activity to protect human health and ecosystem vitality. While allocating any measure of governmental authority to international bodies presents special challenges that must be addressed, a successful response to threats such as climate change, depleted ocean fisheries, lost biodiversity, and long-range transport of heavy metals and persistent organic pollutants (POPs) depends on having functioning institutional mechanisms that deliver global-scale environmental protection.
More broadly, managing international interdependence represents one of the great challenges of our era. The need for policy collaboration at a supranational scale goes beyond the environment to other issues such as security, trade liberalization,and public health. For each issue, a measure of global governanceis required. As with other such challenges (i.e., combating terrorism, creating a trading system that promotes shared prosperity, and containing the spread of diseases such as SARS), some aspects of environmental protection simply cannot be addressed adequately by national governments acting on their own.
In this article, I make the case for a strengthened global environmental regime as part of a multi-tiered structure of governance positioned to respond to pollution control and natural resource management problems of varying geographic extents. I recognize that the logic of collective action at the supranational scale is pitted against a heightened risk of public choice failure due to a lack of electoral discipline on those wielding power beyond national borders. So I do not suggest that transboundary environmental problems should simply be turned over to international authorities. My claim is more nuanced-calling for better global governance based on a commitment to enhanced supranational regulatory capacity.
In turning from the theory to the practice of international environmental policymaking today, I review the performance ofthe United Nations Environment Programme (UNEP) and other international bodies-and find them lacking. Our present dysfunctional regime is especially worrisome as the world community moves toward a serious planet-wide effort to halt the build-up of greenhouse gases in the atmosphere. To be effective, efficient, and equitable, the response to climate change must be founded on a global environmental governance structure with carefully designed rules and procedures.
In arguing that any attempt to reconstruct environmental law must include an international dimension, I do not simply argue for more resources and a bigger commitment to UNEP. To thecontrary, I suggest that the need for a revitalized environmental regime offers an opportunity to rethink our model of international institutions altogether. I urge consideration of a new, streamlined international body: a Global Environment Organization that is more focused, network-based, and largely "virtual."
I close with a plea for a fifth core "Logjam" principle: a commitment to innovation as the centerpiece of our environmental policy structure. In brief, evidence is now overwhelming that societal progress on pollution control and natural resource management depends fundamentally on creative thinking and technology development. It is also clear that as an engine of innovation, the private sector out performs the government. Thus, our policy goal must be to induce the largest number and most wide-ranging set of companies into the business of imagining, inventing, funding, testing, refining, and commercializing new technologies in response to climate change, air and water pollution, and other environmental challenges. A global "cleantech" marketplace, framed by regulations and incentives with worldwide reach, would contribute to both the scale and diversity of environmental innovation, thus maximizing the odds of breakthroughs in energy efficiency, emissions control, alternative sources of energy, and/or carbon sequestration.
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