Transnational environmental regulation and the normativisation of global environmental governance standards. The promise of order from chaos?

• Author: Owen McIntyre
• Position: School of Law, University College Cork, Cork, Ireland
• Pages: 92-112

Transnational environmental

regulation and the normativisation

of global environmental

governance standards

The promise of order from chaos?

Owen McIntyre

School of Law, University College Cork, Cork, Ireland

Abstract

Purpose –This paper aims to propose a legal characterisation of the recent proliferation, across the

broad range of global environmental good governance initiatives and practices, of a diverse mix of

regulatory environmental standards, many of which are informal in origin insofar as they are neither

State-driven nor State-centred. It examines the novel conception of legal order posited by Twinning and

Walker, to determine whether it encompasses the myriad rules and standards emerging in the f‌ield of

environmental governance.

Design/methodology/approach –Surveying the rapidly developing montage of formal and informal

rules and standards associated with global environmental governance, this paper uses the analytical

framework provided by scholars of “global administrative law”to reconcile the complementary roles of

formal and informal sources of legalrules, and to explain their increasing convergence around a set of good

governanceprinciples and standards commonly used in nationaladministrative law systems.

Findings –The paper concludes that the emerging regulatory framework for global environmental

governance comprises an almost endless variety of forms of novel transnational regulatory activity,

many succeeding in having a profound impact on environmental outcomes. Yet all appear to be founded

uponandguidedbyadiscretesetofgoodgovernance standards and principles of an administrative law

character –including transparency, participation, legality, rationality, proportionality, reviewability

and accountability –which serve to enhance the credibility and legitimacy of each regulatory

mechanism.

Research limitations/implications –It appears that new and informal forms of environmental

regulatory activity enjoy a complex symbiotic relationship with formal systems of environmental law. In

addition to f‌illing lacunae and addressing def‌iciencies in such systems, owing, for example, to the

transnationalcharacter of much of today’s trade, informal regulatorysystems are increasingly inf‌luencing the

evolution of formal legal frameworks and, in so doing, are improving the responsiveness, f‌lexibility and

accessibilityof this new environmental “legal order”.

Practical implications –At a practical level, viewing the wide range of new forms of environmental

regulatory activitythrough the prism of global administrative law (or global environmentallaw) brings unity

to this diversef‌ield and, in so doing, makes available to all the actors involved in this “community of practice”

a wealth of established practiceand principle which can help to inform the elaborationand interpretation of

rules and standards of environmental governance through a process of cross fertilisation of ideas and

approaches.

Social implications –Recognition of the legal character and signif‌icant roleof the wide range of novel

forms of environmental regulatory activity lends further credibility and legitimacy to such mechanisms,

which often comprise the onlytruly relevant and applicable environmental controls or trulyaccessible mode

of redress and accountability. The challenges of realising sustainability are immense and, as one leading

commentatorhas noted, “all normative means are useful to this end”.

Originality/value –This paper attempts to characterise the legal natureof the range of novel forms of

environmental regulationwhich (can) play such an important role inmodifying the behaviour of many of the

JPPEL

10,2

92

Received25 January 2018

Revised6 May 2018

Accepted9 May 2018

Journalof Property, Planning and

EnvironmentalLaw

Vol.10 No. 2, 2018

pp. 92-112

© Emerald Publishing Limited

2514-9407

DOI 10.1108/JPPEL-01-2018-0003

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/2514-9407.htm

key environmental actors globally –actors who have largely been unaffected by more formal legal

frameworks. For this reason, it seeks to encourage a fundamental shift in the way we think about

environmentallaw and legal authority.

Keywords Standards, Globalization, Environmental governance, Global administrative law,

Informal law, Non-State actors

Paper type Research paper

Introduction

To illustrate the potential signif‌icanceof the various non-traditional forms of environmental

(and social) codes and standards which have proliferated in recent years, many of them

voluntary and informal in nature, it is useful to consider two unrelated developments in

early 2016 affecting the global palm oil industry. Palm oil is a highly lucrative commodity

used in approximately 40-50 per cent of modern household products, ranging from

confectionary and prepared foods to biofuels, cosmetics and cleaning agents. The palm oil

industry has a notoriouslypoor environmental and social record and, as oil palm is grown in

tropical climates, it has been particularly linked to large-scale rainforest clearance, habitat

loss and biodiversity degradation,infamously impacting upon orangutan populationsin the

wild, as well as to indigenousrights abuses[1].

Firstly, in March 2016, Unilever, one of the world’s leading consumer goods f‌irms,

cancelled its contracts with IOI Group, a Malaysia-based palm oil producer and trader,

which had been suspended a few days previously by the Roundtable on Sustainable Palm

Oil (RSPO) after a year-long investigation found that the company had contributed to

deforestation in West Kalimantan, Indonesia[2]. Established in 2004, the RSPO is a not-for-

prof‌it organisation which unitesall stakeholders in the palm oil industry, including palm oil

producers, processors or traders, consumer goods manufacturers, retailers, banks and

investors and environmentaland social NGOs, with the aim of environmentally and socially

transforming the palm oil industry[3]. Unilever,which annually purchases nearly 3 per cent

of total global palm oil production, is a founding member of the RSPO, and its decision to

suspend IOI Group’s contracts resulted from the supplier’s breach of Unilever’s2016

Sustainable Palm Oil Policy[4], as established by the RSPO investigation. Consistent with

the commonly accepted precepts of “good governance”, the IOI Group has been offered an

opportunity to appeal Unilever’sdecision as well as to develop proposals on how to address

and remediate the problems found and to demonstrate its commitment to sustainable palm

oil development meetingthe highest environmental and social standards.

Secondly, in May 2016, the Off‌ice of the Compliance Advisor Ombudsman (CAO), the

independent accountability mechanism of the International Finance Corporation (IFC),

the private-sector lending arm of the World Bank Group, published the results of a

compliance investigationinto IFC’s investments in Delta Wilmar Ltd., a palm oil ref‌inery in

Ukraine. Delta Wilmar is owned by Wilmar International, a Singapore-based company

which describes itself as “Asia’s leading agribusiness group”[5]. The complaint that gave

rise to this investigation was brought by local communities, once again in Indonesia, and

related to unresolvedland disputes with a subsidiary company of WilmarInternational. The

CAO made a f‌inding non-compliance in respect to IFC’s obligation to supervise the

environmental and social risks associatedwith the ref‌inery’s palm oil supply chain[6]. Such

a decision is likely to havea signif‌icant impact upon the company, and others in the palm oil

industry, either owing to reputational damage in the marketplace, by restricting access to

multilateral development bank(MDB) project f‌inance, or as a learning experience for senior

executives chargedwith environmental and social performance.

Promise of

order from

chaos

93