In a new peer-reviewed paper, Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese offers an in-depth analysis of soft law governance of environmental quality, concluding that while it holds much appeal, decision makers should also be aware of its limitations.
The paper, “Environmental Soft Law as a Governance Strategy,” was published in Jurimetrics, The Journal of Law, Science and Technology, the journal of the American Bar Association Section of Technology Law’s Special Issue, “Governing Emerging Technologies Through Soft Law: Lessons for Artificial Intelligence.”
Hard law makes up the bulk of what lawyers work with: namely, legislation and regulation. Soft law, Coglianese notes, comprises “nonbinding norms and standards that aim to promote environmental and natural resource protection.” Soft law can come from either governmental or nongovernmental sources such as private or professional standards-setting organizations, industry groups, or trade associations and can be attractive.
Soft law can appear to “at least offer something to do when nothing else seems possible,” writes Coglianese. Soft law may also inspire and support the embedding of “strong norms of environmental responsibility in business behavior,” potentially leading to “more sustained environmental change over time.”
Coglianese considers the advantages and disadvantages of soft law. One advantage is that it can be more politically feasible to establish, as it is “viable even in the face of disagreements and logjams in political institutions.” It can also be more adaptable in the face of changing circumstances.
But can it solve major problems? Coglianese takes up this question with detailed case studies of three major voluntary, nongovernmental initiatives that respond to environmental concerns: (1) ISO 14001 environmental management systems; (2) sustainable forest certification systems; and (3) LEED standards for energy efficient buildings.
“Taken together,” writes Coglianese, “these case studies indicate that, even though soft law governance may hold considerable theoretical appeal, it can also be quite limited in what it actually achieves.”
Coglianese specializes in the study of administrative law and regulatory processes. He was a founding editor of the peer-reviewed journal Regulation & Governance, and he founded and continues to serve as advisor to the Penn Program on Regulation’s widely read daily publication, The Regulatory Review.
His research and scholarship focuses on the empirical evaluation of alternative regulatory processes and strategies as well as the role of public participation, technology, and business-government relations in policy-making.
Coglianese’s books include Achieving Regulatory Excellence (Brookings Institution Press, 2016); Does Regulation Kill Jobs? (University of Pennsylvania Press, 2014); Regulatory Breakdown: The Crisis of Confidence of US Regulation (University of Pennsylvania Press, 2012); Import Safety: Regulatory Governance in the Global Economy (University of Pennsylvania Press, 2009); Regulation and Regulatory Processes (Ashgate, 2007); and Leveraging the Private Sector: Management-Based Strategies for Improving Environmental Performance (Routledge, 2006).
He has also recently written on judicial review of administrative delegations, climate change policy, artificial intelligence and the law, and public participation and transparency in federal rulemaking.
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