合法性与环境治理的私有化

Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority BENJAMIN CASHORE* In recent years, transnational and domestic nongovernmental organiza- tions have created non-state market-driven (NSMD) governance systems whose purpose is to develop and implement environmentally and socially responsible management practices. Eschewing traditional state authority, these systems and their supporters have turned to the market’s supply chain to create incentives and force companies to comply. This paper develops an analytical framework designed to understand better the emergence of NSMD governance systems and the conditions under which they may gain authority to create policy. Its theoretical roots draw on pragmatic, moral, and cognitive legitimacy granting distinctions made within organizational sociology, while its empirical focus is on the case of sustainable forestry certification, arguably the most advanced case of NSMD governance globally. The paper argues that such a framework is needed to assess whether these new private governance systems might ulti- mately challenge existing state-centered authority and public policy- making processes, and in so doing reshape power relations within domestic and global environmental governance. In the last decade, two related developments have confronted traditional domestic and international policy-making processes: the increasing use of procedures in which state policy-making authority is shared with (or given to) business, environmental, and other organized interests (Clapp; Coleman and Perl); and the increasing use of market-oriented policy instruments with which to address matters of concern to global civil society (Bernstein 2001a; Howlett 1999). Partly as a result, political scien- tists have been turning increasing attention to the apparent “privatiza- tion” of governance (Cutler, Haufler, and Porter 1999b; Haufler), while other social scientists, in a related vein, have examined the role of market- oriented consumerism in forcing policy change (Micheletti).1 This paper argues that while important, these literatures, for the most part, fail to identify, conceptualize, or theorize about a startling new phenomenon within these broad trends: the emergence of domestic and Governance: An International Journal of Policy, Administration, and Institutions, Vol. 15, No. 4, October 2002 (pp. 503–529). © 2002 Blackwell Publishing, 350 Main St., Malden, MA 02148, USA, and 108 Cowley Road, Oxford, OX4 1JF, UK. ISSN 0952-1895 *Yale School of Forestry and Environmental Studies transnational private governance systems that derive their policy-making authority not from the state, but from the manipulation of global markets and attention to customer preferences. From forestry (Forest Stewardship Council 1996) to fisheries (Simpson) to coffee (Fair Trade.org) to food production (Food Alliance) and even tourism, nongovernmental orga- nizations (NGOs) have developed governance structures and social and environmentally focused rules concerning the production and sale of products and services. The state’s traditional sovereign decision-making authority is not granted (or ceded) by the state to these new systems (Table 1), and is not used to enforce compliance. Rather, under non-state-market-driven (NSMD) governance, the relatively narrow institution of the market and its supply chain provides the institutional setting within which govern- ing authority is granted and through which broadly based political strug- gles occur. When NSMD conditions exist, compliance results from market incentives and involves an evaluation on the part of those audiences the NSMD systems seek to rule, as well as other key audiences, such as envi- ronmental groups. If compliance incentives are different, just how do NSMD governance systems gain rule-making authority? What organizations and actors are key to granting authority? How durable is the authority? These questions have important substantive consequences. If private NSMD governance systems gain significant policy-making authority, they could potentially reduce or alter the scope and authority of traditional domestic and inter- national public policy-making processes (Meidinger 2001, 64). 504 BENJAMIN CASHORE TABLE 1 Comparison of NSMD Sources of Authority Shared NSMD Private/Public Traditional Features Governance Governance Government Location of Market Government gives Government authority transactions ultimate authority (explicit or implicit) Source of Evaluations by Government’s Government’s authority external audiences, monopoly on monopoly on including those it legitimate use legitimate seeks to regulate of force, social use of force, contract social contract Role of Acts as one interest Shares policy- Has policy- government group, land-owner making authority making (indirect potential authority facilitator or debilitator) hhb 附注 。。。。 non-state-market-driven (NSMD) governance system 如果顺从动机是不同的，那么，NSMD治理系统是如何获得制定规则的权威的？什么组织和行动者是关键性的权威赋予者？权威如何延续？。。如果私营NSMD治理系统获得重要的政策制定权威，它们就潜在地会减少或更换传统国内与国际公共政策制定过程的范围与权威。 hhb 高亮 The purpose of this paper is to develop an analytical framework designed to facilitate future research into the dynamics behind the emer- gence of NSMD governance systems and the conditions under which they may gain authority to create policy. The underlying argument of this paper is that the viability of any NSMD governance system will be largely determined by whether it can achieve “legitimacy” to operate2 in the domestic and international spheres. However, the term “legitimacy” is applied differently in this paper than in state-centered Weberian and Gramscian approaches. Instead, I turn to innovations in organizational sociology that identify three distinct forms of legitimacy that may be granted to NSMD governance systems. These distinctions are important because they reveal that NSMD governance programs gain legitimacy from external audiences who are guided by a complex interplay of moti- vations. The market provides the context within which material and short-term self-interest motivations intersect with moral and cognitive elements, which together determine whether and how different NSMD governance systems gain authority to make rules. A focus on mater- ial/profitability incentives alone fails to uncover these dynamics.3 In order to illustrate NSMD governance and to build an analytical framework, I draw primarily on the case of forest certification (ecolabel- ing) in Canada and the United States. Forest-certification programs rec- ognize officially those companies and landowners who voluntarily operate “well-managed” or “sustainable” forestlands according to predefined criteria. I have chosen forestry because it arguably represents the most advanced case of NSMD dynamics, and thus provides the most empiri- cal data. The forest certification case also reveals a competition among dif- ferent NSMD governance systems over which program has the right to set the rules and whether the rules ought to be detailed and prescriptive or flexible and goal-oriented (Elliott). The forestry case illustrates the need to develop an NSMD analytical framework that is sensitive to such competitions. It is expected that this heuristic framework will facilitate the develop- ment of a nuanced theory of the way civil society (as consumers and supporters of organizations) shapes the content of ecolabeling/private governance rules, and how this influence intersects with the companies being regulated, companies that purchase the regulated industry’s prod- ucts, organized environmental groups, and other social organizations. It will also facilitate comparative exploration of NSMD legitimation dynam- ics in different regions and countries, thus permitting inquiry into why divergence in support may occur. This paper proceeds in four analytical steps. First, it reviews the context in which NSMD forest certification emerged in Canada and the United States and the key dynamics surrounding this privatization of environ- mental forestry governance. Second, it places special attention on distin- guishing the NSMD phenomenon from other traditional state-centered and governance processes, and the resulting authority-granting role of PRIVATIZATION OF ENVIRONMENTAL GOVERNANCE 505 hhb 附注 。。。任何NSMD治理系统的生存能力都将由其是否能在国内与国际范围内获得运作的合法性来决定。但是，合法性这一术语，在本文中与国家中心的韦伯式运用不同。我转向了组织社会学对这一概念的革新之中，它确定了合法性的三种不同形式，它们可能被赋予给NSMD治理系统。。。。 governmental, business, environmental, and other nongovernmental or- ganizations. Third, it reviews existing international-relations and public- policy literature on the privatization of environmental governance and market instruments for the insights and limitations this literature pro- vides in addressing the NSMD phenomenon. Fourth, and as a result of these limitations, the paper develops a framework for analyzing how NSMD governance systems gain support, drawing heavily on Mark Suchman’s seminal 1995 work within organizational sociology on orga- nizational legitimacy. The paper concludes with discussion of the impli- cations of this research project for NSMD theory and the conditions under which more durable forms of NSMD governance might emerge. THE EMERGENCE OF FOREST CERTIFICATION AS NSMD GOVERNANCE The development of NSMD governance systems owes its origins to economic and political trends in the last ten years that have given market-oriented policy instruments increasing salience. Originally, re- search on economic globalization found that increased capital mobility, international trade, and foreign direct investment appeared to reduce or constrain domestic policy choices, sometimes leading to downward protection in environmental and social standards (Berger, 12). However, other scholars noted that a parallel process was taking place in which domestic policy arenas were facing increasing scrutiny by transnational actors, international rules, and norms (see Keck and Sikkink; Risse- Kappen), sometimes leading to a reversal of the “downward” effect of globalization, a process Steven Bernstein and Benjamin Cashore (2000) refer to as “internationalization.”4 In these cases, market-based boycott campaigns were often used to force “upward” governmental and firm-level environmental protection. These internationalization efforts were often deemed easier than attempting to influence domestic- and international-business-dominated policy networks, providing important lessons to environmental NGOs about the power of using market forces to shape policy responses. This recognition increased the salience of market-manipulation campaigns generally, but also of forestry specifi- cally (Stanbury, Vertinsky, and Wilson). These international trends were mirrored by increasing domestic inter- est in the use of voluntary compliance and market mechanisms generally (Harrison; Rosenbaum; Tollefson). Innovative market-based solutions, including trading of pollution credits and wetlands (Voigt and Cubbage), are ever more popular with governments attempting to address environ- mental problems. Likewise, U.S. federal agencies such as the Environ- mental Protection Agency permit business to escape some regulatory requirements if they can devise innovative measures that address funda- mental environmental goals. In the U.S. forest sector, voluntary “Best Management Practices” (Alabama Forestry Commission) and habitat- conservation plans are an example of this flexibility. 506 BENJAMIN CASHORE Benjamin Cashore and Ilan Vertinsky have noted that in the late 1990s, policy-makers in Canada and the U.S. often faced the competing pres- sures of reductions in resources available to combat environmental prob- lems and increasing demands from civil society to address environmental protection. The privatization of environmental governance appears to have been an implicit way out of this conundrum, creating a domestic policy climate in the late 1990s in Canada and the U.S. that was hospitable toward expanding market-based environmental governance (Fletcher and Hansen). Conceptions of Forest-Certification NSMD Governance These international and domestic trends towards more flexible and market-oriented policy instruments coincided with increasing scrutiny and concern by environmental groups and other actors, initially over tropical forests but later expanding to temperate and boreal-forest har- vesting practices. The failure of the Earth Summit in 1993 to sign a global forest convention (Bernstein and Cashore 1999, 2000) provided environ- mental NGOs with the lesson that the time was ripe to develop their own private regulation scheme. As a result, transnational groups, led by the World-Wide Fund for Nature (WWF), helped create an international Forest Stewardship Council (FSC) program that turned to the market for influence by certifying forest landowners and forest companies who prac- ticed “sustainable forestry” according to FSC rules, thus expanding the traditional “stick” approach of a boycott campaign by offering carrots as well. The FSC created nine “principles” (later expanded to ten) and more detailed “criteria” that are performance-based and broad in scope, includ- ing tenure and use rights, community relations, workers’ rights, envi- ronmental impact, management plans, monitoring, and preservation of old growth forests (see Forest Stewardship Council 1999; Moffat, 44). The FSC program also mandated the creation of national or regional working groups to develop specific standards for their regions based on these broad principles and criteria. The FSC program is based on a conception of NSMD governance that sees private-sector certification programs forcing worldwide and domes- tic standards upward (Table 2). This conception envisions new policy- making structures in which social, economic, and environmental interests compete equally in the (private) policy-making process (Meidinger 1997). As such, procedures are developed with a view to eliminating business dominance and encouraging strict standards with limited discretion, in order to promote on-the-ground implementation. Equally important for understanding forest-certification NSMD governance—and, arguably, other NSMD cases as well5—the FSC certifi- cation program was quickly matched by forest-industry and forest- landowner programs in Canada, the U.S., Europe, and many other PRIVATIZATION OF ENVIRONMENTAL GOVERNANCE 507 hhb 高亮 hhb 高亮 508 BENJAMIN CASHORE TABLE 2 Comparison of FSC, SFI and CSA Forest-Certification Schemes Program FSC SFI CSA Original Conceptions about Forest Certification Who makes rules Business cannot Business dominate dominated Rules—substantive Moderate non- Discretionary discretionary flexible Rules—procedural To facilitate End in itself implementation of (procedural rules substantive rules alone will decrease environmental impact) Policy scope Broad (includes labor, Narrow (forestry indigenous, social, management and wide-ranging rules, continual environmental rules) improvement) Descriptions Origination Environmental Industry groups, socially concerned retailers Performance- or Performance Combination systems-based Chain of custody Yes No Developing Territorial focus International National/ National binational Verification options Third-party First-, second-, Third-party or third-party Ecolabel or logo Label and logo Logo, label Logo, label emerging emerging Source: Adapted from Moffat (152) and Rickenbach, Fletcher, and Hansen. countries in which the FSC is active (Cashore, Auld, and Newsom). In the U.S., the FSC competitor program is the American Forest and Paper Association’s (AFPA) Sustainable Forestry Initiative (SFI) program; in Canada, it is the Canadian Standards Association (CSA) program initi- ated by the Canadian Pulp and Paper Association (CPPA; now the Canadian Forest and Paper Association). Both the SFI and the CSA programs emphasize organizational proce- dures and discretionary, flexible performance guidelines and require- ments (Hansen and Juslin, 19). Performance requirements include following existing voluntary “best management practices” (BMP) pro- grams, legal obligations, and regeneration requirements. Procedurally, member companies are required to file a report with the SFI regarding their forest-management plans and the objectives they are addressing. Specific company data are not reported. Instead, information is aggre- gated and given to a panel of experts for review. The CPPA turned to the reputable CSA to develop a certification gov- ernance program. As with the SFI, the focus began as “a systems-based approach to sustainable forest management” (Hansen and Juslin, 20), in which individual companies are required to establish internal “environ- mental management systems (EMS)” (Moffat, 39). Overall, the CSA emphasizes firm-level processes and continual improvement. The CSA program actually contains two standards: one explains how to develop an environmental forest-management system, and the other focuses on auditing requirements (Hansen and Juslin, 20). These FSC competitor programs operate under a different conception of NSMD governance from that of the FSC, one that has a fundamental belief that business should dominate rule-making, while other NGOs and governmental organizations act in advisory, consultative capacities. Underlying these programs is a strongly held view that there is an incongruity between existing forest practices and the civil society’s per- ception of these practices. Under the SFI and CSA conceptions, certifica- tion is, in part, a communication tool that allows companies and landowners to better educate civil society. With this conception, proce- dural approaches are ends in themselves and individual firms retain greater discretion over implementation of program goals and objectives. This conception of governance mirrors private governance systems that have developed at the international regulatory level (Clapp; Cutler, Haufler, and Porter 1999b). CHARACTERIZING NSMD GOVERNANCE NSMD governance systems comprise four related characteristics that together render a new form of governance that existing political science literature has largely failed to uncover (Table 3). PRIVATIZATION OF ENVIRONMENTAL GOVERNANCE 509 TABLE 3 Key Conditions of NSMD Governance Role of the market Products being regulated are demanded by purchasers further down the supply chain Role of the state State does not use its sovereign authority to directly require adherence to rules Role of stakeholders Authority is granted through an internal evaluative and broader civil process society Enforcement Compliance must be verified No Use of State Sovereignty to Force Compliance The Westphalian sovereign authority that governments possess to develop rules and to which society more or less adheres (whether it be for coercive Weberian reasons or more benign social contract reasons) does not apply. There are no popular elections under NSMD governance systems, and no one can be incarcerated or fined for failing to comply. In the case of the FSC NSMD governance system, for example, governments are expressly forbidden from being members or voting in decision- making processes. This point is an important one that requires elaboration, as there are conditions under which the state can act as another “external audience” in accordance with NSMD dynamics and other cases where the state uses its sovereign authority to force compliance, thus removing the external- audience evaluations as important explanatory factors in the granting of rule-making authority. Government Acting in Ways Consistent with NSMD There are a number of governmental activities that are consistent with NSMD. First, existing rules and policies beyond the NSMD program itself—from rules governing contract law to common-law issues regard- ing property rig