Can the ISO 14000 Series environmental management standards provide a viable alternative to government regulation

INTRODUCTION

Over the past decade, the need to pursue “sustainable development” has been at the center of discussions related to the globalization of business, trade agreements, and environmental protection. Attainment of sustainable development was articulated as a goal in 1987 by the World Commission on the Environment and Development (World Commission), a body established by the United Nations. The World Commission defined sustainable development as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs.”(1) Sustainable development was the focus of discussion when the United Nations Conference on the Environment and Development (UNCED) met in Rio De Janeiro in 1992 (Rio Conference), and its attainment was articulated as a goal in the Environmental Side Agreement to the North American Free Trade Agreement (NAFTA), which took effect on January 1, 1994.(2) In 1996, the International Organization for Standardization (ISO), an influential private organization involved in the standardization of industrial practices, named the attainment of sustainable development as a major goal in its new ISO 14000 Series Environmental Management Standards.(3)

The ISO 14000 standards are receiving significant amounts of attention from business managers and their legal and economic advisors, and one commentator has said that the standards may be a “watershed in the annals of environmental regulation.”(4) Business managers view ISO 14000 as a market-driven approach to environmental protection that provides an alternative to “command and control” regulation by government.(5) Therefore, business organizations and their legal representatives, environmental groups, and governments and their officials, all of whom have an interest in environmental protection or business management, should become familiar with the provisions and potential ramifications of ISO 14000.

In response to attention from such parties, various law reviews and journals have published articles discussing the ISO 14000 series standards. This journal, for example, published an article by Paula C. Murray in its Fall 1999 issue entitled, “Inching Toward Environmental Regulatory Reform – ISO 14000: Much Ado About Nothing or a Reinvention Tool?”(6) In her article, Professor Murray stated that the ISO 14000 series “occupies a unique place in American environmental policy. It has the advantage of being a voluntary system that is market driven.”(7) She concluded that the ISO 14000 system is driven by the world marketplace. Professor Murray asserted that the U.S. Environmental Protection Agency (EPA) can and should encourage adoption of the standards, but she believes that Congressional action is not needed. She claimed that what is needed instead is a change in philosophy among various environmental stakeholders, especially the EPA. The (“big stick”) mentality that has pervaded environmental laws and their enforcement during recent decades. She asserts that ISO 14000 can serve as a tool to promote an evolutionary change away from command and control and toward more cooperative environmental enforcement efforts.(8)

The fact that Professor Murray and I worked independently on ISO 14000 issues, without knowledge of each other’s efforts, is further confirmation of the importance of ISO 14000 and the many issues it raises. Professor Murray and I do not take diametrically opposed positions with respect to ISO I4000, but we do explore its ramifications from different directions. This article differs from Professor Murray’s article by providing in-depth background on the creation of ISO 14000.

Further, in contrast with Professor Murray’s “market-driven” approach, this article examines ISO 14000 from a more regulatory approach, and I make suggestions for limited regulatory reform designed to further the success of the ISO 14000 series.

My analysis and recommendations are based on two premises. First, although the ISO 14000 standards are the product of a non-governmental organization and compliance with the standards is voluntary, one of the primary purposes of the standards is to ensure that businesses comply with applicable environmental law. Second, and simultaneous with the first premise, business executives view implementation of ISO 14000 as a means to “self-regulate,” thereby minimizing their exposure to surveillance and sanctions by the EPA and its state counterparts. Therefore, this article explores the interface between ISO 14000 and environmental regulation. It addresses the question, “Can the ISO 14000 international environmental management series standards provide a viable alternative or supplement to government regulation?”

The first section of this article provides background on ISO 14000. It discusses how environmentalists and other citizens encouraged businesses to develop environmental management standards, and it explores the reasons why businesses chose to develop them. In the next section, it outlines the provisions of the 14000 series standards and describes progress in its implementation. It also examines the perspectives of business organizations, governmental bodies, and environmentalists with respect to the utility of ISO 14000 and its ramifications for environmental law. ISO 14000’s overall strengths and limitations are examined, and there is discussion of how the standards can provide a useful supplement to environmental regulation yet should not be viewed as an alternative to regulation. Therefore, this article concludes with two sets of comments. First, I discuss how the voluntary (non-regulatory) ISO 14000 scheme can play a unique role in a web of various mechanisms used to protect the environment. Second, I make recommendations on how regulators and lawmakers can facilitate the success of the ISO 14000 series while supporting the goals of the EPA.

BACKGROUND

What Is the ISO and What Are ISO Standards?

The International Organization for Standardization (ISO) is a private (non-governmental) worldwide federation, founded in 1946 to promote the creation and implementation of uniform standards facilitating the international exchange of goods and services.(9) The ISO’s members are elected representatives from national standards organizations in more than 130 countries.(10) The American National Standards Institute (ANSI) is the U.S.-based standards organization with membership in the ISO.(11) (Each country can be represented by only one standards organization.) ANSI is actively involved in the ISO, holding participant or observer status on ninety-five percent of ISO’s technical committees (TCs) and subcommittees.(12) Although ANSI develops its own standards for use in the United States, sometimes ANSI adopts international standards drafted by other organizations such as the ISO. U.S. trade associations, professional societies, and government agencies are also involved in the work of the ISO through their membership and participation in technical advisory groups (TAGs) that work with the ISO’s technical committees to draft international standards.(13)

The ISO covers all fields involving the promotion of goods, services, or products with the exception of electrical and electronic engineering. Those fields are covered by the International Electrotechnical Commission (IEC). The IEC’s members include technical committees from forty-two participating countries.(14) Those committees represent the interests of their countries with regard to electrotechnical matters. However, the ISO and the IEC work closely together.

Since the ISO began operations in 1947, its Central Secretariat has been located in Geneva, Switzerland.(15) Between 1951 (when it published its first standard) and 1999, the ISO issued over 12,000 standards.(16) Standards are documents containing technical specifications, rules, guidelines, and definitions to ensure that equipment, products, and services conform to their specifications. The ISO’s standards are drafted by TCs, each of which is charged with the development of standards in a defined area. As it drafts standards, each TC solicits the input of producers, customers, governmental bodies, and scientists.(17)

The best known set of standards published by the ISO is the ISO 9000 series, which was developed by the TC on Quality Assurance and Quality Management (TC 176). The 9000 series was developed between 1979 and 1986 and was published in 1987. In addition, a major set of revisions was published in 1994.(18) In the United States, ANSI has adopted the ISO 14000 series standards and, as a result, the series is being widely implemented by U.S. companies.(19)

Because ISO 9000 is a forerunner to and served as a model for ISO 14000, it is important to understand the basic structure and function of ISO 9000. The ISO 9000 series is a set of standards for quality management and quality assurance. The standards apply to processes and systems used to produce products

The five most crucial standards in the ISO series are ISO 9000, ISO 9001, ISO 9002, ISO 9003, and ISO 9004. In addition, ISO 8402, which provides vocabulary and definitions, was passed in 1986 in anticipation of the ISO 9000 series. ISO 9000 and ISO 9004 provide guidelines. A company developing a quality management and assurance program may choose to become certified to one of three standards: ISO 9001, ISO 9002, or ISO 9003. Below is a summary of each of the three:

ISO 9001 “Quality Systems – Model for Quality Assurance in

Design/Development, Production, Installation, and Servicing”

This standard includes twenty required elements for a quality management and assurance program. It is the most comprehensive of the five major ISO 9000 series standards. It is designed to apply to all industries, but it is particularly useful in manufacturing and in industries in which a company designs, produces, installs, and services its own products.

ISO 9002 “Quality Systems – Model for Quality Assurance in Production and Installation”

This standard includes eighteen required elements for a quality management and assurance program. It is primarily used by companies that do not design their own products although they produce and install them. These provisions are used by suppliers and subcontractors for ISO 9001-certified companies.

ISO 9003 “Quality Systems – Model for Quality Assurance in Final Inspection and Test”

This standard includes twelve required elements for a quality management and assurance program. Its primary users are companies that perform tests on and do final inspections of products. Such companies include calibration and test laboratories. In general, a company that does not add value to the manufacturing process uses ISO 9003.(22)

As of mid-1999, more than 260,000 companies around the world have been “certified to” one of the ISO 9000 series standards, and nearly 1,000 additional businesses per month seek registration.(23) Among those certified, about 11,000 are based in the United States, Mexico, or Canada and that number is increasing.(24) Competitive pressure is considered the primary reason for adopting ISO 9000, and in some markets adoption is obligatory. For example, in the EU, ISO 9000 certification is a legal requirement for medical devices, for high-pressure valves, and in the public transportation market.(25)

The ISO 14000 series, issued in 1996, is the next major set of ISO standards following the 9000 series. Therefore, the discussion in this section now turns to reasons for the development of the 14000 series environmental standards.

Perspectives of Environmentalists – Pressure on Businesses to Take Responsibility for Environmental Impacts

Throughout the second half of the twentieth century and with increasing force since the 1970s, environmentalists have worked for the enactment of environmental protection laws, and they have pressured businesses to take responsibility for the environmental impacts of their activities.(26) Their efforts have taken various forms in various arenas. In the governmental arena, environmentalists have drafted legislation, have advocated the enactment of statutes and regulations, have acted as “watchdogs” to monitor the enforcement of environmental laws, and have brought lawsuits to compel government agencies to enforce environmental legislation.(27) As a result of monitoring the activities of private businesses, environmental-organizations have brought legal complaints before administrative agencies and in courts to compel businesses to comply with environmental laws. Additionally, environmentalists have pressured businesses to adopt and implement responsible environmental practices going beyond the dictates of statutes and regulations.

As they work to encourage businesses to adopt responsible environmental management practices, environmental groups have acted alone, with each other, and in coalitions with other kinds of organizations such as government agencies, groups of economists, and businesses. This subsection discusses activities and interests of environmental groups and alliances that they have joined, and it discusses how those groups and alliances have indirectly and directly influenced the development of the ISO 14000 series standards.

To begin, it is important to note that environmentalists are not a cohesive, clearly defined group. Broadly defined, the category “environmentalists” may include most citizens of this country. For example, as of 1991, eight out often people in the United States called themselves “environmentalists.”(28) Environmentalists are represented publicly by a variety of environmental organizations including Greenpeace, the Sierra Club, the Natural Resources Defense Council, the Environmental Defense Fund, and others. All of these groups work for environmental protection, but they do not always agree on the means for achieving it.(29) Further, it is important to note that coalitions of groups working to protect the environment are generally ad hoc, and the coalitions shift.

Ad Hoc Coalitions Result from Our Policy and Law-Making Processes

Environmental protection is supported by environmental groups and by ad hoc coalitions with other groups such as labor representatives, consumer groups, and even, in some circumstances, business organizations. Reliance on such coalitions in an effort to ensure the passage of legislation, promulgation of regulations, or adoption of an international agreement is a natural consequence of the policy and lawmaking processes in the United States.

The policy-making process involves a perpetual jockeying for influence. The passage of each piece of legislation involves the laborious assembly of ad hoc legislative coalitions, which often require concessions to representatives who favor different constituencies and values. Administrative regulations are challenged in court, which in turn encourages agencies to include provisions that will satisfy potential legal adversaries.(30)

Alliances with respect to environmental issues and laws shift from one issue to the next, as is illustrated in the following subsections.

Environmentalists Influence U.S. Laws Requiring Businesses to Disclose Environmental Effects of Their Activities

For decades, environmentalists have been at the forefront in advocating the enactment of environmental protection statutes by legislatures and promulgation of environmental protection regulations by administrative agencies. In recent years, environmentalists have focused on a new wave of environmental and occupational safety and health laws that are designed to give workers and community residents access to information about the presence of, identities of, and hazards associated with toxic substances located at workplaces. Such laws include, but are not limited to, right-to-know (RTK) laws, toxics-use-reduction (TUR) laws (also known as “Pollution Prevention” laws), and right-to-act (RTA) laws.(31)

Environmental protection involves protection of workers within the wails of the workplace as well as protection of citizens outside the walls of the workplace. Howard Samuel, head of the AFL-CIO’s Industrial Union Department, asserted that workers and environmentalists are natural allies. He stated, “[T]rade unionists were looking from inside the factory, while the environmentalists were looking from outside the factory – but [both] were still looking at the same smokestack.”(32)

Mr. Samuel’s argument, however, needs clarification, because environmentalists and labor representatives are not always allies. Division arises because workers fear losing jobs as a result of environmental protection actions. Supporting economic development is viewed as supporting more jobs for workers. Thus, workers oppose environmentalists on many issues. For example, with respect to actions dealing with global warming, environmentalists and labor representatives are divided.(33) On issues related to the protection of the “spotted owl” in the northwestern and southwestern United States, workers and labor representatives have bitterly opposed environmentalists. Workers are concerned about losing jobs when lumbering is halted or delayed to protect a species.(34) Similarly, environmentalists opposed the expansion of a huge landfill in Livermore, near San Francisco, California, which received a permit in spite of their objections. Environmentalists insisted that recycling should be promoted as an alternative to the huge dumpsite, while labor representatives supported the project because of the jobs it would bring to the area.(35)

Yet, with respect to RTK laws, workers and environmentalists found common ground. By 1984, at least forty cities and over twenty states had passed worker RTK laws.(36) In addition, in 1984, the federal Occupational Safety and Health Administration (OSHA) promulgated a final rule giving RTK protections to certain workers.(37) OSHA officials extended that coverage to all workers in public businesses except the construction industry in 1988. Similarly, in the 1980s cities and states began to enact a series of community RTK laws, and federal legislation was enacted a few years later. In 1986, federal community RTK legislation was enacted in the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as “Title III.”(38) One commentator has noted that, “[T]he most basic purpose of RTK is to ensure that interested people can find out what chemicals are `out there.'”(39) Community RTK and worker RTK laws provide citizens with some of the information they need to make decisions about their exposure to toxic chemicals.(40)

Following the enactment of RTK laws, environmentalists and labor representatives began to work for the enactment of TUR laws requiring businesses to develop and implement plans reducing their use and production of toxic substances. On November 5, 1990, Congress enacted the Pollution Prevention Act of 1990.(41) Moreover, in the early 1990s, at least ten states enacted TUR laws.(42)

In tandem with, or following their campaigns for TUR laws, environmentalists and labor representatives have worked for the enactment of RTA laws.(43) RTA laws are designed to give workers and community residents the power to act on the information they have obtained through RTK programs.(44)

RTK, TUR, and RTA laws are designed to help citizens protect themselves from the toxic substances used at industrial facilities and in their communities. Citizens want businesses to share information about hazardous substances located on the premises of their facilities.

As businesses institute voluntary environmental management systems (EMS), such as those being instituted pursuant to the ISO 14000 series, they are responding to the same pressures that have led to RTK, TUR, and RTA legislation. However, in contrast to laws enforced by government, ISO 14000 represents a private, business-run, market-based response to those pressures.(45)

Environmentalists and Labor Representatives Worked for Environmental Provisions in NAFTA

During the 1990s, environmentalists, workers, and their organizations have also been active in the arena of international law related to the environment. For example, the North American Free Trade Agreement (NAFTA), which took effect on January 1, 1994, was the first international trade agreement to recognize that increased trade and environmental degradation are inextricably linked. This explicit recognition came in response to public pressure by environmentalists and labor representatives. In contrast to their adversarial positions on global warming and protection of endangered species, an alliance between labor interests and some, but not all, environmentalists came readily with respect to NAFTA. Labor representatives feared the loss of jobs to Mexico as a result of NAFTA. Environmentalists and workers were, and are, seriously concerned about the environmental effects of the increased industrialization of Mexico that is resulting from NAFTA.(46) Yet, it is important to note that, with respect to NAFTA, even environmentalists were divided. A major coalition of environmental groups including the National Wildlife Federation, the Natural Resources Defense Council, the Environmental Defense Fund, and the National Audubon Society supported NAFTA with its environmental side agreement.(47) But the coalition was opposed by major environmental groups including the Sierra Club, Friends of the Earth, and Greenpeace.(48) Further, all but one of the major environmental groups in Canada opposed NAFTA

NAFTA was approved by the U.S. Congress only after President Bill Clinton returned to the negotiating table with Canadian and Mexican representatives to seek additional provisions designed to protect the environment.(50) The resulting Environmental Side Agreement to NAFTA lists ten objectives, one of which is to promote “sustainable development.”(51)

Concerns about environment and NAFTA have been conveyed to business leaders as well as to government representatives. The concerns that fueled the fight for NAFTA’s side agreement have been considered by business leaders as they have developed the ISO 14000 series standards.

Environmental Groups Work with Business Organizations to Develop Environmental Management System Guidelines

Greenpeace, the Sierra Club, the Natural Resource Defense Council, and other environmental organizations are credited with having encouraged various professional business organizations to develop their own sets of guidelines on environmental management practices. One example is the Responsible Care[R] (CARE[R]) Program, adopted by the Chemical Manufacturers’ Association (CMA) and its members to improve handling and disposal of chemicals.(52) Another example is the Global Environmental Management Initiative (GEMI), which has published a set of environmental management principles addressing a wide range of concerns ranging from pollution prevention and environmental reporting, to environmental health and safety training.(53)

Coalitions Including Environmental Groups Have Influenced Businesses and Their Environmental Management Practices

Coalitions of various interest groups have pressured corporations to examine their environmental risk management performance closely. One such coalition is the Social Investment Management Forum, which, in 1989, brought together various interest groups including environmentalists, investors, government agencies, and economists to form the Coalition for Environmentally Responsible Economies (CERES). CERES is credited with providing an impetus for businesses to develop voluntarily their own environmental management programs such as ISO 14000.(54) In the aftermath of the disaster in which the Exxon Valdez oil tanker spilled eleven million gallons of crude oil into Alaska’s Prince William Sound in March of 1989, CERES issued a set of ten principles, first known as the Valdez Principles, on September 7, 1989. After finding that few major businesses were willing to adopt the Valdez Principles, they were revised and renamed the CERES Principles. In February of 1993, the Sun Company, Inc. became the first Fortune 500 company to adopt the revised principles, but as of 1997 only fifty companies had adopted them.(55) In spite of the low rate of adoption by businesses, the CERES group is credited with having encouraged businesses to disclose their environmental performance records to the public.(56)

Another coalition reflecting the concerns of environmental organizations and other interest groups is the National Center for Preventive Law (NCPL). The NCPL assembled a group of experts from fields including law, education, communications, and risk management with the broad goal of assisting companies in detecting and preventing any kind of violation of corporation law. In 1995, the group known as the National Commission for Corporate Compliance (NCCC) produced a set of twenty Corporate Compliance Principles that are designed to define “due diligence” in the context of a system designed to “prevent and detect violations of law.”(57) The areas of law covered include environmental law in addition to antitrust, securities and insider trading, labor relations and employment discrimination, workplace safety, and others. The NCCC added hundreds of examples of how the principles can be put into action by a company. Commentators have cited the NCCC’s principles and examples as useful tools for companies as they work to manage and reduce environmental risks.(58)

Overall, the activities of environmental groups, coalitions, and even business-based groups set the stage for the ISO 14000 series standards.

The ISO 14001 authors were well aware of the CERES Principles, the International Chamber of Commerce’s guidelines, the chemical industry’s Responsible Care[R] program, and other industries that have developed individual policies and programs. These guidelines formed a basis for defining the necessary commitment to the environment through the environmental policy statement and the common set of values needed to produce an international standard for environmental management systems.(59)

A review of a variety of such programs is beyond the scope of this article. However, before proceeding to an examination of the provisions of ISO 14000, it would be useful to review one program advocated by environmentalists that served as a model for the drafters of ISO 14000.

What Do Environmentalists Want in an Environmental Management System?

In this subsection, the provisions of the CERES Principles are summarized to provide an example of what environmentalists want businesses to include in an environmental management system. CERES includes the following ten principles:

Principle 1: Protection of the Biosphere. A pledge to strive to minimize and eliminate harm to the biosphere.

Principle 2: Sustainable Use of Natural Resources. A pledge to use renewable resources.

Principle 3: Reduction and Disposal of Waste. A pledge to minimize waste and recycle when possible.

Principle 4: Wise Use of Energy. A pledge to use renewable resources and maximize energy efficiency.

Principle 5: Risk Reduction. A pledge to strive to minimize risks to employees and the communities in which the business operates.

Principle 6: Marketing of Safe Products and Services. Includes a pledge to inform consumers of environmental impacts of services and products.

Principle 7: Damage Compensation. A pledge to address injuries and, when damages occur, to restore the environment “to the extent feasible.”

Principle 8: Disclosure. A pledge to disclose to employees and the public information about incidents posing environmental or health and safety harm.

Principle 9: Environmental Directors and Managers. The Valdez Principles called for at least one member of the board of directors to be a person qualified to represent environmental concerns. The CERES Principles modified that to state that “demonstrated environmental commitment” is a factor in selecting the Board of Directors.

Principle 10: Assessment and Annual Audit. A pledge to conduct and make public an annual self-audit regarding implementation of these ten principles and to assess compliance with all applicable laws and regulations worldwide.(60)

Why did only fifty businesses endorse the CERES Principles between 1989 and 1997? Business leaders are concerned that ambiguous language in the Principles might lead to litigation. They also fear that a company adopting the Principles might be sued for failing to live up to its environmental policy even if that policy goes beyond the requirements of existing laws. Additionally, companies view the mandatory self-disclosure systems of CERES as unduly harsh and rigid.(61) In contrast, the ISO 14000 standards allow businesses to choose their own way of presenting their environmental performance to employees and the public, as well as their own framework for EMSs.

Perspectives of the Business Community — Reasons for the ISO 14000 Series

From the perspectives of business organizations, there are multiple reasons for the development of the ISO 14000 series standards. Those reasons will be discussed below in four categories. First, the standards are designed to promote sustainable development. Second, companies operating in the global marketplace are seeking to harmonize various EMSs. Third, businesses are working toward a new paradigm of proactive approaches to environmental management. Fourth, businesses want to “self-regulate” in lieu of being subjected to command and control regulation by the government.

Pursuit of Sustainable Development

As industrialization has spread throughout the world, citizens and their governments have voiced concerns about the effects of that industrialization on the environment. To address such concerns, governmental bodies, business organizations, and environmentalists developed the goal of sustainable development.(62)

The history of the term began in 1983 when the United Nations (UN) General Assembly established the World Commission. The World Commission conducted an in-depth, four-year study addressing interlocking ecological and economic threats and resulting concerns for the earth. As a result of its study, the Commission released a 1987 report entitled Our Common Future, which is sometimes referred to as the Brundtland Report.(63) In that report, the Commission named the pursuit of sustainable development as an important goal for the nations of the world.

A direct impetus for the ISO 14000 series International Environmental Management Standards came from UNCED at the Rio Conference in 1992 which was attended by representatives of over one hundred nations.(64) As a result of the Rio Conference, UNCED issued “Agenda 21,” which is a statement of principles for implementing sustainable development in countries around the world including both developing and industrialized countries.(65) One recommendation of Agenda 21 was that each country create a national council for sustainable development. As of late 1997, nearly one hundred such councils had been created including the President’s Council on Sustainable Development (PCSD), created by President Bill Clinton in the United States. After meetings held around the United States, the PCSD delivered a report to President Clinton in which it adopted the Brundtland Commission’s definition of sustainable development and set out principles, ten national goals, and fifty-nine policy recommendations designed to promote sustainable development in the United States.(66)

Business leaders also became interested in the need for sustainable development in connection with negotiations for various trade agreements. The issue was raised in debate related to the General Agreement on Tariffs and Trade (GATT) and its recent amendments (the Uruguay Round of the GATT of 1994)(67) as well as in debate related to the adoption of NAFTA and its Environmental Side Agreement, both of which took effect on January 1, 1994.(68)

Harmonization of Environmental Standards Benefits Businesses in the Global Marketplace

Another major impetus for the ISO 14000 standards is the need for harmonization among various environmental management and auditing programs. There are a variety of government-sponsored and industry-based certification programs. These programs, using varying standards and processes, increase costs and make compliance difficult for companies operating in more than one country? Programs range from those set out by a governmental agency such as the EPA, to industry-based programs, and to programs required by countries other than the United States.

The EPA has designed several different environmental management programs including the XL Program, the Star Track Program, and the Environmental Leadership Program (ELP).(70) ELP allows a company to develop its own EMS in accordance with EPA guidelines.(71) The XL Program promotes environmental protection activities that go beyond compliance with law.(72)

In addition, there are industry-specific environmental review programs such as the CMA CARE[R] Program.(73) All members of the CMA are required to participate in the CARE[R] Program, which sets out conformance standards for chemical companies in the areas of pollution prevention, emergency response, employee health, and safety protection and awareness.(74)

Broad-based business groups such as the International Chamber of Commerce have created their own guidelines for EMSs. In response to the 1992 UN Rio Conference, the International Chamber of Commerce adopted a “Business Charter for Sustainable Development.”(75) The document includes sixteen proposals that set out the basic elements of an EMS.(76)

Also, companies operating internationally must deal with EMSs originating in the various countries in which they operate. For example, in 1995 the British Standards Institute (BSI), became the national standards setting organization for the United Kingdom. In that same year it established an environmental management standard called “British Standard 7750” (BS7750),(77) becoming the first national organization to implement a program recognizing independently verified EMSs.

In April of 1995, the EU put its Eco-Management and Audit System (EMAS) program into effect.(78) EMAS establishes a voluntary program for businesses that includes standards for environmental auditing, management, and reporting.(79) In addition, it provides a compliance verification system.(80)

The existence of such differing international standards is of major concern to various industries. For example,

Electronics companies small and large are saying “no” to the proliferation of international standards that will lead to multiple registration schemes. Whether it’s Optek Technology, Hewlett-Packard or Sun Microsystems, Inc., there is general concern among electronics manufacturers that they are fast approaching standards gridlock. There is also evidence that additional testing and registration requirements being promoted by countries as diverse as Japan, China and Mexico could prove to be barriers to trade in those markets. Electronics companies, which are prime exporters, are particularly vulnerable.(81)

Companies see a need to harmonize and coordinate various industry-related and government-designed EMSs. Such coordination will promote efficient use of the company’s personnel and financial resources.

A New Paradigm to Replace Command and Control

Businesses want to move away from command and control regulations that focus on “end of the pipe,” single-medium pollution control.(82) In the 1960s and 1970s, the United States developed a complicated regulatory system that prompted businesses to adopt a reactive approach to compliance with environmental law. Federal environmental regulations fill more than 20,000 pages of the Federal Register alone, with thousands of additional regulations at the state and local levels.(83) Under federal environmental regulations created in the 1970s and 1980s, business managers must focus on compliance with a myriad of federal and state environmental statutes and regulations.

The kinds of regulations developed in the 1960s, 1970s, and 1980s are called “command and control” regulations because they focus on crisis-by-crisis, reactive enforcement of statutes and regulations.(84) Such regulation can be described as “top down” regulation, and, generally, it operates using one of two types of mechanisms. The first is the use of permits. Government officials establish a set of performance standards for business and enforce it through a system of permits allowing pollutants to be emitted at regulated rates.(85) An alternative mechanism is one in which government requires technology-based controls for specific activities that cause pollution. For example, government has required the use of catalytic converters on cars, and it may require “best available technology” for specified sources of air or water pollution.(86) Violations of either type of regulation (permit-based or technology-based) can result in civil fines or even criminal prosecution of business managers.

Unfortunately, command and control regulation is piecemeal and fails to address problems in a holistic manner. Major U.S. environmental statutes originating in the 1970s and 1980s include the Clean Air Act (CAA) (1970),(87) the Clean Water Act (CWA) (1970),(88) the Resource Conservation and Recovery Act (RCRA) (1976),(89) the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, also known as the “Superfund” legislation) (1980),(90) and the Toxic Substance Control Act (1978).(91) “All major stakeholders — industry, government, and the community — have identified the significant problems in the current regulatory climate. The major environmental statutes (CAA, RCRA, and the CWA) are uncoordinated and media-specific.”(92) A command and control approach to regulation leads to fragmented environmental management and focuses on dealing with environmental problems after they are created rather than on preventing them.

Single media statutes result in businesses managing environmental aspects in isolation from each other rather than in unison. Critics point out that facilities typically generate more than one pollutant, and few pollutants exist in isolation from other emissions. The result is more regulatory rigidity and bureaucratic red tape, less creative environmental management, and less efficient technology.(93)

In contrast, the ISO 14000 series is designed to assist companies in developing a systematic, preventive, and holistic approach to environmental management. Further, ISO 14000 is designed to promote a proactive, multi-media approach to pollution prevention that avoids shilling pollution problems from one medium to another (i.e., decreasing groundwater contamination by shifting the contamination to air pollution).(94) These new holistic approaches represent a new paradigm for business.

Businesses Want to Avoid Government Regulation

A fourth reason for development of the ISO 14000 series standards is business leaders’ desire to avoid government regulation and move toward self-regulation. The ISO 14000 series standards do not create legal standards. Professor W. M. von Zharen has written, “The standards are `systems’ standards, not legal standards, and are intended to harmonize, not invent standards. They are designed to help organizations manage their environmental obligations such as compliance with legal requirements

A company’s desire to minimize its exposure to government regulation can be a strong reason for it to seek ISO 14001 certification.(97) This is especially true in the United States. Costs of U.S. environmental regulation are tremendous. Most environmental rules created by the EPA are challenged in court.(98) Implementation costs are also tremendous. The EPA estimates that implementation of the CAA has cost industry $523 billion.(99) Thus, the desire to avoid government regulation and the costs associated with compliance with such regulation can be viewed as strong motivational factors behind development of ISO 14000 standards.

ISO 14000 SERIES STANDARDS

In this section, the ISO 14000 series is explored. First, it is compared to and distinguished from its forerunner, the ISO 9000 management series. Second, provisions of ISO 14000 are summarized.

Comparing the ISO 14000 Series to the ISO 9000 Series

As is true of the 9000 series standards, the 14000 standards are process standards, not performance standards. Both series promote management systems that focus on prevention rather than corrective action. However, the ISO 14000 series can be distinguished from the 9000 series in at least five major aspects.(100)

First, the 9000 series is designed to help an organization maintain quality as it designs, produces, and delivers a product or service to a customer. Thus, it focuses on the customer-supplier relationship. The ISO 14000 series is of concern to many different groups of interested parties or stakeholders.(101) It concerns not just businesses and their customers, but also employees, governments, environmental organizations, consumer groups, and others.

Second, the ISO 14000 series places greater emphasis on strategic planning than does the ISO 9000 series. The ISO 14000 series requires businesses to pursue continuous improvement in their environmental performance. However, though ISO 9000 does not require pursuit of continuous improvement, in practice, it is perceived as providing an impetus for continuous improvement. The President and Chief Operating Officer of the San Miguel Corporation, Philippines stated, “The aspect of ISO 9000 which appeals to me most is its emphasis on continuous improvement.”(102)

Third, the subject of the 14000 series, activities affecting the environment, is heavily regulated through thousands of statutes and regulations. Non-compliance with environmental law can result in substantial fines or even imprisonment of business managers. Thus, a major goal of the ISO 14000 series is to ensure that businesses are in compliance with applicable local and national environmental laws and regulations. The 9000 series is not tied in such a direct way to statutes and regulations.

Fourth, the ISO 14000 series covers a broad area (the environment) and takes a holistic approach, focusing on the business organization’s activities and how they affect the land, water, and air.(103) The quality management area covered by ISO 9000 is more limited in scope.(104)

Fifth, the ISO 14000 series includes only one conformance standard to which a company may become certified. That one is ISO 14001. The ISO 9000 series, on the other hand, includes three options for certification: ISO 9001, ISO 9002, and ISO 9003.(105)

Provisions of the ISO 14000 Series

The initial standards in the 14000 series include standards numbered 14000, 14001, 14004, 14010, 14011, and 14012. They were developed by ISO TC 207 Environmental Management and were adopted by the ISO in 1996.(106)

To comply with ISO 14000, a company must fulfill the following three requirements:

1. It must create an EMS

2. It must demonstrate that it is in compliance with the environmental statutes and regulations of countries in which it does business

3. It must demonstrate its commitment to continuous improvement in environmental protection and pollution prevention.(107) ISO 14000 sets up criteria for the certification of a company’s EMS. The EMS is a set of procedures for assessing compliance with applicable environmental laws. It must include procedures for assessing the company’s own procedures for identifying and resolving environmental problems and for engaging the company’s workforce in a commitment to the company’s improved environmental performance.(108)

ISO 14001 describes two types of documents, guidance documents and specification documents, and it creates standards to be used to evaluate a firm’s EMS. Specification documents establish what are called conformance or compliance-type standards. Although the other ISO 14000 series standards include only guidance standards, ISO 14001 includes conformance standards. For example, the EMS must include an accurate summary of the legal standards with which the company must comply such as permit stipulations, relevant portions of statutes and regulations, and provisions of administrative or court-certified consent judgments. To be certified to ISO 14001, the EMS must include five elements.

First, top management must develop an environmental policy statement. It must include a commitment to comply with environmental laws, establish a commitment to pollution prevention and continual improvement in that area, and it must be available to the public.(109) The policy identifies objectives and establishes an environmental program to be used to carry out the risk management plan.

Second, it must establish plans to meet environmental goals and comply with legal requirements. Third, it must provide for implementation of the policy and operation under it including training of personnel, communication, and document control. Fourth, it must set up monitoring and measurement devices and an audit procedure to ensure continuing improvement. Finally, it must provide for management review and continuing improvement.(110)

The EMS must be certified by a registrar who has been qualified under ISO 13012, a standard that predates the ISO 14000 series. If a company chooses not to undergo third-party EMS certification, it may decide to use ISO 14001 as a basis for self-declaration regarding implementation of an EMS.

It is important to note that ISO 14001 is the only standard in the ISO 14000 series that leads to certification. The others support 14001 or provide “guidance” only.(111)

The ISO 14004 standard is a guidance document that gives advice that may be followed. It includes five principles, each of which corresponds to one of the five areas of ISO 14001 listed above.(112) The first principle is that the company should define its environmental policy and ensure its commitment to implementation of the EMS. Second, the company should develop a plan to implement its environmental policy. Third, it should provide support mechanisms to implement its environmental policies and reach its targets. Fourth, the company should monitor and evaluate its environmental performance. Fifth, the company should review its EMS periodically and continue to revise it with the objective of improving its overall environmental performance.(113)

ISO 14010, 14011, and 14012 are auditing standards. ISO 14010 gives general principles of environmental auditing, and ISO 14011 provides guidelines for auditing an EMS. ISO 14012 gives guidelines establishing qualifications for environmental auditors called “registrars.”(114)

Plans for Additional ISO 14000 Series Standards

The ISO is considering proposals for additional standards related to environmental management. Proposed standards designated by the prefix “CD” cover several subject areas.

Various standards are being considered regarding environmental labeling. CD 14021 provides terms and definitions for use in self-declaration through environmental labeling, and it sets two goals.(115) First, it establishes guidelines for environmental claims made in connection with the supply of services and goods. Second, it defines specific terms used in environmental claims and provides rules for their use.(116) CD 14024 provides guidelines, practices, and certification procedures related to environmental labeling.(117) This standard may result in mutual recognition among twenty-four environmental labeling programs currently in use around the world.(118) CD 14040 sets out principles and guidelines for assessment of a product’s life cycle.(119) Thus, the proposed standards, if adopted, may promote harmonization in the areas of labeling and life cycle in a manner that parallels the harmonization of environmental management standards through ISO 14001.(120) Prospects for the adoption of these standards in the near future are good. As of mid-1999, the proposed standards on environmental performance evaluation, environmental labeling, and life cycle analysis are in their final stages within TC 207.(121)

Second, the ISO has established a working group to consider the concerns of small and medium-sized enterprises (SMEs). The working group is preparing recommendations regarding development of a guidance standard which is currently referred to as 14002 Environmental Management Systems — Guidelines on Special Considerations Affecting Small and Medium Size Enterprises.(122)

Third, CD 14050, which has been given “draft” status, will provide users of the 14000 series with a comprehensive set of definitions of terms used in environmental management.(123)

Progress in Implementation of the 14000 Series

At first, enthusiasm and support for the ISO 14000 series was strongest in the eighteen countries making up the Asia Pacific Economic Cooperation (APEC) organization.(124) However, participation has quickly increased around the world. Worldwide, as of mid-1999, over 10,000 ISO 14001 registrations had been completed.(125) It appears that most large U.S. manufacturing firms and thousands of small and medium-sized firms are working toward certification.(126) For example, Ford Motor Company is in the process of registering all of its manufacturing facilities and will require certain suppliers to be registered.(127)

It is important to note that certification to an ISO 9000 series standard is not a precondition to ISO 14001 certification. Coordination of the two sets of standards has been addressed by the U.S. Technical Advisory Group (TAG), which provides advice to the ISO’s TC charged with formulation of the ISO 14000 standards. The U.S. TAG opposes a proposal that ISO 9000 and ISO 14000 be combined into a single set of standards.(128)

However, many organizations that are already registered to ISO 9000 have decided to seek ISO 14000 registration. As they do so, they are seeking ways to integrate ISO 14000 systems into existing EMSs as well as ISO 9000 systems.(129) This endeavor is being facilitated by the work of the ISO’s TAG 12, which was formed in response to a resolution adopted by the ISO’s Technical Management Board (TMB). That resolution (labeled E/1997) states that the group’s mission is to “address the integration of the ISO 9000 and ISO 14000 series of standards.”(130)

ANALYSIS

In this section, the ISO 14000 standards are analyzed and evaluated with respect to their potential to provide an alternative or a supplement to government regulation. First, the perspectives of various interested groups are presented. Those groups include business organizations, governments, and environmental groups. Second, the ISO 14000 series is evaluated from an overall perspective. The ways in which ISO 14000 may influence our society’s approaches to environmental protection are discussed. Finally, the overall limitations of the ISO 14000 series as a tool for protecting the environment are presented.

Perspectives of Various Interested Parties

Benefits to Individual Businesses

Managers of a company contemplating obtaining ISO 14000 certification must evaluate the potential advantages and costs to the company. ISO 14000 certification may bring various rewards to a company, most of which can ultimately provide financial advantages for the company. Eight kinds of potential rewards are explored below, but the list could be expanded.

Leniency from and Enhanced Relationships with Regulators. First, under certain EPA programs a company that conducts voluntary environmental audits can receive more lenient treatment from the EPA than it would otherwise receive.(131) Audits conducted pursuant to ISO 14001 certification processes, combined with prompt correction of violations, can qualify a company for mitigation of penalties. Many state-level counterparts to the EPA have similar or even more generous policies. In addition, “green” management (management that focuses on preventing environmental damage) can lead to more cooperative working relationships with government regulators.(132)

On the federal level, ISO 14001 can be useful to a company participating in the EPA’s ELP. Under the program, a participating company develops its own EMS pursuant to EPA guidelines. The program promotes use of EMSs and multi-media compliance assurance. The reward for participation is that the EPA may reduce penalties assessed in certain cases of non-compliance. The ISO 14001 certification process can provide a systematic approach to compliance that will help a company become eligible for the ELP program. For companies that are already participating in ELP, their programs developed for ELP will help them as they pursue ISO 14001 certification.(133)

Under the Common Sense Initiative (CSI), the EPA encourages solutions that are industry-wide instead of based on one pollutant at a time.(134) Projects under the CSI take a multimedia approach to pollution prevention and control.(135) Thus, ISO 14001 series certification complements the goals of that program, also.

Moreover, on the federal level, in 1995 the EPA published a new policy called Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violation.(136) The policy is designed to encourage voluntary self-auditing and disclosure. An interim policy made direct reference to the potential ramifications of environmental management standards such as the ISO 14000 series as follows:

EPA also recognizes the development of and growing reliance on international voluntary environmental management standards in the U.S. and other countries. These standards, if properly crafted and implemented, can provide a powerful tool for organizations to improve their overall compliance with environmental requirements and move beyond compliance through innovative approaches to pollution prevention. In addition to this interim policy, EPA will continue to pursue a dialogue with interested parties and to pilot policy approaches through programs such as the Environmental Leadership Program to determine how EPA can make use of and encourage these standards.(137)

The primary difference between the Interim and Final Policies is that the Interim Policy applies only to violations discovered in the course of a voluntary audit. The Final Policy provides for mitigation of penalties for those violations discovered through “due diligence.” Due diligence refers to a systematic effort to prevent, detect, and correct violations.(138) It includes internal compliance systems such as one established pursuant to the ISO 14000 series standards.(139)

The Interim Policy established a set of criteria that must be met before civil penalties will be reduced, and the Final Policy included only minor changes. There are a series of seven criteria that must be met to qualify for mitigation of penalties. First, the violation must be discovered through a voluntary environmental audit. (The interim policy was broader.) Second, the violation must be disclosed within ten days of discovery or notice of a citizen’s suit having been filed against the company. Third, the violation must be corrected within sixty days of discovery (or sooner if time is essential). Fourth, any condition endangering human health or the environment must be corrected “expeditiously.” Fifth, the firm must act to correct the environmental harm and prevent recurrence. Sixth, the firm must demonstrate that the violation was an isolated incident and not part of systemic problems. Seventh, the firm must have cooperated with the EPA to provide information “necessary and required by EPA to determine the applicability of the policy to the violation in question.”(140) There are also two public reporting requirements that must be met before the violator can be eligible for a reduced penalty. A company must make a public disclosure of its due diligence efforts. In addition, any administrative consent order, judicial consent order, or other written agreement that results from the violation must be revealed to the public.(141) If these conditions are met, the firm may be exempted from all or part of the “gravity portion” of a civil penalty. Gravity-based penalties are that portion of a penalty over and above the economic benefit, i.e., the punitive portion of the penalty. In other words, the gravity portion is used to “ensure that the violator is economically worse off than if it had obeyed the law.”(142)

Application of the gravity portion of the civil penalty depends on how a company’s activities are categorized by the EPA. The three categories are as follows.

(1) If the company has a compliance-type environmental management program (such as under ISO 14001), and it discovers, discloses, and promptly corrects a problem, the EPA will not levy gravity-based penalties. In addition, the EPA will not recommend criminal prosecution for a company that discovers violations through an environmental audit and due diligence and promptly discloses and corrects the violations.

(2) If the company discovers, discloses, and promptly corrects a problem, but it does not have a compliance-type environmental management program, the EPA will reduce gravity-based penalties by seventy-five (75) percent. Again, the EPA will not recommend criminal prosecution for a company that discovers violations through an environmental audit and promptly discloses and corrects them.

(3) If the company has no environmental management program and violations are discovered by others, full gravity-based penalties will be assessed. In addition, criminal prosecution will be considered in appropriate cases.

Thus, the fact that ISO 14001 includes conformance standards, at least for processes, and not just guidance standards is significant. ISO 14001 certification, and maintenance of that certification, can be used to demonstrate that a company has a compliance management program. In turn, the compliance management program can qualify the company for relief from gravity-based penalties resulting from environmental laws violations.(143)

On the other hand, it is important to note that the EPA Final Policy is explicit in its refusal to grant direct incentives to prompt companies to use environmental audits. It states: “EPA will not promise to forgo inspections, reduce enforcement responses, or offer other such incentives in exchange for implementation of environmental audits or other sound environmental management practices. Indeed, a credible enforcement program provides a strong incentive for regulated entities to audit.”(144) The Final Policy also acknowledges the independent jurisdiction of its state and local counterparts, and it encourages the states to adopt the EPA audit policies or similar ones.(145)

Many states have established criteria pursuant to which a company can qualify for leniency in filling or monitoring requirements and for less severe sanctions for violations of environmental regulations.(146) Some states have enacted environmental privilege laws called “safe harbor” laws.(147) For example, the Pennsylvania Department of Environmental Protection (DEP) has finalized a policy providing regulatory relief for companies that conduct voluntary environmental compliance audits. If a regulated entity conducts an environmental compliance audit, discovers a problem, and takes action to correct the problem, the DEP will not take civil or criminal action.(148) James M. Seif, secretary of the Pennsylvania DEP stated, “Our policy is centered on one simple premise: You find it, you fix it, you tell us – no penalty.”(149)

At least twenty other states have adopted legislation or policies to encourage voluntary environmental audit programs and to limit penalties associated with violations discovered in the process of those audits. The content of the legislation and policies varies

More generally, the kind of proactive environmental management that results from implementation of an EMS in connection with ISO 14001 certification can lead to more cooperative relationships between businesses and government regulators.(156) A firm that adopts a preventive strategy and works with regulators increases its potential to work actively with agencies, and the firm can also influence agencies in subtle ways. One form of active cooperation is participation in “negotiated rulemaking,” a process through which interested parties are consulted early in the rulemaking process with respect to rules that may affect them. The EPA has used such negotiated rulemaking in a limited number of situations such as with respect to standards for wood stoves and for protection of farm workers from the effects of pesticides.(157) On some occasions, firms have participated in collaborative research with government agencies, such as with regard to the health effects of automobile emissions.(158) A firm can offer informal input through written communications with the agency such as letters and electronic mail messages.(159) Formal and informal interactions will be facilitated through the cooperative climate created through implementation of an ISO 14001-based environmental management system.(160)

Limited Relief in Connection with Criminal Prosecution. In addition to the issue of civil penalties, there is the question of whether ISO 14001 certification will protect a company from criminal prosecution for violation of environmental law?(161) On the federal level, the answer to that question is probably “no.” A “due diligence” defense can be used to protect a company in some cases of criminal prosecutions under environmental law. However, it appears that ISO certification will not be sufficient to invoke that defense. ISO 14001 certification requires a commitment to comply with relevant environmental legislation and a commitment to continual improvement, but it does not require a company to actually be in compliance with the law. The U.S. Department of Justice (DOJ) recognizes the value of environmental auditing, but the DOJ does not ensure the confidentiality of the auditing procedure in instances of prosecution for environmental law violations.(162) An additional concern is that it is possible that the DOJ will challenge “safe harbor” laws enacted by states to protect businesses conducting environmental audits.(163)

With respect to criminal violations of environmental law, Federal Sentencing Guidelines do provide for mitigation of fines for companies that monitor their operations, promptly report violations to the government, and correct those violations.(164) As a result, some companies have developed EMSs designed to help the company meet the eight criteria specified in the Guidelines in order to qualify for mitigation of penalties.(165) In addition to the Federal Sentencing Guidelines, various state enforcement policies establish mitigating factors that will result in reduced penalties for criminal violations of environmental law.(166)

Certification to ISO 14001 is a vehicle to help companies qualify for such mitigation of fines.

“Green Procurement” and Enhanced Public Image. Third, with respect to sales to businesses or government, certification to ISO 14001 can help a company maintain its customer base and even expand it.(167) Increasing numbers of companies are practicing “green procurement” policies. Green procurement refers to using environmental criteria as a basis for purchases. For example, one manufacturer distributed a list of “Green Purchase regulations” to about 5,000 suppliers or potential suppliers. The list includes six criteria used by the company as it chooses suppliers. The first four criteria are not directly related to environmental matters, but the fifth criterion is “environmental auditing” and the sixth is “environmental management assessment.”(168) The reasons for this can be traced, at least in part, to concerns about potential liability for environmental contamination.

Superfund and other laws have been interpreted by the courts in ways that expose Company A’s suppliers, customers, bankers and insurers to financial exposure for Company A’s environmental problems. Accordingly, those entities are increasingly demanding a way to assess Company A’s environmental posture as part of a decision on whether to do business with it.(169)

Apart from fear of legal liability, green procurement may reflect the environmental values of business managers.

As a result of green procurement, ISO 14001 certification may become a de facto requirement for doing business with the U.S. government and large businesses. After the ISO 9000 quality management standards were finalized, the ISO 9000 series became a de facto requirement for doing business in European and other countries as companies required proof that their suppliers and subcontractors complied with the standard.(170) A similar course of events is predicted with respect to the ISO 14000 series. Several large multinational businesses and the U.S. Departments of Energy and Defense are requiring first and second-level suppliers to be certified to ISO 14001. Additionally, as those first and second-level suppliers become certified, they can be expected to pressure third and fourth-level suppliers to become certified as a precondition to doing business with the higher level suppliers.(171) The “greening” of government procurement programs is a significant element to be considered because the largest single consumer in any country is generally the government.(172) Government purchases account for nearly twenty-five percent of the gross national product in some industrialized countries.(173)

A related benefit for businesses certified to ISO 14001 is that consumers will view the certified company as a responsible corporate citizen and will be more likely to purchase the company’s products or services.(174) Substantial numbers of citizens can be influenced by the fact that a company’s environmental management system has been certified. Consumers are looking for “green” products, and, in response, companies are scrutinizing their product design, production packing, distribution, and disposal in their efforts to meet demands for such products.(175) This preference is shared by citizens of industrialized countries around the world. For example, in Germany and the Netherlands where the people’s environmental awareness is high, it is generally accepted that commodities manufactured with environmental consideration and priced higher than those without such consideration will be preferred.(176) ISO 14001 certification provides a means for companies to demonstrate their environmental stewardship and accountability to consumers. Further, ISO 14001 certification can improve the corporation’s image in the community. Auditor Takao Ogawa has described a Japanese company that manufactures carbon micro-powder. He explained how the plant was producing a black powdery dust that covered the inside of the plant and the faces and clothing of the workers. This created a bad public image for the company. Yet, as a result of the ISO 14001 certification process, the company was able to change its corporate image completely.(177)

Attract Investors. Fourth, ISO 14001 certification can attract investors to the business organization. A growing number of individual investors and investment and mutual fund managers are searching for environmentally responsible firms.(178) Due to the high costs of cleanups under CERCLA and of violations of other U.S. environmental laws, potential investors are investigating the environmental compliance records of businesses.(179) Similarly, carefully documented environmental management practices can minimize the potential for shareholder resolutions and derivative legal actions brought to compel a business to consider the environmental impacts of its actions.(180)

Prevent Pollution Releases and Save on Insurance. Fifth, the company may save money on insurance premiums and cleanup following environmental accidents. Actions taken in response to an environmental audit will reduce the likelihood of toxic spills endangering employees and residents of the community in which an industrial facility is located. Because of reduced risks of accidental pollution releases, insurance companies may reduce rates on insurance policies covering accidental pollution releases if a company demonstrates that it has an EMS in place.(181)

Enhanced Relationships with Financial Institutions. Sixth, financial institutions are sensitive to environmental risks and their impact on collateral.(182) Lenders are requiring environmental audits before extending loans to businesses, and they are seeking verification that new plants or new processes will not create new environmental problems.(183) British and German banks consider environmental risks when deciding whether to grant financing, and some banks in Switzerland require that a company seeking a loan demonstrate that it has a certified EMS.(184) Thus, the implementation of a certified EMS may help a business obtain loans.(185) In the United States, a group called the Legal Issues Forum periodically meets to discuss the legal implications of ISO 14001. It includes members of the American Bar Association and other interested lawyers and non-lawyers. At one of its meetings, discussion focused on the positions of financial institutions and insurance companies. Bankers want assurances that their investments are sound and will not be threatened by environmental problems, and it appears that banks are more likely to extend funds to companies with EMSs such as those required pursuant to ISO 14001.(186)

Internal Cost Savings. Seventh, by implementing an EMS, a company may realize internal cost savings as a result of waste reduction, use of fewer toxic chemicals, reduced energy use, and recycling. Takao Ogawa, lead auditor for the Japan Audit and Certification Organization for Environment and Quality (JACO), observed that the ISO 14001 standards provide a positive way of thinking in place of a negative one. He said, ” [R]eduction of wastes can be achieved by throwing away the idea that `Let a waste disposal business contractor handle whatever wastes generated’ and innovating the idea that `Reducing the wastes by one ton raises such-and-such tens of thousand yen.”(187) Energy savings, although not a highly visible result to the public, can result in cost savings and significant reduction of carbon dioxide emissions produced at power states. For example, at the General Motors’ Vauxhall plant at Ellesmere Port in Great Britain, a program set up as part of its ISO 14001 registered EMS has resulted in significant savings. Electricity costs have been reduced by six percent, further electricity savings have been realized as a result of reduction of air leaks, and reduced consumption has reduced costs of gas by five percent.(188) One commentator said, “It’s not being miserly on a local scale, it’s being cutting-edge at the global level.”(189)

Public Education. Eighth, ISO 14000 certification can serve as a vehicle to educate employees and local communities about the environment. (190) This objective directly coincides with the goals of legally required Worker and Community RTK programs.(191)

Costs/Detriments to Business

A business organization contemplating seeking ISO 14000 certification will weigh the benefits of certification against the costs involved. Implementation of ISO 14000 costs time and money, and the extent of those costs will depend on the scope of the EMS. For example, an EMS can be international, national, or limited to an individual plant. To complete the auditing necessary for ISO 14001 certification, the laws of each country in which a company has a manufacturing facility must be examined, and compliance with those laws must be assured. National and international systems can be costly.(192) Implementation and certification costs are estimated to range from $100,000 to $1 million for plants run by a multinational corporation. Costs for small or medium-sized plants may range between $10,000 and $100,000 depending on the company’s individual needs and circumstances.(193)

Internal costs include costs of personnel time for training and implementation of the EMS and the costs of technology to deal with the environmental information being compiled and communicated. There are also costs of new monitoring equipment or upgrades to current equipment. Those internal costs are estimated to make up about eighty percent of the costs of implementation of the environmental management system.(194)

There are also external costs. A business needs the services of a registrar for the initial and continuing audits. In addition, legal counsel must be hired to examine the company’s compliance with applicable environmental laws. A company operating in more than one legal jurisdiction (whether that means two states of the United States or two countries such as the United States and Mexico) must assess its compliance with the laws of each jurisdiction involved.(195)

Lawyers studying the ISO 14000 standards are discussing a number of legal issues related to the use of environmental audit documents prepared as a part of the ISO 14001-certification process. There are serious questions as to whether a governmental regulatory agency can require disclosure of information discovered during a self-audit. Further, there is concern that audit reports and related documents might be obtained through legal discovery devices in the course of a lawsuit.(196) The use of a third-party auditor may weaken a company’s argument that information is privileged.(197)

Many companies conducted environmental audits for various reasons prior to the creation of the ISO 14000 series, and they continue to do so. Therefore, questions about confidentiality of information revealed in the course of an audit are not new. However, questions specific to ISO 14001 remain to be resolved.(198)

There are at least three tools that may be used to protect audit-related documents from discovery procedures during litigation. First, U.S. federal courts recognize an attorney-client confidentiality privilege.(199) This privilege to protect information generated during an audit is limited or unavailable in most instances involving environmental audits. It applies only when a communication is made to attorneys solely for the purpose of seeking and receiving legal advice.(200) Another potential protection is through the attorney work-product doctrine.(201) This privilege applies to work prepared in anticipation of litigation. However, it does not protect documents prepared in the ordinary course of business. Thus, the work-product doctrine might protect audit documents prepared after an environmental accident or release of toxic materials, but routine environmental audit documents do not appear to be protected by this privilege.(202) A third kind of privilege, called the “self-critical analysis” privilege or the “self-evaluative” privilege (SEP), is used in limited circumstances in our legal system. Courts allow its use for three types of documents: certain equal employment opportunity forms submitted to the government, hospital committee reports, and certain internal investigatory reports.(203) At the present, companies are being cautioned not to rely on the SEP to protect the results of environmental audits, but, in the future, U.S. courts may be called upon to decide whether, under certain conditions, the privilege can be applied to documents generated in connection with an ISO 14001 certification.(204)

Perspectives of Government

The legal significance of standards such as the ISO 9000 series and the ISO 14000 series varies depending on the country involved. The concerns of the United States differ from those of other industrialized countries and from those of developing countries.

Distinguishing the Views of the United States from Those of Other Countries. In the United States, private organizations including ANSI and the CMA have established standards based on voluntary consensus.(205) Businesses use standards in an effort to minimize their exposure to government regulation

Relationships between standards organizations and government vary widely in countries other than the United States. The European Commission (EC) is the primary legislative body within the EU. Harmonization of standards is a main component of the market system being developed within the EU. Because the EU countries form the United States’ largest trading partner, its standards activities are important to substantial numbers of U.S. businesses.(206) Various European governments provide backing to privately run standards organizations

The perspectives of developing countries differ from those of industrialized countries such as the United States and Great Britain. In many developing countries, governments have not adopted and consistently enforced environmental legislation. Thus, there has been much discussion about whether the ISO 14000 series standards can be used to fulfill the environmental protection needs of those countries. Moreover, some developing countries are reviewing the ISO 14000 series standards and considering including their provisions within their own environmental laws and regulations.(209) For example, Zimbabwe has incorporated ISO 14001 into its national regulatory system.(210) Its plan is to use ISO 14001 in conjunction with its preexisting legislation and a “tuned up” monitoring system.(211)

China is an example of a developing country that quickly and enthusiastically announced its support of ISO 14000. China has many environmental regulations, but those regulations are not widely enforced. Therefore, the ISO 14000 standards are viewed as a mechanism that can promote enforcement of applicable environmental laws and regulations. In addition, it is viewed as a means to generate good publicity for China as it recruits foreign investors.(212)

Early experiences in Mexico have shown that ISO 14001 certification helps companies penetrate international markets. As a result, many Mexican-owned companies and multinational companies operating in Mexico have earned ISO 14001 certification, and many others are working toward certification.(213)

On the other hand, developing countries were underrepresented in the process of draining the ISO 14000 series standards, and their concerns were not necessarily fully explored.(214) Many observers are concerned that environmental standards created by ISO 14000 may constitute non-tariff barriers to trade against developing countries.(215) When certification becomes necessary for doing business in certain markets, uncertified companies are placed at a disadvantage. Because the costs of ISO 14000 registration may be prohibitively high for small to medium-sized companies in developing countries, any legal or de facto requirement that the company be certified will effectively act as a barrier to trade for such companies.(216)

The questions and concerns of developing countries with respect to ISO 14000 are multiple and answers are complex. Thus, those concerns merit separate consideration from discussion of the perspectives of a developed country.(217) The remainder of this article focuses on the perspectives of the United States and businesses based in the United States.

The United States — A Country with a Highly Developed Regulatory Scheme. Agencies of the U.S. government have been actively following the development of the ISO 14000 series standards and have provided input in various contexts. For example, the EPA, the Department of Defense, and the Department of Energy provide representatives to the U.S. TAG which, in turn, provides input to TC 207, the ISO TC responsible for the ISO 14000 series.(218)

The United States has a highly developed regulatory system designed to protect the environment. The EPA, in conjunction with state-level counterparts, enforces a myriad of environmental protection statutes including, but not limited to, the CAA,(219) the CWA,(220) CERCLA,(221) and the Toxic Substance Control Act.(222) Unlike a developing country, which may lack a comprehensive regulatory scheme in the area of environmental protection, the U.S. government is not likely to view the ISO 14000 series as a potential substitute for regulation.

Nevertheless, in the United States, federal and state administrative agencies are short-staffed and under-funded. One writer has asserted that Congress has handed the states “ambitious federal goals and standards without providing them sufficient supplementary funding to monitor effectively and to compel compliance.”(223) Therefore, the fact that ISO 14000 series standards are likely to increase rates of compliance with environmental law will be welcomed by the EPA and state environmental protection agencies. The ISO 14001 certification process, “can release scarce government resources from policing `good actors’ to concentrate on the `bad actors’ as part of a risk-based enforcement program.”(224)

Perspectives of Environmentalists and Broad-Based Public Interest Groups

General Perspectives of Environmentalists. In recent years environmentalists have actively worked to persuade businesses to disclose their environmental performance records to the public and to improve their environmental management practices.(225) The news media have not provided extensive discussion of the perspectives of environmentalists on ISO 14000. However, this can be explained by the nature of ISO 14000. Environmental statutes and regulations are law. Environmentalists and other citizens have the right to provide direct input to legislators and administrative agency representatives before a proposal becomes law. Similarly, an international trade agreement is law that must be approved by the U.S. Congress. The support of environmentalists was and is crucial to the members of Congress who voted on NAFTA and who will vote on future trade agreements modeled after it.(226) Therefore, the voices of environmentalists and labor leaders were publicized widely by the news media prior to and following the adoption of NAFTA.

Moreover, in some instances, environmentalists have worked side-by-side with businesses to develop initiatives. Environmentalists participated in drafting the CERES Principles and the NCPL Corporate Compliance Principles and their efforts were well publicized.(227) Their input regarding those sets of principles was direct.

In contrast, the drafters of ISO 14000 were business representatives who were working on behalf of their firms. Government representatives provided some input, but environmental groups and other citizens’ groups were not direct participants on the TAGS.

An Example of How ISO 14000 Incorporates Environmentalists’ Goals — the

CERES Principles. Although no single group can purport to represent all interests of environmentalists, it is useful to identify some examples of how environmentalists’ requests influenced the drafters of the ISO 14000 standards.(228) Many of the environmental policies and specific measures advocated by the authors of the CERES Principles were incorporated in the ISO 14000 series standards. Below are several examples.

First, ISO 14000 names the pursuit of sustainable development as a goal. This coincides with CERES Principle 2, which calls for sustainable use of natural resources.

Second, ISO 14001 requires a company seeking ISO 14000 certification to prepare an environmental policy. Such a policy may address practices such as reuse and recycling of materials, minimizing waste and reducing hazardous emissions, and evaluating environmental impacts of processes and materials.(229) These behaviors promote the goals articulated in several CERES Principles. Examples include CERES Principle 2, which calls for sustainable use of natural resources

Third, CERES Principle 10 calls for self-assessment and annual audits. Such an initial audit and continuing audits are required under ISO 14001.

Fourth, ISO 14001 requires that businesses communicate internally among various levels of the organization and externally with the public. This promotes the goals of CERES Principle 8, which calls on businesses to disclose to the public and to employees incidents of environmental harm as well as potential environmental hazards. However, the external communications requirements of ISO 14001 are relatively weak.(230) They require merely that a business document and respond to external inquiries about its environmental activities and management system. They do not mandate an active outreach program in which a business proactively releases environmental information to the public.

In a more narrow but related area of communication, CERES Principle 6 calls on businesses to inform consumers of the environmental impacts of their products and services. The proposed ISO standards on product labeling, if adopted, will promote Principle 6.

These are only some examples of parallels between the CERES Principles and the ISO 14000 series standards. Similar linkages could be identified through an examination of the other environmental management plans preceding ISO 14000.(231)

Broad Changes in Environmental Protection Promoted by ISO 14000

The ISO 14000 standards have the potential to promote at least four kinds of shifts in environmental protection. First, the widespread adoption of ISO 14000 can ease the burdens of government agencies charged with enforcement of environmental statutes and regulations. Second, ISO 14000 reinforces a shift away from reliance on reactive, command and control kinds of regulation and, in its place, promotes pollution prevention. Thus, it reinforces proactive rather than reactive environmental protection measures. Third, it can promote a new corporate culture by providing a new paradigm for corporate behavior. Fourth, it can help citizens make informed choices about their behavior and its potential effects on the environment.

Easing the Workload of Government Agencies

First, to the extent that businesses regulate themselves, government will have to do less investigatory work to discover violations of environmental law. In days of reduced budgets, the EPA may be able to spend fewer resources on the investigation of ISO 14001 certified companies. It may choose to allocate more of its enforcement personnel and funds to investigation of companies that do not choose to engage in a self-imposed environmental management system.(232)

From an international perspective, a more cooperative relationship between the EPA and the regulated party is particularly important. “[C]ase studies found that for regulated companies with cross-national experience American environmental regulatory processes are more detailed, prescriptive, complex, unpredictable, and costly to comply with than are comparable regulatory regimes in other economically advanced democracies.”(233) Therefore, the prospect that participation in the ISO 14000 program may enhance relationships between environmental agencies and regulated parties is of even greater significance in the United States than in other industrialized countries.

ISO 14001-certification can promote higher levels of compliance with state and federal statutes and regulations because the company must review those laws and statutes as it prepares its EMS and as it undergoes periodic review of its environmental practices under the EMS. The act of examining existing law on a periodic basis along with self-assessment as to compliance with those laws is likely to increase the rate at which companies comply with environmental law.

Further, the ISO 14000 series can provide a company with a systematic approach for implementing an EMS that will qualify it for participation in the EPA’s ELP.(234) Participation in the ELP program may result in leniency toward the company in certain instances of violations of environmental law and may exempt the company from certain routine enforcement inspections. Such inspections also reduce inspection costs for the EPA, as companies shoulder more of the burden of policing themselves to verify compliance with environmental law. Similar benefits will go to state environmental protection agencies.

Reinforcing a Move toward Proactive Environmental Protection Mechanisms

Over the past ten years, there has been a movement in the United States to substitute new, proactive regulatory programs for the command and control kinds of programs of the 1970s and 1980s.(235) Examples of such proactive regulation include Worker and Community RTK laws of the 1980s and TUR and RTA laws of the 1990s.(236) The implementation of ISO 14000 EMSs by individual companies reinforces the shift away from command and control.

A New Paradigm Promoting a New Corporate Culture

The ISO 14000 series has the potential to promote a new corporate culture shared by businesses throughout the world. ISO 14000 is designed to provide a series of universally accepted EMS practices and lead to consistency in environmental standards between and among trading partners. In connection with this, it has the potential to lead to cultural changes within individual businesses and within entire industries. First, within the individual business, ISO 14000 has the potential to lead to consideration of environmental issues throughout the company’s operations and its business decisions ranging from hiring of employees to marketing. “[I]f implemented in good faith, the procedural approach may create a more `eco-friendly’ corporate culture. Rather than restrict discussion of environmental issues to a single environmental `shop,’ it diffuses consideration of these issues throughout the corporate structure, including top management.”(237)

Second, the new paradigm can become a part of a global culture. Managers of companies that have implemented ISO 9000 have learned to view their companies’ operations through a “quality of management” lens. Similarly, it is hoped that implementation of ISO 14000 will lead to use of an “environmental quality” lens by businesses and by customers of those businesses. ISO 14000 has the potential to become part of a global culture as the public comes to view ISO 14000 certification as a benchmark connoting good environmental stewardship by a company. This “environmental quality” lens can lead businesses to act pursuant to a new, environmentally based paradigm.

Educating Citizens

As discussed earlier in this article, consumers, workers, investors, and environmentalists can play an important part in the success, or lack of success, of ISO 14000.(238) At a minimum, ISO 14001 certifications will help citizens identify those companies that are likely to be responsible stewards of the environment. Citizens are likely to view an individual company’s ISO 14001 certification as evidence (in most instances) of a good faith effort by the company to engage in environmentally responsible business practices. Based on that information, environmentally aware citizens can choose to purchase the products and services of companies certified to ISO 14001, and they can invest in those companies by purchasing their stock offerings. This promotes the “Jeffersonian Ideal” and is consistent with the basic premises of democratic government. That ideal is based on Jefferson’s statement, “[I]f we think [the people are] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.”(239) Information about toxic substances allows citizens to make educated choices for themselves as an alternative to expecting government to make such decisions for them by making and enforcing regulatory laws.

Limitations of ISO 14000

The most glaring limitation of ISO 14000 is that it is the product of a private, non-governmental organization. One commentator has noted that, “[T]he goal in organizing a TAG is to achieve `a balance of interests’ among those parties developing a U.S. position for ISO activities. However, 98% of representatives to the United States TAG for TC207 are industry-related, thus creating an astonishing imbalance of interests.”(240) It was not developed with the direct input and voices of environmentalists, workers, and other members of society

A second major limitation of the ISO 14000 series is that certification is completely voluntary. A business organization that does not participate in the program will not be prompted to comply more fully with environmental laws.

Third, ISO 14001 certification is based on goals set by the company being certified. Some consider this to be desirable because management has the flexibility to choose technologies and programs based on costs and its own needs. However, others consider it to be ISO 14001’s greatest flaw, because companies may set very lenient goals for themselves.(244)

Fourth, ISO 14001 certification requires that the company establish an EMS and, therefore, it is concerned with processes, not outcome. Goals and priorities articulated by the company are self-chosen, and there is no minimum standard beyond compliance with applicable law.(245) ISO 14000 does not establish performance standards, and it does not measure environmental performance.(246) It merely enables management to reach the goal of improved performance.(247) Performance requirements continue to come from domestic laws. One commentator asserted, “A management system cannot be a substitute for a performance standard, and some critics have expressed concern that adoption of the ISO 14000 series will undercut efforts to develop and strengthen performance requirements.”(248) ISO 14000 standards do not mandate specific technologies or specific outcomes to be achieved. Environmental regulations and laws are left to the discretion of various nations through their domestic laws and through international agreements. The ISO 14000 standards respect the integrity of individual nations, and this is desirable in many ways. On the other hand, they require “little in the way of substantive environmental protection, thereby allowing nations to play good neighbor while carrying on with their own agendas.”(249)

A fifth major limitation of the series is that implementation of an ISO 14001 EMS depends on self-enforcement. Thomas Ott, corporate manager for environment, safety, and industrial hygiene with Motorola Corporation, is the U.S. Chairperson of the ISO’s working group on environmental auditing. He observed, “Having a certificate doesn’t mean you have a clean company…. The bad guys who pollute today will still do it, and they’ll have a certificate.”(250) The successful implementation of an EMS by an individual company will depend substantially on the leadership of the company’s managers.(251) The organization must show its commitment through its statement of EMS policy, articulation of goals, and communication of the policy and goals to its personnel. Further, the company must allocate adequate funds for implementation of its goals and for training of personnel.(252)

A sixth limitation is that the quality of the environmental audit depends on the qualifications and integrity of the registrar who performs the audit. As increasing numbers of companies seek certification to ISO 14001, increasing numbers of auditors will be needed for initial audits and continuing, periodic audits. The ISO TC 207, which drafted the ISO 14000 series, addressed the question of auditors’ qualifications only briefly. In an appendix to the ISO 14000 series called “Annex B: Environmental Auditor Registration Body,” there are two provisions. The first states that the purpose of the annex is, “To provide consistency of registration of environmental auditors.”(253) The second addresses the question of an “auditor registration body.” It does not require that a body charged with accrediting environmental auditors be established. However, it states that where such a body may be appropriate, it must ensure that environmental auditors are “registered in a consistent manner.” Thus, choice of a registrar is left to the organization seeking certification.

It is important to note that there are auditor accreditation bodies. In the United States, ANSI operates as a partner with the U.S. Registrar Accreditation Board (RAB). The RAB is a non-profit organization that accredits ISO 9000 registrars, and many of those same registrars are providing ISO 14000 audit services.(254)

Because each country can develop its own accreditation body for registrars, accreditation procedures and oversight may vary from country to country. Further, accreditation of a registrar in one country does not guarantee that that registrar, and his or her work, will be recognized in another country.(255) Therefore, efforts are being made to ensure the credibility of registrars and to oversee their activities. The auditor registration body of each country includes a Certification Advisory Council (CAC). (The title may vary, but the body’s role is the same regardless of title.)(256) When a registrar seeks accreditation, it must meet the requirements of a joint ISO-IEC guideline. It is called the ISO/IEC 62 General Requirements for Bodies Operating Assessment and Certification/Registration of Quality Systems. The CAC is concerned with establishing and maintaining ethical standards. It must work to ensure that its members are not subject to financial, political, or other pressures that might influence their decisions.(257) CACs must find ways to ensure that registrars are impartial and avoid conflicts of interest as they conduct audits and certify a company’s compliance with ISO 14001 requirements.

Yet, even with the services of accreditation boards, a company must choose its auditors and other consultants carefully. Officials at the U.S. RAB report many cases of companies complaining that a consultant hired to certify to ISO 9000 overcharged them or proved otherwise deficient.(258) In the new area of ISO 14001 consulting and certification, similar problems can be anticipated, and cautions should be observed.

A sixth limitation is that certification to ISO 14001 may not eliminate a company’s need to conform to environmental management standards adopted by other organizations. For example, the CMA’s CARE[R] program is less inclusive than ISO 14001 in some ways and more inclusive in others. An organization meeting CAREr require requirements must do more before it can also be certified to ISO 14001, yet CARE[R] imposes requirements not imposed by ISO 14001. Because membership in the CMA requires conformance with CARE[R], a chemical company may not wish to undergo the number of audits and pay the costs that would be involved in certification to ISO 14001 also.(259)

WHAT IS THE ROLE OF ISO STANDARDS AS COMPARED TO OTHER CHANNELS FOR ENVIRONMENTAL PROTECTION?

Can the ISO 14000 series environmental management standards provide a viable alternative to government regulation in the United States? Some business people and commentators may say “yes,” but others argue that EMSs should be kept completely separate from government regulatory systems.(260) It is my conclusion that certification to ISO 14001 should not exempt a company from the reach of government regulation. Nevertheless, the ISO 14000 series can play an important role in environmental protection, and it provides an excellent supplement to government regulation.

In this closing section, first I discuss how the voluntary non-regulatory ISO 14000 scheme can play a unique role in a web of various mechanisms used to protect the environment. Second, I discuss how implementation of the ISO 14000 standards can help government regulators meet their regulatory objectives. ISO 14001 certification should not be required by legislation or regulation because of the lack of democratic participation in making and enforcing the standards,(261) but the EPA should facilitate and encourage ISO 14001 certification. The ISO 14000 series standards can serve as a vehicle to meet the objectives of businesses and the objectives of environmental regulation.

Voluntary Standards and Their Place among Various Mechanisms for Environmental Protection

Environmental protection and the pursuit of sustainable development can be pursued through various channels. Those channels can be broadly categorized as (1) government actions including, but not limited to, regulation (on the state, national or international level)

Government Action

In addition to domestic regulatory law, governments can use a variety of tools to protect the environment and promote sustainable development. Some tools are used by one government acting within its own borders. Others require cooperation and agreements with other countries.

An example of action by a single government is pollution taxes. A wide range of pollution taxes have been used throughout the world, including gas taxes in Europe and Japan, taxes on chlorofluorcarbons (CFC) in the United States, and taxes on sulphur in Sweden.(263) Taxes have limited overlap with ISO 14000. Insofar as ISO 14001 certification leads to energy savings, then the participating company may save on taxes and energy costs.

A second example of action by a single government is use of “green” government procurement practices. This tool is facilitated by the ISO 14000 series. Through ISO 14001-certification, a company is able to demonstrate its “green” performance and increase its opportunity to sell goods to government.(264) Adoption of ISO 14024 on environmental labeling will further facilitate implementation of green procurement policies.(265)

However, environmental problems are not confined within national boundaries. Consequently, the environmental problems accompanying expanded trade have become an integral part of discussions related to the globalization of trade. Because of the international aspects of environmental problems, state and national level laws and regulations cannot stand alone in the effort to promote sustainable development for the world. International agreements and actions are necessary.

Attorney Alan S. Miller stated, “The most effective response, where politically feasible, may be a multilateral agreement on environmental standards.”(266) In some cases multilateral agreements on environmental standards can be highly effective. One example is the phase-out of CFCs in order to protect the ozone layer. As a result of the United Nations Environmental Programme started in 1981, the Montreal Protocol was created in 1987 (and amended after that date).(267) Pursuant to the Montreal Protocol, major industrialized nations agreed to a schedule designed to first reduce and then eliminate use of CFCs.(268) International cooperation on environmental needs is not, however, a norm in international relations. Even the Montreal Protocol is narrow, covering only one type of chemical. Further, the negotiations for it took over a decade. Other available examples of multinational environmental agreements are limited in scope too. NAFTA with its Environmental Side Agreement is a trilateral agreement with measures designed to protect the environment. The United States, Canada, and Mexico did not create new substantive law

International environmental protection agreements and treaties to date are piecemeal and incomplete ways of protecting the environment. Comprehensive environmental policies are needed on the international level. The ISO 14000 standards can be useful as a starting point as nations work toward international environmental agreements and treaties.

Beyond treaties and international agreements, governments can encourage international lending agencies to promote environmental protection through their lending policies. Agencies such as the World Bank have used environmental performance criteria as preconditions to the extension of loans for projects in developing countries. Such programs have been successful only in limited ways to date, but they have the potential to play a more substantial role in protecting the environment and promoting sustainable development in the future.(271) If such criteria are used more frequently in the future, ISO 14001 certification can provide a vehicle to help the developing countries involved meet the requirements imposed by lending agencies.(272)

In short, multinational agreements for environmental protection and the pursuit of sustainable development are in their infancy and a great deal of work needs to be done.(273) Other governmental tools such as pollution taxes, green procurement contracts, and environmental stipulations attached to development loans made by international lending institutions are all part of an “arsenal” of tools, but far more is needed internationally.

Voluntary Self-Regulation by Business and Its Advantages

Voluntary programs such as the ISO 14000 series can provide an important supplement to both domestic environmental law and multilateral international agreements. Many characteristics of voluntary programs give them advantages over complete reliance on governmental programs. First, voluntary programs can be drafted and implemented more quickly than domestic law or international agreements because the drafters have a common purpose. When environmental laws are made, viewpoints of a wide spectrum of citizens including workers, environmentalists, consumers, and businesses must be considered through lengthy rule-making or law-making procedures. Because the ISO is a business organization, it can focus on the needs of its members and move relatively quickly. As a result, the development of the ISO 14000 standards was surprisingly rapid. The first five standards achieved draft international standards (DIS) status in less than two years.(274) While waiting for international organizations to come to agreement on global environmental standards, the voluntary measures of ISO 14000 can lead to environmental improvement, level the playing field for businesses around the world, and lay groundwork for future international agreements.

Second, the implementation of regulations and statutes is subject to challenge in court unlike implementation of the voluntary ISO 14000 series standards.(275) Third, alternative EMS programs, such as the CARE[R] Program, can co-exist in the business world. The co-existence of various programs allows a company to select and implement the kind of program that best meets its own needs. Fourth, the standards give a great deal of flexibility to each participating company with respect to choice of goals, technology, and record keeping. Currently regulatory law allows far less flexibility. Fifth, businesses are likely to feel better about compliance with a program run by a business organization like the ISO than they do about compliance with environmental statutes and regulations. The elements of choice and self-determination are important. Finally, the ISO 14000 series standards give businesses an opportunity to prove their environmental stewardship through an internationally recognized program. No such program exists through agreements made by the U.S. government and governments of other nations.

Public Pressure

A third set of forces promoting environmental protection and sustainable development results from public surveillance and participation. Individual citizens and interest groups provide input with respect to the enactment of statutes and promulgation of regulations. In addition, they serve as public watchdogs and sometimes challenge the implementation of environmental law or the failure to implement it.(276) Public participation was far more limited with respect to drafting of the ISO 14000 series.(277) Moreover, there is little opportunity for the public to challenge ISO’s standards after they are made.

In summary, there is substantial interplay between and among the three forces or spheres of influence: government, business representatives, and the public. All are needed to work toward sustainable development. In this web of relationships, the ISO 14000 standards can play a unique and important role. The ISO 14000 standards are designed to lessen the impact of regulations of any one country and create a system that leads to meaningful environmental protection for the world.(278) In a 1997 article, also on ISO 14000, Professor Paula Murray wrote, “[I]t is the very procedural nature of the ISO 14000 standards that will bridge the tension between international trade and environmental protection.”(279) I agree with Professor Murray in her assertion that the ISO 14000 series can and should be used as a first step toward an international environmental regulatory system.(280)

Can U.S. Laws and Regulatory Agencies Help Maximize the Benefits of ISO 14000?

The command and control kinds of environmental laws on which the U.S. government relies provide performance standards. Even though there is a movement away from complete reliance on command and control regulations, most remain in place and are being modified and supplemented step-by-step. The ISO 14000 series standards provide only process standards

U.S. regulatory agencies have been working toward new models of regulation that move away from command and control and end-of-the pipe kinds of regulation. Regulatory reform is under way through programs such as the EPA’s XL and ELP programs and the CSI.(281) These programs promote self-enforcement, multi-media approaches, and performance that goes beyond compliance with regulation. The ISO 14000 series can contribute to the success of this new model or paradigm being sought by the EPA.

By participating actively on TAG 207, the technical committee charged with developing the ISO 14000 series, the EPA and other U.S. government agencies influenced the creation of the ISO 14000 series standards. Moreover, they continue to participate in discussion of additional standards for the series and revisions to standards already adopted. They should continue to do so. The next question is, what else is needed?

Mandatory Environmental Auditing

A further step that should be pursued is for the United States to make environmental auditing mandatory. ISO 14001 certification leads a company to implement a comprehensive EMS including auditing. I agree with authors who have advocated such mandatory auditing.(282) EPA-mandated environmental auditing could provide further incentives for companies to become certified to ISO 14001. ISO 14001 would facilitate the required auditing because it provides a framework for the EMS and audits conducted pursuant to the EMS.

Reward ISO 14000-Certified Companies with Fewer Inspections

The EPA’s current policy states, “EPA will not promise to forgo inspections, reduce enforcement responses, or offer other such incentives in exchange for implementation of environmental audit or other sound environmental management practices.”(283) This policy should be changed. The EPA should provide specific incentives in exchange for successful implementation of an EMS that requires regular environmental audits and prompt action to correct any deficiencies. I agree with attorney Pamela S. Evers who stated, “If regulators provide incentives to certifying firms, industry is more likely to choose certification to the international environmental standards.”(284)

A company should be rewarded for meeting two criteria: (1) ISO certification or other specified certification

Expand ELP and XL Programs and CSI

Through the ELP and Project XL, the EPA promotes multi-media approaches to environmental protection.(285) Project XL and the CSI promote actions that reduce costs of environmental management and achieve environmental protection levels that go beyond legal compliance.(286) An ISO 14001-based EMS is designed to be internally consistent. It requires multimedia monitoring, record keeping, and reporting. Thus, the ISO 14000 series gives companies a structured vehicle through which they can set up the kind of EMS that would be required for participation in one of those programs. The EPA should work to increase participation in the ELP and XL programs and to expand the CSI.

EPA is considering using ISO 14001 certification as a prerequisite for participation in pilot programs such as Project XL.(287) The EPA should proceed with such plans and issue a written policy on it. Moreover, it should examine other programs that require EMSs such as the CARE[R] plan to determine whether participation in that program could serve as an alternative to ISO 14001 certification.

Establish a Standard of Care for Audits and License Auditors (Registrars)

Environmental auditors should be licensed.(288) Accountants and lawyers must be licensed before serving their clients. Similarly, environmental auditing carries tremendous responsibility and should be conducted by licensed professionals. With licensing, there will be greater assurances that environmental audits will be conducted pursuant to uniform standards and by people who meet established minimum qualifications. Use of licensed auditors will increase the credibility of ISO 14001 certification.(289)

In addition, a legally established standard of care is needed for the conduct of environmental audits. When professionals such as doctors and lawyers do not conform to a standard of care in their profession, they may be sued for malpractice. Similarly, in the event of a major environmental accident involving a facility registered to ISO 14001, the work of auditors and registrars will be subject to intense legal scrutiny.(290) Therefore, a statute defining the elements of a thorough environmental audit is needed.

Observe and Learn from ISO 14001-certified Companies

The EPA should carefully study the practices of ISO 14001-certified companies. Under an ISO 14001-based EMS, companies are given a great deal of flexibility. They can make their own choices about technology, monitoring, and record keeping. In addition, the ISO 14000 series encourages multi-media approaches to environmental protection, especially in the areas of monitoring and record keeping. In turn, companies are likely to devise new record keeping systems and create new technology for monitoring. The EPA should learn from them. In short, the activities of ISO 14001 certified companies can serve as an experimental proving ground. Practices by ISO 14001 certified companies can help lead the EPA to workable plans for facility-wide permitting, and they may develop facility-wide multi-media reporting and record keeping practices. ISO 14001-certified companies can try out new approaches that can lead to new EPA policies and regulations and even new statutory approaches to environmental protection.

CONCLUSION

The ISO 14000 Series International Environmental Standards are one of a set of tools available to work toward sustainable development. Those tools are created and used by governments, businesses, and by the public. Governments make domestic laws and enter international treaties and agreements. They also protect the environment through pollution taxes, green procurement policies, and international lending policies. Citizens can influence the creation and implementation of domestic regulations and statutes as well as international agreements. Shifting coalitions of environmental groups, labor groups, and even businesses have worked on various environmental laws and programs, but the work is not always done by broad-based coalitions. The ISO 14000 series standards were developed by businesses for themselves, with input from government agencies but with little input from citizens and their organizations.

Moreover, they are process standards, not performance standards. Therefore, they cannot be a substitute for government regulation. Yet, they support various goals articulated by the EPA including less command and control, pollution prevention, a holistic approach to environmental management, and environmental action going beyond compliance. Further, the ISO 14000 standards provide a bridge between domestic regulation and a global framework for environmental management. In their role as a bridge, the ISO 14000 series standards fill a void and can be a first step toward a more comprehensive global plan enforced by governments. Thus, the ISO 14000 series standards can play a unique role in environmental protection as we enter the twenty-first century.

Further, the ISO 14000 series can provide an important supplement to regulatory law in the United States. ISO 14000 provides businesses with a workable framework for managing environmental risk. Participating companies will engage in self-examination and self-correction of environmentally harmful practices or conditions. That, in turn, can free government environmental enforcement personnel to concentrate on inspections of companies that do not engage in such voluntary environmental programs.

Nevertheless, the effectiveness of ISO in promoting environmental stewardship within ISO-certified companies will depend on the leadership of business managers. They must work to create and maintain a corporate culture in which environmental management permeates the daily operations of the business. In the end, the success of the EMS depends on qualified, committed people and the allocation of sufficient resources to accomplish the company’s stated goals.

The EPA should continue to work with the ISO to develop new ISO 14000 series standards and revise those already adopted. Additionally, it should encourage companies to be certified to ISO 14001. It can provide incentives for companies to become ISO 14001 certified. Incentives include provisions for fewer inspections and using ISO 14001 certification as a prerequisite to participation in pilot projects such as the ELP and XL programs. In addition, the EPA should make environmental audits mandatory which, in turn, will provide companies to become ISO-certified. Moreover, the EPA should continue to learn from ISO 14001 certified companies to search for new ways of doing things through record keeping, technology, and environmental management practices. Further, on a state or federal level, licensing of environmental auditors (registrars) and standards of care for environmental auditing will complement the ISO 14000 series standards by promoting consistency and quality in auditing. Such consistency and quality will add credibility to ISO 14001 certification.

The ISO 14000 series standards can provide important bridges linking businesses and environmental protection agencies. They can facilitate the EPA’s work because they promote many of the same goals being articulated by the EPA. Moreover, the ISO 14000 series standards can facilitate the worldwide pursuit of sustainable development. Thus, although it is not a substitute for regulation, ISO 14000 series can provide a valuable supplement to environmental regulation.

GLOSSARY

AFL-CIO American Federation of Labor and Congress of

Industrial Organizations

ANSI American National Standards Institute

APEC Asian Pacific Economic Cooperation

BSI British Standards Institute

CAA Clean Air Act

CAC Certification Advisory Council

CARE Responsible Care Program

CERCLA Comprehensive Environmental Response,

Compensation and Liability Act

CERES Coalition for Environmentally Responsible

Economies

CFC Chlorofluorcarbons

CMA Chemical Manufacturers’ Association

CSA Canadian Standards Association

CSI Common Sense Initiative

CWA Clean Water Act

DEP Department of Environmental Protection

DIS Draft International Standards

DOJ Department of Justice

EC European Commission

ELP Environmental Leadership Program

EMAS Eco-Management and Audit System

EMS Environmental Management System

EPA U.S. Environmental Protection Agency

EPCRA Emergency Planning Right to Know Act

EU European Union

GATT General Agreement on Tariffs and Trade

GEMI Global Environmental Management Initiative

IEC International Electrotechnical Commission

ISO International Organization for Standardization

JACO Japan Audit Certification Organization for

Environment and Quality

NAFTA North American Free Trade Agreement

NCCC National Commission for Corporate Compliance

NCPL National Center for Preventive Law

OSHA Occupational Safety and Health Administration

PCSD President’s Council on Sustainable Development

QMS Quality Management System

RAB U.S. Registrar Accreditation Board

RCRA Resource Conservation and Recovery Act

Rio Conference UNCED meeting in Rio De Janeiro in 1992

RTA Right to Act

RTK Right to Know

SEP “Self-Evaluative” Privilege

SME Small and Medium Enterprises

TAG Technical Advisory Group

TC Technical Committee

TC176 Technical Committee on Quality Assurance and

Quality Management

TMB Technical Management Board

TUR Toxics Use Reduction

UN United Nations

UNCED United Nations Conference on the Environment and

Development

World

Commission World Commission on the Environment and

Development

(1) WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 8 (1987) [hereinafter OUR COMMON FUTURE].

(2) See generally North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., 32 I.L.M. 289 [hereinafter NAFTA]

(3) The ISO 14000 SERIES ENVIRONMENTAL MANAGEMENT STANDARDS [hereinafter ISO 14000 SERIES] are available from American National Standards Institute (ANSI), 11 West 42nd St., N.Y., N.Y., 10036

(4) David J. Freeman, ISO 14000 Standards Make Official Debut: May Be a Watershed in Environmental Regulation, N.Y.L.J., Oct. 15, 1996, at S3.

(5) For discussion of command and control legislation, see infra text accompanying notes 82-93.

(6) Paula C. Murray, Inching Toward Regulatory Reform–ISO 14000: Much Ado About Nothing or a Reinvention Tool?, 37 AM. BUS. L. J. 35 (1999).

(7) Id. at 69.

(8) See id. at 71.

(9) See W. M. VON ZHAREN, ISO 14000: UNDERSTANDING THE ENVIRONMENTAL STANDARDS 2 (1996).

(10) See Introduction to ISO (last modified June 1, 1999) <http://www.iso.ch.infoe/intor.htm>

(11) See W. M. VON ZHAREN, supra note 11, at 13. For further background on ANSI including its history and operations, see AMY ZUCKERMAN, INTERNATIONAL STANDARDS DESK REFERENCE 44-49 (1997).

(12) See ZUCKERMAN, supra note 11, at 83. For further discussion of ISO 9000, see ADEDIJI DOCUNDE BADIRU, INDUSTRY’S GUIDE TO ISO 9000 (1995)

(13) See ZUCKERMAN, supra note 11, at 84-85.

(14) See id. at 11.

(15) See TOM TIBOR & IRA FELDMAN, ISO 14000: A GUIDE TO THE NEW ENVIRONMENTAL MANAGEMENT STANDARDS 27 (1997).

(16) See Introduction to ISO, supra note 10.

(17) See ZUCKERMAN, supra note 11, at 229.

(18) See id. at 257-58.

(19) See id. at 87.

(20) “Certified to” is the language used by the ISO to describe a system that has been certified as being in conformance with a set of its standards.

(21) See VON ZHAREN, supra note 9, at 5.

(22) ISO 9000 SERIES QUALITY MANAGEMENT STANDARDS are available from the American National Standards Institute (ANSI), 11 West 42nd St., N.Y., N.Y., 10036

(23) See Jeff Henrickson, Light the Candles, BUS. STANDARDS, May/June 1999, at 1.

(24) See id.

(25) See id.

(26) See id. at 11.

(27) For discussion of the role of environmentalists as watchdogs in the legal system, see Joseph F. DiMento & Francesco Bertolini, Green Management and the Regulatory Process: For Mother Earth, Market Share and Modern Rule, 9 TRANSNAT’L L. 121, 139-40 (1996).

(28) See Rose Gutfield, Shades of Green, Eight of 10 Americans Are Environmentalists, At Least So They Say, WALL ST. J., Aug. 2, 1991, at A1.

(29) See Joseph F. DiMento & Pamela M. Doughman, Soft Teeth in the Back of the Mouth: The NAFTA Environmental Side Agreement Implemented, GEO. INT’L ENVTL. L. REV. 651, 679-81 (discussing the various positions of environmental groups in the United States, Mexico, and Canada with respect to NAFTA)

(30) Robert A. Kagan, Trying to Have It Both Ways: Local Discretion, Central Control, and Adversarial Legalism in American Environmental Regulation, 25 ECOLOGY L.Q. 718, 725 (1999).

(31) For examples of pollution prevention programs implemented by various companies, see Robert Anthony Reiley, The New Paradigm: ISO 14000 and Its Place in Regulatory Reform, 1997 J. CORP. L. 535, 544-45

(32) Gloria Tierney, Toxic Chemicals Bond Old Foes, SIERRA, May/June 1986, at 24 (quoting Howard Samuel and generally discussing alliances between environmentalists and labor representatives in advocating Right to Know legislation).

(33) See John J. Fialka & Jackie Calmes, For Treaty’s Backer, Delay in U.S. Vote Could Help, WALL ST. J., DEC. 12, 1997, at A20 (describing support by environmentalists for global warming treaty and opposition by labor unions fearing loss of jobs and business leaders predicting serious economic consequences). For in-depth discussion of the facts and issues involved in the controversy, see Daniel B. Botkin, Global Warming: What It Is, What Is Controversial about It, and What We Might Do in Response to It, 9 UCLA J. ENVTL. L. & POLLY 119 (1991).

(34) In-depth discussion of the spotted owl controversy is beyond the scope of this article. For further discussion, see Elizabeth Furse, Timber, Owls: We All Must Change or No One Wins, USA TODAY, Mar. 30, 1993, at 9A

(35) Kevin Fagan, Opponents Trash Plan to Expand Altamont Landfill/Alameda Count Hearing on Dump Operator’s Plan, S.F. CHRON., Aug. 15, 1996, at A17.

(36) Jolie B. Solomon & Mark Russell, U.S. Chemical Disclosure Law Efforts Getting Boost from Tragedy in Bhopal, WALL ST. J., Dec. 14, 1984, at 22.

(37) See OSHA Hazard Communication, 29 C.F.R. [sections] 1910.1200 (1984) (effective Nov. 25, 1985).

(38) See Emergency Planning and Community Right-to-Know Act of 1986, Pub. L. No. 99 499, [subsections] 300-330, 100 Stat. 1613, 1728-58 (codified as amended at 42 U.S.C. [subsections] 11001-11050 (1988 & Supp. II 1990 & Supp. III 1991).

(39) SUSAN G. HADDEN, A CITIZEN’S RIGHT TO KNOW: RISK COMMUNICATION AND PUBLIC POLICY 15 (1989).

(40) For discussion of Worker Right to Know, see generally Frances L. Edwards, Worker Right-to-Know Laws: Ineffectiveness of Current Policy-Making and a Proposed Legislative Solution, 15 B. C. ENVTL. AFF. L. REV. 1 (1987). For discussion of Community Right to Know, see Eric M. Falkenberry, A Tool for Toxic Release Reduction in the 90’s, 3 BUFF. ENVTL. L.J. 1 (1995)

(41) Pollution Prevention Act of 1990, Pub. L. No. 101-508, [subsections] 6601-6610, 104 Stat. 1388 (codified at 42 U.S.C.A. [subsections] 1301-1309 (West Supp. 1991). For discussion of its provisions, see Stephen M. Johnson, From Reaction to Proaction: The 1990 Pollution Prevention Act, 17 COLUM. J. ENVTL. L. 153, 170-203 (1992).

(42) For discussion of pollution prevention measures and laws, see generally Frances H. Irwin, An Integrated Framework for Preventing Pollution and Protecting the Environment, 22 ENVTL. L. I (1991)

(43) For a description of Right to Act laws across the United States, see generally Paulette L. Stenzel, Right to Act: Advancing the Common Interests of Labor and Environmentalists, 57 ALB. L. REV. 1 (1993) [hereinafter Stenzel, Right to Act]

(44) Peter Dooley, an industrial hygienist with the United Auto Workers’ Health and Safety Department stated: “`[W]here Right-to-Know told us more about what was killing us, Right-to-Act would give us the power to act upon that knowledge.'” Tobey, supra note 43, at 29.

(45) See infra text accompanying notes 167-80 (discussing market and investor-driven factors that led to development of ISO 14000 standards).

(46) For discussion of the role of environmentalists with respect to development of the Side Agreement to NAFTA and the objectives environmentalists sought to achieve, see generally John H. Knox, Proceedings of the Canada-United States Law Institute Conference: NAFTA Revisited: NAFTA’s Environmental Provisions: What Problems Were They Intended to Address?, 23 Can.-U.S.L.J. 403 (1997)

(47) See DiMento & Doughman, supra note 29, at 676.

(48) Id.

(49) Id. at 678-79.

(50) For discussion of a letter signed by seven major environmental organizations promising to endorse NAFTA upon the condition that President Clinton negotiate a side agreement requiring arbitration to settle environmental disputes, see Bob Davis, Environmental Groups Will Back NAFTA If Arbitration of Disputes Is Permitted, WALL ST. J., May 4, 1993, at B6.

(51) Environmental Side Agreement, supra note 2. For discussion of the environmental effects of NAFTA, see generally Knox, supra note 46

(52) See infra text accompanying notes 73-74 (discussing CARE[R] Program).

(53) VOORHEES & WOELLNER, supra note 10, at 11.

(54) Id. at 12.

(55) Id. at 17.

(56) See infra text accompanying notes 60-61 (discussing the CERES Principles).

(57) VOORHEES & WOELLNER, supra note 10, at 20.

(58) Id. at 21. For a copy of the National Center for Preventive Law Corporate Compliance Principles, 1996, contact: NCPL, 1900 Olive St., Denver, CO. 80220, Phone: 303-871-6099.

(59) VOORHEES & WOELLNER, supra note 10, at 34.

(60) Id. at 13-18 (citing CERES Principles).

(61) Id. at 16.

(62) See generally Patricia D. Hartig, Sustainable Development: Principles toward Environmental Ethics in the Practice of Law, 76 MICH. BAR J. 700, 700-02 (1997).

(63) OUR COMMON FUTURE, supra note 1.

(64) VON ZHAREN, supra note 9, at 3.

(65) Johnathon Lash, Toward a Sustainable Future, NAT. RES. & ENVT., Spring 1997, at 83.

(66) See id. at 84

(67) General Agreement on Tariffs and Trade (GATT), Oct. 30, 1947, 61 Stat. A-3, T.I.A.S. 1700, 55 U.N.T.S. 187

(68) NAFTA, supra note 2

(69) See generally Mullett, supra note 31 (discussing various certification programs, the need for harmonization, and how the ISO 14000 standards may reduce some of the complications for companies doing business internationally).

(70) Stephen L. Kass, The Lawyer’s Role in Implementing ISO 14000, NAT. RES. & ENVT., Spring 1997, at 3, 4. See also, VON ZHAREN, supra note 9, at 32-33 (discussing the ELP program).

(71) For further discussion of the ELP, see infra text accompanying note 133.

(72) The XL program is part of the Clinton Administration’s Reinventing Environmental Regulation Program. See 60 Fed. Reg. 27,282 (1995).

(73) CHEMICAL MANUFACTURERS’ ASSOCIATION, RESPONSIBLE CAREr: A PUBLIC COMMITMENT (1993).

(74) For in-depth discussion and analysis of effectiveness of the CAREr Program, see Carol Young Swinehart, Responsible Care[R] and EPCRA: Chemical Manufacturers Association Members’ Michigan Facilities’ Voluntary Compliance with the Emergency Planning and Community Right-To-Know Act (1996) (unpublished M.S. thesis, Michigan State University) (on file with the Michigan State University Library)

(75) TIBOR & FELDMAN, supra note 15, at 22

(76) TIBOR & FELDMAN, supra note 15, at 22.

(77) See BRIAN ROTHERY, BS 7750: IMPLEMENTING THE ENVIRONMENT MANAGEMENT STANDARD AND THE EC ECO-MANAGEMENT SCHEME 11-12 (1993).

(78) VON ZHAREN, supra note 9, at 28-29.

(79) Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. REV. 1228, 1233 (1995).

(80) For further discussion of the EMAS program, see Paula C. Murray, The International Environmental Management Standard, ISO 14000: A Non-Tariff Barrier or a Step to an Emerging Global Environmental Policy? U. PA. J. INT’L ECON. L. 577, 585 (1997) [hereinafter Murray, ISO 14000: A Non-Tariff Barrier]

(81) Amy Zuckerman, Standards Proliferation Concerns U.S., Europe Firms: Management Systems Standards

(82) For in-depth discussion of the command and control paradigm and implementation of that approach, see Reiley, supra note 31, at 536-42.

(83) TIBOR & FELDMAN, supra note 15, at 19.

(84) For discussion of the weaknesses of command and control regulation in the areas of environmental protection and occupational safety and health, see Orts, supra note 79, at 1235-41, and Stenzel, TUR Legislation, supra note 42, at 724-26.

(85) Orts, supra note 79, at 1235.

(86) Id.

(87) Clean Air Act, 42 U.S.C. [subsections] 7401-7642 (1988 & Supp. V 1995).

(88) Clean Water Act, 33 U.S.C. [subsections] 1251-1387 (1988).

(89) Resource Conservation and Recovery Act, 42 U.S.C. [subsections] 6901-6992 (1988).

(90) The Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1983 & Supp. 1991).

(91) Toxic Substances Control Act, 15 U.S.C. [subsections] 2601-2629 (1994).

(92) Reiley, supra note 31, at 566.

(93) Id. at 561.

(94) TIBOR & FELDMAN, supra note 15, at 21.

(95) VON ZHAREN, supra note 9, at 15.

(96) David Bennett, Beware ISO, NEW SOLUTIONS, Spring 1997, at 37, 38.

(97) For discussion of this major reason for companies to seek ISO 14000 certification, see infra text accompanying notes 130-66.

(98) VOORHEES & WOELLNER, supra note 10, at 25.

(99) Often the costs are merited. For example, the EPA estimates that the cost of $523 billion results in health benefits to citizens totaling between $10.5 and $40.6 trillion U.S. dollars. Id.

(100) A detailed comparison of the two systems is beyond the scope of this article. For a table comparing the key elements of the two systems, see Michael A. Ross, The Value of Registration: ISO 9001 Compared to ISO 14001, 24 ASTM STANDARDIZATION NEWS 24 (1997).

(101) David R. Sasseville, Comparison of ISO 9000 and ISO 14000 for SMEs (available from the author at Environmental Management Practice, KPMG Peat Marwick, LLP, Boston, Mass

(102) ISO 9000 and ISO 14000 User Feedback (visited June 21, 1999) <http://www.iso.ch/9000e/feedback.htm>.

(103) VON ZHAREN, supra note 9, at 14.

(104) For more in-depth discussion of the contents of the ISO 9000 Quality Management series, see generally Lisa C. Thompson & William J. Thompson, The ISO 9000 Quality Standards: Will They Constitute a Technical Barrier to Free Trade under the NAFTA and the WTO?, 14 ARIZ. J. INT’L & COMP. L. 155 (1997).

(105) See supra text accompanying note 22 (describing three options for certification under ISO 9000 series).

(106) ZUCKERMAN, supra note 11, at 272-75.

(107) Id. at 275.

(108) ISO 14000 SERIES, supra note 3.

(109) Id. For discussion of the requirements for the policy statement, see VOORHEES & WOELLNER, supra note 10, at 33-34.

(110) VOORHEES & WOELLNER, supra note 10, at 33-34.

(111) Sasseville, supra note 101.

(112) See TIBOR & FELDMAN, supra note 15, at 51-66 (for further discussion of the five areas).

(113) ISO 14000 SERIES, supra note 3, ISO 14004, [subsections] 4.1-4.5.

(114) ISO 1400 SERIES, supra note 3, ISO 14010, 14011, 14012.

(115) ZUCKERMAN, supra note 11, at 274.

(116) See TIBOR & FELDMAN, supra note 15, at 162-66.

(117) ZUCKERMAN, supra note 11, at 274.

(118) VOORHEES & WOELLNER, supra note 10, at 7.

(119) Id. at 9.

(120) See Roht-Arriaza, Shifting the Point, supra note 75, at 512-15 (discussion of the draft labeling standards).

(121) Ahmad Husseini, Can We Talk? ISO, Compatibility and Canada Hot Topics of Conversation, BUS. STANDARDS, May/June 1999, at 28, 30. 122 VOORHEES & WOELLNER, supra note 10, at 7.

(123) Id. at 8.

(124) Roht-Arriaza, Developing Countries, supra note 80, at 602.

(125) Henrickson, supra note 23, at 1.

(126) Sasseville, supra note 101, at 1.

(127) ISO 14000 as Job 1 at Ford?, 1 J. BUS. STRATEGY 1 (1996).

(128) Sasseville, supra note 101, at 2.

(129) Discussion of the benefits and detriments of integrating ISO 9000 and ISO 14000 is beyond the scope in this paper. For further discussion, see id.

(130) See Michael A. Ross, The Value of Registration: ISO 9000 Compared to ISO 14001, 24 ASTM STANDARDIZATION NEWS 24, 27 (1997).

(131) See generally Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV. 1083 (1983) (general discussion and history of the privilege of self-critical analysis).

(132) See DiMento & Bertolini, supra note 27, at 124-25 (discussing concept of “green management”).

(133) See Environmental Leadership Program, 58 Fed. Reg. 4802 (1993)

(134) Reiley, supra note 31, at 562.

(135) Id.

(136) Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violation, 60 Fed. Reg. 66,706 (1995) [hereinafter Final Policy].

(137) See Voluntary Environmental Self-Policing and Self-Disclosure Interim Policy Statement, 60 Fed. Reg. 16,875 (1995) [hereinafter Interim Policy].

(138) Final Policy, supra note 136, at I E(1).

(139) See Nancy Kubasek et al., Mandatory Environmental Auditing: A Better Way to Secure Environmental Protection in the United States and Canada, 18 J. Land Resources & Envtl L. 261 (1998) (in-depth discussion of the Final Policy)

(140) See Interim Policy, supra note 137, at 16,185.

(141) See Kubasek et al., supra note 139, at 263-67 (in-depth discussion of the Interim Policy and Final Policy)

(142) Policy on Civil Penalties, 17 Envtl. L. Rep. (Envtl. L. Inst.) 35,083 (Feb. 16, 1984).

(143) James Kolka, ISO 14000 and Its Impact upon American Business: Some Emerging Legal Issues, 4-5 (Georgia Tech Center for Int’l Bus. Educ. and Res. Working Paper No. 97-023, 1997).

(144) Final Policy, supra note 136, at III B (1).

(145) Id. at IV.

(146) Kass, supra note 70, at 3.

(147) VON ZHAREN, supra note 9, at 122.

(148) Regulated entities may include business organizations, government bodies, or individuals.

(149) Linda Casey, DEP Finalizes Self-Assessment Policy, E. PENN. BUS. J., Oct. 21, 1996 <http:/www.lawinfo.com/law/ca/Envi . . . tailawarchives/headlines vln5.htm>.

(150) COLO. REV. STAT. [subsections] 13-25-126.5, 13-90-107(j)(I)(A), 25-1-114.5 (1997)

(151) N.J. STAT. ANN. 8 13:1D-125 (West Supp. 1999)

(152) ARK. CODE ANN. 88 8-1-301 to 8-1-312 (Michie 1996)

(153) Beard, supra note 141, at 3.

(154) Id. at 4.

(155) In-depth discussion is beyond the scope of this article. See generally id. (further discussion)

(156) “[G]enerally, green management may assist the firm in making more cooperative its relationships with public regulators independent of instrumental concern with specific proposed regulations or enforcement.” DiMento & Bertolini, supra note 27, at 148.

(157) Id. at 149.

(158) Id. at 150.

(159) Id. at 152.

(160) See id. at 148-54 (in-depth discussion and examples of interactions between environmentally proactive firms and regulatory agencies).

(161) The ISO Standard May Not Necessarily Protect Companies in Cases of Environmental Prosecutions, 2 CAL. MAG. 10-12 (Nov. 1996).

(162) See U.S. DEPARTMENT OF JUSTICE, FACTORS IN DECISIONS ON CRIMINAL PROSECUTIONS FOR ENVIRONMENTAL VIOLATIONS IN THE CONTEXT OF SIGNIFICANT COMPLIANCE OR DISCLOSURE EFFORTS BY THE VIOLATOR (July 1, 1991) (policy statement discussing factors to be used by government attorneys in deciding whether to prosecute criminally).

(163) See VON ZHAREN, supra note 9, at 123.

(164) See UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL, [sections] 3E1.1 (Nov. 1991)

(165) Reiley, supra note 31, at 546.

(166) Mullett, supra note 31, at 395.

(167) VOORHEES & WOELLNER, supra note 10, at 45.

(168) Takao Ogawa, ISO 14001 for Medium and Small Enterprises 12 (Georgia Tech Center for Int’l Bus. Educ. and Res. Working Paper No. 98-002, 1998).

(169) Freeman, supra note 4, at S3.

(170) Roht-Arriaza, Shifting the Point, supra note 75, at 500.

(171) VOORHEES & WOELLNER, supra note 10, at 45

(172) James Salzman, Informing the Green Consumer: The Debate over the Use and Abuse of Environmental Labels, 1 J. INDUS. ECOLOGY 19 (1997).

(173) Id.

(174) Phil Riebel, EMS & ISO, 98 PULP & PAPER CANADA 83 (1997).

(175) TIBOR & FELDMAN, supra note 15, at 7

(176) Ogawa, supra note 168, at 6 (“In Japan, where cleanliness is a virtue attributed to its people, such environmental consciousness as in these European countries is likely to prevail soon [sic] or later.”).

(177) Id. at 4.

(178) See Justin Pollard, A Benevolent Cycle (Jan. 1995) <http://leland.standord.edu/group/Thinker/v2/v2nl/pollard.html>.

(179) Harris, supra note 139, at 663.

(180) Id. at 682.

(181) Freeman, supra note 4, at 53

(182) Freeman, supra note 4, at S10.

(183) TIBOR & FELDMAN, supra note 15, at 21.

(184) Ogawa, supra note 168, at 5.

(185) ISO 14000: The Legal Advantages, 2 ISO 14000: NEWS AND VIEWS (Nov. 25, 1996) (newsletter published by the Law Offices of S. Wayne Rosenbaum, 3043 Harding Street, Carlsbad, CA 92008).

(186) Kolka, supra note 143, at 4-5.

(187) Ogawa, supra note 168, at 2.

(188) Christopher Sheldon, Waste Not, Want Not, BUS. STANDARDS, May/June 1999, at 8.

(189) Id.

(190) Ogawa, supra note 168, at 2.

(191) See supra notes 36-40 and accompanying text.

(192) Nicholas A. Robinson, Legal Structure and Sustainable Development: Comparative Environmental Law Perspectives on Legal Regimes for Sustainable Development, 3 WIDENER L. SYMP. J. 247, 270 (1998).

(193) Mullett, supra note 31, at 393. See also Murray, supra note 80, at 596 (estimating implementation costs ranging from $8,000 to $100,000 depending on the firm’s size and whether the firm already has obtained certification to one of the ISO 9000 series standards).

(194) VOORHEES & WOELLNER, supra note 10, at 52.

(195) Kass, supra note 70, at 4.

(196) Kolka, supra note 143, at 3.

(197) For further discussion see VON ZHAREN, supra note 9, at 107-26.

(198) See generally Harris, supra note 139.

(199) Id. at 684-89 (discussing the attorney-client privilege as applied to corporations in general and in the instance of an environmental audit).

(200) In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982).

(201) Harris, supra note 139, at 689-90 (discussing the work-product doctrine as applied to corporations in general and in the instance of an environmental audit).

(202) See VON ZHAREN, supra note 9, at 116-18.

(203) Harris, supra note 139, at 690-98

(204) See VON ZHAREN, supra note 9, at 109-20.

(205) See supra text accompanying notes 9-12 (discussing ANSI)

(206) See ZUCKERMAN, supra note 11, at 149-78 (discussing the European Standards System).

(207) Id. at 158-60.

(208) Id. at 160.

(209) Roht-Arriaza, Developing Countries, supra note 80, at 589.

(210) UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT – COMMODITIES DIVISION, ISO 14001: INTERNATIONAL ENVIRONMENTAL MANAGEMENT SYSTEMS STANDARD: DRAFT FOR COMMENTS 71-72 (1996) (available from the United Nations, Geneva, Switzerland) [hereinafter UNCTAD, ISO 14000].

(211) Id.

(212) See Mary Lynne Calkins, Make Friends First, Certify Later: China and ISO 14000, 9 GEO. INT’L L. REV. 609 (1997) (discussing China’s reasons for endorsing the ISO 14000 series standards and predictions on how the series will work in China).

(213) Meaghan M. Lynch, ISO Certification: Opening Doors to New Markets in Mexico, BUS. STANDARDS, May/June 1999, at 18.

(214) Murray, supra note 80, at 595.

(215) Id. at 579

(216) Roht-Arriaza, Developing Countries, supra note 80, at 598 (discussing disadvantages for small and medium size enterprises whether in developing countries or industrialized countries). Companies in developing countries “fear that a certification requirement will serve as a de facto permit for entrance into global markets, thereby barring companies who cannot afford the certification costs from international trade.” Murray, supra note 80, at 587.

(217) See UNCTAD, ISO 14000, supra note 210 (discussing issues confronting developing countries).

(218) VON ZHAREN, supra note 9, at 12.

(219) Clean Air Act, 42 U.S.C. [subsections] 7401-7642 (1988 & Supp. V 1995).

(220) Clean Water Act, 33 U.S.C. [subsections] 1251-1387 (1988).

(221) Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. [sections] 8 9601-9675 (1993 & Supp. 1991).

(222) Toxic Substance Control Act, 15 U.S.C. [subsections] 2601-2629 (1994).

(223) Kagan, supra note 30, at 727.

(224) Reiley, supra note 31, at 556.

(225) See supra text accompanying notes 31-59 (discussing influence of environmentalists with respect to development of environmental management programs).

(226) See supra text accompanying notes 46-51 (discussing influence of environmentalists and workers on NAFTA).

(227) See supra text accompanying notes 56, 60-61 (discussing CERES Principles).

(228) See supra text accompanying notes 32-35 (describing divergence among environmentalists).

(229) See VOORHEES & WOELLNER, supra note 10, at 33-34 (discussing the kinds of provisions a company may include in its policy statement).

(230) Id. at 69.

(231) See VOORHEES & WOELLNER, supra note 10, at 11-24 (discussing outside impacts on development of corporate environmental risk management standards).

(232) Reiley, supra note 31, at 556.

(233) Kagan, supra note 30, at 720.

(234) See supra text accompanying note 133 (discussing ELP program).

(235) See supra text accompanying notes 82-93 (discussing command and control and examples of its use in legislation adopted in the 1970s and 1980s).

(236) See notes 36-40 and accompanying text (discussing development of Worker and Community RTK and of TUR legislation).

(237) Roht-Arriaza, Developing Countries, supra note 80, at 588.

(238) See supra text accompanying notes 174-80 (discussing influences of consumers, workers, and investors on development and implementation of ISO 14000).

(239) Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820) in 7 WRITINGS OF THOMAS JEFFERSON 177, 179 (H. Washington ed. 1855), quoted in Natural Resources Defense Council v. United States Nuclear Regulatory Comm’n, 547 F.2d 633, 655 (D.C. Cir. 1976), rev’d, 435 U.S. 519 (1978).

(240) Pamela S. Evers, ISO 14000 and Environmental Protection, 67 MISS. L.J. 463, 505 (1997).

(241) See Kagan, supra note 30, at 726 (discussing how U.S. environmental laws “created rights for `private attorneys general’ to use the courts to prod potentially recalcitrant administrators to adhere to the statutory requirements”).

(242) David Bennett, supra note 96, at 37, 38.

(243) Roht-Arriaza, Developing Countries, supra note 80, at 593.

(244) Calkins, supra note 212, at 622

(245) See Murray, supra note 80

(246) Bennett, supra note 96, at 41.

(247) Murray, supra note 80, at 590.

(248) Miller, supra note 173, at 199.

(249) Calkins, supra note 212, at 621.

(250) Id.

(251) VON ZHAREN, supra note 9, at 128.

(252) Id.

(253) Id. at 93.

(254) ZUCKERMAN, supra note 11, at 49-50.

(255) Roht-Arriaza, Developing Countries, supra note 80, at 599.

(256) Reg Blake, What’s the Job of the CAC? Keeping Registrars in Check, Bus. STANDARDS, MAY/JUNE 1999, at 5.

(257) Id.

(258) ZUCKERMAN, supra note 11, at 270.

(259) VON ZHAREN, supra note 9, at 32-33.

(260) Roht-Arriaza, Developing Countries, supra note 80, at 605 (“In short, environmentalmanagement systems approaches are generally extraneous to regulatory systems and should be kept separate.”).

(261) See Bennett, supra note 96, at 41 (arguing that the ISO 14001 certification should remain voluntary and asserting that there is danger in referencing ISO standards within legislation because it is extremely difficult for governments to prosecute violators of policy standards such as those found in the ISO 14000 series).

(262) Roht-Arriaza, Developing Countries, supra note 80, at 607.

(263) Miller, supra note 173, at 304.

(264) See generally supra notes 167-73 and accompanying text (discussing “green procurement”).

(265) See supra text accompanying notes 117-18 (discussing ISO 14024).

(266) Miller, supra note 173, at 295.

(267) Montreal Protocol on Substances that Deplete the Ozone Layer (Composite Text of Protocol as Amended in London in June 1990, in Copenhagen in November 1992, and in Vienna in December 1995), 21 INT’L ENV’T REP. (BNA) 3151 (Sept. 1997) [hereinafter Montreal Protocol].

(268) See Miller, supra note 173, at 295-97 (discussing the Montreal Protocol and its success).

(269) See notes 46-51 and accompanying text (discussing NAFTA).

(270) See generally DANIEL C. ESTY, THE GREENING OF THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE (1994) (discussing the environmental issues at the Uruguay Round).

(271) See Miller, supra note 173, at 306-07.

(272) See supra text accompanying notes 209-16.

(273) See generally Robinson, supra note 192 (discussing how comparative analysis of environmental law can further the pursuit of sustainable development and recommendations on what is necessary for research in this area).

(274) Mullett, supra note 31, at 399.

(275) An exception could be a challenge related to the allegation that ISO 14001 certification requirements operate as a non-tariff barrier to trade. See supra notes 215-19 and accompanying text (discussing ISO 14001 as a non-tariff barrier to trade).

(276) See supra text accompanying note 241 (discussing democratic participation in the making and enforcement of U.S. environmental law).

(277) See supra text accompanying notes 52-60 (discussing activities of coalitions of environmentalists, workers, and others that influenced creation of the CERES Principles, the CMA’s CARE[R] Program, the ISO 14000 series standards, and other similar programs).

(278) Murray, supra note 80, at 584.

(279) Id. at 599.

(280) Id. at 608.

(281) See supra text accompanying notes 72, 133-35 (discussing XL and ELP programs and the Common Sense Initiative).

(282) See generally Kubasek et al., supra note 139 (favoring mandatory environmental auditing).

(283) Final Policy, supra note 136, at III. B (1).

(284) Supra note 240, at 511.

(285) See supra text accompanying notes 72, 133-35.

(286) Reiley, supra note 31, at 564.

(287) See CSI, Leadership Programs at EPA May Use ISO 14000 Management Standards, Official Says, 26 ENV’T REP. 257 (BNA) (May 26, 1995).

(288) Beard, supra note 141, at 37 (proposing that environmental auditing firms be licensed).

(289) Discussion of whether licensing should be on the national level or state level is beyond the scope of this article.

(290) Kolka, supra note 143, at 5.

(*) Professor of Business Law and Public Policy, Michigan State University. Copyright [C] 1999 Paulette L. Stenzel. I am grateful for the assistance of MSU’s Center for International Business Education and Research that provided partial funding for this research. I wish to thank Professor James Marshall, my friend and colleague, and Linica Suceava, my graduate assistant, for valuable assistance.