Redirecting self-regulation

Criticism of the effectiveness of both private law remedies and public regulation in dealing with contemporary environmental problems has led to the promotion of new legal approaches based on procedures and processes that encourage self-regulation by industries and other actors. The developments are based on a powerful underlying theory of reflexivity which holds that self-awareness, through management systems and other tools, can achieve more than the traditional machinery of external command. Auditing systems such as EMAS (Eco-Management and Audit Schemes) and voluntary agreements provide current examples in the United States and Europe. Such self-regulation initiatives have largely focussed on industrial pollution control and as a potential substitute for more conventional legal techniques. The developments are understandable, yet there are substantive arguments which suggest that this is a misconceived direction. Principles of public participation and the determination of public goals are largely inconsistent with the theoretical benefits of self-regulation. This does not imply rejection of self-regulation as a tool of environmental policy. Instead it would be preferable if it were redirected away from industrial pollution control towards other areas of society where there are pressing needs to reduce environmental harm and where to date little attention had been paid by environmental law. Promising prospective areas include the service industries, decisions of private property owners, and individuals acting in their private capacity.