Environmental law has long been viewed as a public law field, with policymakers and practitioners conditioned to look to government for solutions to environmental problems, but private governance is playing an increasingly important role. Will private environmental governance become a mainstay of environmental law and policy, or is it another passing fad? This Article examines several issues that will determine the answer to this question. The Article concludes that although private environmental governance is not a substitute for public governance, it is a discrete field worthy of attention by policymakers, practitioners, and theorists.The article also opens with this historical reflection:
A common pattern in environmental law and policy is for a policymaker or academician to identify a concept, often based on an emerging trend, and to argue that it represents the future direction of the field. Examples over the last several decades include market mechanisms, pollution prevention, adaptive management, commonsense environmentalism, new governance, informational regulation, free market environmentalism, civic environmentalism, place-based environmentalism, sustainable development, and others. Some of these have become an important part of the theory and practice of environmental law and policy, but many have not. If we look back 20 years from now, will private environmental governance be as much a part of environmental law and policy as market mechanisms, or will it have faded into the woodwork?