Download Government and Governance in the Great Lakes Environment

Government, Governance
and Lawyering in the
Great Lakes Environment
Environmental Law 2
Spring 2006
What do lawyers do?
We manipulate state-sanctioned
coercive forces
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Influence (trigger,
resist, shape) the
application of coercive
powers of the state
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Structure transactions
with regard to legal
consequences and
enforceability
Traditional lawyering depends upon
the Westphalian model
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To be legitimate, power (sovereignty) must be
located in the government of a nation-state
States can delegate or oversee private exercises
of power, but are ultimately responsible for the
use and consequences of coercion
International law generally reflects the
agreements of sovereign nation-states
Power exercised outside this framework is
terrorism, or crime
Today’s environmental problems
are often beyond the ability of any
single jurisdiction to resolve
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Where no government has sufficient
power, the focus shifts to governance
Multiple jurisdictions and
agents/stakeholders come together to
create arrangements for getting things
done
“Post-sovereign” governance is:
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Non-exclusive
Non-hierarchical
Consensus-based, not imposed
Dispute resolution through exit or voice,
not voting
Post-territorial (problem-driven, not
jurisdictionally defined)
Does such a system have any
need for lawyers?
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Do we have the right skill set, or anything
close to it?
Do we have the right mind set, or
anything close to it?
Are we going to become just another
bunch of “facilitators” directing traffic?
What good lawyers can bring to the
table
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Notions of fair process and accountability
Managing complexity without losing
important detail
Working in the shadow of law
Focus on worst-case analysis
Understanding the elusiveness of fact
Interest-balancing
Accountability in Collaborative
Governance
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Exit, voice
Contractual deliverables
Transparency
Indicators
What do indicators indicate?
Strengths of nonprofits in
environmental governance
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Low-cost service delivery
Local knowledge (people, places, politics)
“Street Credibility” and commitment to outreach
Ability to mobilize volunteers
(Some) ability to act politically
Access to different funding sources
More nimble than government in changing
priorities and policies
Easier to work across jurisdictional boundaries
Weaknesses of nonprofits in
environmental governance
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Lack of formal authority
Difficulty of maintaining credibility in the middle
ground---pragmatism v. ideological purity
Schizophrenia of grassroots vs. well connected
Lack of resources—especially cash flow
Transaction costs
Dependence on government, “biting the hand”
Where to look for blame when
things don’t work . . .