Date: Oct 01, 2001
Companies in the EU increasingly appear to be embracing ISO-14000 certification (the
environmental branch of ISO). Companies in the US have, by and large, not done so. Why the
The answers can be found largely in differences between the legal regimes of the two
regions as well as the markets.
Implementing environmental management programs offers enormous benefits to companies.
In the US, however, businesses have not seen either the business necessity or the
regulatory benefits of ISO-14000 certification. The US has an elaborate series of federal,
state, and local laws and a long history of aggressive enforcement of environmental laws.
Stiff fines and even criminal penalties may be assessed. EPA enforcement authorities work
with the US Dept. of Justice to initiate suits, and federal authorities may cooperate with
State Attorneys General in certain enforcement actions involving state and federal issues.
The US legal environment is characterized by the unique opportunity to initiate
citizens' suits, including "bounty hunter" suits, such as those authorized under
California's Proposition 65. This allows environmental advocacy groups and plaintiffs'
attorneys to directly initiate suits. In addition, given a legal environment in which
contingency fee suits are authorized and liberal discovery rules are the norm, plaintiffs'
lawyers have found creative theories on which to pursue instances of pollution or other
acts allegedly harmful to the environment under tort law.
In short, the legal regime in the US is one in which companies, both large and small,
face potential liability for violations of environmental laws. Thus, concepts of
environmental management, including using environmental management techniques to further
regulatory compliance obligations, took hold in the US many years ago.
In contrast, the legal regime in the EU is based largely on a code system. The EU lacks
centralized enforcement authority and is much less reliant on private litigation than the
US Codes, so certification requirements become more attractive in that legal environment.
Some nations require ISO-14000 certification, and the EU has adopted the Eco-Management
and Audit Scheme (EMAS). In a sense, auditors take on a regulatory compliance role in the
EU much different than in the US.
Another seminal difference between the US and EU relates to the heavy reliance in the
US on "right to know" provisions of key environmental statutes. A vast array of
information on environmental activities and emissions, for example, generally is publicly
available in the US. This often occurs through mandatory reporting requirements or through
mandatory permit applications. Through a perusal of publicly filed reports, or through
Freedom of Information Act requests, non-governmental organizations, plaintiffs' lawyers,
and competitors can access an array of permits, reports, and records on environmental
The media plays an important role as well. Environmental and consumer groups review TRI
information, issuing press releases and reports targeting companies with top emissions.
The media pressure, in turn, creates incentives to further reduce emissions. Public
disclosure obligations of ISO-14000 become a mechanism to obtain transparency about
environmental activities in the absence of mandatory legal requirements.
Many US businesses experienced in conducting environmental management and compliance
audits criticize moves to mandate adherence to ISO-14000 (particularly third-party
certification requirements) as unnecessarily costly and duplicative of our detailed legal
Most, however, recognize that while mandatory third-party certification may be
unnecessary, environmental management initiatives can prove to be vital tools in handling
environmental obligations, regardless of where a firm is located.
Reproduced with the permission of Paper, Film & Foil
CONVERTER magazine (312.726.2802). Copyright © 2001 by Intertec Publishing. All
For further information about this article, please contact Sheila A. Millar at 202-434-4143 or by e-mail at firstname.lastname@example.org.