Government, Governance Government, Governance and Lawyering in theand Lawyering in the

Great Lakes Environment Great Lakes Environment

Environmental Law 2Environmental Law 2

Spring 2006Spring 2006

What do lawyers do?What do lawyers do?

We manipulate state-We manipulate state-sanctioned coercive forcessanctioned coercive forces

Influence (trigger, Influence (trigger, resist, shape) the resist, shape) the application of application of coercive powers of coercive powers of the statethe state

Structure Structure transactions with transactions with regard to legal regard to legal consequences and consequences and enforceabilityenforceability

Traditional lawyering depends upon Traditional lawyering depends upon the Westphalian modelthe Westphalian model

To be legitimate, power (sovereignty) must be To be legitimate, power (sovereignty) must be located in the government of a nation-statelocated in the government of a nation-state

States can delegate or oversee private States can delegate or oversee private exercises of power, but are ultimately exercises of power, but are ultimately responsible for the use and consequences of responsible for the use and consequences of coercioncoercion

International law generally reflects the International law generally reflects the agreements of sovereign nation-statesagreements of sovereign nation-states

Power exercised outside this framework is Power exercised outside this framework is terrorism, or crimeterrorism, or crime

Today’s environmental problems Today’s environmental problems are often beyond the ability of any are often beyond the ability of any

single jurisdiction to resolvesingle jurisdiction to resolve

Where no government has sufficient Where no government has sufficient power, the focus shifts to power, the focus shifts to governancegovernance

Multiple jurisdictions and Multiple jurisdictions and agents/stakeholders come together agents/stakeholders come together to create arrangements for getting to create arrangements for getting things donethings done

““Post-sovereign” governance is:Post-sovereign” governance is:

Non-exclusiveNon-exclusive Non-hierarchicalNon-hierarchical Consensus-based, not imposedConsensus-based, not imposed Dispute resolution through exit or Dispute resolution through exit or

voice, not votingvoice, not voting Post-territorial (problem-driven, not Post-territorial (problem-driven, not

jurisdictionally defined)jurisdictionally defined)

Does such a system have any need Does such a system have any need for lawyers?for lawyers?

Do we have the right skill set, or Do we have the right skill set, or anything close to it?anything close to it?

Do we have the right mind set, or Do we have the right mind set, or anything close to it?anything close to it?

Are we going to become just another Are we going to become just another bunch of “facilitators” directing bunch of “facilitators” directing traffic?traffic?

What good lawyers can bring to the What good lawyers can bring to the tabletable

Notions of fair process and Notions of fair process and accountabilityaccountability

Managing complexity without losing Managing complexity without losing important detailimportant detail

Working in the shadow of lawWorking in the shadow of law Focus on worst-case analysisFocus on worst-case analysis Understanding the elusiveness of factUnderstanding the elusiveness of fact Interest-balancingInterest-balancing

Accountability in Collaborative Accountability in Collaborative GovernanceGovernance

Exit, voiceExit, voice Contractual deliverablesContractual deliverables TransparencyTransparency IndicatorsIndicators

What do indicators indicate?What do indicators indicate?

Strengths of nonprofits in Strengths of nonprofits in environmental governanceenvironmental governance

Low-cost service deliveryLow-cost service delivery Local knowledge (people, places, politics)Local knowledge (people, places, politics) ““Street Credibility” and commitment to Street Credibility” and commitment to

outreachoutreach Ability to mobilize volunteersAbility to mobilize volunteers (Some) ability to act politically(Some) ability to act politically Access to different funding sourcesAccess to different funding sources More nimble than government in changing More nimble than government in changing

priorities and policiespriorities and policies Easier to work across jurisdictional Easier to work across jurisdictional

boundariesboundaries

Weaknesses of nonprofits in Weaknesses of nonprofits in environmental governanceenvironmental governance

Lack of formal authorityLack of formal authority Difficulty of maintaining credibility in the Difficulty of maintaining credibility in the

middle ground---pragmatism v. ideological middle ground---pragmatism v. ideological puritypurity

Schizophrenia of grassroots vs. well Schizophrenia of grassroots vs. well connectedconnected

Lack of resources—especially cash flowLack of resources—especially cash flow Transaction costsTransaction costs Dependence on government, “biting the Dependence on government, “biting the

hand”hand”

Where to look for blame when Where to look for blame when things don’t work . . .things don’t work . . .