The European Journal of International Law Vol. 27 no. 1
© The Author, 2016. Published by Oxford University Press on behalf of EJIL Ltd.
All rights reserved. For Permissions, please email: [email protected]
Trade and Bioenergy: Explaining
and Assessing the Regime
Complex for Sustainable
Bioenergy
Yoshiko Naiki*
Abstract
We have recently observed the phenomenon of fragmented governance that comprises multiple coexisting regimes without the establishment of a single comprehensive agreement.
The regulation of production, trade and the use of bioenergy is one such example. This
article addresses multiple regimes for sustainable bioenergy that exist at the international,
European Union and private levels. The arguments in this article draw mainly on the recent
theory of ‘regime complexes’, focusing on the relationships between multiple coexisting
regimes. The article discusses why a regime complex has emerged in the sustainable bioenergy domain and explains the features and consequences of the sustainable bioenergy regime
complex. It concludes that this regime complex is generally functioning well and also proposes the ways in which it can be improved with a view to greater effectiveness and better
governance.
1 Introduction: Trade, Bioenergy and Regimes
Creating an international governance system has become increasingly complicated. It
is more and more difficult for universal systems to emerge around any particular issue
because the relevant actors and their interests are diversified and the issues being
addressed have multiple dimensions. Accordingly, we observe the phenomena of fragmented governance with multiple coexisting regimes. The regulation of production,
trade and the use of bioenergy is one such example. The term ‘bioenergy’ refers to
‘energy derived from the conversion of biomass where biomass may be used directly
* Associate Professor, Osaka School of International Public Policy, Osaka University, Osaka, Japan.
Email: [email protected]. This research has been supported by the JSPS KAKENHI (Grant
no. 26380059). I wish to express my sincere thanks to those who generously accepted my requests for
interviews. Also I am grateful to Joanne Scott, Jolene Lin, Gregory Shaffer and two anonymous referees
for their insightful comments and advice. All errors are mine alone.
EJIL (2016), Vol. 27 No. 1, 129–159
doi:10.1093/ejil/chw004
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as fuel, or processed into liquids and gases’.1 Solid biomass has traditionally been used
as cooking and heating fuel in rural areas, and in today’s era of climate change, transportation biofuels are a major focus of the public discourse around energy. The term
‘biofuels’ refers to ‘liquid or gaseous fuel for transport produced from biomass’.2
Currently, there exists a wide range of bioenergy regimes, at multiple levels and
involving various actors. This article addresses bioenergy, but it is also a story about
private standard setting beyond bioenergy. One key feature of the multiple regulatory frameworks in bioenergy is the proliferation of private standards/certification
schemes for sustainable bioenergy developed by non-governmental organizations
(NGOs), business/producers associations and corporations/retailers. The growth of
private schemes has been recognized beyond the domain of bioenergy – well-known
examples are Fairtrade International, GLOBALG.A.P., the Forest Stewardship Council
and retailer brands such as Tesco or Carrefour.
As will be discussed in detail below, concerns have been raised that private standards
may become barriers to agricultural trade and that there are intense debates on how the
World Trade Organization (WTO) – in particular, the WTO’s Sanitary and Phytosanitary
Agreement (SPS Agreement) – can cope with such issues.3 Although concerns have been
raised over the trade barrier functions played by private standards in the agri-food sector,
simultaneously, some positive aspects of private standards have recently received attention. In contrast to states and international organizations, private standard-setting actors
(commonly referred to as ‘private regimes’ and ‘private authority’) ‘have flexible forms and
mandates, allowing founders to experiment with organizational features and adjust them to
evolving conditions’.4 With such flexible and experimental features, private standard-setting
actors are more responsive towards solving a problem, such as sustainability concerns, with
opportunities for various stakeholders’ participation.5 Thus, the function of private standards has two dimensions: one as a trade barrier and the other as a sustainability uptake.6
International Energy Agency (IEA), Technology Roadmap: Bioenergy for Heat and Power (2012), at
8. ‘Biomass’ includes ‘[a]ny organic, i.e., decomposing, matter derived from plants or animals available on
a renewable basis. Biomass includes wood and agricultural crops, herbaceous and woody energy crops,
municipal organic wastes as well as manure.’ Ibid.
2
Commission Directive 2009/28 (RED) OJ 2009 L 140/16 (as amended by Commission Directive
2015/1513 OJ 2015 L 239/1), Art. 2(i). This is a common definition, also used by the IEA, which states
that ‘the term biofuel refers to liquid and gaseous fuels produced from biomass’. IEA, Technology Roadmap:
Biofuels for Transport (2011), at 8.
3
Agreement of the Application of Sanitary and Phytosanitary Measures 1993, 1867 UNTS 493. See J. Scott,
The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (2007), at 305–306; Prevost,
‘Private Sector Food-Safety Standards and the SPS Agreement: Challenges and Possibilities’, 33 South African
Yearbook of International Law (2008) 1; Epps, ‘Demanding Perfection: Private Food Standards and the SPS
Agreement’, in M. Lewis and S. Frankel (eds), International Economic Law and National Autonomy (2010) 73.
4
Abbott et al., Organizational Ecology and Institutional Change in Global Governance, 9 March 2015, at
21, available at http://ssrn.com/abstract=2293678 (last visited 24 February 2016).
5
Abbott, ‘Engaging the Public and the Private in Global Sustainability Governance’, 88 International
Affairs (2012) 543, at 558–559.
6
Organisation for Economic Co-operation and Development, Working Party on Agricultural Policies and
Market, Final Report on Private Standards and the Shaping of the Agro-Food System, Doc. AGR/CA/
APM(2006)9/FINAL (2006), at 6: ‘[P]rivate voluntary standards schemes can contribute to improving
1
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131
By way of background, it is useful to explain the sustainability rationale supporting
bioenergy. The use of bioenergy – in particular, biofuels for transport – is generally
promoted for two purposes: solving the problem of energy supply security (thereby,
reducing the dependence on fossil energy imports) and mitigating climate change by
reducing greenhouse gas (GHG) emissions. However, promoting bioenergy or biofuels
has its own sustainability concerns, mainly because bioenergy and biofuel are produced using feedstock that comprises plant material or organic wastes. Major feedstocks used for biofuels include, for instance, sugar cane in Brazil, rapeseed in the
European Union (EU), corn in the USA and oil palm in Indonesia/Malaysia. However,
GHG emission savings compared to conventional fuels differ, depending on the particular feedstock used.7 For instance, bioethanol produced from sugar cane can reduce
more GHG emissions than bioethanol produced from corn. Thus, we must observe the
entire flow (life cycle) of bioenergy/biofuels – from the production of raw materials,
processing, transportation and the distribution of fuels to its practical application.
Bioenergy production may pose other problems too. One serious concern is the socalled ‘food versus fuel debate’ that disputes whether the increase in the production
and use of bioenergy/biofuels from some crops may increase the prices of food.8 Other
problems include the fact that the increasing demand for land that sustains plant feedstock used in bioenergy production may adversely affect biodiversity; the increasing
demand for land for commercial agriculture may lead to a violation of land-use rights;
the production of raw materials and refining process may degrade soil, water and air
quality; and the expansion of agricultural businesses may negatively affect the socioeconomic conditions of plantation workers. These environmental, economic and
social sustainability issues are heightened when a country imports bioenergy, since it
is more difficult to ensure sustainable production processes when they occur outside
a country’s borders. Regardless, international trade in bioenergy is likely to increase
since the market has extensive room for growth.9
In the context described above, this article addresses the fragmented governance
system for sustainable bioenergy. It analyses why the governance of bioenergy is
fragmented at different levels (international, regional and private) and how the multiple coexisting regimes relate to each other. The arguments presented in this article
are drawn mainly from the recent theory of ‘regime complexes’, focusing on the
food system efficiency so as to deliver and ensure specific product and process attributes at reasonable cost
to consumers. Nevertheless, these standards may also be exclusionary for certain producers.’
7
Food and Agriculture Organization (FAO), Biofuels and the Sustainable Challenge: A Global Assessment of
Sustainability Issues, Trends and Policies for Biofuels and Related Feedstocks (2013), at 2, 66.
8
However, the rise in the food prices is not exclusively caused by the increase in bioenergy/biofuel production. The factors affecting food prices are more complex, as revealed by the vast amount of literature on
this issue. For instance, see Escobar et al., ‘Biofuels: Environment, Technology, and Food Security’, 13
Renewable and Sustainable Energy Review (2009) 1275; Schmidhuber, Biofuels: An Emerging Threat to
Europe’s Food Security? Impact of an Increased Biomass Use on Agricultural Markets, Prices and Food
Security: A Longer-Term Perspective, Policy Paper 17/05/2007 (2007); Babcock, The Impact of US
Biofuel Policies on Agricultural Price Levels and Volatility, International Centre for Trade and Sustainable
Development, Issue Paper 35 (2011).
9
IEA, supra note 1, at 29.
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EJIL 27 (2016), 129–159
relationships between multiple coexisting regimes. In political science and international relations, ‘regimes’ are defined as ‘sets of implicit or explicit principles, norms,
rules, and decision-making procedures’.10 This definition includes both binding and
non-binding agreements and is thereby suitable for the case of sustainable bioenergy.
Although the concept of regimes was developed in the 1980s, the consequences of
regime complexes attracted scholars’ attention only about a decade ago. The research
interests in regime complexes also resonate with the recent discussion over ‘regime
interaction in international law’ among international lawyers.11
The rest of this article proceeds as follows. The second section reviews developments in the literature on regime complexes. The focus of regime complex research
has gradually changed; the most recent literature emphasizes productive interactions between coexisting regimes and suggests positive consequences from the
regime complexes. The third and fourth sections take up the specific case of sustainable bioenergy and biofuels. The third section describes the evolution of multiple
sustainability regimes in bioenergy, particularly focusing on the three most relevant
ones: an international governmental regime, a regional regime (the EU’s initiative)
and private certification regimes. The fourth section analyses the operation of the
regime complex in the sustainable bioenergy domain. The fifth discusses ways in
which the operation of the current regime complex can be improved, applying the
theoretical framework presented in the second section. The final section presents the
conclusion.
2 Recent Developments in the Literature on Regime
Complexes
Climate change is a well-studied case of regime complexes involving numerous
regimes and a wide variation in regime types.12 Although the case of climate change
experienced initial regulatory attempts through an integrated regime at the international level – the United Nations Framework Convention on Climate Change (UNFCCC)
and the Kyoto Protocol – no such core umbrella regime exists for sustainable bio­
energy.13 Rather, the bioenergy domain has been fragmented from the beginning and
remains that way. There is a large difference between climate change and sustainable
Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, in S. Krasner
(ed.), International Regimes (1983) 1, at 2.
11
M.A. Young (ed.), Regime Interaction in International Law: Facing Fragmentation (2012). For other possible
explanations for the fragmented governance, see Overdevest and Zeitlin, ‘Assembling an Experimentalist
Regime: Transnational Governance Interactions in the Forest Sector’, 8 Regulation and Governance
(2014) 22; De Búrca et al., ‘New Modes of Pluralist Global Governance’, 45 New York University Journal
of International Law and Politics (2013) 723; Eberlein et al., ‘Transnational Business Governance
Interactions: Conceptualization and Framework for Analysis’, 8 Regulation and Governance (2014) 1.
12
One research study presented 60 initiatives and regimes engaging in climate change. See Bulkeley et al.,
‘Governing Climate Change Transnationally: Assessing the Evidence from a Database of Sixty Initiatives’,
30 Environment and Planning C: Government and Policy (EPCGP) (2012) 591.
13
United Nations Framework Convention on Climate Change 1992, 1771 UNTS 107; Kyoto Protocol
1997, 37 ILM 22.
10
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133
bioenergy. Analysing the regime complex for sustainable bioenergy, this article will
provide an important contribution to the empirical work on point.
Kal Raustiala and David Victor’s 2004 work is one of the pioneer studies on regime
complexes. Raustiala and Victor define the concept of a regime complex as ‘an array
of partially overlapping and nonhierarchical institutions governing a particular issuearea’.14 Their work investigates the domain of plant genetic resources, which has five
elemental regimes that ‘overlap in scope, subject, and time; events in one affect those
in others’.15 They point out that ‘[t]he rules in these elemental regimes functionally
overlap, yet there is no agreed upon hierarchy for resolving conflicts between rules’.16
Thus, the purpose of their research was to examine the interactions between these
regimes and ascertain whether the interactions create supportive/complementary or
conflicting rules.
While Raustiala and Victor’s work assumes some inconsistencies between regimes
‘[w]ith conflicting interests as well as divergent rules’, the regimes might be simply
interconnected without conflicts.17 Recently, the concept of a regime complex has
been defined more loosely. Robert Keohane and Victor’s 2011 work explains that
‘[r]egime complexes are marked by connections between the specific and relatively
narrow regimes but the absence of an overall architecture or hierarchy that structures the whole set’.18 In other words, under a regime complex situation, regimes
‘need not be overlapping, so long as they are loosely connected’.19 This article follows
this definition of a regime complex.
Furthermore, the recent concept of a regime complex highlights the role of the various actors involved in multiple coexisting regimes. While Raustiala and Victor did not
necessarily limit regimes to inter-state institutions, they did not explore the role of
NGOs or private business institutions.20 In a more recent study, Kenneth Abbott uses
the term ‘transnational regime complex’ and defines it as ‘the roles played by actors
from three major categories – states, firm, and civil society organization’.21 Abbott’s
explicit inclusion of non-state actors broadened the scope of the research and allowed
Raustiala and Victor, ‘The Regime Complex for Plant Genetic Resources’, 58 International Organization
(2004) 277, at 279.
15
Ibid.
16
Ibid.
17
Ibid., at 297. See also Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International
Intellectual Property Lawmaking’, 29 Yale Journal of International Law (2004) 1, at 9: ‘[S]tates and nonstate actors attempt to reshape a regime’s constituent principles, norms, and rules by shifting from one
discrete regime to another.’
18
Keohane and Victor, ‘The Regime Complex for Climate Change’, 9 Perspectives on Politics (2011) 7, at 8.
19
Abbott, ‘The Transnational Regime Complex for Climate Change’, 30 EPCGP (2012) 571, at 583. See
also Abbott, ‘Strengthening the Transnational Regime Complex for Climate Change’, 3 Transnational
Environmental Law (2014) 57, at 65: ‘A broader understanding of regime complexes views them as
assemblages of institutions that are “loosely coupled” but lack an overarching architecture.’
20
In the case of plant genetic resources examined by Raustiala and Victor’s work, one of the five regimes
was a non-state institution, a global partnership of research organizations called the Consultative Group
on International Agricultural Research.
21
Abbott, ‘Transnational Regime Complex’, supra note 19, at 574; Abbott, ‘Strengthening’, supra note 19,
at 65.
14
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for a more dynamic perspective regarding regime complexes. The role of non-state
actors is especially relevant to the current regime situation for sustainable bioenergy,
wherein private certification schemes have been emerging in business and trade.
Another development in the recent literature on regime complexes involves a search for
positive effects of a regime complex, in contrast to earlier works that were particularly concerned with causes and negative effects of regime complexes. Recent research seeks to identify and understand the positive consequences from regime complexes: whether ‘regime
complexes have some distinctive advantages over integrated, comprehensive regimes’22
or whether ‘decentralization offers important advantages that would be sacrificed by tight
integration’.23 For instance, it has been argued that the regime complex for climate change
has produced the benefits of ‘flexibility across issues’ and ‘adaptability over time’.24
In this vein, Keohane and Victor offer six evaluative criteria to assess regime complexes normatively and identify how to improve their current functioning: (1) ‘coherence’ among regimes in the sense of being compatible and mutually reinforcing; (2)
‘accountability’ to relevant audiences; (3) ‘determinacy’ of rules in order to enhance
compliance and reduce uncertainty; (4) ‘sustainability’ in the sense of being durable;
(5) ‘epistemic quality’ in rules and (6) ‘fairness’ in the sense that ‘[institutions] should
provide benefits widely, and not discriminate against states’.25
Based on the aforementioned theoretical foundation, the next section begins by
identifying three elemental regimes26 that have engaged in setting sustainability criteria, standards or indicators for bioenergy/biofuels at different levels: an international
regime, a regional regime (the EU) and various private certification regimes. The reality of the regime situation is more complicated if regimes engaged in other functions
(such as research and knowledge exchange) are included. However, this article confines its scope to regimes engaged in standard-setting activities.27
In this regard, numerous states have established biofuel policies and laws. Existing
studies have compared the sustainable biofuel policies of the three major producers
(the EU, the USA28 and Brazil29). There are other states that have established legal
frameworks to deal with sustainable biofuels (for example, Japan, which does not
24
25
26
27
Keohane and Victor, supra note 18, at 19.
Abbott, ‘Strengthening’, supra note 19, at 72.
Keohane and Victor, supra note 18, at 15.
Ibid., at 16–17.
The term ‘elemental regimes’ is drawn from the article by Raustiala and Victor, supra note 14, at 279.
Even with a focus of standard-setting activities, the reality of the regime complex for sustainable bioenergy is more complicated than what is presented by this article. For other initiatives that are not addressed
in this article, see the figure of IEA Bioenergy, Task 1: Examining Sustainability Certification of Bioenergy
(2013), at 35.
28
For a discussion of regulating biofuels in the USA, see Endres, ‘Agriculture at a Crossroads: Energy
Biomass Standards and a New Sustainability Paradigm?’, 2011(2) University of Illinois Law Review
(2011) 503.
29
For a biofuel regulation in Brazil, see Zezza, Sustainability Certification in the Biofuel Sector: A Case
Study of Brazilian Ethanol, Belfer Center for Science and International Affairs and Sustainability Science
Program, Discussion Paper 2013–03, Harvard University (2013); Cassuto and Gueiros, ‘The Evolution of
the Brazilian Regulation of Ethanol and Possible Lessons for the United States’, 30 Wisconsin International
Law Journal (2013) 477.
22
23
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produce biofuels but does import them). However, this article does not examine individual state’s policies and laws regarding sustainable biofuels/bioenergy. Currently,
national policies/laws are diversified, and even among the three major producers
(the EU, the USA and Brazil) it has been indicated that ‘large gaps remain in existing
institutional and technological agro-environmental knowledge’.30 This is one consequence of the lack of a central international regime in this domain.
Instead of looking at national policies and practices, this article focuses on the EU’s
sustainability criteria because ‘the EU’s policy is laudable given that no other states
or regional bloc has introduced similar sustainability standards’.31 In addition, it has
been suggested that other states should ‘learn experiences’ from the EU.32 Indeed, as
discussed below, the EU is playing a focal role in the regime complex. Hence, while this
article acknowledges that the reality of the regime situation is more complicated if different national regimes are included, it views that the performance and operation of the
current regime complex, comprising three elemental regimes, will have implications
for the future development of individual national policies on sustainable bioenergy.
3 Evolution of Sustainability Standard Setting and Three
Elemental Regimes
A Regional Regime: The Sustainability Criteria under the EU
Renewable Energy Directive
The EU was the first governing body to introduce a biofuels policy, and its current
regulatory framework is the most stringent and well known in the world. Although
previous studies have addressed the EU’s sustainable biofuel regime, it is helpful to
summarize its key features here. In 2003, the EU adopted its first two directives on
biofuels.33 At that time, the main purpose of these directives was to promote the use
of biofuels by setting non-binding targets and reducing taxes on biofuels. However, it
was argued that ‘further legal measures were needed’ in the form of binding targets
and sustainability criteria.34 Individual EU member states began to respond to this
need: the United Kingdom’s (UK) renewable transport fuels obligation (RTFO) order,
the Netherlands’ ‘Cramer criteria’ and Germany’s biofuels sustainability ordinance35
Endres, ‘Legitimacy, Innovation, and Harmonization: Precursors to Operationalizing Biofuels
Sustainability Standards’, 37 Southern Illinois University Law Journal (2012) 1, at 4.
31
Lin, ‘Governing Biofuels: A Principal-Agent Analysis of the European Union Biofuels Certification Regime
and the Clean Development Mechanism’, 24 Journal of Environmental Law (JEL) (2012) 43, at 53.
32
Endres, ‘Clearing the Air: The Meta-Standard Approach to Ensuring Biofuels Environmental and Social
Sustainability,’ 28 Virginia Environmental Law Journal (2010) 73, at 77.
33
Commission Directive 2003/30 OJ 2003 L 123/42; Commission Directive 2003/96 OJ 2003 L 283/51.
34
Del Guayo, ‘Biofuels: EU Law and Policy’, in D. Zillman et al. (eds), Beyond the Carbon Economy: Energy Law
in Transition (2008) 274.
35
Renewable Transport Fuel Obligations Order 2007, SI 2007/3072; Cramer et al., Testing Framework for
Sustainable Biomass: Final Report from the Project Group ‘Sustainable Production of Biomass’ (2007), available at http://www.lowcvp.org.uk/assets/reports/%20070427-Cramer-FinalReport_EN.pdf (last visited
24 February 2016); Verordnung über Anforderungen an eine nachhaltige Erzeugung von Biomasse zur
Verwendung als Biokraftstoff (Biomasse-Nachhaltigkeitsverordnung – BioNachV), Kabinettsbeschluss vom 5,
Dez 2007 (nicht im BGBl veröffentlicht).
30
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were well-known initiatives before the adoption of the EU-level regulation.36 Among
them, it has been acknowledged that the UK’s RTFO played an important role in the
development of European biofuel policies. For the purpose of this article, it should be
noted that the RTFO introduced the use of the private certification scheme of verification in companies’ sustainability reporting.37 Significantly, this approach influenced
the EU-level regulation, as will be highlighted below.
At the EU level, the EU Renewable Energy Directive (RED) was adopted in 2009,38
and then amended in 2015.39 The RED addresses biofuels for transportation and
bioliquids for other purposes but not solid biomass (sourced from wood pellets and
chips). This subsection focuses on the regulatory regime of transportation biofuels
under the RED, whereas the discussions and framework on sustainable solid biomass
are not addressed.40 The RED establishes national targets for each EU member state.
Furthermore, it requires that each member state ensure a 10 per cent share for renewable energy in the transport sector in order to promote the use of biofuels by 2020.41
Simultaneously, the RED establishes three mandatory sustainability criteria.
The first criterion is concerned with GHG emission savings from the use of bio­fuels.
It requires that GHG emissions be reduced by at least 60 per cent for installations producing biofuels that start operation after 5 October 2015 (as for installations that were
in operation on or before 5 October 2015, GHG emissions should be cut by at least 35
per cent, which increases to 50 per cent from 1 January 2018).42 The second criterion
focuses on GHG emissions related to changes in land use.43 It stipulates that biofuels
should not be made from raw materials obtained from land with high carbon stock,
such as wetlands, forested areas or peatlands. The third criterion is concerned with the
protection of biodiversity, providing that biofuels should not be made from raw materials obtained from land with high biodiversity, such as primary forests, wooded lands or
highly biodiverse grasslands.44
These sustainability criteria apply to both EU-produced biofuels and imported biofuels. Biofuels that do not comply with the sustainability criteria can also be placed
See Van Dam et al., ‘Overview of Recent Developments in Sustainable Biomass Certification’, 32 Biomass
and Bioenergy (2008) 749, at 752–756; Van Stappen et al., ‘Direct and Indirect Land Use Changes Issues
in European Sustainability Initiatives: State-of-the-Art, Open Issues and Future Developments’, 35
Biomass and Bioenergy (2011) 4824, at 4827–4828.
37
Richardson, ‘The Governance of Primary Commodities: Biofuel Certification in the European Union’, in
A. Payne et al. (eds), Handbook of the International Political Economy of Governance (2014) 201, at 209–
211. See also Endres, supra note 32, at 80–81.
38
Commission Directive 2009/28 (RED) OJ 2009 L 140/16.
39
Commission Directive 2015/1513 amending Directive 98/70/EC and RED, OJ 2015 L 239/1. A consolidated version of the RED is available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02
009L0028-20151005 (last visited 29 January 2016).
40
For recent discussions and actions on sustainability criteria for solid biomass in Europe, see BIOGRACE
II Reports of the Policy Maker Workshop on 19 March 2014 and 6 March 2015, available at http://
biograce.net/app/webroot/biograce2/content/workshops/policymakersworkshops (last visited 24
February 2016).
41
Consolidated version of the RED, supra note 39, Art. 3(4).
42
Ibid., Art. 17(2).
43
Ibid., Arts 17(4), (5).
44
Ibid., Art. 17(3).
36
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on the EU market. However, only biofuel energy that meets the RED criteria can be
counted towards meeting the mandatory national targets or can receive financial support available to promote the use of biofuels.45
Beyond these mandatory criteria for economic operators, the RED establishes several reporting obligations for the European Commission.46 The reporting must cover
how the EU’s biofuel policy affects labour rights, food prices and respect for land-use
rights in EU member states as well as in the non-EU countries where raw materials for
biofuels are produced.
Finally, the RED also addresses an issue known as indirect land-use change (ILUC).
ILUC occurs when the increase in demand for raw materials for biofuels causes agricultural land to be converted from food purposes to biofuel-related activity, leading
to the conversion of non-agricultural land (for example, forests) for food purposes.
Consequently, ‘[t]hrough this route, the extra biofuel demand can lead indirectly to
land-use change, from which the term indirect land-use change is derived’.47
To lower ILUC risks was a major focus of amending the RED.48 One controversial issue
involves setting a maximum limit (within the overall 10 per cent target of the RED) for biofuels produced from food crops such as cereals, sugars and oilseeds. The capping is intended
to reduce the demand for agricultural land and promote the biofuel production from nonfood sources (the so-called ‘second generation and advanced biofuels’). However, such a
capping will affect the production and business transaction of biofuels from food crops.
Consequently, there have been intense debates among EU member states regarding the
level of limitation. The amended RED introduced a new rule of a 7 per cent limit.49
Even though the substantive criteria provided in the RED are important, this
article focuses more on the verification system of economic operators’ compliance
with the sustainability criteria. Among three verification options established by the
RED,50 the use of private certification schemes is the most important.51 The European
Ibid., Art. 17(1). Thus, producers and exporters of biofuels outside the EU are compelled to comply with
the RED’s sustainability criteria in order to increase their chances of accessing the EU market. On this
point, some scholars have already examined the question of whether the EU’s sustainable biofuel criteria
are consistent with World Trade Organization (WTO) law. See Lydgate, ‘The EU, the WTO and Indirect
Land-Use Change’, 47 Journal of World Trade (2013) 159; Switzer and McMahon, ‘EU Biofuels PolicyRaising the Question of WTO Compatibility’, 60 International Comparative Law Quarterly (2011) 713.
46
Consolidated version of the RED, supra note 39, Art. 17(7).
47
European Commission, Report from the Commission on Indirect Land-Use Change Related to Biofuels
and Bioliquids, Doc. COM(2010) 811 final, 22 December 2010, at 3.
48
European Commission, Proposal for a Directive of the European Parliament and of the Council amending
Directive 98/70/EC relating to the Quality of Petrol and Diesel Fuels and amending Directive 2009/28/EC
on the Promotion of the Use of Energy from Renewable Sources, COM(2012) 595 final, 17 October 2012.
49
Consolidated version of the RED, supra note 39, Art. 3(4)(d).
50
The first option is that it is each member state’s obligation to ensure that operators provide information and data relevant to the sustainability criteria using an independent auditing system that can prove
their compliance (Ibid., Art. 18(3)). The downside of this option is that it permits 28 different verification
systems if each member state establishes its own independent system, which would increase the administrative burden for exporters to the EU biofuels market. The second verification option is that compliance
can be demonstrated if the EU and its trade partners conclude bilateral or multilateral agreements that
contain the RED’s sustainability criteria (Ibid., Art. 18(4), subpara. 1).
51
Ibid., Art. 18(4), subpara. 2.
45
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Commission recognizes and approves private certification schemes (note the precise
wording in the RED is ‘voluntary schemes’) that can demonstrate compliance. It formally approves schemes by adopting a decision, and the approval is valid for a maximum of five years.52 While there was a detailed document – the Communication from
the Commission on Voluntary Schemes and Default Values – for the assessment and
approval process of private schemes,53 the amended RED introduced new reporting
obligations for these approved schemes and the European Commission in terms of the
operation of the schemes, such as transparency or stakeholder involvement.54 Next,
this article will discuss the role and implications of such private certification schemes
in the regime complex for sustainable bioenergy/biofuels.
B Private Certification Schemes for Sustainable Bioenergy/Biofuels
At the time of writing, 19 private certification schemes had received approval from
the European Commission.55 The schemes approved by the Commission differ in their
governance types/structures, standards and/or certification processes. Conducting
a comprehensive comparison of all schemes is beyond the scope of this subsection.
Instead, this discussion will highlight four key private schemes: the Roundtable on
Sustainable Biomaterials, formerly the Roundtable on Sustainable Biofuels (RSB), the
International Sustainability and Carbon Certification system (ISCC), Bonsucro and
the Roundtable on Sustainable Palm Oil (RSPO). However, numerous bioenergy certification schemes are operating in addition to those approved by the Commission.
Although private schemes differ in various aspects, it is useful to differentiate them
along two lines: types of initiatives and product coverage. First, private schemes generally fall into one of two types: multi-stakeholder initiatives and business/industry-based initiatives. The four schemes examined herein are all multi-stakeholder
initiatives in the sense that representatives of relevant stakeholders – farmers/feedstock growers, biofuel producers, refining/marketing companies and NGOs/civil societies – are consulted during the standard-setting process and can participate in the
decision-making process. While the ISCC system is seen as an instance of multi-stakeholder governance, it has been financially supported by the German government and
so is sometimes referred to as a government-financed initiative.56
Second, product coverage varies among schemes. Some schemes cover all types of
biofuels regardless of the raw materials used, whereas others deal with a single crop.
Bonsucro focuses on sugarcane and thereby addresses sugar and ethanol, and the
RSPO focuses on all uses of palm oil, including fuel, food and cosmetics, so both of
Ibid., Art. 18(6), subpara. 1.
European Commission, Communication from the Commission on Voluntary Schemes and Default Values
in the EU Biofuels and Bioliquids Sustainability Scheme (Biofuels Communication) OJ 2010 C 160/1.
54
Consolidated version of the RED, supra note 39, Art. 18(6), subparas 2 and 3.
55
For approved schemes, see http://ec.europa.eu/energy/en/topics/renewable-energy/biofuels/voluntaryschemes (last visited 3 February 2016).
56
See International Sustainability and Carbon Certification (ISCC), available at www.iscc-system.org/en/
iscc-system/about-iscc/ (last visited 24 February 2016): ‘Until 2012, the development process received
financial support by the German Federal Ministry of Food, Agriculture and Consumer Protection via the
Agency for Renewable Resources (FNR).’
52
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these schemes fall into the latter category. Similarly, some schemes address not only
the sustainable production of transportation biofuels but also sustainable biomass
production, including food, bio-plastics, bio-chemicals and/or all forms of bioenergy
(for example, electricity generated from solid biomass). The RSB and the ISCC system
also have broad scopes.
In addition, the certification schemes can be compared according to their governance structure, substantive criteria and certifying process. Each scheme has organ­
izational documents that establish its structure/membership and decision-making
procedures. The core substantive standards on sustainability are usually called ‘principles’ and ‘criteria’ and tend to bundle several aspects of sustainability together (for
example, GHG emission reductions; environmental protection, including the conservation of biodiversity, air, soil and water quality; compliance with labour rights,
sometimes including the provision of safe and healthy working conditions; the observance of land-use rights; and the assessment of food prices). They also go even further
than the RED by requiring compliance with relevant national laws and regulations,
contributions to rural development and/or the assurance of participatory consultation processes among relevant actors.57 In addition to such principles and criteria,
the schemes have detailed procedures, indicators and guidance. These principles and
criteria are concerned with what private schemes measure, whereas the indicators
address how the criteria are measured.58 Furthermore, there are some differences
among the schemes as to how they certify and monitor compliance. Recent studies
have compared the schemes in terms of the fees and costs required for applicants (that
is, farms and mills) seeking to obtain a certification.59
With the increasing number of private certification schemes in the sustainable
bioenergy domain, legitimacy has become an important element, because private
schemes are not generally considered to be legitimate regulatory authorities.60 Many
private schemes now engage in the legitimation process,61 as will be seen later in this
article. There seems to be two reasons for private schemes to make such legitimation
German and Schoneveld, Social Sustainability of EU-Approved Voluntary Schemes for Biofuels:
Implications for Rural Livelihoods, Center for International Forestry Research, Working Paper 75 (2011),
at 10–16.
58
See ISEAL, Setting Social and Environmental Standards version 5.0, Structure of a Standard 6.2.1 (a
previous version of the code as of June 2010, on file with author).
59
Pacini and Assunção, ‘Sustainable Biofuels in the EU: The Costs of Certification and Impacts on New
Producers’, 2 Biofuels (2011) 595, at 597; Johnson, Pacini and Smeets, Transformations in EU Biofuels
Markets under the Renewable Energy, Center for International Forestry Research, Occasional Paper 78,
(2012), at 23–27.
60
Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’,
2 Regulation and Governance (2008) 137, at 145: ‘Role legitimacy is particularly relevant when considering the role of non-state regulators, as not all organizations will be perceived as legitimate in performing
regulatory roles.’
61
The Roundtable on Sustainable Palm Oil (RSPO), established in 2004, is one of the earliest private sustainability initiatives that has made concerted efforts to be perceived as legitimate and credible. See Schouten
and Glasbergen, ‘Creating Legitimacy in Global Private Governance: The Case of the Roundtable on
Sustainable Palm Oil’, 70 Ecological Economics (2011) 1891, at 1897; Partzsch, ‘The Legitimacy of
Biofuel Certification’, 28 Agriculture and Human Values (2011) 413, at 419–420.
57
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EJIL 27 (2016), 129–159
efforts. First, it is a strategic behaviour of private actors to gain support and acceptance
from users and other relevant audiences so that their certifications become more popular. Second, it is to meet the growing demands for legitimacy over private standards.
Since ‘private rules in the form of standards have far reaching consequences affecting
a wide range of actors’,62 some consider that private standards should be as legitimate
as public rules. In sum, ‘[private actors] seek to manage their legitimacy, both out of
self-interest and because they perceive it to be the “right thing to do”.’63
There are two aspects of legitimacy: one is ‘input legitimacy’ or ‘procedural legitimacy’ and another is ‘output legitimacy’ or ‘substantive legitimacy’. It is explained
that the former ‘derives from the process by which decisions are made, including
factors such as transparency, participation, and representation’, whereas the latter
concerns ‘the results of governance’, such as whether ‘a regime solve[s] problems
effectively’.64
Thus, in the context of input legitimacy of private certification schemes, the
inclusion of relevant stakeholders matters, including whether the scheme’s governance assures opportunities for participation, transparency in the decision-making
process and equal representation among stakeholders.65 While the four schemes
(RSB, ISCC, Bonsucro and RSPO) are all seen as multi-stakeholder initiatives, their
governance systems comprise different stakeholder groups and decision-making
procedures. Thus, there may be the risk of lacking input legitimacy – for instance,
if a governing organ of a scheme does not comprise an equal number of relevant
stakeholders.
On the other hand, output legitimacy of private certification schemes is concerned
with political decisions and solutions regarding sustainability sought by private
regimes, such as the evaluation and measurement of the impact of sustainability
standards and certification. However, it is difficult to assess whether private schemes
are effectively responding to sustainability concerns and generating positive impacts
on bioenergy production. Although it may be possible to assess short-term impacts on
certified members (farms/mills), it is difficult to evaluate long-term economic, social
and environmental effects on local people and communities.
Nevertheless, one possible way to test standard impacts is through the code developed by the ISEAL Alliance. The ISEAL Alliance is ‘the global membership association
for sustainability standards’, and its mission is ‘to strengthen sustainability standards
systems’.66 Being a member of the ISEAL implies that a scheme complies with the
ISEAL codes. With regard to the effectiveness of the standards, the ISEAL Alliance
has established an ‘Impacts Code’, which ‘requires standards systems to develop and
implement a monitoring and evaluation plan that includes all the steps required to
Fuchs et al., ‘Actors in Private Food Governance: The Legitimacy of Retail Standards and Multistakeholder
Initiatives with Civil Society Participation’, 28 Agriculture and Human Values (2011) 353, at 354.
63
Black, supra note 60, at 147.
64
Bodansky, ‘Legitimacy in International Law and International Relations’, in J. Dunoff and M. Pollack
(eds), Interdisciplinary Perspectives on International Law and International Relations (2012) 330. See also
G. Shaffer (ed.), Transnational Legal Ordering and State Change (2013), at 34.
65
Partzsch, supra note 61, at 416–417.
66
See ISEAL’s website, available at www.isealalliance.org/about-us (last visited 24 February 2016).
62
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assess their contributions to social and environmental impact’.67 Currently, the RSB,
Bonsucro and the RSPO are qualified as full ISEAL members (that is, they follow the
ISEAL Impacts Code).
Legitimacy is important for certification schemes. However, they must also respond
to business realities by considering the practicality and flexibility of system operations. In one sense, this feature can be measured by the number of sustainability certifications issued. Among the four schemes being discussed, the most popular scheme
is the ISCC, which has issued more than 8,300 certificates.68 In contrast, Bonsucro
has issued 51 certificates,69 and the RSB has issued only 18.70 Although the RSPO
obtained the European Commission’s approval in 2012, the RSPO’s certification process was used by palm oil producers in Asia even before the Commission’s approval,
and, thus, the number of certified farm/oil mills is more than 350.71 However, in terms
of biofuel certification, the ISCC system has recently been gaining acceptance in Asia
as well. Some biofuel firms doing business in Asia have begun to pursue both RSPO
and ISCC certifications.72
Besides producers and firms, the work of private certification schemes has also
reached national governments in Asia. For instance, Indonesia started a govern­
mental certification scheme, entitled the Indonesian sustainable palm oil scheme
(ISPO), in 2011, and originally, this scheme was conducted independently from existing private schemes. However, in 2013, the Indonesian government entered into an
agreement with the RSPO to promote the sustainable production of palm oil.73 Such a
collaboration is understood as one step for ‘national standard ISPO to become a globally recognized sustainability standard and to facilitate alignment with other certification schemes such as the international voluntary standard RSPO’.74 This example
See ISEAL’s website on its Impacts Code, available at www.isealalliance.org/our-work/defining-credibility/codes-of-good-practice/impacts-code (last visited 24 February 2016). However, for the difficulties of
measuring the impacts, see Loconto and Fouilleux, ‘Politics of Private Regulation: ISEAL and the Shaping
of Transnational Sustainability Governance’, 8 Regulation and Governance (2013) 166, at 172–173.
68
ISCC Newsletter no. 54, 14 April 2015, available at www.iscc-system.org/en/news-press/newsletter/
iscc-newsletter-no-54-from-14-january-2015/ (last visited 25 January 2016): ‘The number of ISCC certificates has now exceeded the mark of 8,300. More than 3,200 companies in 100 countries are using
ISCC at the time being.’
69
For the number of Bonsucro certified operators, see http://bonsucro.com/site/in-numbers/ (last visited
25 January 2016).
70
For the number of Roundtable on Sustainable Biofuels (RSB) certified operators, see http://rsb.org/certification/participating-operators/ (last visited 25 January 2016).
71
For the number of RSPO certified growers, see www.rspo.org/en/certified_grower (last visited 25 January 2016).
72
For example, see Wilmar Sustainability Report 2013, at 24–25, available at http://media.corporate-ir.
net/media_files/IROL/16/164878/Wilmar_Sustainability_Report_2013_Final_high-res.pdf (last visited 25 January 2016); Neste Oil in 2014, at 121–122, available at www.neste.com/en/corporate-info/
news-media/material-uploads/publications-0 (last visited 25 January 2016).
73
See UN Development Programme (UNDP), ISPO and RSPO Enter into Strategic Co-operation, News Release,
available at www.undp.org/content/undp/en/home/ourwork/environmentandenergy/projects_and_initiatives/green-commodities-programme/projects/palm-oil/rspo---ispo.html# (last visited 24 February 2016).
74
See UNDP, Indonesia: Sustainable Palm Oil Initiative (SPO), available at www.undp.org/content/undp/
en/home/ourwork/environmentandenergy/projects_and_initiatives/green-commodities-programme/
projects/palm-oil.html (last visited 24 February 2016).
67
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offers one mechanism of how the proliferation of private certification schemes can
help national regimes.
C International Regimes: Global Bioenergy Partnership
Regarding international regimes for sustainable bioenergy, the work of the Global
Bioenergy Partnership (GBEP) merits attention. At the time of writing, a committee under the International Organization for Standardization (ISO) was also drafting sustainability criteria for bioenergy, but this article does not address its work due
to the limited information available about its drafting process (the ISO standard for
‘Sustainability Criteria for Bioenergy’ was finally published on 15 September 2015).75
The GBEP was launched in July 2005 under the Gleneagles Plan of Action by
the G8 plus five countries (Brazil, China, India, Mexico and South Africa) to ‘support wider, cost effective, biomass and biofuels deployment, particularly in developing countries’.76 It was formally established in May 2006. The GBEP is a voluntary
forum that currently comprises 37 partners (23 countries and 14 international
organizations and institutions), with another 39 countries and international organ­
izations as observers.77 The GBEP’s secretariat is located at the Food and Agriculture
Organization’s (FAO) headquarters in Rome, Italy.
In June 2008, the GBEP Task Force on Sustainability was established, and setting
sustainability indicators for all forms of bioenergy (thus, not necessarily transportation biofuels) became an important GBEP mission.78 The GBEP issued the first edition
of its bioenergy sustainability indicators (GBEP indicators) in December 2011 as a
report with a set of methodology sheets amounting to 211 pages.79 The structure of
the GBEP has three pillars (environmental, social and economic), and each pillar comprises eight indicators, for a total of 24 indicators. Initially, the draft contained more
than 24 indicators, but intense debates resulted in the removal or consolidation of
some indictors.
One key aspect of the GBEP indicators is their stated purpose. According to the GBEP
report ‘[GBEP sustainability indicators] do not feature directions, thresholds or limits
and do not constitute a standard, nor are they legally binding on GBEP Partners’.80
Thus, in contrast to the EU RED or the standards of private certification schemes, the
See ISO 13065:25 Sustainability Criteria for Bioenergy, available at www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=52528 (last visited 25 January 2016). Besides the Global
Bioenergy Partnership (GBEP) and the International Organization of Standardization (ISO), the FAO, the
IEA and the International Renewable Energy Agency also address bioenergy from various perspectives at
the international level.
76
See Gleneagles Plan of Action: Climate Change, Clean Energy and Sustainable Development, 16 (d),
available at www.mofa.go.jp/policy/economy/summit/2005/ccc_a.pdf (last visited 24 February 2016).
77
See Partners and Membership, available at www.globalbioenergy.org/aboutgbep/partners-membership/
en/ (last visited 24 February 2016).
78
See Task Force on Sustainability, available at www.globalbioenergy.org/programmeofwork/task-forceon-sustainability/en/ (last visited 24 February 2016).
79
See GBEP Report on Sustainability Indicators for Bioenergy (GBEP Report), available at www.globalbioenergy.org/programmeofwork/task-force-on-sustainability/gbep-report-on-sustainability-indicatorsfor-bioenergy/en/ (last visited 24 February 2016).
80
Ibid., at 11.
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GBEP indicators function as a measurement tool and do not regulate conduct. For
instance, Indicator 1, which addresses lifecycle GHG emissions, establishes a methodology for estimating emission savings.81 However, it does not stipulate a required
amount or percentage of emission savings. In other words, ‘[the GBEP indicators are]
intended to guide any analysis undertaken of bioenergy at the domestic level and to be
used with a view to informing decision-making and facilitating the sustainable development of bioenergy’.82
With regard to its content, the environmental pillar covers common sustainability
indicators, such as GHG emissions, soil, air and water quality, biodiversity and landuse change. ILUC was debated during the development of the indicators, but in the
end, as the report stated, ‘it has not yet been possible to include an indicator on ILUC’
and ‘further work is required to improve our understanding of and ability to measure
indirect effects of bioenergy’.83
The social pillar includes common concerns about land-use rights, food security
and labour rights, but it also provides some interesting issues. For instance, Indicator
10 is articulated as ‘price and supply of a national food basket’, although this topic was
addressed under the title of ‘food security’ during the negotiating stage.84 It appears
that there were intense debates about the concept of food security.85 The term ‘labour
rights’ does not explicitly appear in the list of GBEP indicators under the social pillar.
However, the concept is included in Indicator 12 regarding ‘jobs in the bioenergy sector’. This indicator considers two aspects: (i) whether jobs are created as a result of
bioenergy production and (ii) whether jobs are consistent with International Labour
Organization principles. The introduction of these two aspects is interesting in that
this ‘job’ indicator suggests both positive (that is, job creation) and negative (that is,
the violation of labour rights) impacts from bioenergy production.
Furthermore, the social pillar involves two unique indicators: (i) ‘change in unpaid
time spent by women and children collecting biomass’ (Indicator 13) and (ii) ‘change
in mortality and burden of disease attributable to indoor smoke’ (Indicator 15). These
two indicators are particularly concerned with developing countries. It has been
pointed out that ‘[t]he most important energy service today in many developing countries is cooking’, and ‘the large amount of firewood, collected over great distances,
[is] necessary for fuelling the small and inefficient stoves’.86 Thus, these indicators
This methodology is based on the GBEP Common Methodological Framework for Greenhouse Gas Lifecycle
Analysis of Bioenergy, version 1, developed by the GBEP Task Force on Greenhouse Gas Methodologies.
82
GBEP Report, supra note 79, at 18.
83
Ibid., at 32, n. 11.
84
The 2009 Declaration of the World Summit on Food Security defined food security as ‘all people, at
all times, have physical, social and economic access to sufficient, safe and nutritious food to meet their
dietary needs and food preferences for an active and healthy life’. See the Declaration of World Summit
on Food Security, 16–18 November 2009, n. 1, available at ftp://ftp.fao.org/docrep/fao/Meeting/018/
k6050e.pdf (last visited 24 February 2016).
85
See Chair Conclusions of the Third Task Force Meeting, 19 November 2008, at 3, available at www.
globalbioenergy.org/fileadmin/user_upload/gbep/docs/2008_events/3rd_TF_Sustainability/Chair_
Conclusions_3rd_GBEP_Sust_TF_WEB_ONLY.pdf (last visited 24 February 2016).
86
N. El Bassam, Handbook of Bioenergy Crops: A Complete Reference to Species, Development and Applications
(2010), at 73–74.
81
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consider the issues specific to cooking technologies and local communities in the production and use of bioenergy for developing countries.
This list of indicators appears rich in the environmental, social and economic
dimensions. However, it is questionable whether such an extensive list can generate
a meaningful, practical impact on domestic bioenergy policies. Currently, the GBEP
indicators are in their implementation phase, and this process is developed within the
context of the Working Group on Capacity Building for Sustainable Bioenergy, which
was established in 2011.87 This implementation phase will provide opportunities to
test the suitability and feasibility of the indicators. Pilot projects have already been
conducted in Colombia, Indonesia, Germany, Ghana, Japan and the Netherlands.
It is reasonable to think that the volume and complexity of the 24 indicators will
require efforts by governments in gathering and evaluating data according to each indicator. Moreover, the GBEP indicators, because of their voluntary characteristics, may not
result in direct and immediate changes in domestic policies if policy makers decide not to
follow the suggestions and heed the results obtained from the indicators. However, the
indicators may have a subtle and nuanced influence that would still mark an important
step in the sustainable production of bioenergy. According to the GBEP’s executive secretary, Maria Michela Morese, the GBEP indicators have contributed to raising awareness of
African countries’ views on both the opportunities and challenges of bioenergy. African
countries previously perceived the focus on bioenergy as an unsuitable policy because it
would affect food security. However, Morese now observes that some African countries
– in particular, those in the Economic Community of West African States,88 which have
strongly collaborated with the GBEP – have become aware of the fact that bioenergy can
also create opportunities for increasing employment and rural development. Thus, the
indicators are helping to provide countries with knowledge and guidance.89 The GBEP
indicators could stimulate crucial learning among domestic stakeholders in the bioenergy sector of developing countries and could facilitate their internal communications.
4 Explaining the Regime Complex for Sustainable
Bioenergy
A How the Regime Complex Operates
This section begins by examining how the regime complex, comprising the three elemental regimes, functions overall. How ‘loosely’ do the three regimes connect to each
Within the working group, Activity Group 2 is working towards ‘raising awareness, and sharing of data
and experience on the implementation of the GBEP indicators’. See Activity Group 2, available at www.
globalbioenergy.org/programmeofwork/working-group-on-capacity-building-for-sustainable-bioenergy/activity-group-2/pt/ (last visited 24 February 2016).
88
For cooperation between the GBEP and the Economic Community of West African States (ECOWAS),
see the GBEP website for a concept note on an ECOWAS–GBEP Workshop on the Piloting of GBEP
Sustainability Indicators, held in Praia, Cape Verde, on 7–8 November 2013, available at www.globalbioenergy.org/fileadmin/user_upload/gbep/docs/2013_events/GBEP_workshop_Praia_7_8_
November_2013/Concept_Note_GBEP_SI_Pilot_Workshop.pdf (last visited 24 February 2016).
89
Interview by the author with Michela Morese at the GBEP, Rome, 18 September 2013.
87
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other? As noted, the sustainable bioenergy domain lacks a core umbrella regime at the
international level. At the GBEP, the production of a legally binding document was not
considered, and there have been no efforts to do so at the international level, except for
the efforts of drafting standards in the ISO.
One reason for the lack of a core umbrella regime at the international level is the
uncertainty and complicated nature of bioenergy and its impacts. Elevated levels of
uncertainty were an important cause of the climate change regime complex as well.90
Similarly, the regime complex for sustainable bioenergy involves myriad issues that
cause uncertainty about the production and use of bioenergy. These issues not only
include GHG emission savings but also food security, land-use rights, sustainable
development in rural areas and environmental protection. For instance, we are still
unsure whether, and how, biofuels can reduce GHG emissions in light of the scientific
knowledge concerning differing GHG emissions for different feedstocks as well as the
emissions from ILUC. Similarly, it is not certain how the production of biofuels originating from food crops affects food prices. These uncertainties as well as the ongoing
difficult negotiations in the climate change area have discouraged states from negotiating an international agreement in the sustainable bioenergy domain.
Thus, no central and strong international regime exists, and the work of the
GBEP appears to be a thin and weak umbrella regime at the international level,
especially because it does not regulate sustainable productions and trading but
only functions as sustainability indicators that are used for self-measurement tools
in the context of developing bioenergy policies. However, even indicators can be
one important governance tool. Existing literature has recognized indicators as
governance ‘tools’ and ‘technologies’. Kevin Davis and his colleagues’ 2012 edited
book, Governance by Indicators, is one well-known study on indicators and global
governance.91 The GBEP’s indicators can be evaluated from three dimensions as a
governance tool.
First, the GBEP’s work, in the production of indicators, has created and framed a
phenomenon and problem that demonstrates that the use of bioenergy involves various concerns, even at the local level of use (for example, cooking and heating) without
production and trading for business purposes.92 The 24 indicators are comprehensive
in light of environmental, social and economic aspects, suggesting ‘implicit theories
of what is causing a problem, and of what it would mean to solve the problem’93 for
local communities in developing countries. Second, the process of the production of
the GBEP indicators merits attention. The literature relating to indicators has noted
that indicators are ‘increasingly subject to … demands for transparency, participation,
Keohane and Victor, supra note 18, at 12.
K. Davis et al., Governance by Indicators: Global Power through Quantification and Rankings (2012)
(Governance by Indicators).
92
Davis and Kingsbury, Indicators as Interventions: Pitfalls and Prospects in Supporting Development
Initiatives (2011), at 19, available at www.iilj.org/research/indicatorsproject.asp (last visited 24
February 2016). See also Davis et al., ‘Introduction: Global Governance by Indicators’, in Governance by
Indicators, supra note 91, 3, at 8.
93
Kingsbury, ‘Indicators and Governance by Information in the Law of the Future’, in S. Muller et al. (eds),
Law of the Future and the Future of Law (2011) 505.
90
91
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EJIL 27 (2016), 129–159
reason-giving, and review’,94 and this is what the GBEP’s indicator-setting processes
have followed. Such processes have contributed to new knowledge production (as the
result of indicators) and network creation (among participating countries, including
developing countries). The third dimension is concerned with the effects of the indicators. The literature has argued that ‘[s]uccessful indicators – those that become influential and institutionalized – often produce powerful and unanticipated effects’.95 Even
though it cannot be said that the GBEP indicators have strongly influenced government policies worldwide, the GBEP indicators, as noted, have provided several African
countries with knowledge and guidance in their bioenergy policies. Such subtle and
nuanced effects of the indicators should not be overlooked.
Despite the fact that the GBEP’s certain contribution to sustainable bioenergy can
be admitted, it is the EU that plays a central role in the regime complex. Before examining the role of the EU, it is important to explain the link between the GBEP’s work and
the EU’s regulatory act. Indeed, sustainability criteria and standards defined by the
two regimes differ in the coverage: the EU established minimum criteria, but the GBEP
(and private schemes, as discussed later in this article) set out more detailed indicators.
However, such inconsistencies are not intended as ‘the result of a strategy of regime
shifting’ by relevant countries.96 Even though the GBEP’s task force was launched
later than the EU’s biofuel initiative, considering the interests of developing countries
more broadly, the two regimes are not competing under conflicting interests. Rather,
it can be said that the GBEP is playing a role that the EU does not serve (note that the
European Commission is also one partner of the GBEP). In contrast to the GBEP, the
EU focuses more on markets and trade by engaging with the private sector.
The EU’s global regulatory power has attracted scholars’ attention in various issue
areas,97 and regulating sustainable biofuels is one such example. One important
mechanism of the EU’s regulatory power is based on its market power. Biofuel producers and traders, attracted by the size of the EU market, have attempted to secure their
market access to Europe by being compliant with the sustainability criteria. At this
point, the verification of sustainability matters and the development and proliferation
of private certification initiatives have become relevant.98 The literature explains that
‘a demand for private authority will arise if there are actors [such as states and international organizations] who will benefit from such rules’.99 In the bioenergy domain,
Davis and Kingsbury, supra note 92, at 20.
Espeland and Suder, ‘The Dynamism of Indicators’, in Governance by Indicators, supra note 91, at 86.
96
Helfer, supra note 17, at 7.
97
There has been rich literature on the European Union’s regulatory power. See Scott, ‘From Brussels
with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction’, 57
American Journal of Comparative Law (2009) 897; D. Vogel, The Politics of Precaution: Regulating Health,
Safety, and Environmental Risks in Europe and the United States (2012); Scott and Rajamani, ‘EU Climate
Change Unilateralism’, 23 European Journal of International Law (EJIL) (2012) 469; Anu Bradford, ‘The
Brussels Effect’, 107 Northwestern University Law Review (2013) 1.
98
Romppanen, ‘The Role and Relevance of Private Actors in EU Biofuel Governance’, 22 Review of European
Community and International Environmental Law (2013) 340, at 352.
99
J.F. Green, Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance
(2013), at 14, 18–19.
94
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there has been a demand from the EU for private certification schemes. The EU’s verification system for approving private certification schemes has stimulated interest
among feedstock growers, biofuel firms and NGOs in establishing private schemes.
The role of private actors has also been acknowledged in the case of climate
change.100 However, in the case of sustainable biofuels, the private sector has evolved
specifically in relation to the EU. The crucial role of the relationship between the EU’s
policy and private actors in stimulating creation of the sustainable bioenergy regime
complex will be further discussed in the next subsection.
B Public-Private Interactions: The EU and Private Certification
Schemes
Recently, public–private interactions – in other words, ‘dynamics of the relationship
between civil regulations and state policies’ – have attracted scholarly attention.101
Public policy and private schemes interact in various ways,102 one of which occurs
when public policy supports and promotes the use of private sustainability standards.
An early example of such an interaction appeared in the government procurement
context as some European states have promoted the use of sustainable products certified by private schemes in their procurement decisions.103
The use of private certification schemes under the RED is another example of
public-private interaction.104 Under the EU RED, the European Commission ‘has outsourced verification responsibilities to certification schemes which qualify for the job
by meeting, in part or whole, the Sustainability Criteria’.105 Similar to the concept of
outsourcing, the concept of ‘delegated authority’, whereby ‘states [delegate] key regulatory tasks to private firms’, helps explain the relationship between the European
Commission and private biofuel certification schemes.106 Outsourcing and delegating
to private actors happens ‘because of (private actors’) expertise’, including local information/access and implementation capabilities.107 If there are asymmetries between
Abbott, ‘Transnational Regime Complex’, supra note 19, at 574. The role of private actors in environmental governance (in particular, in the area of climate change) is also emphasized by Green, supra note
99.
101
Vogel, ‘Private Global Business Regulation’, 11 Annual Review of Political Science (2008) 261, at 272.
102
Cafaggi, ‘Transnational Private Regulation and the Production of Global Public Goods and Private
“Bads”’, 23 EJIL (2012) 695, at 697: ‘Once the contribution of private actors is acknowledged, the
institutional design question broadens to the modes of cooperation both between private and public and
within each category.’ Marx et al., ‘Conclusion: Private Standards – A Global Governance Tool?’ in Axel
Marx et al. (eds), Private Standards and Global Governance: Economic, Legal and Political Perspectives (2012),
at 302.
103
Vogel, supra note 101, at 271; Wouters et al., ‘Private Standards, Global Governance and International
Trade: The Case of Global Food Safety Governance’, in A. Marx et al. (eds), Private Standards and Global
Governance: Economic, Legal and Political Perspectives (2012) 261.
104
The EU engaged with private certification schemes in a similar way in its so-called ‘Timber Regulation’,
prohibiting the sale of illegally harvested timber (or products made from such timber) in the EU market.
Council Regulation 995/2010, OJ 2010 L 295/23.
105
Lin, supra note 31, at 57.
106
Green, supra note 99, at 17. See also Lin, supra note 31, at 50.
107
Ibid., at 11.
100
148
EJIL 27 (2016), 129–159
states/international organizations and private actors on such expertise, delegation
to private actors is more likely to occur, thereby reducing transaction costs of states/
international organizations.108
Some studies suggest two anticipated consequences of such delegation. First, the
private certification schemes benefit, wherein their relationships with state policies or
EU legislation raise their name value and may lead to wider acceptance. According to
the studies on private schemes for forestry or fishing, ‘[private certification schemes]
receive legitimacy and greater uptake from incorporation into public policies’.109
Similar benefits can likewise be expected in private schemes covering sustainable
biofuels.
The second expected effect of delegated authority is the greater diffusion of the
EU sustainability criteria. The more private schemes, which are recognized by the
European Commission, issue certifications worldwide, the more the EU’s sustainability criteria are understood and proliferated. Thus, it has been argued that the use of
approved private certification schemes may be one key driver of the ‘extraterritorial
impact of EU sustainability regulation’.110 However, doubts exist as to whether the
diffusion of EU sustainability standards through private certifications, in practice,
increases the chances of ‘harmonization’ of sustainability biofuel criteria around the
world or of ‘some consolidation of the voluntary standards market’.111 In fact, the
European Commission’s approval system has brought increased competition (and not
necessarily harmonization) between private biofuel schemes, a topic that will be discussed in the next subsection.
C How the Private Sector Is Evolving: Between ‘Competition
(Fragmentation)’ and ‘Coordination’
Existing studies of private standards have recognized the increased competition between
standard-setting schemes. Regulatory competition among private standards may not necessarily lead to negative results, such as ‘a race to the bottom’. In contrast, some studies have
argued that regulatory competition leads to positive effects, such as ‘inducing rule convergence’ or ‘promoting innovative solutions’.112 However, in the case of sustainable biofuels,
concerns on negative results from competition have been expressed in the two contexts.
First, it has been widely recognized that private schemes for sustainable bioenergy vary in terms of the contents of their criteria and standards. The sustainable
bioenergy domain is not perceived like a situation where ‘business dominates’ private certification schemes, adopting ‘business-friendly standards’,113 because several
Ibid., at 15. Both Green and Lin mentioned the Clean Development Mechanism of the Kyoto Protocol as a
key example of the practice of delegated authority.
109
Gulbrandsen, ‘Dynamic Governance Interactions: Evolutionary Effects of State Responses to Non-State
Certification Programs’, 8 Regulation and Governance (2014) 74, at 86.
110
Schleifer, ‘Orchestrating Sustainability: The Case of European Union Biofuel Governance’, 7 Regulation
and Governance (2013) 533, at 541.
111
Lin, supra note 31, at 59.
112
Eberlein et al., supra note 11, at 5.
113
Abbott, supra note 5, at 549.
108
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multi-stakeholder initiatives are operating and those initiatives cover additional sustainability criteria that were not explicitly included in the RED, such as requiring of
participatory consultation processes among relevant actors or consideration of rural
development. At the same time, however, some other schemes (for example, business/
industry-based initiatives) tend to set out minimum sustainability standards. If operators choose to be certified by the schemes that have more rigorous sustainability criteria, ratcheting effects may result in the biofuel sector overall. However, this is not
certain as operators may instead choose schemes with ‘weaker standards, laxer verification procedures, and lower costs’.114
Second and related to the point above, the private schemes differ in terms of certification procedures, costs and monitoring processes. Private schemes might use such
differentiation as a strategy to proliferate more than competing schemes – they might
establish procedures and costs to make it easy for applicants to get certified, attracting
the most amount of applicants and issuing more certifications than peer schemes. As
evidenced, schemes within the bioenergy domain have varied widely in the number of
certifications issued, from 8,300 by the ISCC to 18 by the RSB.115 As a consequence,
it is claimed that ‘EU regulators have failed to establish a level playing field among
biofuel certification schemes. This has created opportunities for forum shopping [by
private business actors] and has triggered adverse competition’.116
Although such abundance of, and competition among, private certification
schemes cannot be easily controlled or confined, it may be possible to improve coordination between the schemes. In the sustainable bioenergy domain, in particular,
there are two approaches to minimize the negative effects of escalating competition
in this landscape: a comparison study and a benchmark process.117 Comparison studies evaluate existing private schemes. For instance, three studies comparing approved
biofuel schemes were recently released. Searching for Sustainability was published by
the World Wide Fund for Nature, Germany,118 Betting on Best Quality was published
by the International Union for the Conservation of Nature’s National Committee of
the Netherlands,119 and Biofuel Sustainability Performance Guidelines was published
by the Natural Resources Defense Council.120 Each report categorized the quality of
the schemes using its own assessment methodologies. The Searching for Sustainability
Schleifer, supra note 110, at 542.
See notes 68 and 70 and the accompanying text.
116
Schleifer, supra note 110, at 542. See also Romppanen, supra note 98, at 343. However, note that the
amended RED introduced some attempts to monitor the operation of private certification schemes. See
note 54 and the accompanying text.
117
See also Overdevest and Zeitlin, supra note 11, at 33: ‘A key mechanism engendering more productive
interactions in the face of such forum shopping is public comparison and benchmarking for equivalence.’
118
See World Wide Fund for Nature (WWF), Searching for Sustainability, available at http://awsassets.
panda.org/downloads/wwf_searching_for_sustainability_2013_2.pdf (last visited 24 February 2016).
119
See International Union for the Conservation of Nature (IUCN), National Committee of the Netherlands,
Betting on Best Quality, available at https://cmsdata.iucn.org/downloads/betting_on_best_quality.pdf
(last visited 24 February 2016).
120
See Natural Resources Defense Council (NRDC), Biofuel Sustainability Performance Guidelines, available
at www.nrdc.org/energy/files/biofuels-sustainability-certification-report.pdf (last visited 24 February
2016).
114
115
150
EJIL 27 (2016), 129–159
report did not attempt to rank the schemes but concluded that ‘environmental and
social performance varies greatly among the approved standards’.121 The Betting on
Best Quality report evaluated the private schemes based on the information provided in
eight comparative studies. It ranked the RSB at the top, followed by Bonsucro and the
RSPO; the ISCC was given a middle position.122 In addition, the Biofuel Sustainability
Performance Guidelines report examined seven schemes on the basis of their own indicators and summarized their performance results in visible table sheets. The report
concluded that ‘each certification system had strengths and weaknesses but that the
[RSB] was clearly the most protective’.123
These comparison studies have clearly indicated the discrepancies between the
schemes approved by the European Commission and could provide information to operators considering which set of standards to follow, encouraging operators to choose
a scheme of good quality. Despite the fact that these comparison studies are useful in
assessing and disseminating information on the multiple competing schemes,124 the
evaluative criteria being used vary between studies, just as sustainability criteria vary
between schemes. In other words, there is always doubt whether comparison studies
have used objective criteria and appropriate insight for their evaluation.
Alternatively, benchmarking is a more precise tool to differentiate between private
schemes. Benchmarking is more than a comparative analysis; the schemes themselves
compare their own standards to those of another scheme and examine if there are
overlaps or discrepancies. If there are significant similarities between the two standards, the two schemes can be benchmarked – operators compliant with one scheme
are regarded as being compliant with the other. In practice, benchmarking will also
reduce costs for operators who seek to earn certifications under two different schemes.
If widely pursued, such benchmarking processes could mitigate the fragmentation
of private schemes. One recent example is the benchmarking between the RSB and
Bonsucro.125 In contrast to Bonsucro, the RSB has had additional requirements in
terms of rural and social development, food security and the use of genetically modified organisms,126 but otherwise the two schemes are quite similar. The fact that both
schemes have full membership of the ISEAL Alliance might have made the benchmarking process easier in this instance, which is the only significant case of benchmarking between schemes in the bioenergy sector thus far.
WWF, supra note 118, at 21.
IUCN, supra note 119, at 67: ‘RSB covers more sustainability criteria, with greater detail, and with more
breadth in terms of level of assurance than any of the other VSS.’
123
See NRDC, Factsheet on Sustainability Certification for Biofuel, at 3, available at www.nrdc.org/energy/
files/biofuels-sustainability-certification-FS.pdf (last visited 24 February 2016).
124
On this point, the overall general trend to compare and assess voluntary sustainability standards should
be noted. For instance, see ITC’s Standards Map, available at www.standardsmap.org/ (last visited 24
February 2016).
125
See ‘RSB and Bonsucro Collaborate to Scale Up Biomaterials Certification’, ISEAL Alliance News, available
at www.isealalliance.org/online-community/news/rsb-and-bonsucro-collaborate-to-scale-up-biomaterials-certification (last visited 24 February 2016).
126
See ‘Auditor Checklist for RSB Certification of Bonsucro-Certificed Operators’, Cooperation with Other
Standards, available at http://rsb.org/activities-and-projects/cooperation-with-other-standards/ (last
visited 24 February 2016).
121
122
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5 How to Improve the Operation of the Regime Complex:
Six Evaluative Criteria
The previous section examined the regime complex in the sustainable bioenergy
domain; however, the regime complex is not at a standstill. It could be improved in
the future, but without a concerted effort to do so it may be weakened. This section
assesses the current regime situation of sustainable bioenergy by utilizing Keohane
and Victor’s six evaluative criteria: coherence, determinacy, epistemic quality,
accountability, fairness and sustainability.
A Coherence
Coherence among regimes in the current sustainable bioenergy domain is evaluated by
examining whether standards and certifications under the multiple sustainable bioenergy regimes appear to be ‘compatible and mutually reinforcing’.127 According to the
analysis in the previous section, while the GBEP and the EU are ‘loosely connected’, the
EU and the private sector have a tighter connection, which has helped the private sector to evolve and proliferate in the sustainable bioenergy domain. At this moment, the
regime complex does not seem to generate negative influences in the pursuit of sustainable bioenergy. Rather, it can be said that the regime complex provides opportunities of
‘addressing problems in multiple ways’,128 based on a shared understanding of the sustainability concerns related to bioenergy. However, it cannot be said that the situation is
very positive, being ‘compatible and mutually reinforcing’. Probably this situation can
be described ‘somewhere between compatible and harmful’.129 The question is whether
the regime complex will become more compatible or, instead, more harmful in the
future. The remaining criteria may indicate which direction the regime complex goes.
B Determinacy
Keohane and Victor draw their determinacy criterion from Thomas Frank, who
defines determinacy as ‘textual clarity’ and ‘readily ascertainable normative content’.130 Frank addresses the textual determinacy in treaties and domestic laws (that
is, binding rules), but the determinacy of non-binding rules can be assessed as well.
The sustainability criteria and standards adopted by the three elemental regimes are
determinate to a certain extent. The EU RED is most determinate since the binding
rules are clear in their normative content. As noted previously, the EU’s directive was
drawn upon the several EU member states’ practices. Thus, the normative content was
readily shared by member states, which leads to compliance.
However, the determinacy does not depend on binding force. Even the GBEP’s indicators and the criteria established by private schemes, which are not legally binding,
encompass determinacy. They are usually equipped with detailed procedures and
129
130
127
128
Keohane and Victor, supra note 18, at 16.
Abbott, ‘Transnational Regime Complex’, supra note 19, at 582.
Keohane and Victor, supra note 18, at 16.
T. Frank, The Power of Legitimacy among Nations (1990), at 52.
152
EJIL 27 (2016), 129–159
guidelines for users, which enhance the determinacy of main standards and criteria,
thereby promoting compliance. As Frank states, ‘the more determinate a standard,
the more difficult it is to justify non-compliance’.131
That said, the level of determinacy is quite different when we examine individual
standards in detail. For instance, the standard on GHG emission reductions is fairly
determinate among sustainability standards. Based on the terminology of environmental law, the GHG emission reduction standards are understood as ‘emission standards’
that ‘specify [GHG] amounts which may be released from specific installations’.132
Another example is that the standards requiring the protection of soil address the use
and application of fertilizers and pesticides. They can be described as ‘quality standards’ that ‘rely on the twin tools of “limit” and “guide” … values, and are expressed as
micro-grammes per cubic metre, in a given area, over a specified reference period’.133
The standards categorized as ‘emission standards’ or ‘quality standards’ seem to be
determinate because they can be measured objectively. However, standards such as the
protection of labour rights or the enhancement of local food security are less clearly
defined. For instance, with regard to the protection of workers’ freedom of association and/or trade unionization rights, auditors are required to check various aspects
and collect evidence on site about whether employers prevent associations from being
established, whether workers are free to join associations, whether minutes of meetings exist and so on. As for food security, monitoring and assessing local food prices is
required for compliance. Compliance with these standards depends on measurements
conducted by auditors and how they assess situations.
Thus, the level of determinacy of sustainability standards for bioenergy is specific to
each standard. Frank himself argues that ‘textual determinacy is always a matter of
degree, and the degree to which a rule exhibits determinacy varies from rule to rule’.134
Consequently, it is not possible to judge the determinacy dimension of sustainability
criteria and standards in general. On the other hand, it can be argued that as far as
standards and criteria are concerned, epistemic quality and scientific knowledge are
more important. This is not to say that determinate standards are always scientifically
sound or that standards lacking in determinacy are necessarily scientifically unsound.
Rather, even the standards that appear to be determinate may not be considered legitimate and credible if they are not based on epistemic quality and scientific knowledge.
The epistemic quality dimension is considered next.
C Epistemic Quality
Epistemic quality is generally defined as ‘reliable information needed for grappling
with normative disagreement and uncertainty’,135 which is provided by experts and
Ibid., at 54.
Lübbe-Worff, ‘Efficient Environmental Legislation: On Different Philosophies of Pollution Control in
Europe’, 13 JEL (2001) 79, at 81, cited in J. Holder and M. Lee, Environmental Protection, Law and Policy:
Text and Materials (2nd edn, 2007), at 363.
133
J. Scott, EC Environmental Law (1998), at 25.
134
Frank, supra note 130, at 56.
135
Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’, 20 Ethics and International
Affairs (2006) 405, at 426.
131
132
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professionals.136 Such information and knowledge does not necessarily come in the
form of scientific knowledge but may be based on other disciplines.137 However, with
regard to sustainable bioenergy, scientific knowledge is an important part of epistemic
quality. Epistemic quality and scientific knowledge are highly valued for environmental legislation and risk regulation at both national and international levels.138 It can be
said that the EU has contributed to generate epistemic quality and scientific knowledge
in the sustainable bioenergy domain. The discussions within the EU provided information on concerns over sustainable biofuels, and the EU’s regulatory acts provided certain knowledge and direction in regulating biofuels, not only within the EU but also
worldwide. However, as noted above, the EU also faced difficulties in regulating ILUC
issues due to limitations in existing scientific knowledge. Thus, the EU has made continuous efforts to improve the epistemic quality of sustainable biofuels.
Similarly, the GBEP has provided broader knowledge on the use of bioenergy
without trading, particularly for developing countries. Epistemic quality and scientific knowledge have been considered important in private standard setting as well.
It has been argued that ‘the supply of private authority is derived, at its core, from
expert knowledge’,139 and expertise based on epistemic quality and scientific knowledge is important information that can be provided by private certification schemes.
For instance, in their standard-setting processes, private certification schemes usually
establish technical committees and working groups that engage in the development
or revision of their principles and standards. These groups, normally comprised of
members of the schemes, are considered to be professionals and experts who generate
epistemic quality and scientific knowledge. In other cases, private schemes establish
expert working groups on specific topics, such as developing a methodology to calculate GHG emissions140 or a tool for protecting biodiversity.141
Overall, it can be said that each elemental regime has contributed to the epistemic
quality of the sustainable biofuel domain. However, the question is whether there is
‘the consistency between their rules and scientific knowledge’142 among the regimes.
As noted, sustainability criteria and standards defined by the three regimes differ in
their coverage. The EU provides minimum criteria, but the GBEP and private schemes
The related concept of ‘epistemic community’ is defined as ‘a network of professionals with recognized
expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area’. Haas, ‘Introduction: Epistemic Communities and International
Policy Coordination’, 46 International Organization (1992) 1, at 3.
137
Ibid.: ‘[A]n epistemic community may consist of professionals from a variety of disciplines and
background.’
138
For a controversy about the central role played by scientific knowledge due to ‘many uncertainties and
limitations in scientific knowledge regarding risks’, see J. Peel, Science and Risk Regulation in International
Law (2010), at 5.
139
Green, supra note 99, at 15–16.
140
See RSB, Greenhouse Gas (GHG) Expert Group, available at http://rsb.org/activities-and-projects/ghgexpert-group/ (last visited 24 February 2016). Similarly, the ISCC and the RSPO also have their own GHG
emissions calculation methodologies.
141
See RSPO, The Biodiversity and High Conservation Value Working Group, available at http://www.rspo.org/
about/who-we-are/working-groups/biodiversity-high-conservation-values (last visited 24 February 2016).
142
Keohane and Victor, supra note 18, at 17.
136
154
EJIL 27 (2016), 129–159
set out more detailed indicators, addressing environmental, social, economic and
governance aspects. However, this article has argued that these coverage differences
are not in conflict, as the purpose and function of each regime differ. At the same
time, however, there are criticisms and concerns, as noted previously, that the RED
provides deficient sustainability criteria and that private certification schemes vary
in standard contents and compete with each other. This situation may lead to a negative recognition of inconsistencies and the insufficiency in epistemic quality of the
regimes, thereby reducing the legitimacy of the regimes. Thus, it is essential that the
regimes and relevant actors should realize the fragility of the epistemic quality and
make efforts to improve legitimacy, which relates to the fourth and fifth dimensions –
accountability and fairness.
D Accountability
It is difficult to assess and ensure the accountability of the entire regime complex for
sustainable bioenergy. In this regard, this subsection focuses on how accountability
is manifested in the regime complex’s elemental regimes. First, Keohane and Victor
draw on the accountability concept put forth by Grant and Keohane that ‘some actors
have the right to hold other actors to a set of standards, to judge whether they have
fulfilled their responsibilities in light of these standards, and to impose sanctions if
they determine that these responsibilities have not been met’.143 In other words, the
actors being held accountable ‘have to answer for [their] action or inaction’ concerning ‘accepted standards of behavior and … they will be sanctioned for failures to do
so’.144 This application of accountability can be better understood by applying the
concept of ‘internal accountability’145 where principals and agents are ‘institutionally
linked to one another’.146 It can be understood that the statement ‘the actors being
held accountable’ refers to ‘agents’ who are subject to ‘principals’ who can require
that the agents follow certain obligations.
One important aspect of internal accountability can be found in the relation between
the EU and its member states. The EU holds its member states to internal accountability, as the EU establishes sustainability criteria for biofuels and monitors compliance.
Ensuring accountability becomes particularly important when the EU outsources and
delegates the monitoring task to private certification schemes. As part of this delegating activity, the European Commission screens approval requests from private schemes
according to the assessment procedure that it has established,147 with its approval
decisions being reviewed every five years and reporting obligations to the European
Parliament and to the Council on the operation of private schemes in the RED.148
Grant and Keohane, ‘Accountability and Abuses of Power in World Politics’, 99 American Political Science
Review (2005) 29.
144
Ibid., at 30.
145
Koehane, ‘Global Governance and Democratic Accountability’, in D. Held and M. Koenig-Archibugi (eds),
Taming Globalization: Frontiers of Governance (2003) 141.
146
Ibid.
147
See Biofuels Communication, supra note 53.
148
Consolidated version of the RED, supra note 39, Art. 18(6), subparas 1 and 3.
143
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Furthermore, the EU’s accountability is affected not only by its approval process for
private certification schemes but also by how these approved schemes regularly certify
and verify economic operators (farms and mills). In other words, the accountability
mechanism is multi-layered.149 While private schemes are required to have an inde­
pendent auditing system (that is, a system where a third party certification body, independent from the private schemes, certifies applicants),150 the credibility depends on
each private scheme, establishing detailed procedures for certification bodies and auditors to strengthen their auditing systems. To strengthen accountability and credibility,
these procedures should establish requirements for the impartiality and independence
of the certification bodies, regulate the skills and qualifications of the auditors and provide auditors with detailed tasks.
Second, while the EU is accountable internally to its member states for how it
approves private schemes, the private schemes themselves are also held accountable.
As the activities of private schemes grow and expand, concerns have arisen about
their ‘external accountability’,151 a concept described by Keohane as ‘accountability
to people outside the acting entity, whose lives are affected by it’.152 In contrast with
internal accountability, external accountability does not presuppose an accountability relationship between principals and agents.
The demand for external accountability first arose in debates regarding the role of
powerful and expansive entities,153 such as the United Nations (UN) and the WTO systems,154 and was not placed on private regimes. Nevertheless, private regimes have
increasingly been subjected to external accountability if ‘private rules in the form
of standards have far reaching consequences affecting a wide range of actors’.155 In
the sustainable bioenergy domain, various external stakeholders, in addition to the
members of private schemes (for example, certified farms/mills under these schemes),
are also affected by private standards and certifications, such as the general public or
farms and mills located in developing countries.
One way to ensure that private schemes are held accountable to external stakeholders is to ensure ‘input legitimacy’. As stated previously, such legitimacy would
guarantee the inclusion of external stakeholders in decision-making processes. If a
private regime’s model is that of a multi-stakeholder initiative, input legitimacy might
be stronger by design. However, even in multi-stakeholder initiatives, stakeholder
engagement may be difficult or there may be unequal representation of stakeholder
groups. Concerns over the external accountability and input legitimacy of private
See Lin, supra note 31, at 66: ‘In the EU biofuels regulatory regime, there are two levels of delegation
which must be considered.’
150
See consolidated version of the RED, supra note 39, Art. 18(5) and Adequate Standard of Independent
Auditing, in Biofuels Communication, supra note 53, s. 2.2.2.
151
Fuchs et al., supra note 62, at 358; Biermann and Gupta, ‘Accountability and Legitimacy in Earth System
Governance: A Research Framework’, 70 Ecological Economics (2011) 1856, at 1857.
152
Koehane, supra note 145, at 141.
153
Ibid., at 143. See also Bodansky, supra note 64, at 325.
154
For a discussion of the legitimacy of the WTO, see Scott, ‘European Regulation of GMOs: Thinking About
Judicial Review in the WTO’, 57 Current Legal Problems (2004) 117, at 130–131.
155
Fuchs et al., supra note 62, at 354.
149
156
EJIL 27 (2016), 129–159
schemes may be at least partially addressed if the regimes improve on the fairness
dimension, which is considered next.
E Fairness
Keohane and Victor do not explain the concept of fairness in detail, stating merely
that ‘[regime complexes] should provide benefits widely’.156 In the context of the proliferation of sustainability standards for bioenergy, fairness is focused on whether
farms and mills in developing countries can make better use of sustainability standards for their exports, thereby gaining access to the sustainability market. Moreover,
even if not involved in trading, communities and individuals in developing countries
are still affected by sustainability standards when shifting from the unsustainable use
of traditional bioenergy to the more modern and sustainable uses of bioenergy. The
consideration of fairness in this context is substantive, focusing on ‘distributive justice’ among countries – for instance, whether regime complexes ‘create solutions and
systems which take into account society’s answers to [the] moral issues of distributive
justice’.157
In addition to substantive considerations, a procedural aspect of fairness is also
discussed in the literature, concerning ‘what the participants perceive as right process’.158 However, this procedural fairness is difficult to apply in the context of regime
complexes, because the question is whether a regime complex is made under the right
process. Regime complexes emerge without the right process or order, and that is why
a comprehensive regime was not yielded. A possible inquiry is whether each elemental regime is fair in the procedural aspect – for instance, whether private certification
schemes ensure ‘input legitimacy’ or ‘procedural legitimacy’ as addressed previously.
Therefore, this subsection focuses on the substantive fairness aspect rather than the
procedural one and examines whether the regime complex creates solutions for distributive justice.
One distributive fairness issue in the sustainable bioenergy domain is concerned
with trade impacts of setting standards on developing countries. One topic of debate
concerns whether private standards are functioning as trade barriers to exports from
developing countries.159 The WTO has been a well-known forum discussing the exclusionary and negative trade effects of private food safety standards on agricultural
products from developing countries.160
In the context of sustainable bioenergy standards, serious concerns exist whether
producers in developing countries can earn certifications from the private schemes
approved by the European Commission and thereby access the EU market. As noted,
Keohane and Victor, supra note 18, at 18.
For two aspects of ‘fairness’ (procedural fairness and distributive justice), see T. Frank, Fairness in
International Law and Institutions (1995), at 8.
158
Ibid., at 7.
159
Henson and Humphrey, ‘Understanding the Complexities of Private Standards in Global Agri-Food Chains
as They Impact Developing Countries,’ 46 Journal of Development Studies (2010) 1628, at 1641–1643.
160
Stanton, ‘Food Safety-Related Private Standards: The WTO Perspective’, in A. Marx et al. (eds), Private
Standards and Global Governance: Economic, Legal and Political Perspectives (2012) 247.
156
157
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sustainable biofuels standards include many environmental and social standards that
may present a challenge for farmers in developing countries. In this regard, the support
programmes for smallholders that some private schemes have initiated might be helpful. For instance, the RSPO used some of its revenue to establish a ‘Smallholders Support
Fund’.161 The RSB has undertaken pilot projects to ‘improve the livelihoods of small
farmers by linking them to markets and promoting sustainable practices’.162 Bonsucro
has also developed farmer support programmes, which target smallholders.163
These programmes are attempts to increase opportunities for small farmers to participate effectively in the market, and simultaneously, it also provides chances for private certification schemes to explore new applicants for their certifications. It would
be desirable if both private schemes and small farmers can benefit through working
together. However, there are farmers in developing countries who are still excluded
from the community of standards and certifications due to the lack of information
and capacities to start up sustainable production. In this vein, the GBEP plays a key
role in supporting the planning and implementation of sustainable bioenergy policy
in developing countries. As noted above, its focus is on developing countries rather
than on firms and traders who are already operating in the global bioenergy market and are able to gain sustainability certifications. The GBEP’s initiatives contribute
to the fairness dimension of the regime complex by responding to the exclusionary
effects of sustainability regulations and to the basic needs of developing countries.
There is another recent initiative at the international level to make private standards
act as trade opportunities instead of trade barriers. The UN Forum on Sustainability
Standards (UNFSS) was launched in March 2013 under the partnership of five UN
agencies: the FAO, the International Trade Centre, the UN Industrial Development
Organization, the UN Environmental Program and the UN Conference on Trade and
Development. The objective of the UNFSS is to make sustainability standards useful
for developing countries by viewing them as ‘a strategic policy issue, linked to the
internalization of environmental and social costs, as well as the promotion of developing countries’ competitiveness in and access to growing ‘sustainability’ markets’.164
Similarly, it has been recognized that ‘[t]he rational for creating UNFSS is to shift the
focus from seeing [voluntary sustainability standards] as ends in themselves or mere
technical tools, to recognizing them as a means to sustainable development and to
contextualize them into the macro-economic development perspective’.165 The impact
See the RSPO Smallholders Support Fund, available at www.rspo.org/en/rspo_smallholder_support_
fund (last visited 24 February 2016).
162
See RSB, Smallholder Program, available at http://rsb.org/activities-and-projects/smallholder-program/
(last visited 24 February 2016).
163
See Bonsucro, Farmer Programmes, available at http://bonsucro.com/site/farmer-programmes/ (last visited 24 February 2016).
164
UN Forum on Sustainability Standards (UNFSS), What Is the UNFSS? available at http://unfss.org/aboutus/ (last visited 24 February 2016).
165
Grothaus, ‘Objectives and Challenges of the United Nations Forum on Sustainability Standards: The
Emerging Intergovernmental Forum of Dialogue on Voluntary Sustainability Standards, a Joint Initiative
of FAO, ITC, UNCTAD, UNEP and UNIDO’, in A. Meybeck and S. Redfern (eds), Voluntary Standards for
Sustainable Food Systems: Challenges and Opportunities (2014) 27.
161
158
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of sustainability standards in general is still under evaluation,166 but it might be useful
to explore a positive approach towards sustainability standards and how they can create opportunities for developing countries.
F Sustainability
Finally, the sustainability criterion evaluates whether a regime complex is sufficiently
viable to maintain a long-term existence. The future duration of the current bioenergy
regime complex is influenced by two factors. The first factor is uncertainty over future
demand and supply in the world bioenergy market. According to the International
Energy Agency (IEA), bioenergy currently contributes 10 per cent of the world’s total
primary energy supply.167 Although the IEA’s roadmap estimates a threefold increase
in bioenergy supply by 2050,168 this supply will be influenced by issues such as feedstock production, technology development and trade volume.
The second factor affecting the duration of the regime complex is whether the EU
can maintain a stable and sound bioenergy policy along with the RED, thereby maintaining its market power and attracting more exporters of sustainable biofuels. Some
uncertainties over the EU’s future market size for sustainable biofuels may influence
existing private certification businesses and generate negative incentives for bioenergy
operators and traders, causing them to pursue only short-term business advantages.
6 Conclusion
This article has addressed the regime complex for sustainable bioenergy, which comprises three elemental regimes at the international, regional and private levels. The
regime complex situation addressed in this article has emerged mainly for two reasons:
a high degree of uncertainty in this domain and the presence of public–private interactions. Although the high degree of uncertainty has prevented the emergence of a
core umbrella regime at the international level, the regulatory collaboration between
the EU and private schemes has mobilized and promoted sustainability certification
businesses, resulting in international reach and impact. Overall, the sustainable bioenergy regime complex is functioning well, as each regime is playing an important
role in the proliferation of sustainability standards for bioenergy. The article then has
attempted to evaluate whether the current situation of the bioenergy regime complex
can be further improved. To do so, this article has applied Keohane and Victor’s six
evaluative criteria.
Many areas for improvement exist in the current regime complex for sustainable
bioenergy. Although each regime is not extremely diversified in terms of coherence,
determinacy and epistemic quality aspects, there are still notable incompatibilities and
For the importance of reviewing the impacts, see the State of Sustainability Initiatives, State of
Sustainability Initiative Review (2014) and the Committee on Sustainability Assessment, Measuring
Sustainability Report (2014).
167
IEA, supra note 1, at 10.
168
Ibid., at 35.
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differences. It is uncertain how existing fragments would make the regime complex
fragile or whether there will be any coordination efforts in the future. Regarding the
accountability aspect, although each regime seems to recognize its importance, further efforts will be needed to strengthen this criterion. To mitigate the exclusionary
effects of sustainability regulations, the fairness aspect should receive more attention,
and regimes should consider opportunities for developing countries to participate in
the production and use of bioenergy. Without improving its efforts,169 the regime complex remains at risk of falling apart or weakening. It remains to be seen whether the
regime complex for sustainable bioenergy can progress towards greater effectiveness
and better governance.
Applying the concept of ‘orchestration’ would be another alternative to improve the current regime complex. See Abbott, ‘Strengthening’, supra note 19, at 83; K. Abbott et al., International Organizations as
Orchestrators (2015).
169