I. ISSUES AND DISTINCTIONS TO KEEP IN MIND
As a means to bring some order to the array of issues related to ISO 14000, and to develop some type of coherent grouping, CNI proposes the following categories:

1. standards development/standards implementation
2. voluntary use of standards/mandatory use of standards
3. EMS certification/regulatory compliance
4. rights of private business/public accountability
5. WTO obligations/domestic regulations

These distinctions may help develop an appropriate strategy to address each set of issues.

A. Standards Development/Standards Implementation

A.1 Standards Development
Issues:

• lack of environmental NGOs in the initial standards development process
• international setting for standards meetings
• lack of resources for NGO participation

The Standards Development issues may be viewed in the following context. The International Organization for Standardization (ISO) is a private organization whose members are the official standards setting bodies for each represented country. ISO was established in 1947 to help facilitate trade between countries by creating voluntary sets of standards to harmonize technical specifications associated with product development. In the mid-80s, ISO expanded its standards development to include management systems. ISO 9000 was developed to help companies put an emphasis on quality assurance throughout the entire production process. ISO 14000 is being developed to help companies put an emphasis on its environmental aspects throughout the entire productions process.

Once ISO determines a need for a set of standards, it organizes a Technical Committee (TC) to develop the necessary standards. The ISO 14000 series of standards are being developed within TC 207. Each member country has a Technical Advisory Group (TAG) which attends the international meetings and argues for language in the standards that reflect that country's position. In the U.S. the recognized standards setting body is the American National Standards Institute (ANSI) which is a private organization. ANSI currently sponsors a U.S. TAG to TC 207.

The U.S. TAG is structured into sub-TAGs to reflect the structure of sub-committees within TC 207. Any organization or individual may become a member of the TAG. A U.S. TAG member can attend meetings within the U.S. and negotiate the U.S. position to be carried into the international standards development forum. Arguably, given the weight of the U.S. position within most international forums, influencing standards development at the U.S. TAG level is likely to influence the final international standard adopted by ISO.

Few U.S. environmental organizations participate in the standards development process for many reasons for this. Most significantly, NGOs were not invited into the process until 1994 when nearly all of the text on specifications had been drafted for environmental management systems (EMSs). NGOs who were willing to work on these standards were frustrated with the meager possibility of changing the specification language by that late date. The final standard was published in the fall of 1996.

The other documents within the ISO 14000 series are guidance documents which may or may not be used in conjunction with a certified ISO 14001 EMS. These other documents, however, are still important and pertain to other methods often used to improve environmental performance. The guidance documents outline principals for EMS auditing, environmental performance evaluation, environmental labeling, and life cycle assessment. Presently, these documents are at various stages of completion. It is important to note, however, that only ISO 14001 contains certification specifications for an environmental management system. All the other documents are optional considerations for companies developing a comprehensive environmental management system.

In keeping with the systems approach to environmental management, the ISO 14000 standards could be considered a "living document." All standards must be renegotiated every five years. This creates a feed-back loop which allows for adjustments to the standards. The ISO 14001 EMS standards are scheduled to begin renegotiation in 1999. Conceivably, NGOs who are participating in the standards development process at that time will be able to influence the outcome of these standards.

A.2 Standards Implementation
Issues:

• State and Federal pilot projects which link use of ISO 14001 implementation to regulatory flexibility
• evaluating actual affects on environmental performance

The standards development process described above is private and voluntary within the United States. An ISO standard has no statutory basis which makes it binding on any country or private company. Once a standard is formally published by ISO as an international standard, it may then be adopted by each country's standards setting body. A member country may incorporate the standards into its domestic regulations or allow it to be voluntarily adopted by private companies. Currently in the U.S., the use of ISO 14000 standards is voluntary and about 30 companies are certified to ISO 14001. This does not necessarily mean that these companies are any more environmentally friendly than an uncertified company.

Implementing ISO 14001 means only that an organization has voluntarily developed a management system which takes into account the environmental aspects of the organization's impact on the environment. An EMS addresses, monitors, and specifies actions to be taken regarding certain environmental aspects. As with other private industry practices, an organization does not have to disclose its internal management system procedures or the aspects that it monitors. However, for an organization to become ISO 14001 certified it must make public its policy on environmental practices and its commitments to continual improvement. This can be contrasted to a company which is not certified to ISO 14001. Companies are not currently obligated to do a full accounting of the environmental aspects of its practices and they do not have to make any public statement of commitment to the environment.

ISO 14001 does not contain any language which relieves the an organization from meeting all of its domestic regulatory requirements. To become certified, a company must put an environmental management system in place which contains a commitment to compliance. A company which has implemented an ISO 14001 EMS, if audited by any government regulatory official and found to be in noncompliance with any environmental regulation is subject to the same penalties as a company which does not have an ISO 14001 EMS. The only exception is when an organization links its EMS implementation to a special government sponsored pilot project.

A growing concern among many NGOs are the various state and federal pilot projects (i.e., Project XL, Environmental Leadership Program, etc.) which are attempting to link an organization's implementation of an ISO 14001 EMS with some type of regulatory flexibility. The regulatory agencies are conducting these pilot projects to determine if the use of an ISO 14001 EMS leads to better environmental performance. In theory, implementation of an EMS causes companies to monitor themselves in ways it would not have done if it did not make the extra effort to implement the standard. These projects are just starting and there is not any evidence to date which suggests that an ISO 14001 EMS justifies cutting back on a companies regulatory requirements. By far, the majority of companies implementing ISO 14001 in the U.S. are not receiving regulatory flexibility, nor should they, unless or until there is solid evidence to justify such a step.

B. Voluntary Use of Standards/Mandatory Use of Standards

B.1 Voluntary Use of Standards
Issues:

• companies self-determine what practices they intend to monitor and improve
• no guarantee that use of EMSs results in better environmental practices

Currently within the U.S. an organization may adopt any management practices it determines best suit its objectives. Many companies within the U.S. have their own version of an environmental management system. In fact, one of the reasons ISO 14000 standards are being developed is to counter the trend of having a hundred different companies in a hundred different countries implement a hundred different EMSs. This would likely result in some EMSs being better than others. It becomes difficult for businesses as well as interested NGOs to monitor the various EMS models to know which ones are effective and which ones are not. In the interest of facilitating trade, ISO determined there was a need for a international EMS. ISO 14001 is the international model for an environmental management system. Businesses are encouraged to use this model to facilitate trade between countries. The European Union, which has been quite aggressive in steering industries to implement EMSs, allows an ISO 14001 EMS as an alternative to the EMS model required by EMAS/R.

Counter-intuitive to most NGOs is the fact that most organizations do not have an environmental management system in place. Most companies have some type of internal system to check for compliance with certain regulations, but there is not a system which tracts a company's environmental aspects from start to finish. Within the U.S. there is not a government mandate to force companies to create such a management system. The use of EMSs is voluntary. Most companies which have invested the resources to create an environmental management system are finding that they are able to benefit from its use. Through implementation, companies are becoming aware of inefficiencies that were not evident before their EMS was put into place. Many companies have identified non-regulated aspects to their business practices (i.e., water and energy consumption) as areas for immediate environmental improvement. There is still no evidence, however, that the companies are improving their overall environmental performance. A mechanism to compare the performance of organizations using ISO 14001 and companies that do not, must be developed before use of ISO 14001 can be linked to enhancement of environmental performance.

B.2 Mandatory Use
Issues:

• government actively involved in ISO 14000 standards development
• state and federal encouragement for an EMS approach.

It is not always clear that the use of ISO 14000 is voluntary, for several reasons. First, government officials (mostly from U.S. EPA) actively participate in the ISO standards setting process. This does not necessarily mean that ISO 14000 is automatically going to become part of the U.S. regulatory scene. Under the 1995 Science, Technology, and Transfer Act all federal agencies, including EPA are required to participate in voluntary standards development when the standards are related to the agency's concerns. Similarly, agencies developing new regulations are expected to use voluntary standards as part of their regulatory framework if the standard already exist, unless the agency can prove the existing standard is inadequate. In this instance, if EPA were to mandate use of an EMS for U.S. industries, they would have to require usage of ISO 14001 unless they could show that the standard is inadequate.

Another reason for confusion is that ISO 14000 standards have been linked to state and federal pilot projects (discussed above). Many states are also attempting to link the implementation of ISO 14001 and self-auditing practices with penalty reductions. Whether or not these government related initiatives are encouraged or halted, the fact remains that the use of ISO 14001 is voluntary and many companies will implement these standards as a basis for their environmental management system. Therefore, the development of the standards will continue to be relevant to NGOs who want to see industry's environmental management practices improved whether through voluntary initiatives or government mandate.

C. EMS certification/regulatory compliance

C.1 EMS Certification
Issues:

• companies can self-declare
• third-party certification can occur even if a company is in regulatory non-compliance
• public misconception that an ISO 14001 certification equates to better environmental performance

An organization may choose to have a third-party auditor certify that the company's EMS conforms to the ISO 14001 specifications or the company may self-declare that it conforms to the specifications. The validity of self-declaration is at best questionable. A more likely practice is for companies to have registered auditors audit their company's EMS for conformance with ISO 14001. The company does not have to be in total compliance with all environmental regulations to become certified. It does have to prove that its EMS will result in regulatory compliance if properly followed. A further requirement of the EMS is that if the company is outside of compliance, the EMS must have a process to evaluate its non-compliance and an adjustment procedure. Companies which are frequently outside of regulatory compliance will also be outside of ISO 14001 EMS conformance. Non-conformance to the ISO 14001 EMS specifications jeopardizes a companies certification. What is not known at this time is how many times and in what specific areas non-conformance has to occur before drastic measures are imposed on a company.

ISO 14001 EMS certification has not been proven to validate an organization as being environmentally superior to other organizations. It is important that NGOs and the public learn the proper emphasis to put on a company's claim to certification. Certification verifies that a company is aware of its environmental aspects and it monitors these aspects to meet certain environmental goals. The company has also committed to making continual improvement. It is not clear at this time whether the continual improvement will be to environmental performance or EMS improvement. However, voluntary improvement is voluntary improvement and businesses should not be discouraged from undertaking such initiatives.

C.2 Regulatory Compliance
Issues:

• lack of specific performance levels
• certification not contingent on regulatory compliance
• no regulatory enforcement mechanism

The ISO 14000 series of environmental management standards takes a systems approach to environmental performance. The standards detail a generic process which must operate within an established regulatory framework because the ISO standards contain no specific performance levels. The ISO 14001 EMS requires a commitment by the company to comply with all relevant regulations by following a comprehensive management system designed for that individual company. A company will not become ISO 14001 certified without making that commitment. There will always remain a need for regulators to continue to inspect companies for compliance with regulations. If the proponents are correct that ISO 14001 EMS implementation will lead to better overall environmental performance, then companies will benefit by paying fewer fines and insurance liability.

D. Rights of private business/public accountability

D.1 Rights of private business
Issues:

• lack of effective public participation
• company chooses what environmental practices to improve upon

As a general rule, companies do not invite public participation into its management activities. ISO 14001 is a voluntary set of standards which currently contains very weak public interaction requirements. However, as weak as these requirements are, they still require more from a company than is legally required now.

The company must also specify aspects it intends to improve upon. These improvements are strictly voluntary and often are directed at activities which are currently nonregulated. For instance companies often determine to cut back energy consumption by X%. These reductions are usually obtainable without any major change in practices. The important feature for NGOs to watch is how seriously companies meet the challenge of continual improvement. But there is still the argument that even small reductions multiplied by many companies could produce significant environmental benefits.

D.2 Public Accountability
Issues:

• audits are not made public
• no opportunity for notice and comment during standards development and implementation

Presently a company is not required to publish details of its practices beyond what is currently mandated by law. Implementation and certification of an ISO 14001 EMS does not lessen these statutory requirements. In some instances, however, companies participating in pilot projects with either a state or the federal government, may have some of its routine regulatory requirements temporarily waived. In these instances, it is usually necessary for the government to give public notice and allow time for comment.

The ISO 14000 series of standards are developed outside of a government forum by a private international organization. This organization is not obligated to allow public notice and comment as required by U.S. law. The responsibility of public notice becomes necessary whenever the U.S. government makes these standards part of its regulatory process.

E. WTO Obligations and Domestic Environmental Regulations
Issues:

• WTO's deference to international standards over its members own domestic health and environmental regulations
• voluntary international guidance standards for health and the environment no longer "voluntary"

There is a growing concern that under the World Trade Organization's (WTO) trade rules, ISO standards may become mandatory on member countries. There is substantial controversy over this issue but the fact that it remains unresloved is highly significant. The recent WTO decision on growth hormones indicates that in resolving trade disputes where a country's domestic health or environmental regulations are questioned, the WTO panel will rule against countries who cannot scientifically justify using standards stricter than accepted voluntary international standards.

II. RECOMMENDATIONS
CNI together with ECOLOGIA, a grassroots-oriented NGO, is forming an NGO Working Group to address the various issues related to the development and implementation of the ISO 14000 series. The group will consist of local, regional, national and international NGOs. This team effort has the objective of encouraging cohesive and multi-dimensional strategy to address the issues listed in this paper and others which may emerge later.

A. U.S. TAG Participation

The first step to addressing the issues related to ISO 14000 voluntary standards development is active NGO participation at the U.S. TAG level. CNI/ECOLOGIA (C&E Team) believes this approach must be evaluated thoroughly to determine whether NGO participation will be influential. If NGOs permeate the U.S. TAG standards development process, it becomes much harder for industry to ignore or overlook NGO concerns.

B. Fight linkages between ISO 14000 and regulatory flexibility

Issues associated with the implementation of ISO 14001 EMS standards cannot be addressed through U.S. TAG participation or non-participation. The most effective course to pursue in regards to these issues is to hold the government agencies accountable for preserving all existing regulatory requirements. ISO 14001 can only achieve its full potential if the government does not initially link its use to regulatory flexibility. Much more evidence is needed before any adjustments are made. ISO 14001 cannot replace a regulatory framework but it can be used as a tool to reach compliance. Better environmental performance is more likely to be achieved when the regulatory framework and ISO 14001 can compliment each other.

C. Continue to lobby for regulations leading to better environmental performance

NGO participation in the development of more environmentally friendly voluntary standards development, in no way forecloses NGOs from continuing to lobby for stricter environmental regulations. Pursuing both avenues simultaneously has several advantages. By having NGOs in the private forums working with industry to voluntarily develop environmental management practices and to implement them without the additional government intermediary may lead to significant environmental improvements, especially in the non-regulated areas of energy and water consumption. If industries are able to achieve better environmental performance in these difficult to regulate areas, developing regulations may become less difficult and industries arguments against such regulations hold less merit.

It is important for NGOs to continue lobbying for better and more efficient regulations. As new regulations develop, companies who are certified to ISO 14001 will have to quickly include an objective of meeting these regulations in order to continue their EMS certification. The interest the Clinton administration is showing in Climate Change and Community Right To Know initiatives creates an environment for all organizations to quickly assess their environmental aspects and develop an approach to meet these additional burdens. It seems almost inevitable that some type of EMS will need to be implemented and ISO 14001 would be the likely model.

D. Participate in voluntary industry efforts to implement EMS programs

NGOs should seek out organizations that are voluntarily implementing a ISO 14001 EMS (or any other EMS) and offer to help in an advisory capacity. It will be useful for NGOs to develop an understanding of the impediments to organizations changing over to more environmentally cognizant management regimes. Organizations will equally benefit from the insights that NGOs bring to table. Companies that have implemented ISO 14001 with strong public participation features are finding themselves benefiting in ways they never expected (i.e., Lucent Technologies, Allentown, PA). The environmental organizations who participate in these efforts are also benefiting from working with the companies on a less adversarial basis.

E. Pick your fight and network

Probably the most important aspect of these recommendations is to have NGOs "pick their fight and network." NGO involvement with these issues has been tenuous at best and non-existent at worst. We do not know which approach will bring the benefits we would like to see as an NGO community. Each NGO has particular areas of interest, however, with the broad reach of the ISO 14000 series, some element of these standards touch on every area of interest to some extent. NGOs need to examine the issues carefully, determine a course of action which suits the organizations interests, and pursue their goals. What is perhaps most valuable at this stage is not so much which course of action is chosen, but that as a NGO community we began to network on these issues and keep each other informed on which course of action has been chosen, the results as they occur, and mistakes which can be avoided. This will help stretch the limited NGO resources by keeping a organization with similar objectives from "reinventing the wheel."

NGOs who choose participation in the U.S. TAG as a strategy, can perhaps develop a "tag-team" approach by linking up with NGOs in different geographic locations and taking turns attending meetings and reporting back to each other. One of the C & E Team's objectives is to form a central clearinghouse for all the TAG documents and reports from the various sub-TAG meetings. This will begin to create an institutional memory for this process which will likely outlive any individual who begins participation this year.