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Chapter prepared for A. Payne and N. Phillips, eds. Handbook of the International Political Economy of Governance, Cheltenham: Edward Elgar, 2014 forthcoming. Please do not cite without permission.

The governance of primary commodities: biofuel certification in the European Union

Ben Richardson, Department of Politics and International Studies, University of Warwick1

Biofuels are transport fuels made mainly from food crops like maize, palm oil, rapeseed, sugarcane and soybean.2 Despite the fact they were promoted as a green alternative to fossil fuels, they proved immensely contentious, linked to deforestation, biodiversity loss and even increased greenhouse gas emissions. As a result, in 2009 the European Commission passed legislation which effectively required all biofuels sold in the EU to meet high environmental standards, including those imported from developing countries. In its own words, this became ‘the most comprehensive and advanced binding sustainability scheme of its kind anywhere in the world’ (CEC 2010: 1).

In two important ways, this legislation did indeed represent a watershed moment in the governance of primary commodities. Most notably, the sustainability standards applied not to the product itself but to the way it was produced. This was significant given previous rulings under the GATT and WTO dispute settlement process which had made clear that discrimination in favour of ‘dolphin-friendly’ tuna and ‘turtle-friendly’ shrimp would be difficult to uphold. For many observers, discrimination in favour of ‘eco-friendly’ biofuels was simply the latest manifestation of green protectionism (Erixon 2012). Yet to the extent that the EU has avoided legal challenge to its new market access arrangements, it has suggested that an expanded remit for environmental protection within the multilateral trading system may be possible.

The other important aspect to the EU scheme was the way in which compliance would be monitored. Instead of relying on public inspection or government legislation in third countries, it would use certification systems to provide assurance that the complicated environmental requirements were being met. Certification systems are member-driven organisations which devise their own standards of production and monitor compliance through site visits by independent auditors. In this case they were comprised solely of non-state actors like corporations and NGOs, leading one scholar to refer to it as regulatory ‘outsourcing’ to the private sector (Lin 2011).

At first glance, it would appear that these private certification systems have helped bridge the ‘governance gap’ between the supra-national nature of many ecological challenges and the frequently ineffective inter-national institutions that exist to tackle them. Certainly this has been the opinion of one their leading proponents, the World Wide Fund for Nature (WWF). They have argued that in the context of weak multilateral agreements on the environment, certification systems ‘fill an important gap in the governance of natural resource use’ and have ‘raised the bar and contributed to strengthen and improve the regulatory and policy context for natural resource management’ (WWF 2010a: 5). Moreover, their emergence also suggested that a more consensual and technocratic means of doing regulation was possible; one where attention could be focused on harmonisation of the various biofuel production standards and the methods of carbon footprinting they relied on (IUCN 2010; UNCTAD 2008).

This chapter seeks to contest the benign view of power underpinning this account. It argues that ‘non-state’ governance in biofuels is something of a misnomer, since the state has been integral to its formation and adoption. Rather than conceding power to these certification systems, both national governments and the European Union have used them as a means to try and control how agricultural production takes place in developing countries. Furthermore, rather than placating political opposition, this process has bifurcated it. A wedge has been put within civil society between those NGOs that have supported the process of certification and others that have dismissed it. Those oppositional voices have noted how social issues like labour rights and food security have been marginalised in the EU legislation and notions of sustainability reduced to a much narrower concern with greenhouse gas emissions. More critically, they have depicted this new form of governance as, on the one hand,

1 This paper has benefitted greatly from conversations with Robert Ackrill and Adrian Kay as well as feedback from colleagues at the British International Studies Association panel at which it was presented in April 2011. 2 Other feedstocks for biofuel include non-food crops like jatropha and grasses as well as animal fats and waste vegetable oils.

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legitimising further monoculture plantation production in the Global South, whilst on the other, denying the role of energy-intensive ‘modern’ lifestyles in the Global North as a source of ecological crisis. In short, governance has only partially tamed market activity, and yet, in so doing, also helped to extend it.

The chapter proceeds by drawing on the existing literature on private governance to show how the twin concerns around the ‘non-state’ and ‘market-driven’ character of certification systems have been raised in respect to other primary commodity sectors. It then shows how the bourgeoning biofuels market in the EU was undermined as the product became linked to rising food prices and environmental degradation, leading policy-makers to search for a more ambitious mode of governance to restore public faith in the project. Taking the insights from the literature review, the next two sections show how national governments helped ‘ratchet up’ the standards of certification systems which were then ‘levelled down’ by the EU, and how oppositional NGOs have since depicted them as ‘smokescreens’ which mask the bigger problems associated with biofuel production.

The politics of private certification and non-state governance

For scholars interested in the shift from government to governance, activity in the primary commodity sector has provided much food for thought. A variety of institutions have emerged over the last two decades that in one way or another have attempted to regulate corporate activity from ‘beyond the state’. Examples include: the Extractive Industries Transparency Initiative, which has encouraged oil, gas and mining companies to disclose their payments to governments; the UN Global Compact, which has aimed to instil values of good corporate citizenship among its multi-stakeholder membership; and the Kimberley Process, which has sought to identify ‘blood’ diamonds linked to armed conflict and put industry-led sanctions upon their trade (Haufler 2010; Woods 2002; Shaw 2003).

Despite the involvement of non-state actors and the use of ‘soft law’ compliance mechanisms, these arrangements still included representatives of the state and/or were situated in traditional intergovernmental forums. In contrast, other governance initiatives appeared to have a purely private constitution. Among these were certification systems dealing with fair-trade, organic and food management standards. These were self-regulating bodies that pulled businesses into their system of rule by relying on the desire of corporations to avoid reputational scandal and on consumer demand for safe, sustainable and ethical products. This in turn provided the credible threat on which compliance with their respective standards depended: expulsion from the scheme, accompanied by negative press and a loss of market share. Based on this particular make-up and mechanism of rule, these systems were dubbed ‘non-state market-driven’ governance (Cashore 2002).

There were, of course, important differences between the individual systems. One of these was the mix of corporate and charitable actors that manage them. For instance, the Fairtrade Labelling Organisation (FLO) has traditionally been led by development NGOs while the GlobalGAP farm management scheme has been led by Dutch and UK supermarkets. Another difference was the scope of retail sales they intended to cover. While the FLO targeted a consumer niche with products from small-scale cooperatives, GlobalGAP effectively became a minimum requirement for any developing country producer wishing to sell through multiple European retailers.

It is in this context that the Forest Stewardship Council (FSC) certification system – one of the most ubiquitous case studies in this field – must be understood (Auld and Gulbrandsen 2010; Bernstein and Cashore 2007; Gale and Haward 2011). Resting on a multi-stakeholder membership of industry actors and civil society organisations, and from both developed and developing countries, the FSC seemed to encompass the best of both worlds. That is to say, it has moved beyond the comfort-zone of business in tackling illegal logging and deforestation, yet by virtue of its commercial-orientation, also targeted mainstream markets. Indeed, based on the successes of this experiment, one of the founder members of the FSC, the WWF, came to launch ‘roundtable’ certification systems for commodities including palm oil, sugarcane, soybeans and biofuels themselves – each of which would later enter the world of EU biofuel governance.

In thinking about the politics of the FSC and its roundtable membership, many scholars have used the conceptual prism of legitimacy. As Ruggie (1982: 380) argued in the context of intergovernmental regimes, authority rests on a form of legitimacy that could only be derived from a ‘community of interests’. Applied to the FSC, this suggested that unless the chosen standards of production and

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rules of enforcement were seen as justified and appropriate by NGOs and local associations (as well as by the traditional regulatory community of businesses, public agencies and consumer-citizens) they were unlikely to function effectively. The result was that certification systems have had to set themselves higher requirements for inclusiveness, transparency and accountability vis-à-vis intergovernmental regimes (Bernstein and Cashore 2007). In practice, this meant the adoption of a member-based organisational form designed to facilitate input from groups in developing countries and/or with smaller budgets, the open publication of assessment and audit reports carried out on members, and the tacit acceptance that NGOs would withhold or withdraw support should egregious environmental degradation and human rights violations not be prevented.

This conceptual focus on legitimacy has also been prominent within the literature on biofuels. For instance, Upham et al. (2011) have argued that given the limited knowledge base about the impacts of biofuels and the complexity of the policy arena, a broader co-production of regulation between scientists/academics and the policy-making community was needed to provide the requisite cognitive legitimacy upon which a social mandate for governance by certification could be based. Looking at the certification systems themselves, Partzsch (2011) has argued that more developing country producers and oppositional civil society groups must be drafted into the membership and that accountability processes beyond internal complaints procedures and the threat of withdrawal had be fostered.

While governments are not considered unimportant within this perspective they have been frequently cast as somewhat passive or reactive actors and often only written into the private governance story in the context of trade liberalisation and deregulation. As Hall (2010) has noted, this is framed as a retreat from the arena of economic management and another signal of the clear movement from public to private forms of production standardisation, third-party monitoring and self-regulation. Again, this is reflected in the literature on biofuels that has depicted authority as a zero-sum contest which the state is losing, or at least conceding, due to globalisation and the de-territorialisation of the biofuels production network (Mol 2010).

Uneasy at this characterisation, a number of scholars began to question the ‘non-state’ credentials of certification systems. As Vandergeest (2007: 1154) has argued, ‘the idea that regulation is private, non-state and market driven assumes a clear separation between state and market, or public and private – a distinction that is difficult to sustain when examining specific examples of certification’. Picking up on this theme, Hall (2010) outlined three ways in which governments have purposefully advanced privatised forms of primary commodity governance. These were: (a) choosing to withdraw from particular markets and shift responsibility for expensive, difficult and controversial regulatory tasks onto others; (b) introducing new regulatory measures which, intentionally or not, stimulated the uptake of private standards and ‘ecolabels’; and (c) providing direct support for the development and dissemination of private governance through financial subsidies, network infrastructure, public research and discursive support (Hall 2010: 828).

Relevant to our study of roundtable certifications systems, Bell and Hindmoor (2011) have shown how important mechanism (b) has been in the expansion of the FSC in British and American markets. In the former, the UK government’s Forestry Commission helped negotiate the Woodland Assurance Scheme with environmentalists and landowners. Whilst not directly mandating FSC-certification, the sustainability standard devised did draw upon the FSC and so directly benefitted that scheme since this could immediately offer the robust auditing and traceability services to forestry companies as a way for them to meet their new obligation. In the US, a similar but unintentional outcome followed the country’s trade ban on illegally harvested wood. Not only did this prevent competition to the US timber industry from disreputable loggers, it also required importing firms to undertake time-consuming and costly exercises in demonstrating the legality of their more reputable suppliers. Again, this created an opportunity for the FSC in the sense that they were on hand to provide international buyers with a credible means of proving that the wood they had sourced was sustainably produced.

Such insights are undoubtedly useful for understanding how non-state governance has emerged through ‘positive-sum’ forms of public-private interaction. We return to this theme later in relation to the role of the state in shaping biofuel certification systems and their adoption by industry. However, this particular critique has had less to say about the purpose to which ‘hybrid’ governance is put and the mode of accumulation it underpins. As Payne has noted, ‘the very notion of a clear separation between the public and the private is a feature of classical liberal thinking’ and it has been the very

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liberalism of non-state market-driven governance that other scholars have sought to interrogate (Payne 2005: 78).

While scholars initially depicted certification systems as a means of re-embedding the liberal market economy in the Polanyian sense (Raynolds 2000; Watson 2006), others have since been more wary of the compromises made in order to effect change through the market, especially for those more commercially-oriented schemes. For example, Ponte (2008) has noted how, unlike the Fairtrade Labelling Organisation, the Marine Stewardship Council has not attempted to redistribute wealth within the commodity chain by providing financial premiums or minimum prices to producers. Rather, the requirement to provide large volumes of certified fish at no extra cost acted as a barrier to entry to developing country fisheries, especially the smallest among these, and effectively put ‘certified sustainability at the service of dominant firms in the industry’ (Ponte 2008: 171). Writing on the Roundtable on Sustainable Palm Oil, meanwhile, Djama and Daviron (2010) have questioned whether the NGOs that supposedly seek to protect society from the vagaries of the price mechanism really are opposed to this worldview. This is particularly the case for those professional and international NGOs which have taken an avowedly managerial perspective on sustainability.

Placing these certification systems in the context of a neo-liberal economy, Loconto and Busch (2010) offered the timely reminder that ultimate objective of neo-liberal policy, whether public- or private-led, is not to dispense with rules and laws but rather to reorient them from a regulation of the market toward a regulation for the market. In this respect, Paterson’s work on global standards and certification schemes in the carbon market is especially useful. In it he has made the case that this form of governance emerged precisely to deflect broader criticism that the marketisation of the environment had resulted in ‘climate fraud’ and ‘carbon colonialism’, whereby inaccurate emissions savings were claimed and the burden of adjustment forced upon developing countries. Thus rather than the second half of a Polanyian ‘double movement’, certification here served as the very basis on which the carbon trading industry was able to renew the creation of these markets and create further opportunities for profit (Paterson 2010: 362). This is particularly apposite to the case of biofuels, which, like carbon, was also a newly created and politically-dependent EU commodity market. The chapter now shows how this market was first established, before returning later to the notion of certification as a means of market extension.

Building a biofuel market in the European Union

Biofuels were first introduced to the EU policy debate in the late-1990s, framed very much as a measure to help meet emission-reduction goal under the Kyoto Protocol. In a white paper on energy, the European Commission noted that the transport sector contributed around a fifth of all greenhouse gas emissions in the EU and suggested that renewable fuel consumption should be doubled to try and reduce this (CEC 1997). With support from a coalition of farmers and crop processors, biotech and oil companies, and initially Green parties and NGOs, a range of EU-wide policies followed in early-2000s. These included €3.4bn of research funding for the ‘Clean Technologies’ programme, tax breaks for fuel providers that sold renewable fuels, and an indicative target for biofuel consumption set at 5.75% of total transport fuel usage. Tariffs were also maintained to help European-based producers meet at least some of this demand, though it was considered by the Commission both ‘likely and desirable’ that imports would play a big part too (Oosterveer and Mol 2010: 68).

Writing the consumption target into national statute, some Member States introduced laws which obliged fuel suppliers to blend a minimum amount of biofuel into their petrol and diesel. The UK’s 2005 Renewable Transport Fuel Obligation (RTFO), for example, required fuel providers to blend an increasing amount every year and gave them official credits for doing so. If these companies failed to meet the annual targets, they would have to either purchase surplus credits off other suppliers or else buy themselves out their obligation by effectively paying a government fine.

Despite these various measures, it was clear by the mid-2000s that the EU as a whole would not reach its 5.75% target. This led the Commission to promote the idea of mandatory rather than indicative targets; a policy which was ultimately passed as part of the EU Renewable Energy Directive in 2009. It also increased the target proportion for biofuel consumption from 5.75% in 2010 to 10% by 2020. This political commitment sent a clearer message to investors that a European biofuel market would become a commercial reality, and indeed, usage did increase from 1% in 2005 to 4% by 2009 –

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a market worth some €8bn, of which roughly €3bn came via public subsidies (CEC 2011; Jung et al. 2010).

Even in the early period of biofuel promotion, concerns were raised, among other things, about the amount of land needed to grow the extra crops, and the Commission hinted that their negative impacts needed ‘specific investigation and quantification and, if necessary, should be addressed through strong regulatory frameworks’ (Monbiot 2004; CEC 2006). Corporations opposed this virulently. Examining industry responses to the Commission’s consultation on environmental safeguards, the NGO Biofuelwatch found that while there was near unanimous support that biofuels were a good way to tackle climate change, so too was there near total rejection of any mandatory safeguards to ensure they made good on this promise (Biofuelwatch 2006: 6). Reflecting this resistance to immediate, binding and publicly-negotiated rules, the Commission’s 2007 Biofuels Progress Report only mentioned sustainability standards in passing, as something ‘that needs further study’ (CEC 2007).

This position softened as biofuels encountered a series of stinging attacks that undermined the very basis for their introduction. Along with the reduction of greenhouse gas emissions, biofuels had been advanced as a way to boost agricultural demand and rural development efforts, both at home and overseas. Then, after two and half decades of dwindling prices, in 2007 the cost of agricultural commodities suddenly spiked. Yet rather than aiding rural development, this was perceived as retarding it. The FAO calculated that in that year alone, an additional 75 million people were unable to afford basic staples as a result, pushing the total number of malnourished people globally toward one billion (FAO 2008: 6). Food riots in countries from Mexico to Mozambique created an acute political pressure for the situation to be resolved and fingers were immediately pointed at biofuels for diverting crops into non-food markets. Most controversially, Jean Ziegler, the UN Special Rapporteur on the Right to Food, called them a ‘crime against humanity’ and requested an immediate moratorium on their production (Ferrett 2007). The UN was followed by other international organisations like the World Bank, which despite political pressure to withhold its findings, published a damning report suggesting biofuels had been responsible for 75% of the rise in food prices (Chakrabortty 2008). Despite the defence from politicians in exporting countries that biofuels were not to blame – George Bush in the US and Lula in Brazil among them – the debate quickly crystallised into one of ‘food versus fuel’. Critics were quick to point out that the same amount of maize needed to fill a sports utility vehicle with ethanol could feed a person for an entire year (Grunwald 2008).

The second attack on biofuels concerned their environmental credentials. It had already been established that different crops produced different GHG emissions savings, with US-grown maize faring particularly badly given the large amounts of fossil fuel that went into its cultivation. However, what was raised in a pair of widely-cited scientific papers was the additional impact of land-use change (Fargione et al. 2008; Searchinger et al. 2008). This had two elements. Direct land-use change involved the clearance of land with high carbon stocks for ‘Greenfield’ biofuel production sites, which resulted in a massive release of CO2 into the atmosphere. One paper claimed that if the palm oil industry in Southeast Asia expanded into peatland tropical forest, as was alleged to have been happening, it would create a carbon deficit that would take over 400 years to pay back through the use of the resultant biofuel (Fargione et al. 2008). Indirect land-use change involved the expansion of cropland to fill the supply-gaps created by other farmers selling into biofuel market. Crucially, this could happen anywhere in the world, so the decision by a company in Brazil to divert sugar into the biofuel market, for example, could ‘cause’ another in Guatemala to expand into forested land to grow sugar for the food market. Initial attempts to factor the effects of land displacement into the life-cycle assessment of biofuel GHG emissions again suggested their environmental benefits had been overhyped. The mounting criticism around these knock-on effects on food prices and land-use change were addressed in the high-profile Gallagher Review, undertaken by the UK government’s Renewable Fuels Agency. This concluded that:

There is a future for a sustainable biofuels industry but feedstock production must avoid agricultural land that would otherwise be used for food production. This is because the displacement of existing agricultural production, due to biofuel demand, is accelerating land-use change, and, if left unchecked, will reduce biodiversity and may even cause greenhouse gas emissions rather than savings (RFA 2008: 8).

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The UK’s Renewable Transport Fuel Obligation was amended in light of this, pushing back the date by which the 5% national target had to be met from 2010 to 2013. In order to mitigate the worst excesses of biofuel production, the Review also recommended that ‘second-generation’ biofuels made from non-food crops such as straw and grasses be promoted, that ‘idle and marginal land’ be targeted for cultivation, and that sustainability reporting be made mandatory and its criteria strengthened. The Gallagher Review helped stake out some common ground on which industry and NGOs began to interact. The UK biofuel association, for example, acknowledged that were ‘good and bad biofuels’ with bad ones being those produced with grossly exploited labour, on deforested land, and with low greenhouse gas emissions savings (Renewable Energy Association 2008). In effect, this was an admission that the biofuels project as a whole was facing a legitimacy crisis and an attempt to ‘decontaminate’ British-grown biofuels by blaming those foreign producers working under lax national regulation for the problems. For their part, some of the large NGOs began to encourage importing countries to build ‘international sustainability standards’ including environmental and social criteria and also saw an opportunity to reach out to more progressive biofuel producers (Oxfam 2008: 37). One appeal came from the recently inaugurated Roundtable for Sustainable Biofuels (RSB), which brought together over three hundred experts from academic organisations, civil society groups and corporations – including multinationals like BP and Shell, the oil companies which would ultimately have to source and sell the biofuel. In language directly mirroring that from industry, the Chair of the RSB, former Director-General of WWF International Claude Martin, stated that: ‘With all of the mixed messages we hear about biofuels, there is a clear need for a standard that can differentiate the good from the bad...For an issue of such seminal importance, it was necessary to bring many different stakeholder groups together to agree on how to define and measure sustainable biofuels’ (WWF 2008). Just a few years later, those standards devised and administered by private certification systems, particularly those managed by roundtables based on the FSC model, had become a pre-eminent means of governing the European biofuels market.

The misnomer of ‘non-state’ governance: the planned adoption of private certification systems

Many accounts hold the ‘driving force’ behind the rise of non-state governance in biofuels to have been consumer demand for environmentally and socially responsible products in the absence of strong state authority and a global regulatory framework (Kaphengst et al. 2009; Mol 2010).3 The previous section made the case that it was largely expert opinion rather than consumer demand which led to calls for more sustainable biofuels; this section shows how public authorities were in fact instrumental in the rise of private certification systems meant to deliver this. Two stages are discerned: the development phase (2005-2009) and the adoption phase (2009-onward). Different state policies and mechanisms were at work in each. In the development phase, it was the use of government ‘meta-standards’ and benchmarking which established not just comparability of certification systems but also their credibility. In the adoption phase, it was EU legislation which mandated a form of due diligence on biofuel production processes – akin to the experience of the FSC in the UK outlined earlier.

Development phase (2005-2009)

Meta-standards have been central to biofuel governance in the EU. They work by defining acceptable production processes according to a set of criteria, against which existing standards are benchmarked. As long as enough criteria are met, and many may well be exceeded, a standard will become a ‘qualifying standard’ (Gilbertson et al. 2007). In this case they were used to provide an objective means by which the community of interests, to use Ruggie’s term, could compare different standards. They also allowed states to step back from endorsing one particular scheme or model of production; a useful way of steering clear of WTO rules which prohibit the use of state-defined technical regulations to discriminate against imports. Once benchmarked, public scrutiny could be harnessed put weaker schemes under pressure to justify their lower standards. In this way, they would then be ratcheted up to equivalence with the ‘best in show’ – as happened in the forestry sector

3 Attempts to develop standards that apply to all biofuel production (i.e. not just that destined for the EU) have been made by the Global Bioenergy Partnership, an inter-governmental forum led by the G8+5 countries. However, the indicators produced were only designed as a best-practice guide for national policy-makers, not as a binding international agreement.

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(Overdevest 2010). By the same token, fuel suppliers could also be ‘named and shamed’ for using low or non-qualifying standards, or even worse, for failing to report on the sustainability of their biofuel altogether.

Biofuel meta-standards were developed by public agencies in Germany, the Netherlands and the UK, with the latter the first to introduce benchmarking. As shown in Table 1, the UK’s meta-standard had five environmental principles and two social principles, with a range of more specific criteria against which each principle could be measured. The carbon criteria covered minimum greenhouse gas emissions savings. The Roundtable for Sustainable Biofuels as well as all the crop-specific roundtables covering biofuels made from palm oil, sugarcane and soybean were all benchmarked against these principles, along with industry-led certification systems targeted at domestic producers.

Table 1: Meta-standard of the UK’s Renewable Transport Fuel Obligation (RTFO)

Carbon Criteria Environmental Principles Social Principles1. Biofuel production must save 40% GHG emissions compared to fossil fuels by 2008-09, rising to 60% by 2010-11

1. Biofuel production does not destroy or damage large above or below ground carbon stocks

1. Biofuel production does not adversely affect workers’ rights and working relationships

2. Biofuel production does not lead to the destruction of or damage to high biodiversity areas

2. Biofuel production does not adversely affect existing land rights or community relations

3. Biofuel production does not lead to soil degradation4. Biofuel production does not lead to the contamination or depletion of water sources5. Biofuel production does not lead to air pollution

Source: RFA 2011: 64

This process did not simply provide a common framework for assessment, but actively involved UK state departments, especially the Renewable Fuels Agency, in shaping the content of the supposedly ‘private’ certification schemes. This happened through: (a) selecting the meta-standard criteria against which standards would later adjust themselves; (b) establishing and participating in the policy networks that provided evidence for this decision; (c) building methodological norms around supply-chain auditing and carbon footprinting that were incorporated by many of the standards; (d) liaising with the certification schemes directly to provide recommendations on what they would need to do to become compliant with meta-standards in the UK, and, later, the EU.

This facilitative approach spread beyond the UK to other Member States. The development of the UK principles for the RTFO meta-standard was the subject of regular discussion with the Dutch government, with the aim of aligning carbon calculation methodology and environmental criteria (Wallis and Chalmers 2007). This alliance was important given that the two countries were the biggest importers of biofuel into the EU, and also home to the bloc’s biggest oil companies, BP and Shell. The two governments, together with FSC and WWF, had already commissioned studies on biofuel sustainability, one of which concluded that ‘a situation in which each country has its own national scheme in place is likely to be inefficient, less effective, and will constrain the international development of the bioenergy sector’ (Ecofys 2007: 61). Following the Cramer Commission – a Dutch enquiry into biofuel sustainability standards – it became apparent that the Netherlands had shifted toward the British approach, asking fuel suppliers to report on an almost identical set of criteria and without strict traceability on where the biofuel had come from, nor any sanctions in the case of ‘unsustainable’ biofuel use. Jacqueline Cramer, the Environment Minister who chaired the Commission, was an advisory board member of Shell and WWF.

The UK approach was intended to utilize and further encourage the development of certification systems with ambitious sustainability standards and robust auditing procedures (interview, UK Department for Transport, 2011). This it did successfully. Where it was more limited was in getting these certification systems to be adopted within the various biofuel supply-chains. To receive an RTFO credit a fuel supplier had to report monthly on their performance, referring to the extent to

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which they met criteria on GHG intensity and land-use, the level of data accuracy, and whether they were compliant with a qualifying standard. However, to encourage their uptake the UK relied on disclosure and disapproval rather than any formal sanctions. Thus, despite naming and shaming certain suppliers, at the end of the second year of the RTFO, 63% of biofuel sold in the UK did not meet any sustainability standard and 14% was not even traceable to a particular country (RFA 2011: 17). Since palm oil biofuel was especially contentious, effort was also made to encourage use of the Roundtable on Sustainable Palm Oil (RSPO) scheme in particular, with the UK government asking companies to state the proportion sourced from RSPO-compliant plantations and the Dutch government even going as far as to make this a national requirement. But ultimately, the voluntary benchmarking approach taken could only really cajole biofuel exporters into agreeing to apply sustainability standards. The key to their widespread adoption was the imminent introduction of mandatory EU regulation.

Adoption phase (2009-onward)

Biofuel standards had faded from the Commission’s agenda during the mid-2000s, but recommendations from Heads of State that sustainability issues be addressed and pressure from the European Parliament that binding regulation on their social and environmental impacts was needed put the issue back on centre stage (Gilbertson et al. 2007). Yet while the Parliament pushed for sustainability criteria to be written into the Fuel Quality Directive, a bill which set common standards for petrol and diesel, they ended up within the Renewable Energy Directive. This was a bill considered by energy ministers instead of environment ministers, and as a result, there was more hostility to including criteria relating to excessive water use, soil degradation, rising food prices and the displacement of indigenous people. As these broader indicators of sustainability were swept off the policy table, the carbon balance of biofuels became the main issue to be managed.

Passed by the Commission in April 2009, the Renewable Energy Directive required biofuels to provide at least 35% greenhouse gas emission savings compared to fossil fuels and not come from crops cultivated on land with a high biodiversity value or high carbon stock.4 As shown in Table 2, this essentially replicated the carbon criteria and environmental principles 1 & 2 from the RTFO, which, along with Dutch initiative, had provided the Commission with a practical example to follow (interview, UK Department for Transport 2011; Oosterveer and Mol 2009: 74).

Table 2: Meta-standard of the EU’s Renewable Energy Directive (RED)

Carbon Criteria Environmental Criteria Social Criteria1. Biofuel production must save 35% greenhouse gas emissions compared to fossil fuels, rising to 50% by 2017, and, for those installations built after this date, 60%

1. Biofuel shall not be made from raw material obtained from land with high biodiversity value – including primary forest, protected areas and highly biodiverse grassland

No compulsory criteria

2. Biofuel shall not be made from raw material obtained from land with high carbon stock – including wetlands and continuously forested areas 3. Biofuel shall not be made from raw material obtained from land that was peatland

Source: European Parliament and the Council of the European Union 2009: Article 17.

One crucial difference with the government schemes was that all the criteria in the EU meta-standard had to be met and that this was now prescribed by law. A failure to meet this new standard did not mean that biofuel could not be sold in the EU, only that it would not count against Member States’ binding energy targets nor qualify for tax relief. Nevertheless, since these incentives were so important within biofuel market (recall the €3bn subsidy propping up industry) the Renewable Energy

4 The RED also allowed second-generation biofuels to count double in meeting this target and required every major biofuel producing country to undergo a sustainability report.

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Directive effectively constituted a de facto market access requirement. The other major difference was that there were fewer criteria to meet – and none at all in relation to social aspects of sustainability – a point we return to in the next section.

To provide assurance that its meta-standard had been met, the EU chose not to rely on public regulators or exporting governments to monitor producers but on the same certification systems that had been publicly cultivated over the past few years. As noted in this chapter’s introduction, this was hugely significant. Just a few years before this official delegation of powers, the European Commission had abandoned an initiative to devise a guideline simply to help consumers select between various eco-labels, deciding it was an inappropriate activity for a public body to undertake and unduly discriminatory (Bernstein and Hannah 2008). Now these certification systems had been made watchdog of the biofuels trade, with the coverage of certain schemes blossoming as a result. The sugarcane roundtable, Bonsucro, for example, had twelve of Brazil’s biggest sugarcane mills certify their output in 2011 alone, all of which undertook this process essentially to rubber-stamp the entry of their biofuel into the EU.

So in sum, to suggest that non-state governance usurped authority from state actors in this case would be quite misleading. Rather, encouraged by opportunistic NGOs and accepted by an industry under-fire, certification systems were deployed by European state authorities as a means of tacking a route through domestic pressure for minimum environmental safeguards, on the one hand, and their commitments to the letter of WTO law, on the other. Moreover, in so doing, they discharged the cost of applying sustainability standards onto the certification systems themselves, which would in turn pass this onto the farmers and processors that became certified suppliers.

Contesting biofuel certification: governance solution or capitalist smokescreen?

As discussed above, state authorities were acutely aware of the potential illegality of discriminating against ‘unsustainable’ biofuels. Warnings continually circulated through international organisations like the OECD on the ‘question of if, and under what design criteria, trade rules should be allowed to exclude fuels that fail to meet minimum performance levels from mandatory schemes or preferential tax treatments’ (Doornbusch and Steenblik 2007; see also UNCTAD 2008; WTO 2010). Indeed, when the discussion of standards first began in Europe, the Commission made clear that: ‘Any system of certificates would need to apply in a non-discriminatory way to both domestically produced and imported biofuels and comply with WTO provisions’ (CEC 2006: 8). For these reasons, it never even entertained the prospect of banning outright biofuel which did not meet the required criteria (interview, UK Department for Energy and Climate Change 2011). Nor did it place any social principles in the meta-standard, which it felt would ‘overstep some countries’ red lines’ and thereby lead to an action being brought against the EU at the WTO (Ackrill and Kay 2011: 560).

Absent social criteria and the carbonisation of sustainability

It has generally been assumed in the biofuels debate that avoiding WTO disputes is a good thing, since it creates scope to marry stronger regulation with a commitment to free trade. However, concern has been raised that in the process of ensuring WTO-compatibility, the European Commission has effectively undercut existing standards. While the roundtable certification systems included social principles related to human rights and labour standards, the EU rejected any such requirements in its own meta-standard. This has led to watered-down standards being developed which simply meet the bare minimum. Indeed, two of the seven systems initially approved by the Commission lacked any social component at all – those industry-led ones developed for the French and Spanish markets, respectively. Since these systems could be used by biofuel exporters in all crop-sectors and geographical regions, it was suggested that producers might adopt or switch to these less stringent options instead whilst still gaining full access to the EU market. For some, this possibility posed very real risks to rural livelihoods (German and Schoneveld 2011). As the UK’s own Renewable Fuels Agency has recognised, the EU’s ‘requirements are primarily focused on avoiding the worst practices rather than promoting the best’ (RFA 2011: 7). This would potentially level-down the gains made through national benchmarking.

Reaction to this problem varied. As founder members of the roundtables, WWF called for a framework to assess credibility of certification schemes, implying that the familiar mechanisms of comparison and disclosure could push biofuel suppliers and producers into (their) more stringent certification systems.

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In light of the mounting evidence that EU biofuel policy was leading to practices of ‘land grabbing’ in developing countries, Oxfam called for social sustainability criteria for biofuels to be added to the RED (Oxfam 2011). NGOs with a more antagonistic relationship to the biofuels industry – including ClientEarth, Friends of the Earth Europe, FERN and the Corporate Europe Observatory – actually took the Commission to court for failing to provide information on why particular schemes had managed to gain approval (BusinessGreen 2011). This followed previous discontent among these groups over the continued deference to WTO law made by the Commission. This was considered a cynical move on the part of policy-makers, allowing them claim that they were unable to introduce measures regulating the social impacts of biofuels, despite the fact that the EU was a key player in writing these rules in the first place (Gilbertson et al. 2007: 46).

Another reason to question this deference was the fact that the biggest exporters to the EU had already bought into those roundtable certifications systems that included more ambitious principles. The largest suppliers of biofuel in 2009 were Argentinean soy producers and Brazilian sugarcane producers and the trade associations of both these industries were founder members of the Roundtable on Responsible Soy and Bonsucro, respectively. As long as the members of these trade associations could meet the roundtable standards, which can be readily assumed since they were designed with these organisations in mind, then they are assured entry to the EU and thus have little need to lobby their national governments to take remedial action at the WTO. It is notable that since these systems have been established, Brazil, an active user of the WTO dispute settlement mechanism in other agricultural sectors, has not seriously raised this possibility in relation to biofuels (see Kutas 2009).5

Indirect effects and the smokescreen of governance

In short, the criticism was that EU’s meta-standard needlessly focused on a narrow band of criteria related to GHG emissions and biodiversity, leading to a ‘carbonisation’ of sustainability that overlooked the protection of workers and local communities (see Oxfam 2011). Another, more radical, line of critique has stemmed from the suggestion that even if the standards of certification systems had not been undercut, they would still be ineffective as tools of governance. As noted previously, many NGOs had used the indirect effects of increasing food prices and land-use change as a means of challenging the biofuels project. To this end they argued that certification, even by those more progressive roundtable systems, would be:

Unable to solve indirect issues such as rising commodity prices or displacement effects [indirect land-use change]...The new plantation could be certified as ‘sustainable’ but if it has simply pushed other farming activities into sensitive areas then this makes a mockery of any certification scheme. This is a major failing that is unlikely to ever be solved by certification schemes’ (Bebb cited in ICTSD 2008; italics added).

Oppositional NGOs rounded on this approach, then, as a ‘smokescreen’ of the industry (Friends of the Earth 2008). Where ‘greenwash’ involves the deceptive use of marketing to make a product or company appear environmentally friendly, smokescreens act to conceal the harmful activities they are engaged in from view. Thus, the argument was made that debates over what should be included in particular certification standards distracted from the bigger point: the fact that the most egregious impacts of biofuels could not be governed in this manner at all.

As the spatial mismatch between ‘farm-level’ certification systems and the ‘off-farm’ indirect effects of biofuel became apparent, two interesting developments took place. The first was the attempt by some of the roundtables and their advocates, given that they could not prevent these negative trends from happening outright, to ameliorate or mitigate them instead. The RSB, for instance, included a principle in its standard which required biofuel producers to ‘ensure the human right to adequate food and improve food security in food insecure regions’ (RSB 2010). This placed a responsibility on companies to support the rural communities around their production site to help feed themselves, say through the sponsorship of agricultural support programmes. With regards to land-use, the WWF argued that if biofuel production took place on ‘unused land’ or using high yielding crops, it would displace less land currently being used for food production. To this end – drawing on a study funded

5 The exception here is the Malaysian government, which has sent a warning shot across the bows of the EU. However, should the palm oil roundtable (the RSPO) be approved by the Commission, the threat of legal action taken by Malaysia is also likely to subside. As of November 2011 it was still awaiting a decision in its application.

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by BP, Neste Oil and Shell – it put forward a set of criteria that could be incorporated into certification systems to help distinguish biofuel that had a ‘minimum risk’ of indirect effects (WWF 2010b).

The second development was that despite efforts to delegate or ‘outsource’ regulation to non-state actors, the European Commission was dragged back into the debate about how to govern biofuels. However, facing inherent difficulties in modelling the extra greenhouse gas emissions caused by displacement, as well as reluctance from biofuel producers that they be unduly punished for outcomes way beyond their control, the Commission continually deferred the introduction of a methodology into its Renewable Energy Directive that would account for indirect land-use change in determining which biofuels were ‘truly’ sustainable (see Bailis and Baka 2011; European Biomass Association 2009). As for the effects of EU biofuel policy on global food prices, consonant with the argument above about the carbonisation of sustainability, the Commission stuck to its original commitment only to report a series of findings for discussion.

In lieu of positive action at Commission, the UK for its part again pushed back the national 5% target for biofuel consumption. With not some little irritation, in December 2011 the UK MP responsible for biofuels, Norman Baker, said that: ‘I listened when environmental pressure groups said that biofuels were the best thing since sliced bread; and I listen to them now when they express significant concerns about their sustainability... [UK policy] is about making biofuels more sustainable; it is not about supplying more biofuel’ (Hansard 2011). Yet for some this did not go far enough: continuing to supply any amount of biofuel would have detrimental effects on the food and land rights of the world’s poor (see Friends of the Earth, RSPB and ActionAid 2011).

From this more radical position, the important thing was to abandon biofuels targets and tackle climate change imperatives through energy efficiency policies and reductions in consumption. In this sense, these oppositional NGOs drew little distinction between the sources of governance in biofuels (state or non-state) but instead condemned the very essence of the project, which they saw as an attempt to incorporate ever-more land into monoculture production for the benefit of the Global North. In this view, such was the plantation model adopted by the majority of big agricultural exporters that the rural poor gained little, even if (technocratically defined) sustainability standards were adhered to and the negative impacts on food prices and land rights somehow avoided. It was precisely the commodification of land and labour in this way that was deemed problematic, regardless of whether the cash crops grown ended up as biofuel, food or even animal feed. The certification of biofuels, to the extent that it made this endeavour publically palatable, was seen merely to legitimise a fundamentally flawed intervention in the Global South.

Conclusion

Speaking at a symposium on ‘Trade, Sustainability and Global Governance’, John Gerard Ruggie identified two kinds of governance gaps that had to be bridged:

One consists of the gaps between the scope and complexity of the challenges we face, including environmental threats, and the institutional means through which we strive to deal with them. The other concerns a growing imbalance in global rulemaking. Those rules that favour global market expansion have become more robust and enforceable in the last decade or two... But rules intended to promote equally valid social objectives, be they poverty reduction, labour standards, human rights or environmental quality, lag behind and in some instances have actually been weakened (Ruggie 2002: 297-298).

This chapter has argued that in relation to biofuels, private certification systems have helped span the first gap but failed to bridge the second. Certification systems and their accompanying standards have been an institutionally innovative way of applying more robust requirements to EU-bound biofuel. The main point made in this respect was that this innovation should not be equated with a swing away from the public sphere and toward the private. States have acted as advocates for private standards and even been involved in shaping way in which they have governed by providing techniques of calculation and undertaking benchmarking exercises. Most importantly, the European Union has now created a market for the certification systems themselves by outsourcing regulatory capacities to them. Operating under the radar of WTO rules, a coalition led by UK, Dutch and German governments, PR-sensitive firms and corporate-friendly NGOs has effectively carved out policy space

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within the tightly written rulebook of international trade governance – an opportunity that one of its leading proponents, the WWF, has consciously targeted (see Clay 2004: 140).

However, in the process of avoiding a WTO dispute (genuinely or not) the Commission has risked undercutting the social objectives attended to by the more progressive roundtable certification systems, specifically those on labour rights and land rights. More critically, we have shown how the use of sustainability standards has contributed to the very expansion of markets which Ruggie suggests needs to be stemmed. Roundtable certification has been adopted with much success in the forestry industry, and many of the governance techniques and public policies applied here have almost been directly transplanted to the biofuels industry. The crucial difference, of course, is that the biofuel market is a new, contingent and contested one. For this reason, sustainability standards are considered problematic for facilitating the transformation of natural resources into primary commodities in the first place, i.e. tradable products subject to the price mechanism and put beyond the purchasing power of the world’s poor. Recalling Paterson’s findings in relation to carbon markets, in this view certification has served not so much to re-embed market exchange as to legitimise its extension. This is a major reason why oppositional NGOs have targeted the indirect effects of biofuels. Since these remain difficult for certification schemes to adequately address, the legitimacy question is raised again and put back onto the state, which, through its tax system and mandatory targets, still underpins the demand for greater biofuel consumption.

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World Wide Fund for Nature (2010b) ‘New Method Emerges to Deter ‘Indirect’ Land Grab for Biofuel Production’, Press Release, 8 October 2010. Available at: http://wwf.panda.org/who_we_are/wwf_offices/brazil/news/?uNewsID=195535 [Accessed 28 March 2012].

Interview, UK Department for Transport, 24 May 2011.

Interview, UK Department for Energy and Climate Change, 20 June 2011.

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http://awsassets.panda.org/downloads/wwf_msireview_sept_2010_lowres.pdf

the governance of primary commodities: biofuel ...€¦ · web viewin this case they were ... the...

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