Introduction

The value of forests can be found on its features as a reservoir of fibre, fuel, wood and non-wood forest products susceptible to economic exploration, as a food source, as a habitat with a variety of wildlife, as a principal reservoir of biodiversity and as carbon sinks. Forests, however, have been recently devastated. Estimated data from the Brazilian National Institute of Space Research (INPE) reveals that, in the Amazonian forest, from August 2019 to July 2020 there was a loss of 1,1 million of acres of forests, an increase of 9,5% in comparison to the previous year. Another concerning data was the increasing frequency of great blocks of deforestation (higher than 1000 acres), which contributed nearly to 8% of the whole area of the lost forest, a clear signal of the absence of governance in some Amazonian regions, despite the advanced monitoring systems available to public authorities.

            In face of these alarming information, little has been done to curb deforestation and restore the original conditions of the forests. A pathway that has gained ground and has been extensively examined by current legal literature is forest certification. This post aims to analyze the creation of forest certification, its performance and the effects that arise from it, elements that allow the understanding of this current environmental project.

            The performance of a certification of a product, service or system aims to evaluate the conformity with technical regulations and private standards in order to determine safety, health, environment and consumption requisites of the item examined. On the environmental dimension, requisites fall on environmental goods that are traded as timber, pulp and biofuels as well as consumption requisites are applied in order to inform the consumer in an accurate manner of the features of the item evaluated.

Increasing environmental concern and the emergence of forest certification

Inside the search of international conservation of forests, the 1990s are a remarkable period. By that time, buying tropical timber had become a contentious issue among Northern consumers as a consequence of extensive media-coverage on tropical deforestation and related social issues that had quickly turned the term tropical timber into a negative synonym for environmental degradation and human exploitation. On the institutional side, a key aspect is that it was not possible to conclude international environmental treaties in areas in which regulation is indispensable during the United Nations Conference on Environment and Development of 1992. In what regards the forest issue, there was a failure to create a binding treaty due to opposing interests of NGOs and the timber industry, the difficulty to conciliate environment with development and the limited achievements were the Forest Principles and Chapter XI of Agenda 21. A clear consequence of the limited results of the Rio summit was the maintenance of forests’ management out of international law and as a function of rules that regulate the domestic legal framework of States, which fostered alternative approaches to forest conservation. In the end, it was the failure of the intergovernmental process that gave an additional boost to the idea of establishing voluntary regulation in the global forestry area.

An alternative that was searched and achieved was certification with its underlying private standards to evaluate compliance with environmental standards and the attribution of an environmental private standard to a product. The sense among environmental NGOs that a convention with concrete commitments on sustainable forest management was unlikely in the short or medium term and could even entrench watered-down rules if a weak regime prevailed, accounts in part for the push towards certification. In a panoramic perspective, with the incapacity of failed and developed States to stop forest deforestation, the absence of world forest convention, a weak international regime, the governance was progressively privatized with post-sovereign instruments that, as will be explained below, reshaped authority, norms and behaviors.

War between forest certifiers

The initial period of the creation of forest certifiers was characterized by the certification wars, value-based conflicts around the establishment of content of the benchmarks for forest certification. Their central axis was the conflict between FSC and the competitor schemes. FSC was the first forest certifier created in 1994 that gathered a huge support from the civil society, especially transnational and environmental social groups, which was represented at that time in a social and environmental chamber that gathered 75 per cent of votes. An economic chamber complemented FSC structure. Lately, this format was changed to a tripartite arrangement with social, environmental and economic chambers known as general assembly, each with one third of equal voting weight, in which the civil society participated in the first two ones. FSC environmental, social and economic decision-making chambers, each with equal voting weight, were praised as a way to avoid business domination. FSC had as its main currency high environmental standards and would make only marginal and occasional concessions to business.

Against this background, companies sought to weaken FSC through the establishment of rival certification schemes that matched its program. At that time, multinational corporations were under pressure by the civil society and brand reputation became a major topic of concern. These companies also practiced eco-dumping, the practice of selling goods whose price is lower, because they are manufactured under less stringent environmental standards, in countries where higher standards prevail. In 1994, simultaneous to the FSC founding assembly, business articulated themselves in North America to move ahead the project to establish two competitor certification structures, the sustainable forest management system of the Canadian Standards Association (CSA) and the US Sustainable Forestry Initiative (SFI). In Europe, the creation of the Pan-European Forest Certification (PEFC) scheme in 1999 was principally a forest owner reaction against the FSC.

During the wars, competition between certifiers took place in a scenario in which there was an increasing demand for legal timber because of the increasing consumer awareness of the environmental harm provoked by deforestation and illegal logging. CSA and SFI were unable to survive. CSA certification provided very burdensome benchmarks that kept companies distant from it. SFI, despite producer-backed, could not establish clear and predictable rules and created measures that comprised social and environmental objectives which raised objections to it by corporations. On the contrary, PEFC gathered the support of small forestry and industrial landowner associations and, in 2003, relaunched itself as a worldwide structure, the Programme for the Endorsement of Forest Certification, keeping the previous acronym. Its features that pleased the business sector were the possibility of countries to adopt their own standards in a path contrary to that followed by FSC, which created ten strict principles, and the attribution of flexibility on the endorsement of national certification schemes in reason of the lack of tools that could guarantee that a variety of national schemes can provide similar standards.

Forest certification after the certification wars

On the years that followed the end of certification wars, FSC and PEFC remained operational at the international level. FSC has survived as a viable and robust mechanism throughout the certification wars as its broad constituency base and participatory approach has provided it with legitimacy. FSC acts guided by ten principles, its certification benchmarks, to which compliance must be demonstrated by a forest undertaking to the attribution of forest certification. These principles provide criteria and indicators that reflect the sides of sustainable development either alone, either in synergies. PEFC slowly became the territorial leader as the producer-backed global initiative after the adoption of guidelines to the endorsement of national schemes worldwide. These guidelines refer to a worldwide applicable benchmark which must be met or exceeded by national forest certification systems instead of a permanent group of requirements and criteria applicable in each place and in the same manner. Endorsement constitutes a procedure that guarantees that national forest certification systems comply with the aforementioned PEFC benchmark.

Forest certification is performed according to a broad economic rationale. Environmental degradation is understood as an externality, in other words, the impact of one person’s actions on the well-being of others not taking part in the action. The internalization of environmental costs as those derived from fires in a forest allows opportunities to producers and consumers. The first ones have greater incentive to submit the environmentally less damaging manufactured product to the certification process that can end with the attribution of a label to it. The second ones can buy the labeled product and concomitantly contribute to save the environment, for example, through the reduction of forest degradation. Labeling schemes are, thus, a response to the unlikelihood of the implementation of internalization at the international level and, through the use of the market mechanism, rewards producers and consumers of environmentally less harmful goods.

The risk of greenwashing

Despite the benefits of forest certification, it is necessary to be aware of greenwashing. The recent Greenpeace report Destruction: Certified shows that investigations by Greenpeace and other NGOs over the past decade have revealed inconsistent implementation of FSC principles and criteria globally and serious cases of FSC certified companies being linked to illegal logging, destruction of intact forest landscape, violations of community rights, high-level corruption and human rights abuses. A Greenpeace Russia investigation, for example, found the FSC was contributing to intact forest landscape degradation and loss in parts of the country through labeling and marketing destructive wood. The same report describes PEFC as a certification scheme that was created by industries and that has weaker standards in response to the existing scheme with more rigor, FSC, enabling industries to continue with business as usual, but with a certification claim. Greenwashing has implications on companies and consumers. A company that was certified after the assessment of conformity with a standard as ISO 14001 can mention in a publicity that obtained a green certificate and, by doing this, generates the impression that does not cause environmental harm, which can be deceitful to consumers that trust a certificate.

Conclusion

In light of the increasing awareness of the environmental damage caused to forests and the inability of the UN system, especially in the 1990s, to provide an international institutional response to this issue, forest certification emerged as a feasible and desired alternative. The structuring of the first forest certifier, FSC, was followed by the certification wars explained above that took place mainly in the second half of the 1990s and the beginning of the 2000s between FSC, CSA, SFI and PEFC. After the wars ended, FSC and PEFC continued to operate at the international level and forest certification was practiced according to a broad economic rationale in which there is the internalization of environmental costs and the creation of opportunities to producers and consumers. Forest certifiers are not, however, infallible and do not have the final say. The follow-up activity performed by the civil society as the one by Greenpeace revealed that FSC and PEFC incurred in greenwashing respectively through the performance by its certified companies of illegal logging and destruction of intact forest landscape and through enabling industries to operate with business as usual, but with a certificate.

Tiago Matsuoka Megale has a Law Degree (2010-2014) from University of São Paulo, a MBA in International Business (2016-2018) from Getulio Vargas Foundation and a Master’s Degree in Public International Law (2018-2021) from University of São Paulo with a period at University of Luxembourg (2019-2020) where he was awarded a Erasmus scholarship.

He is currently a legal researcher at the Center for Global Trade and Investment of the School of Economics of Getulio Vargas Foundation. He was a guest researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law (2019-2020). In the past, he worked, among others, at University of São Paulo (2016-2020), as a teacher assistant and coordinator of extension activities and as legal researcher at the Center for Global Trade and Investment of the School of Economics of Getulio Vargas Foundation (2016-2019).

He has several works published in a book, peer-reviewed journals, book chapters and policy papers. His areas of expertise and/or interest include international environmental law, international economic law and public international law.