CERTIFICATION STANDARDS AND SOCIALLY SUSTAINABLE BIOFUELS by Xilip Solidario

CERTIFICATION STANDARDS AND SOCIALLY SUSTAINABLE BIOFUELS: A PRELIMINARY ANALYSIS OF THE ROUNDTABLE ON SUSTAINABLE BIOFUELS Angelina Snodgrass-Godoy, Philip Neff, Ellen Conley, and Rosa Lehman ABSTRACT: Global production, consumption and trade of biofuels – fuels derived from agricultural feedstocks – has risen in recent years, driven by concerns relating to climate change, energy security, and prices of petroleum fuels. As states and regional governing bodies have implemented policies mandating the use of “renewable” fuels, critics have highlighted myriad negative impacts of increased biofuels production, including environmental destruction and detriments to land rights, food security labor, and indigenous communities. This article examines the potential of private, voluntary international certification initiatives, primarily the Roundtable on Sustainable Biofuels (RSB), to ameliorate these impacts and ensure socially and environmentally sustainable biofuel production. Comparing the RSB to existing, similar initiatives such as the Forest Stewardship Council, and focusing on three key issues – the role of third-party auditing, the participation and consultation of affected communities, and supplychain tracking and transparency – this article concludes that the RSB does not do enough to change existing power dynamics which overwhelmingly favor industry, and does not go far enough to create incentives for compliance with standards. Illustrating some of these dynamics with reference to the case of the Guatemalan biofuel and mining industries, we argue that the RSB must increase its transparency and accountability to external actors, such as states and activist NGOs, in order to more reliably guarantee sustainable production of biofuels.

In 2008, Guatemalan news reports announced the arrival of a new transnational business venture in the tropical lowlands in and around the frontier municipality of Ixcán, a region inhabited by impoverished indigenous and peasant communities. Palmas del Ixcán, a venture of the Texas-based bioenergy company Green Earth Fuels, planned to plant 25000 hectares of African palm trees within five years and to sell the oil on the then-booming biofuels market. Palmas del Ixcán was described as “a model project…for environmentally and economically sustainable, socially just palm oil production,” which would bring development and jobs to a region negatively impacted by forest-destroying subsistence farming practices. The company promised to invest $US 3 million in primary forest conservation efforts, and to engage local smallholder farmers in its business model as “independent producers,” contracting out production of some 4,000 additional hectares of African palm and providing farmers with initial inputs. Enthusiasm for this innovative approach to sustainability was such that the US Ambassador was present at the groundbreaking ceremony.1 Yet some residents of the same communities who the initiative claimed to benefit raised concerns before long.2 In Palmas’ arrival to Ixcán, many saw echoes of the coercive land acquisition practices that prominent critics have denounced as endemic throughout the biofuels industry.3 Others, including the Guatemalan Ministry of Environment and Natural Resources, accused the company of environmental abuses such as deforestation and encroachment on protected forest areas, an offense for which the company was eventually fined by the ministry.4 Among indigenous and peasant rights groups, the name Palmas del Ixcán became associated with rapacious land grabs rather than model sustainability practices.5

These widely divergent opinions about Palmas’ practices – is the company a model of sustainable development, or a microcosm of agroindustrial exploitation? – are illustrative of the dilemmas that shape discussions over sustainable energy today. In recent years, growing concern about climate change has led many to advocate for the large scale production of biofuels (also called agrofuels6), or fuels derived from agricultural feedstocks, as an alternative to fossil fuels. Yet as countries as far-flung as Indonesia, Malaysia, Honduras and Brazil have responded to the growing demand for biofuels by converting large swaths of their arable land to production for energy, critics have denounced serious and systematic violations of land rights (as peasants are pushed off their territory to make way for plantations, or coerced into selling under threat of violence); food security (as the conversion of croplands from food cultivation to energy feedstocks has altered the supply of food in local contexts, driving up prices); and water rights (as large plantations usurp water sources or contaminate them through their agroindustrial activity). As in the case of Palmas del Ixcán, the “sustainable energy solutions” advocated by some are perceived by others as the very picture of expropriation and exploitation. For some, third-party certification schemes like the Roundtable on Sustainable Biofuels (RSB) represent a way out of this apparent impasse. As independent analysts applying careful environmental and social criteria to discern the sustainable from the unsustainable, third-party schemes like the RSB may provide consumers, investors, and governments credible, unbiased information to shape decisionmaking. As observers and advocates of human rights with particular experience in Guatemala – a country that, like many others, has undergone recent agricultural transformations as a result of the biofuels boom – we set out to examine the

promises and pitfalls of biofuel certification in this context. We explored two central questions. First, how does the RSB compare to similar initiatives in other industries, about which—given their longer history—we have more information by which to assess success or failure? And given the complex nexus of forces driving human rights abuses in contexts like Guatemala’s, how confident are we that the RSB standards will produce positive outcomes on the ground? Our research involved analysis of written documents relating to the RSB’s evolving standards, and to the human rights challenges associated with the biofuel boom in Guatemala. We also interviewed RSB staff and key stakeholders in both the United States and Guatemala, including (in Guatemala) personnel at Palmas del Ixcán, a vice president at Central America’s largest sugar company, and members of the industry organizations representing renewable fuels and palm producers. In addition, we interviewed critics from indigenous rights organizations, grassroots development organizations, environmental groups, and met with representatives of the Guatemalan government’s Ministry of Energy and Mines as well as the Ministry of Environment and Natural Resources, who provided us with key documents. Lastly, we also conducted a brief field study involving case studies of specific communities affected by, and in some cases employed on, sugar and African palm plantations on the country’s southern coast.7 Overall, we found that given the highly charged context in which it operates, the RSB is faced with a daunting task. The gaps in perspective that make it possible for a single company to serve simultaneously as the model of sustainability in the eyes of some, and the poster child for irresponsibility in the view of others, are replicated across the industry. What’s more,

enormous power differences characterize these two camps. While the RSB aims to serve as an objective third-party arbiter in such matters, and has developed an elaborate bureaucratic structure to channel differences of opinion, it does nothing to address these power asymmetries – and it could. In this article, we argue that a third party certification process might lead to meaningful improvement if it provides tools to engage external parties such as human rights advocates. Activists, NGOs, and social movements have the capacity to “verticalize” conflicts – bringing abuses in a remote locale to the attention of transnational issue networks and mobilizing resources that otherwise would not be available in these contexts, thus transforming power relations on the ground.8 Certification processes can help, to the extent that they monitor practices and track actors in ways that can be useful in accountability efforts – but only if they open their books. Certification, in this sense, could serve as a means to an end. The RSB, on the other hand, appears to consider certification itself the end, and offers only its own efforts as attempts to alter the on-the-ground power dynamics and information asymmetries that manifest themselves in conflicts over biofuel production. As such, the RSB offers a technocratic approach to deep-seated social problems, with few (if any) teeth. In these pages, we examine three areas that we argue are indicative of this tendency. In auditing, participation, and traceability, we argue, the RSB appears prepared to implement a standard that has proved of dubious utility in other industries. In each of these areas, we believe, the RSB does not go far enough to transform existing unequal power relations or create

strong incentives for compliance. Toward this end, we argue for heightened transparency as a means to increase the external accountability of the RSB. Our purpose is not to lambast certification schemes in general, or the RSB in particular; on the contrary, our interviews in the field led us to conclude that such approaches have considerable promise, and we conclude with some reflections on the potential importance of certification schemes in biofuels, if they incorporate key insights from other industries’ experiences. At the same time, past experience—and apparently, the present inclinations of the RSB—lead us to also offer some words of caution to those who would embrace any voluntary standard as a conclusive answer to endemic human rights challenges.

BIOFUELS & THE RSB: BACKGROUND The industrial production of fuels derived from crops has grown since the oil crisis of the 1970s, as governmental concern for energy security stimulated the promotion of non-fossil fuels. In the United States, the 1978 Energy Policy Act established a tax subsidy that benefitted domestic ethanol producers, most of whom used corn-based feedstocks. At the same time, tariffs on imported ethanol were also introduced to protect domestic industry from foreign competition.9 The primary source of competition to the US has been Brazil, which has had a robust ethanol industry since the 1970s, employing feedstocks such as sugarcane and soy. Overall, the industry is highly dynamic, with transnational flows of product growing and shifting rapidly due to market fluctuations and other influences.10

The precipitous rise in oil prices in the mid 2000s, reaching a peak of more than $120 per barrel in 2008, led to a veritable worldwide boom in the biofuel industry. Concomitant rises in food prices, leading to shortages of basic grains and food riots in some countries, resulted in international outcry against the use of “food for fuel” and investigation of the direct and indirect impacts of biofuel production on food security, land and water rights, and other social and human rights impacts, especially in the global South.11 In Guatemala, critical studies of the biofuel industry have focused concern on impacts relating to water quality and access; threats to the land rights of indigenous and peasant communities due to predatory purchasing practices, institutional corruption, and market advantages favoring large landholders; encroachment of biofuel plantations onto lands used for subsistence farming; and concentration of land ownership.12 The Roundtable on Sustainable Biofuels was founded in 2007, partially in response to these concerns13. As of early 2010, the RSB had not yet awarded any certifications, and was implementing a pilot test of Version One of its standards. These standards are encoded in twelve core Principles, each with accompanying Criteria that form the bases for Compliance Indicators used by certification auditors. The RSB is governed by a Steering Board comprised of representatives from 11 “stakeholder chambers;” these chambers are intended to draw in a diverse range of participants including industrial biofuel producers, banks and investor groups, fuel and transportation corporations, farmers’ and smallholders’ groups, inter- and nongovernmental organizations, environmental organizations, trade unions, and so on. The sole participant in the “rights-based NGOs” chamber is the Guatemalan labor monitoring organization COVERCO.14

Although in some ways the RSB builds on other certification schemes such as those used to promote fair trade products, the biofuels industry enjoys a considerable advantage in that a number of governments have mandated consumption of renewable fuels; in this sense, the success of the initiative does not only rely on its embrace by enlightened consumers. In effect, renewable energy policies like the US’s Renewable Fuel Standard and the EU’s Renewable Energy Directive create a market for fuels which qualify under their definitions as “renewable”. For example, the EU’s Renewable Energy Directive sets an EU-wide target of 10% renewable transport fuel usage by 2020 and establishes sustainability criteria in terms of greenhouse gas reductions and prohibition of feedstock production on environmentally sensitive land. The RED does not establish social sustainability criteria but contemplates the possibility of requiring social impact reporting.15 While individual countries are to implement regulations to ensure that imported and domestically-produced biofuels meet the requirements of the RED, the Directive also allows for the possibility of recognition of voluntary standards by the European Commission, whereby biofuels certified under recognized standards would automatically qualify towards each country’s renewable fuel obligations16; the RSB is currently pursuing recognition of its standard17. As the RSB has stated, this is a “tremendous opportunity” for the initiative, and could prove a major incentive for industry buy-in if certification facilitates access to the large EU biofuels market.18 This has particular relevance for Guatemala, a large supplier of ethanol to the EU market that is likely to have duty-free access to the EU following the implementation of the EU-Central America Association Agreement.19 Today, the most globally competitive producers in Guatemala are positioning themselves for future certification as a means to access attractive markets. For example, the

CEO of Palmas del Ixcán reported having incorporated new business practices as a means of assuring future certification by the Roundtable on Sustainable Palm Oil.20 Salvador Biguria, Director of New Business for Pantaleón Sugar Holdings, Central America’s largest sugar producer and an important producer of ethanol in joint partnership with Brazilian and Colombian firms, stated that having already internalized World Bank standards as well as those of major international buyers, his company is “well within standards”.21 These statements show that at least some companies see compliance with sustainability standards as a condition of entry to global markets; therefore, we argue, a meaningful sustainability standard may create real incentives for improved practice, particularly when coupled with governmental mandates. Our question here is, does the RSB constitute that meaningful standard? THE RSB STANDARDS Since the RSB standards are still in a stage of trial implementation, it is too early to assess the RSB on the basis of demonstrated performance. However, it is not too early to critically examine its potential to accurately discern responsible from irresponsible business practices, and to reward the former in ways that discourage the latter, thus transforming the industry in positive ways. In fact, such critical analysis is arguably particularly important during this developmental phase, when the constructive engagement of external parties might help shape the standard’s final form. In many ways, the RSB represents one of the latest in a long series of certification schemes aiming to use market mechanisms to incentivize fairness or sustainability; a diverse body of scholarship has emerged from efforts to measure the impact of these schemes. In what

follows, therefore, we draw on lessons from other industries, arguing that in each of three areas â&#x20AC;&#x201C; auditing, participation, and traceability â&#x20AC;&#x201C; the RSB mechanisms miss opportunities to alter extreme power asymmetries characteristic of the situation on the ground in Guatemala. In this way, we argue, the RSB fails to incorporate lessons from the experience of other certification initiatives. Auditing The RSB assesses compliance with its standards through a process of regular audits performed by independent, accredited third-party certification bodies. In examining the capacity of auditorsâ&#x20AC;&#x2122; visits to serve as effective vehicles for detecting and thus addressing noncompliance, we examined research on auditing in both the apparel and forest management industries and found that the experience of both suggests at least three important lessons for the RSB. 22 First, researchers have noted that auditing often produces a complex bureaucratic response more interested in avoiding abuse detection rather than an improvement in business practices in ways that meaningfully address the realities of exploitation of either factory workers or forest peoples. This has been most powerfully demonstrated by a series of studies by Richard Locke and various collaborators examining the success of auditing in apparel as well as other industries.23 Although they note some positive results stemming from auditing practices, they offer the sobering conclusion that the traditional compliance model upon which the system is constructed simply does not work. According to this model, monitors conduct regular audits of factories in an effort to catch violators, and report their findings to the

transnational brands, who in turn should use this information to shape decision-making about which factories to source from; at the heart of the model lies the assumption that factories will pull up their labor standards in an effort to avoid poor audit scores, and that brands will steer their business away from those factories who fail to do so. Yet, as Locke et al. explain, “Auditors arrive with lengthy, detailed checklists aimed at exposing record-keeping lapses and easy-to-detect code violations rather than discovering the sources or root causes of these various workplace problems. Managers, in turn, learn to be inspected by better preparing (sometimes doctoring) their records and do the absolute minimum to remain within compliance of the buyers’ codes of conduct.”24 Locke et al.’s research has also shown that while audits may be successful in addressing some readily quantifiable areas, such as the presence or absence of fire extinguishers or other safety provisions, they are much less satisfactory as regards core issues like freedom of association. While improved health and safety conditions do, of course, represent an important step forward, the inability of auditing to get at deeper underlying issues of power in labor relations does not bode well for the inclusion of this model in biofuels work. Similarly, a number of studies have examined the effectiveness of the Forest Stewardship Council’s (FSC) certification program in improving conditions on the ground. Owen et al describe FSC auditing as a “narrow compliance-driven process,” which focuses on managerial structure and documentation, creating a “related culture of avoidance.”25 Rametsteiner and Markuu point out that FSC audits seem primarily focused on “the existence and accuracy of written documentation in forest management” rather than underlying issues of justice and sustainability in the management of forest resources.26 As Baas and Markuu note, “…*M+any FSC certificates have imposed no social conditions, or just a few on the social impacts of forest management. This may be because social conditions are acceptable in and around presently-certified forests, or the social standards are vague or weak, or

there is so much contention in social issues that it is treated as an unresolved issue, i.e. there is no agreed ‘right’ or ‘wrong’, and auditors (and companies) are less experienced in interpreting social standards than, say, environmental standards.”27 In this sense, audits in apparel and forestry seem to share an underlying focus on the readily quantifiable in ways that often ignore or elide the deeper social issues, which ultimately may have a far greater impact on the situation lived on the ground by workers or forest communities. A bias toward the quantifiable is, of course, understandable; measuring the fulfillment of more abstract social criteria is inherently more subjective than noting the presence or absence of a given practice or provision. In general, the use of social criteria is a newer concept. The ISO, for example —from which the FSC and RSB borrow much of their standards—has not yet published a standard on social responsibility; such international standards are currently under development. To its credit, the RSB envisions the deployment of ambitious social standards, but absent evidence that such measures have worked elsewhere in improving onthe-ground conditions, we remain skeptical of whether auditing serves as effective enough mechanism for the assessment of these standards. Second, the possibility of conflicts of interest in company-auditor relationships poses an important challenge to the effectiveness of this model. Although it is widely agreed that auditor independence is necessarily for credibility, the third party certification system as practiced by the RSB and FSC still ties auditors to companies financially: though auditors are not company employees, they are still contracted by the company.28 The resulting ‘market’ for auditing services presents an inherent conflict of interest such that auditors that are generous, rather than rigorous, may be more competitive in acquiring contracts from producers.29 De Camino 12

and Alfaro present evidence of this in FSC audits, noting “competition among different certification bodies in order to obtain contracts, with some actively discrediting their competitors and even going so far as to guarantee certification ex ante in order to obtain contracts”.30 To be sure, the RSB has attempted to correct for some of these tendencies in the structure it envisions. For example, the RSB standard requires that personnel participating in the certification process report any conflicts of interest to the certifying body. Additionally, auditors or other personnel who have been involved with or are financially connected to the company under evaluation are barred from participating in the certification decision entity; neither can auditors provide consultancy services.31 Yet given that the certification body manages matters regarding evaluating, granting, maintaining, suspending, and withdrawing certification and that the certification body is financially tied to the company under audit, it is difficult to imagine that such internal measures will suffice to truly counterbalance this conflict of interest.32 Third, many researchers have noted that auditors’ interpretations of standards can be extremely variable. Rametsteiner et al., for example, write that “in practice, certification bodies and auditors tend to verify the forest certification standards very differently, even between auditors of the same certification scheme. …Assessments are often a fairly informal process. In many cases a large number of the standard requirements are either overlooked, not included in a sample-based check, or defined as inapplicable.”33 Given the dynamics discussed above, of course, conflicts of interests may compound this tendency to bypass criteria.

In addition, some of these differences are attributable to underlying differences of opinion around what is necessary to meet standards: must production meet all necessary requirements at the time of the audit, or is it satisfactory that the producer show that they are working toward meeting these requirements? On the ground this confusion amounts to significant variability in whether producers are certified based on ‘performance’ (practices which demonstrably surpass a specific benchmark standard) or ‘continuous improvement’34 (evidence of practices improving towards the standard, even if they fall short of the benchmark itself at any one time).35 The RSB employs a mix of ‘performance’ and ‘continuous improvement’ standards in its assessments. Some argue that a ‘continuous improvement’ philosophy is the most helpful, as it encourages incorporation of the producing company in the nexus of auditing and assessment, through which ongoing improvements can be encouraged. For example, SCS, an FSC-accredited certification body, states in its manual that “the process of specifying conditions in situations where some criteria are below the threshold for a certified operation is rooted in a fundamental goal of third party forest management certification—to improve the quality of management of forest lands, over time” as opposed to setting clear thresholds of acceptable performance.36 Locke et al. would appear to favor something along these lines, as they call for a more “commitment-oriented,” less punitive approach to auditing.37 However, we are skeptical of such suggestions. The application of certification marks to products that are not guaranteed to have adhered to a specific standard threatens to undermine the purpose of providing credible information to consumers or governments; essentially the mark becomes an indicator of intentions rather than proven results.

In all three of these areas – the auditing system’s tendency to favor quantifiable, but at times relatively superficial, measures; its creation of relationships of indirect economic dependence between auditors and the industry they audit; and its reliance on auditors whose variable interpretation of criteria, in practice, sometimes make them seem more like a sliding scale than a strict standard – we are concerned that the RSB appears poised to implement a model which fundamentally misreads the power differences between auditors and agroindustrial corporations whose operations they police. While one way to address this gap is to envision the auditors’ role as less of a police officer and more of a collaborator, as those promoting ‘continuous improvement’ certification suggest – another, more effective, way could be to ensure that the information garnered through these exercises be made available to external stakeholders including NGOs and governments. An abundance of evidence from various industries suggests that auditing alone can’t solve the problem of poor practices. The question is whether we water down our expectation that it should – and simply promote auditing for its own sake, as evidence that companies care – or whether we look to involve external parties who might get involved in ways that counter the considerable power of agroindustrial corporations to shape outcomes in their favor. Participation Yet given the impact of biofuels production on surrounding communities, auditors’ detection of problems is not the only way a “red flag” about unsustainable practice might be registered. Industries including mining, forestry and paper processing have employed the concept of “Social License to Operate” as a counterpart to government-issued authorizations of

development projects, recognizing issues such as local communities’ goodwill, support, and enjoyment of project benefits as necessary to the legitimacy and feasibility of developments38; for this reason, the RSB, too, has incorporated an extremely complex set of mechanisms to ensure affected communities’ participation in decisionmaking about biofuel projects. However, here too we fear that the RSB’s focus on consultations ignores the disappointing results of many previous experiences with such mechanisms. Indeed, evidence from other industries abounds that such exercises have failed to address community concerns; in fact, in some cases discord over purportedly consultative practices has ratcheted up tensions considerably, leading to notoriously bad outcomes39. Ultimately, our concerns again resolve around the inability of formal bureaucratic mechnanisms internal to the certification process to bridge the formidable gaps in power between disempowered peasant communities and the agroindustrial corporations that promote biofuels. First, we argue, the RSB’s standards leave many subjective determinations up to the auditor, in ways that are more likely to yield determinations reproducing the views of the company than those of the affected communities, where these diverge; and second, the RSB specifically avoids involving external stakeholders in ways that virtually guarantee this existing power imbalance will not be altered. The RSB incorporates consultation in the multi-layered process of Environment and Social Impact Assessment, which is carried out through a “participatory approach”40. The RSB provides standards for both the content and form of the ESIA, which is to be carried out by a professional consulting firm specializing in impact assessment. These standards specify that consultation, based on the concept of Free, Prior, and Informed Consent, is to be facilitated by the assessor through stakeholder engagement during all phases of the impact assessment

process, in order to obtain input from interested parties including local communities, NGOs, local/national authorities, and the biofuel company in question41. The RSB principles and ESIA guidelines acknowledge that, due to their “usually marginalized and powerless” conditions, the consultation and participation of “groups such as women, youth, indigenous communities and the vulnerable” is essential to the legitimization of sustainable development activities42. The goal of these exercises is to produce “consensus-driven negotiated agreements.”43 As an additional check, adherence to such standards is later evaluated by an RSB-accredited certifying body, which evaluates the ESIA process as one aspect of its determination of compliance. Our first concern revolves around the subjectivity of these standards. Clearly, the RSB’s treatment of community participation and consultation is detailed and extensive. Yet it is ultimately highly subjective, especially around key sticking-points like the obtaining of consensus. The RSB’s definition of consensus is equivocal: “Consensus, in the RSB standard is defined as absence of sustained opposition, but there are some cases where sustained opposition may be accepted. …When making a decision on whether to award accreditation for the biofuel operation the auditor will take into consideration the extent of stakeholder agreement and/or opposition, the types of stakeholders opposed [to] (sic) the proposal(s) and for what reasons, and whether the proposal complies with the RSB principles or not.” 44 According to the guidelines, the opposition of “concerned/interested stakeholders” alone is not sufficient to deny certification unless the project also directly contravenes RSB principles. The ultimate decision for or against certification lies with the auditor, and is reliant upon determinations of which stakeholders are “affected stakeholders” versus

“concerned/interested stakeholders”, as well as whether the project contravenes RSB principles. For example, it is unclear which aspects of the impact assessment or the development in general need to obtain full stakeholder consensus, or merely allow for input by the “Interested and Affected Parties,” to be addressed as the assessors and project implementers determine. While “input” of some form is required in all stages of the ESIA process, the guidelines regarding the assessment of social impacts specifically limit the importance of consensus in this area: “…Due to the different world views, and potentially contradictory and competitive self interests of the various stakeholder groups it is unlikely that they would be able to agree on the nature and significance of all the social impacts. Any attempt to reach consensus on the impacts would require an onerous amount of time and effort from the facilitators and the participant to ensure that all stakeholders were in agreement. This level of commitment would be difficult to secure and is not really necessary.”45 The guidelines therefore recommend attempting to combine a “top-down” “expert approach” facilitated by professional specialists with a “bottom-up” “participatory approach” involving affected groups. However, if attaining agreement even on the potential impacts of a project is not required, how can it be reasonably expected that all “stakeholder groups” achieve consensus on vastly more drastic questions considered within the guidelines, such as the resettlement of populations? As the above excerpt recognizes, such determinations are likely to be influenced by the divergent interests of different parties that reflect both their relative power (in terms of access to knowledge, institutions, and resources) and what they have at stake in the process. Yet this is precisely the reason participation and meaningful consultation are so important, and should not be offered as justification for rendering them optional.46

Despite the language of “negotiation” and “stakeholder engagement,” powerful financial and professional incentives might well lead the certification consultants who carry out audits and impact assessments to downplay disagreements between companies and communities. Some studies of consultation under the FSC suggest that such problems have occurred. For example, a 2002 Rainforest Foundation UK report gathered a number of case studies of FSC certification and noted that “at the level of specific certifications, decisionmaking processes are effectively controlled by the accredited certification body. …The certifiers are supposed to consult with legitimate stakeholders, and thus ensure that their concerns are incorporated. However, there is significant evidence … that the ‘stakeholder balance’ in specific certifications are (sic) being severely altered by the mutual interests between certification bodies and their industrial clients in ensuring a ‘positive outcome’.”47 In Guatemala, vigorous discussion has emerged in recent years about the value of community consultations in development decisionmaking, revealing the very weaknesses of the model the RSB proposes. The main flashpoint of controversy has been Goldcorp’s Marlin project, an open-pit gold and silver mine in rural San Marcos that has generated significant opposition from surrounding communities since initiating operations in 2002. In this case, the company asserts that it carried out its own consultation process, securing the support of those it viewed as key stakeholders. Residents of these communities and human rights organizations with whom they work have disputed the legitimacy of the company’s purported “consultation,” carrying out instead their own consultative processes, the results of which demonstrated wholesale rejection of the mine’s activities.48 In such a climate, which “consultation” counts? Whose opinion matters? The International Finance Corporation’s Compliance

Adviser/Ombudsman found significant problems with the Marlin project’s EIA and consultation process, in particular because of the company’s unilateral decision to consider the residents of Sipacapa – one of the two communities surrounding the mine – not “directly affected” by its operations49. Given this precedent, it seems particularly troubling that the RSB’s guidelines grant the RSB’s auditor broad authority to determine who are “affected stakeholders” versus “concerned/interested stakeholders,” and to certify projects even over the opposition of the latter group. Given the variability of auditor standards, and the propensity for conflicts of interest discussed above, the stakes are too high to leave such determinations to a private actor with no accountability to the affected parties (and moreover, one who has been selected and paid by the company itself). In Guatemala, civil society groups have rejected the notion that corporate-led consultation processes can serve as acceptable stand-ins for democratically administered processes of consultation and Free Prior, and Informed Consent, as mandated under international law, most notably by the ILO’s Convention 169 and the UN Declaration on the Rights of Indigenous Peoples. And this critique is not limited to critical voices on the left; the IFC itself has concluded that, “…*I+n countries like Guatemala, where the Government has not issued specific regulations on consultations with indigenous peoples to ensure compliance with Convention 169, private companies need to play a proactive role in the design and implementation of a consultation process with government participation and endorsement. Companies should invite appropriate government agencies and other third parties to join the key consultation meetings with the local communities. The presence of the government representatives add [sic] credibility to the process and facilitate the delivery of information on certain subjects, such as the licensing processes and the legal obligations of private companies.”50

Of course, involving government actors is not without its problems, especially in countries such as Guatemala where the state has long favored the interests of a wealthy few over the principles of democratic participation. Yet given the backdrop of vast inequalities against which biofuels industry operates, it is dangerous to empower private actors with roles properly ascribed to public authorities. Even if all parties operate with the best of intentions, the lack of accountability under private voluntary schemes such as the RSB will favor existing power imbalances – in this case, the interests of the biofuel industry. Ultimately, unless the RSB engages mechanisms of external accountability – whether these be the state or local and transnational civil society – it seems highly unlikely to affect the balance of power on the ground in affected communities. It is telling, for example, that inequality is referenced in the RSB guidelines as a justification for companies to avoid initiating or being drawn into (potentially binding) legal disputes: “The resolution of conflicts through legal proceedings should also be avoided due to the expense involved and due to inequalities in access to legal services by various stakeholders that could result in an unfair and socially unacceptable result.”51 Essentially, the RSB offers its own mechanisms as a preferable avenue for settling differences, precisely because communities are poor. Yet what real promise does the RSB offer for fairly mediating disputes between vastly unequal parties? Given the loose and subjective terms by which it proposes to evaluate community participation, and the deliberate avoidance of state engagement in conflicts52, prospects for certification leading to substantial improvement of human rights in biofuel-affected communities appear dim.

Traceability The foregoing sections have criticized the RSB for its failure to incorporate external stakeholders in ways that might help close the gap between companies and auditors (in the first section) or affected communities (in the second). In both cases, the RSB creates complex mechanisms to assess whether a given product meets standards for certification, yet the power imbalance between the company and those who would ostensibly hold it accountable to standards suggest that certification may wind up being a rubber stamp. This is not, however, a foregone conclusion: should the RSB take steps to make its standards less subjective, and especially to allow external stakeholders the ability to use the information it produces on company practices in their decisionmaking, the certification process could serve as a springboard to broader goals. For example, Cesar Rodriguez-Garavito’s work on apparel suggests that companies’ incorporation of voluntary standards was a key step in enabling the transnational campaigns for worker rights.53 In and of themselves, the standards were largely toothless; but because they committed companies to principles of justice and some limited transparency about their supply chains, they were successfully used by activists to demand accountability. Similarly, major victories for labor rights have been made possible thanks to the disclosure of factories for the collegiate apparel market, mandated under universities’ codes of conduct.54 Of course, such campaigns have severe limitations, but the possibility of transnational activists’ involvement helps alter the otherwise enormous gaps in power between corporate apparel giants like Nike and impoverishes workers in their factories. This is only possible because disclosure practices –

and workers’ own testimony about the tags they sew on clothes – have made it possible to trace abuses in faraway sites to the brand names familiar to US consumers.55 As regards biofuels, supply-chain traceability is a possible, though ambitious goal. At present, the RSB and related schemes such as the FSC and RSPO aim to track their products -moving certified product through the chain of custody to the end consumer in order to identify a final product as sustainably produced. Such schemes do not yet attempt to trace a product along its chain of custody to make sourcing information for final products publicly available – but they could, and we believe should, in order to provide information that can be used by consumers, workers, governmental agencies and advocacy groups to ensure the mission of the RSB is upheld. The RSB itself acknowledges the role of these groups, stating the, “Chain of Custody Standard… *is+ designed to provide a credible guarantee to constituents (e.g. business, government, civil society organizations, etc.) that products associated with compliance claims about RSB certification originate from sources which comply with the RSB Standards”; towards this goal they claim to, “facilitate transparent tracking… along the supply chain.”56 Unfortunately, RSB CoC standards will need to be strengthened by incorporating externally verifiable tracking in order to live up to their own claims. At present, the RSB has identified multiple possible ways to track a batch of products path through the chain of custody in order to permit its eventual identification as certified. These are as follows (in descending level of rigor):

1. Identity of Product Preserved: ensures that each individual batch of product and its certification can be traced back to its producer.57 2. Fully Segregated: entails keeping output from certified producers segregated from output from non-certified producers all the way along the CoC.58 3. Mass Balance: in which the RSB compliant product is mixed with non-compliant product and certification differentiates between the two and may be tracked for each batch until it is no longer necessary. 59 4. Content Ratio Accounting: in which the RSB compliant product is mixed with noncompliant and certification reflects the percentage or average percentage.60 5. Book and Claim: would separate the physical product from the certification entirely, with certificates to be traded as a commodity (similar to cap and trade). The idea is being pursued by both the RSB and RSPO but has not yet been implemented.61 All of these methods work towards tracking (placing a logo on a finished product) but they have widely ranging potential for tracing (following a final product back to its producer). The Identity of Product Preserved method is the only one that would achieve the second goal. Fully Segregated, Mass Balance or Content Ratio Accounting lend themselves to varying degrees to be used as a vehicle for some form of tracing but would require serious modification62. Other stakeholders also support moving towards the more rigorous end of the spectrum; for example, these three are the only methods that would meet the criteria of the EUâ&#x20AC;&#x2122;s Renewable Energy Directive.63

The main modification necessary to include tracing would be to keep documents stating producer(s) or percentages from multiple producers with the product. This could range from simply keeping a list with each batch, adding the names of all producers whose product is mixed in along the chain of custody to actually fully segregating single origin batches as far as possible and documenting every link in the chain of custody. Another possibility would be to follow the example of collegiate apparel and require companies selling the fuel to its final consumer to disclose their prospective suppliers for the following year. Chain of custody transparency is a key component of accountability. First, it is necessary to keep a check on issues with the standards set by certification schemes. Given the aforementioned weaknesses of audit-based systems of ensuring compliance, it is difficult to credibly claim that the certification process itself will create systematic incentives for improvement in on-the-ground practices. It may, at best, create a record of identified problems, as some authors argue FSC certification has done (Dahl 2001; Newsom and Hewitt 2005; Rametsteiner 1999, 2002)64; but without mechanisms by which external parties—not the same actors engaged in ongoing business relationships with producers but independent groups, especially human rights organizations and others underrepresented even in “multistakeholder” schemes like the RSB—can hold producers accountable, it seems unlikely that the certification scheme itself will produce substantive change. Absent a transparent chain of custody there can be no external check on the standards or their implementation, leaving auditing alone as the basis for consumer confidence in RSB’s

standards. Given its weak record in other industries, and the problems identified above in the RSB’s audit scheme, we believe external accountability mechanisms are imperative.

CONCLUSION Voluntary certification schemes like the RSB have largely emerged as an attempted alternative to the so-called “race to the bottom” generated when market forces encourage operations in countries with lax regulations; the idea, of course, is to identify products produced sustainably in ways that will produce consumer confidence, thus in the long term creating incentives for more companies to adopt such practices – not because they are forced to by states, but because the market rewards them for doing so. Some have argued that far from arresting the race to the bottom, these schemes simply obscure or even accelerate it, by undercutting regulation and weakening necessary elements of democratic governance in global South countries and ascribing justice-making functions to the market rather than to the political process.65 We disagree that this is a necessary outcome of voluntary certification schemes. In the concrete example examined here, our analysis of the global biofuels industry confirms that certification standards do create incentives for producers to incorporate meaningful changes to their business plan, particularly because they have been pegged to energy policy by a number of Northern-hemisphere states. In this sense, the RSB is positioned to make a significant difference of real value to the communities involved in the production of biofuel feedstocks.

At the same time, however, several specific elements of the RSB’s design lead us to question whether it will achieve this goal. There are concrete reasons for our skepticism: concrete aspects of the way the RSB engages auditors, assesses community participation, and tracks products’ journey through the supply chain seem to ignore important lessons learned from other industries and related efforts, as discussed above. Yet more broadly, all of these technicalities trace back to a central question, and a basic one, about power. The RSB offers nothing to alter the balance of power in rural communities affected by biofuels, or indeed in the global commodity chain more generally. As such, it is either naïve in aiming to change things, or cynical in seeking to cloak them. The RSB does make promises, of course, to uphold sustainable practices, but its blindness to power dynamics leads it to propose a system whereby in many ways the fox patrols the henhouse. The RSB’s approach to traceability, for example, offers consumers the assurance that RSB is ensuring our biofuels were produced sustainably, but absent information about the actual source of the feedstocks, there are no available means by which to doublecheck that assessment. The RSB’s approach to participation, similarly, offers us the assertion that communities were somehow consulted in the process of development decisionmaking, but absent the involvement of elected governments, there is no way to hold those responsible for ensuring fairness in these processes accountable. The lynchpin by which these loose mechanisms are held together – the ultimate mechanism for accountability in which we as consumers are asked to believe – is the auditor whose visits should uncover evidence of noncompliance and, in so doing, provide incentives for change. Yet this auditor is economically

dependent on the companies themselves. Ultimately, there are no credible checks on the companies’ power to impose their will in this system. Why, then, would anything change? We believe that the RSB could contribute meaningfully to democratic development on the ground in places like Guatemala, but that this change will only happen if it incorporates mechanisms that enable external parties to become involved in pushing for meaningful change.

Erin Voegele, “Fondos estadounidenses realizan inversión en el agro guatemalteco,” El

Periodico, July 1, 2008; Green Earth Fuels,“Green Earth Fuels and U.S. Ambassador Derham Plant First Palm Tree for Biodiesel Production at Palmas del Ixcán Plantation in Guatamala,” Biofuels Journal, June 4, 2008. 2

For a brief account of community organizing in opposition to palm plantations in Ixcán, see

Carmen Reina, “Retos de la participación ciudadana en l construcción democrática: un enfoque en el desarrollo local y la resistencia por los recursos naturales,” El Observador, no. 14 (Sept. 2008): 14; For a news account of Palmas del Ixcán land acquisition practices, see Jill Replogle, "Usuarios de Fontierras venden sus terrenos," Siglo XXI, March 9, 2009. 3

See Laura Hurtado, Plantations for agro fuels and loss of land for the production of food in

Guatemala, (Guatemala: ActionAid, 2008); Alberto Alonso Fradejas, Fernando Alzonzo, and Jochen Dürr, Caña de azúcar y palma africana: combustibles para un nuevo ciclo de acumulación y dominio en Guatemala, (Guatemala City: IDEAR/CONGCOOP, 2008). 4

Interview with Luisa María Fernández, Environmental Assessor, Guatemala Ministry of

Environment and Natural Resources (MARN), Feb. 1, 2010.

See Waqib’ Kej, “Ante el Día Internacional de la Madre Tierra,” April 22, 2010. Available at:

http://www.waqib-kej.org/html/comunicados.asp?id=97 6

Via Campesina has argued that the term “biofuels” invokes images of a clean, healthy, life-

sustaining form of energy, thus drawing attention away from the problems inherent in the industrial production of fuels from agricultural feedstocks. For this reason, many critics use the term “agrofuels” as an alternative. 7

Individuals and organizations consulted by the authors included: Matt Rudolf, RSB Coordinator

for the Americas; Ing. Enrique Arriola Fuxet, CEO Palmas del Ixcán; Ing. Salvador Biguria, Director of New Businesses, Pantaleón Sugar Holdings; Ing. Jorge Raúl Cruz, Executive Director, Guatemala Palm Oil Association (GREPAGUA); Daniel Pascual Hernandez, Coordinator, Committee of Campesino Unity (CUC); Lic. Alberto Alonso Fradejas, Lead Researcher, Institute of Rural and Agricultural Studies, Coordination of NGOs and Cooperatives (IDEAR/CONGCOOP); Lic. Carlos Echeverría, General Director of Hydrocarbons, Guatemalan Ministry of Energy and Mines (MEM); Dr. María Eugenia Castro Modenessi, Director of Environmental Processes, and Luisa María Fernández, Environmental Assessor, Guatemala Ministry of Environment and Natural Resources (MARN); Lic. Rafael Maldonado, Legal Director, Guatemala Center for Environmental and Social Legal Action (CALAS); Dr. Yuri Melini, General Director, CALAS; and Delmi Arriaza, Researcher, Pastoral Social de la Tierra, Diocese of San Marcos. All interviews took place in January and February of 2010. In early February 2010, field visits were made to the communities of Pajales, Retalhuleu, Guatemala, with the accompaniment of CALAS; and to Ocós, San Marcos, Guatemala, with the accompaniment of local community leaders and members of the Pastoral Social de la Tierra of the San Marcos Diocese. 29

See Jonathan Fox, “Vertically Integrated Policy Monitoring: A Tool for Civil Society Policy

Advocacy,” Nonprofit and Voluntary Sector Quarterly, Vol. 30 No. 3 (2001): 616–27; and Michael Edwards and John Gaventa, Global Citizen Action (Boulder, CO: Lynne Rienner, 2001). 9

Wallace E. Tyner, “The US Ethanol and Biofuels Boom: Its Origins, Current Status, and Future

Prospects,” BioScience, vol. 58, no. 7 (2008): 646-653. 10

Martin Junginger, Torjus Bolkesjø, Douglas Bradley, Paulo Dolzan, André Faaij, Jussi Heinimö,

Bo Hektor, Øyvind Leistad, Erik Ling, Miles Perry, Erik Piacente, Frank Rosillo-Calle, Yves Ryckmans, Peter-Paul Schouwenberg, Birger Solberg, Erik Trømborg, Arnaldo da Silva Walter and Marc de Wit, “Developments in international bioenergy trade,” Biomass and Bioenergy, Vol. 32, Iss. 8 (August 2008): 717-729. 11

See C. Ford Runge and Benjamin Senauer, “How Biofuels Could Starve the Poor,” Foreign

Affairs, May/June 2007; Victoria Tauli-Corpuz and Parshuram Tamang, “Oil Palm and Other Commercial Tree Plantations, Monocropping: Impacts on Indigenous Peoples’ Land Tenure and Resource Management Systems and Livelihoods,” United Nations Permanent Forum on Indigenous Issues, 6th session, New York, May 14-25, 2007; Robert Bailey, Another Inconvenient Truth: How biofuel policies are deepening poverty and accelerating climate change (Oxfam International, June 2008); and Richard Jonasse, ed., Agrofuels in the Americas (Oakland, CA: Food First Books, 2009). 12

See Alonso Fradejas et al.; Hurtado; and Luis Solano, “Reconversión productiva y

agrocombustibles,” El Observador, no. 14 (September 2008): 31-61. 13

Other voluntary certification standards and industry standards relevant to biofuel-related

crops include the Roundtable on Sustainable Palm Oil, the Roundtable on Responsible Soy, and 30

the Better Sugarcane Initiative—while we mention some of these, detailed analysis of these initiatives falls out of the scope of the current article, for relevant studies see Marcus Colchester and Norman Jiwan, Ghosts on Our Own Land: Indonesian Palm Oil Smallholders and the Roundtable on Sustainable Palm Oil (SawitWatch and Forest Peoples Programme, 2006); Corrina Steward, “From colonization to ‘environmental soy’: A case study of environmental and socio-economic valuation in the Amazon soy frontier,” Agriculture and Human Values, Vol. 24, No. 1 (2007): 107-122; and Annie Shattuck, “Will Sustainability Certifications Work? A look at the Roundtable on Sustainable Biofuels,” in Jonasse 2009. 14

See the RSB’s website, available at http://cgse.epfl.ch/page65660.html.

For an overview of the Renewable Energy Directive, see a report prepared for the Food and

Agriculture Organization’s Bioenergy and Food Security Criteria and Indicators project (FAOBEFSCI): M. Ismail and A. Rossi. A Compilation of Bioenergy Sustainability Initiatives. (Rome: Food and Agriculture Organization of the UN (FAO), 2010). 16

EU Directive 2009/28/EC, Article 18

Interview with Matt Rudolf, RSB Regional Manager, Americas, Feb. 11, 2010.

Roundtable on Sustainable Biofuels, “RSB Seeks Swift Recognition by the European Union,”

RSB Newsletter, no. 5 (Feb. 2010). 19

Interview with Alberto Alonso Fradejas, Lead Researcher, IDEAR/CONGCOOP, Feb. 2, 2010.

According to CEO Enrique Arriola Fuxet of Palmas del Ixcán, the company obtained

permission to plant from the Guatemalan Ministry of Environment and Natural Resources; even though this step was not required by law, the company felt that securing this permission would facilitate future certification. Furthermore, he explained that the company believed that in the 31

near future certification would be required for exports to the EU, where prices are most favorable. Interview with Enrique Arriola Fuxet, Feb. 3, 2010. 21

Interview with Salvador Biguria, Director of New Business, Pantaleón Sugar Holdings, Feb. 2,

2010. 22

Of course, there are important differences to keep in mind in both of these cases: the day-to-

day processes of factory production are quite different, and as a result, the rights violations that fairness schemes seek to address tend to cluster in classic labor rights categories – health and safety issues, fair payment, rights of free association, and others – rather than the fartherranging panorama of issues found in the production of biofuels. In apparel, the dominant model for addressing the issue has not been certification, in the sense of creating an independent body to identifiably stamp certain products “fair” or “sustainable” in ways that are discernible to the end consumer, but rather internal auditing processes adopted by transnational corporations for the monitoring of labor practices in their supply chain 23

See for example Richard M. Locke, “The Promise and Perils of Globalization: The Case of

Nike,” in Thomas A. Kochan and Richard Schmalensee, eds., Management: Inventing and Delivering Its Future, (Cambridge, Mass.: MIT Press, 2003): 39-70; Richard M. Locke and Monica Roomis, “Improving Work Conditions in a Global Supply Chain,” MIT Sloan Management Review, Vol. 48, No. 2 (Winter 2007): 54-62; Richard M. Locke, Fei Qin, and Alberto Brause, “Does Monitoring Improve Labor Standards?: Lessons from Nike,” Industrial and Labor Relations Review, Vol. 61, No. 1 (October 2007): 3-31; and Richard M. Locke, Matthew Amengual, and Akshay Mangla. “Virtue out of Necessity?: Compliance, Commitment, and the

Improvement of Labor Conditions in Global Supply Chains,” Politics & Society, Vol. 37, No. 3 (2009): 319-351. 24

Locke et al. 2009: 328.

See David L. Owen, Tracey A. Swift, Christopher Humphrey, and Mary Bowerman, “The new

social audits: accountability, managerial capture or the agenda of social champions?” The European Accounting Review, Vol. 9 No. 1 (2000): 92-94. 26

See Ewald Rametsteiner and Markuu Simula, “Forest certification—an instrument to promote

sustainable forest management?” Journal of Environmental Management, No. 67, (2003): 95; see also Stephen Bass and Markuu Simula, “Independent certification/Verification of forest management,” Background Paper prepared for the World Bank/WFF Alliance Workshop (Washington, D.C., Nov. 9-10, 1999): 16. 27

Bass and Markuu: 18.

See Owen et al.: 93.

See Simon Counsell and Kim Terje Loraas, eds. Trading in Credibility: The myth and reality of

the Forest Stewardship Council. (Rainforest Foundation UK, 2002): 36-37. 30

See Ronnie de Camino and Marielos Alfaro, “Certification in Latin America: experience to

date,” Rural Development Forestry Network Paper (London: Overseas Development Institute, 1998): 8. 31

See Roundtable on Sustainable Biofuels (RSB), “Requirements for Certification Bodies,” RSB-

STD-70-001 (2009): 16-17. 32

Ibid.: 21.

Rametsteiner et al.: 94-95. 33

This approach is also termed ‘management-systems based’.

Counsell and Loraas: 22.

Ibid.: 22.

See Locke et al. 2009.

See Neil Gunningham, Robert A. Kagan, and Dorothy Thornton, “Social License and

Environmental Protection: Why Businesses Go Beyond Compliance,” Law & Social Inquiry, Vol. 29 No. 2 (Spring, 2004): 307-341; G. Cornelius van Kooten, Harry W. Nelson, and Ilan Vertinsky, “Certification of sustainable forest management practices: a global perspective on why countries certify,” Forest Policy and Economics, Vol. 7 Iss. 6 (November 2005): 857-867; Jacqueline L. Nelson, “Social license to operate,” International Journal of Mining, Reclamation and Environment, Vol. 20, Iss. 3 (September 2006): 161-162. 39

See for example Mamen and Whiteman’s and comprehensive survey of consultation

practices in the mining sector: Katy Mamen and Gail Whiteman , Meaningful consultation and participation in the mining sector? A review of the consultation and participation of Indigenous Peoples within the international mining sector, (Ottawa: The North-South Institute, 2002). Available at: http://www.nsi-ins.ca/download/lit_rev/lit_rev_final.pdf 40

See RSB, “Annex to the Guidelines for environmental and social impact assessment,

stakeholder mapping and community consultation specific to the biofuels sector – Social Specialist Guidelines,” RSB-GUI-20-003 (2009): 5. The RSB’s impact assessment guidelines permit biofuel project implementers to carry out assessments that are less comprehensive and consultative than a full ESIA if they fall under specified thresholds of potential project impacts— these options are a Rapid Environmental and Social Assessment (RESA) or an Environmental 34

and Social Management Plan (ESMP): See RSB, “Guidelines for environmental and social impact assessment, stakeholder mapping and community consultation specific to the biofuels sector,” RSB-GUI-20-002 (2009): 14-17. 41

RSB, “Guidelines for environmental and social impact assessment, stakeholder mapping and

community consultation specific to the biofuels sector,” RSB-GUI-20-002 (2009): 25. 42

Ibid.: 58.

Ibid.: 5.

Ibid.: 71.

Ibid.: 5.

The subjectivity of ESIA processes is illustrated in a case implicating Coastal and

Environmental Services (authors of the RSB ESIA guidelines), which was criticized for carrying out an incomplete ESIA for the Tiomin compay’s Kwale titanium mine in Kenya. CES’s ESIA reportedly lacked crucial elements including plans relating to environmental monitoring and rehabilitation and resettlement of local communities (See Elphas Victor Ojiambo, Battling for Corporate Accountability: Experiences from Titanium Mining Campaign in Kwale, Kenya, Paper presented at the Institute of Development Studies, University of Sussex Seminar on Linking Rights and Participation: Sharing Experiences and Opportunities (May 2002.): 22; and T.C Davies and O. Osano, “Sustainable mineral development: case study from Kenya,” in Sustainable Mineral Operations in the Developing World, B.R. Marker, M.G. Peterson, F. McEnvoy, and M.H. Stephenson, eds. (London: The Geological Society of London, 2005): 87-94). Consultation practices undertaken by the company were also criticized as a mere “public relations exercise”: see Katy Mamen and Gail Whiteman, “Community Consultation in Mining: A Tool for 35

Community Empowerment or for Public Relations?” Cultural Survival Quarterly, Vol. 25, No. 1 (Spring 2001). These concerns came to light particularly though transnational campaign orchestrated by the NGO ActionAid UK in collaboration with local affected communities; one strategy of this multi-faceted campaign involved commissioning a “parallel EIA” undertaken by Kenyatta University, which cross-checked and critically evaluated CES’s EIA (Ojiambo 2002: 43). 47

Counsell and Loraas et al. 2002: 34.

See Brant McGee, “The Community Referendum: Participatory Democracy and the Right to

Free, Prior and Informed Consent” Berkeley Journal of International Law, Vol. 27, No. 2. (2009): 570-635; and Amanda M. Fulmer, Angelina Snodgrass-Godoy, and Philip Neff, “Indigenous Rights, Resistance, and the Law: Lessons from a Guatemalan Mine,” Latin American Politics and Society, Vol. 50, No. 4 (Miami: University of Miami, 2008): 91-121. 49

Since the Marlin project had received World Bank funding via the IFC, the CAO was called to

investigate the project following concerns raised by local communities and local and international NGOs; among other findings, the report revealed a lack of IFC oversight of consultation practices. See International Finance Corporation Compliance Adviser/Ombudsman (CAO), Assessment of a Complaint Submitted to CAO in Relation to the Marlin Mining Project in Guatemala, (September 7, 2005). 50

International Finance Corporation, “ILO Convention 169 and the Private Sector: Questions

and Answers for IFC Clients,” (March 2007): 10, emphasis added. Available at : http://www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/p_ILO169/$FILE/ILO_169.pdf 51

RSB, “Guidelines for environmental and social impact assessment, stakeholder mapping and

community consultation specific to the biofuels sector,” RSB-GUI-20-002 (2009): 75. 36

It should be noted that the RSB Guidelines do recognize the role of states in EIA/ESIA

processes as implemented under national laws; however, the role foreseen for ESIA practitioners and RSB auditors in mediating negotiations and disputes, and presumably in verifying the fulfillment of agreements between companies and communities, in effect creates a private forum for the resolution of conflicts. 53

See César A. Rodríguez-Garavito, “Global Governance and Labor Rights: Codes of Conduct

and Anti-Sweatshop Struggles in Global Apparel Factories in Mexico and Guatemala,” Politics & Society, Vol. 33 No. 2 (2005): 202-233. 54

Steven Greenhouse, “Labor Fight Ends in Win for Students,” The New York Times, November

17, 2009. 55

See Ralph Armbruster-Sandoval, “Globalization and Transnational Labor Organizing,” Social

Science History, Vol. 27 No. 4 (Duke University Press, 2003):551-576; Lesley Gill, “The Limits of Solidarity: Labor and Transnational Organizing Against Coca-Cola,” American Ethnologist, Vol. 36 Iss. 4 (American Anthropological Association, Nov. 6, 2009): 667-680; and The National Labor Committee, “NFL and Reebok Fumble,” Feb. 4, 2010. Available at: http://www.nlcnet.org/reports?id=0003 56

RSB, “Generic chain of custody standard,” RSB-STD-11-001 (2009): 2, emphasis in original.

RSB, “‘Identity of product preserved’ chain of custody standard,” RSB-STD-20-002 (2009).

RSB, “‘Segregation of product’ chain of custody standard,” RSB-STD-20-003 (2009).

RSB, “‘Mass balance of product’ chain of custody standard,” RSB-STD-20-004 (2009).

RSB, “‘Content ratio accounting’ chain of custody standard,” RSB-STD-20-005 (2009).

Interview with Rudolf, 2010. 37

The arguments against this goal, as articulated by the FSC, assume that chain of custody

tracing would involve up to date information of every transaction along the supply chain: see Heiko Liedeker, “An FSC Analysis of the Rainforest Foundation report, ‘Trading in Credibility’” (Feb. 27, 2003): 19, 23-24. This would of course be ideal, but the obstacles to this particular method (such as cost, necessary bureaucratic infrastructure, etc.) should not be used as justification for abandoning the effort altogether. There is a wide spectrum of methods for working towards traceability— including mandating that final vendors list their prospective suppliers for the coming year, as has been done in collegiate apparel. 63

RSB, “RSB Standard for EU market access,” RSB-STD-11-001 (2009).

See Deanna Newsom and Daphne Hewitt, The Global Impacts of SmartWood Certification,

(Rainforest Alliance: June 9, 2005); Ewald Rametsteiner, Sustainable Forest Management Certification – Framework Conditions, Systems Designs and Impact Assessment, (Vienna: MCPFE Liasion unit, 1999); Ewald Rametsteiner, “The Role of Governments in Forest Certification – a Normative Analysis Based on New Institutional Economic Theories,” Forest Policy and Economics, No. 4: 163–173.; and L. Dahl, FSC i Praktiken (FSC in Practice) (Stockholm: Swedish Society for Nature Conservation and WWF, 2001). 65

Peter Leigh Taylor, “In the Market but Not of It: Fair Trade Coffee and Forest Stewardship

Council Certification as Market-Based Social Change,” World Development, Vol. 33 No. 1 (2004): 129-147.