Photo credit: Zairon, Hautes-Alpes
This virtual presentation was prepared for the March 2024 FIDES workshop hosted in Les Orres Saint-Sauveur, France by Bertrand du Marais, Professeur associé de Droit à l’Université Paris Est Créteil, UFR AEI International School (Administration et Échanges Internationaux), Conseiller d’État, membre de la CNIL, and Président, FIDES (Forum sur les Interactions entre le Droit, l’Économie et la Société).
The presentation by Professor Christopher Yukins (GW Law) builds on an article co-authored with Associate Professor Marta Andhov (University of Copenhagen), A Transatlantic Analysis of EU and U.S. Strategies in “Green Procurement,” 66 Gov. Contr. ¶ 60 (Thomson Reuters, Mar. 2024), published just before the conference.
The article points out that as governments the world over move to reduce global warming, public procurement has become an increasingly important means of leveraging governments’ vast purchasing power to reduce greenhouse gas (GHG) emissions through “green” or environmentally sustainable procurement. The article reviews emerging strategies in green procurement in the European Union and the United States.
As the article notes, those green procurement strategies are remarkably consistent on both sides of the Atlantic, from sector-specific preferences for low-carbon products to eco-labels to life-cycle cost analyses which take into account broader environmental impacts.
On both sides of the Atlantic, however, parallel problems have emerged as well. While initial efforts have been made to force firms to chronicle their products’ and services’ GHG emissions so that those emissions can be assessed (including in awarding contracts), those efforts have faltered politically in both the United States and the European Union because of the high costs of implementation. (See, for example, the table below for regulators’ estimate of contractors’ costs of implementation in the U.S. procurement system; see also comments that the regulators’ cost estimates were too low, by the American Bar Association’s Public Contract Law Section.)
These initial results from both continents suggest that while green procurement can evolve in parallel around the world, using common strategies and devices, the costs of implementation — until now, a largely overlooked variable — may play a critical role in deciding which environmentally sustainable strategies are likeliest to succeed, at least in the short run.
Editor’s note: Special thanks to Bertrand du Marais for organizing the FIDES conference in the extraordinary beauty of Les Orres Saint-Sauveur.