1 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
INTERACTIONS BETWEEN PRIVATE AND
PUBLIC RESOURCE GOVERNANCE: KEY
INSIGHTS FROM THE FISHERIES CASE
Growing in presence and visibility, eco-labels and other forms of green certification are
the more obvious signs of a broader social and policy phenomenon: the rise of private regulation
and non-state, market-based governance of environmental and resource practices. The growth of
private regulatory initiatives, especially initiatives led by NGOs and other civil society actors, is
increasingly accompanied by concerns over their potential to detract from public, government
This paper seeks to generate some empirically grounded insights on the nature and
consequences of interaction between more traditional forms of public, government regulation
and the growing realm of market-based regulation by non-state actors. It does so by focusing on
the burgeoning field of private, market-based fisheries regulation to highlight some intriguing
new trends of public-private interaction that are emerging in the fisheries context.
My observations and analysis suggest there is potential for positive synergies between
private and public fisheries regulation, and specifically, between the private, market-based
regulatory efforts of NGOs and their broader endeavors for public regulatory reform.
Now virtually ubiquitous, eco-labels and related forms of health and environmental
credentialing are but the more visible part of a broader social and policy phenomenon: non-state,
market-driven governance of industry practices, and specifically, the private regulation of such
practices through the supply chain.2
Varying in form, institutional sponsorship, geographic reach, and levels of formality (or
flexibility), schemes of non-state, market-driven governance are continuously evolving, and
1 Assistant Professor of Environmental Studies, University of California, Santa Cruz. The author is grateful for the
funding support provided by the University of California, Santa Cruz Committee on Research through a Faculty
2 Gary Gereffi, Ronie Garcia-Johnson, and Erika Sasser, “The NGO-Industrial Complex,” Foreign Policy, 125
(2001): 56-65; Virginia Haufler, “New Forms of Governance: Certification Regimes as Social Regulations of The
Global Market,” Social and Political Dimensions of Forest Certification, ed. Errol Meidinger, Chris Elliott, and
Gerhard Oesten (Germany: Forstbuch, 2003), 237–47; Benjamin Cashore, Graeme Auld, and Deanna Newsom,
Governing Through Markets: Forest Certification and the Emergence of Non-State Authority (New Haven: Yale
University Press, 2004), ix; Errol Meidinger, “The Administrative Law of Global Private-Public Regulation: The
Case of Forestry,” The European Journal of International Law 17(1) (2006): 47-87; Tim Bartley, “Institutional
Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental
Conditions,” American Journal of Sociology 113(2) (2007): 297-351; David Vogel, “Private Global Business
Regulation,” Annual Review of Political Science 11 (2008): 261-82.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 2
collectively becoming a central feature of environmental and resource governance in forestry,
fisheries, agriculture, and aquaculture.3
Increasingly accompanying the rise of such voluntary private regulation is concern over
its implications for the more traditional, more encompassing, more transparent and more
accountable forms of public regulatory governance. A key concern is the potential of private,
market-based regulation to erode public, government regulation, detracting from the propensity
and capacity of citizens and the state to pursue such public regulation.4
This paper addresses the question of public-private governance interaction through a
focus on the burgeoning field of private, market-based regulation in fisheries. Specifically, it
examines the implications of NGO initiatives in private fisheries governance for the future of
public fisheries governance and regulation.
Often complementary in their individual workings, market-based regulatory initiatives in
fisheries have taken various forms: from informal sustainability education and persuasion of
businesses and consumers, to formal sustainability certification of fishery and aquaculture
practices and the chains of custody bringing certified seafood to market,5 to pressuring large,
branded actors in the seafood supply chain to shift seafood sourcing away from unsustainably
produced fish, to assisting a variety of market actors in handling the informational and logistical
challenges and potentially significant transaction costs of understanding and mitigating
environmental impacts of the seafood they sell.6
Distinctive with the primacy of environmental non-governmental organizations (ENGOs
or NGOs) in their conduct and creation, private regulatory initiatives in the fishery and
aquaculture sectors are the work of an international sustainable seafood movement. Diverse in
the philosophies, strategies, sizes, and specialties of its comprising NGOs, the movement shares
3 Cashore, supra note 2; Maki Hatanaka, Carmen Bain, and Lawrence Busch, “Third-Party Certification in the
Global Agrifood System,” Food Policy 30 (2005): 354-69; Trevor Ward and Bruce Phillips, Seafood Ecolabelling:
Principles and Practice (Oxford: Wiley-Blackwell, 2008); “The Sustainable Food Purchasing Policy Project,” last
modified July 13, 2011, http://www.sustainablefoodpolicy.org/third-party-certifications-for-identifying-sustainably-
produced-foods; Steering Committee of the State-of-Knowledge Assessment of Standards and Certification, Toward
Sustainability: The Roles and Limitations of Certification (Washington DC, RESOLVE, Inc., 2012); Fish Info &
Services Co. Ltd., “New Global Partnership to Help Coordinate Efforts in Aquaculture,” October 16, 2013,
4 Michael Maniates, “Individualization: Plant a Tree, Buy a Bike, Save the World?” Global Environmental Politics
1(3) (2001): 31-52; Ronnie D. Lipschutz and James K. Rowe, Globalization, Governmentality and Global Politics:
Regulation for the Rest of Us? (New York: Routledge, 2005); Andrew Szasz, Shopping Our Way to Safety: How We
Changed from Protecting the Environment to Protecting Ourselves (Minneapolis: Univ. of Minnesota Press, 2007);
David Vogel, “The Private Regulation of Global Corporate Conduct: Achievements and Limitations,” Business &
Society 49 (2010): 68-87; Jason Konefal, “Environmental Movements, Market-Based Approaches, and
Neoliberalization: A Case Study of the Sustainable Seafood Movement,” Organization & Environment 26(3)
5 See “Monterey Bay Aquarium Seafood Watch,” Monterey Bay Aquarium, accessed January 15, 2015,
http://www.seafoodwatch.org/cr/seafoodwatch.aspx; “Seafood Selector,” Environmental Defense Fund, accessed
January 15, 2015, http://seafood.edf.org/; “Healthy Oceans Seafood Guide,” Blue Ocean Institute, accessed January
15, 2015, http://blueocean.org/programs/sustainable-seafood-program/seafood-choices/; Marine Stewardship
6 For example, see Casson Trenor and James Mitchell, Carting Away the Oceans VII (Washington, DC: Greenpeace
USA, 2013) (hereinafter Greenpeace 2013); Conservation Alliance for Seafood Solutions,
http://www.solutionsforseafood.org; “Sustainable Seafood,” World Wildlife Fund, accessed January 15, 2015,
“Profit Responsibility,” FishWise, accessed January 15, 2015, http://www.sustainablefishery.org/services/.
3 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
a focus on mobilizing market power within the global seafood supply chain and using such
power to press for improvements in the currently problematic environmental and resource
practices of fishery and aquaculture operations worldwide. A number of movement NGOs are
also involved in traditional political and policy advocacy to improve marine stewardship and
conservation through strengthening public regulatory governance of marine environments and
This paper examines the collective dynamics and performance of the seafood movement,
gauging the current outcomes and broader implications of the movement’s work in order to
generate some much needed empirical insights on the unresolved question of interaction between
more traditional forms of public, government regulation and the growing realm of market-based
regulation by non-state actors.7
The analysis is based on a combination of archival, observational, and interview research
and grounded in political science, sociological, business, and policy perspectives on the actors,
institutions, and dynamics of private governance. The research includes detailed examination of
relevant NGO websites and campaign materials, along with tracking of specialized and general
media8 coverage of relevant NGO initiatives. A second prong of archival research used
immersion in grocery industry media9 and relevant gray literature10 to fully understand the
competitive dynamics of the grocery retail sector that is at the top of the seafood supply chain.
Interview research includes numerous conversations with key NGO actors in the arena of
market-based fishery and aquaculture governance.
My observations and analysis suggest possibilities for, and emerging patterns of positive
interactions between market-driven private regulation and public government regulation in
fisheries. Specifically, they suggest that successful NGO deployment of strategically designed
market-based regulation of fishery practices is creating new opportunities and prospects for
strengthening public, government regulation of such practices; and that it is doing so by creating
a new, business source of demand and support for stronger government regulation and public
management for sustainability. Albeit so far limited in their direct conservation
accomplishments, the market-based governance initiatives of marine conservation NGOs are
producing conservation advances by turning retailers, big buyers, and other powerful business
actors in the seafood supply chain into stakeholders for improved fishery management.
Conservation NGOs are now mobilizing the political and market influence of these new
stakeholders to strengthen the public management of public trust fisheries resources and move
such management towards sustainability.
In the next section, I introduce the diversity and motivations of the sustainable seafood
movement, and highlight key critiques of the movement’s work towards market-driven fisheries
regulation. Section III zeroes in on the set of broad conceptual critiques suggesting that the
growing pursuit of private, market-driven regulation (in fisheries and beyond) is undermining
public, state-driven regulatory governance by perpetuating neoliberal scripts and distracting civil
7 See Vogel, supra note 2; Tim Buthe, “Global Private Politics: A Research Agenda,” Business and Politics 12(3)
(2010): 1-24; Lars Gulbrandsen, “The Emergence and Effectiveness of the Marine Stewardship Council,” Marine
Policy 33 (2009): 654-660; Stefan Renckens, “Regulating Private Governance: EU Policy Responses to Private
Environmental and Social Regulation” (paper presented at the annual meeting of the International Studies
Association, San Francisco, California, April 3-6, 2013).
8 Specialized seafood industry media such as Intrafish.com, Undercurrent News, Seafood Business.
9 E.g. Supermarket News, Progressive Grocer.
10 E.g. USDA ERS reports, FTC reports.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 4
society actors from the hard but necessary work of mobilizing to improve the public government
of the public good. Sections IV and V confront such broad conceptual critiques with evidence
from the private, market-based fisheries regulation initiatives of US environmental NGOs
(ENGOs), analyzing the present outcomes (accomplishments and limits) of such initiatives, and
discussing how movement NGOs are turning current setbacks in private, market-based regulation
into new opportunities for improving the public regulatory governance of fisheries worldwide.
II. PRIVATE, MARKET-DRIVEN REGULATION IN FISHERIES AND AQUACULTURE
A. THE SUSTAINABLE SEAFOOD MOVEMENT AND ITS OBJECTIVES
Starting later than their forestry, agricultural, and garment industry counterparts, NGO
initiatives for private, market-driven regulation of fishery and aquaculture practices hit their
stride in the mid-2000s. The sustainable seafood movement behind such initiatives is comprised
of varied, domestically and/or internationally active NGOs,11 working alongside each other
(sometimes with each other) to mobilize market power and deploy it as a source of regulatory-
type pressure for improvement in environmental and resource practices in fisheries and
aquaculture. The movement is also unified by its broadly shared vision of fishery sustainability,
largely captured by the Marine Stewardship Council (MSC) standard for sustainable fisheries12 –
a set of ecological and performance criteria widely accepted in principle, even if regularly
contested as to their proper practical application.13
Movement NGOs have many organizational, operational, strategic, and philosophical
differences. Philosophically and strategically, for example, movement NGOs vary in their use
and/or balancing of carrot and stick approaches for mobilizing key actors along the seafood
supply chain. Greenpeace is distinctive with its use of adversarial interactions with business,
including the use of reputational threats and brand attacks, although they do not rely exclusively
on the adversarial confrontation strategy, but also offer important reputational rewards to
cooperating business.14 The World Wildlife Fund, a similarly sized and also internationally
11 See supra notes 6 and 7.
12 Marine Stewardship Council, “MSC Principles & Criteria for Sustainable Fishing,” May 1, 2010,
13 Claire Christian et al., “A review of formal objections to Marine Stewardship Council fisheries certifications,”
Biological Conservation 161 (2013): 10–17 at 15. “As the number of MSC-certified fisheries has grown over the
last five years, so has the criticism of the MSC process and its effectiveness (e.g., Jacquet and Pauly, 2007; Ward,
2008; Gulbrandsen, 2009; Jacquet et al., 2010b; Marko et al., 2011; Froese and Proelss, 2012; Ruddle, 2012). The
third-party scoring process has been highly subjective (Ward, 2008) and certifiers have had too much discretion and
too many incentives to inflate scores (Jacquet et al., 2010b; Stokstad, 2011). The MSC process also favors large-
scale industrial fisheries over more sustainable, small-scale ones (Jacquet and Pauly, 2008; Gulbrandsen, 2009;
Ponte, 2012) and the MSC lacks leadership from developing countries on its Board of Directors (Jacquet et al.,
2010b).”; Froese, R., & Proelss, A. (2012). Evaluation and legal assessment of certified seafood. Marine Policy,
36(6), 1284-1289, at 1286 – “In summary, ... both MSC and FOS ultimately aim for stock status at or above BMSY
and fishing pressure at or below FMSY, and therefore it seems fair to assess how close the stocks targeted by the
certified fisheries mirror this goal.”; also see Agnew, D. J., Gutiérrez, N. L., Stern-Pirlot, A., Smith, A. D. M.,
Zimmermann, C., & Sainsbury, K. (2013). Rebuttal to Froese and Proelss “Evaluation and legal assessment of
certified seafood”. Marine Policy, 38, 551-553.
14 See “Traitor Joe’s,” Greenpeace USA, http://www.traitorjoe.com/; “Oh-no-COSTCO,” Greenpeace USA,
http://www.oh-no-costco.com/; Greenpeace 2013, supra note 6, http://www.greenpeace.org/usa/en/media-
center/news-releases/Travis-Nichols/; Greenpeace 2014, at 52, 20-21, 22-23,
5 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
operating NGO, is known for relying on collaborative and cooperative approaches for engaging
industry participation in conservation initiatives.15
Operationally, some movement NGOs specialize in particular aspects of the private
regulatory endeavor, while others cover a broader spectrum of the activities involved in running
market-based governance initiatives. A number of NGOs, for example, have a broad public
outreach and education component;16 some newer and more specialized NGOs focus on
information and expertise-based support that enables businesses to handle the transaction costs of
transitioning to sustainability in their seafood operations;17 NGOs like the Sustainable Fisheries
Partnership (SFP) specialize in enabling and brokering the engagement of seafood businesses
into private and public regulatory processes aimed at improving the environmental performance
of currently problematic fisheries whose product is highly prized by consumers in
environmentally conscious Western markets.18
Very importantly, many movement NGOs are now making big seafood buyers - grocery
retailers, as well as restaurant chains, seafood processors and seafood wholesalers - a primary
target of their market-based regulation activities.19 Such big buyers - especially large grocery
retailers and other consumer-facing branded actors, such as McDonald’s - are where market
power is concentrated in the buyer-driven agri-food and seafood supply chains; getting them to
flex their supply chain muscle and demand sustainable seafood and sustainable practices from
suppliers and producers represents a critical innovation in movement strategy. In Section IV, I
argue that this strategic shift in emphasis has been a core element in the regulatory and
conservation success of the movement to date.
B. THE MOVEMENT’S RATIONALE AND ITS CRITICS
Both in the US and internationally, the movement’s focus on triggering management and
conservation change through the market was in significant part motivated by frustration with the
halting progress and limited practical accomplishments of government regulation and
management of fisheries and marine resources.20 Intended as a complement, rather than a
substitute, for public regulatory governance of fisheries and aquaculture, and aimed at mobilizing
a new and different source of leverage over the practices of targeted fishery and aquaculture
15 See “Aquaculture Dialogues,” World Wildlife Fund,
16 See “Monterey Bay Aquarium Seafood Watch,” supra note 5; “Seafood Selector,” supra note 5; “Healthy Oceans
Seafood Guide,” supra note 5; “Profit Responsibility,” supra note 6.
17 “Sustainable Seafood Advisory Services,” New England Aquarium,
rate_partners/index.php; “FishChoice,” http://fishchoice.com.
18 “Sustainable Fisheries Partnership,” https://www.sustainablefish.org/.
19 Greenpeace 2014, supra note 52; Sustainable Fisheries Partnership Blog; “Filet-O-Fish Goes with MSC Fish,”
blog entry by Blake Lee Harwood, January 31, 2013, http://www.sustainablefish.org/blog/2013/01/31/filet-o-fish-
goes-with-msc-fish; “Leading by Example,” FishWise, http://www.sustainablefishery.org/partners/; Lars
Gulbrandsen, “Creating Markets for Eco-Labelling: Are Consumers Insignificant?,” International Journal of
Consumer Studies 30(5) (2006): 477-89; Michael Sutton and Laura Wimpee, “Towards Sustainable Seafood: The
Evolution of a Conservation Movement,” Seafood Ecolabelling: Principles and Practice, eds. Trevor Ward and
Bruce Phillips (Hoboken: Wiley-Blackwell, 2008), 403-15.
20 Fred Gale and Marcus Haward, “Public Accountability in Private Regulation: Contrasting Models of the Forest
Stewardship Council (FSC) and Marine Stewardship Council (MSC)” (paper presented to the Australasian Political
Studies Association Conference, Adelaide, Australia, September 29, 2004); Alastair Iles, “Making Seafood
Sustainable: Merging Consumption and Citizenship in the United States,” Science and Public Policy 31(2) (2004):
127–38; Sutton and Wimpee, supra note 19; Lars Gulbrandsen, “Mark of Sustainability: Challenges for Fisheries
and Forestry Eco-Labeling, Environment 47(5) (2005): 8-23.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 6
operations, private regulation initiatives buoyed the hopes of many conservation NGOs,
conservation and fisheries scientists, and the philanthropies funding their work.21
The early enthusiasm for private, market-based regulation, however, is increasingly paralleled -
and at times overwhelmed by - critiques of the design, functioning, conservation value, and
overall societal implications of such regulation.22 Practical critiques of market-based initiatives
in fisheries and aquaculture have focused on issues of design and implementation, such as the
problems with targeting consumers, the difficulty of reaching non-western markets for seafood,
or the difficulties with reliably tracing seafood through long, complex, global supply chains to
verify a product’s nature, origin, and sustainability status.23 Observers have also raised issues of
transparency and accountability in the structuring of market-driven regulatory programs for the
fisheries sector.24 Finally, recent work also points to instances of redistribution in resource
access, decision-making, and economic power resulting from the use of key market-based
governance tools such as MSC certification.25 Yet a number of these practical critiques are
implicitly comparing the actual dynamics and performance of market-based private regulation to
an idealized version of perfectly functioning public regulation, while sometimes neglecting the
fact that private fisheries regulation was always intended as a complement, not a substitute for
public regulatory governance. This means that its performance should be evaluated by looking at
how well it works alongside public regulatory governance, rather than gauging what it can do
entirely on its own.
Of greater normative concern is broader criticism suggesting that the burgeoning of
private market-based regulation is effectively undermining public regulatory governance by
undermining civic support, institutional capacity, and over-all propensity for government
regulatory action.26 The next section discusses this broader line of criticism, and sets the stage
for testing its propositions in the context of NGO-driven market-based regulation of fishery
management and practice.
21 Michael Boots, “Advancing the Global Marketplace for Sustainable Seafood: The Seafood Choices Alliance,”
Seafood Ecolabelling: Principles and Practice, eds. Ward and Phillips, (Hoboken: Wiley-Blackwell, 2008), 143-60;
Sutton and Wimpee, supra note 19.
22 Iles, supra note 20; Alastair Iles, “Making The Seafood Industry More Sustainable: Creating Production Chain
Transparency and Accountability,” Journal of Cleaner Production 15 (2007): 577–89; Jennifer Jacquet and Daniel
Pauly, “The Rise of Seafood Awareness Campaigns in An Era of Collapsing Fisheries,” Marine Policy 31 (2007):
308-13; Jennifer Jacquet and Daniel Pauly, “Seafood Stewardship in Crisis,” Nature 467 (2010): 28-29; Paul Foley,
“National Government Responses to Marine Stewardship Council (MSC) Fisheries Certification: Insights from
Atlantic Canada,” New Political Economy 18(2) (2013): 284-307; Konefal, supra note 4; Stefano Ponte, “Greener
than Thou: The Political Economy of Fish Ecolabeling and Its Local Manifestations in South Africa,” World
Development 36(1) (2008): 159–75.
23 Iles, supra note 20; Jacquet and Pauly, supra note 22.
24 Gale and Haward, supra note 20; Iles, supra note 22.
25 Foley, supra note 22; Ponte, supra note 22.
26 Maniates, supra note 4; James Gustave Speth, “Real Growth: Promoting the Well-Being of People and Nature,”
The Bridge at the Edge of the World: Capitalism, Environment, and Crossing from Crisis to Sustainability (New
Haven: Yale Univ. Press, 2008), 126; James Gustave Speth, “Consumption: Living with Enough, Not Always
More,” The Bridge at the Edge of the World: Capitalism, Environment, and Crossing from Crisis to Sustainability
(New Haven: Yale Univ. Press, 2008), 147; Lipschutz and Rowe, supra note 4; Szasz, supra note 4; Bartley, supra
note 2; Jaquet and Pauly, supra note 22,; Konefal supra note 4.
7 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
III. MARKET-BASED REGULATION AND PUBLIC-PRIVATE GOVERNANCE
INTERACTIONS: SOME THEORETICAL CONSTRUCTS IN NEED OF FURTHER
Several scholars share particularly fundamental concerns over the newly energetic NGO
pursuit of private, market-based regulation. These are best characterized as concerns over the
perceived practical futility yet profoundly negative societal impacts of such regulation.27 More
specifically, these scholars see the upsurge of market-based governance as a triumph of
neoliberal ideas and scripts, a gateway for further neoliberalization of governance and society
and a related weakening of both support and capacity for government policy and regulatory
Scholars partially attribute such weakening of public regulatory governance to private
regulation’s effect of diverting ENGO energies away from the laborious but historically critical
work of improving the public governance of public interests, goods, and resources such as
environmental quality, fisheries, and coastal ecosystems.29 They also partly attribute it to the
misplaced individualization and marketization of responsibility for acting on problems that are
only amenable to solutions based on collective and political action.30
Key concerns over the neoliberalizing effects of private, market-based regulation and the
environmental movement’s foray into such regulation are helpfully categorized in Konefal’s
analysis31 of the seafood movement itself. Sharing the views of other key critics of ENGO
initiatives in private, market-driven regulation, Konefal’s broad conceptual analysis of the
seafood movement’s efforts at governing through the market suggests that the aggregate and
troubling consequences of such efforts are those of (1) neoliberalizing environmental and social
governance by individualizing social and environmental responsibility, (2) marketizing the
regulatory process, and (3) devolving regulatory expectations and authority away from
government.32 The movement’s focus on governing through the market, Konefal argues, is
undermining its potential to achieve the very regulatory and conservation outcomes that
motivated its foray into market-based regulation.33 He is especially critical of what he suspects is
the movement’s wholesale abandonment of efforts to advance fisheries sustainability through
strengthening the public regulatory governance of this public trust resource.34
My analysis of private, market-based regulation in fisheries, as presented in the following
two sections, suggests the recent emergence of a different dynamic of private-public governance
interaction – one where the private, market-based initiatives of the sustainable seafood
movement are helping to create renewed demand and momentum for the strengthening of public
regulation and management of fishery practices, along with some promising new opportunities
for doing so. It also reveals movement NGOs are aware of, and poised to take advantage of,
27 Maniates, supra note 4; Speth supra note 24; Bartley, supra note 2; Lipschutz and Rowe, supra note 4; Szasz,
supra note 4; Jaquet and Pauly, supra note 22,; Konefal, supra note 4.
28 Id. Jennifer L. Jacquet, and Daniel Pauly. "The rise of seafood awareness campaigns in an era of collapsing
fisheries." Marine Policy 31(3)(2007): 308-313 at 312; Jennifer L. Jacquet et al., “Seafood stewardship in crisis,”
Nature, 467(7311) (2010): 28-29.
29 Maniates, supra note 4; Jennifer L. Jacquet et al. “Seafood stewardship in crisis,” Nature, 467(7311) (2010): 28-
29 at 29; Bartley, supra note 2; Konefal, supra note 4.
30 Maniates, supra note 4; Speth, supra note 24,; Szasz, supra note 4; Konefal, supra note 4.
31 Konefal, supra note 4.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 8
these new opportunities and potential synergies between public and private, market-driven
This paper’s analysis thus extends and complements the insights of other recent work,
such as that of Paul Foley,35 who shows how maintaining compliance with private regulatory
regimes like the MSC can be closely dependent on government regulatory actions and
interventions, while highlighting important interconnections between private and public fisheries
regulation. It adds nuance and depth to our still incipient and evolving understanding of public-
private governance interactions,36 especially on the still-pending question of how private,
market-driven regulatory initiatives are actually affecting public government regulation across
different sectors, since important recent work has been much more focused on the implications
of government actions for the work, dominance, and longevity of private regulatory schemes.37
IV. KEY ACCOMPLISHMENTS AND SHORTFALLS OF THE SEAFOOD MOVEMENT’S
The sustainable seafood movement has gone a long way in changing the Western market
for seafood, creating a massive new demand for sustainably produced fish and shellfish. Where
the movement’s private regulatory efforts appear to still fall short is in translating this massive
new demand for sustainable seafood into equally massive changes away from ecologically
problematic fishery (and aquaculture) practices and towards sustainable patterns of fishery
management and marine resource use. But if the movement continues to use the momentum and
business-NGO alliances created by its private regulatory efforts to press for the ratcheting of
government fisheries regulation towards sustainability, as it has already started to do, such
setbacks may well prove only temporary.
Some of the most important practical critiques of private, market-based fisheries
regulation have been mooted by learning and adaptation on part of movement NGOs, who have
recognized and strategically responded to the same patterns noted by early critics like Jacquet
and Pauly.38 An especially significant product of such adaptation is the growing focus of NGO
work on the actions of big seafood buyers, on changing the sourcing policies and practices of the
biggest players in the buyer-driven seafood supply chain,39 who currently have the most market
power, and so the most influence over other supply chain actors, big and small. Retailers in
particular are being pressed to use their considerable market power to help make production
more sustainable, that is, asked to trigger a shift in fishery and aquaculture practices by flexing
their supply chain muscle.
35 Foley, supra note 22.
36 Burkard Eberlein, Kenneth W. Abbott, Julia Black, Errol Meidinger and Stepan Wood, “Transnational Business
Governance Interactions: Conceptualization and Framework for Analysis,” Regulation and Governance 8 (2014): 1–
21; Christine Overdevest and Jonathan Zeitlin, “Assembling An Experimentalist Regime: Transnational Governance
Interactions in the Forest Sector,” Regulation & Governance 8 (2014): 22–48; Sally K. Fairfax, Lauren Gwin, Mary
Ann King, Leigh Raymond and Laura A. Watt, Buying Nature: The Limits Of Land Acquisition As A Conservation
Strategy, 1780-2004 (Cambridge: MIT Press, 2005); A.M. Merelender, L. Huntsinger, G. Guthey and S.K. Fairfax,
“Land Trusts and Conservation Easements: Who is Conserving What for Whom?,” Conservation Biology 18(1)
(2004): 65-75; Adena R. Rissman and Adina M. Merenlender, “Conservation Easements: Biodiversity Protection
and Private Use,” Conservation Biology 21(3) (2007): 709-18.
37 Lars H. Gulbrandsen, “Dynamic Governance Interactions: Evolutionary Effects of State Responses to Non-state
Certification Programs,” Regulation & Governance 8 (2014): 74–92; Gale and Haward, supra note 20.
38 See supra note 22.
39 Fred Gale and Marcus Haward, Global Commodity Governance: State Responses to Sustainable Forest and
Fisheries Certification (New York: Palgrave-Macmillan, 2011).
9 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
Some movement NGOs (like WWF) are asking nicely, working through education,
persuasion, and collaborative strategies that emphasize win-win opportunities for retailers,
processors, and the environment.40 Others, like Greenpeace, are more emphatic with the brand
attack stick in a carrot-stick strategy, whose carrot consists of valuable reputational rewards for
cooperating seafood companies – rewards such as top spots in Greenpeace’s annual retailer
scorecard, which pits closely competing retailers against each other based on their
accomplishments in the realm of seafood sustainability.41
Regardless of differences in the tenor of NGO requests and business-NGO relations, the
ask is very similar across the range of relevant market initiatives by movement NGOs: they are
urging retailers, restaurants, and the processors and wholesalers who supply them to (1)
understand and acknowledge the environmental impacts of the seafood they sell, (2) provide
seafood sustainability information to their customers, (3) develop and implement policies – and
practices – of sustainable seafood sourcing (wild & farmed), and, most challenging for retailers
(4) stop selling any products from unsustainable, if often popular, seafood species like Bluefin
tuna, most tropical shrimp, Atlantic cod and farmed salmon.42 That is, movement NGOs are
effectively asking the market players to reach up the seafood supply chain and use their powerful
and privileged position in this supply chain to effect a paradigm shift in the way seafood is
produced - a shift towards sustainability of fishery and aquaculture practices.
The strategic and practical value of making retailers and other big buyers a principal
focus of NGO initiatives for market-based regulation in fisheries and aquaculture is hard to
overstate. The rest of this section demonstrates this value by zooming on the US seafood market
– and the NGO initiatives targeting big buyers in this market - to present the broader dynamics
and accomplishments of the sustainable seafood movement, along with key remaining challenges
and crossroads still facing the movement.
A. THE POWER AND REGULATORY SIGNIFICANCE OF RETAILERS
Like its other western counterparts, the US grocery retail market is highly concentrated:
The four largest grocery retailers (Wal-Mart, Kroger, Costco, with Safeway, and Target
continuously vying for, and periodically switching in the fourth place43) control close to 50% of
40 E.g. WWF’s partnership with Unilever to create MSC, WWFs pioneering role in collaborating with big buyers
and other market and business actors to attain better fishing practices through changing the market for seafood, its
continued collaboration with big buyers. E.g.
wwf-canada-partnership/; WWF’s role in the ISSF is a seafood industry-NGO partnership: E.g.
http://www.worldwildlife.org/industries/tuna; http://iss-foundation.org/our-story/; http://iss-foundation.org/about-
41 Greenpeace 2013, supra note 6; Casson Trenor, Carting our Oceans Away VI (Washington, DC: Greenpeace
USA, 2012) (hereinafter Greenpeace 2012); Casson Trenor, Carting our Oceans Away V, (Washington, DC:
Greenpeace USA, 2011) (hereinafter Greenpeace 2011).
42 See, e.g., Conservation Alliance for Seafood Solutions (CASS), “A Common Vision for Environmentally
Sustainable Seafood,” last accessed July 26, 2013,
Greenpeace 2011, supra note 41; Greenpeace 2012, supra note 41; Greenpeace 2013, supra note 6.
43 Personal Communication with Richard Volpe, US Department of Agriculture Economic Research Service, April
16, 2013 (on file with author). See also Euromonitor International, “Grocery Retailers in the US,” April 2103 at 14,
alongside Supermarket News, “2014 Top 75: The clickable list,” at http://supermarketnews.com/2014-top-75-
clickable-list and Farfan (2014) “Largest Canada, U.S. Grocery Retailers - Walmart, Kroger, Costco, Target,
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 10
the national grocery market. Regionally, the four largest retailers in an area can control up to
80% of the grocery market in that area.44 This extreme concentration of the grocery retail market
has given retailers not only traditional market power, but also the power to set product or process
rules and standards for producers and other upstream actors in the food supply chain, including
other big buyers, such as processors and wholesalers.45
Curiously, the same market concentration that gives retailers their market power makes
them vulnerable to the reputational consequences of negative interactions with NGOs.
Specifically, large retailers need a large market share to be profitable. This puts them in close
competition with each other: since grocery retail is a mature market whose growth is generally
tied to growth in population, retailers are competing for a limited pool of customers, and the
profitability and survival of large retailers depends on their ability to attract and maintain loyal
customers.46 Differentiation and brand development have been increasingly crucial to retailer
success in building and retaining a customer base,47 while social and environmental
responsibility have become an important component of differentiation and brand building for a
number of retailers.48 In this closely competitive context, large retailers can ill afford the
reputational risks of an NGO brand attack, or even the reputational consequences of grossly
underperforming their competitors on the increasingly salient seafood dimension of social and
It is important to note that, perhaps paradoxically, it is not consumer demand for
sustainable seafood that is ultimately driving retailer efforts for sustainable seafood sourcing and
their broader cooperation with movement NGOs. Consumers have actually proven reluctant to
change their own buying practices in ways that prioritize sustainability over other prized seafood
44 Richards and Pofahl, “Pricing Power by Supermarket Retailers: A Ghost in the Machine?,” Choices: The
Magazine of Food, Farm, and Resource Issues; Konefal et al., “Supermarkets and supply chains in North America,”
D. Burch and G. Lawrence, eds. Supermarkets and agri-food supply chains: transformations in the production and
consumption of foods, Cheltenham, UK and Northampton, MA (2007): Edward Elgar, 268-290; Hatanaka et al.
supra note 2; Personal communication with Richard Volpe, ERS, April 16, 2013.
45 Burch, D. and G. Lawrence. 2007. “Supermarket won brands, new foods, and the reconfiguration of agri-food
supply chains. In: D. Burch and G. Lawrence, eds. Supermarkets and agri-food supply chains: transformations in
the production and consumption of foods. Cheltenham, UK and Northampton, MA: Edward Elgar, 100-130; Fuchs,
D. et al. 2009. Retail power, private standards and sustainability in the global food system. In: J. Clapp and D.
Fuchs, eds. Corporate power in global agrifood governance. Cambridge, Mass.: The MIT Press, 29-60; Hughes, A.
2005. Responsible retailers? Ethical trade and the strategic re-regulation of cross-continental food supply chains. In:
N. Fold and B. Pritchard, eds. Cross-continental agro-food chains: structures, actors and dynamics in the global
food system. Routledge, 141-154; Beretti & Stuart, 2008. Food safety and environmental quality impose conflicting
demands on Central Coast growers, California Agriculture, 62(2): 68-73.
46 Steve W. Martinez, “The U.S. Food Marketing System: Recent Developments, 1997-2006,” U.S. Department of
Agriculture, Economic Research Service, Economic Research Report 42 (2007): 3; Daniel Hanner, Daniel Hosken,
Luke M. Olson, and Loren K. Smith, “Dynamics in a Mature Industry: Entry, Exit, and Growth of Big-Box
Retailers,” 13 (FTC Bureau of Economics Working Paper No. 308, Federal Trade Commission Bureau of
Economics, Washington, DC, 2011).
47 Andrew Wileman and Michael Jary, Retail Power Plays: From Trading to Brand Leadership, Strategies for
Building Retail Brand Value (New York: New York University Press, 1997); Andrew Seth and Geoffrey Randall,
The Grocers: The Rise and Rise of the Supermarket Chains (London: Kogan Page, 1999); Martinez, supra note 46,
48 “Safeway Issues Video on Corporate Social Responsibility,” Sustainable Brands, August 14, 2009,
“Sustainable Brands Earth Day Round-up 2011: Safeway, Whole Foods & Mattel,” Sustainable Brands, April 22,
11 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
attributes, such as taste, texture, and price, 49 yet a number of the most popular seafood species,
such as Bluefin tuna, most canned tuna, and large tropical shrimp, have historically had few, if
any, sustainable sources. Indeed, this very consumer reluctance is what prompted movement
NGOs to shift strategy and focus a lot of their effort on demanding that retailers, and the big
seafood buyers that supply them, use their market power and private regulatory authority to
make seafood production more sustainable – so that they can continue to give consumers the
seafood they want, but not at the cost of environmental degradation.
As they have shifted their strategy, movement NGOs have been quite eloquent and
forceful in asserting the notion that with great market power comes great responsibility, the
moral responsibility to help improve the management of fisheries, aquaculture, and ocean
ecosystems. Greenpeace’s Carting Away the Oceans (CATO) campaign – a markets campaign
that targets the top twenty-plus US retailers50 – offers an excellent illustration of these new
retailer roles and social expectations:
In the United States, consumers buy about half of their seafood at the fish counter ....
Consumers deserve to be able to purchase seafood from retailers that care about the
condition of our oceans and that properly steward our marine resources. The days of
selling fish with no regard for the environment are over. Companies have two choices—
they can implement strong seafood policies ... or they can ... continue their unsustainable
seafood practices .... [I]f they choose the latter course, they will reap the wrath of a
consumer public that has simply had enough .... [S]upermarkets ... must begin to
participate in global ocean conservation.51
Speaking from the position of scientific credibility and moral authority, NGOs have been
quite successful in persuading the audience of citizen consumers that it is the responsibility of
retailers, along with the processors and wholesalers who supply them, to ensure that the seafood
products reaching consumers are not produced at the cost of environmental degradation. The
NGO strategy adjustment has created a new role for consumers as well. They are no longer faced
with a purely individualized responsibility for complex larger problems and asked to resolve
those problems by voting with their wallets. They are now citizens again, a “consumer public,”
and as such, they are responsible for keeping informed and holding retailers accountable, an
arguably more public, collective, and political role.
The evidence from annual industry surveys of retailer seafood performance,52 the
proliferation of seafood buyer sustainability initiatives, the presence of sustainability Vice
Presidents in many seafood processor and grocery retail companies, and the increasing ubiquity
of sustainable seafood stories in seafood industry media such as Intrafish.com demonstrate that
this new NGO strategy is working quite well in terms of eliciting the cooperation of retailers, and
the wholesalers and processors who supply them. Given that large corporations have proven
49 Cathy Roheim and Jon G. Sutinen, “Trade and Marketplace Measures to Promote Sustainable Fishing Practices,”
Natural Resources, International Trade and Sustainable Development Series Issue Paper no. 3 (2006): 34; Cathy A.
Roheim, “The Economics of Ecolabelling,” in Seafood Ecolabelling: Principles and Practice, ed. Trevor Ward and
Bruce Phillips (Hoboken: Wiley-Blackwell, 2008), 38-57.
50 Supermarket News, supra note 34; Trenor and Mitchell, Carting Away the Oceans VII, supra note 6, at 23-48.
51 Trenor, Carting Away the Oceans VI, supra note 41, at 5-6.
52 See, e.g., James Mitchell, Carting Away the Oceans VIII (Washington, DC: Greenpeace USA, 2014), 4; Trenor
and Mitchell, Carting Away the Oceans VII, supra note 6, at 4-5; Trenor, Carting Away the Oceans VI, supra note
41, at 4; Trenor, Carting Away the Oceans V, supra note 6, at 4; Casson Trenor, Carting Away the Oceans IV,
(Washington, DC: Greenpeace USA, 2010), 4.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 12
disproportionately, perhaps irrationally, averse to the risk of NGO-inflicted brand damage,53 such
industry responsiveness should not come as a surprise.
As summed up by O’Rourke54:
Corporations certainly know the data on how few consumers are willing to buy greener
or more ethically sound products. So although they may not fear immediate impact on
their sales from a market campaign, a threat to their brand and their overall reputation –
which might potentially undermine long-term sales and customer trust – can motivate
In the seafood case, by the time market-driven sustainability and regulation initiatives of
movement ENGOs gathered momentum, many of the targeted retailers had already invested in
building a green reputation, meaning they are even more sensitive to the reputational damage
that an NGO can inflict by drawing a contrast between a retailer’s green reputation and their
failures on seafood sustainability, failures ENGOs portray as complicity in ocean destruction.
B. RETAILER ACTIONS AND THEIR PRACTICAL CONSEQUENCES
A majority of US retailers are making significant efforts to meet NGO demands. We see
retailers working, often in partnership with NGOs, to understand the environmental impacts of
the seafood they sell, inventorying seafood offerings across relevant food categories, then
developing seafood sustainability policies that stipulate preferential sourcing of sustainable
seafood.55 Retailers are taking these steps towards sustainable sourcing in spite of potentially
significant transaction costs that are only partly offset by collaboration from NGOs, and in spite
of the knowledge that, as an industry insider recently put it, “there is only one label that sells
more seafood, ‘buy one get one free’ . . . .”56
Further, a number of retailers are discontinuing the sale of some popular but
unsustainable seafood species - species like orange roughy, Chilean seabass, Atlantic cod, and
Atlantic salmon, for which most or all production is environmentally problematic.57 In doing so,
they are taking potentially substantial competitive risks, since retail management data suggest
that even temporary out-of-stock events for popular grocery items can send customers to
competitors, some of them permanently.58
Switching to fully sustainable seafood sourcing, however, still remains an insurmountable
challenge for most retailers, since any immediate switch would necessarily entail a reduction in
the variety and volume of seafood available to consumers because the supply of sustainable
seafood is currently short of the newly increased demand by retailers and other big buyers. This
53 Debora L. Spar and Lane T. La Mure, “The Power of Activism: Assessing the Impact of NGOs on Global
Business,” California Management Review 45(3) (2003): 78-101; Dan Klooster, “Environmental Certification of
Forests: The Evolution of Environmental Governance in a Commodity Network,” Journal of Rural Studies
21(2005): 403–17; Dara O’Rourke, “Market Movements: Nongovernmental Organization Strategies to Influence
Global Production and Consumption,” Journal of Industrial Ecology 9(1-2) (2005): 115-28; Erika N. Sasser, Aseem
Prakash, Benjamin Cashore, and Graeme Auld, “Direct Targeting as an NGO Political Strategy: Examining Private
Authority Regimes in the Forestry Sector,” Business and Politics 8(3) (2006): 1-32.
54 O’Rourke, “Market Movements,” supra note 53, at 124.
55 Trenor, Carting Away the Oceans V, supra note 41; Trenor, Carting Away the Oceans VI, supra note 41; Trenor
and Mitchell, Carting Away the Oceans VII, supra note 6; FishWise, supra note 6; Nadine Bartholomew,
Sustainable Seafood Toolkit: A Guide for Retailers (Produced for the Food Marketing Institute, 2012).
56 Tom Seaman, ”Only One Label Sells More Seafood,” Undercurrent News, Nov. 22, 2012,
57 Casson Trenor, Carting Away the Oceans VI, supra note 41 at 10, 31, 33, 36, 37.
58 Eric T. Anderson, Gavan J. Fitzsimons, and Duncan Simester, “Measuring and Mitigating the Costs of
Stockouts,” Management Science 52(11) (2006): 1751-63.
13 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
is a situation that is only marginally amenable to technical fixes, such as the Marine Stewardship
Council’s (MSC’s) introduction of new assessment techniques that make sustainability
certification more accessible to plausible candidates among the previously excluded southern
fisheries. This is because the shortage of sustainable seafood supply is largely a symptom of the
shortage of sustainable fishery practices; many fisheries continue to operate in ecologically
problematic ways, because of overfishing, bycatch,59 indiscriminate use of destructive fishing
gear, or some combination of these.60
The current supply of sustainable seafood is thus still constrained by the still limited
prevalence of sustainable fishery and aquaculture practices. Most retailers continue to sell a
number of ecologically problematic seafood species in spite of their aspirations (and in some
cases explicit promises) to do differently, and in the face of continued pressure by NGOs to do
differently. Canned tuna, the second most popular and most consumed seafood in the US,61 is
still caught with the use of fish aggregation devices that result in tremendous bycatch and killing
of species such as sharks, turtles and non-target fish.62
A number of movement NGOs have started to recognize the challenge that the current
disconnect between the demand and supply of sustainable seafood is creating for seafood
business. As prominently stated on the Sustainable Fisheries Partnership website,
Many important fisheries are not yet managed well enough to meet the standards of
credible international arbiters of sustainability. This puts many major seafood buyers and
producers in a bind: they need the products of these fisheries, but they are committed to
sustainability in their sourcing.63
This disconnect between a newly and greatly expanded demand for sustainable seafood
and the still limited prevalence of sustainable fishery and aquaculture practices is,
understandably, discussed as a limitation – a stalling out or even failure - of private regulation.
Private, market-based fisheries regulation, critics have stated, has produced a change in the
market alone, not the actual practices and environmental performance of fishery operations.64 A
closer look, however, clearly suggests that this private regulation-driven change in the nature of
seafood demand is creating important new opportunities and mechanisms for improving fishery
management and strengthening public, government regulation of marine resource uses.
Movement NGOs are already working to capitalize on these new opportunities.
59 “Bycatch” is the catch of non-target fish species and protected mammals, sea turtles, etc., many of which end up
killed or injured.
60 MSC, “Everything You’ve Always Wanted to Know but Haven’t Had the Chance to Ask” (presented at the
Seafood Summit, Vancouver, January 30, 2011); Ponte, supra note 22.
61 National Fisheries Institute, “Seafood’s Top 10 Most Popular Illustrate America’s Comfort Zone,” last modified
November 1, 2014, http://www.aboutseafood.com/press/press-releases/seafood-s-top-10-most-popular-illustrate-
62 NOAA Fisheries, “Fish Aggregating Devices (FADs): Fishing Gear and Risks to Protected Species,” last modified
January 30, 2014, http://www.nmfs.noaa.gov/pr/interactions/gear/fads.htm; Daniel Cressey, “Use of ‘Fish
Aggregating Devices’ Could be Unsustainable,” Nature News, Jan. 28, 2014, http://www.nature.com/news/use-of-
fish-aggregating-devices-could-be-unsustainable-1.14593; World Wildlife Fund. “Position Paper: WWF Statement
on Fish Aggregation (FADs) in Tuna Fisheries,” November 2011,
63 Sustainable Fisheries Partnership (SFP). “Fisheries Improvement.” Last accessed January 30, 2014
64 Ponte, supra note 22; Konefal, supra note 44.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 14
Wedged between their own desires and external pressures for sustainable seafood
sourcing on the one hand and the reality of sustainable seafood shortage on the other,65 retailers
are making prospective commitments to sustainable-only sourcing66 and making current sourcing
conditional on demonstrable and timely improvements in source fisheries. Retailers are then
leaning on their various suppliers – wholesalers, processors, and other big buyers – demanding
that they figure out ways of meeting such sourcing commitments.67
Various suppliers and other big buyers are then getting directly involved in demanding or
facilitating improvements in fisheries whose practices are ecologically problematic, but whose
product is demanded by US and Western retailers.68 As part of their involvement with
sustainability transitions for specific fisheries, or independently of it, big buyers are working to
usher relevant reforms in government fisheries policies and management practices.69 This work,
discussed in the following section, represents a vanguard of positive fishery management
changes triggered by the sustainable seafood movement, as well as a critical venue of interaction
between the private, market-based regulatory initiatives and public regulatory pressure of
seafood buyers and environmental NGOs.
The private regulatory pressure of the sustainable seafood movement, in other words, is
turning retailers and their various suppliers into major new stakeholders in fishery and
aquaculture management, and into key proponents of moving such management towards
65 Retailers are also further squeezed by the scarcity-induced higher prices for many of the sustainable seafood items
they can manage to get access to.
66 Collin Dunn, “Wal-Mart Sets 100% Sustainable Fish Target for North America,”
Lammers, “Walmart’s progress on sustainable seafood,” http://www.triplepundit.com/2010/11/walmarts-progress-
2011-sustainable-seafood-goals/; Kroger, “Kroger sustainability commitments,”
http://sustainability.kroger.com/sustainability_sustainable_seafood/wild-caught.shtml; Safeway, “Safeway Named
Most Sustainable Seafood Grocer by Greenpeace USA,”
http://investor.safeway.com/phoenix.zhtml?c=64607&p=irol-newsArticle&ID=1550249; Sutton and Wimpee, supra
note 19; Trenor and Mitchell, Carting Away the Oceans VII, supra note 6; Trenor, Carting Away the Oceans V,
Trenor, Carting Away the Oceans VI, supra note 41.
67 Sustainable Fisheries Partnership (SFP), personal communication with author, June 4, 2013; see also Sustainable
Fisheries Partnership, “RFE Pollock FIP,” Vladivostok, Sept. 2009, available at
http://fipsmedia.sustainablefish.org/RFE%20Pollock%20history.pdf; SFP, supra note 40; Seafood Choices Alliance,
“The US Marketplace for Sustainable Seafood: Are We Hooked Yet?” (2008); Greenpeace supra note 6; Scott
Wallace, “David Suzuki Foundation works with B.C. bottom trawl industry to reduce habitat impacts,” David
Suzuki Foundation (March 28, 2012), http://www.davidsuzuki.org/blogs/healthy-oceans-blog/2012/03/david-suzuki-
foundation-works-with-bc-bottom-trawl-industry-to-reduce-habitat-im/; Findlay, 2013, “Trawlers get their sea legs,”
68 See, e.g., Sustainable Fisheries Partnership, “FIP Overview,”
d6749f2d.pdf; Sustainable Fisheries Partnership, Stories of Fishery Improvement,
https://www.sustainablefish.org/fisheries-improvement/fisheries-improvement/fip-stories; Sustainable Fisheries
Partnership, RFE Pollock FIP, supra note 43.
69 See notes 88-106, infra and accompanying text; see also NFI, 2013, “Philippines Government Approves Crab
Management Plan,” http://www.aboutseafood.com/press/press-releases/philippines-government-approves-crab-
management-plan; Wild Salmon Center, “Partnership Inspires Fisheries in Asia and Russia to Commit to
Sustainability Improvements for 37,000 metric tonnes of Salmon,” Wild Salmon Center (Feb. 4, 2014),
http://www.wildsalmoncenter.org/pdf/FIP_020314.pdf; Kellen,“AIPCE-CEP, WWF and Industry Leaders join
forces to save European fisheries,” AGEP News & Events (April 28, 2010), http://www.agep.eu/aipce-cep/wwf-
and-industry-leaders-join-forces-save-european-fisheries; Greenpeace 2013, supra note 6; Greenpeace 2012, supra
15 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
sustainability. With that, private regulation is effectively turning these big buyers into important
new allies in the broader NGO quest for improving ocean conservation and strengthening the
public regulatory management of fisheries resources and ocean environments.
NGO efforts to mobilize these new industry allies have been clearly evident since the 2009
Seafood Summit, where NGOs explicitly appealed to seafood industry actors to look beyond just
the supply chain and get involved in the policy process as well. A key panel at the summit, titled
“Sustainable Seafood and Public Policy,” set the industry agenda as follows:
More and more businesses are taking steps towards sustainability. However, . . . many
forward-thinking companies are concerned that some steps that would be good for the
environment and long-term sustainability may not be currently competitive. Engaging in
advocacy to reform fishery and aquaculture laws can be a powerful avenue to extend
sustainability measures to the entire sector, ensuring that steps that would be good for the
environment will be good for business as well.70
The dimensions and broader significance of these critical new dynamics – dynamics suggesting a
clear possibility for positive synergies between private and public fisheries regulation - are
discussed in the next, concluding section.
V. PRIVATE REGULATION-DRIVEN DEMAND FOR PUBLIC REGULATION REFORM:
THE FISHERIES CASE
Staying with a primary focus on actors and dynamics in the US market for seafood, we
can distinguish two important ways in which the private regulatory work of movement NGOs is
creating promising new opportunities for reforming and strengthening the public regulatory
governance of fishery and aquaculture practices.
A. MOBILIZING DIRECT POLITICAL AND POLICY INFLUENCE BY SEAFOOD BUSINESS
First, as reflected in the 2009 Seafood Summit discussions quoted above,71 NGOs are
explicitly mobilizing the political and policy influence of seafood business, and working to
deploy this influence in the service of strengthening public, government regulation of fishery and
To begin, the largest formal coalition of US movement ENGOs – the Conservation
Alliance for Seafood Solutions (the Alliance) - is formally and publically calling on private
business actors in the seafood supply chain to advocate for sustainability oriented reforms in
government policy and management of national and international fisheries and aquaculture
operations.72 Such public policy involvement is a key component of the Alliance’s six-point call
for business engagement in improving fishery and aquaculture sustainability, which sets out the
actions retailers and other seafood buyers are expected to take in order to be considered socially
and environmentally responsible in the seafood realm.
Movement NGOs that are not formally part of the Alliance – notably Greenpeace – are
also encouraging and rewarding public policy advocacy by seafood business.73 Like the Alliance,
70 Seafood Choices Alliance. “Seafood Summit: Sharing Responsibility For Real Change” (presented at the Hilton
San Diego Resort & Spa, California, USA, February 1-3, 2009). Full Program, at 16.
71 Seafood Choices Alliance supra note 63.
72 Conservation Alliance for Seafood Solutions (CASS), “A Common Vision for Environmentally Sustainable
Seafood,” last accessed January 30, 2014,
73 Trenor, Carting Away the Oceans V, supra note 41; Trenor, Carting Away the Oceans VI, supra note 41; Trenor
and Mitchell, Carting Away the Oceans VII, supra note 6.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 16
Greenpeace is increasingly emphatic about the importance of business involvement in political
and policy advocacy for ocean conservation, with the 2013 and 2014 retailer rankings of its
Carting Away the Oceans (CATO) markets campaign using such advocacy as a core criterion in
measuring a retailer’s sustainability performance,74 and giving high praise – and top scorecard
spots - to retailers like Wegmans and Safeway, who “channel [their] political power into
supporting ocean conservation initiatives” and who are “supporting progressive legislation …
and directly communicating to policymakers and management authorities the need for
sustainable fishing practices and the creation of marine reserves... .”75
As far back as the Sustainable Seafood Summit of 2009,76 Greenpeace also shared the
podium with other ENGOs to urge the many and varied seafood businesses in attendance –
businesses targeted by or engaged in private regulatory efforts - to start looking beyond the
seafood market and supply chains and get informed and involved in the public policy side of the
seafood sustainability battle.77 The presentation of Greenpeace’s International Consumer
Markets Leader, for example, included the following notable points:
Public policy reform will be key in order to:
• Keep an even playing field for industry
• Reward the most progressive companies and ensure that forerunners of innovation are
more competitive and not less
• Ensure that the effects of the sustainable seafood movement are being secured for the
long term and not washed away by the financial crisis
Summing it up:
• Chain of custody is a key tool
• Act through change on your shelves; communicate the reason for doing it to suppliers
and political decision makers
• Mobilize your associations and networks for taking joint political activities, for
example, letter writing, lobbying
• Develop joint codes of conduct where public policy fails and then lobby for them to be
turned into law
• Mobilize your suppliers to team up with their competitors and to work towards political
Recognizing the frustration of seafood businesses targeted by private regulation yet
facing a shortage or absence of sustainable sources for popular seafood items, key staffers at
other movement ENGOs have similarly, if more privately, steered influential supply chain actors
towards increasing the availability of sustainable seafood and improving their green reputations,
74 Trenor and Mitchell, Carting Away the Oceans VII, supra note 6 at 17.; Mitchell, Carting Away the Oceans VIII,
supra note 52.
75 Trenor and Mitchell, Carting Away the Oceans VII, supra note 6. Safeway and Wegmans have been particularly
active in advocating the protection of the unique ecosystems of Alaska’s Bering Sea canyons, pressing the North
Pacific Fisheries Management Council to restricting commercial fishing and the use of damaging fishing gear in
portions of the canyons; and in advocating for action by the international Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR) to create a no-take marine reserve in the Ross Sea, which is
considered to be the last intact marine ecosystem on earth.
76 Seafood Summit 2009, supra note 70.
77 Kate Wing, “Sustainable Seafood and Public Policy.” Presentation at the Seafood Summit 2009, San Diego,
California, February 1-3, 2009; Thüllen, N. “Sustainable Seafood and Public Policy.” Presentation at the Seafood
Summit 2009, San Diego, California, 1-3 February 2009.
78 Thüllen, supra note 77.
17 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
by applying political influence to attain legislative and regulatory solutions to problems such as
overfishing and bycatch.79
In sum, enabled by private regulation-driven changes in the market for seafood, a number
of movement NGOs are calling on retailers and other big buyers to flex their political muscle and
help increase the spread and prevalence of sustainable fishery practices by strengthening the
public control and regulation of such practices.
Many of market actors are apparently starting to heed such NGO calls. A number of
retailers and the seafood processors and wholesalers who supply them – companies like High
Liner Foods, Bumble Bee Foods, and Gorton’s – are currently working to advance sustainable
public management of fisheries and oceans. They are doing this through direct and indirect
advocacy for specific policy and regulatory actions80 and through participation in fishery
improvement projects (FIPs), in the course of which market actors incentivize and promote
strengthening of government regulation and management for the fisheries undergoing
The latest Greenpeace report on the seafood sustainability performance in the US grocery
retail sector82, for example, shows at least83 ten of the twenty-six largest US grocery retail
corporations involved in some form of policy advocacy84 on one or more conservation policy
issues, including: special protections for Alaska’s Bering Sea canyons, whose unique habitats are
currently damaged by commercial fishing practices;85 opposition to the Pebble Mine
development in Alaska’s Bristol Bay (and an industry-wide letter-writing initiative orchestrated
79 The Ocean Conservancy Vice President for Markets, personal communication with author, February 3, 2009.
80 See infra notes 69-85 and accompanying text.
81 See infra notes 88-106 and accompanying text; see also Gavin Gibbons, “Philippines Government Approves Crab
Management Plan,” NFI, July 15, 2013, http://www.aboutseafood.com/press/press-releases/philippines-government-
approves-crab-management-plan; Ashley Simon, “Nestle, Gorton, The Fishin’ Company, and Albion Fisheries Join
High Liner in New Salmon FIP Partnership,” Salmon FIP Partnership, Feb. 3, 2014,
http://www.wildsalmoncenter.org/pdf/FIP_020314.pdf; Sustainable Fisheries Partnership, “Blue Swimming Crab
FIP,” Sustainable Fisheries Partnership, http://www.sustainablefish.org/fisheries-improvement/fisheries-
82 Greenpeace, Carting Away the Oceans VIII, supra note 52 at 4 (Washington, DC: Greenpeace, 2014),
83 Some companies are not forthcoming about their behind-the-scenes lobbying and political advocacy for
conservation, a fact Greenpeace acknowledges in its reports (see, e.g., Greenpeace, 41) and which suggests the
reports likely underestimate retailers’ level of political and policy advocacy for strengthening fisheries regulation
and management and the conservation of ocean ecosystems. My interviews with key NGO markets staffers also
suggest that the extent of seafood business involvement in political advocacy for strengthening fisheries
management is greater than is readily apparent, since some of this involvement takes the form of lobbying and
behind-the-scenes deployment of political connections to press for specific policy or regulatory changes in the
management of fisheries whose current practices pose conservation concerns.
84 Ranging from advocating fishery management changes and marine ecosystem protection in front of US Regional
Fishery Management Councils, to calls for intergovernmental cooperation on Antarctic marine ecosystem
protection, to orchestrating industry-wide calls for regulatory caution in permitting mining development affecting
fishery-supporting marine ecosystems. See infra 72-85 and accompanying text.
85 See Greenpeace 2014, supra note 52 at 4, 5, 14-15, 17, 21, 22, 24, 25, 28, 30; see also Jackie Dragon, “Is it time
for Bering Sea Canyon Marine Protected Areas yet?,” Greenpeace Blogs (April 8, 2014),
http://greenpeaceblogs.org/2014/04/08/time-bering-sea-canyon-marine-protected-areas-yet/; “How sustainable is
your supermarket’s seafood,” Greenpeace Blogs (May 13, 2014),
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 18
by the Food Marketing Institute’s Sustainable Seafood Committee);86 protection of the
Antarctic’s Ross Sea through the establishment of a large, no-take marine reserve;87 and
improving implementation and enforcement of existing fishing regulations.88 The eight retailers
and many seafood processors and suppliers are also directly engaged in a number of FIPs aimed
at improving resource management and environmental performance in a number of currently
Most of the policy changes currently advocated by big seafood buyers are still
unresolved. Protection for the Bering Sea-unique Zhemchug and Pribolof canyons from fishing-
related habitat destruction90, a policy measure now advocated by five major US grocery retail
corporations91 - Safeway,92 Trader Joe’s, SUPERVALU,93 Hy-Vee, and Ahold, USA94 - has
made it on the agenda of the North Pacific Fishery Management Council, but there are no
guarantees that the Council will decide to institute such protections.95 The capacity to attain
international cooperation and action for establishing a marine reserve to protect the Antarctic’s
Ross Sea remains uncertain.96 Legislation to improve global prevention of ecologically
86 See Greenpeace 2014, supra note 52 at 28, 32, 38; see also World Wildlife Foundation, “Taking a Local-to-
Global Approach to Protect Bristol Bay from Pebble Mine,” WWF Arctic Program News,
Stigall, “Food industry asks EPA to protect Bristol Bay seafood source,” Juneau Empire (March 13, 2012),
87 See Greenpeace, supra note 41; Daniel Cressey, “Third time unlucky for Antarctic protection bid”, Nature, Nov.
1, 2013, http://www.nature.com/news/third-time-unlucky-for-antarctic-protection-bid-1.14085.
88 E.g. Carting Away the Oceans VIII at 52; “FIP stakeholders and funders include Publix, Seattle Fish Company,
Louisiana Foods, Darden Restaurants, Gulf Wild, Environmental Defense Fund, and The Ocean Conservancy,”
These work alongside the participants and play an important role in keeping it on track. The success of the FIP
recently attracted new participants/stakeholders Save On Seafood, Greg Abrams Seafood and the Southeastern
Issues covered include improved accountability for quota overruns by the recreational fishing industry,
increased frequency of stock and benchmark assessments for all reef fish species, and the collection of better data on
bycatch and discards. Progress has been sure and steady, and has included welcome benefits such as the federal
government implementing ‘Reef Fish Amendment 32’ in March 2012, which ended overfishing of gag and
established a plan to allow the stock to rebuild to healthy levels within 10 years.
In addition, a recent red snapper population assessment indicated that overfishing of this species in the Gulf of
Mexico has ended and the population is rebounding.”; http://www.sustainablefish.org/about-us/partners/publix
89See Greenpeace, supra note 69; Sustainable Fisheries Partnership, “Stories of Fishery Improvement,” Sustainable
Fisheries Partnership, http://www.sustainablefish.org/fisheries-improvement/fisheries-improvement/fip-stories;
”The FIP Directory”, Sustainable Fisheries Partnership, http://fisheryimprovementprojects.org/; see also infra
notes 88-106 and accompanying text.
90 See Dragon, supra note 85.
91 See Greenpeace, supra note 69.
92 Operating nationally as Safeway, Carrs, Genuardi’s, Pavillion, Randall’s, Tom Thumb, and VONS.
93 Operating nationally as SUPERVALU, Save-A-Lot, Farm Fresh, Hornbacher’s, Shop ‘n Save, and Shoppers.
94 Operating as Stop & Shop, Giant Foods, Martin’s Food Market & Peapod.
95 Sophie Evan, “Bering Sea Canyons May Become New Marine Wildlife Preserve, “ Alaska Public Media, last
modified Jun. 11, 2013, http://www.alaskapublic.org/2013/06/11/bering-sea-canyons-may-become-new-marine-
wildlife-preserve/; “Pribilof and Zhemchug canyons: fishing activity, protection measures and process for future
action,” North Pacific Fishery Management Council, May 2013, http://www.npfmc.org/wp-
content/PDFdocuments/conservation_issues/BSee SHC/BScanyonsDiscPaper513.pdf; Greenpeace USA, 4, 15;
Mitchell, supra note 52.
96 See Cressey, supra note 76.
19 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
destructive Illegal, Unregulated, and Unreported (IUU) fishing, strongly backed by the US
seafood industry, especially large seafood processors,97 has been introduced in Congress several
times98 but has yet to pass. The Obama Administration, however, has just mandated federal
regulatory and enforcement action to implement the UN Port State Agreement and improve IUU
prevention through existing statutory authorities and improved interagency coordination.99
Retailer and big buyer responses to movement NGO demands can indirectly facilitate
ecologically beneficial changes in the public management of marine fisheries as well: the
persistence of North American retailers and suppliers in pursuing sustainable sourcing
objectives, for example, has given NGOs the leverage to negotiate improved management and
use practices directly with the participants in the British Columbia’s groundfish bottom trawl
fishery, then get the improvements formalized as part of the government regulatory requirements
controlling fishing and resource practices for that fishery.100 In other words, in responding to
NGO demands, retailers and other big buyers are not only flexing their market power and private
regulatory authority (by making sustainable sourcing commitments and demanding change from
their suppliers and producers), they are also beginning to support the kinds of public policy and
management changes that can ensure sound fishery management and sustainable seafood supply
into the future.
B. DIRECT BUYER INVOLVEMENT IN FISHERY IMPROVEMENT PROJECTS: REVEALING
REGULATORY NEEDS AND CREATING BUSINESS DEMAND FOR PUBLIC REGULATORY
The private regulatory work of NGOs has produced a particularly distinctive mechanism
for generating public regulatory engagement by big buyers and steering the influence of such
buyers towards strengthening government regulation of environmental and resource practices of
fisheries worldwide. This mechanism emerges in the context of fishery improvement projects
(FIPs) and supplier roundtables – two related ways of bringing supply chain pressure to bear on
97 Michael Kraft, “Testimony of Michael Kraft Before the U.S House of Representatives Natural Resources
Committee, Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs” (Testimony, U.S. House of
Representatives Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs, Washington D.C., Apr. 3, 2014),
available at http://naturalresources.house.gov/uploadedfiles/krafttestimony4-3-14.pdf; “Our Efforts”, High Liner
Foods, Inc., http://highlinersustainability.com/our-progress/our-efforts/; “Senate Briefing on Illegal, Unreported, and
Unregulated (IUU) Fishing”, UBC Fisheries Centre, last modified December 13, 2011,
http://www.fisheries.ubc.ca/news/senate-briefing-illegal-unreported-or-unregulated-iuu-fishing; Erik Arvidson,
“High Liner Foods Reports Substantial Progress on its Sustainability Commitments,” Bloomberg News, last
modified Mar. 12, 2012,
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a3iUWLsZ7cbA). The measures proposed in the
legislation are also supported by the National Fisheries Institute (NFI), which represents 65% of US seafood
processors (including High Liner Foods and Trident Seafood), as well as many seafood wholesalers and some
grocery retailers (see, e.g., “Obama establishes national task force to combat seafood fraud, IUU fishing,”
Undercurrent News, last modified Jun. 17, 2014,
98 Pirate Fishing Elimination Act, S. 267, 113th Congress, 2nd session (2013-2014).
99 Barack Obama, Press Release, “Presidential Memorandum -- Comprehensive Framework to Combat Illegal,
Unreported, and Unregulated Fishing and Seafood Fraud,” last modified Jun. 17, 2014,
100 See Wallace, supra note 67; Findlay, supra note 67.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 20
the environmental and resource practices of fishery producers, as well as two increasingly
important arenas of public-private regulatory interaction.101
Frequently brokered by movement NGOs, FIPs are ecumenically defined by one of their
main NGO conveners as
“an alliance of stakeholders – retailers, processors, producers,
and/or catchers that comes together to resolve problems within a
specific fishery or improve some specific aspect of the fishery that
requires attention . . . talking through the management of the
fishery and the challenges it may face . . . , agreeing on a set of
priority actions . . . and then overseeing an action plan.”102
In practice, FIPs are often a useful mechanism for big buyers, such as wholesalers,
processors, retailers, or restaurant chains to get directly involved in pressuring or assisting
ecologically problematic fisheries for popular seafood items to improve their resource use and
management practices.103 FIPs, that is, offer big buyers an avenue for increasing the supply of
sustainable seafood by working to increase the prevalence of ecologically sound fishery
practices. Specified by movement NGOs and accepted by business stakeholders, the ultimate
objective in these fishery improvement projects – and the yardstick for gauging a fishery’s
progress towards improvement and its viability as a seafood source for retailers with sustainable
sourcing commitments – is compliance with MSC principles and criteria, regardless of whether a
FIP fishery chooses to get formally certified under the MSC standard or not.104
Although originally conceived as a tool of private, market-based regulation, a way to
“leverage the power of the supply chain to urge or require improvements in seafood
sustainability,”105 many FIPs106 dedicate considerable attention, time, and effort to attaining
public regulatory and management interventions. This includes better implementation of already
existing and generally sound public policies for improving environmental performance and
advancing sustainability within FIP fisheries.107 In the course of their involvement as FIP
101 “Fisheries Improvement,” Sustainable Fisheries Partnership, https://www.sustainablefish.org/fisheries-
102 “Fishery Improvement Projects,” Sustainable Fisheries Partnership, last accessed July 26, 2013,
103“Fisheries Improvement,” supra note 101; Sustainable Fisheries Partnership, supra note 63.
104 “Guidelines for Supporting Fishery Improvement Projects,” Conservation Alliance for Seafood Solutions, last
accessed July 26, 2013,
Sustainable Fisheries Partnership, supra note 63.
105 “Gulf of Mexico – Florida Shrimp Fishery Improvement Project,” White Paper, Sustainable Fisheries
Partnership, November 19, 2012,
106 As reflected in relevant FIP documents and FIP outcome reports.
107 “Gulf of Mexico Louisiana Shrimp Fishery Improvement Project,” Sustainable Fisheries Partnership, last
modified Apr. 2013, http://www.sustainablefish.org/fisheries-improvement/shrimp/gulf-of-mexico-white-shrimp-
upper-gulf-of-mexico/gulf-of-mexico-upper-gulf-white-shrimp-fip; “Gulf of Mexico Reef Fish Fishery
Improvement Project,” Sustainable Fisheries Partnership, last modified April 2013,
http://www.sustainablefish.org/fisheries-improvement/snapper-grouper/gulf-of-mexico-reef-fish; “British Columbia
Wild Salmon”, Sustainable Fisheries Partnership, last modified April 2013, http://www.sustainablefish.org/fisheries-
improvement/salmon/british-columbia-wild-salmon; Robert Trumble, “A Review of the Ecuador Mahi Mahi Fishery
21 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
stakeholders, big buyers – retailers and suppliers – regularly confront the dependence of FIP
success on public regulatory interventions ranging from new legislative or policy action to
changes in implementation and enforcement of existing fishery management policies and
regulations. A look across current FIPs shows big buyers getting government regulators to
maintain or improve their control and management of targeted fisheries, as they follow the
guidance of movement NGOs in figuring out the relevant ask and the appropriate ways and
venues for making the ask.108
Such dynamics are illustrated in the context of several Gulf of Mexico (GOM) fisheries
for popular seafood species, including fisheries for shrimp and red snapper, which are currently
involved in FIPs brokered by the Sustainable Fisheries Partnership. The FIPs count numerous big
buyers - including various wholesalers and suppliers as well as the retailers Publix and Giant
Eagle and the Darden chain of restaurants - among their seafood business participants and
stakeholders.109 Developing FIPs for GOM shrimp fisheries, including the Florida pink shrimp
fishery, the Louisiana shrimp fishery, and the Texas shrimp fishery, makes perfect sense, since
these fisheries sell their product almost exclusively in the US market110, where shrimp is the
most popular seafood item,111 and where much of the shrimp sold and consumed is imported
from environmentally problematic tropical farms and fisheries.112 GOM shrimp meets about ten
percent of the US market demand.113
Shrimp are an abundant, rapidly reproducing species, so the main ecological concerns
posed by the GOM shrimp fisheries are ones of bycatch. Of greatest concern is the bycatch of
prized and long overfished red snapper114, and that of several species of federally endangered sea
Improvement Project”, World Wildlife Fund, last updated March 28, 2012,
109 See Wing, supra note 77; Thullen, supra note 77.
110 “Gulf of Mexico Florida Shrimp Improvement Project,” Sustainable Fisheries Partnership, last modified May 29,
111 See http://www.aboutseafood.com/about/about-seafood/top-10-consumed-seafoods.
112 See http://www.fishwatch.gov/farmed_seafood/outside_the_us.htm; also see
Shrimp import data by country are available through the USDA ERS (http://www.ers.usda.gov/data-
products/aquaculture-data.aspx#28153), and reflect imports of over 1.25 billion pounds of shrimp per year, while
domestic production (including wild caught and farmed shrimp is around 300 000 pounds, most of it wild caught –
see http://www.st.nmfs.noaa.gov/commercial-fisheries/commercial-landings/annual-landings/index and
http://www.seafoodwatch.org/-/m/sfw/pdf/reports/mba_seafoodwatch_usfarmedshrimpreport.pdf for figures on
recent US shrimp production by volume.
113 “Gulf of Mexico Florida Shrimp Improvement Project,” Sustainable Fisheries Partnership, last modified May 29,
114 The red snapper is currently under federal rebuilding plans and regulations as a result of the extensive bycatch.
115 See “Net Gains: The Gulf of Mexico Shrimp Fishery,” The Ocean Conservancy, last accessed July 26, 2013,
http://act.oceanconservancy.org/site/DocServer/factSheet_shrimpGOM_lowRes.pdf?docID=5882; Alice Cascorbi,
“Seafood Report: Wild-Caught Warmwater Shrimp,” Seafood Watch,
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 22
The relevant FIP documents focus on the role of FIPs as tools for market-based
regulation, underscoring the role of seafood business as that of
“communicat[ing] the requirements for improvements in . . .
fisher[ies] back down the supply chain, encourag[ing] the fishing
industry to participate in the FIPs, provid[ing] resources to enable
FIP activities, and support[ing] FIP participants by purchasing
Yet the same FIP documents dedicate considerable attention to discussions of remaining
deficiencies in government bycatch policies and regulations, and to the currently more salient
deficiencies in implementing relevant bycatch controls.117 They specifically emphasize the ways
in which FIP-engaged big buyers should advocate for policy and regulatory improvements across
a range of relevant policymaking and regulatory venues.118 FIP progress accounting, in turn,
underscores the management and sustainability benefits of changes in public regulation and
management as they take place.119
In addition to addressing issues of bycatch and enforcement of existing policies,
especially policies controlling catch by recreational fisheries seafood businesses with a stake in
the GOM FIP for red snapper and other popular reef fish are confronting and resisting legislative
attacks on, and implementation failures in120 federal fisheries policies introduced within the last
fifteen years121 and instrumental for the recovery and sustainability transition for these
Moving beyond the US fishery context, Walmart, which has a sustainable seafood
sourcing commitment is has long struggled to fulfill, McDonald’s, which has committed to
serving only MSC certified fish in its North American and European operations, and Unilever,
historically one of the biggest producers of frozen value-added seafood products, were key
conveners of a FIP process for the Russian Pollock fisheries.123 These fisheries, along with
Alaska’s Pollock fisheries, account for much of the whitefish currently found in many familiar
Gulf of Mexico Louisiana Shrimp Fishery Improvement Project, supra note 110; Gulf of Mexico Florida Shrimp
Fishery Improvement Project, supra note 110.
116 See “Gulf of Mexico-Florida Shrimp Fishery Improvement Project,” supra note 110.
119 See “Gulf of Mexico-Florida Shrimp Fishery Improvement Project,” supra note 110; “Gulf of Mexico Louisiana
Shrimp Improvement Project,” supra note 110.
120 See “Gulf of Mexico Reef Fish Fishery Improvement Project,” supra note 110.
121 The Sustainable Fisheries Act of 1996, Pub. L. No. 104-297 (1996); The 2006 Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act, Pub. L. No. 109-479 (2006).
122 See, e.g., Carl Safina et al., “U.S. ocean fish recovery: staying the course,” Science 309: 707-708 (2005);
National Resources Defense Council, Bringing Back the Fish: An Evaluation of US Fisheries Rebuilding under the
Magnuson-Stevens Fishery Conservation and Management Act, Report R:13-01-A, February 2013; The Pew
Charitable Trusts & The Ocean Conservancy, The Law That’s Saving American Fisheries: The Magnuson-Stevens
Fishery Conservation and Management Act (Report, May 6, 2013).
123 See Sustainable Fisheries Partnership, “Russian Pollock Fishery Improvement Project,” available at
Sustainable Fisheries Partnership, “SFP welcomes MSC certification for Russian Pollock fishery” (hereinafter
Sustainable Fisheries Partnership, MSC Certification), available at
russian-pollock-fishery; Peter Hajipieris, Russian Far East Pollock Fishery Improvement Partnership, Presentation
for Site Visit Expert Assessment Team, Vladivostok, June 27, 2011, available at
23 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
seafood products, from fish sticks to McDonald’s Filet-o-Fish.124 Participants in the Russian
Pollock FIP process, which was initiated at a 2006 Brussels Seafood Show roundtable with the
help of the Sustainable Fisheries Partnership, and began in 2008. It included several of the
world’s largest seafood processors,125 who joined a majority of Russian Pollock producers,
organizing themselves into the Russian Pollock Catchers’ Association.126 The seafood industry-
led Russian Pollock FIP, which culminated in a 2013 MSC certification (with conditions for
improvement),127 put pressure on Russian government regulators, who have responded to the
activities and demands of FIP industry participants by tightening regulatory scrutiny and control
of pollock roe production, juvenile bycatch and discards, and Illegal, Unregulated, and
Unreported (IUU) fishing.128 As summarized in SFP’s account of the Russian Pollock FIP
Faced with the ongoing weight of the FIP’s supply chain and
regulatory stakeholders pressing for greater transparency,
traceability, and sustainability in the pollock fishery, the Russian
government also revised fisheries regulations, introduced new
bycatch/discard rules, and amended the Fisheries Act to include
provision for commercial fishing vessels to be equipped with
[Vessel Management Systems] VMS. It also increased
enforcement activity and expanded the list of violations for which
a fishing license could be withdrawn. Furthermore, it signed up to
the FAO initiative on combating IUU fishing, and currently works
on its own National Plan of Action to Prevent, Deter and Eliminate
The involvement of big buyers in FIPs for the improvement of ecologically problematic fisheries
for popular seafood species is, in other words, turning such buyers into a new set of stakeholders
for strengthening government regulation of fishery practices. This seafood business role-shift is
124 Marine Stewardship Council, “Russia Sea of Okhotsk pollock fishery is MSC certified,” September 24, 2013,
http://www.msc.org/newsroom/news/russia-sea-of-okhotsk-pollock-fishery-is-msc-certified; Intertek Moody
Marine, “Russian Sea of Okhotsk Mid-water Trawl Walleye Pollock (Theragra chalcogramma) Fishery,” September
24, 2013, http://www.msc.org/track-a-fishery/fisheries-in-the-program/certified/pacific/russia-sea-of-okhotsk-
125 High Liner Foods, one of North America’s largest processors and marketers of prepared frozen seafood products,
BirdsEye-Iglo Group, FRoSTA, Royal Greenland, Findus, Gorton’s Inc./Blue Water Seafood, SOCOP, Pickenpack,
Delmar, and the Fishin' Company.
126 Sustainable Fisheries Partnership, “Russian Pollock Fishery Improvement Project,”
Sustainable Fisheries Partnership, “SFP Welcomes MSC Certification Recommendation for Russian Pollock
Fishery,” last updated January 25, 2013, https://www.sustainablefish.org/news/articles/2013/01/25/sfp-welcomes-
msc-certification-recommendation-for-russian-pollock-fishery; Peter Hajipieris, “Russian Far East Pollock Fishery
Improvement Partnership,” (Presentation for Site Visit Expert Assessment Team, Vladivostok, Russia, June 27,
127 “Russia Sea of Okhotsk Pollock Fishery is MSC Certified,” Marine Stewardship Council, last updated September
24, 2013, http://www.msc.org/newsroom/news/russia-sea-of-okhotsk-pollock-fishery-is-msc-certified; Steve Devitt,
David Japp, Robert O’Boyle, and Andrew Payne, “Russian Sea of Okhotsk Mid-water Trawl Walleye Pollock
(Theragra chlcogramma) Fishery Public Certification Report,” Intertek Moody Marine, last updated September 24,
128 See Russian Pollock Fishery Improvement Project, supra note 126.
2014] INTERACTIONS BETWEEN PRIVATE AND PUBLIC RESOURCE GOVERNANCE 24
aided by the supervision and tutelage of movement NGOs. While FIPs may have been originally
conceived as a tool for exerting private regulatory pressure through the seafood supply chain,
government and the public regulatory process have proven significant in the development of the
actual improvements that align the practices of a FIP fishery with the core principles of
Big buyers are certainly using direct supply chain leverage as well, and some fishers are
indeed responding to such demands and the voluntary private regulation they represent by taking
actions feasible for individual operators, such as changing gear types or making gear and fishing
practice adjustments to reduce bycatch.130 But having some fishery participants adhere to
sustainable practice is quite different from having a sustainably managed fishery. Many
movement NGOs do not accept as appropriate the sourcing of “sustainably caught” seafood from
fisheries that are poorly managed or unsustainable overall. Sourcing from the few operators who
adhere to best practices within an overall problematic fishery does not usually count as
compliance with NGO expectations or add to a seafood business’ green credentials. So when
concerted fishery-wide change of ecologically concerning practices such as bycatch, overfishing
or IUU is needed to ensure a sustainability transition on a fishery-wide scale, government
regulatory and management action is emerging as a key element of this transition. This is
particularly well-illustrated by the experience of the Russian Pollock fishery improvement
process, where many of the fishers organized to respond to high buyer demand for sustainably
caught whitefish and adopted voluntary practices to reduce overfishing, juvenile bycatch and
discards. Ultimately, it was regulatory action by the Russian government that made these
voluntary measures binding on all participants in the fishery, underwriting the fishery’s move
towards sustainable practices and MSC certification.131
Given the lag times in seafood buyer and seafood business responses to NGO pressure, in
government responses to seafood business pressure, and in ecosystem responses to any of the
fishery use and management changes, the full practical effects of such NGO-driven increase in
sustainability advocacy and public regulation involvement by seafood business, in terms of
changes in fishery management and environmental performance, are yet to be seen. Still, early
indicators seem to provide a cause for some optimism. Careful tracking of how the emerging
trends described in this article continue to evolve will deepen our understanding of increasingly
hybrid public-private regime for fisheries governance and contribute to a broader understanding
of the complex and increasingly multi-faceted interactions between private and public regimes
for governing industry environmental, resource, labor, social, and technical performance.132
Equally important for the present discussion are the current characteristics of the
interaction process, particularly the fact that NGOs are recognizing and capitalizing on new
opportunities for reforming the public regulatory governance of fisheries, as such opportunities
get created by the private, market-based regulatory work of these NGOs. That is, rather than
recoiling from engagement in the political and public policy process in favor of the presumably
easier and more direct path of private, market-based regulation,133 movement NGOs are
130 “Anna Marie Seafood is Shrimping Outside the Box,” FishChoice, last updated January 25, 2012,
131 See “Russian Pollock Fishery Improvement Project,” supra note 126; see also “SFP Welcomes MSC
Certification for Russian Pollock Fishery,” supra note 126.
132 See Eberlein et al., supra note 36.
133 See Konefal et al., supra note 4.
25 WILLIAM & MARY POLICY REVIEW [VOL. 6:1
continuing to pursue public regulatory reform, taking advantage of new approaches and
opportunities for attaining such reform.
In sum, a look at NGO-led private regulation initiatives in the fisheries sector seems to
suggest that rather than inevitably diminishing societal interest and state involvement in public
regulatory governance, private, market-based regulatory initiatives can sometimes act to rekindle
such interest and increase the demand for state regulatory intervention.
By changing the market for seafood, the voluntary, private, market-based regulation
initiatives of the NGO-led sustainable seafood movement are making seafood business, including
retailers and other big buyers, a key stakeholder in fishery management, turning such businesses
into new, influential, and arguably unexpected supporters of strengthening the public, mandatory
regulation and management of fishery environmental and resource performance. The private
regulatory initiatives of movement ENGOs thus seem to be improving the potential for success
in addressing some long-standing and change-resistant problems in the public management of
public trust fishery resources.
Given the current ubiquity of private, market-based governance schemes, such evidence
of positive synergies between private and public regulation is cause for optimism. Still,
continued investigation across a range of private regulatory contexts and market-based
regulatory arrangements is necessary for attaining a comprehensive and fully nuanced
understanding of public-private governance interactions, and the effects of voluntary, private,
market-based governance on its public regulatory counterparts.