Corporate Sustainability, Environmental Justice, and Competition Law: Developing a Proactive Mechanism for Sustainable Societies

We cannot overstate the monumental nature of the environmental challenges we face today. It is however unfortunate that the authorities face a constant struggle to tackle the problems. Hence, to effectively tackle the challenges, it has become imperative that a wider range of actors play their role to prevent wide-scale degeneration. Such actors could include not only NGOs but also business entities. The problem however is that the involvement of business entities could raise conflict of interest issues especially if the so-called environment-saving measures offend some economic rules such as competition law. This means that efforts must be made to manage the relationship between the two public goals – in other words, to maximise possible environmental benefits derivable from good corporate initiatives without compromising the integrity of economic rules. The paper, therefore, clamours that seemingly anti-competitive conducts which have positive environmental effects be considered acceptable in deserving cases. Indeed, it is not unusual to hear about instances where competition authorities have accepted environmental policy arguments in competition cases. As such, the proposition to accommodate environmental protection arguments in competition cases is not revolutionary. The paper however seeks to enrich the theoretical justification by emphasising the necessity of encouraging business actors to be proactive in addressing environmental challenges and ultimately on the necessity to give greater regard to environmental policy, especially when compared with economic rules such as competition law The analytical exercise in this paper extends beyond consequentialist public policy justifications. Rather, it adopts an ingrained approach by asserting an inherent idea of justice – specifically, environmental justice. To link the intrinsic claim of environmental justice to external societal pulses, the paper aligns the claim for justice with society’s preference. The idea of preference, for this purpose, is nested in Sen’s capability approach. The paper delineates the contexts and scope of potential claims with the aim of avoiding abuse and limiting frictions between the goals of competition and environmental policies.