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Sustainable Development and Its Discontents

  • John C. Dernbach (a1) and Federico Cheever (a2)
Abstract
Abstract

Sustainable development (or sustainability) is a decision-making framework for maintaining and achieving human well-being, both in the present and into the future. The framework requires both consideration and the achievement of environmental protection, social justice and economic development. In that framework, environmental protection must be integrated into decisions about social and economic development, and social justice and economic viability must be integrated into decisions about environmental quality.

As sustainable development has grown in prominence, its critics have become more numerous and more vocal. Three major lines of criticism are that the term is ‘too boring’ to command public attention, ‘too vague’ to provide guidance, and ‘too late’ to address the world’s problems. Critics suggest goals such as abundance, environmental integrity, and resilience. Beginning with the international agreements that have shaped the concept of sustainable development, this article provides a functional and historical analysis of the meaning of sustainable development. It then analyzes and responds to each of the above criticisms. It argues that the critics, understood constructively, suggest ways of strengthening this framework, but do not provide a compelling alternative. The challenge for lawyers, lawmakers, and others is to use and improve the sustainability framework to make better decisions.

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*

Thanks to Ben Barros, Ira Feldman, Diane Henkels, and Dan Tarlock for their comments on an earlier draft. Thanks also to the Environmental Law Institute (ELI) and the participants in an ELI webinar, as well as the Environmental Law Collaborative and participants in a collaborative workshop, for their help in developing many of the ideas in this article.

**

Thanks to Chris Stevens, Denver Sturm College of Law Class of 2013, and Taylor Scherer, Denver Sturm College of Law Class of 2014, for research assistance. Special thanks to Robin Kundis Craig and Melinda Harm Benson for their critique of earlier drafts and the inspiration their work provides.

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1 Goldsmith E. & Allen R., ‘A Blueprint for Survival’, The Ecologist, 1 Jan. 1972, para. 166, available at: http://www.edwardgoldsmith.org/1125/introduction-the-need-for-change. The article occupied the entire first issue of the second volume of The Ecologist, and was later published as a book by Penguin (1972) in response to popular demand. The piece was written in advance of the 1972 United Nations (UN) Conference on the Human Environment in Stockholm – the world’s first environmental summit. Edward Goldsmith and Robert Allen are the principal authors, with contributions from Michael Allaby, John Davoll and Sam Lawrence.

2 This article uses the terms interchangeably, although we recognize that the terms may connote somewhat different meanings in other contexts; for more detail, see Part 2 below.

3 The Environmental Law Institute (ELI) has published 3 separate sustainability reviews of United States (US) law and policy: J. Dernbach et al., Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (ELI, 2012); J. Dernbach (ed.), Agenda for a Sustainable America (ELI, 2009); J. Dernbach (ed.), Stumbling Toward Sustainability (ELI, 2002). Fred Cheever co-authored Acting as if Tomorrow Matters and contributed a chapter to Agenda for a Sustainable America: Cheever F. & Scott W., ‘Sustainable Forestry: Moving from Concept to Consistent Practice’, in Dernbach, Agenda for a Sustainable America, ibid., pp. 285302. Sustainable development is also widely applied in international law: e.g., Bándi G., Szabo M. & Szalai A., Sustainability, Law and Public Choice (Europa Law, 2014); Cordonier Segger M. & Khalfan A., Sustainable Development Law: Principles, Practices, and Prospects (Oxford University Press, 2004). See also nn. 46–50 below and accompanying text.

4 See, e.g., W. Calder & J. Dautremont-Smith, ‘Higher Education: More and More Laboratories for Inventing a Sustainable Future’, in Dernbach, Agenda for a Sustainable America, ibid., at pp. 93–107; Federico C. & Cloud J., ‘Kindergarten Through Twelfth Grade Education: Fragmentary Progress in Equipping Students to Think and Act in a Challenging World’, in Dernbach, Agenda for a Sustainable America, ibid., at pp. 109127; Lavey S. & Lavey W., ‘Sustainability U’ (2015) 32(2) The Environmental Forum, pp. 3236.

5 See, e.g., Blackburn W., The Sustainability Handbook: The Complete Management Guide to Achieving Social, Economic, and Environmental Responsibility (ELI, 2007); Feldman I., ‘Business and Industry: Transition to Sustainability’, in Dernbach, Agenda for a Sustainable America, n. 3 above, at pp. 7191; Thomas W., Business and Industry, in Dernbach, Stumbling Toward Sustainability, n. 3 above, at pp. 541592.

6 Plugging the word ‘sustainability’ into the Google Ngram Viewer (which charts the frequency of the use of words and phrases in books digitized in the Google Books Project) shows the dramatic rise in usage of the term since the late 1970s; ‘sustainable development’ has followed a similar, if slightly less spectacular, trajectory: see Google Books, Ngram Viewer results at: http://tinyurl.com/nvjttm8. This rapid rise led xkcd (a webcomic of Romance, Sarcasm, Math and Language) to extrapolate a world in which, by 2061, ‘sustainable’ occurs on average once per sentence and, by 2109, ‘all sentences are just the word ‘sustainable’ repeated over and over again’: ‘Sustainable’, available at: https://xkcd.com/1007.

7 See n. 128 below.

8 UN Sustainable Development, ‘Agenda 21’, adopted at UNCED, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc. A/CONF.151.26, 1992, para. 1.1, available at: https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf.

9 UN Conference on Sustainable Development, The Future We Want, UN Doc. A/66/L.56, 24 July 2012, para. 1, available at: http://daccess-dds-ny.un.org/doc/UNDOC/LTD/N12/436/88/PDF/N1243688.pdf?OpenElement.

10 Ibid., at paras 245–51. The UN is scheduled to adopt 17 Sustainable Development Goals (SDGs) at a special meeting to be held on 25–27 Sept. 2015. At the time of writing, they are still in draft form: see UN SDGs, available at: https://sustainabledevelopment.un.org/topics/sustainabledevelopmentgoals.

12 Bosselmann K., The Principle of Sustainability: Transforming Law and Governance (Ashgate, 2008), p. 57.

13 Vandenbergh M., ‘Private Environmental Governance’ (2013) 99(1) Cornell Law Review, pp. 129199.

14 Dernbach J., ‘The Essential and Growing Role of Legal Education in Achieving Sustainability’ (2011) 60(2) Journal of Legal Education, pp. 489518, at 493–4.

15 ABA, Task Force on Sustainable Development, ‘First-Year Report’, 31 July 2014, p. 2, available at: http://acoel.org/file.axd?file=2014%2F9%2FABA+SD+TaskForceRpt+2014.pdf. According to the Task Force, ‘[s]ustainability is affecting, or will affect, tax law, insurance, banking, finance, real estate development, environmental and energy law, among other fields’: ibid. See J. Dernbach, L.A. DeHihns III & I.R. Feldman, ‘The Growing Importance of Sustainability to Lawyers and the ABA’, Trends (ABA Section of Environment, Energy, and Resources), July/Aug. 2013, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2316264. See also N. Cleveland, ‘Sustainability Reporting: The Lawyer’s Response’, Business Law Today, 4 Jan. 2015, available at: http://www.americanbar.org/publications/blt/2015/01/04_pike.html.

16 ABA Task Force, ibid., at p. 4.

17 Dernbach, n. 14 above, at pp. 501–18.

19 Intergovernmental Panel on Climate Change (IPPC), Climate Change 2013: The Physical Science Basis, Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2013).

20 Brown B. et al., ‘Global Sustainability: Toward Definition’ (1987) 11(6) Environmental Management, pp. 713719.

21 International Court of Justice (ICJ), Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 Sept. 1997, ICJ Reports (1997), p. 98 (Weeramantry, J., concurring). See also McDonough Architects William & Braungart M., The Hannover Principles: Design for Sustainability (William McDonough Architects, 1992), p. 50 (‘Examples of sustainability are not hard to cull from the history of world cultures’).

22 Bosselmann, n. 12 above, at pp. 11–22.

23 National Research Council (NRC), Committee on Incorporating Sustainability in the US Environmental Protection Agency (EPA), Sustainability and the U.S. EPA (National Academies Press, 2011), pp. 15–9; Cordonier Segger & Khalfan, n. 3 above, at pp. 15–9.

24 42 U.S.C. § 4331(a) (2006) (emphasis added).

25 Goldsmith & Allen, n. 1 above.

26 IUCN, World Conservation Strategy: Living Resource Conservation for Sustainable Development (IUCN, 1980), available at: https://portals.iucn.org/library/efiles/html/WCS-004/cover.html ; Cordonier Segger & Khalfan, n. 3 above, at p. 17.

27 IUCN, ibid.

28 L.R. Brown, Building a Sustainable Society (W.W. Norton & Co., 1981).

29 Ibid., at pp. 1–9, 245–71.

30 Ibid., at pp. 271–5 (‘Simpler Life-Styles among the Affluent’).

31 Ibid., at pp. 275–87.

32 Douglass G. (ed.), Agricultural Sustainability in a Changing World Order (Westview Press, 1984).

33 WCED, Our Common Future (Oxford University Press, 1987), pp. 43–65, 343.

34 Ibid., at p. 24.

35 Ibid., at pp. 37–41.

36 N. 8 above.

37 Adopted at UNCED, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc. A/CONF.151/26 (Vol. I), available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.

38 For a detailed explanation of each of the principles contained in the Rio Declaration, see Viñuales J. (ed.), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015).

39 New York, NY (US), 9 May 1992, in force 21 Mar. 1994, available at: http://unfccc.int.

40 Rio de Janeiro (Brazil) 5 June 1992, in force 29 Dec. 1993, available at: http://cbd.int.

41 See text at nn. 185–93 below.

42 UNGA Res. S/19-2, UN Doc. A/RES/S-19/2 (19 Sept. 1997), available at: http://www.un.org/documents/ga/res/spec/aress19-2.htm (adopting the ‘Programme for the Further Implementation of Agenda 21’, included in the Resolution).

43 UN World Summit on Sustainable Development (WSSD), Johannesburg (South Africa), 26 Aug.–4 Sept. 2002, ‘Report of World Summit on Sustainable Development’, UN Doc. A/CONF.199/20 (2002), available at: http://www.un.org/jsummit/html/documents/summit_docs/131302_wssd_report_reissued.pdf (including ‘Johannesburg Declaration on Sustainable Development’ and ‘Plan of Implementation of the World Summit on Sustainable Development’).

44 ‘The Future We Want’, UNGA Res. 66/288, UN GAOR, 66th Sess., UN Doc. A/CONF.216/16 (11 Sept. 2012), available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/66/288&Lang=E.

45 Dernbach J., ‘The Unfinished Story of the Rio Plus 20 Conference’ (2012) 35 Daily Environment Report (BNA) No. 980, pp. 16, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2169500. As of the date of writing, the UN is scheduled to adopt sustainable development goals in Sept. 2015: see n. 10 above.

46 The parties to the UNFCCC (n. 39 above) have held annual conferences since 1995: see Documents of the Conference of the Parties (COP) at its First Session, available at: http://unfccc.int/cop5/resource/cop1.html. At the 1997 COP in Kyoto (Japan), the parties agreed to a protocol to reduce GHG emissions by approx. 5% below 1990 levels by 2008–12: Art. 3.1, Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto (Japan), 11 Dec. 1997, in force 16 Feb. 2005, available at: http://unfccc.int/kyoto_protocol/items/2830.php. A successor agreement to the Kyoto Protocol is expected at the COP in Paris (France) at the end of 2015.

47 N. 40 above; the CBD COP now meets every other year, and has developed two Protocols, available at: https://www.cbd.int/cop.

48 Cordonier Segger & Khalfan, n. 3 above, at p. 95; Sands P. & Peel J., Principles of International Environmental Law, 3rd edn (Cambridge University Press, 2012), pp. 187236.

49 Marrakesh Agreement Establishing the WTO, Marrakesh (Morocco), 15 Apr. 1994, in force 1 Jan. 1995, available at: http://www.wto.org/english/docs_e/legal_e/24-scm_01_e.htm. See M. Gehring & M. Cordonier Segger (eds), Sustainable Development in World Trade Law (Kluwer Law International, 2005).

50 Arts. 3(3), 3(5), 21(2)(d), 21(2)(f) and 11, Treaty on the Functioning of the European Union (TFEU), Lisbon (Portugal), 13 Dec. 1997, in force 1 Dec. 2009, available at: http://europe.eu/lisbon_treaty/full_text.

51 Dernbach J., ‘Sustainable Development as a Framework for National Governance’ (1998) 49(1) Case Western Reserve Law Review, pp. 1103.

52 Ibid., at pp. 9–14.

53 WCED, n. 33 above, at p. 54.

54 Sen A., Development as Freedom (Knopf, 1999); see also De Feyter K., World Development Law: Sharing Responsibility for Development (Intersentia, 2001), p. 32.

55 Sarkar R., International Development Law: Rule of Law, Human Rights, and Global Finance (Oxford University Press, 2009), p. xvi.

56 Mandelbaum M., The Ideas that Conquered the World: Peace, Democracy, and Free Markets in the Twenty-first Century (Public Affairs, 2002).

57 UN Environment Programme (UNEP), Keeping Track of Our Changing Environment: From Rio to Rio+20 (UNEP, 2011).

58 WCED, n. 33 above, at pp. 28–37.

59 Ibid.

60 Dernbach J., Salkin P. & Brown D., ‘Sustainability as a Means of Improving Environmental Justice’ (2012) 19(1) Missouri Journal of Environmental and Sustainability Law, pp. 134; see also Le Bouthillier Y. et al. (eds), Poverty Alleviation and Environmental Law (IUCN Academy of Environmental Law, 2012).

61 1 S.W.3d 75 (Tex. 1999).

62 Ibid., at p. 82.

63 WCED, n. 33 above, at p. 48. Similarly, the IUCN Conservation Strategy (n. 26 above, Executive Summary, para. 3) describes 6 ‘main obstacles to achieving conservation’, nearly all of which are based on or linked with ‘failure to integrate conservation and development’.

64 Sen A., The Idea of Justice (Belknap Press, 2009), pp. 248252.

65 N. 37 above.

66 Ibid. (emphasis added). The IUCN (n. 26 above, at Ch. 1, para. 12) states that ‘the goal of the World Conservation Strategy is the integration of conservation and development to ensure that modifications to the planet do indeed secure the survival and well-being of all people’.

67 Weiss E. Brown, ‘In Fairness to Future Generations and Sustainable Development’ (1992) 8(19) American University International Law Review, pp. 1926, at 22–3. She also argues that each generation should conserve the options of future generations by conserving ‘the diversity of the natural and cultural resource base’, and that all people in the current generation should have the same minimal level of access to this legacy: ibid., at pp. 22–3. See also E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational, 1989).

68 Art. 3(1) UNFCCC: ‘The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’. The parties also state that they are ‘[d]etermined to protect the climate system for present and future generations’: Preamble UNFCCC (emphasis added).

69 The CBD includes both conservation and sustainable use among its objectives, and defines sustainable use as use of biological material in a way ‘that maintains its potential to meet the needs and aspirations of present and future generations’ (Arts 1 and 2 CBD). The Preamble states that the parties are ‘[d]etermined to conserve and sustainably use biological diversity for the benefit of present and future generations’ (emphasis added).

70 Dernbach J., ‘Achieving Sustainable Development: The Centrality and Multiple Facets of Integrated Decisionmaking’ (2003) 10 Indiana Journal of Global Legal Studies, pp. 247285; see also Cordonier Segger & Khalfan, n. 3 above, at p. 103,

71 See also Principle 25 (‘Peace, development and environmental protection are interdependent and indivisible’).

72 IUCN, n. 26 above, at Ch. 9, para. 1.

73 WCED, n. 33 above, at p. 71.

74 Ibid., at p. 313.

75 UNCED, ‘Agenda 21’, n. 8 above, at paras 8.4 and 8.16.

76 Arts 3(4) and 4(1)(f) UNFCCC.

77 Arts 10(a) and 6(b) CBD.

78 Dernbach, n. 70 above, at pp. 281–4.

79 For a detailed explanation, see Dernbach, ibid., at pp. 260–5.

80 42 U.S.C. § 4332. Approximately 160 countries have similar laws: Lazarus R., ‘The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains’ (2012) 100 Georgetown Law Journal, pp. 15071586, at 1510.

81 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–2 (1989).

82 Dernbach, n. 70 above, at pp. 253–8. The principles discussed in the text are illustrative but not exhaustive. Another is Rio Declaration Principle 8: ‘To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies’. See also ‘Summary of Proposed Legal Principles for Environmental Protection and Sustainable Development Adopted by the WCED Experts Group on Environmental Law’, in WCED, n. 33 above, at pp. 348–51.

83 Dernbach, n. 70 above, at pp. 254–5; see also Cordonier Segger & Khalfan, n. 3 above, at pp. 143–55 (explaining the history and application of the precautionary approach).

84 Art. 3(3) UNFCCC.

85 See, e.g., Cooney R. & Dickson B. (eds), Biodiversity and the Precautionary Principle: Risk, Uncertainty and Practice in Conservation and Sustainable Use (Routledge, 2005).

86 Dernbach, n. 70 above, at p. 254.

87 Ibid., at pp. 255–6; Cordonier Segger & Khalfan, n. 3 above, at pp. 156–66; Dernbach J., ‘Citizen Suits and Sustainability’ (2004) 10 Widener Law Review, pp. 503526. Parties to the UNFCCC have agreed to ‘[p]romote and facilitate’ both ‘public access to information on climate change and its effects’ and ‘public participation in addressing climate change and its effects’: Art. 6(a)(ii)–(iii) UNFCCC.

88 Bosselmann, n. 12 above, at pp. 22–5. It is similarly difficult to find a single specific social goal beyond the satisfaction of human needs.

89 Ibid., at p. 24.

90 Rockström J. et al., ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ (2009) 14(2) Ecology and Society 32, available at: http://www.ecologyandsociety.org/vol14/iss2/art32. See also Kim R. & Bosselmann K., ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’ (2013) 2(2) Transnational Environmental Law, pp. 285309 (arguing that protection of the integrity of Earth’s life-support system should be considered as the overall goal for international environmental law).

91 See, e.g., Decision 1/CP.17, ‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’, in COP-17 Report, Durban (South Africa), 28 Nov.–11 Dec. 2011, Addendum, Part Two, UN Doc. FCCC/CP/2011/9/Add.1 (15 Mar. 2012), available at: http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf.

92 ‘Strategic Plan for the Convention on Biological Diversity’, COP-6 Decision VI/26 (2002), available at: http://www.cbd.int/decision/cop/?id=7200.

93 Ibid.

94 ‘Strategic Plan for Biodiversity 2011–2020’, COP-10 Decision X/2 (2010), available at: http://www.cbd.int/decision/cop/?id=12268.

95 Compare, e.g., Target 5 (‘By 2020, the rate of loss of all natural habitats, including forests, is at least halved and where feasible brought close to zero, and degradation and fragmentation is significantly reduced’) with Target 7 (‘By 2020 areas under agriculture, aquaculture and forestry are managed sustainably, ensuring conservation of biodiversity’): ibid.

96 See, e.g., UNCED, ‘Agenda 21’, n. 8 above, at para. 8.3 (stating that ‘the overall objective is to improve or restructure the decision-making process so that consideration of socio-economic and environmental issues is fully integrated …’ and ‘[w]ith the understanding that countries will develop their own priorities in accordance with their prevailing conditions, needs, national plans, policies, and programs …’).

97 Dernbach J. & Widener University Law School Seminar on Law and Sustainability, ‘U.S. Adherence to Its Agenda 21 Commitments: A Five-Year Review’ (1997) 27 Environmental Law Reporter, pp. 1050410525.

98 N. 3 above.

99 J. Dernbach, ‘Synthesis’, in Dernbach, ibid., at p. 2.

100 Dernbach J. & Cheever F., ‘Progress Toward Sustainability: A Report Card’, in Dernbach, Agenda for a Sustainable America, n. 3 above, at pp. 1516.

101 Dernbach et al., Acting as if Tomorrow Matters, n. 3 above, at p. 9.

102 Ibid., at pp. 9–10. There is also abundant evidence of a global movement for sustainable development; Hawken estimates that more than a million NGOs around the world are ‘working toward ecological sustainability and social justice’: P. Hawken, Blessed Unrest: How the Largest Movement in the World Came into Being and Why No One Saw It Coming (Viking, 2007), p. 2.

103 American College & University Presidents’ Climate Commitment, ‘Text of the American College & University Presidents’ Climate Commitment’, available at: http://www.presidentsclimatecommitment.org/about/commitment. Of these, 533 signatories had submitted climate action plans.

104 UN Conference on Sustainable Development, n. 9 above, at para. 19. See also A. Ross, Sustainable Development Law in the UK: From Rhetoric to Reality? (Routledge, 2011).

105 Dernbach, Acting as if Tomorrow Matters, n. 3 above, at pp. 156–9.

106 Ibid., at pp. 159–60.

107 See, e.g., Smith J., ‘The World’s Most Sustainable Companies of 2014’, Forbes Magazine, 22 Jan. 2014, available at: http://tinyurl.com/forbes-sust.

108 Savitz A. & Weber K., The Triple Bottom Line (Jossey-Bass, 2013).

109 Dernbach , Acting as if Tomorrow Matters, n. 3 above, at pp. 160161.

110 Ibid., at pp. 167–72.

111 Ibid., at pp. 34–5; Ferrey S., ‘Solving the Multimillion Dollar Constitutional Puzzle Surrounding State “Sustainable” Energy Policy’ (2014) 49(1) Wake Forest Law Review, pp. 121185, at 122 (describing net metering, renewable portfolio standards, renewable system benefit charges, carbon/GHG regulation, and feed-in tariffs as ‘the primary pillars of sustainable energy policy’ in the US).

112 Eisen J., ‘Brownfields Development: From Individual Sites to Smart Growth’, in Dernbach, Agenda for a Sustainable America, n. 3 above, pp. 5769.

113 Salkin P., ‘Land Use: Blending Smart Growth with Social Equity and Climate Change Mitigation’, in Dernbach, ibid., pp. 349363.

114 Bruch C., Irwin F. & Bass G., ‘Public Access to Information, Participation, and Justice: Forward and Backward Steps Toward an Informed and Engaged Citizenry’, in Dernbach, ibid., pp. 459478.

115 Chertow M., ‘Municipal Solid Waste: Building Stronger Connections to Jobs and the Economy’, in Dernbach, ibid., at pp. 335345.

116 Tarlock D. & Zabel A., ‘Biodiversity Conservation: An Unrealized Aspiration’, in Dernbach, ibid., pp. 269284.

117 Kaplow S., ‘Can Green Building Law Save the Planet?’ (2014) 3 University of Baltimore Journal of Land and Development, pp. 131179.

118 US EPA, ‘Fiscal Year 2014–2018 EPA Strategic Plan’, 10 Apr. 2014, available at: http://www2.epa.gov/sites/production/files/2014-09/documents/epa_strategic_plan_fy14-18.pdf (identifying ‘cleaning up communities and advancing sustainable development’ as one of the EPA’s five goals and ‘working toward a sustainable future’ as one of four cross-agency strategies); NRC, Committee on Incorporating Sustainability in the US EPA, Sustainability and the U.S. EPA (National Academies Press, 2011).

119 Ore. Rev. Stat. §§ 184.421–3.

120 See, e.g., California Water Code § 10727 (development and implementation of groundwater sustainability plans); New Jersey Stat. § 13:11-35 (New Jersey forest sustainability criteria and indicators); Neb. Rev. Stat. § 2–1507 (Nebraska water sustainability fund); 20 Ill. Comp. Stat. § 3954/20 (Illinois Green Governments Coordinating Counsel sustainability goals).

121 Dernbach, Acting as if Tomorrow Matters, n. 3 above, at pp. 287–92.

122 Dernbach J., ‘Creating the Law of Environmentally Sustainable Economic Development’ (2011) 28(3) Pace Environmental Law Review, pp. 614641.

123 Dernbach , Acting as if Tomorrow Matters, n. 3 above, at pp. 161165.

124 Ibid., at pp. 165–7.

125 Cordonier Segger & Khalfan, n. 3 above, at p. 226. See also Goode E., ‘Farmers Put Down the Plow for More Productive Soil’, The New York Times, 9 Mar. 2015, available at: http://tinyurl.com/goode-nyt.

126 N. 9 above, at para. 18.

127 Decision 2/CP.18, ‘Advancing the Durban Platform’, in COP-18 Report, Doha (Qatar), 26 Nov.–8 Dec. 2012, Addendum, Part Two, UN Doc. FCCC/CP/2012/8/Add.1 (28 Feb. 2013), available at: http://unfccc.int/resource/docs/2012/cop18/eng/08a01.pdf.

128 For a discussion of another and, in the authors’ view, less credible challenge to sustainability, see Dernbach J., ‘Facing Down the So-Called Agenda 21 “Conspiracy”: Lessons for Planners’ (2015) Planning, pp. 2025.

129 Another approach is based on regenerative development: see, e.g., Lyle J. Tillman, Regenerative Design for Sustainable Development (Wiley, 1994).

130 Lugaresi N., ‘The Unbearable Tiredness of Sustainable Development (At Different Levels, Lately)’, in R.V. Percival, J. Lin & W. Piermattei (eds), Global Environmental Law at a Crossroads (Edward Elgar, 2014), pp. 195210.

131 McDonough W. & Braungart M., Cradle to Cradle: Remaking the Way We Make Things (North Point Press, 2010), p. 155.

132 Ibid.

133 Ibid., at pp. 45–67.

134 Ibid., at pp. 61–2.

135 Ibid., at p. 78.

136 McDonough W. & Braungart M., The Upcycle: Beyond Sustainability – Designing for Abundance (North Point Press, 2013).

137 Ibid., at p. 12.

138 Ibid., at p. 36.

139 Ibid., at p. 81. An example is agriculture: ‘We might create farming techniques that sustain the longest period of productivity, augment the soil for optimal plant growth, utilize soil in the most compact way, and diversify the design of that growth for different locations’: ibid., at p. 125. To scale up the use of their ideas in specific contexts, McDonough and Braungart have established a Cradle to Cradle Products Innovation Institute and a Cradle to Cradle certification programme for qualifying products: ibid., at pp. 198–9; see also Cradle to Cradle Products Innovation Institute at: http://www.c2ccertified.org.

140 Edwards A., Thriving Beyond Sustainability: Pathways to a Resilient Society (New Society, 2010), p. 149.

141 Ibid., at pp. 4–5.

142 Ibid., at p. 165.

143 Ibid., at pp. 164–5.

144 McDonough & Braungart, n. 136 above, at p. 11.

145 Ibid., at p. 147 (‘[W]e know that if you put people, planet, and profit at the triple top line [meaning that they are an organization’s ‘top values’], good effects cascade down and outward’); Edwards, n. 140 above, at p. 48 (describing the business community’s embrace of the triple bottom line as a ‘milestone’ in its change towards more thriveable practices).

146 McDonough & Braungart, n. 136 above, at p. 214.

147 Ibid., at p. 9; Edwards, n. 140 above, at pp. 155–7.

148 McDonough & Braungart, n. 136 above, at p. 217; Edwards, ibid., at pp. 161–3.

149 We can also ask whether current harvesting techniques damage ecosystems even if that damage does not directly affect the number of fish available to buy now or in the future (ecological integrity). We can ask whether the money we pay for the fish will be distributed equitably among the humans who have brought it to our local grocery store (social justice). We can ask whether uncertainties associated with the environmental and human impacts of our potential purchase have been considered and how they have been taken into account (precautionary approach). We can also discover whether the local grocery store is even capable of answering the questions (public participation).

150 See Education Portal, ‘Emergency Physician: Job Description and Educational Requirements’, available at: http://education-portal.com/articles/Emergency_Physician_Job_Description_and_Educational_Requirements.html.

151 See also Harris G., ‘Delhi Wakes Up to Problem It Cannot Ignore’, The New York Times, 15 Feb. 2015, p. 6, available at: http://tinyurl.com/delhiprob (describing extremely unhealthy levels of air pollution in Delhi (India)); D. Fears, ‘Clawing Their Way Back’, Sunday Patriot-News (Harrisburg, PA (US)), 15 Feb. 2015, p. A19 (describing the recent steep decline in the population of blue crabs in Chesapeake Bay); V. Mallet, ‘The Ganges: Holy, Deadly River’, Financial Times Magazine, 3 Feb. 2015, available at: http://tinyurl.com/FT-ganges (describing the extensive and continuing pollution of the Ganges River).

152 Rodgers E., Diffusion of Innovations, 5th edn (The Free Press, 2003).

153 N. 6 above.

154 See, e.g., 42 U.S.C. § 6371h-1(‘The term “energy sustainability” includes using a renewable energy source, thermal energy source, or a highly efficient technology for transportation, electricity generation, heating, cooling, lighting, or other energy services in fixed installations’); California Water Code §10721 (defining ‘sustainable groundwater management’ to mean ‘use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results’); Minn. Stat. Ann. §17.114 (‘“Sustainable agriculture” represents the best aspects of traditional and modern agriculture by using a fundamental understanding of nature as well as the latest scientific advances to create integrated, self-reliant, resource conserving practices that enhance the enrichment of the environment and provide short- and long-term productive and economical agriculture’).

155 See, e.g., Farley H. & Smith Z., Sustainability: If It’s Everything, Is It Nothing? (Routledge, 2014).

156 Note that similar arguments are made about the meaning of freedom or justice. Each has a certain core meaning, however general that meaning may be. As Amartya Sen explains, we can identify specific examples of injustice long before we can explain conceptually what justice means: Sen, n. 64 above, at pp. vii–viii.

157 Daly H. & Townsend K., Valuing the Earth: Economics, Ecology, Ethics (The MIT Press, 1993), p. 267.

158 Kates R., Parris T. & Leiserowitz A., ‘What is Sustainable Development? Goals, Indicators, Values, and Practice’ (2005) 47(3) Environment: Science and Policy for Sustainable Development, pp. 821, at 20.

159 Kuhn T., The Structure of Scientific Revolutions, 4th edn (University of Chicago Press, 2012), pp. 111134.

160 Ibid., at pp. 157–8.

161 NRC, Wetlands: Characteristics and Boundaries (National Academies Press, 1995), p. 43.

162 Ibid., at p. 48.

163 For a comprehensive overview of these programmes, see M. Strand & L. Rothschild, Wetlands Deskbook, 3rd edn (ELI, 2010).

164 See, e.g., Kates, Parris & Leiserowitz, n. 158 above, at p. 20.

165 Ibid.

166 Pearce D., Markandya A. & Barbier E., Blueprint for a Green Economy (Earthscan, 1989), p. 34.

167 Ibid.

168 Pearce D. & Barbier E., Blueprint 6: Blueprint for a Sustainable Economy (Earthscan, 2000), p. 24.

169 See Cox T. et al., This Well-Wooded Land: Americans and Their Forests from Colonial Times to the Present (University of Nebraska Press, 1985).

170 Engelman R., ‘Beyond Sustainababble’, in E. Assadourian (ed.), State of the World 2013: Is Sustainability Still Possible? (Island Press, 2013), pp. 316, at 3.

171 Ibid. (emphasis omitted).

172 See, e.g., Yanarella E.J. & Levine R.S., ‘From Sustainability to Resilience: Advance or Retreat?’ (2014) 4(7) Sustainability, pp. 197208.

173 Pearce, Markandya & Barbier, n. 166 above, at pp. 37–8.

174 The classic article on this topic remains R. Costanza et al., ‘The Value of the World’s Ecosystem Services and Natural Capital’ (1997) 387(6630) Nature, pp. 253–60 (estimating the value of ecosystem services at an average of $33 trillion per year, compared with global gross national product of $18 trillion per year).

175 Pearce, Markandya & Barbier, n. 166 above, at p. 38.

176 Ibid. See also Pearce & Barbier, n. 168 above, at p. 23 (stating other uncertainties in determining ‘whether environmental resources are being exploited sustainably and efficiently over time’).

177 Ibid., at pp. 38–40.

178 Organisation for Economic Co-operation and Development (OECD), Guidance on Sustainability Impact Assessment (OECD, 2010), p. 22.

179 Gibson R., ‘Sustainability Assessment: Basic Components of a Practical Approach’ (2006) 24(3) Impact Assessment and Project Appraisal, pp. 170182, at 175; see also Gibson R. et al., Sustainability Assessment: Criteria and Processes (Earthscan, 2005), pp. 176178, 237–8.

180 Farley & Smith, n. 155 above, at p. 150.

181 Ibid., at p. 163.

182 Ibid., at p. 151.

183 Ibid.

184 Ibid.

185 Ibid., at pp. 158, 162. Other frameworks that support their approach include Kenneth Boulding’s ‘spaceman economy’, in which ‘the earth is a closed system much like a spaceship’: ibid., at p. 158. See Boulding K.E., ‘The Economics of the Coming Spaceship Earth’, in H. Jarrett (ed.), Environmental Quality in a Growing Economy (Resources for the Future/Johns Hopkins University Press, 1966), pp. 314. Another is the Natural Step Framework – a framework for sustainable practices which establishes ‘four system conditions for sustainability’ that are broadly consistent with environmental primacy: Farley & Smith, n. 155 above, at p. 159. Still another is environmental justice, because environmental degradation hurts other people: ibid., at pp. 160–2. Finally, neo-sustainability has the potential to reduce the ecological footprint – ‘a representation of an organization’s or individual’s demand on the earth’s ecosystems’ – of individuals and societies: ibid., at p. 162.

186 Bosselmann, n. 12 above, at pp. 43–77.

187 Ibid., at pp. 52–3.

188 Ibid., at p. 76. Put differently, ‘development is sustainable if it tends to preserve the integrity and continued existence of ecological systems; it is unsustainable if it tends to do otherwise’: ibid.

189 Ibid.

190 Ibid., at pp. 55–7.

191 16 U.S.C. §§ 528–531.

192 Hayes S., Conservation and the Gospel of Efficiency (University of Pittsburgh Press, 1999), p. 28.

193 16 U.S.C. § 1607.

194 43 U.S.C. § 1732(a).

195 25 U.S.C. § 3104(b)(1).

196 16 U.S.C. § 1852.

197 16 U S.C. § 1853(a)(3).

198 16 U.S.C. § 1802(33).

199 Art. 2 CBD, n. 40 above.

200 G. Hardin, ‘Lifeboat Ethics: The Case Against Helping the Poor’, Psychology Today, Sept. 1974, pp. 38–43, 123–6, available at: http://www.garretthardinsociety.org/articles/art_lifeboat_ethics_case_against_helping_poor.html.

201 Holling C.S., ‘Resilience and Stability of Ecological Systems’ (1973) 4 Annual Review of Ecology & Systematics, pp. 123, at 14 (defining resilience as ‘a measure of the persistence of systems and of their ability to absorb change and disturbance and still maintain the same relationships between populations or state variables’).

202 See Fiksel J., ‘Sustainability and Resilience: Toward a Systems Approach’ (2006) 2 Sustainability: Science, Practice & Policy, pp. 1421, at 16 (defining resilience as ‘the capacity of a system to tolerate disturbances while retaining its structure and function’). See also Yanarella & Levine, n. 172 above, at p. 199 (providing a typology of resilience in different contexts).

203 NRC, Reducing Coastal Risk on the East and Gulf Coasts (National Academies Press, 2014), p. 19; NRC, Disaster Resilience: A National Imperative (National Academies Press, 2012), p. 1. See also Fiksel, ibid.

204 Meadows D.H. et al., The Limits to Growth: A Report for the Club of Rome’s Project on the Predicament of Mankind (Universe Books, 1972).

205 M. Gambino, ‘Is It Too Late for Sustainable Development?’, interview with Dennis Meadows, Smithsonian.com, 15 Mar. 2012, available at: http://tinyurl.com/GambinoSD.

206 Ibid.

207 Ibid.

208 Ibid.

209 Ibid.

210 McKibben B., Eaarth: Making a Life on a Tough New Planet (Times Books, 2010), p. 133.

211 Craig R. & Benson M., ‘Replacing Sustainability’ (2013) 46(4) Akron Law Review, pp. 841880.

212 Ibid., at p. 847.

213 Ibid., at p. 848.

214 Ibid., at p. 855.

215 Ibid., at p. 858.

216 Ibid., at p. 862.

217 Ibid., at p. 866.

218 Ibid., at p. 875.

219 IPCC, n. 19 above, at p. 11.

220 Ibid., at p. 28.

221 See Redman C., ‘Should Sustainability and Resilience Be Combined or Remain Distinct Pursuits?’ (2014) 19(2) Ecology & Society, pp. 3744; Hecht A., Fiksel J. & Moses M., ‘Working Toward a Sustainable Future’ (2014) 10(2) Sustainability: Science, Practice, & Policy, pp. 6570 (explaining how federal agencies should foster both sustainability and resilience); Jun H. & Conroy M., ‘Linking Resilience and Sustainability in Ohio Township Planning’ (2014) 57 Journal of Environmental Planning and Management, pp. 904919 (using a case study of 46 township plans in Ohio to show that communities with comprehensive plans that promote sustainability also exhibit resilience); Anderies J. et al., ‘Aligning Key Concepts for Global Change Policy: Robustness, Resilience, and Sustainability’ (2013) 18(2) Ecology & Society, pp. 821 (explaining that resilience should inform sustainability decision making); U. Pisano, ‘European Sustainable Development Network, Resilience and Sustainable Development: Theory of Resilience, Systems Thinking and Adaptive Governance’, ESDN Quarterly Report 26, 2012, available at: http://tinyurl.com/ESDN26 (explaining how sustainable development and resilience are mutually reinforcing).

222 16 U.S.C. §§ 1536(a)(2), 1538(a), 1533(f).

223 Cheever F., ‘The Road to Recovery: A New Way of Thinking about the Endangered Species Act’ (1996) 23(1) Ecology Law Quarterly, pp. 178, at 13–4.

224 N. 211 above.

225 See, e.g., Bank World, Turn Down the Heat: Why a 4°C Warmer World Must be Avoided – A Report for the World Bank by the Potsdam Institute for Climate Impact Research and Climate Analytics (World Bank, 2012).

226 Orr D., ‘Governance in the Long Emergency’, in E. Assadourian (ed.), State of the World 2013: Is Sustainability Still Possible? (Island Press, 2013), pp. 279290.

227 Anderies et al., n. 221 above, at p. 11.

228 See text accompanying nn. 51–7 above.

229 US Department of Homeland Security, National Preparedness Task Force, ‘Civil Defense and Homeland Security: A Short History of National Preparedness Efforts’, Sept. 2006, available at: https://training.fema.gov/EMIWeb/edu/docs/DHS%20Civil%20Defense-HS%20-%20Short%20History.pdf.

230 Yanarella & Levine, n. 172 above, at p. 198.

231 Ibid., at p. 204.

232 Hardin, n. 200 above, at p. 41.

233 Freud S., Civilization and Its Discontents (W.W. Norton & Co., 2005, first published 1930), p. 102.

234 Dernbach J. & May J., ‘Can Shale Gas Help Accelerate the Transition to Sustainability?’ (2015) 57(1) Environment: Science and Policy for Sustainable Development, pp. 415; see also Dernbach J. & May J. (eds), Shale Gas and the Future of Energy: Law and Policy for Sustainability (Edward Elgar, forthcoming 2016).

235 Cheever & Scott, n. 3 above.

* Thanks to Ben Barros, Ira Feldman, Diane Henkels, and Dan Tarlock for their comments on an earlier draft. Thanks also to the Environmental Law Institute (ELI) and the participants in an ELI webinar, as well as the Environmental Law Collaborative and participants in a collaborative workshop, for their help in developing many of the ideas in this article.

** Thanks to Chris Stevens, Denver Sturm College of Law Class of 2013, and Taylor Scherer, Denver Sturm College of Law Class of 2014, for research assistance. Special thanks to Robin Kundis Craig and Melinda Harm Benson for their critique of earlier drafts and the inspiration their work provides.

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Transnational Environmental Law
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