Sustaining America

Widener Law School Legal Studies Research Paper Series no. 12-10

Sustaining America

John C. Dernbach Widener University School of Law

This paper can be downloaded without charge from The Social Science Research Network http://ssrn.com/abstract=2049853

Electronic copy available at: http://ssrn.com/abstract=2049853

ABSTRACT: This essay summarizes U.S. sustainability efforts over the two decades since the U.N. Conference on Environment and Development (or Earth Summit) in 1992.

It also summarizes basic findings and recommendations from Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (Environmental Law Institute 2012). Drawing on the expertise of more than four dozen sustainability practitioners in a variety of fields, the book teases from the limited progress made in the United States over the past two decades the overall patterns for that progress. It also reviews the most significant obstacles to sustainability, again showing patterns in those obstacles across a wide variety of areas. Finally, and building on this framework, the book explains in detail how to accelerate progress and overcome obstacles, providing a checklist of ideas and opportunities that can be used now in any sector or place.

Electronic copy available at: http://ssrn.com/abstract=2049853

Philip Warburg Tilts for Windmills Volume 29, Number 3 • May/June 2012

The Environmental

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®

Advancing Environmental Protection Through Analysis • Opinion • Debate

Meeting in the Middle: The Rio+20 Conference The Office Slowly Seeking Sustainability

The Oceans A Debate About U.S. Maritime Policy

The Courts Did a District Judge Make a Mistake?

Electronic available at: http://ssrn.com/abstract=2049853 The Policycopy Journal of the Environmental Law Institute®

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T Sustaining America The author and editor of a series of ELI Press books on U.S. progress toward ecological and economic harmony explains that patterns in modest sustainability efforts over the two decades since the Earth Summit provide a framework for overcoming obstacles and accelerating progress

John C. Dernbach is Distinguished Professor of Law at Widener University and co-director of Widener’s Environmental Law Center. He is the principal author of “Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability” (ELI Press, 2012).

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he national debate about the environment, fueled by election-year politics, lurches back and forth between two theaters of action. In one, opponents and proponents of environmental regulation fight more or less the same battles, using more or less the same weapons they have since the dawn of the modern environmental era. In the other, a variety of actors, including many corporations, federal agencies, local governments, and citizens organizations are working to make economic, environmental, and job creation goals work together at the same time.

The existence of this second theater — an emerging sustainability movement — is of enormous importance as we look to the U.N. Conference on Sustainable Development running from June 20-22 in Rio de Janeiro. Twenty years ago, even ten years ago, the movement did not really exist.

This movement includes dedicated practitioners in a wide variety of fields who have thought deeply about what sustainability means in different contexts and why it is attractive, and whose day-to-day job is to make it happen, fix what doesn’t work, and improve results. They are engaged in a wide variety of fields, including agriculture, manufacturing, technology, community planning and development, business and industry, government, education, construction, engineering, and law.

They understand that the global economy, the population base, and environmental degradation are growing, and that there are huge unmet human needs due to extreme poverty throughout the world.

They all see that we have no choice but to make economic development, job creation, and environmental protection work together. And they seek to translate those basic realities into reduced risks and greater opportunities in the work that they do and in the way they live.

An article and series of books published by the Environmental Law Institute, and which I authored or edited, record the evolution of this movement. These reviews occurred on or after the 5th, 10th, and 15th anniversaries of the 1992 Earth Summit. A fourth review, on the 20th anniversary, will be published this June.

The first review, conducted with the help of my students in a seminar at Widener University School of Law, was published as an article by the Environmental Law Reporter in 1997. The second review, the book Stumbling Toward Sustainability, published in 2002, was written by more than three dozen experts, with a wide range of perspectives and disciplines, from uni-

versities, nongovernmental organizations, and the private sector. In chapters on topics ranging from population and international trade to higher education, transportation, forestry, and state governance, they assessed progress to date and made recommendations for the next five to ten years. While little progress was evident in 1997, we reported in 2002 that in “virtually every area of American life, a few people and organizations are exercising leadership for sustainability.”

The third review, Agenda for a Sustainable America, which came out in 2009, involved substantially the same contributors, updated the progress assessment, and made recommendations on a wide variety of topics. We found that the United States “has made significant progress since 2002 in at least six areas: local governance, brownfields redevelopment, business and industry, higher education, K-12 education, and religious organizations.” In each, there are a solid core of practitioners; bottom-up support from citizens, companies, consumers, students, parents, or members; continuous improvements in practice; and shared learning. That was the good news.

Much of the bad news in our third review — and there was a lot of bad news — occurred in what has not changed, particularly America’s enormous ecological and greenhouse gas footprint.

The United States, which has less than five percent of the world’s population, consumes between a quarter and a third of the world’s energy and materials. The United States emits about one-fifth of global greenhouse gases.

The 2002 and 2009 reports each include more than a hundred recommendations for what should be done over the next five to ten years. The recommendations, each specific to particular topics, provide enumerated and achievable next steps toward sustainability. While many of those recommendations have been implemented to some degree, more have not. Even now, two decades after the Earth Summit, we have made only modest progress toward the increasingly distant goal of sustainability.

Considerable enthusiasm, expertise, and achievements now exist in pockets in a wide variety of specific fields, not just the six identified in 2009. But enthusiasm for sustainability has not spread throughout those

fields, or far outside them. It is far from clear that most Americans even understand what sustainability or sustainable development mean. For many, perhaps most, these are just vague words in the “green” vocabulary.

So the question is less about what to do for sustainability — we basically know what to do in most fields — than how to do it. A new book, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, attempts to answer that question. The book is based on contributions from 51 experts in a wide variety of fields, most of whom contributed to the prior books. It is scheduled to be published in June 2012 to coincide with the Rio conference.

The book is thematic, not topical. It teases from the limited progress made in the United States over the past two decades the overall patterns for that progress.

It also reviews the most significant obstacles to sustainability, again showing patterns in those obstacles across a wide variety of areas.

Finally, and building on this framework, the book explains in detail how to accelerate progress and overcome obstacles, providing a checklist of ideas and opportunities that can be used now in any sector or place.

What the book does, in short, is bridge the gap between sustainability practitioners and the public, explaining the general lessons that can be gathered from the more specific and technical sustainability achievements in particular fields, and use those lessons to provide a basic roadmap for accelerating the transition to sustainability in the United States.

As the book argues, sustainability can reshape our future as Americans in profound and positive ways. To understand where we could be going, however, we first need to remember where we have been.

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he 1992 United Nations Conference on Environment and Development in Rio de Janeiro, or Earth Summit, which was then the largest gathering of world leaders ever — 130 heads of state — was more than a big environmental conference. Those leaders, including U.S. President George H. W. Bush, endorsed one of the most important ideas of the M A Y / J U N E 2 0 1 2 | 31

20th century — sustainable development. And they didn’t just say it was a good idea: they agreed to make it happen.

To make sense of sustainable development, we first need to understand what development is supposed to mean. For many of us in the United States, development is the name given to the subdivision, mall, or highway that replaced a favorite childhood field or forest. But there is another understanding of development.

At least since the end of World War II, most of the world community has supported and contributed to development, a project that combines economic expansion, peace and security, and social wellbeing (basic freedoms as well as education, health, and the like). Its purposes — well understood by President Franklin Roosevelt and British Prime Minister Winston Churchill even before World War II was over — were to foster human opportunity, freedom, and quality of life, and thus prevent another world war and another great depression.

Development in this sense is not just a term for specialists. We use it all the time. The world’s countries were then, and still are, categorized by their development status. Development also represents progress in the modern world: we have not had a third world war, the global economy has grown (in spite of recent setbacks), and the globe’s population is healthier and more well educated. And so development, in many ways, has succeeded. More than that, it goes to the core of what we want for our country and our future.

But this understanding of development did not take the environment into account. Pollution and environmental damage were then — and to some extent still are — understood as the necessary price of progress. As the global population and economy grew, however, environmental damage also grew, until that damage began to undermine development itself.

This is the key factual premise of sustainable development — that everything we care about depends on the quality and health of our environment — and there is abundant evidence to support that premise.

Unsustainable agricultural practices, for example, contribute to desertification and cause soil erosion, loss of soil fertility, and groundwater pollution — all of which limit the availability of land for agriculture to feed a growing population.

Environmental degradation thus contributes to poverty and lower standards of living. Poor people tend to be exposed to the worst pollution, and are less likely to have safe and adequate drinking water, and these conditions help keep them poor. The per32 | T H E E N V I R O N M E N T A L F O R U M

sistence of extreme poverty around the world — 2.7 billion people now live on less than two dollars per day — is due in part to environmental degradation around the world.

Recognizing that development and the environment were antagonistic forces, the International Union of Conservation Networks articulated a framework for integrating and reconciling them in 1980.

The World Commission on Environment and Development elaborated on that framework and endorsed sustainable development in its landmark 1987 report, Our Common Future. That report, which led to the Earth Summit, contains the most frequently quoted definition of sustainable development: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Exactly what happened at the Earth Summit? The United States, along with the rest of the world, negotiated and adopted a nonbinding global plan of action for sustainability (Agenda 21) and a set of 27 principles for sustainability (the Rio Declaration).

Agenda 21 expressly encouraged a “bottom up” process in every country to determine the best way to realize sustainability in light of each country’s own circumstances. It set out the best current thinking at the time about how to integrate environment and development in dozens of specific contexts, including water pollution, international trade, and biotechnology.

The Rio Declaration, in turn, contains principles that were already well enshrined in U.S. environmental law: environmental assessment, a precautionary approach to environmental problems in the face of scientific uncertainty, and the polluter pays principle.

Sustainable development, or ecologically sustainable human development, redefines progress. It provides a framework for humans to live and prosper in harmony with nature rather than, as we have for centuries, at nature’s expense. It is more than the sum of our environmental laws; it is a framework for progress that calls on us to address issues such as climate change and high consumption of materials and energy that our environmental laws do not fully address.

Sustainability is also a moral, ethical, and even a religious issue, in addition to a question of which policy or law we might prefer. Environmental quality and the availability of natural resources directly affect human wellbeing; environmental damage hurts individuals, forcing them to breathe unhealthy air, drink filthy water, or ingest toxic chemicals. Environmental degradation also damages other life and the vast

ecological commons on which life depends. For those who recognize the existence of God, or another deity or force larger than themselves, environmental degradation also can be an offense against creation or the natural order. Whatever our religious perspectives, sustainability is about what we value, how we want to be remembered, and the kind of future we want upcoming generations to have.

To be clear about what sustainability is, we also need to make clear what sustainability is not. This is particularly important because many people believe that sustainability does not fit into their own pattern of thinking. As John Maynard Keynes once said, the “difficulty lies not with the new ideas, but in escaping the old ones.”

Sustainability is not about less freedom and opportunity; it is about providing people choices that they do not now have. Most fundamentally, it includes the opportunity to enjoy a high quality of life regardless of income, without interference from environmental pollutants or climate change.

Sustainability is not about bigger government; it is about better governance and improved policies.

While government needs to steer society in particular directions, sustainability cannot be accomplished by government or regulation alone. Government also needs to repeal or modify laws that inhibit progress toward sustainability, and not simply adopt new laws.

And while regulation has a role to play, sustainability is primarily about unleashing the creative energies of individuals, families, entrepreneurs, businesses, nongovernmental organizations, universities, and others to make a contribution towards our collective present and future wellbeing.

Sustainability is not about mindless implementation of an international plan. As Agenda 21 makes clear, sustainable development needs to be realized in the particular economic, natural, and historical settings of each specific country. The United States will move toward sustainability only if it is more beneficial to us than conventional development. We will not do so only because we agreed to it at an international conference, because it is the right thing to do, or because we care about the environment, although these motivations are important. We will move toward sustainability only if — and then because — it makes both us and our descendants better off.

While sustainable development is supportive of economic development, it is not about economic development or economic growth for its own sake. Sustainability is also not the same thing as sustained economic growth, although sustainability and sustained

economic growth can (and should) occur at the same time. The ultimate objectives, again, involve human wellbeing and environmental quality. Economic development and economic growth are means to those ends, but they are not ends in themselves.

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he 2012 Rio sustainability conference is supposed to address two issues: “a green economy in the context of sustainable development and poverty eradication” and “the institutional framework for sustainable development.” These are timely and important questions, but the fundamental and enduring issue is what countries do for sustainability when they go home. Thus, whatever is decided in Rio, the conference casts a light on what the United States (and other countries of course) has done or not done, and what we should do next.

One pattern evident over the past two decades, synthesized from the experience and learning of the contributing authors to our 2012 book, Acting as if Tomorrow Matters, is that more sustainable alternatives to business as usual are now available, and they are more attractive than they were. These alternatives include certification programs for green building (especially Leadership in Energy & Environmental Design, or LEED) and sustainable forestry (Forest Stewardship Council, Sustainable Forestry Initiative), the Energy Star labeling program, and, for corporate sustainability reporting, the Sustainability Reporting Guidelines issued by the Global Reporting Initiative.

The availability of tried-and-true methods of moving in a more sustainable direction, coupled with the growing economic and environmental pressures of business as usual, makes these alternatives more attractive.

Another pattern is that new laws are not limited to environmental regulation. At the federal level, in fact, no major environmental law has been adopted since the 1990 Clean Air Act Amendments. Instead, a major driving force behind more sustainable lawmaking has been economic development. It seems increasingly clear to lawmakers at both the federal and state levels that sustainability provides opportunities for economic development and job creation, even when legislators are not using sustainability language.

Many of these laws are intended to build the renewable energy and energy efficiency industries, but they have also increased waste recycling and the sale of organic food. Local sustainability efforts often have an economic development angle as well. The history of M A Y / J U N E 2 0 1 2 | 33

glass making in Toledo, Ohio, made it easier to attract thin-film manufacturing, which involves the placement of solar voltaic film between two plates of glass.

To be sure, regulation continues to play a vital role, but a greater variety of legal tools and policy purposes are in play. Climate change, perhaps the hardest sustainability issue of all, captures much of what has changed and not changed. For fuel efficiency in motor vehicles, EPA and the Department of Transportation have worked with states, auto manufacturers, auto workers, and others to develop a combined national greenhouse gas emission/fuel efficiency standard instead of three standards (national emissions, California emissions, and national fuel efficiency).

New and developing standards are more stringent, and apply to more vehicles (including trucks) than ever before, and it was combined with economic support for the auto industry, particularly during the height of the recession. Yet comprehensive legislation to address climate change has not been adopted, and stationary source regulation of greenhouse gases has proven more controversial.

Some of the obstacles to U.S. sustainability are obvious to anyone who pays even the least attention to national politics — the deep partisan gulf over anything to do with the environment, and the opposition of major fossil fuel interests to serious legislation (and regulation) involving climate change. But there are other problems as well: all too often, more sustainable alternatives are simply not readily available. While cost-effective energy efficiency improvements could be made in most homes and businesses, capable contractors and easy-to-use financing are in short supply.

While the United States continues to make modest progress in the face of these obstacles, the pace and scale of progress are way out of sync with both the challenges and opportunities of sustainability. As atmospheric concentrations of greenhouse gases and other problems have grown over the past two decades, the goal of sustainability appears even farther away than it did in 1992.

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o how do we accelerate progress? In a nutshell: We need more and better sustainability options and choices — options that make even greater progress toward sustainability, and more options and tools for a greater number and variety of activities.

The United States also needs to move from an almost exclusive reliance on environmental regulation as a means of protecting the environment to a greater 34 | T H E E N V I R O N M E N T A L F O R U M

variety of legal and policy tools, including environmentally sustainable economic development and job creation and repeal of laws that foster unsustainable development. In addition, the United States needs to adopt legislation that directly and fully addresses climate change.

Visionary and pragmatic governance for sustainability is needed at all levels of government. This kind of governance requires a bipartisan national strategy that can guide the nation’s sustainability efforts over a long period, a similar commitment to research and development of innovative technology, and intensified public education and greater public participation in decisionmaking for sustainability.

Finally, and perhaps most fundamentally, to achieve the kind of sustained all-out effort needed to create a sustainable America, we need a national movement for sustainability that builds on the many local, state, organizational, and sector-specific activities that are already occurring. While these activities are likely to grow regardless of the results of national elections, those elections can do a lot to slow things down or speed them up.

This movement, which is analogous to the environmental movement or the civil rights movement, is not left or right, Democratic or Republican. It can include anyone, from citizen activist to corporate executive.

When Ray Anderson died in August 2011, he was described as “the greenest CEO in America.” Under Anderson’s leadership, Interface, the world’s largest producer of modular carpeting, rented carpet rather than selling it, and then later replaced and recycled worn-out carpet pieces instead of throwing them away. Through recycling, reduced energy use, and lower greenhouse gas emissions, the company saved hundreds of millions of dollars. Anderson spoke tirelessly and with an evangelical zeal about what Interface had done. Anderson attributed his attitude to a book by the environmental writer Paul Hawken, The Ecology of Commerce, which he read after he was already running Interface. “I got it,” he said. “I was a plunderer of Earth, and that is not the legacy one wants to leave behind.”

The disconnect that Ray Anderson saw — between how he had been acting and his regard for the future — goes to the heart of the sustainability challenge. He made a decision, in short, to act as if tomorrow matters. Wherever we are, whatever we do, even if we make modular carpet, we can all be part of this movement. With further progress at the Rio+20 meeting, we will have a better sense of the steps we need to take. •