December 7, 2012
Rethinking Sustainable Development, ELC Essay #5: The Sustainable, Inevitable Exploding City
The global urban footprint will expand from two to five times what it is today by 2050. This is in part due to the estimated population growth of 2.4 billion between now and 2050, most of which will occur in urban areas. Urban areas also have a persistently declining density in both developed- and developing-world cities. As a result, an extensive new infrastructure will be built in the twenty-first century that will exceed the size and scale of all previous city building. The dismal fact looms: our cities are exploding, inevitably.
Making the inevitably exploding city of the 21st century sustainable should be the cornerstone to long-term conservation and adaptability efforts to address climate change. It only makes sense that an environmental problem derived from human development revisit the source of the problem. Consider: transportation is a major source of greenhouse gas emissions, as are the construction and operation of residential and commercial buildings; land-use change resulting from city growth will also increase greenhouse gas emissions, through acts such as deforestation; and increased building stock will drive greater electricity use. Sustainable solutions to reducing greenhouse gas emissions in exploding cities will require equal parts pragmatic policy, legal tools, and a new narrative of development. Here is what this approach might look like:
Policy. To accept the exploding city as inevitable does not mean we stop trying to improve city form and increase density, but it does mean we move beyond efforts simply to contain growth of the urban footprint. For instance, California’s approach to the transportation sector has been a “three-legged stool” of greenhouse gas emissions standards for new model vehicles; low-carbon fuel standards; and land-use policies intended to reduce vehicle miles traveled. As a second example, building standards must be changed to achieve two ends: reduce climate emissions from the operation of buildings and adapt to a changing climate. To wit, Amory Lovins once famously grew a banana tree in a well-insulated hothouse in the middle of a Colorado winter with little heating. Similarly, we can substantially reduce buildings’ resource demands within the scope of existing technology: we must deploy it in this generation of buildings that will redefine human habitation.
Law. Cities must be places people want to live. Great places are not built as a monolith but by empowering local communities in megapolitan regions to build communities in their images. In developed countries, this means advancing sub-local government structures, which I have called “legal neighborhoods” to service sub-local needs, while still using local government to address regional issues. In developing countries, it means advancing concepts such as Brazil’s City Statute, which, broadly speaking, seeks to bring its slum areas, or favelas, into civil society; seeks to bring both social and environmental justice to those communities; and allows those communities to participate in the fruits of cities’ developments. Densely-settled environments must become more than merely tolerable and more than a place for economic opportunity: they must become the places people would choose to live over all other choices. The legal and political tools must make this choice evident.
Narrative. Sustainability’s narrative must move beyond its famous definition from the Brundtland Commission as “meet[ing] the needs of the present without compromising the ability of future generations to meet their own needs.” In the context of the exploding city, I propose a “dwelling ethic.” A dwelling ethic, as I see it, incorporates the “land ethic” approach of Aldo Leopold, which he stated “enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land,” with the teachings of Martin Heidegger that construction must be for “dwelling,” or long-term inhabitance, not just “building,” a consumerist approach to the physical environment. To achieve Leopold’s vision for the land in an age of exploding cities, we must decide to dwell, as Heidegger would say, as if we intended to stay put—in this house, on this planet—for some time to come. Such an ethic is of particular importance in this, humanity’s most peripatetic age.
-- Stephen R. Miller
December 6, 2012
Rethinking Sustainable Development, ELC Essay #4: Making Sustainability Count
Sustainability is an increasingly important concept in environmental and climate-change law. To the extent sustainability means that people should reduce their environmental impacts and shrink their carbon footprints, it seems that the increased focus on sustainability offers significant promise. But it is unclear that sustainability has that meaning; indeed, the term sustainability has become so ubiquitous and amorphous that it seems to have no common meaning. That might not matter very much when the idea of sustainability is used to promote gratuitous or individual acts of environmental stewardship. However, successful climate-change mitigation will require greenhouse gas emissions and atmospheric carbon dioxide concentrations to reach specific numeric levels. If governments replace quantifiable emissions reduction targets with ambiguous sustainability goals, this could undermine long-term efforts to reduce greenhouse gas emissions and mitigate climate change. Therefore, in the context of climate change, it is critical that governments make their sustainability programs count by measuring the benefits of their sustainability measures.
Over the past several years, a number of cities around the country have adopted climate action plans to reduce municipal greenhouse gas emissions. Many of these climate action plans focus on similar sectoral emissions-reduction strategies, such as reducing vehicle miles traveled by steering people away from single-passenger car trips; reducing waste-related emissions by encouraging composting and recycling; encouraging energy efficiency and localized renewable energy production; and encouraging other mitigation strategies such as tree planting, urban gardening, and other activities to reduce urban heat (and thereby reduce the need for air conditioning). Although these strategies may have significant potential to reduce urban greenhouse gas emissions and mitigate climate change, cities often fail to quantify the anticipated reductions the strategies will produce. Even where cities can point to emissions reductions they have achieved—for example, Portland, Oregon, has lowered its emissions to 1990 levels after pursuing elements of its climate action plan—they typically do not link emissions reductions to specific measures. Instead, cities have begun to promote the general concept of sustainability rather than develop specific strategies to meet the numeric metrics in their climate action plans.
Why should this matter? After all, if a city can show that it is simultaneously implementing a climate action plan, becoming more “sustainable,” and reducing greenhouse gas emissions, it would seem that sustainability efforts deserve praise. The problem, though, is that climate-change mitigation ultimately relies on numbers: to avoid temperature increases above 2°C, scientists estimate that global carbon dioxide concentrations must fall back to 350 parts per million (which may actually be too high), which requires quantifiable emissions reductions measured in tons of carbon dioxide equivalent. If cities are serious about mitigating climate change, they need to link their plans to quantifiable targets. Sustainability should not be exalted at the expense of governmental accountability.
That does not mean that sustainability (whatever it may mean) should not play a role in climate-change mitigation. Local climate action plans may help promote and reinforce behavioral norms necessary for societal changes that comprehensive climate-change mitigation demands. City leaders in Portland, Oregon, and New York City have tapped into the idea of sustainability to garner support for those cities’ climate plans, to encourage participation in the cities’ sectoral mitigation efforts, and to change the culture in ways that could lead to deeper emissions cuts over the longer term. The vague concept of sustainability seems to promote participation and buy-in from residents in those cities, because it provides city residents positive reinforcement as they work to improve their communities.
This concept of sustainability—that it serves to promote good will and emotional benefits—may seem weak. But research has shown in various contexts that positive reinforcement and messaging may do more to promote behavioral change than scolding and shaming do. For example, voter turnout efforts that emphasize the civic benefits and positive aspects of voting have a greater impact than efforts designed to play on voters’ fears and anger, contrary to some social scientists’ expectations. If government leaders use the concept of sustainability as a positive, upbeat strategy to enlist urban residents in climate-change mitigation efforts, this could help change societal norms. Changing norms, in turn, could allow city leaders to take more aggressive measures to achieve their quantifiable targets.
To make sustainability count in the climate change context, we should insist that cities establish quantified emissions targets and demonstrate that their sectoral strategies will achieve these targets. The concept of sustainability can help cities implement their climate action plans, but it should not displace a quantified approach.-- Melissa Powers
December 5, 2012
Rethinking Sustainable Development, ELC Essay #3: Sustainability: Defining It Provides Little Value, But Its Meaning Is Essential
Depend upon it, Sir, when a man knows he is to be hanged . . . it concentrates his mind wonderfully. Samuel Johnson
What does sustainability mean in an age of climate change? The question presents a dichotomy between the critical importance of acting, regulating, and legislating sustainably and the almost meaningless task of defining sustainability. On the one hand, climate change makes our continued survival and development as a society dependent upon the infiltration and incorporation of sustainability into all contexts and all facets of life. On the other hand, defining sustainability may prove to be a meaningless task (in or out of the climate change context) that misdirects a discourse on how to incorporate sustainability into our lives that must move forward.
Settling on a universal definition of sustainability is difficult (if not impossible) because the real-life application of sustainability is highly contextual and is based on a number of factors, including substantive area of application and geography. For each substantive subject matter, the relevant characteristics and metrics necessary to define or understand the applicable meaning of sustainability change. For example, the role of sustainability in mergers and acquisitions is drastically different than its role in zoning. Similarly, defining sustainability is dependent upon the geographical area: what is sustainable for purposes of land use in rural Africa is fundamentally different from what is sustainable for purposes of land use in dense urban China.
Because applying sustainability is highly contextual, a single definition is relevant to multiple contexts only at a highly generalized level. For example, to garner a definition of sustainability that is relevant to land use in rural Africa and land use in urban China we may sacrifice all helpful specifics of the term. Common generalized definitions include the triple bottom line of economic prosperity, environmental quality, and social justice, along with intergenerational equity. Those generalized definitions are insufficient to move sustainability forward in any concrete way. They provide minimal value in directing or promoting actual changes necessary to avoid climate catastrophe. They tell CEOs and local planners, for example, little operationally about how to measure sustainability in a particular context, how to monitor it, or how to move towards a sustainable society.
And yet, while defining sustainability may provide little benefit, the functional application of sustainability could not be more meaningful. Sustainability serves to fundamentally change the way we approach almost every aspect of our lives. It requires us to alter our thinking in how we understand and solve the challenges we face, including expanding the relevant inquiry to seek (in the words of Keith Hirokawa) “a more rigorous pursuit of equity as a matter of governance, a more honest incorporation of economics into environmental quality considerations, and a more effective regulation of the interaction between the natural and built environments.” Thus, the question of how we incorporate sustainability into our lives in a specific context is a far more relevant and proactive inquiry that can have a positive effect on climate change.
I recognize that some definitions of sustainability may be attempting to achieve something other than an operational roadmap to meet the challenges of the future. Rather, those definitions are to provide us with a starting point and the flexibility to apply sustainability to a variety of contexts. They are purposefully broad and inclusive to be applicable to a large spectrum of substantive areas. If true, we have achieved this objective. Now, our focus and resources should be spent on designing creative solutions to apply the existing general definitions to new contexts. We will not make the innovative changes necessary to address climate change if we are consumed with obtaining a uniform or universal definition for sustainability. For example, to effect positive change related to sprawl and zoning a conversation with local planners, developers, and community groups about the triple bottom line, intergenerational equity, precautionary principle . . . etc. is a show-stopper. Instead, a conversation about exploring new and concrete options for measuring, baselining, and assessing sustainable zoning and mass transit would get us closer to avoiding climate catastrophe.
The pressing need to take action on sustainability is particularly true in an era of climate change. As the effects of climate change become more apparent, decisions pertaining to the future of society must be made within the context of the risks associated with climate change. Climate change alters the factors necessary to make a decision, but does not alter the sustainability paradigm. Accordingly, however one defines sustainability, the application of that definition in an era of climate change plays a more prominent role as our survival (a minimum definition of sustainability) depends upon it—and that, to paraphrase Samuel Johnson, should concentrate our minds wonderfully.
-- Jonathan Rosenbloom
December 4, 2012
Preliminary Reactions to the Supreme Court's Stormwater Arguments
Yesterday, the Supreme Court heard oral argument in Decker v. Northwest Environmental Defense Center, a Clean Water Act case involving forest roads and stormwater runoff. Today, it heard argument in Los Angeles County Flood Control District v. Natural Resources Defense Council, another stormwater case, this one involving urban stormwater runoff. Already, news outlets and a few bloggers have covered the Decker argument, which was thrown for a bit of a loop Friday when EPA issued a new rule purportedly clarifying that the discharges at issue were exempt from permitting coverage. In this post, I’ll try to add a few other reactions.
A few things quickly emerge from the arguments:
Decker isn’t likely to go the merits. Almost all of the argument addressed how the Court should get rid of the case. Should it dismiss it as moot? Vacate the Ninth Circuit opinion? Remand to the Ninth Circuit to consider mootness arguments? Or dismiss the case as improvidently granted? Merits arguments did arise, but not as issues the litigants wanted the Court to address. Instead, litigants primarily raised merits issues as things the Court would want to avoid, and then argued about what procedural course would best achieve such avoidance.
The LACFCD decision won't devote much attention to the issue upon which the Court granted cert. In theory, the Court granted review of the case to consider a potential inconsistency between the Ninth Circuit’s ruling and the Supreme Court’s ruling in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004). That issue received very little attention in the argument, and the respondents made no attempt to defend the sentence in which Ninth Circuit created that question (nor had they asked the Ninth Circuit to issue such a holding in the litigation below). Instead, almost the entire argument addressed the way in which monitoring results showing in-stream impairment do or do not lead to liability for individual members of the Los Angeles Basin’s MS4 system. The justices seemed somewhat skeptical of the district’s argument that its monitoring system was designed in such a way that finding a violation wouldn’t lead to any finding of liability (Justice Scalia: “Whose fault is that?”; Justice Ginsburg: “What’s the purpose of having a monitoring station if nothing can be done?”), but even more skeptical when NRDC tried to argue the contrary position. In short, the justices just seemed to view this as a case involving a poorly drafted permit, and to be highly resistant to any notion of shared liability for individual contributors to larger stormwater problems.
At least some of the Justices don’t think much of the Ninth Circuit. This, of course, is not big news. But reading both transcripts, it’s striking how little confidence some of the justices seem to have in the Ninth Circuit’s ability to sort things out on remand. A typical passage from the LACFCD argument, in which Justice Scalia implies that the Ninth Circuit will find any possible way to rule in NRDC’s favor:
JUSTICE SCALIA: What if this panel found -- found for you on the ground that they used; they will surely find for you on this other ground, which -- (Laughter.)
MR. COLANGELO: Yes. We expect they would.
JUSTICE SCALIA: -- which has at least an inkling of plausibility.
These cases will likely remain interesting, and they may even wind up saying something about stormwater. But at this point, their greatest value as precedent may be for questions about how courts dispose of procedurally messy cases.
Rethinking Sustainable Development, Environmental Law Collaborative Essay #2: The "What" and "How" of Sustainability
Sustainability has become a popular topic in law and society, yet the exact meaning of sustainability is often glossed over or assumed without any substantial analysis. Without an understanding of what sustainability means overall, it is impossible to determine what it might mean in any particular context or problem. This essay argues that there are two essential elements to a holistic meaning of sustainability: the “what” and the “how”. To understand the meaning of sustainability in an age of climate change, we must examine both of these elements and their interrelationship with climate change rather than focusing simply on a one-dimensional and concept of sustainability that lacks a defined meaning.
The “what” element of sustainability is fluid. Sustainability, using the classic definition from the Brundtland Commission, encompasses “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” This wide-ranging definition includes environmental protection/conservation along with other issues such as poverty eradication, economic development, health concerns and labor issues. Thus, sustainability is perhaps one of the best vehicles to address climate change since from the “what” perspective it encompasses the concerns of the present—through such concepts as adaptation and mitigation—while also seeking to ensure that the ways in which we adapt to climate change are not harmful to future generations. The issue here, of course, is that climate change introduces an element of unforeseeability to determining the needs of future generations because the climate they inhabit will present unique challenges and opportunities. However, the crux of sustainability does not require clairvoyance. Rather, it requires the present generation to act in a responsible way toward future generations given the knowledge that is presently available. And, since knowledge is ever-evolving in law as it is in science, the actions needed to further sustainability will continue to evolve as well. This is why the “what” element is necessarily fluid.
This brings us to the “how” element of sustainability. The standard definition of sustainability is expansive and can include adaptation and mitigation practices. In many geographical areas, these practices are quite useful. However, key issues of the “how” element of sustainability render its meaning questionable in relationship to climate change. How, for example, do we promote sustainability in the Maldives when the nation will be uninhabitable within decades due to rising sea levels? Does sustainability support a plan to help the Maldivians remain in their homes, even though the island will be underwater within decades? Or do we assist the Maldivians in finding alternative locations for their people and their state now, in advance of a future immigration and governmental crisis, and call that sustainability instead? The “how” element of sustainability is key to the meaning of sustainability in an age of climate change because it must deal with both the charge to assist present and future generations and the reality that the needs of these generations will be quite different due to climate change related forces.
Taken together, the “what” element and the “how” element of sustainability provide the meaning of sustainability in an age of climate change that is necessarily flexible while at the same time encompassing the core principles established in the Brundtland Commission report. Although there will be challenges in squaring some climate-change induced issues with the “how” element of sustainability, the fluidity of the sustainability definition ensures that the concept will continue to have meaning and—more importantly—a place in the dialogue regarding climate change. In this way, viewing sustainability as being composed of the “what” and “how” elements makes the definition and concept of sustainability itself sustainable.-- Alexandra R. Harrington
December 3, 2012
Rethinking Sustainable Development, Environmental Law Collaborative Essay #1: Transparency in Support of Sustainability
Including only those activities over which individuals have substantial and direct control, emissions from individuals and households constitute 30-40% of U.S. greenhouse gas emissions; individuals are responsible for an even larger volume of emissions when indirect emissions, such as the energy required to manufacture and transport purchased goods, are included. The United States has, however, infamously approached international environmental negotiations adamant that “the American lifestyle is not up for negotiation.” This attitude can persist in part because the environmental harms occasioned in support of U.S. lifestyles are often most acutely experienced elsewhere, in the countries that produce the inexpensive goods that we consume. We “let them eat pollution” so that we need not and, in the process, prop up unsustainable lifestyles, obscure the environmental harms these lifestyles occasion, and quiet potential objections through the economic benefits that flow to the developing world.
At least in one sense, climate change does not so readily permit this sleight of hand. The climate harms occasioned by the greenhouse gas emissions associated with the production and supply of goods cannot be relegated to the country of manufacture. Climate change thus presents an opportunity to force a reckoning with the unsustainable practices that underlie U.S. lifestyles. In another sense, however, greenhouse gas emissions are not readily visible and frequently driven indirectly by lifestyle; there is thus a danger that the connection between U.S. lifestyles, underlying unsustainable practices, and resulting climate harms will remain obscured, underscoring the importance for law and policy to promote transparency to reveal the greenhouse gas emissions attributable to individuals. Possibilities for creating such transparency include carbon footprint labeling of goods, smart meter technology, individual carbon footprint calculators, and reorienting domestic climate policy to better engage individuals. If achieved, this transparency could support a new openness to reimagining more sustainable lifestyles.
Ultimately, we must build communities, infrastructure, and systems that support sustainable lifestyles; proposals abound for how this can occur and some communities have made significant progress. It will, however, require significant will and commitment to give effect to the insights and specific policies of sustainability. Generating the commitment—personal, public, political—necessary to achieve and maintain this goal may, in the United States, first require a revelation about how current lifestyles occasion environmental harms, including through greenhouse gas emissions. One challenge for legal scholars, then, is how to use law and policy to reveal, or at least not obscure, the environmental harms occasioned by our lifestyles.
-- Katrina Fischer Kuh
December 2, 2012
In Case You Missed It: Week of 11/25 - 12/1
Construction will begin early next year near San Diego on what will be the Western Hemisphere's largest seawater desalination plant (AP story).
This week in Doha, Qatar, representatives from 194 countries gathered for the 18th Conference of the Parties to the U.N. Framework Convention on Climate Change. Business Week reports that little is getting done and many are frustrated.
Remember all the oil dispersant Corexit that was used in the Gulf Oil Spill? A new study shows that when oil and Corexit are combined, the mixture becomes up to 52 times more toxic to microscopic organisms than oil alone.