December 14, 2012
Rethinking Sustainable Development, ELC Essay #10: What Does Sustainability Mean in the Age of Climate Change?
Sustainable development traditionally demands that we meet future generations’ needs without sacrificing the current generation’s needs. Since climate disruption already promises to compromise both current and future generations’ needs, climate disruption demands a refinement of our understanding of sustainable development. I would suggest that sustainable development demands approximating this ideal of meeting current and future generations’ needs as best we can, by minimizing damage to our attempt to meet the basic needs of both future and current generations. Concretely, this requires a transition to a zero-fossil-fuel economy as quickly as we can, while generating (probably through a carbon tax or sale of allowances) sufficient revenue to fund adaptation both here and in developing countries that will bear the most serious consequences. A fossil-fuel economy is not sustainable, because the resources it relies upon are not renewable and because carbon dioxide harms this generation and threatens to destroy future generations. Herman Daly’s definition of sustainability as demanding harvesting of renewable resources that do not exceed the rates at which these resources replace themselves probably needs revision in light of climate disruption. For resources that we need as carbon sinks or that are already dangerously depleted, we may need to embrace growth in the resource (when possible), rather than a steady state.
In the United States, the political constraints on moving toward zero fossil fuels appear so formidable that it’s hard to think about a key question this leads to: What does sustainability teach us about managing the costs of a transition to zero fossil fuels? But it’s a philosophically important question and will become practically important even in this country if the politics change significantly. First, the concept of sustainable development rules out delaying a transition to zero fossil fuels because of undifferentiated concerns about costs. For that reason, cost-benefit analysis does not help much in analyzing a policy’s sustainability. Sustainability concerns itself with meeting people’s basic needs, however we define that, and embraces sustaining quite significant decreases in surplus wealth if necessary to meet the basic needs of future generations (or this one). At the same time, sustainable development requires some attention to easing transitional impacts on low-income people and to ameliorating impacts associated with dislocating workers in the fossil-fuel industry, even if the green economy generates more jobs than we lose.
My own work has been primarily focused on the problem of operationalizing sustainability (or something like it) when crafting pollution control policies and other policies affecting development (e.g. financial regulation). Sustainability demands changes in the focus, goals, and methods we bring to bear on almost all areas of law. It requires a focus on the shape of change over time, rather than near term costs and benefits. It suggests a goal of avoiding systemic risk, not achieving efficiency at the margin. And it invites an analysis of economic incentives that aims at efficacy in avoiding systemic risk, by asking how government actions will influence the actions of boundedly rational institutions and individuals responding to incomplete information.
The principal advantage of this elaboration involves its ability to directly address the pathologies emanating from neoclassical law and economics and to make the sustainability concept meaningful in other areas of law that influence development. One might argue that the deregulation of the financial industry advanced sustainable development, as it precipitated a rapid decline in carbon emissions as the economy collapsed. I would reject that conclusion on the grounds that it harms our efforts to meet current basic needs. We need to maintain basic social as well as environmental systems even as we drastically change the economy’s material basis and financial structure, as the goal of avoiding systemic risks implies. The economic dynamic concept described above (and elaborated in more detail in The Economic Dynamics of Law (Cambridge University Press 2012)) captures the change in thinking about how government operates that we will need to move us toward sustainability in the era of climate disruption.
-- David M. Driesen
December 13, 2012
Rethinking Sustainable Development, ELC Essay #9: Climate Sustainability Through Ethics, Economic, and Environmental Coordination
Sustainability can become more than the sum of its parts by transcending its literal meaning to become the synergistic trampoline for ethical, economic, and environmental resilience and coherence. From sustainability of forests and fish stocks to sustainability of future generations and a call for fusion of ethical, economic, and environmental understandings, complex systems are increasingly challenging humanity to adapt both language and governance. It makes little sense to speak of literal sustainable extraction of ancient water from aquifers nor of fossil fuels. The diplomacy that emerged from Rio in 1992 sought to bind a mindfulness of ecological carrying capacity with equitable use of resources to alleviate poverty. To date, both environmental and development communities find sustainable development lacking. Yet, time is running out to rename policy approaches without genuine follow-through in the form of environmental and human security. The international community has the capacity to embrace sustainability as an overarching framework for coordinated ethical, economic, and environmental decision-making. It is not the only means by which to proceed but represents one plausible response to increasingly disconnected fields that impact one another. A sensible first step down this coherence path is to recognize good governance as crucial to achieving sustainability and climate cooperation.
How do we calibrate efforts to build a sustainability arc that can enhance human and environmental integrity? High-level forums for inclusive meaningful dialog can enhance network creation and expansion into new public-private, local-regional-international, and a myriad of interdisciplinary patterns of cooperation. Complex adaptive systems and good governance principles can inform decision-making that results in rule of law enhancing predictable, efficient, and fair outcomes. The rule of law depends upon accessible, independent, and efficient decision-making. None of these processes is rapid or inexpensive. Yet, they can be rightly called investments and folded into respected economic climate-energy-water recommendations when decision-makers use sensibly long-term time horizons for efficiency analysis and recognize the value of equity, ecosystems, and other important yet not easily measured public and private goods.
As Dan Taylor has note, “the answer still is Gandhi’s. We know more clearly the processes for how to move toward his vision that improving people’s wellbeing is grounded in their mobilization, and that vision can be summed up as: begin simply, be true to process, the means are the ends, grow capacity in the partnership.” Sharing best practices from human rights and environmental law may provide a synergistic catalyst for ethics, economic, and environmental coherence.
International human rights law offers a robust justice framework with which to address climate change. Applying human rights thresholds to climate change may catalyze sustainability cooperation. Decisions informed by an understanding of climate justice can bring together dialogue from development, human rights, environment, trade, and business communities. Energy-food-climate security can be discussed as the interwoven crisis that threatens humanity rather than as unrelated dilemmas. What appear to be fragmented trade, environment, and human rights regimes can be sustainability framework building blocks.
Challenges to transitioning to greater efficiency and renewable energy use include the degree to which fossil fuel is embedded in the economy and the degree to which pricing carbon is a prerequisite for substantial private sector investment in environmentally sound innovation and participation in diffusion. A good starting point would be for trade and environment regimes to set clear criteria for what constitutes environmentally sound innovation based upon ongoing life cycle analysis that is mindful of science and equity. Network coordination can facilitate breakthroughs in trade and environment relations and build upon best practices.
With a background in economics, human rights, and environmental law, I haveparticipated in the drafting process for the UNFCCC, Agenda 21, and the Rio Declaration. More recently, I was a member of UN, IGO, and NGO delegations to the climate negotiations. It is my understanding that substantive life cycle analysis, procedural capacity building, and cultural sensitivity remain open issues. Bringing together a wide range of perspectives in a catalytic manner can converge insights that resonate. A collage of narratives from ecology, ethics, economics, and environmental law may be able to galvanize collective action—with or without a single shared sustainability vision.
Individuals have gained subject status at international law, and civil society voices are not only being heard but responded to. The quiet desperation of humanity that Thoreau spoke of has become a powerful force—potentially capable of incentivizing climate coordination. Irrespective of the rhetoric with which we converse, we need to figure out how to come together as a global community that feels its collective loss enough to cooperate (both quickly and effectively) to achieve a sustainability arc that enhances ethical, economic, and environmental cooperation.
-- Elizabeth Burleson
December 12, 2012
Rethinking Sustainable Development, ELC Essay #8: Social Equity and Environmental Policy
Most contemporary definitions of sustainability incorporate key principles from a 1987 report (commonly referred to as the Brundtland Report) by the World Commission on Environment and Development. In addition to the notion that sustainability necessarily involves a commitment to intergenerational equity, the Brundtland Report emphasizes the interdependence of environmental quality, social equity, and economic policies. International documents since the Brundtland Report have also linked income inequality and environmental degradation. For example, economic policies designed to mitigate poverty by increasing the production of goods may result in the overuse of natural resources, leading to an eventual decline in both natural resources and income levels. Today, examples of this relationship appear in the climate-change context. For instance, as the climate changes, some populations are forced to use ecologically fragile land for agricultural purposes. The decline in land quality further contributes to income inequality, and the agricultural practices further degrade the land.
This link between poverty and the environment may sometimes be empirically accurate, but it may not be true in all cases. For example, it may be the case that people with fewer economic resources tend to conserve the resources they have; they may be better at using less and recycling the waste they generate.
If, however, we assume that this link is empirically true often enough—or that environmental policies simply should incorporate concerns of social equity—then the next question is how should governments at every level understand the relationship between income inequality and the environment for purposes of policy making. Even if we assume that the physical sustainability of the environment is a condition for social equity (or vice versa), we still need to define what social equity is in order to design policies that further it. In doing so, we necessarily identify who we think the winners and losers of environmental policies should be.
So, what exactly is social equity and what does it require in the context of environmental policy making? In the United States, the environmental justice movement has long stressed that social equity requires the fair distribution of environmental benefits and burdens, an approach now reflected in U.S. law and policy. The idea that social equity necessarily involves the distribution of something is relatively straightforward, but the idea of fairness is less clear. How, for example, can environmental policies fairly distribute carbon emissions worldwide?
Resolution of this question requires a distributive rule that reflects a normative principle of equality. Theories of social justice supply various options. In the international context, policy makers could decide to allocate emissions equally, granting governments a per capita share. Or, policy-makers could adopt a prioritarian rule that would grant the least advantaged societies a greater share than they would receive on a per capita basis to ensure that the economic losses incurred by these societies are relatively less than those incurred by more well-off societies. Another possibility is to ensure that all societies are guaranteed a level of emissions that will continue to meet their basic needs however defined.
Deciding what social equity requires raises other questions as well. Some questions help identify how far considerations of equity extend. For example, should policy-makers consider the effects of climate change on both humans and nonhuman animals? Should they consider the effects on those outside their political borders? What about the consequences for future generations? Other questions involve the nature of the decision-making process. Should policy-makers attempt to create a fair process for environmental decision-making or simply attempt to reach fair results? In other words, do we evaluate the fairness of a particular decision by looking at how it was made (e.g., by evaluating levels of citizen participation and governmental transparency) or by assessing the consequences of the policy (e.g., by evaluating actual impacts to the environment and income inequality)?
Current definitions of sustainability address a few of these questions. As noted above, definitions of sustainability require consideration of a policy’s effect on future generations. In emphasizing the need to reduce poverty while protecting the environment, these definitions also appear to be consequentialist, or result-oriented—although proponents of environmental justice certainly recognize the need to incorporate democratic values into decision-making processes. The apparent resolution of these questions highlights an important tension in environmental policy-making, particularly in democratic societies. Liberal theories of justice often emphasize the importance of fair decision-making processes, rather than fair results, and resist adopting a particular conception of the good. On the other hand, definitions of sustainability contemplate results that are fair both in the present and in the future, and they appear to adopt a vision of the good that connects human welfare to environmental conditions.
Questions of social justice do not have easy answers, but we cannot ignore them. The international community apparently accepts the idea that social equity should be part of environmental decision-making. To make this a reality, we need to focus on how this can and should be done.-- Shannon M. Roesler
December 11, 2012
Doha’s Contribution: Looking at non-quantifiable loss and damage
The eighteenth meeting of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) was uneventful; nations primarily reiterated a general intent to negotiate post-Kyoto emissions reduction obligations at the next meeting. There was no major breakthrough in the earlier positions of major emitters; they merely agree to pursue new directions in future negotiations.
Nevertheless, one important development occured at the Doha meeting. The COP adopted a report, "Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity." [The Loss and Damage Report or the Report].
To date both UNFCCC and the Kyoto Protocol have focused on mitigation and adaptation. With respect to both actions, developed countries undertook financial responsibility to help particularly vulnerable developing countries. Since the COP meeting in Copenhagen, the focus on providing accelerated funding for both efforts increased; a new Green Climate Fund was established; the focus on adaptation funding increased. The Loss and Damage Report goes a step further and adds a new dimension to ongoing climate treaty negotiations. It provides a framework for discussing and negotiating loss and damage suffered by developing countries because of climate change, including non-economic loss. Some such loss or risks identified include climate-induced shifts in migration patterns, displacement of people, and other special vulnerabilities. The Report sets an agenda for the secretariat to organize an expert meeting and prepare a technical paper on the non-economic losses.
This is an important development, because it is an implicit acknowledgment that climate change will have serious non-economic consequences, particularly on special populations. It also begs a question that has been pushed to the background in the midst of concerns about the economic implications of climate change—how to value the invaluable? Loss of home, for instance. Of course, the Report recognizes this crucial question, but disappointingly subjects any progress on the issue to the availability of financing. Nevertheless, it is an important step in the correct direction, one that essentially should lead us to think—how exactly should we value climate mitigation efforts?
Rethinking Sustainable Development, ELC Essay #7: Adaptive Management, Resiliency, and Why Sustainability Discussions Give Me a Headache
Climate change does not change our view of sustainability; it heightens the importance of sustainability thinking. The concept of sustainability is inextricably linked with ideas of planning and management. From an ecological standpoint, sustainability guides resource management—helping ensure that current use of a resource will not deplete the resource and that future generations (or even just future versions of us) will be able to use the resource as well.
Take the simple example of sustainable timber management. If we cut down all the trees today, we won’t have any trees available for timber next year. If we harvest timber in a way that leaves the soil vulnerable, we’ll make it even harder to have trees in the future. Therefore, when deciding how to manage the forest, we make a plan that involves cutting down only some of the trees. We look at water, soils, and nutrients to determine what actions will protect our desire to cut down more trees in the future. We consult scientists and economists and take ecological and social considerations into account. And then we realize that our simple sustainable forest example is not really so simple. To meet our goal of sustainable timber harvest, we must also adopt an approach that considers many factors and is open to change and adaptation as inputs change or our information about (understanding of) the system grows.
Sustainable timber management offers a glimpse into the complexity of thinking broadly about sustainability, yet climate change makes sustainability analysis even harder. Keeping with our forest example, climate science tells us that we are likely to see even greater changes in water regimes, nutrient availability, and species richness. Things are going to get harder because our earlier predictions about the future were wrong. Things are going to get harder because our current understanding of the natural world is still wrong. Things are going to get harder because all of our natural and social systems will be facing increased stress.
Sustainability thinking necessarily involves both (1) thinking about the future and (2) taking an adaptive approach. Sustainability as a concept and approach means considering the future health of ecosystems and seeking to maintain functioning systems. If we seek to sustain anything, we must establish some projections of what the future conditions will be. We need to determine what prescriptions are needed. Climate science (along with many other fields) tells us that the world is a changing place and that the future is not always easy to determine.
Adaptability is what makes sustainability effective in an era of climate change. Mechanisms like adaptive management enable us to revisit policies and programs as circumstances change. A call for embedding ideas of adaptive management in our environmental laws is not new. Yet, we have only been minimally successful on that front. Much of law, especially laws regarding environmental protection and property, are static. Our methods of land conservation, for example, have focused on park-like protection where we set land aside for public ownership or protect it with conservation easements. We set static rules regarding the land, often adopting a hands-off approach and hope that will serve future needs. This means we sometimes get part one of the equation right—we think about the future. But we leave off part two. We don’t create mechanisms to reexamine our rules or management strategies. In our changing world, we are too focused on fixed points.
Breaking free from current practices and norms is not an easy task. the ecological concept of resiliency, however, may help us approach environmental protection from a new direction. Resilience is the capacity of an ecosystem to respond to perturbation or change. High resiliency is a function of both an ability to resist impacts and to recover quickly from disturbances. Importantly, a resilient system is not one that continues to look the same throughout the ages but one that responds and reorganizes while retaining function. Environmental protection should not be an effort to retain ecosystems and amenities in their current state but should promote resiliency. Healthy functioning systems are not wedded to a specific external appearance. Working towards resiliency means assessing what the thresholds of a system are and how close we are to those thresholds. Thinking of adaptation in resiliency terms goes beyond assessing whether humans will be able to respond to the coming climatic changes and considers our capacity to manage resistance and influence resilience. This shift towards resiliency thinking is a fundamental component in updating our principles of sustainability in an era of climate change.
-- Jessica Owley
December 10, 2012
Rethinking Sustainable Development, ELC Essay #6: It's the Biosphere, Stupid
Let’s be honest: there is nothing sustainable about the way humans are using the resources of the planet. By almost any measure, we are exceeding the earth’s carrying capacity. Human population, currently numbering 7 billion and projected to hit 9 billion by mid-century, coupled with a rapidly rising per-capita consumption rate underlie all of the other present drivers of global change. Though humans make up less than one half of a percent of the global biomass, we use up 25-32% of the earth’s net primary productivity. Humans have converted 43% of land to agricultural or urban landscapes, with much of the remaining natural landscape fragmented by roads and utilities. This exceeds the physical transformation that occurred at the last global-scale critical transition when 30% of Earth’s surface went from being covered by glacial ice to being ice free. With extinctions rates already 100 to 1,000 times background rates, and projected to increase dramatically in response to anthropogenic global warming, humans are literally altering the course of evolution.
Speaking of climate change, atmospheric concentrations of carbon dioxide have increased by 39% since the Industrial Revolution and, at approximately 400 parts per million (ppm), are now the highest in fifteen million years. We are adding 2.2 ppm per year. At this rate, worldwide carbon dioxide levels will substantially exceed 1,000 ppm by the end of this century. The level of heating that would result from this degree of concentration would be beyond anything seen during any period in which Earth supported complex life. To have even a 50-50 chance of holding temperature increases to the 2°C target agreed to in the Copenhagen Accord, atmospheric concentrations cannot exceed 1 trillion tons. We are already halfway there, and the rate of increase is accelerating. To limit emissions to 1 trillion tons, three-quarters of fossil fuels must be left in the ground as nations switch to renewable energy sources.
And rising temperatures with devastating extreme weather events aren’t the only problem. The oceans, which have been soaking up a lot of the carbon dioxide and masking the full impacts of global warming, are more acidic than at any time in the past 300 million years. Acidification can affect many marine organisms, but especially those that build their shells and skeletons from calcium carbonate, such as corals, oysters, clams, mussels, snails, and phytoplankton and zooplankton, the tiny plants and animals that form the base of the marine food web. Three of the five largest extinctions of the past 500 million years were associated with global warming and acidification of the oceans.
Nor is carbon the only threat to the oceans. According to the UN Food and Agriculture Organization, over 70% of the world’s fish species are either fully exploited or depleted. Further, nitrogen and phosphorous loadings from fertilizer runoff and fossil fuel combustion have created over 400 “dead zones” around the globe. More than 235,000 tons of food is lost each year to hypoxia in the Gulf of Mexico alone. The oceans are in crisis. We have only decades left before the damage we have inflicted on the oceans becomes permanent.
Without belaboring the obvious, the point is that sustainability is a physical concept grounded in science and bounded by the very real limits of the planet’s life support systems. The danger is not that we will run out of oil or natural gas or other stuff but that we will run out of the assimilative capacity of the biosphere and trigger a planetary scale shift in biological systems. It won’t be the end of the world, but it could well be the end of human civilization as we’ve known it.
The problem with thinking about sustainability as an economic concept is perfectly illustrated by the Norway-UK Energy Partnership for Sustainable Growth calling for accelerated oil and gas development in the increasingly ice-free Arctic. British Prime Minister David Cameron and his Norwegian counterpart Jens Stoltenberg called the deal a prime example of sustainable development that will insure the drilling is done in a “safe and environmentally sensitive” manner; provide a “long term gas supply;” create “good jobs;” and generate income for “investment in renewable energy.” The Arctic, of course, has just experienced a record loss of sea ice this past summer. “Sustainable” is not a word scientists would use to describe what is happening in the Arctic. Rather words like “death spiral” and “global disaster” are closer to the mark. There is nothing sustainable about chasing every last molecule of fossil fuel on the planet. “All of the above” is not an energy policy; it’s a bumper sticker.
It’s the ninth inning; we’re behind; there are two outs; and we’re down 0-2 in the count. With his re-election President Obama has one last at bat. A home run would be a carbon tax sending a strong price signal to the market and an aggressive program of investment in clean energy based on a strong national Renewable Electricity Standard as part of a robust plan for economic recovery.
-- Patrick Parenteau
December 9, 2012
In Case You Missed it: Week of December 1 to December 7
- The Supreme Court heard oral argument in Decker v. Northwest Environmental Defense Center and Los Angeles County Flood Control District v. NRDC. Both cases involve stormwater regulation under the Clean Water Act.
- The Supreme Court decided Arkansas Game and Fish Commission v. U.S. Army Corps of Engineers. It held "simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection."