Tuesday, June 4, 2013
ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court
Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”
The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.
The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.
As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.
I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.
Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.
-- Michael Burger
Sunday, June 2, 2013
World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.
The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.
The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.
If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.
From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.
And law isn't doing a whole lot to stop that process, by the way.
The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.
And we're changing them. If that doesn't scare you, it should.
We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."
We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.
We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.
We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.
Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.
This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.
Happy World Oceans Day!
-- Robin Kundis Craig
June 2, 2013 in Biodiversity, Climate Change, Economics, Food and Drink, Governance/Management, Law, North America, Science, Sustainability, US, Water Resources | Permalink | Comments (0) | TrackBack (0)
Saturday, April 20, 2013
Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):
New Series: Environmental Adventures in China. “This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”
China Environmental Experiences #2: Rocky Mountain Arsenal. “But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here….”
China Environmental Experiences #3: Breathing Air with Heft. “…It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it.…”
China Environmental Experiences #4: Wifi Without Potable Water. “This month, I peek beneath one of the more surprising, seemingly contradictory stones in China’s path toward increasing prosperity and world power….”
China Environmental Experiences # 5: Milk, Pesticides, and Product Safety. “Friends joked that given how much of what we use in the United States is actually made in China, we probably didn’t have to bring anything—whatever we needed would be here! But after our arrival, we were surprised to discover how mistaken these assumptions were.…”
CEE #6: Environmental Philosophy and Human Relationships with Nature. “In these final musings from the field, I reflect on a topic that is admittedly delicate but equally important, and which has been simmering behind many of the substantive environmental issues that I’ve addressed to now: environmental philosophy…."
CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”
CEE #8: Environmental Protection as an Act of Cultural Change. “This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China….”
CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”
April 20, 2013 in Air Quality, Asia, Biodiversity, Climate Change, Current Affairs, Economics, Energy, Environmental Assessment, Food and Drink, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, Water Quality, Water Resources, Weblogs | Permalink | TrackBack (0)
Thursday, December 20, 2012
From top to bottom, climate change has altered the Earth’s systems in ways that render impossible a static notion of sustainability. The idea of fixed natural baselines, contested to begin with, today is nearly quixotic. The many losses accompanying this state of affairs include the homelands of small island nations, Native Alaskan villages, and flood-prone communities throughout the world. They also include untold numbers of species, large and small. For many communities, the shocks and adjustments will be ongoing. The challenge for all will be to reconfigure economies and cultures that have been structured around an anachronism—what used to be the local climate.
This may seem like a terrible time to cast a critical eye on the past of the American environmental movement. Instead of looking at its flaws, we might be drawn to glossing over problems in order to unify support for strong climate change mitigation and adaptation policies. Yet glossing over might prove counterproductive. The inescapably damaged state of the world we are trying to preserve provides an opportunity to escape from narratives that have divided communities over environmental policies. Those narratives include saving the environment from people and preserving pristine places from contamination.
Let’s explore those narratives in two places. Aspen, Colorado is a former mining town reborn as a luxury ski resort. Efforts to preserve the wilderness and other natural resources of the surrounding mountains have coincided with pricing Aspen out of any reasonable housing market and creating a distant commuter class of service workers, composed mostly of Latino immigrants. The two phenomena do not have to coincide. The conversion from a boom-and-bust extractive industry economy to an amenity and service-based economy can be managed in ways that produce equitable distributions of environmental and social benefits. But often it is not. The path to easy money for developers is the path of environmental privilege. Wealthy people come for real estate or experiences near beautiful and sparsely populated public lands, and then structure a service economy around the protection of their privileges. (To be clear, I do not mean to say that individual wealthy people do this intentionally; the logic of this type of development is naturalized in a way that makes it invisible to many well-intentioned people.) This often includes, as it has in Aspen, externalizing a range of costs and impacts to outlying communities. Service workers must commute by car from distant places. The towns where they live, which have lower tax bases than Aspen, provide the schools and other services to Aspen’s working class. In short, Aspen is a place of environmental and class extremism, where the very wealthy enjoy the best that the Rocky Mountains can offer in terms of scenery and access to wilderness and other outdoor activities, and low-income workers live in distant communities, drive hours to and from their jobs, and barely have time to notice that the supposedly transformative experience of pristine nature surrounds them.
Black Mesa, Arizona is a high desert plateau, most of which is on the Navajo Nation but portions of which comprise the Hopi Tribe’s land. The Navajo and Hopi people of Black Mesa are among the more traditional Native communities in the country in terms of maintaining their ancestral lands as well as the religions and cultures tied to those places. The community is not a monolith, but it is fair to say that most of the Navajo and Hopi people who live there have strong interests in ensuring that their water (from underground pristine aquifers), their land, and their air can sustain many future generations who will perpetuate Navajo and Hopi life ways. The threats to their ability to ensure that future come from two main sources: the strip mining of coal on Black Mesa (and the accompanying pumping of ground water from the aquifers to mine and transport the coal), and the pollution from the several coal fired power plants that surround the Navajo Nation, including the Navajo Generating Station which receives all of its coal from Black Mesa. None of the electricity generated at the Navajo Generating Station supplies power to people on the Navajo or Hopi reservations. Instead, the power is used by the Salt River Project, Los Angeles Water & Power, Nevada Energy, Arizona Public Service Co., Tucson Electric Power, and the U.S. Bureau of Reclamation. The beneficiaries of coal mining, aquifer pumping, and emissions from the coal fired power plant are therefore corporations and people in the distant cities of Los Angeles, Las Vegas, Phoenix, and Tucson. The recipients of all of the environmental burdens are the Navajo and Hopi people, whose land, resources, and water serve as raw material to develop these far away places.
Contemporary environmental laws, in place since the early 1970s, have done tremendous good, but have done little to curb the extreme inequities in the distribution of environmental burdens and benefits exemplified in these two very different places. In Aspen, the narrative of keeping people out of pristine places is at play. On Black Mesa, the narrative at work is one that separates the plight of subordinated people from the structural forces that harm our environment. The build-up of Los Angeles and Phoenix surely seemed foregone, inevitable, and right to those involved in it. But what thought was given to the Native communities on whose backs those cities were built? Their lands were seen as nothing but the disposable raw material from which to build something better.
As we move forward, post climate change, with only a murky comprehension of how best to preserve remnants of the faultless non-human world, perhaps we can reconsider how to weave human communities and their just demands for equitable treatment into the picture. Otherwise, we may lean towards sustaining only non-human nature, and that will inevitably also benefit only certain classes and strata of humanity. We might unwittingly be sustaining a very hierarchical and increasingly rigid system of doling out environmental privileges and harms. If this is a moment of reconsideration, my vote is to construct a competing narrative of environmentalism, one that has a vision of vibrant, equitable, just and diverse communities of humans and non-humans as its end.
-- Sarah Krakoff
Wednesday, December 19, 2012
Climate change requires that we replace goals of sustainability with something else, at least for any policy goal more concrete and specific than leaving a functional planet to the next generations. Sustainability is by definition the ability to sustain something: the verb needs an object, and the goal of sustainability needs a particular focus or foci—an ecosystem, a socio-ecological system, extant biological diversity, economic growth, development, human health—but something. To talk about sustainability in the abstract is to philosophize, not to pursue meaningful policies and laws.
Climate change, however, is a game-changer. And, from a sustainability perspective (among others), we have absolutely no idea how to play this new game, even though we (accidentally) invented it.
But before we go too far down that road, let’s start with some basics. First, all human well-being—oxygen to breathe, food to eat, habitable environments, fuel, health, economic and cultural development—ultimately depends on the physical, chemical, and biological processes proceeding at multiple physical and temporal scales throughout Earth, including its atmosphere and oceans. Second, climate change is already changing most of the important components of those processes: the temperature of the atmosphere, of regions of the oceans, of land, and of various freshwater bodies; atmospheric and oceanic currents; the chemical composition of the atmosphere; the chemical composition of regions of the oceans; the relative humidity in various regions; precipitation patterns throughout the world; the habitability of particular ecosystems by particular species; natural checks on pest species through temperature and other seasonal changes; and the productivity of various landscapes. Third, these processes are proceeding, and interact with each other, in complex and unpredictable ways, stymieing (or at least limiting) human ability to predict future states of being. Fourth, even if all greenhouse gas emissions ended tomorrow (which will not be the case), carbon dioxide in particular takes a long time to cycle back out of the atmosphere. As a result, humans are stuck with change-inducing carbon dioxide levels in the atmosphere for a while—almost certainly at least a couple of centuries, and probably much longer, especially if climate change mitigation efforts remain half-hearted.
As a result, the bases of human life, health, society, culture, and economics are all changing and almost certainly will continue to change—again, in complex and often unpredictable ways—for the foreseeable (and unforeseeable) future. Climate-change impacts will, almost certainly, be a fact of human existence for longer into the future than the United States has been a country into the past; indeed, under current scientific predictions, humans will likely be dealing with climate change for longer than they’ve already been dealing with the European colonization of the New Worlds.
So, back to the main point: When the only constant in life is continual socio-ecological change, sustainability is a practically meaningless concept. You can’t sustain an ecosystem if the fundamental features of that ecosystem are constantly changing. You can’t sustain a socio-ecological system if its foundations are radically different than they were 20 years ago and will be radically different again 20 years from now. You can’t sustain a particular economy if the bases of that economy are disappearing. You can’t sustain cultural integrity if the society’s members are rapidly becoming climate-change refugees, or if the traditional ecological components of that culture have transformed into something else.
And that’s all before we fully consider the darkest of climate change’s many dark sides. At least three of the four horsemen of the Apocalypse—War, Famine, and Death—are likely to be riding tall and strong through the climate-change era, and we shouldn’t discount the fourth, even if you name him Conquest rather than Pestilence (Pestilence, of course, will be present in force). All of these, moreover, are likely to be joined by a younger sibling, Thirst, who may just turn out to be the most insidious of the lot. In places where these horsemen ride in force, it’s not hard to conclude that anything approaching sustainability will be a distant dream; instead, avoiding absolute chaos and permanent destruction will be the goal de jour.
This is an admittedly dark vision of what climate change means for at least some parts of the world. That does not, however, mean that it’s an inaccurate vision. Moreover, even in the lucky places and for the lucky people destined to be climate-change winners, changing conditions will be a continuous reality—indeed, for some, it will be precisely the fact of changing conditions that makes them climate-change winners. In those places, sustainability will be both impossible and undesirable.
Finally, it’s important to remember that we were never very good at sustainability to begin with. For example, since the world officially adopted sustainable development as a goal at the 1992 United Nations Conference on Environment and Development (the Rio de Janeiro Earth Summit), human consumption of resources has only increased, with no signs of stopping.
So, what should we pursue, if not sustainability? Adaptability, for one—that is, the ability to change (foods, jobs, health regimes, industries, etc.) in response to, and preferably in tandem with, climate-change impacts. Nostalgic conservatism will be, sometimes literally, a dead end. Resilience, for two—that is, the ability to absorb change without losing overall functionality, such as food production, water supply and sanitation, law and order, individual and cultural self-expression. Moreover, while resilience theory grew primarily out of ecological science, the concept needs to apply to other socio-ecological system components besides the environment, from economic resilience at the macro scale to social and cultural resilience at the more local scale to psychological resilience at the individual scale. As Charles Darwin emphasized, “It’s not the strongest of the species that survives, nor the most intelligent, but the one most responsive to change.”
-- Robin Kundis Craig
Tuesday, December 18, 2012
This essay, the last in my series about the environmental experiences of an environmental law professor in China, concludes my three-part discussion about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance. The first part addressed differences in the human relationship to nature, and the second addressed differing approaches to conservation, stewardship, and scarcity. This essay concludes with parting thoughts about the philosophical roots of some of these differences, the Cultural Revolution and the processes of cultural change, and the significance of all this for environmental protection in China. (For the full series background, see the introductory post, reflections on China and the Rocky Mountain Arsenal, an account of air quality issues in China, an exploration of water quality issues, and a review of Chinese food and consumer product safety.)
I began the previous two essays about environmental philosophy by acknowledging the delicacy of exploring the underlying cultural differences that correspond to some of the environmental experiences I’ve written about in this forum. I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience. And before plunging once more into that fraught territory (and with apologies for the repetition), I’ll once more share the important qualification that:
My observations are inevitably, hopelessly entangled with my own cultural vantage point. My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history. My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations. But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.
In the prior two essays, I discussed how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world, and expressed through our different approaches to managing conservation, stewardship, and scarcity. This final piece, the most fraught and likely flawed of the three, considers the relationship between the Chinese approach and the Taoist, Buddhist, and Confucian ideals that undergird Chinese culture. It engages issues of gender roles, environmental protection, and cultural change in both China and the United States (with a shout-out to Vietnam).
But first, a brief note about the cultural baggage that I bring to the project. Long before this seemed prudent to the average American college student, I majored in Chinese language, culture, and politics as an undergraduate in the late 1980s and early 1990s. I had started out as a philosophy major but switched departments in order to study Eastern traditions that were not part of the standard Western philosophy curriculum. I locked myself in the language lab to catch up on my Mandarin so that I could graduate on time, but it was worth it to peer into the incredible story of this unfamiliar nation. I was riveted by the breadth of Chinese history, the expanse of Chinese philosophical traditions, and the cultural foundations—so contrasting my own—that enabled modern societal movements like the Cultural Revolution and One Child Policy. I was curious about Confucianism and Buddhism and especially enchanted with the Naturalist School of Taoism, in which I saw an emphasis on harmony between the human and natural worlds that resonated with my own personal sensibilities. From Taoism originates the philosophy conception of Yin and Yang (literally, “the shadow and the light”), emphasizing the surprising but inevitable ways that seemingly opposing forces are interdependent and interconnected within the world, suspended in an organic embrace of balance.
So I was very excited when the Fulbright program and Chinese Ministry of Education placed me in Shandong province, the historic home not only of Confucius but also to many renowned Taoist temples among the enchanting Laoshan mountains. I knew that China faced daunting environmental challenges, but in some subconscious way, I hoped that home-grown Taoist principles would provide cultural support for resolving them. But the Taoism I found in China held little in common with the stylized, “Tao-of-Pooh” version that I studied in college. The Taoist temples that I visited appeared to emphasize faithful worship of colorful immortals over personal adherence to the Way (or “Tao”) of simple joy and interconnected balance. On the surface, they seemed very similar to Buddhist temples, which I had expected to differentiate a contrasting path of detachment to avoid suffering within cycles of rebirth.
Fully recognizing the interpretive limitations of my tourist perspective, I asked the students accompanying me to help me understand the differences between Taoism and Buddhism from their own vantage points, but I found that they were generally unable to articulate much about either tradition—nor were they terribly interested in doing so. What they did describe was wholly unrelated to my own schooling, focusing on important historical moments rather than underlying ideas. Granted, I’m sure I would have had a very different experiences talking with the actual Taoist or Buddhist monks in those temples, and I suspect that many echoes of these traditions continue to reverberate through Chinese culture in ways that neither I nor my students fully appreciate. (I’m also sure that the sterilized versions I learned at Harvard never accurately reflected the full reality of Chinese experience.) Either way, I discovered that the majority of mainland Chinese don’t pay all that much attention to these ancient traditions these days—many seeing them as quaint at best, and culturally backward at worst.
I shouldn’t have been surprised, given how strongly (and often violently) ancient Chinese philosophies were discouraged during the Cultural Revolution of the 1960s. In that second Chinese revolution, Chairman Mao set out to eradicate the traditional belief systems that he warned were holding the Chinese people back--and also, most likely, to consolidate his own weakening political power. Women were liberated from centuries of repression and peasants at the bottom of the social order were exalted, but teachers were pilloried, libraries destroyed, and many monks and scholars persecuted to their deaths. (Horrifying estimates suggest that somewhere between one and twenty million people were killed during the decade-long struggle.) Four decades later, it was fascinating to see how the Cultural Revolution had succeeded in some of its ideological objectives, especially in eroding the overt roles that Taoism and Buddhism play in the philosophical world of most mainland Chinese. For what it’s worth, though, the same routing of “old thinking” has also succeeded in fundamentally changing the status of women in society. While women are hardly co-equal with men in modern China, their position in society has improved immeasurably since 1949, thanks in part to the relentless urging of the early communist party that “women hold up half the sky.”
This example of purposeful cultural change yields an especially fascinating comparison with Vietnam, a neighboring socialist republic that is also the result of a political revolution, but this one uncoupled from a cultural revolution of the sort that rocked China. In Vietnam, the rhetoric of the new political order stands on seemingly equal footing with ancient cultural and philosophical traditions. Nearly every home, hotel, or restaurant that I visited included a little shrine, honoring a mix of immortals, ancestors, and other objects of traditional worship— unselfconsciously adjacent to political propaganda signs honoring heroes of the revolution or touting contemporary political objectives and loyalty. The richness of traditional Vietnamese culture continues to suffuse people’s everyday lives, in contrast to modern China, where cultural traditions flourish around holidays but seem less entrenched at other times. (Indeed, several Chinese privately lamented to me that the nation had lost its ethical moorings after the decimation of the Cultural Revolution, perhaps explaining the hunger for spiritual entrepreneur movements like Falun Gong—which revives some elements of Buddhism and Taoism—and Christianity.)
Yet in Vietnam, I also observed the inevitable flip-side of entrenched ancient traditions—a literal expression of the Yin and the Yang—epitomized by the plight of a remarkable woman I met while guest lecturing there, whom I’ll call Linh. Linh is a twenty-something, overseas-educated, up-and-coming young professional with a plumb job working for the government who nevertheless fretted about her future, especially regarding marriage. She feared getting married because, according to traditions once universal in China and still prevalent in northern Vietnam, marriage would require her to leave her family home and become a member of her husband’s family household, where she expected ill-treatment from her parents-in-law.
She had a vivid picture of what that treatment might look like based on the experiences of her own sister-in-law, who lived together with her, her brother, their toddler, and Linh’s parents in her father’s home. The sister-in-law had been unable to see her own family since the birth of her son, because Linh’s father had forbidden her from taking the child away from the family home for the two hour journey to her village.
Linh summoned the courage to tell her father that he should be nicer to his daughter-in-law and allow her to see her parents. After all, she reminded him, one day she would be someone’s daughter-in-law wanting to see him. But he did not take well to being scolded by his daughter, and nothing changed as a result. Linh seems resigned that she will someday have to get married, but she does not look forward to that day.
It broke my heart to hear—in 2012!—this age-old story of fear and sorrow from a well-educated professional woman at the pinnacle of Vietnamese society. Aside from the foreign education and government job, her story is reminiscent of countless Chinese women over the thousands of years that young brides were forced to leave their parents’ households for their husbands’, often to be persecuted by an unhappy mother-in-law once forced to leave her own family. I recall learning in college that the suicide rate among young Chinese women during this time was estimated to be the highest of any social group anywhere on earth at any time in human history, evidencing the misery that so many endured. (Sadly, recent studies show that this trend continues in rural China, where traditional family structures remain entrenched.) Fortunately, that time is long gone in the urbanizing parts of China that I visited, and the situation is much improved in Vietnam as well, given the social and economic power that comes to women like Linh from working outside the home. So at least some of the “old thinking” extinguished by the Chinese Revolution should not be missed—even if many of the methods can never be condoned.
Yet not every aspect of traditional Chinese culture was destroyed during the Cultural Revolution. Notwithstanding the dismantling of so many foundations, one critical cornerstone of traditional Chinese culture survived relatively intact: Confucianism. Founded on the teachings of the ancient philosopher Confucius, the philosophy of Confucianism continues to provide a strong ethic of righteous living and rules of conduct in relationships that redounds throughout Chinese culture. As a humanist delineator of right and wrong behavior, it focuses on the cultivation of personal virtue, respect for authority, and deference to proper roles within the community. Among its principles, Confucianism emphasizes the importance of education, reverence for the ancestors, and the critical responsibilities of individuals within clearly articulated social hierarchies.
Confucian ethics are among the proudest cultural traditions of China, and they form the backbone of many other Asian cultures, from Vietnam to Japan to Korea. They infuse the flavor and texture of Chinese society, gracing it with respectful behavior, deep regard for the wisdom of elders, and societal support for teachers and education more generally. It also emphasizes the proper role of individuals given their particular role within the social order. Children should obey parents, wives should obey husbands, and husbands should obey local leaders, who should, in turn, obey national leaders. This system of ordered relationships has provided needed social stability during times of great political upheaval, reaching back over thousands of years of territorial conquest and dynastic change that might have otherwise torn Chinese culture apart.
So even after the Cultural Revolution successfully eradicated the already weakening traditions of Taoism and Buddhism from the Chinese popular consciousness, the Confucian bedrock of Chinese society continues to thrive—probably because the current political system is itself so well-aligned with Confucian principles. The success of the Chinese Communist Party is inextricably intertwined with broad-based Confucian respect for the wisdom of national leadership, deference to authority, and Confucian-cultivated obedience within an explicit societal hierarchy. Of course, in reinforcing these strict social hierarchies, Confucianism has also facilitated the long stability of arguably oppressive traditions like the practice of female foot-binding (eradicated by the mid-20th century), and the gender roles that continue to haunt women like Linh throughout Asia. The Yin and the Yang.
How, then, does all this relate to environmental governance? Possibly profoundly. Even as the great tradition of Confucianism exhorts right behavior within the social order (and even setting aside the most contested areas of that social order), I cannot help but wonder about the relationship between Confucian principles and environmental ethics. As I discussed in the previous essay, I found a less entrenched cultural tradition of environmental stewardship in China than I have seen in equally crowded nations, and I wondered why. For example, I remarked on the striking way that most Chinese seem to differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors:
“Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty. Shoes are often left at the front door. Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture…. But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold. This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.
“Crossing the outer threshold onto the street reveals an even more dramatic difference… Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement. But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message... [discussing the tradition of allowing children to toilet-train on public streets and sidewalks]. With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place….
“Here’s the thing. If you see the world outside your own home as a legitimate place to offload waste… how can this not extend to greater environmental management? If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air? The potential implications for environmental law are obvious. Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge. Professional polluters aren’t just doing it because it’s cheaper than the alternative. They are doing it because—at some level—it’s what they have always done, and without moral misgivings.”
Indeed, in China, moral misgivings are more likely to come from the violation of Confucian ethics than the violation of relatively new, state-mandated environmental laws. And herein lies the great challenge for Chinese environmental law.
Confucianism teaches the maintenance of social order through right behavior within strictly nested social hierarchies. Chinese culture is permeated with Confucian ethics, which teach people to focus on their own sphere of responsibility and act obediently toward the sphere above them. These ethics reinforce the power of the very political system now earnestly trying to generate meaningful environmental laws and nurture the “Recycling Economy” that I discussed in the previous essay. But in teaching people to focus on their own sphere and not beyond, is it possible that these same ethics unwittingly support an underlying environmental tendency to think, perhaps, a little too locally and not enough globally? Could Confucian ethics unintentionally encourage a duty of care that extends only to the corner of the world under one’s direct control—the inside of one’s home—leaving responsibility for the rest to others? Could this help explain the comparatively weak tradition of environmental stewardship in China?
It certainly can’t be the only explanation, given the confluence of Confucian ethics and strong environmental stewardship traditions in neighboring Japan, another Asian nation founded on deeply Confucian traditions, coupled with a Shintoist reverence for nature. Still, I can’t help but wonder whether there is some explanation lurking here to account for the remarkable way that the Chinese duty of care for the environment seems to coincide with Confucian circles of agency, responsibility, and authority. Americans sport buttons and bumper stickers exalting us to “think globally, act locally.” But most Chinese people seem to orient both their thinking and acting within the bounds of their most powerful culturally designated sphere of responsibility: the family home.
Confucian ideals remain steadfast in China, but cultural change is imminent—and on the rise, thanks to both top-down and bottom-up sources. Operating through the Internet from the bottom up, a thriving economy of Chinese social media has dislodged young people from the strictly local sphere as they build communities of interest across the country (although not the world, thanks to the “Great Firewall” that blocks domestic access to social networks abroad). And as I discussed in the previous essay, the Chinese government is working hard from the top-down—hopefully harnessing citizens’ Confucian respect for leadership—to inseminate a “Recycling Economy” within the new social order. The Recycling or “Circular Economy” sustainability campaign exhorts citizens to see the relationship between their every-day behaviors and the health of the overall environment beyond their front doors, and to connect the health of the environment to overall human well-being.
But there is no way around it: the environmental project in China is going to take an act of cultural change. The Cultural Revolution represents one way of successfully implementing cultural change, but nobody inside or outside China would advocate the tragic human and cultural violence of that method today. Instead, this is the time for a gentler variety or ideological entrepreneurship—best accomplished through the old-fashioned tools of community-based education and consciousness raising and the new-fangled platforms of mass and online social media.
Facebook and Weibo aside, it’s the same kind of cultural change that made recycling ideals an every-day part of American life. I still remember when curbside recycling began in my childhood neighborhood and we were asked, for the first time, to rinse cans and bottles before putting them out for street-side collection in big blue bins. My incensed father simply could not get past the idea that he was being asked to “wash garbage” (and then to pollute his pretty neighborhood with ugly blue bins). “But it’s not garbage,” my sister and I insisted—“it’s recycling!” And the blue bins weren’t ugly to us, because we found beauty in the good they would do for our environment (similar to the philosophically-driven aesthetic I find in many of today’s modern wind farms). This is what we had learned in school, though obviously not at home, and our family demonstrates the way that cultural learning can move through the generations backwards as well as forwards. My father, now in his seventies, today dutifully washes the recycling and my mother maintains separate receptacles for paper, plastic, glass and aluminum, and trash. This is what cultural change looks like.
Cultural change should come from within, not without, goes the very wise wisdom. The good news is that the “Recycling Economy” and other efforts to increase public sustainability awareness show that Chinese leaders are taking steps toward environmental progress, and a series of unprecedented public protests over pollution show that the Chinese public is also beginning to engage serious environmental issues. Just as China takes on issues of conservation and stewardship, so should Americans better grapple with our issues of overconsumption and waste. Indeed, all human beings must learn to live more sustainably, but the world’s two largest economies bear special responsibility. All of us must take care not only of our homes, but the hallways, streets, creeks, lakes, rivers, oceans, atmosphere, and biosphere that make up our shared environmental home. And as we move forward together through separate acts of philosophical growth, economic development, and cultural change—it just might help us to understand a little bit about exactly where each of us is coming from.
Which, in the end, has been the ultimate purpose of this series of essays. Now that I am back in the U.S. and reintegrating into the strange traditions of my own culture, I conclude the year-long series with the sincere hope that they have contributed helpfully in some small way to our ongoing cultural dialog, conducted in hundreds of thousands of individual points of contact every day. Indeed, U.S.-China relations have never been more important than they are right now, for both nations—and because of the collective environmental, economic, and political impacts beyond our own borders, to all the peoples of the world. Together, with a little patience, humility, humor, and mutual respect, we can all continue building that bridge toward a brighter future, brick by individual brick.
After all, it was the ancient Chinese philosopher Lao Tzu—the founder of Taoism—who intoned around 500 B.C. that “a journey of a thousand miles begins with a single step.” What do you think would happen if all 1.8 billion Chinese and Americans took that single step at the same time?
Rethinking Sustainable Development, ELC Essay #12: Sustainability as Process: Seeing Climate Change Opportunities in Sustainability Approaches
Much has been said about the elusive nature of the term, “sustainability.” Some argue that the term is rudderless in the absence of some acceptable matrix for measuring success. This claim makes sense where we demand accountability in governmental decision-making. Some argue the term is inconsistent in different contexts or at different scales. This claim identifies inconsistencies in all sustainability programs that operate at or are justified in different scales (as they all do and all are). Others continue to believe the term invokes a liberal political agenda. Although the arguments supporting this claim are less apparent, there certainly has been an association between liberal democratic politics and the types of social and economic changes suggested by sustainability.
My sense is that most of the above discussions are irrelevant. Sustainability implies (at the very least) 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. This basic definition is more functional than its critics allow, but only if we approach the application of the sustainability framework with a little light-heartedness on our demands for substance and certainty. Indeed, we might consider whether sustainability is (or has ever been) so substance-driven (and in the meantime, we might reconsider whether we have any actual needs for such certainty). We might productively think of sustainability as a lesson in process. For instance, if we define “governance” as protection against systemic and catastrophic risks, sustainable governance involves the process of identifying known and unknown risks to our social, economic, and environmental dependencies and in formulating solutions to address each of these three legs of sustainability. Process here involves pluralism that is not necessarily democratic, precaution that is not necessarily presumptive, and flexibility that is not necessarily unprincipled. Another way of articulating the “process” point of sustainability is that we are all pragmatists when it comes to sustainable governance.
The present struggle over climate circumstances presents an illustration of this type of process-oriented thinking. On the one hand, climate change presents a context in which sustainability is unquestionably challenged. Climate change has dominated politics, science, conservation planning, and even education. Of course, it is easy to see that climate change provides talking points, models, and mandates in each of these areas because of its reluctance to conform to past models of equity, economics, and environment (not to mention morality, metaphysics, and ontology). It is also easy to recognize that the depth and range of climate-change impacts will uproot human livelihood and well-being in unimaginable ways. Water and food scarcity, loss of soil productivity and biodiversity, and uncontrollable spread of disease are common climate-change consequences. In the context of runaway climate change, it is arguable that the long-term, future-generation vision represented by sustainability is impractical to pursue and impossible to implement. Shifting baselines resulting from climate shifts challenge our present ability to match future needs with future environmental circumstances, thereby making it difficult to chart a course today. Island cultures will be lost to rising seas, and the Stern Report predicts the largest market failure we have ever seen. In this context, the salient but complex question on the usefulness of sustainability might be, “what are we trying to sustain?”
Yet applying sustainability to the challenges of climate change adds a process for understanding the character of the challenge without being subsumed by the breadth or rhetorical commitments of any particular principle. Sustainability is a framework for thinking and is not illustrated by facts so much as by goals. Sustainability demands that each decision reflect good governance on economic, environmental, and equity—regardless of whether we face the threats of climate change or the circumstances of climate stabilization. In the meantime, sustainability helps us understand the dynamics of human interactions with nature, human dependencies on ecosystem services, and social and cultural adaptations to environmental circumstances. Sustainability provides a framework for understanding why funding choices, human capital, cultural bias, and economic tensions become important in the context of particular challenges—like climate change—and a process for making good governance decisions.
-- Keith Hirokawa
Monday, December 17, 2012
Rethinking Sustainable Development, ELC Essay #11: Sustainability is the Answer--Now What was the Question?
On September 16, 2012, the National Ice and Snow Center announced a record-breaking loss of Arctic sea ice. That day also happened to be my 47th birthday. In my relatively short life, the Arctic has changed beyond imagination—and more change is coming. We have a growing litany of climate ills—wildfires, heat-waves, droughts, floods—each perhaps not directly attributable to climate change, but collectively harbingers of the emerging Anthropocene. Yet, rather than prompting any urgent response, each new climate disaster leaves us, in the words of Bill McKibben, “in the same position we’ve been in for a quarter-century: scientific warning followed by political inaction.” The explanations for our impotence in the face of overwhelming evidence that human activities are destroying the very fabric of life on Earth tend to focus on economics—too many powerful actors are making too much money from business as usual and therefore use their power to prevent change.
Without really challenging this basic outline, this essay suggests that this power-based narrative is incomplete. It leaves out the role that law and legal systems play in obscuring this power dynamic. The system by which we structure our decisions in a democratic society—the rule of law itself—actually prevents us from perceiving or confronting this more fundamental power conflict.
It is all too easy to dismiss sustainability as a contentless marketing label lost in a fog of meaningless verbiage. The marketplace of “sustainable” practices, technologies, and gadgets contains far too many gimmicks intended to maintain the cherished illusion that sustainability will just somehow “happen.” As a marketing ploy, sustainability encapsulates our fantasy a sudden technological breakthrough that will allow 7 billion, or 10 billion humans to live the typical American consumption-based lifestyle, only without destroying the Earth in the process. This belief that an external, game-changing solution will save the day is a dangerous fiction. There can be no sustainability when we start with the existing economy and then try to graft change onto its margins. If we needed proof that this approach has failed, is failing and will continue to fail, we need look no further than the rate of melting sea ice—which continues to accelerate despite decades of high-level international climate negotiations.
If we heed climate change’s call, we might begin to rethink sustainability—to take seriously its mandate to maintain, support, and hold. If so, sustainability can offer us a set of organizing principles by which to restructure the core, yet largely invisible, functions of production and transportation that precede the consumption on which so much current sustainability rhetoric focuses. To change these less visible aspects of society, we need to mobilize the power of the law as a framing institution. We can, if we choose, arrange our infrastructure and define our markets to cause sustainable outcomes. Embracing sustainability as our primary framing narrative would create space for new thinking about the ways to balance the power of the state, the market, and civil society.
Getting from here to there may be daunting, and sustainability may seem a slender reed on which to pin our hopes. Yet, the fundamental choices about balance that are sustainability’s essential feature have the capacity to offer us a new vision of the basic social contract—one that could transform human life on planet Earth. To make that happen, we do not need perfect conceptual clarity about sustainability—core indeterminacy is, after all, a definitional part of post-modern existence. Instead, we need to embrace sustainability’s potential for multiple, independent generation of ideas. A range of social, cultural, and political forces seek to frame sustainability through multiple disciplinary lenses. Each frame offers a different conception of the problem and its component parts. From this base, each approach proposes an alternative array of solutions along with the tools by which those solutions might be implemented.
This contest between alternative frames for sustainability has both declarative and constitutive significance. Framing does more than shape how we analyze the sustainability of any particular choice—which variables must be assessed, weighted, and evaluated; and which can safely be ignored. Framing also shapes the process by which we define what constitutes a choice (or a variable) in the first place. Once we acknowledge that framing matters—that disciplines have blind spots and path dependencies—it becomes clear that the very articulation of sustainability is itself a consequence of inevitable disciplinary limitations.
This insight is as liberating as it is daunting. It means that by posing our questions differently we might begin the process of uncovering hidden possibilities, thereby paving the way for a new understanding of the sustainability challenge and opening space for new responses. Perhaps a good beginning would be to shift from a conception of “the environment” to “Mother Earth”—which might help us rediscover a deeper, more profound relationship with the world we are rapidly recreating than the consumption-focused conception that currently predominates.
The future of our children, our species, and our planet hinges in the balance. The window for change is narrow—and closing. Unless we transition away from our consumptive, single-use society into a sustainable one, we will doom our children (as well as our future selves) to life in an increasingly impoverished, depleted, and inhospitable planet.
-- Rebecca M. Bratspies
Friday, 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
Thursday, 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
Wednesday, December 12, 2012
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
Tuesday, December 11, 2012
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
Friday, December 7, 2012
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
Thursday, December 6, 2012
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
Wednesday, 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
Tuesday, December 4, 2012
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
Monday, 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
Saturday, December 1, 2012
For the next three weeks, we are going to be doing something a little different here at Environmental Law Profs. We are going to be posting a series of 15 short essays all addressing the theme of sustainability and climate change. These essays that will appear each week day from now until Christmas are the product of discussion of the Environmental Law Collaborative.
A few hardy souls, which include some of the bloggers here at Environmental Law Profs, formed the Environmental Law Collaborative with the goal of engaging environmental law scholars in the thorny issues of the day. In the summer of 2012, scholars gathered in the woods of Connecticut to debate the value of scholarly research and the potential of legal literature to effect social and environmental change. With visions of Airlie House and armed with the principles of collaboration and the necessities of ecological fragility, the group sought to foster progress toward an adaptive, conscious, and equitable governance of actions that impact local and global ecologies.
This inaugural Workshop addressed the re-conceptualization of sustainability in the age of climate change. Climate change is forcing developments in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. Climate change, however, suggests that the context for sustainable decision-making is shifting. Accordingly, the Workshop focused on examining the re-conceptualization of sustainability in the age of climate change, including (but not limited to) framing the term in climate change discussions; reaching sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in adaptation and resiliency preparation.
The event produced an intensive and collaborative assessment of sustainability in the age of climate change. The essays that will be appearing this month examine the process of adapting the principles and application of sustainability to the demands of climate change, including (but not limited to) framing the term sustainability in climate-change discussions; coordinating sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in formulating adaptation and resiliency strategies. Furthermore, these essays also contemplate the role of law and legal systems in crafting effective climate-change-adaptation strategies and consider feasible strategies in the context of specific examples.
In the coming weeks, we will post contributions from Rebecca Bratspies, Michael Burger, Betsy Burleson, Robin Craig, David Driesen, Alexandra Harrington, Keith Hirokawa, Sarah Krakoff, Katy Kuh, Stephen Miller, Pat Parenteau, Jessie Owley, Melissa Powers, Jonathan Rosenbloom and Shannon Roesler.
Please tune in, comment freely and help us further the conversation on sustainability and climate change.
-- Betsy Burleson, Michael Burger, Keith Hirokawa and Jessie Owley
Thursday, November 8, 2012
China Environmental Experiences #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity
This essay, the seventh in my series about the environmental experiences of an environmental law professor in China, continues the discussion I began last time about how different underlying environmental philosophies held by American and Chinese people can lead to different approaches in environmental governance. (For the full background on this series, see February’s introductory post, March’s reflections on China and the Rocky Mountain Arsenal, April’s account of air quality issues in China, May’s exploration of water quality issues, and June’s review of safety issues with Chinese food and consumer products.) The previous essay addressed differences in the human relationship to nature, and this one addresses differing approaches to conservation, stewardship, and scarcity. The final installation will conclude with thoughts about some ancient philosophical roots of these differences.
I began the previous essay by acknowledging the delicacy of exploring underlying cultural differences that correspond to some the environmental experiences I’ve written about in this series. I noted how exquisitely careful one must be in discussing cultural differences, given the inherent shortfalls of any individual’s limited perspective and experience. Yet these differences relate so directly to the challenges of international environmental governance and intercultural understanding generally that I thought it important to discuss them, notwithstanding the hazards. So I offered the important qualification, which I share here once again, that:
My observations are inevitably, hopelessly entangled with my own cultural vantage point. My Fulbright year did not make me an expert on the inner world of Chinese culture—nor, frankly, did my earlier Harvard degree in Chinese language, culture, and history. My observations qualify as neither empirical scholarship nor serious ethnography, based as they are on casual research, personal experiences, anecdotes, and generalizations. But in hope that they may be useful in illuminating the philosophical roots of some gaps between Chinese and U.S. approaches to environmental governance, I share them here.
From there, I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development.
Conservation. Take our shared goal of conserving natural resources. Both countries are developing policies to discourage the waste of scarce natural resources, and on many fronts—such as its first steps toward nationally pricing carbon—China is outperforming the U.S. (Then again, China also built a coal-fired power plant a week in recent years, or more.) But behind good goal-setting, both countries face cultural-philosophical challenges at the level of policymaking and implementation.
On the example of climate policy, the American challenge has been achieving a consensus for rational policy. Part of the failure reflects an ideologically divided nation, but other parts reflect more widely shared American ideologies. For example, American economists have long argued that a national carbon tax would be more economically efficient than the cap-and-trade proposals that have had more political traction (to the extent that any GHG regulation had traction in Congress). Yet even when climate policy was a hot topic in Washington, the carbon tax was considered a dead-letter given the popular resistance to taxes that reflects a libertarian streak in the American cultural consciousness. The (relative) enthusiasm for emissions-trading schemes, wetland mitigation banking, and other market-based environmental reforms reflect widespread cultural regard for free market ideals—even when these ideals are more poetry than reality in operation. (There hasn’t been enough consensus to have translated those ideals into actionable climate policy, nor are they universally shared in the U.S.—but they were circulating widely when Waxman-Markey passed the House in 2009. [Photo courtesy of The Chicago Dope blog.]) Yet another cultural-philosophical hurdle for American climate policymaking—and one pointedly not shared in China—is the scientifically unexplainable skepticism with which increasing numbers of Americans seem to regard science itself (or, perhaps, scientists).
In China, where policymaking isn't usually the obstacle, challenges will likely have more to do with ground-level implementation. In addition to ongoing competition with economic development priorities and the problem of translating centrally formulated mandates into locally implemented policies, there is also the problem of widespread public indifference--and not specifically to climate issues. In present-day urban China (as was equally true in the U.S. a few decades earlier), you don’t see a lot of conservation-oriented behavior by average citizens—at least not without an immediate economic incentive or legal requirement. Solar water heaters are popular, but mostly because they are relatively inexpensive (and in some cases, mandatory). Buses, taxis and other municipal fleets increasingly run on publicly incentivized natural gas. Public transportation is very well-developed in comparison to American cities, but mostly because people are only just beginning to afford cars (and unprecedented levels of traffic are developing as China’s emerging middle class gets behind their own wheels).
Yet where the immediate incentives for conservation end, so in general does public compliance—and at least for now, without regard to the kinds of generational or educational dividing-lines that often accompany diverging conservation habits among Americans. China does have a nascent recycling program for deposit bottles and cans, but it appears nearly entirely staffed by those on the poorest margin, who sort through others’ trash looking for recyclables on which there is a deposit. Goodness knows we see the same phenomenon in American cities, but in addition to our homeless entrepreneurs, many Americans participate in curbside collection of non-deposit recyclables without sanctions or incentives. From kindergarten forward, most American children are inculcated with recycling values as a societal good until it becomes part of their social conscience (whether or not they always follow it).
In China, the government is attempting to do something similar, with an all-out public information campaign to usher China toward the "Circular" or “Recycling Economy”—the Chinese version of “reduce, re-use, and recycle” writ large. The effort encourages all citizens to see the relationship between their everyday behaviors and environmental well-being, buttressed by a national law that exhorts sustainable practices by local government and the businesses community (though with few enforcement provisions). In public places, the government frequently places signs reminding people that “environmental protection is everyone’s responsibility” (the accompanying one is from May Fourth Square in downtown Qingdao). Even the Tsingtao (“Qingdao”) Beer Brewery & Museum includes a full exhibit on sustainability (including a full exposition of Rachel Carson's Silent Spring), notwithstanding its weak connection with the general subject-matter of the museum.
It’s good that Chinese leaders are beginning to take sustainability seriously, because there is much work to be done at the level of consciousness-raising. Sustainability certainly goes beyond the simple act of recycling, but it is a good index of public attitudes. And despite valiant attempts at public recycling cans conjoined to trash cans, most Chinese make no effort to differentiate between them, and both are routinely filled to capacity with identical mixes of trash. There was no recycling program in my neighborhood or at my university, and no paper recycling of any kind (my students were completely baffled by my repeated efforts to find a place to recycle news and copy paper). And as in the U.S., homes are often over-heated and under-insulated, engines are over-polluting and smokestacks are under-scrubbed, fertilizers and pesticides overused, products over-packaged, etc. There are many miles before Americans should soundly sleep on these matters either, but on the whole, fewer Chinese consider them a problem. The sustainability movement has not yet taken hold among public attitudes--though it is beginning to with rising consciousness of the direct human health effects of egregiously widespread air and water pollution.
Stewardship. Of course, it is perfectly understandable that many Chinese are still more pre-occupied with survival than sustainability, and that other development priorities still preclude advanced sustainability initiatives. A lack of sophisticated curbside recycling should not be surprising in a country still wracked with abject rural poverty, and the government deserves praise for its efforts to promote the Recycling Economy alongside other development initiatives. But here is where the effects of underlying, environmentally-relevant philosophies add a special challenge to the task of Chinese environmental governance. It appears that there is a less entrenched cultural tradition of environmental stewardship here as there is in other crowded nations, like Japan or many in Europe. Indeed, one feature of Chinese culture that often stands out to foreign visitors is the striking way that most Chinese differentiate between the care they take of the environment inside their own homes and the care they take of the environment beyond their front doors. The contrast is stark, and suggests potentially significant implications for the challenges of environmental governance in general.
Inside the home, Chinese people take immaculate care to maintain cleanliness and beauty. Shoes are often left at the front door. Walls and shelves are adorned with enchanting art and objects reflecting the majestic culmination of thousands of years of traditional Chinese culture: calligraphy, porcelain, paper cuttings, shadow puppets, poetry, landscape paintings, and the like. But outside that front door, the duty of care appears to end. Common doors, hallways, and stairwells in Chinese apartment buildings receive little attention from residents; empty walls are often cracked with peeling paint and crumbling cement in seemingly abandoned hallways that open surprisingly into those beautifully maintained dwellings once you cross the inner threshold. This may reflect other collective action problems relating to commonly-owned property, but it also reflects a widespread sense that what happens beyond the inner threshold is someone else’s responsibility.
Crossing the outer threshold onto the street reveals an even more dramatic difference. In many cities, trash can be found everywhere—heaped on the sides of buildings, and littering not only streets but mountain trails and otherwise beautiful beaches. Problems with consumer-product and water quality that I have previously written about feed into the overall trash problem. Easily-breakable products and legitimate fears of unclean re-usables compound the prevailing urban culture of disposability, leading to a stream of waste that is often unceremonially piled up around neighborhoods. A broken toilet and shards of glass have been piled outside our building for months, and it is only one of many such piles.
Here in Qingdao, our neighborhood market area is hosed down by a street cleaning truck every morning. I was surprised to hear this, because I would not have guessed this daily cleaning from looking at them in the afternoon—until I saw what they looked like in the morning beforehand: strewn with fish guts, corn husks, banana peels, discarded vegetable parts, used cooking oil, and every other kind of refuse that you can imagine left behind after the daily rush of morning street vendors. People discard these things on the street, knowing that the city will clean it up—and the city does a faithful job. But the hose can’t get to everything, and a fair amount of refuse accumulates in gutters and potholes. And there is no street-cleaner for the narrower village streets, forest parks, or beaches.
Just as in the U.S., some Chinese individuals admirably take it upon themselves to clean up after their fellow citizens. Even as I am dismayed to see so much trash along the mountain trails behind my neighborhood, I am heartened to see the small signs left by members of private groups who occasionally clear the area of litter. The China Daily reported movingly over the winter on the efforts of an elderly woman in Beijing who makes it her personal task to comb trash out of Tiananmen Square every day.
Nevertheless, while some conscientiously pick up their own trash and even that of others, many others routinely drop trash without thinking much about it. In many places, it’s a culturally permissible thing to do. We ourselves are trying to re-educate our four year-old to do otherwise after we watched him proudly demonstrate that he had learned at school how to peel his own banana—and then dropped the peel on the ground, as though it had always belonged there. Perhaps it came naturally to him to just drop it on the ground without thinking about it, because he sees this happening around him so often. Some leave water bottles and other garbage behind in buses and taxis, too—which is also common in the U.S. But what I haven’t seen outside China are the taxi drivers who clean up what passengers have left behind by simply scooping the trash out of their car and into the gutter of the street where they are parked.
Littering is a human cultural problem throughout the U.S. and the rest of the world, demonstrated by American smokers who continue to discard cigarette butts indiscriminately, long since cultural tolerance for this waned after the 1970s environmental movement. But in China, cultural permission to discard waste in public places extends beyond water bottles and cigarette butts, complicating the environmentalist message. Consider the entrenched Chinese tradition of encouraging children to use public streets while toilet-training. Chinese toddlers are weaned from diapers early—a great environmental good, given the obvious environmental problems associated with disposable diapers. In the U.S., for example, where the average baby goes through about 8,000 diapers, parents buy as many as 40 million disposable diapers a day (or more), most of which end up in landfills where they will hold their mummified loads for the next 500 years. But in China, toddlers wear pants with a split bottom, enabling children to squat to poo or pee wherever they happen to be when the urge hits. Which leads to different kinds of environmental problems.
I should be used to it after nearly a year, but I am always still surprised to emerge from our apartment to find a parent helping a squatting child unload beside the front gate. Small piles of poo on the sidewalk are commonplace, so we walk carefully, eyes cast down. I’ve seen parents allow their children to relieve themselves into large potted plants at airports. I once saw a child have an accident in the aisles of a big-box store, and while the child was immediately whisked away to be cleaned, the resulting pile was left behind for others to avoid. It’s not uncommon to see men urinating along streets and sidewalks, notwithstanding nearby public toilets erected to accommodate neighborhoods without indoor plumbing. A related tradition engaged in by both men and women is that of spitting on the streets and sidewalks, after expelling the product from deep within troubled-sounding lungs.
With so much Chinese ground thus anointed, the outside environment is generally (and correctly) viewed as a terribly unclean place. The American “five-second-rule” is humorously gross in the U.S., but unimaginable in China—because even indoor floors are trod upon by shoes that have walked through countless stages of decomposing goodness-knows-what. A Chinese student, eyes wide with horror, once asked me whether it was true that American students sit or even recline on campus lawns between classes. I laughed at the time, but months later would find myself cringing as a group of visiting American students sat to rest on the gracious exterior stairs of a provincial museum, and nothing I could say would dislodge them. Similarly, Chinese friends would gasp when I instructed my toddler to hold stair handrails, worried about what hands had been there before him, and what those hands might have touched. Their view—which I ultimately adopted—was that it was better for him to fall down the stairs than to allow whatever was on those railing onto his thumb, which inevitably drifts toward his mouth. By necessity, Chinese parents wean thumb-suckers incredibly early (and by whatever means necessary).
Here’s the thing. If you see the world outside your own home as a legitimate place to offload waste—even E. coli-laden human waste—how can this not extend to greater environmental management? If it’s culturally permissible to drop litter (and worse) on the street or the beach, why wouldn’t it be okay to release manufacturing waste into the river, or pipe it into the air? The potential implications for environmental law are obvious. Because it’s not just an economic challenge for the government to convince industrialists not to pollute; in some important way, it’s also a cultural challenge. Professional polluters aren’t just doing it because it’s cheaper than the alternative. They are doing it because—at some level—it’s what they have always done, and without any moral misgivings.
Scarcity. The legacy of scarcity in an era of rapid economic development also factors in to environmental philosophy. Indeed, a discussion of scarcity provides an especially poignant point of contrast between Chinese and American approaches that reflect their different stages of economic development.
Let’s start by acknowledging the obvious: Americans are fortunate to have lived through a period in which most have not endured the scarcity regularly experienced by people in the developing world, and they should do better to remember that. My family and I are often ashamed by the patterns of conspicuous consumption in the United States, where ever bigger cars, houses, and other forms of cultural bling are marketed to consumers who enjoy far more than their fair share of world resources. Yet this year, we have also been perplexed by the contrasting patterns of consumption and waste that we have witnessed in China—from the trash piles of used disposables to the missing efforts to maintain buildings against the effects of weather and time. Especially in a developing country, where resources are comparatively scarce, why not conserve and maintain? Why not fix old things, rather than just tossing them aside for a new ones?
In puzzling over this question with some environmental faculty at Wuhan University, I learned how a nation’s developing status can also push in the opposite direction. One spoke of an experience decades earlier, in the pre-PowerPoint era, when he was using an overhead projector with transparencies to accompany his lecture. Something like a filament in the ancient projector blew, so everyone waited while the university repairman was called in. Using tweezers and tiny metallic wire, he got it working again. The man knew how to fix virtually anything—because he had to. At the time, there was no alternative but to fix things, over and over again. But now, in this age of emerging wealth, perhaps there is national pride in not having to fix things this way. For some, he suggested, it is a sign of growing status to be able to toss out the old rather than fix and maintain it indefinitely.
Similarly, several students once explained to me that their parents absolutely forbid them from licking their fingers when they ate—a good habit that they adhered to even at the local Kentucky Fried Chicken, a popular foreign restaurant chain in China. At first, I assumed this was a matter of good hygiene, and I regretted the manners my own child displayed (after all, KFC’s American slogan is “finger-lickin’ good!”). But I later learned the back-story: that these parents had come of age at a time where they sucked every last drop of grease from their fingers because there simply wasn’t enough food, and not a calorie could go to waste. Now, when their own children licked a tasty finger over a full plate of food, these parents would passionately bat the sticky fingers away from little mouths, proudly reminding them that they would never have to lick their own fingers for nourishment. They were not to do it, because doing it symbolized a desperation that the nation had triumphed over (at least in these urban areas) through economic development.
The cultural memory of extreme scarcity runs deep in China, and it is reflected in other curious cultural differences between China and the West. One possible example that often confuses foreign visitors is the way that Chinese tend not to queue. There is not a strong tradition of waiting in line for goods or services—so, for example, when the bus arrives, the crowd simply surges the door and people gradually push their way through, one by one. There are something like lines at street food stalls, but rules are relaxed and there is no hard order to them; if someone wants it badly enough, they can just insert themselves close to the counter. Even at the airport, as people wait to board the plane at the gate, many will queue, but others force their way through to the front as the group moves toward the plane. My Western sensibilities were often jarred by this behavior, but my Chinese friends mostly tolerated this with either patience or indifference. (Though I discovered how fully I had crossed over while escorting that delegation of American students through Beijing, frustrated by their halting efforts to politely advance through crowds while I soared through cracks and openings like a native…)
Why no tradition of lining up? One Chinese lawyer explained to me that this is just another response to the nation’s long history of extreme scarcity: in a world where there is never enough to go around, people long ago learned to grab for what they need. This tradition is changing with new cultural developments and as problems of scarcity ease in China, but I have occasionally wondered whether it could lead to intercultural confusion in international affairs, such as negotiations over hotly contested resources in the Arctic or South and East China Seas. That said, I am very self-consciously making these observation as an indirect beneficiary of the former American tradition of “manifest destiny”—our most spectacular example of not respecting a first-come, first-served ethic of access to natural resources. So I suppose that both of our cultures—like all of them really—are on an ongoing path of philosophical development…
[To be continued in the final installment, in which I’ll conclude with some thoughts about the relevance of ancient philosophical traditions.]
November 8, 2012 in Asia, Climate Change, Current Affairs, Governance/Management, International, Law, Legislation, Sustainability, Toxic and Hazardous Substances, Travel, US | Permalink | Comments (2) | TrackBack (0)
Thursday, October 25, 2012
On November 14-15, 2012, the Marine Affairs Institute at Roger Williams University School of Law is putting on its 9th Bi-Annual Marine Law Symposium. This year's theme is...climate change! (Shocking, right?) But even with all the attention given to climate change at similar events, this symposium fills an important gap: The symposium will specifically address climate change's impacts on the oceans, and the ways in which coastal and ocean law and policy are (and are not) responding. We have scientists, policymakers, practitioners, and a good helping of legal scholars to talk about ocean acidification, rising sea levels, state and munipal adaptation efforts, the implications for the maritime industry, and emerging issues in the Arctic. You can find the agenda here. And here is the description:
This Symposium will examine the laws and policies that are implicated as climate change impacts coastal and ocean environments. The land-sea boundary is shifting, ocean water is warmer and more acidic, fluctuating weather conditions and storms increasingly impact coastal communities, and the melting Arctic ice cap raises new international boundary and resource exploitation issues. These changes trigger many corresponding legal considerations for natural resource managers, planners, attorneys, insurers and law enforcement entities. At this Symposium, experts and legal practitioners from governmental bodies as well as private industry, academia and non-profit organizations will explore the state of the law, how disputes have been handled to date, and what may be on the horizon. Attendees can expect to walk away with the law and policy tools necessary to engage in these rapidly changing issues, and an understanding of the natural and social science behind changing coastal and ocean conditions.
You can contact me if you have any questions. And I hope to see you in Bristol!
- Michael Burger