The record-breaking high temperatures of last summer, exposing hundreds of millions of people in the United States and around the world to unsafe levels of heat, have made it even clearer (if additional clarity were required) that more needs to be done to sharply reduce greenhouse gas emissions, adapt to unavoidable climate change, and move toward a sustainable society. A great many Americans—and those living in other countries—have a sense of helplessness about climate change. Among most in the United States, and especially younger people, climate anxiety is now common.
Quite plainly, the environmental statutes so many of us have advocated and drafted, and now help implement, counsel clients about, and litigate, are no longer enough. We are in this and other global predicaments because society continues to put economic development ahead of environmental protection. The result, says Renato Valencia, a forest ecologist in Ecuador who studies oil drilling in the Amazon, is that “nature always loses.” And it is not just nature that loses; environmental degradation also hurts people who are dependent on the affected environment, as well as future generations.
Encouragingly, Americans largely agree that something needs to be done. Nearly 7 in 10 favor the country taking steps to become carbon-neutral by 2050. The critical and essential question for all Americans is, What can we do that will actually matter? The good news is that there is a lot we can do, but it comes with a catch. We—meaning all of us, not just the government—need to do it. And again, Americans agree: two-thirds believe the job should be done not just by government, but by companies and private citizens alike.
On paper, at least, all countries now support sustainable development (or sustainability for short)—a decisionmaking framework first endorsed by the United States and other countries at the U.N. Conference on Environment and Development in Rio de Janeiro in 1992. As the name of the conference suggests, this decisionmaking framework integrates and reconciles human development—not only economic development but also social well-being, including eradication of extreme poverty, hunger, and gender and racial discrimination—with environmental protection. Its ultimate aim, in the words of the Rio Declaration, the statement of 27 sustainable development principles adopted at the conference, is that humans lead “a healthy and productive life in harmony with nature.” Other key principles stated in the declaration include intergenerational equity and a precautionary approach to environmental protection when there is significant scientific uncertainty. And all of this is built on a foundation of national security. But the Rio summit was not just about defining sustainable development; the United States and other countries agreed to an ambitious action plan for achieving sustainability within their boundaries, known as Agenda 21.
As this article explains, sustainable development grows out of environmental and natural resources law, but it is different in many ways. In our experience, American environmental lawyers, like most citizens, see sustainable development through the lens of environmental law and the overall policy it represents, and thus miss the transformative potential of this framework. Sustainable development also does not have the kind of heft or visibility environmental law does because so much of it comes from international conferences and agreements that are not considered “law.”
If the United States remains stuck in seeing sustainability largely or entirely through the lens of environmental law, or even environmental and energy law, we are not going to get the environmental protection we need. Nor are we going to get the kind of economic development, social wellbeing, and peace and security that will be essential in the decades to come. While other countries, such as many in Europe, as well as Japan, closely focus on coordinating across environmental, economic, and social goals, our own myopia will likely put the United States at a long-term competitive disadvantage.
What needs to be done to achieve a sustainable America? This article describes the many specific recommendations for action published by the Environmental Law Institute over the three decades since the Rio summit. They make clear that while all of us have a role to play in achieving a sustainable society, regardless of where we live, what kind of work we do, and whatever our skills and abilities, environmental lawyers in particular need to reimagine ourselves as sustainability lawyers.
Sustainable development grew out of environmental law. Attendees at the seminal 1969 Airlie House conference that helped create the field of environmental law (and the Environmental Law Institute as well as the Environmental Law Reporter) recognized “the need for legal reform based on far-reaching changes in social, economic, and political thought” to achieve “a world made livable for future generations,” according to attendees Malcolm Baldwin and James Page Jr.
Congress adopted what amounts to a national sustainable development policy two months after Airlie House. The National Environmental Policy Act of 1969 states that it is the “continuing policy of the federal government, in cooperation with state and local governments, and other concerned public and private organizations . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” This policy, which is still in place, captures key elements of sustainable development.
NEPA also requires federal agencies to prepare an environmental impact statement prior to conducting major federal actions that may significantly affect the quality of the human environment. Prior to this law, federal agencies more or less ignored environmental impacts in their decisionmaking; after NEPA, they had to understand and consider them. This is a key form of integration in decisionmaking, and the Rio Declaration endorses it.
Public participation, which is built into NEPA and other environmental laws, can also further integrated decisionmaking. Under these statutes, the public gets notice of permit applications and proposed projects, gets an opportunity to comment on them, and can file a citizen suit to enforce the law in appropriate circumstances. This has helped to open the traditional binary government-industry relationship to include additional perspectives, particularly on the environmental and social impacts of a proposal. In addition, it invites other federal agencies as well as tribal and state governments to the table to share their insights and coordinate.
More basically, in spite of its name, the objectives of environmental law are not just environmental protection. As Celia Campbell-Mohn wrote in ELI’s 1993 treatise Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law From Resources to Recovery, the most important objective of environmental law is protection of human health. Other objectives, she explained, include efficiency, national security, preservation for aesthetics or recreation, sustainability, intergenerational equity, community stability, biocentrism, and pursuit of scientific knowledge and technology. Environmental justice is also a key goal. When we use this list to teach environmental law, the students invariably see social, economic, environmental, and even security dimensions in each of these objectives.
While there are elements of sustainability in environmental law, sustainable development is quite different. Most obviously, sustainable development is a normative framework for changing law and policy; environmental law is actual law. And unlike NEPA, sustainability is not just considering the environment as part of the decisionmaking process; the environment must actually be protected. Sustainable development differs from environmental law in a variety of additional ways.
First, and most fundamentally, sustainable development would modify the law of development by making it both environmentally and socially sustainable. This body of law may seem relevant only to developing countries, but this is incorrect. The law of development, in the United States and the rest of the world, is the law that supports economic development—including tax law; financing law; natural resources law; direct and indirect subsidies; zoning; and the laws enabling the wide variety of financial assistance provided by federal, state, and local governments for various development projects. The law of development is not recognized as a field in the United States. There is no text or treatise that collects or analyzes the U.S. law of development. But economic development agencies throughout the country, and the lawyers who represent clients interested in their assistance, know it well.
Development, we should add, also has a distinct social or human rights component aimed at fostering human dignity. Indeed, the famous Brundtland Commission definition of sustainability—"development that meets the needs of the present without compromising the ability of future generations to meet their own needs"—is based on that understanding.
Fossil fuel subsidies are a commonly cited example of unsustainable development. The alleged conflict between jobs and the environment, J. William Futrell, then ELI’s president, wrote in 2004, tends to “arise in sunset industries whose activities are economically viable only because of indirect or direct government subsidies that undermine sustainability.” In 2009, ELI published a ground-breaking study revealing that over 70 percent of federal energy subsidies from 2002-08 had gone to fossil fuels.
Sustainable Environmental Law was the first serious effort in the United States to move sustainable development from principles to law. Edited by Campbell-Mohn, Futrell, and Barry Breen, and published only a year after the Rio Summit, it examined holistically the law related to many different kinds of economic activity. There are separate chapters on such topics as timber; agriculture; fisheries; solar, wind, and geothermal energy; energy efficiency; coal; metals; and chemicals. The treatise examines each of these through their entire life cycle—from “resource to recovery.” The laws discussed in the three stages of the life cycle are resource extraction, resource use, and resource recovery.
“When the various laws that affect each industry throughout the cycle are analyzed in this way,” Futrell wrote later, “it becomes readily apparent that our laws governing development and our laws governing the environment often act in conflict.” While environmental laws were attempting to reduce environmental degradation, the book’s authors found, other laws were directed at exploiting these resources as rapidly as possible. The treatise exposed on a systematic basis what Futrell described as “the vast structures of cowboy economics, policies, and laws that militate for rapid exploitation and wasteful use of resources.” Changing these laws, the treatise’s authors found, was essential to creating the law of sustainable development.
And instead of resource recovery, the third stage, the book’s authors saw mostly waste disposal. In addition, they wrote, “No law currently addresses all three phases together.” The book’s focus on specific economic sectors is a significant contribution to what we now describe as the circular economy.
In his speeches and other writings, Futrell cautioned against getting hung up on the definition of sustainable development, which he likened to getting hung up on the definition of justice. Rather, he said, “The sense of injustice is the foundation of crafting just laws. In a similar fashion, sustainable development law would prevent or remedy unsustainable behavior.” Of course, many are uncomfortable with, and even averse to, the “development” part of sustainable development, principally because of development’s history of anti-environmental effects. But ignoring the law of unsustainable development simply perpetuates it.
Rewriting development laws to discourage unsustainable activities is one thing; encouraging sustainable development is another. The Inflation Reduction Act of 2022, perhaps the most significant piece of climate legislation thus far adopted in the United States, provides an example. Instead of requiring increased use of renewable electricity, it provides $369 million in tax and other incentives for renewables. By making clean energy cheaper, it will encourage more rapid expansion of renewable electricity as well as the renewable energy industry. It is sustainable development legislation.
Sustainability also addresses the wide variety of issues that, for whatever reason, are not addressed by environmental law. It does so, in large part, through the use of private law. Sustainable development principles are being translated into private law through certification programs (green building, sustainable forestry), private supply chain efforts, and the like. While these private laws account for a vast amount of the sustainable development work that is now being done, they are largely invisible to the public and others who see environmental law only as public law. Private law also has a critical advantage over public law: it can be adopted and implemented even when polarized politics prevent the adoption of public law.
Private law also brings with it an embrace of sound management principles, such as setting goals, deciding upon metrics to measure progress toward these goals, and then executing and reporting against them. As described below, sustainable development calls for using explicit goals and metrics to help measure progress or backsliding. Interestingly, when ELI in 2015 surveyed environmental law reinvention efforts, it found that adoption of such management techniques was a common recommendation for the improvement of environmental law.
In addition, as noted earlier, sustainable development has a social dimension that overlaps with, but is distinct from, environmental protection. Sustainable development has included an anti-poverty agenda from the beginning. The Rio Declaration describes “the essential task of eradicating poverty as an indispensable requirement for sustainable development.”
The social dimension is most explicitly stated in the 17 Sustainable Development Goals adopted by the UN in 2015—notably, with the support and approval of the United States. Goals 6 (“Clean Water and Sanitation”), 13 (“Climate Action”), and 15 “(Life on Land”) are among those with a recognizable environmental dimension (though not solely environmental). By contrast, Goals 1 (“No Poverty”), 2 (“Zero Hunger”), and 10 (“Reduced Inequalities”) are distinctly and primarily (though not entirely) social. And Goals 16 (“Peace, Justice, and Strong Institutions”) and 17 (“Partnerships for the Goals”) are foundational to all of the goals. As U.S. environmental laws largely focus on protecting human health, it is critical that they be accompanied by efforts to assure human well-being in other ways. These goals, like economic, environmental, and social prosperity, are interdependent—achievement of one requires achievement of all.
A final key difference is the role of citizens and other stakeholders. Environmental law authorizes public participation in governmental decisions, which implies the primacy of government in its implementation. Governments are important to sustainable development as well, but the framework emphasizes the importance of all citizens and stakeholders. They are not simply allowed to participate in governmental decisions; they (we) are asked to make their (our) own sustainability decisions.
The Rio Summit and subsequent international conferences have produced action plans for sustainable development. The emphasis on action led one of us (Dernbach), back in 1997, to begin what has become a series of five comprehensive reviews of U.S. sustainable development efforts since Rio, all published by ELI. These reviews address two questions: What progress is the United States making in its sustainable development commitments, and what more needs to be done? This series is the only effort of its kind in this country.
The 1997 review, conducted with the help of Widener law seminar students, showed isolated examples of individual, municipal, state, and corporate leadership on sustainable development across a broad range of fields, but nothing systematic. This review was published as an article in ELR-The Environmental Law Reporter; the other four are books written by experts from a wide range of disciplines and backgrounds and published by ELI Press.
The first two books showed growing if modest progress. Stumbling Toward Sustainability was issued on the 10th anniversary of the Rio Summit. It showed growing but limited leadership by some individuals and organizations “in every area of American life.” The next book, Agenda for a Sustainable America, was published after the 15-year anniversary. It identified significant and accelerating progress in six sectors: local governance, brownfields redevelopment, business and industry, higher education, K-12 education, and religion and ethics. Each of these books made recommendations for future action.
The third book, Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, was published on the 20-year anniversary of the Rio Summit. Instead of focusing on specific recommendations for specific topics, as the two previous books had, this one was focused thematically on how to accelerate progress on sustainable development, and at a larger scale, as discussed in more detail below.
The SDGs were adopted three years later, in 2015, and were intended to accelerate the transition to sustainability by translating its broad agenda into specific objectives to be achieved by a specific date (mostly 2030). The 17 goals include 169 specific targets. For example, Goal 11 (“Sustainable Cities and Communities”) is to be implemented by achieving 10 targets. Two of these are ensuring “access for all to adequate, safe, and affordable housing and basic services,” and providing “access to safe, affordable, accessible, and sustainable transport systems for all.” There are also indicators to measure the achievement of these goals and targets. The SDGs do not change the centrality of integrated decisionmaking to sustainable development; the basic idea is that progress on any given goal or target should also advance progress on other goals or targets across the social, environmental, and economic spheres.
The fourth and most recent book was published this year. Governing for Sustainability, which both of us edited, reviews U.S. progress (or the lack of it) based on the SDGs. While the United States continues to make some progress toward sustainability, the book concludes, there have been many setbacks (Covid-19, economic recessions, the Trump administration, and the Russian invasion of Ukraine) and much remains to be done.
The book makes some 500 recommendations for federal, state, and local governments, as well as nongovernmental organizations and the private sector. In doing so, it translates the targets and indicators in the SDGs to an agenda that can usefully and constructively be applied in the United States. An index of recommendations organized by actor allows advocates and policymakers to see all relevant recommendations in one place, regardless of the chapter in which they were made.
This U.S. agenda provides a basis for accelerating the transition to a sustainable society. Achieving that transition is often described as a journey, but the rapid pace of unsustainable development, as exemplified by growing climate disruption, makes another analogy more appropriate. The transition is more like a car chase in a James Bond film; it is not enough to go fast; we must go much faster than the car we are chasing (unsustainable development and its effects). Accelerating our speed to some degree isn’t good enough if we can’t catch that car. Sadly, there is considerable evidence that climate and other conditions are getting worse faster than we are acting. In the language of a journey, the destination is getting farther away every year.
How do we accelerate the transition to a sustainable society? There is no single answer, no silver bullet. But a suite of answers emerge from the Sustainable Development Goals themselves, the U.S. experience with sustainable development over the past several decades, and the ideas of the contributing authors to this most recent book.
The SDGs, if taken seriously, can accelerate the transition. In a variety of contexts, targets and timetables are extremely helpful tools for accomplishing change at an accelerated rate. Specific targets and timetables are particularly important for sustainable development because of the wide variety of public and private decisionmakers whose activities need to be coordinated, or at least be consistent. Political and other leaders come and go, but properly established targets and timetables remain in place.
The recommendations in this book further each of the four approaches for accelerating the transition described in 2012.
First, when more-sustainable options are more attractive than others—whether because they are cheaper, work better, taste better, or achieve greater benefits—these options are more likely to be widely adopted. Green building, locally sourced food, energy efficiency, and renewable energy are examples. These more attractive options also include new laws and decisionmaking tools. The legal and policy tools provided in this book are intended to achieve progress toward more than one goal, which means that they should have multiple benefits.
Second, the 2012 book argued for the use of a greater variety of legal and policy tools, including economic development, and repeal of laws that foster unsustainable development. Governing for Sustainability makes that point abundantly clear, recommending changes in every major category of public law, including not only environment and energy law but laws concerning civil rights, criminal justice, and food assistance. It also addresses the basic laws needed for effective governance.
Third, to accelerate the transition to sustainability, public and private governance must be visionary (because it has a sustainable society as its objective) and pragmatic (because it is grounded in political reality). The legal and policy changes recommended in the 2012 book required such governance. The SDGs could provide a foundation for that by setting out an agenda that is independent of political parties and that does not vary from one election cycle to the next, in no small part because they focus on improving quality of life for all.
Many multinational corporations already weave the SDGs into their own sustainability efforts, which is both encouraging and a warning to American environmental lawyers ignorant of the SDGs. Of course, there are strong headwinds against integrating this approach into public governance. These include lack of political leadership, political polarization, and a focus on short-term problems. None of these obstacles is insurmountable. The recommendations in this book, and using them in a concerted way to undertake and track progress toward the SDGs, can help in bypassing or overcoming them.
So can the fourth and final approach: a stronger and more vibrant American sustainability movement. This movement exists in the great many local, state, organizational, and sector-specific sustainability activities that are already occurring. Los Angeles, Houston, and Baltimore are working to achieve the SDGs. The state of Hawaii has started the Aloha+ Challenge, a statewide public and private effort to achieve the SDGs by 2030. Many American businesses are participating in achievement of the SDGs, including through the UN Global Compact, a voluntary nonprofit organization that describes itself as the “world’s largest corporate sustainability initiative.” The insights and energy of corporate leaders have the potential to dramatically scale the sustainability movement within the United States.
In the introduction to Law and the Environment, the compiled works from the 1969 Airlie House conference, Baldwin and Page note that “the magnetism of the environmental revolution has given many lawyers a soul” in what was often a soul-less profession. Today, we live in a time of diminishing hope for the future and need an updated clarion call for direction. Sustainable development, including the SDGs, provides an alternative and more hopeful vision of what the future could bring, and that future begins with each of us.
The environmental law profession has, in many ways, been building toward this moment for decades. The “right” place to start is where we are, with what we are doing, and with the particular problems or tasks in front of us. The works described in this article provide a point of departure for how to do these things to achieve a more sustainable future for all.
