John C. Dernbach

Sustainable Development and its Discontents

Sustainable development (or sustainability) is a decision-making framework for maintaining and achieving human well-being, both in the present and into the future. The framework requires both consideration and achievement of environmental protection, social justice and economic development. In that framework, environmental protection must be integrated into decisions about social and economic development, and social justice and economic viability must be integrated into decisions about environmental quality. First endorsed by the world’s nations in 1992, this framework is intended to provide an effective response to the twin global challenges of growing environmental degradation and widespread extreme poverty. Sustainability provides a framework for humans to live in harmony with nature, rather than at nature’s expense. It may therefore be one of the most important ideas to come out of the 20th century. In the last two decades, the framework has become a touchstone in nearly every economic sector and at every level of government, unleashing an extraordinary range of creativity in all of those realms. Sustainable development is having a significant effect on the practice of law and on the way in which laws are written and implemented. Understanding the framework is increasingly important for law makers and lawyers. As sustainable development (or sustainability) has grown in prominence, its critics have become more numerous and more vocal. Three major lines of criticism are that the term is “too boring” to command public attention, “too vague” to provide guidance, and “too late” to address the world’s problems. Critics suggest goals such as abundance, environmental integrity, and resilience. Beginning with the international agreements that shaped the concept of sustainable development, this Article provides a functional and historical analysis of the meaning of sustainable development. It then analyzes and responds to each of these criticisms in turn. While the critics, understood constructively, suggest ways of strengthening this framework, they do not provide a compelling alternative. The challenge for lawyers, law makers, and others is to use and improve this framework to make better decisions.

Can Shale Gas Help Accelerate the Transition to Sustainability

The sudden and unexpected development of shale gas has the potential to accelerate or hinder the transition to sustainability, depending on how it is handled. Sustainable development is a useful evaluative framework for shale gas development. It would have us analyze its environmental, social, economic, and security dimensions at the same time, and look for ways to make all four dimensions mutually reinforcing. Analyzing a broad range of issues, this article asks, and suggests answers to, the question of whether, or how, shale gas production can help accelerate the transition to sustainability.

Achieving Early and Substantial Greenhouse Gas Reductions Under a Post-Kyoto Agreement

This article explains why policy makers should seriously consider substantial early reductions in greenhouse gas emissions as a part of any post-Kyoto framework, and sets out suggested elements of a framework for early action in a post-Kyoto agreement. Substantial early reductions are needed because of the growing urgency of the climate change science, the precautionary approach identified in the Framework Convention on Climate Change as a decision-making principle, the fact that cost-effective measures are now available, and the significant non-climate benefits (security, economic, social, and environmental) that can be achieved by implementing them. As a practical matter, too, long-term greenhouse gas emissions are virtually impossible without short-term reductions. The Convention also includes ethical obligations on developed countries to take leadership in addressing climate change and to reduce impacts on developing and vulnerable countries - which require early and substantial action. The suggested framework for early action includes a short-term goal for stabilizing global greenhouse gas emissions, involves both developed and developing countries, and includes an agreement to deepen the emissions reduction commitment of the Kyoto cap-and-trade program. In addition, the parties should negotiate separate agreements concerning particular policies or economic sectors. These additional agreements make substantial short term emission reductions more likely, or increase the size of those emissions reductions. This appears to be true regardless of how the cap-and-trade part of the agreement is structured. The article proposes a process for identifying, agreeing to, and implementing policies and measures that will maximize the benefits resulting from short-term action. This legal structure would supplement, not replace, any system for achieving long-term goals that emerges from the Bali Action Plan.

Legal Education for Sustainability: A Report on US Progress

This article is an overview of sustainability efforts in US law schools. It describes two sets of drivers for these efforts—inside and outside the legal profession. Drivers from within the legal profession include the American Bar Association as well as several state and local bar associations; law firms and other law organisations; and current and prospective law students. Drivers from outside the legal profession include clients, universities and colleges, nongovernmental organisations, and government. This article then describes what US law schools are now doing in the areas of curriculum, research, buildings and operations, community outreach and service, student life, and institutional mission, policy and planning. More generally, it suggests that law schools need to play a leading role in the national and global effort to achieve sustainability.

Making Economic Development and Job Creation Drivers of Serious Action on Climate Change and Environmental Protection

One of the most longstanding narratives in environmental law and politics is the alleged necessity of choosing between development and environment. The narrative, based on conventional development, has a built-in zero-sum game — development or environment. A competing narrative, which has been slowly gaining supporters over several decades, is built on the idea of sustainable development — development and environment. The conflict between these narratives goes to the heart of the divide on environmental policy between the national Republican Party (which tends to embrace conventional development) and the national Democratic Party (which, without a lot of fanfare, has tended to embrace sustainable development). The recent election of Donald Trump to the presidency puts this conflict in stark perspective. This essay, which is part of the ongoing work of the Environmental Law Collaborative, argues that the real choice is not between development and the environment. The real choice is between conventional development and sustainable development. It also argues that protecting the environment and avoiding the worst effects of climate change require use of the sustainable development framework to give a higher priority to economic development and job creation.

Why Lawyers Should Care about Sustainable Development

This essay aims to persuade the U.S. environmental law profession that sustainable development is important to them, in their various roles as advocates, counselors, and citizens. Sustainable development is increasingly important to their clients, businesses, causes, or communities. As federal, state, and local governments move to sustainable development, they will need the guidance of the legal profession in the fundamental law reform that is required, including not only better environmental statutes but also the widespread adoption of new legal instruments such as economic tools, tax laws, property laws, and land use and planning authorities. Corporations will need the service of counsel to embrace the new, more comprehensive system of regulation, incentives, and contracts, including implications for compliance and liability, as well as opportunities for profit. Citizen organizations will need the best possible lawyering to ensure that implementation protects the public interest. Environmental lawyers should also care because sustainable development is important to the future of America. Sustainable development is squarely within the U.S. national interest, as traditionally defined â014 in our economic interest, in our social interest, in our security interest. The United States is by far the worlds largest consumer of energy and materials, and the worlds largest polluter, so it is impossible to achieve sustainable development on a global basis without U.S. participation in a broad international effort, including implementation across American society. In turn, U.S. economic health depends on foreign resources and foreign markets, including, importantly, those in the poorer countries. Given the threat to our nation and our planet, however, sustainable development may require more than participation by attorneys; it may imply a new professional duty.