Beyond compliance: sustainable development, business, and proactive law.

Author:Berger-Walliser, Gerlinde
Position:I. Introduction through IV. The Concept of Proactive Law, p. 417-441
  1. INTRODUCTION II. BACKGROUND ON SUSTAINABLE DEVELOPMENT A. A Short History of the Sustainability Paradigm B. The "Three E's" of Sustainability III. BUSINESS AND SUSTAINABLE DEVELOPMENT A. Economic Activity as Source of Ecological Crises B. Business-Wide Sustainable Development Initiatives IV. THE CONCEPT OF PROACTIVE LAW A. History and Broad Application B. Relevance to Sustainable Development V. LAW AND SUSTAINABLE DEVELOPMENT A. The Current Legal Framework 1. International Sustainable Development Law 2. Sustainable Development Law in the United States B. Governance for Sustainability 1. Traditional Governance and Its Critics 2. Market-Based Regulation 3. New Governance VI. A PROACTIVE APPROACH TO SUSTAINABLE DEVELOPMENT REGULATION A. Participation and Collaboration 1. Stakeholder Participation 2. Multi-Party-Collaboration 3. Shift from Adversarial to Win-Win Relationships B. Shared Power and Responsibility 1. Empowering and Public-Private Partnership 2. Shared Expertise and Responsibility 3. Decentralization, Competition, Pragmatism, and Flexibility C. Problem-Prevention and Value-Creation 1. Problem-Prevention 2. Promotion and Value-Creation VII. CONCLUSION I. INTRODUCTION

    "Building a vision of international society as it might be if it were governed by sustainability involves being bold, both intellectually and philosophically. It starts by unlocking the complex relationship between power, authority, rules and norms." (1)

    Sustainable development (2) is an issue of fundamental importance in the twenty-first century and is an important policy goal for the international community and national governments. (3) In response, a growing body of law addresses environmental concerns and promotes sustainable development on all levels from local development laws, (4) via industry self-regulation and other soft law instruments, (5) to international treaties. (6)

    However, despite these regulatory efforts, environmental problems and conditions continue to worsen. Global carbon accumulations in the earth's atmosphere continue to rise each decade, (7) despite the promises of world governments signing the Rio Treaty in 1992 to reduce C[O.sub.2] accumulation by twenty percent of 1990 levels. (8)

    Scholarly work in the field of law and sustainability demonstrates that the existing framework for sustainable development is insufficient, cautious, incremental, and incomplete. (9) Some call for sustainable development law to be more "hard" and enforceable. (10) Others propose an adaptation of new legal mechanisms, commonly grouped together under the umbrella term "New Governance." (11) Such mechanisms underscore the hybrid nature of sustainability through a polycentric, multi-level approach. (12) Widely absent from the discussions in the existing legal literature, however, is the fact that sustainability is not only a legal or moral issue, but is also a business issue. Business activity is one, though arguably not the only, of the most important sources of environmental degradation, social injustice, and economic development. (13) Simultaneously, the private sector is increasingly impacted by the economic costs of environmental degradation. (14) Accordingly, chief executives from the world's largest corporations recently identified sustainable development as the most significant issue facing their organizations, (15) and over the past two decades, corporations have gradually internalized the importance of sustainable development policies. (16) Although frequently limited to economically justifiable projects, the private sector has become a driving force behind sustainability initiatives. (17)

    This Article aims to engage law and sustainable business to determine the best way to develop a regulatory structure based on the four fundamental principles of Proactive Law and examines how these relate to other proposals in the New Governance literature. The Article further analyzes the current legal framework for sustainable development and explains why businesses act out of self-preservation when creating a sustainable economic development strategy.

    Part II of this Article defines the sustainable development paradigm and briefly summarizes its historic development. Part III identifies corporate sources of ecological crisis and environmental degradation and provides examples of the private sector's embrace of the sustainable development concept. Part IV introduces the concept of Proactive Law and its relevance to the sustainable development paradigm. Part V presents an overview of the current state of national and international sustainable development law and its shortcomings. Part V then surveys proposals in the "New Governance" literature to address some of the deficiencies of the traditional legal system and how they apply to sustainable development. Part VI analyzes Proactive Law as a novel and complementary approach and provides examples for its practical application to sustainable governance in the private sector. Part VII concludes by suggesting that Proactive Law and other innovative regulatory concepts described in the previous sections could benefit from each other to enhance sustainable governance and provides avenues for further research.


    There is no authoritative legal definition of sustainable development. The absence of a clear definition is sometimes seen as a contributing factor to the delay in effectively addressing environmental, social, and economic concerns. (18) The word sustainability or sustainable development is ubiquitous, and like any overused term, is in danger of being watered down, misused, abused, and losing its original meaning. (19) various approaches to sustainable development exist and different communities employ the term with different meanings depending on the conditions and settings of where it is used. (20)

    It is beyond the scope of this Article to attempt to define sustainable development. It may not even be possible or desirable to find a clear, static, and universal understanding of the term. (21) Like democracy, globalization, or justice, it is an evolving and disputed concept. (22) But, in order to better understand its significance, it is helpful to retrace the term's historic roots, differentiate between sustainability and sustainable development, and try to clarify its meaning in a way that makes it workable for developing our regulatory approach later in this Article.

    1. A Short History of the Sustainability Paradigm

      Modern concern for the environment began with preservationists who advocated that parts of the natural environment should be entirely sheltered from any human intrusion. (23) A competing view of environmentalism, advanced by the conservationist movement, emerged advocating that nature should be protected, but largely for human use. In this view, nature does not itself have a value; instead, nature is valuable because humans can harness it for their use and enjoyment. (24)

      This dichotomy was the precursor for more alternative views of the environment, which arose during the twentieth century. The preservationists emphasized that environmental degradation could be addressed only by fundamental changes in modern cultural values and advocated for strict preservation policies. (25) The conservationist movement emphasized the belief that nature can be harnessed or managed. (26) Technological optimists suggested that technology and...

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