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

Author:Berger-Walliser, Gerlinde
Position:V. Law and Sustainable Development through VII. Conclusion, with footnotes, p. 441-474

    The following Part begins by offering a broad survey of the current state of international sustainability law, with a specific analysis of regulatory structures in the United States. It then addresses criticisms of these structures and identifies avenues for reform.

    1. The Current Legal Framework

      Unlike other legal disciplines, laws and regulations governing sustainable development are peppered across multiple practice areas, such as environmental and natural resources law, human rights law, corporate law, and economic and labor law. Since the effects of environmental degradation do not stop at a nation's border it is not surprising (126) that most broad-based sustainable development lawmaking has taken place on the international level (127) and in the area of environmental law. (128)

      1. International Sustainable Development Law

        The most notable examples of international agreements include the Economic Commission for Europe Convention on Long Range Transboundary Air Pollution and its Protocols, (129) the Vienna Convention for the Protection of the Ozone Layer and its Montreal Protocol, (130) the United Nations Framework Convention on Climate Change and its Kyoto Protocol, (131) the United Nations Convention on Biological Diversity, (132) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora. (133) The sheer number and variety of international environmental conventions demonstrate the priority of environmental issues to many countries. At the same time, they also illustrate the fragmented responsibilities in international environmental law.

        Despite international sustainable development law being more advanced than the domestic laws of many countries, the concept has not developed into "hard law" on the international level. In other words, there is no articulation of international law that may be applied by courts of an individual nation to create an enforceable obligation for a private or public party relating to sustainable development.

        Other aspects of sustainable development law are less prominent and cover isolated issues, such as equal remuneration for men and women, (134) or are limited to non-binding documents. (135) Generally, the three pillars of sustainable development are addressed in different agreements, but rarely together in a binding treaty as suggested in the Brundtland Report. (136)

        An example for the lack of "hardness" of international sustainable development law can be found in the often cited International Court of Justice's (I.CJ.) Gabcikovo-Nagymaros decision. (137) This case concerning a dam project between the Republic of Hungary and the Slovak Republic acknowledges the concept of sustainable development. (138) However, the I.CJ. refused to apply the concept with any legal force. (139) In a more recent decision of a dispute between Argentina and Uruguay over common freshwater resources and the impact of pulp mills on the Uruguay River, the I.CJ. acknowledged environmental impact assessments as an international obligation, but did not clarify the status of the concept of sustainability as a source of general international law. (140) Furthermore, the I.CJ. did not determine that businesses had a legal obligation to consult with the public prior to the implementation of the project, despite the negative consequences on water quality, air pollution, odors, visual effects, public health, and local tourism. (141)

        The absence of international "hard law" can also be attributed to the fact that international environmental regulations bind governments and do not create direct obligations or enforceable laws with respect to companies or individuals. (142) More troublesome is that the obligations on governments are typically limited to vague declarations of intent and lack effective enforcement mechanisms. It should come as no surprise that international agreements impacting sustainable development ultimately fail to meet the expectations of their advocates and the public.

        Another inherent problem of international treaties is that treaties take a long time to negotiate and often are not signed or ratified by all countries. Because treaties are a function of consensus, they almost always reflect a common minimum standard at the time they have been drafted. As a result, this standard is typically insufficient to resolve the issue, or it quickly becomes outdated due to technical or scientific progress. A recent example is the Rio+ 20 Conference, which in June 2012 brought together representatives from more than 100 nations. (143) Rio+ 20 is viewed by many as a failure because it repeated twenty year old aspirational promises with no specific operational targets or enforcement mechanisms. (144) Contrary to its predecessor twenty years ago, it did not produce a declaration but an outcome document entitled, "The Future We Want," which could be interpreted as weaker than the Declaration "Our Common Future," resultant of the 1992 Rio conference. (145) Rio + 20 is only one of many examples evidencing the global action problem that the international legislator faces in the area of sustainable development law.

        Due to the difficulties described above, there has been a noticeable shift from traditional international law instruments like binding treaties to voluntary soft law instruments. There has also been a shift in the importance of non-state actors (i.e. the private sector). These changing dynamics have led some to reevaluate the necessity, or at minimum the role, of international law in this area. (146) Commentators have attributed this trend to "the high level of normative and analytical uncertainty, the complex nature of interrelated issues, and substantial costs associated with any meaningful policy effort." (147) Reactions have been mixed. While some commentators find voluntary action and soft law to be more "in harmony with the cooperative spirit of climate change policy [or sustainable development law in general]," (148) others criticize the lack of enforceable "hard" law. (149)

      2. Sustainable Development Law in the United States

        In the United States, the Brundtland Report was followed by a series of top-down federal environmental lawmaking aimed at cutting down on toxic waste, air and water pollution, and improving air and water quality. (150) Federal regulatory efforts include the National Environmental Policy Act of 1969 (NEPA), (151) the Federal Water Pollution Control Act (CWA), (152) the Endangered Species Act of 1973 (ESA), (153) the Solid Waste Disposal Act (RCRA), (154) the Clean Air Act (CAA), (155) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). (156)

        More recently, alarmed by the 2007 Intergovernmental Panel on Climate Change's (IPCC) assessment of scientific evidence relevant to climate change, the focus of the political debate has concentrated on climate change law. (157) As one commentator observed, in this area all federal legislative proposals to date have failed, but state legislation, administrative agencies, and court decisions increasingly address climate change based on existing legislation or common law. (158)

        In the landmark case Massachusetts v. EPA, the U.S. Supreme Court held that the EPA had the authority to regulate Greenhouse Gas Emissions (GHGs) based on the Clean Air Act. (159) This decision enabled the EPA to begin researching ways to regulate GHGs. This initial research led to the recent publication of four major and interrelated climate regulations that form a nationwide system of carbon liability on regulated sectors. (160) Massachusetts v. EPA was followed by a number of decisions across the county where courts considered climate change under existing environmental laws such as NEPA, the ESA, land use regulation or nuisance law. (161)

        However, as with international sustainable development law, an overreaching legal framework is missing because domestic law concentrates on environmental and natural resources regulation. While there is an established, albeit dispersed, body of "hard" environmental law, sustainable development at its current stage is rather an issue of government policy and "soft law." Governments, universities and companies establish mandatory sustainability policies for agencies like NEPA, but otherwise there often is only a call for voluntary action, which lacks any substantive judicial enforceability.

        Also similar to international law, American law and its legal practitioners have not embraced the "Three E's" of the sustainability paradigm. (162) Perhaps it is because of the challenges of sustainability governance that the U.S. Supreme Court has not yet employed the concept of sustainable development, despite regular decisions impacting environmental issues. (163) These challenges are discussed in the following Part.

    2. Governance for Sustainability

      Legal scholars have identified common reasons for the legal system's failure to address sustainable development more effectively, but disagree as to how to overcome them. (164) Early legal work describes sustainable development as a political philosophy or principle of governance, but not as an area of prescriptive law. (165) Instead, subsets of the sustainability concept are addressed separately, such as intergenerational justice, economic development, international trade and investment, labor law, or human rights. Some commentators believe that sustainable development law is simply soft law while others would like to abandon the concept altogether. (166)

      Generally, the "lack of specificity," (167) inherent in the concept of sustainable development, which "allows various parties with potentially conflicting agendas to coexist under the same big tent," (168) is seen as one of the main reasons for the law's inability to address sustainable development coherently. (169) While some authors call for a "thickening]" of the concept "to promote an acculturation process that has real...

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