Sustainability, Climate Mitigation, and the Economic Dynamics of Law

• Author: David M. Driesen
• Pages: 83-99

83

Chapter 6:

Sustainability, Climate

Mitigation, and the Economic

Dynamics of Law

David M. Driesen

This chapter addresses the problem of converting the very general sus-

tainable development concept into an economic framework capable

of concretely guiding government action, with pa rticular empha-

sis on mitigating climate disruption.1 I advocate an economic dynamic

approach that would make systemic risk avoidance a prime goal of govern-

ment. is approach also calls for a focu s on the shape of change over time,

rather than treating law creation as if it were a mere transaction purchasing

a discrete set of environmental benets. Finally, I call for economic dynamic

analysis, a form of institutional economic analy sis, to evaluate t he eects of

policy proposals.2

e rst pa rt of this chapter grapples with the problem of dening what

sustainable development has to say about mitigating climate change disrup-

tion. I argue that translating such a general rubric into concrete guidance

poses a challenge in a reas that inuence developmental paths releva nt to cli-

mate disruption. e second part develops and defends an economic dynamic

approach to law and economics. I argue that this approach has the capac-

ity to guide sustainable development. Indeed, I show that this approach ha s

positively inuenced a number of polities currently implementing reasonably

good climate policy. ird, by way of illustration of the economic dynamic

approach’s capacity to reach many areas of law and policy, I show how it can

1. I use the term “climate disruption” because it more accurately denes the climate issue than the more

common terms “climate change” or “global warming.” See D M. D  ., E

L: A C  P A 25 (2d ed. 2011). e term “global warming” refers

only to one central aspect of the problem, the warming of the earth’s mean surface temperature, but

fails to say anything about this warming’s eects. Cf. id. (citing science policy advisor John Holdren’s

objections to the term “global warming.”). “Climate change” conveys absolutely nothing about the

change’s nature.

2. I developed this approach more fully in a recent book, e Economic Dynamics of Law, which showed

that it’s a viable approach to the law and economics of a host of areas that law addresses. D M.

D, T E D  L (2012).

84 Rethinking Sustainability

apply to nancial regulation. is breadth implies that this approach has the

capacity to advance sustainable development’s integration ideal—the ideal of

integrating environmental, economic, and social goa ls.

I. Translating Sustainable Development Into

Mitigation Guidance

e literature sometimes treats sustainable development as mea ning simply

the tempering of economic activity with environmental standards.3 From

this perspective, anything that mitigates climate disruption (or any other

environmental harm) constitutes sustainable development. If this view is cor-

rect, the concept has no power to guide any decisions about the environment

in any concrete way, for it says nothing specic about what environmental

protection should accomplish. is view would not only provide no help in

making environmental decisions, it would also make the concept of sustain-

able development irrelevant outside of environmental law. e concept of

sustainable development, however dicult a nd ambiguous it may seem, has

more meaning than that both more generally and for climate disruption.

Sustainable development requires, at a minimum, a conceptual shift in how

we think about economic development. e Brundtland Commission report,

Our Common Future, denes sustainable development as development that

“meets the needs of the present without compromising the ability of future gen-

erations to meet their own needs.”4 is denition obviously demands “inter-

generational equity,” making it unacceptable to sacrice future generation’s

needs in order to fulll our own desires for luxury goods.5 It a lso demands

intragenerational equity.6 We currently do not meet many people’s most basic

needs, especially in developing countries, so this means that economic develop-

ment policies must meet these basic needs. is imperative implies some need

for resource transfers and rejection of economic development policies that focus

on growth without regard to distributional consequences. ese foci indicate

that sustainable development must guide not just environmental policies, but

other policies impacting economic development.7

3. N R C (NRC), S   U.S. EPA 26 (2011) (stating that

U.S. environmental and conservation laws have fostered sustainability because they improved the

environment, but recognizing that the concept is broader than the sum of U.S. environmental laws).

4. Commission on Environment and Development, Our Common Future, Overview, ¶27, U.N. Doc.

A/42/427, Annex (1987), available at http://www.un-documents.net/our-common-future.pdf.

5. See J C. D, A   T M: A  T 

S 4 (2012) (associating sustainable development with intergenerational equity).

6. See NRC, supra note 3, at 22.

7. See D, supra note 5, at 5 (every organization needs to contribute to sustainable development).