Sustainability Is the Answer-Now What Was the Question?

• Author: Rebecca M. Bratspies
• Pages: 23-40

23

Chapter 3:

Sustainability Is the Answer—

Now What Was the Question?

Rebecca M. Bratspies

On September 16, 2012, the National Ice and Snow Center

announced a record-breaking loss of A rctic sea ice.1 at day also

happened to be my 47th birthday. In my (relatively) short life,

the Arctic has changed beyond imagination—and more change is coming.

Headlines about the A rctic with alarming phrases like “After the Ice” have

become common fare.2 As carbon builds up in our atmosphere, our planet

will continue to warm—almost denitely more than the 2°C3 target adopted

as a target in Copenhagen.4

Climate change is aecting everything, everywhere. Over the past few

years, scientists have documented thousands of new high temperature

records5; Greenland has experienced unprecedented ice melts6; Hurricane

Sandy devastated the Eastern Seaboard7; res scorched the parched western

1. Arctic Sea Ice Extent Sett les at Record Seasonal Minimum, N S   I D C,

Sept. 19, 2012, http://ns idc.org/arcticseaicenews/2012/09/arctic-sea-ice-extent-settles-a t-record-

seasonal-minimum/.

2. See, e.g., Special Issue, After the Ice, 478 N 157 (2011).

3. is two-degree threshold is not uncontroversial. See, e.g., omas E. Lovejoy, Op-Ed, e Climate

Change Endgame, N.Y. T, Jan. 21, 2013 (describing the 2-degree target as “mostly derived from

what seemed convenient and doable without any reference to what it really means environmentally”).

4. e Copenhagen Accord “recognize[ed] the scientic view that the increase in global temperature

should be below 2 degrees Celsius.” United Nations Framework Convention on Climate Change,

Draft Decision CP.15—Copenhagen Accord, U.N. Doc. FCCC/CP/2009/L.7 (Dec. 18, 2009). Yet,

the status of this agreement is a bit unclear. e Conference of the Parties agreed to “take note” of the

document, rather than adopt it. Conference of the Parties of the United Nations Framework Con-

vention on Climate Change, Fifteenth Session, Copenhagen, Denmark, Dec. 7–19, 2009, Report of

the Conference of the Parties on Its Fifteenth Session, Held in Copenhagen From 7 to 19 December 2009,

¶¶4–7, U.N. Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010).

5. National Oceanic and Atmospheric Administration (NOAA), National Climate Data Center, National

Overview—July 2013, http://www.ncdc.noaa.gov/sotc/national/2013/7 (reporting, inter alia, 341

consecutive months with temperatures above the 20th century average).

6. Alexandra Witze, Greenland Enters Melt Mode, 182 S. N 4,  (2012).

7. Sam Eaton, Climate Change and Sandy, NOVA, Nov. 15, 2012, http://www.pbs.org/wgbh/nova/

earth/climate-change-sandy.html.

24 Rethinking Sustainability

United States8; and oods ravaged Australia,9 China,10 the Philippines11 and

Korea.12 Disaster seems to loom around every corner. It remains dicult to

directly and unambiguously establish that climate change caused a ny one of

these disa sters, yet collectively they are harbingers of the emerging Anthro-

pocene13 Epoch—in which human activities, rat her than geophysical forces,

dominate the Earth. Rather t han prompting any urgent response, each new

climate disaster leaves us, in the words of Bill McKibben, “in the same posi-

tion we’ve been in for a quarter-century: scientic warning followed by polit-

ical inaction.”14

Explanations for our inability to control the destructive impacts of human

activities tend to focus on economics a nd a narrative of power—too many

powerful actors are making too much money from business as usual and

thus use their power to prevent change. Under this framing, law might be an

agent for change —a way to blunt raw economic power through democratic

mechanisms. And, indeed, this equalizing role of law is often celebrated as

a tool for advancing sustainability. But, law’s ability to limit or shape the

array of possible private choices is a double-edged sword. It just as readily

limits our ability to imagine alternatives to the choices currently being made.

While law and legal systems can, in theory, play the role of change agent, law

can also cloak the status quo in a sense of inevitability. Most law, including

environmental law, rests on an economic pre-commitment to dividing t he

natural world into discrete, ownable “resources” available for exploitation.

Law’s presumed neutra lity, and its a priori nature, are mustered to support

this pre-commitment as though it were a universally accepted, quasi-scien-

tic truth about the purpose of lega l systems. Yet, that characterization of

8. e Yosemite Rim Fire had burned more than 200,000 acres as September 2013, blanketing hun-

dreds of miles with chokingly polluted air. I: I I S, Rim Firm,

http://www.inciweb.org/incident/3660/ (last visited Sept. 13, 2103). A wildre in Arizona killed 19

reghters. Holly Yan, Loss of 19 Fireghters in Arizona Blaze “Unbearable” Says Governor, CNN,

July 2, 2013, http://www.cnn.com/2013/07/01/us/arizona-reghter-deaths. Wildres in Portugal,

Australia, Indonesia, and many other countries in 2013 alone caused massive social dislocation, loss

of life, and property losses.

9. Jim Andrews, Major Flooding in Australia Continues, A., Mar. 7, 2012, http://

webtv.accuweather.com/en/weather-news/major-australia-ooding-as-re-1/62299; Rebekah Kebede,

Australian Floods Force ousands From eir Homes, R, Feb. 5, 2012, http://www.reuters.com/

article/2012/02/06/us-australia-oods-idUSTRE81508E20120206.

10. Bei jing Chaos After Record Floods, BBC , July 23, 2012, ht tp://www.bbc.co.uk/new s/world-

asia-china-18942984.

11. Floyd Whaley, Rains Flood Manila Area, Sending ousands Fleeing, N.Y. T, Aug. 7, 2012.

12. North Korean Floods: Death Toll Raised, WFP Sends Food, BBC, Aug. 4, 2012, http://www.bbc.co.uk/

news/world-asia-19124495.

13. Jan Zalasiewicz et al., e New World of the Anthropocene, 44 E’ S.  T. 2228 (2010); Paul

J. Crutzen, Geology of Mankind, 415 N 23 (2002).

14. Bill McKibben, Global Warming’s Terrifying New Math, R S, July 19, 2012.