Sustainable consumption and the law.

• Author: Salzman, James
• Position: Symposium on Population Law

1. INTRODUCTION

   Over a quarter century has passed since the Clean Air Act of 1970(1) ushered in the era of modern environmental law, establishing for the first time tough, nationally uniform command-and-control requirements.(2) From today's vantage point, the major environmental statutes passed in the 1970s such as the Clean Water Act.(3) and the Resource Conservation and Recovery Act(4) have been largely successful. Overall, the air is purer, the water is cleaner.(5) Despite this progress, however, public opinion polls consistently show a general perception that the threats facing the environment are more serious today than in 1970.6 The question is why? Where have our environmental laws fallen short?

   Clearly, one problem is the inadequacy of domestic laws in the face of international environmental threats. The local identification of our environmental problems in 1970 was, in retrospect, parochial. An equally important problem, however, is that our vision of environmental law has been constricted. By narrowly focusing on basic pollution issues such as the production and disposal of waste, our laws have largely ignored other significant contributors to environmental harms. Chief among these contributors, and the focus of this article, is consumption.

   With few exceptions, our modern environmental laws have been pollution control laws. As a result, our factories are now cleaner and more efficient, producing less pollution per unit of production.(7) This is surely an important achievement, but its significance is diminished by the fact that we are all consuming more, resulting in accelerated use of natural resources and associated impacts both at home and abroad.(8) Indeed, more goods and services have been consumed since 1950 than by all previous generations combined.(9) The manufacture of cars, for example, produces less pollution than twenty years ago, but the far greater number of cars on the road has led to major increases in resource consumption.(10) Put simply, in concentrating our laws on the reduction of waste from pipes and smokestacks, we have largely neglected to address the reason we produce the waste in the first place.

   This is a serious failing, for stringent regulation of polluting industries will not ensure environmental protection if current trends of consumption continue over the longer term.(11) As Gro Harlem Brundtland, former Prime Minister of Norway and chair of the commission that produced the seminal work, Our Common Future, has stated:

   It is simply impossible for the world as a whole to sustain a Western level

   of consumption for all. In fact, if seven billion people were to

   consume as much energy and resources as we do in the West today we

   would need ten worlds, not one to satisfy all our needs.(12)

   The international community has recognized the importance of consumption in environmental protection, declaring at the 1992 Earth Summit that, "[t]he major cause of the continued deterioration of the global environmental degradation is the unsustainable pattern of consumption and production, particularly in the industrialized countries, which is a matter of grave concern, aggravating poverty and imbalances .... Developed countries should take the lead in achieving sustainable consumption patterns . . . ."(13)

   The clear implication of this statement, endorsed by 178 countries and repeated in subsequent international declarations, is that over the longer term we in the developed world must consume less, consume better, or both. This general goal has been described as "Sustainable Consumption." The key challenge is how to translate this goal into effective practice. Indeed, what level of consumption is sustainable? What does consuming better actually mean? And, the focus of this Article, what role does and should the taw play in influencing our patterns and levels of consumption?

   The term, "sustainable consumption," as used in this Article, refers to a level of consumption which causes a level of environmental impact over time that does not degrade basic ecosystem services, such as the provision of fresh water, fertile soil, and a protective ozone layer.(14) Determining whether a sustainable level of consumption requires a two-fold, twenty-fold, or fifty-fold increase in efficiencies or some other measure is beyond the scope of this Article. In practical terms, moreover, such a debate over the precise quantitative definition is unnecessary. As Agenda 21 concluded, such a debate over the precise quantitative definition is unnecessary. As part II of this Article demonstrates, there is a global consensus among governments that current impacts of consumption are not sustainable.(15) Thus, at a minimum, achieving a sustainable level of consumption will require stabilizing environmental impacts at current levels. This is no easy task, for virtually all trends show that total levels of global consumption are increasing.(16)

   In response to the challenges set forth at the Earth Summit, sustainable consumption has been placed at the top of the agenda by the United Nation's Commission on Sustainable Development and the Organisation for Economic Cooperation and Development (OECD).(17) Surprisingly, while issues of pollution and population have been debated and studied at length by legal scholars, and deservedly so, the law's influence on consumption has received remarkably little attention. Indeed, no law review article has ever been written directly on the subject.(18)

   This Article lays an intellectual foundation for examination of these issues by analyzing the historic, economic, and policy issues linking sustainable consumption and environmental law. From this base, it builds an analytical framework to assess and identify meaningful future roles for the law to play in moving toward the goal of sustainable consumption.

   Part II discusses the origins of sustainable consumption, from Malthus to the Earth Summit, and explains why it has been largely ignored by modern environmental law. An ecological model is used to explore the interdependencies of population, technology, and consumption. Part III examines the market failures of inaccurate pricing and information which hinder environmentally-responsible consumption, and explains why these inaccuracies make legal intervention in the market appropriate. Using consumer products as an archetype, Part IV reviews the law's current treatment of consumption issues through three analytical categories in order to demonstrate that the law, though effective in addressing patterns of consumption such as product technology, does little to influence levels of consumption. As a result, current legal approaches have proven inadequate adequate to move meaningfully toward more environmentally-responsible consumption.

   Part V moves from theory to practice and examines a powerful new environmental policy instrument which promotes sustainable consumption called, "Extended Producer Responsibility" (EPR).(19) EPR expands the responsibility of actors to reduce products' environmental impacts throughout the lifecycle. This approach is a significant departure from traditional environmental protection strategies and forces the creation of new institutional partnerships. EPR's most aggressive implementation has been in the European Union (EU), where producers effectively are required to take responsibility for their product packaging upon disposal.(20) Today, EPR laws are eagerly being adopted around the world with profound consequences for product design and consumption patterns.(21)

   Although this transformation has not been addressed by legal scholars, it could have dramatic implications. Indeed, if the trend continues, the market for many consumer products will be transformed into a leasing economy, with manufacturers mandated to recover and manage products at the end of their useful lives. Part VI explores EPR's strengths and weaknesses as policy, assesses the broader legal issues EPR raises, and considers the likelihood of adopting EPR and other sustainable consumption laws in the United States.

2. ORIGINS OF SUSTAINABLE CONSUMPTION

   1. From Malthus to Rio

      The issues surrounding consumption are enormously broad. Even the most austere human society necessarily consumes food, water, energy, land, and minerals, and each act of consumption has environmental consequences. As a result, the importance of maintaining levels of consumption within an environment's carrying capacity or natural limits to growth has long been recognized. The intellectual basis of this proposition was clearly laid out in eighteenth-century England by Thomas Malthus in his Essay On the Principle of Population.(22) Its modern foundations were established in the late 1960s and early 1970s by a series of books including Schumacher's Small is Beautiful,(23) the Club of Rome's report Limits to Growth,(24) Ehrlich's "neo-Malthusian" warning in The Population Bomb,(25) and Commoner's The Closing Circle.(26) All of these works documented an inevitable confrontation between ever-expanding material demands and increasingly depleted finite resources, between growing pollution and the weakening ability of ecosystems to assimilate waste. At a basic level the messages challenged popular ideals of growth calling, for example, for simpler, local-based economies (Schumacher), population control (Ehrlich), and reduced consumption (Club of Rome).

      The relationship between consumption and a population's overall environmental impact is complex. An ecological model developed in the 1970s, known as the I=PAT model, describes interdependencies well.(27) Expressed as a formula, I=PAT, the model describes a community's overall environmental impact (I) as the product of its population size (P), its affluence or per capita level of consumption (A), and its technology or environmental impact per unit of consumption (T).(28) In simple terms, Schumacher focused primarily on patterns of consumption (T), the Club of Rome on levels of...