Sustainable Development - John Dernbach

Sustainable development recasts the role of environment in human affairs—from something that can be used and degraded to something that must be protected and restored in order to sustain human well-being and quality of life. The United States, which has 5% percent of the world’s population but consumes one quarter to one third of the world’s energy and resources, will play a key role in global efforts to achieve sustainability. Dernbach has edited the only comprehensive nongovernmental assessments of U.S. efforts. These are Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (2012), Agenda for a Sustainable America (2009) and Stumbling Toward Sustainability (2002).

Earth Summit

In June 1992, at the United Nations Conference on Environment and Development, or Earth Summit, in Rio de Janeiro, the nations of the world agreed to an ambitious and unprecedented global plan of action for addressing the related and growing problems of environmental degradation and poverty. “Humanity stands at a defining moment in history,” they stated.

These nations based their plan on sustainable development, a framework for achieving economic development that is socially equitable and protective of the natural resource base on which human activity depends. In agreeing to this plan, they all agreed to work toward sustainability—in both their domestic actions and their international efforts. These nations include the United States.

Sustainable development is a response to the deeply held view that environmental degradation is the small price we pay to achieve progress; the price is not small, however, and environmental degradation prevents or threatens social and economic progress. Because of the Earth Summit, sustainable development is also an internationally recognized framework for guiding and evaluating the behavior of national governments and other actors.

Sustainable development is a framework for achieving economic development, national security, social well-being, and environmental protection at the same time. In a sustainable society, environmental protection and restoration are part of what it means to achieve progress. Environmental degradation–and the harm that this degradation brings to humans–would no longer be the price of progress.

Sustainable Development in the United States

The United States is not just another country in the global effort to achieve sustainable development. It has the world’s highest Gross Domestic Product, the most powerful military on earth, and is the largest producer and consumer of energy and materials in human history. Because of its impact on the world’s environment and its political, economic, and military influence, the United States has unparalleled power to lead an international effort to achieve sustainable development or to prevent or impede world efforts to achieve sustainability.

Much of American influence around the world, for better and for worse, rests in the example it sets. As a consequence, U.S. domestic actions related to sustainability are likely to influence other countries as much as, and even more than, anything the U.S. does in the international arena. It is highly unlikely that the rest of the world can achieve sustainability without the active engagement of the United States.

But what does sustainable development mean for the United States? How much progress has the U.S. made toward sustainability since its 1992 Earth Summit commitments?

Articles and Book Chapters on Sustainable Development

Dernbach’s writing on sustainable development attempts to work out the practical consequences and meaning of the concept, particularly but not exclusively for the U.S., and what we must do to achieve sustainability. As stated above, the three most important works are Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability, Agenda for a Sustainable America and Stumbling toward Sustainability. In addition, he has written many articles and book chapters. Most of those below can be downloaded by clicking on the title.

Applying the Pennsylvania Environmental Rights Amendment Meaningfully to Climate Disruption, 8 Michigan Journal of Environmental and Administrative Law 49 (2018) (with Robert B. McKinstry, Jr.). This article argues that a stable climate (a climate that has not been disrupted by anthropogenic emissions of GHGs) should be considered protected by the rights provided by the Pennsylvania Environmental Rights Amendment. It then argues that the Environmental Rights Amendment imposes on Pennsylvania a duty to reduce greenhouse gas emissions to net zero by midcentury, and advocates a cap-and-trade program to achieve that result.
The Dozen Types of Legal Tools in the Deep Decarbonization Toolbox, 39 Energy Law Journal 313 (2018). This article provides a description and analysis of the dozen types of legal tools that are available to reduce U.S. greenhouse gas (GHG) emissions by at least 80% from 1990 levels by 2050. It explains that there are many more types of legal choices available than we may have thought, and that the range of legal tools provides great opportunity for building consensus. One particularly important category, for example, is reduction or removal of legal barriers. It also makes clear that a great many types of lawyers are important in this effort, including not only energy and environmental lawyers, but also finance, corporate, procurement, contracting, real estate, and other types of lawyers.
Lawyering as if Tomorrow Matters, 86 University of Missouri-Kansas City Law Review 759 (2018).. This Article argues that all lawyers, not just environmental lawyers, have a unique and important role to play in protecting life on earth, and suggests that we all need to consider doing more than we have already been doing. It then describes seven different approaches that lawyers can consider to respond constructively to climate change. These suggestions are intended to provoke discussion and reflection about the necessary role of lawyers at an exceptionally important moment in human history.
Sustainable Development in Law Practice: A Lens for Addressing All Legal Problems, 95 Denver Law Review 123 (2017). This article, which is based on interviews with 26 lawyers who practice or have practiced law related to sustainability, provides a first assessment of what this work actually entails. It describes what these lawyers understand sustainability or sustainable development to mean — both as defined and as applied. It explains who their clients are and what they do for them, and provides insight into the dynamics of attorney-client conversations related to sustainability. It describes key personal and professional qualities of these lawyers — how they became interested, and what they like and do not like about doing work related to sustainability. Finally, by exploring what these lawyers see as obstacles to sustainability and where the jobs are in sustainability-related law, it sheds light on the future of sustainability in law practice.
Teaching Applied Sustainability: A Practicum Based on Drafting Ordinances, 4 Texas A&M Journal of Property Law (with Jonathan D. Rosenbloom). This article describes and explains a sustainability law practicum class that is now taught in only two law schools, but which has considerable teaching and practical value. It also explains how this class is consistent with, and furthers, the growing demand for experiential, skills-based legal education employing formative assessment. The class uses a real world setting to provide students with skills they will need to help clients meet their sustainability goals.
Legal Pathways to Deep Decarbonization: Lessons from California and Germany, 82 Brooklyn Law Review 825 (2017). This article describes the approaches being taken toward deep reductions in greenhouse gas emissions in two major developed country jurisdictions — California and Germany — and suggest lessons from that experience that could be useful to the United States.
Making the Paris Agreement Work, Environmental Forum, Sept.-Oct. 2016. This article briefly outlines the key features of the Paris Agreement as well as the daunting challenge of meeting its goals. It suggests six essential elements of an approach to encourage or incentivize parties to greater ambition.
Asking the Right Questions About the Future of Shale Gas, 49 John Marshall Law Review 377 (2016). This Article explains that policy makers and others need to ask instead 1) whether the use of shale gas is consistent with the scale and pace of required greenhouse gas emissions, 2) how much energy we need, and 3) how the benefits of shale gas compare with the costs and benefits of alternatives, especially energy efficiency and conservation.
Sustainable Development and Its Discontents, 4 Transnational Environmental Law 247 (2015) (with Federico Cheever). As sustainable development (or sustainability) has grown in prominence, its critics have become more numerous and more vocal. Three major lines of criticism are that the term is “too boring” to command public attention, “too vague” to provide guidance, and “too late” to address the world’s problems. Critics suggest goals such as abundance, environmental integrity, and resilience. Beginning with the international agreements that shaped the concept of sustainable development, this Article provides a functional and historical analysis of the meaning of sustainable development. It then analyzes and responds to each of these criticisms in turn. While the critics, understood constructively, suggest ways of strengthening this framework, they do not provide a compelling alternative. The challenge for lawyers, law makers, and others is to use and improve this framework to make better decisions.
Robinson Township v. Commonwealth of Pennsylvania: Examination and Implications, 67 Rutgers Law Review 1169 (2015) (with James R. May and Kenneth T. Kristl). In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13” — a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, which creates public rights in certain environmental amenities and requires the state to “conserve and maintain” public resources “for the benefit of all the people.” This paper describes the decision, explains some of its immediate implications in Pennsylvania, and also explains its importance for public environmental rights and environmental constitutionalism elsewhere.
Recognition of Environmental Rights for Pennsylvania Citizens: A Tribute to Chief Justice Castille, (53 Duquesne Law Review 335 (2015) (with Marc Prokopchak). This article is based on remarks made at a Special Session of the Pennsylvania Supreme Court at Duquesne University on October 7, 2014 in honor of Chief Justice Ronald Castille. This article explains why his plurality opinion in Robinson Township v. Commonwealth (2013) concerning the Environmental Rights Amendment to Pennsylvania's constitution is likely to have staying power even though it did not command a majority of the state's Supreme Court. This article also collects and summarizes 79 judicial and administrative tribunal decisions applying or considering the three-part balancing test that has been used for decades as a substitute for the text of the amendment, and demonstrates that the challenging party has almost never prevailed under that test.
The Potential Meanings of a Constitutional Public Trust, (45 Environmental Law 463 (2015)). The Pennsylvania Supreme Court’s 2013 decision in Robinson Township v. Commonwealth has lawyers looking at the state’s constitutional Environmental Rights Amendment (Amendment) — including its public trust provision — as if it magically appeared in the state constitution on the date of the decision. This Article describes the origin of the Amendment, the two primary cases decided shortly after it was adopted that effectively buried the Amendment, and the Robinson Township decision. It then surveys the wide range of issues that have arisen in the courts and other adjudicatory bodies in the immediate aftermath of Robinson Township and provides suggestions for how some of them should be resolved.
Facing Down the So-Called Agenda 21 ‘Conspiracy:’ Lessons for Planners, (Planning, Feb. 2015, at 20). In the last several years, proposed land use decisions in the United States frequently have been subject to claims that they were influenced in undesirable ways by Agenda 21, the international strategy for sustainable development adopted at the U.N. Conference on Environment and Development in 1992. Those making these claims work from a bogeyman version of Agenda 21 created by a well-funded anti-government, pro-property rights cottage industry that portrays Agenda 21 in demonstrably false ways. Using a land use controversy in Mt. Gretna, Pennsylvania as a case study, this article explains how local planners and officials can address these claims when they are made.
A Response to the IPCC Fifth Assessment,, (45 Environmental Law Reporter 10027 (2015) (with Sarah J. Adams-Schoen and others). This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result that is the product not only of each scholar’s individual knowledge but also of the group’s robust discussion.
Can Shale Gas Help Accelerate the Transition to Sustainability? (Environment, Jan.-Feb. 2015, at 7 (with James R. May). The sudden and unexpected development of shale gas has the potential to accelerate or hinder the transition to sustainability, depending on how it is handled. Sustainable development is a useful evaluative framework for shale gas development. It would have us analyze its environmental, social, economic, and security dimensions at the same time, and look for ways to make all four dimensions mutually reinforcing. Analyzing a broad range of issues, this article asks, and suggests answers to, the question of whether, or how, shale gas production can help accelerate the transition to sustainability.
The Sustainable Relationship: What the United States and the United Kingdom Can Teach Each Other About Climate Change and Sustainable Development at the National Level, (Environmental Forum, May-June 2013, at 30 (with Andrea Ross)). This article describes and compares key U.S. and U.K. laws and policies on sustainable development and climate change, and suggests what each could learn from the other.
Sustainability as a Means of Improving Environmental Justice, (19 Missouri Journal of Environmental and Sustainability Law 1 (2012) (with Patricia E. Salkin & Donald A. Brown). This article explains why environmental justice provides much of the foundation for sustainable development, and shows how sustainability can improve our ability to achieve environmental justice.
Sustaining America, (Environmental Forum, May-June 2012, at 30). This essay summarizes U.S. sustainability efforts over the two decades since the U.N. Conference on Environment and Development (or Earth Summit) in 1992. It also summarizes basic findings and recommendations from Acting as if Tomorrow Matters: Accelerating the Transition to Sustainability (Environmental Law Institute 2012).
Next Generation Recycling and Waste Reduction: Building on the Success of Pennsylvania’s 1988 Legislation, (21 Widener Law Journal 285 (2012) (with Widener University School of Law Seminar on Climate Change). This article reviews the effectiveness of Pennsylvania's landmark 1988 recycling legislation, and makes recommendations for improving its effectiveness.
Federal Energy Efficiency and Conservation Laws, (in The Law of Clean Energy: Efficiency and Renewables 25 (Michael Gerrard, ed., American Bar Association, 2011) (with Marianne Tyrrell). This book chapter provides an overview of U.S. law and policy concerning energy efficiency and conservation.
Environmental Laws and Sustainability: An Introduction, (3 Sustainability 531 (2011) (with Joel A. Mintz). This is an introduction to the special issue on environmental laws and sustainability of the on-line peer review journal, Sustainability. This introduction attempts to synthesize key lessons from the issue’s ten substantive articles.
Environmental Laws and Sustainability, (special issue of on-line peer review journal, Sustainability (2011)) (edited with Joel A. Mintz). The ten articles in this special issue attempt to answer, in various ways, the question of how law can and should be used to achieve sustainability. They provide information, tools, and ideas that policy makers, practicing lawyers, and others can use to address the challenges and opportunities of sustainability.
The “Cash for Clunkers” Program: A Sustainability Evaluation, (42 Toledo Law Review 467 (2011) (with Marianne Tyrrell). This article describes and evaluates the effectiveness of the Consumer Assistance to Recycle and Save Act of 2009, also known as the “Cash for Clunkers” legislation, from a sustainability perspective. It also identifies five key lessons for sustainability from this legislation:
Creating the Law of Environmentally Sustainable Economic Development, (28 Pace Environmental Law Review 614 (2011)). This article argues that a key to sustainability is redirecting the law of economic development. It then explains how many recently enacted laws that move the United States toward sustainability can be understood as economic development laws.
Energy Efficiency and Conservation: New Legal Tools and Opportunities, (Natural Resources and Environment, Spring 2011, at 7 (with Robert B. McKinstry, Jr. & Darin Lowder)). Many new and ambitious energy efficiency and conservation laws are being enacted at all levels of government - and with greater financial incentives than provided previously. This article reviews a range of these tools, especially financial legal mechanisms, that could help significantly reduce U.S. energy consumption.
The Essential and Growing Role of Legal Education in Achieving Sustainability, (60 Journal of Legal Education 489 (2011)). This article suggests that law schools need to play a leading role in the national and global effort to achieve sustainability, including the effort to address climate change. It then describes a broad and growing range of sustainability activities - especially in curriculum and scholarship, but also in buildings and operations; outreach and service; student life; institutional mission, policy, and planning; and external stakeholders.
Making the States Full Partners in a National Climate Change Effort: A Necessary Element for Sustainable Economic Development, (40 Environmental Law Reporter 10,539 (2010) (with Robert B. McKinstry, Jr. and Thomas D. Peterson)). This article explains why states and localities need to be full partners in a national climate change effort based on federal legislation or the existing Clean Air Act. It also describes in detail a proposed state climate action planning process that would help make the states full partners.
An Agenda for Sustainable Communities, (4 Houston Energy and Environmental Law & Policy Journal 170 (2009)). This article summarizes progress toward sustainable communities in the United States since the United Nations Conference on Environment and Development (or Earth Summit) in 1992, and makes recommendations for further progress based on what we have already learned about how to achieve sustainable communities.
Progress Toward Sustainability: A Report Card and a Recommended Agenda, (39 Evironmental Law Reporter 10,275 (2009)). This Article summarizes and synthesizes the findings and recommendations of the 41 contributing authors to Agenda for a Sustainable America (John C. Dernbach ed., Environmental Law Institute, 2009). The article explains what the United States has achieved and not achieved concerning sustainability, and identifies 10 broad recommendations for the next 5 to 10 years.
Navigating the U.S. Transition to Sustainability: Matching National Governance Challenges with Appropriate Legal Tools, (44 Tulsa Law Review 93 (2008) ). Sustainable development would require the United States to maintain and improve human prosperity while at the same time greatly reducing consumption of energy, materials, water, and land. The scope of the challenge includes, but is not limited to, climate change. This article suggests the elements of a legal structure for achieving sustainability.
Sustainable Development and National Governance: The Challenges Ahead (with A. Dan Tarlock) in Environmental Laws and Their Enforcement, (A. Dan Tarlock ed. 2005). This chapter explains sustainable development and what it means for governance in individual countries.
Citizen Suits and Sustainability, 10 Widener Law Review Rev. 503 (2004). This article explains the importance of citizen participation and involvement in achieving sustainable development, using citizen suits under U.S.environmental laws as a point of departure.
Making Sustainable Development Happen: From Johannesburg to Albany, 8 Albany Environmental Outlook 173 (2004). This essay explains the importance of sustainable development at the state level, using New York State as an example.
Progress Toward Sustainable Communities: Looking Back, Looking Ahead, 35 Urban Lawyer 495 (2003) (with Scott Bernstein). This article assesses U.S. sustainable development efforts at the community level from 1992-2002, and includes recommendations for the next five to ten years.
Targets, Timetables and Effective Implementing Mechanisms: Necessary Building Blocks for Sustainable Development, 27 William & Mary Environmental Law & Policy Review 79 (2003). This article explains why specific goals, coupled with dates for achieving those goals and effective laws and policies to ensure they are achieved, are essential to sustainable development.
Achieving Sustainable Development: The Centrality and Multiple Facets of Integrated Decisionmaking, 10 Indiana Journal of Global Legal Studies 247 (2003). This article explains why integrated decisionmaking—incorporating environmental considerations and goals into social, economic, and security decisions—is the key principle in sustainable development.
Sustainable Versus Unsustainable Propositions, 53 Case Western Reserve Law Review 449 (2002). This article critiques Bjorn Lomborg’s book, The Skeptical Environmentalist, from the perspective of sustainable development.
Why Lawyers Should Care About Sustainable Development, Environmental Forum, July-Aug. 2002, at 30. This essay explains the importance of sustainable development to the practice of law.
Learning from the President’s Council on Sustainable Development: The Need for a Real National Strategy, 32 Environmental Law Reporter 10,648 (2002). This article is a critique of U.S.efforts on sustainable development from 1992-2002, and recommends that the U.S.adopt a national sustainable development strategy.
Sustainable Development: Now More than Ever, 32 Environmental Law Reporter 10,003 (2002). This article explains the meaning and importance of sustainable development for the United States.
Sustainable Development as a Framework for National Governance, 49 Case Western Reserve Law Review 1 (1998). Using the Earth Summit texts, this article explains the meaning of sustainable development for governance at the national level.
Reflections on Comparative Law, Environmental Law, and Sustainability, 3 Widener Law Symposium Journal 279 (1998). This brief essay explains how the U.S.and other countries can make progress toward sustainability by using laws that work effectively in other countries.
U.S. Adherence to its Agenda 21 Commitments: A Five-Year Review, 27 Environmental Law Reporter 10,504 (1997) (with the Widener University Law School Seminar on Law and Sustainability). This article is the only comprehensive review of U.S.efforts to implement its Earth Summit commitments between 1992 and 1997.
Pollution Control and Sustainable Industry, 12 Natural Resources & Environment 101 (1997). This article outlines what sustainable development means when applied to industry, the necessity for sustainable industry, and how sustainable industry can change and is already beginning to change the debate about pollution control.
The Global Environment Facility: Financing the Treaty Obligations of Developing Nations, 23 Environmental Law Reporter 10,214 (1993). This article is a review of the pilot phase of the Global Environment Facility, which is used under several multilateral environmental treaties to pay for the additional costs to developing countries of complying with those treaties.