Sustainability and the law
There is mounting evidence that a “great transition” is required in the next few decades to avoid some form of significant collapse on a global scale. The exact nature of this impending collapse is not entirely clear, but it seems likely to involve all or part of our existing ecological, social, political and economic systems. It possibly threatens the future of human civilisation as we currently know and experience it.
The transition to sustainability will require multiple responses across different disciplines and stakeholders and must encompass all three “pillars” of sustainability (economic, social and environmental). As the other statements prepared by the WFG reflect, action is needed on many different fronts, including energy, food supply, the natural environment, human population growth and the economy. This statement adds a further dimension by considering the role of law as an instrument to support and facilitate the great transition to sustainability.
There has not yet been any detailed discussion of legal measures for sustainability and hence this is relatively uncharted territory. However, two existing areas of law may be relevant: environmental law and laws endorsing various principles of sustainable development. Each of these areas of law has evolved rapidly in recent decades and there is growing interest in the possibility that their further development could help accomplish the suggested “great transition” to sustainability.
There is a half-century of experience with the development and implementation of environmental laws, both international and domestic. These laws address the challenges of land use, pollution, climate change, loss of biodiversity and natural resources depletion. They have promoted new tools such as environmental impact assessment (EIA), ecosystem-based management and integrated natural resources management and have delivered some significant outcomes in terms of clean air and water and increased amounts of protected areas.
However, they have failed to arrest either global warming and climate change or the loss of biodiversity, as recognised in the new geological concept of the Anthropocene. Other environmental issues such as the pollution of the marine environment by plastics and the continued depletion of natural resources such as land, water, forests and fisheries also remain unresolved. In short, environmental laws have won some significant environmental battles but are losing the sustainability war. This realisation prompted the Places You Love Alliance recently to commission an Australian Panel of Experts in Environmental Law (APEEL) to produce a Blueprint for the Next Generation of Environmental Laws in Australia (see www.apeel.org.au ). This is an example of the emerging interest, noted above, in reinventing environmental law to meet the challenges of the next fifty years.
Legal Principles For Sustainable Development
Alongside the development of environmental laws, there has also been an effort to promote legal principles related to the global goal of sustainable development (SD). This goal was detailed in the Bruntland Report, Our Common Future (OUP, 1987) and it has been elaborated subsequently by the United Nations General Assembly through the adoption in 2015 of the Sustainable Development Goals (SDGs) and the 2030 Agenda for Sustainable Development.
Unfortunately, the sustainable development goal has not yet found a full and effective expression in law. Legislators and courts have sought to achieve this outcome by adopting various legal principles such as precaution and inter and intra-generational equity that put some meat on the bones of the sustainable development goal, but with only limited effect in practice. The United Nations is currently exploring the concept of a Global Pact on the Environment that would consolidate a range of relatively established environmental law principles within a single global instrument. In a more creative vein, the APEEL project proposed the adoption in legislation of two new principles of “environmentally sustainable innovation” that might lead to better outcomes from government decision-making. These are each valuable initiatives, but they are unlikely by themselves to make a significant contribution to the required great transition to sustainability.
The continued reform, or “re-imagining”, of environmental law and the legal principles that support the goal of sustainable development, is a laudable exercise that should be encouraged and supported. Innovative approaches, such as the recognition of rights for nature and the promotion of “ecological” rather than environmental law, are manifestations of the recognition that radically different legal measures and mechanisms are needed if we are to avoid collapse and to transition to a state of global sustainability. However, these efforts are unlikely to suffice for a range of reasons, not all of which are able to be canvassed here (e.g., widespread difficulties with the effective implementation of environmental laws and inherent flaws in the concept of sustainable development). If the suggested transition to sustainability is to be achieved, we suggest it will be necessary to look beyond the reform of existing measures such as those described above and to examine the idea of developing a new body of laws that is specifically focused on the goal of sustainability. To undertake this task, we identify below five specific avenues of enquiry that we believe will need to be pursued.
Five Avenues for the Development of Sustainability law
The first avenue involves an investigation of the underlying “drivers” of impending collapse (or “unsustainability”) and then establishing how law can help to address these. The subject of drivers of unsustainability is ripe for contention, but, as a starting point, we suggest that the relevant drivers include human population growth, excessive consumption of natural resources and the economic growth “paradigm”. Many other factors also might be considered as potential drivers, such as corruption, misplaced human values and the capitalist system. These should not be ignored, but we suggest that the drivers mentioned above, which collectively involve a failure to acknowledge that there are “limits to growth”, provide a suitable starting point for the proposed investigation.
There are also serious challenges in determining how law can help to address these drivers. This task will require innovative, even radical, solutions. To provide an insight as to how it might be undertaken, we will briefly consider the subject of excessive consumption, which is linked directly to the extraction of the natural resources required to produce most goods.
The GEO6 report published in March 2019 by United Nations Environment warns that resource extraction by mining and farming extractive industries is responsible for half of the world’s carbon emissions and more than eighty per cent of biodiversity loss. Over the past five decades, annual global extraction of materials has grown from 27 billion tonnes to 92 billion tonnes (as at 2017). It may be necessary therefore to substantially redesign the laws that govern resource extraction. These laws were designed originally to ensure the orderly allocation of exploitation rights and only more recently have they been revised to require consideration of the related environmental impacts. Their radical redesign in the future might involve the application of rules that allow for the extraction of natural resources only where the relevant resource can be fully replaced, if renewable, or can be guaranteed to be recycled and re-used, if non-renewable. Such a reform could have significant benefits beyond the reduction of consumption rates globally, most obviously in helping to address climate change and biodiversity loss. But it might also have wider, “spill-over” effects in relation to other drivers such as:
reducing corruption (which is particularly prevalent in relation to natural resources extraction);
restraining the power and influence of transnational corporations (which are heavily engaged in resources industries); and
addressing the growing disparity between the wealthy and the poor (by limiting the accumulation of wealth through resource extraction).
At the same time, it would be necessary to ensure that sufficient goods continued to be produced to improve material living standards in developing and transitioning countries.
At the international level, it may be necessary to reject the long-standing recognition that national sovereignty carries with it the right to exploit the natural resources within the boundaries of a nation so long as this does not cause harm to neighbouring countries, in favour of legal principles that acknowledge a need to conserve and protect such resources. The proposed reform of national laws concerning resource exploitation may require the prior reform of long-standing international norms and the substitution of new, agreed norms.
The second avenue involves the radical redesign of other, existing areas of law besides environmental and SD law, particularly those areas that govern economic activity. For example, we may need to redesign the legal concept of the corporation to replace its primary responsibility to return profits to its shareholders with a range of other obligations related to sustainability (rather than simply tinkering at the edges with reforms concerning reporting, accounting and directors’ duties). Likewise, areas such as taxation law, finance and investment law, patents law and possibly even property and trusts law, may require substantial reform from a sustainability perspective. Other regulatory measures that might currently inhibit innovative local initiatives to promote sustainability (for example, governing the generation, transmission and sale of energy) could also require reform. This avenue of inquiry ultimately could embrace many, if not most, aspects of the existing legal system.
The third avenue involves the consideration of the governance institutions that can contribute, as an accessory to reformed laws, to the transition to sustainability. Governance is a complex subject with many facets and the recognition of its relevance to sustainability is still emerging. One possible innovation might be the establishment of a National Sustainability Commission, with an equivalent status and powers to the Reserve Bank, which would establish national sustainability strategies, and monitor and report on progress with the implementation of these strategies.
In its broadest form, governance involves not only the administrative units of government but also contributions by the private sector and civil society. The second avenue described above could facilitate a significant involvement in governance for sustainability by the private sector, whilst the emergence of community-based constituencies for sustainability, as envisaged in the fifth avenue described below, may also involve a quite radical redesign of traditional governance institutions.
A fourth avenue that may prove controversial is the possible need to by-pass existing environmental laws in some situations so as to “fast-track” projects that can hasten the transition to sustainability – for example, by allowing renewable energy projects in spite of their negative impact on biodiversity. The compelling case to limit global warming is generating some discussion of this possibility, in particular amongst environmental lawyers in the USA, where projects can be delayed or rejected often through environmental litigation that is based on alleged non-compliance with EIA or endangered species laws. The argument for by-passing existing environmental laws to facilitate climate mitigation projects is a slippery slope that requires careful attention, particularly if it extends to approaches such as geoengineering. The discussion of this topic has barely commenced.
Finally, a fifth and critical avenue to pursue, if a new body of sustainability law is to evolve over the next couple of decades, is the development of a strong community-based constituency for radical law reform related to sustainability. No significant legal reform, whether it be the abolition of slavery, the emancipation of women by the right to vote, the end of Apartheid in South Africa or the recognition of civil rights in the USA, has occurred without a parallel social and political process to generate a widespread constituency in support of such reforms. How, when and where a substantial constituency might emerge with respect to the transition to sustainability is far from clear at present, but it may involve new coalitions not connected to existing policy influencers such as the environmental or social welfare movements. Possibly, emerging new movements, such as the Yellow Vests in France, the Extinction Rebellion in England, or even the Green New Deal advocates in the USA, are precursors to the mass movements that will need to develop around the transition to sustainability.
Whilst law is not capable by itself of delivering the needed transition to sustainability, it is unlikely that this transition can be accomplished without the adoption of supportive laws focused in an innovative way on the key drivers of unsustainability. The reform of existing environmental laws, together with those laws that promote various principles of sustainable development, is highly desirable and worthwhile, but is unlikely to provide sufficient support for the required transition. We need to develop a new body of sustainability laws that add a further dimension to environmental laws, and also to substantially revise many other existing areas of law related to economic activity. It may even be necessary on occasions to over-ride or bypass particular environmental laws in order to ensure the delivery of sustainability-related projects within the necessary, urgent time scale. The challenge of developing an effective body of sustainability laws needs to be recognised and pursued in the immediate future, but there will need to be an accompanying, community-based constituency for sustainability that includes support for law reform related to sustainability.