The Law of Sustainable Development: Keeping Pace

This article describes the emerging field of sustainable development law and examines whether it is up to the challenge it faces. In a world of finite resources overrun by sprawl, threatened by climate change, short on fuel, and long on greenhouse gas emissions, the law must keep pace. After discussing what sustainable development law is, the article considers the relationship between change in society and the evolution of legal principles, strategies, and practices, particularly with respect to land use, property, and natural resources. Documented in this review is the steady change exhibited in the common law applicable to the ownership, use, and preservation of natural resources, the rapid spread of zoning in the early 20th century, and the current explosion of climate change litigation and regulation. Based on these and other examples, the first half of the article demonstrates that the law can and does evolve in response to crises in society, particularly when lawyers, judges, professionals, and policy makers are trained to understand that law is an instrument for positive change. The article then turns to why law schools matter by drawing lessons from the author‘s personal experience at Pace University School of Law.  This article is written in preparation for a lecture given in conjunction with my appointment as James D. Hopkins Professor at Pace University School of Law, where I also serve as Counsel to the Land Use Law Center and Director of the Kheel Center on the Resolution of Environmental Interest Disputes. My thanks to Pace for this appointment and for the multi-year support it has provided for my scholarship on the topics covered by this article. Thanks also to several students who assisted with parts of this paper: Kelly Belnick, Alexandra Campbell-Ferrari, Noelle Diaz, Mike Goonan, Anne Ronan, Jamie Schenk-Allyn, and the editors of the Pace Law Review who did some heavy lifting of their own to document my narrative. My colleagues at the Land Use Law Center and Kheel Center whose steadfast commitment to using the results of our research to effect positive change on the ground have inspired my work more than they know. Heartfelt thanks to my stepfather, Watson W. Foster, for indelible life lessons too many to mention. 2010] SUSTAINABLE DEVELOPMENT 1247 Foreword: Too Big a Job I grew up on a ranch in western Nebraska. My stepdad supervised us as we worked around the main house one day when a young man named Ernest came to work for the first time. I watched as my stepdad told Ernest to fill a wheelbarrow with dirt from a pile near the house and move it to a spot near the corral. After each trip, my stepdad told Ernest to move another load, then another, then another. By mid-afternoon the entire pile of dirt was in its new location, where it was needed for a construction project. That night, I asked my stepdad why he didn‘t just tell Ernest to move the pile from the one place to the other. ―Because,‖ he replied, ―that would have been too big a job.‖ As our society grows more populated, complex, and demanding, we expect our laws and lawyers to do heavy lifting as well. In my experience, particularly as a teacher and supervisor of student work, the movement of the law is a bit like this story about Ernest. Let me explain. I. What is Sustainable Development Law? In 1983, the Secretary-General of the United Nations tapped Gro Harlem Brundtland, Prime Minister of Norway, to chair the independent World Commission on the Environment and Development, which had just been created by the U.N. General Assembly. Following World War II, economic development tended to be unfriendly to environmental interests and, in many countries, leave the poor behind. It was the Brundtland Commission‘s task to address this problem. In 1987, the Commission issued its report entitled Our Common Future. It defined sustainable development as development that meets ―the needs and aspirations of the present without compromising the ability to meet those of the future.‖ 1 The report begins with this aspiration: This Commission believes that people can build a future that is more prosperous, more just, and more secure. Our report, Our Common Future, is not a prediction of ever increasing environmental decay, poverty, and hardship in an ever more polluted world among ever 1. WORLD COMM‘N ON ENV‘T & DEV., UNITED NATIONS, OUR COMMON FUTURE 40 (Oxford Univ. Press 1987) [hereinafter OUR COMMON FUTURE]. 1248 PACE LAW REVIEW [Vol. 30:4 decreasing resources. We see instead the possibility for a new era of economic growth, one that must be based on policies that sustain and expand the environmental resource base.‖ 2 That economic development is linked to the quality of the environment is undeniable. The Commission noted that ―[t]here has been a growing realization in national governments and multilateral institutions that it is impossible to separate economic development issues from environmental issues; many forms of development erode the environmental resources upon which they must be based, and environmental degradation can undermine economic development.‖ 3 Those who urge environmental preservation are called upon to support sustainable development. Advocates of economic growth are urged to promote sound environmental protection policies. The Commission, nearly a quarter of a century ago, gave us a clear signal: support policies that encourage the proper type of economic development in appropriate locations, in order to protect the environment and ensure that development benefits all economic classes. Economic development is to be modulated both to lessen poverty and to improve the environment, and to do this with a view toward the needs of future generations! Sustainable development comprises economic development, ecology, and intergenerational equity: a heavy load indeed. The Brundtland Commission Report demonstrates that the serious threat of ―global warming‖ was well understood over twenty-five years ago. Its words, and the evidence on which they are based, are not ambiguous. The report cites work done by the World Meteorological Organization (―WMO‖) and the U.N. Environment Programme (―UNEP‖) which concluded in October of 1985 that ―climate change must be considered a plausible and serious probability.‘‖ 4 It goes on: ―[These organizations] estimated that if present trends continue, the combined concentration of CO2 and other greenhouse gases in the atmosphere would be equivalent to a doubling of CO2 from pre-industrial levels, possibly as early as the 2030s, and could lead to a rise in global mean temperatures greater than any in man‘s history.‘‖ 5 The report noted that CO2 emissions were accumulating in the atmosphere causing a