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Abstract:
This article explains the basic elements of climate change law, with a particular focus on those issues that promise to be important for a considerable time as well as the major factors that are driving the development of this law. The emerging law of climate change is being constructed at the intersection of several areas of law, including environmental law, energy law, business law, and international law. Any effort to address climate change also raises issues about the proper role of state and federal governments, as well as their relationship. This article is intended as an introduction to this complex and rapidly changing subject.

greenhouse gas emissions, fossil fuels, Kyoto Protocol, IPCC, climate change, environment

Abstract:
This article explains why policy makers should seriously consider substantial early reductions in greenhouse gas emissions as a part of any post-Kyoto framework, and sets out suggested elements of a framework for early action in a post-Kyoto agreement. Substantial early reductions are needed because of the growing urgency of the climate change science, the precautionary approach identified in the Framework Convention on Climate Change as a decision-making principle, the fact that cost-effective measures are now available, and the significant non-climate benefits (security, economic, social, and environmental) that can be achieved by implementing them. As a practical matter, too, long-term greenhouse gas emissions are virtually impossible without short-term reductions. The Convention also includes ethical obligations on developed countries to take leadership in addressing climate change and to reduce impacts on developing and vulnerable countries - which require early and substantial action.

The suggested framework for early action includes a short-term goal for stabilizing global greenhouse gas emissions, involves both developed and developing countries, and includes an agreement to deepen the emissions reduction commitment of the Kyoto cap-and-trade program. In addition, the parties should negotiate separate agreements concerning particular policies or economic sectors. These additional agreements make substantial short term emission reductions more likely, or increase the size of those emissions reductions. This appears to be true regardless of how the cap-and-trade part of the agreement is structured. The article proposes a process for identifying, agreeing to, and implementing policies and measures that will maximize the benefits resulting from short-term action. This legal structure would supplement, not replace, any system for achieving long-term goals that emerges from the Bali Action Plan.

climate change, United Nations Framework Convention on Climate Change, UNFCCC, Kyoto Protocol, Bali Action Plan, greenhouse gas emissions, fossil fuels, sustainable development, energy efficiency, trading, cap and trade, precautionary approach, ethics, equity, development, common but differentiated

Abstract:
The United State Supreme Court's holding in Massachusetts v. EPA that greenhouse gases are air pollutants under the Clean Air Act makes it virtually certain that federal climate change legislation will be accomplished by amending that Act. This Article explains and justifies an approach to federal climate legislation that uses and builds on the Act's various tools, including air quality standards, technology-based limitations, and state implementation plans. The Article discusses models for climate response that have emerged from state responses to date and presents the reductions that could be achieved if these were scaled up to the federal level. Federal legislative proposals to date fail to build upon these state lessons and do not provide adequate mechanisms to support the multi-faceted economy wide approach that can achieve needed reductions in a cost-effective manner. We suggest a mechanism whereby the Clean Air Act could be applied or adapted to incorporate state creativity to support the integrated, economy-wide approach that is needed. This approach could also motivate both the individual action and the international cooperation that are required to address climate change effectively.

climate change, Clean Air Act, federalism, legislation, Massachusetts v. EPA, greenhouse gas emissions, states

Abstract:
This Article argues that developed countries have an ethical responsibility to reduce energy consumption - through energy efficiency and conservation - as part of the global effort to reduce greenhouse gas emissions. While this responsibility is borne by nations themselves, it has consequences for the individuals living in those nations. This Article also argues that developing countries have different duties concerning energy consumption. Their responsibility to improve human quality of life will mean greater use of modern energy, especially when it is not now available. At the same time, developing countries should use energy efficiency and conservation when it is cost effective to do so.

United Nations Framework Convention on Climate Change, greenhouse gas emissions, climate change, equity, ethics, energy efficiency, energy conservation, common but differentiated responsibilities, sustainable development

Abstract:
Rising global demand for energy, high energy prices, climate change, and the threat of terrorism all point to the need for greater energy efficiency and conservation in the United States. While technological innovation is plainly needed, our laws and institutional arrangements must also play an important role. The United States has scores of legal and policy tools from which to choose to improve energy efficiency and curb energy consumption. This article evaluates a handful of these tools: transit-oriented development; fuel taxation; real-time pricing for electricity use; public benefit funds; improved efficiency in existing residential and commercial buildings; and expanded use of real freight. Greater efficiency and conservation based on these and other tools may allow us to stabilize U.S. energy consumption and then reduce it. As challenging as that goal might be, there is considerable evidence to believe that it is achievable.

energy efficiency, energy conservation, energy consumption, sustainable development, climate change, stabilization wedge

Abstract:
This article attempts to answer a question about the design of national climate change legislation that has not received significant attention: How should Congress engage individuals in the effort to address climate change? The comprehensive climate change bills introduced in Congress focus primarily on large emitting entities. While this focus needs to be a key element, individuals also need to be engaged. Individuals outside of their work are responsible for one-third of U.S. greenhouse gas emissions, and the U.S. has a higher per capita energy consumption rate than virtually any other country. Individuals can play at least two complementary and mutually reinforcing roles - as citizens participating in the implementation process and as consumers. Although each of the bills contains pieces of an individual engagement strategy, none reflect a comprehensive approach. The article recommends a broad range of provisions, including public participation, targets and timetables, numerous forms of public information, and a variety of incentives and pathways for individual action. The purpose of such provisions is to complement, not substitute for, provisions addressing major emitters. For example, allowances or proceeds from the sale of allowances should be distributed to individuals who engage in energy efficient or carbon-reducing activities. A congressional effort to engage individuals would take advantage of some of the nation's key strengths - individual initiative, engaged citizenship, and collective sense of purpose. Such legislation would more likely be at least equal to the challenge in front of us.

climate change, legislation, public participation, energy efficiency, energy conservation, allowances, U.S. legislation, climate change, sustainable development

Abstract:
The growing prospect of comprehensive national climate change legislation raises many important questions about the role of state efforts in a national climate change program. This article identifies the key state/federal issues that should be addressed in any comprehensive national comprehensive climate change legislation. It also provides recommendations for resolving these issues. In addition to a cap-and-trade program and uniform national standards for some sectors, federal climate change legislation should adopt and modify the State Implementation Plan model in the Clean Air Act. That is, states should be given responsibility through State Implementation Plans to achieve specified emissions reductions, including those from electricity demand reduction.

climate change, legislation,environment, clean air act, emmissions reductions, greenhouse gas

Abstract:
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). Part I of this Article is an overview of what the United States has achieved or not achieved concerning sustainability since 2002. While the United States has mostly moved in the wrong direction, there was significant progress in at least six areas: local governance, brownfields redevelopment, business and industry, higher education, kindergarten through 12th grade education, and religious organizations. Part II of this Article identifies 10 broad recommendations that the contributing authors make for the next 5 to 10 years. The journey toward sustainability will almost certainly take more than a generation. The purpose of these recommendations is to identify concrete steps that can be taken right now.

[comma separated]sustainable development, sustainable development-United States, sustainability, consumption, climate change, Agenda for a Sustainable America, population, poverty, international trade, international finance, official development assistance, natural resources, waste, toxic chemicals,

Abstract:
Sustainable development would require the United States to maintain and improve human prosperity while at the same time greatly reducing its 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. Because achieving sustainable development is a significant learning experience, the United States will need to employ a form of governance - reflexive governance - that requires constant learning and supportive citizens and stakeholders who are also working to ensure sustainability in their own activities. The two basic problems reflexive governance must address are the multigenerational nature of the effort and the need for across-the-board integration of environmental considerations into decision-making. The suggested legal structure includes a required national strategy, long-term and short-term goals, better integration of environment into decision making across and among various levels of government, public education and engagement, a broad range of legal and policy tools, feedback mechanisms to foster learning, and designated governmental entities for coordinating or managing this effort as well as providing an independent review of their efforts. The Governmental Performance and Results Act and existing environmental laws provide a starting point for this legal structure, but would have to be significantly amended.

sustainable development, sustainability, national governance, federal government, integrated decision making, Governmental Performance and Results Act, reflexive governance, climate change, environmental law, National Environmental Policy Act, Agenda for a Sustainable America

Abstract:
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. The article first describes the various drivers for sustainability in law schools. Clients are increasingly demanding that their lawyers 'walk the talk,' as many businesses and corporations already are. The universities that provide an institutional home for most law schools are also adopting sustainability policies and practices that influence their law schools. Within the legal profession, the American Bar Association, as well as many state and local bar associations, have adopted a number of sustainability policies and practices, and a growing number of law firms and other law organizations are doing the same. The article 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. The article also raises - and tentatively suggests some partial answers to answers to - a set of normative questions about precisely what law schools should be doing.

sustainable development, sustainability, legal education, law school, environmental law, climate change, biodiversity, Agenda for a Sustainable America, sustainable development-United States, nongovernmental organizations, law, governance, legal profession, lawyer, attorney

Abstract:
This paper assesses U.S. sustainable development efforts in the five-year period since the 2002 World Summit on Sustainable Development, and makes recommendations for the next five to ten years. National governance for sustainability requires at least three major elements--a legally grounded national-level strategic process, sustainable development indicators to measure progress, and public engagement and education on sustainability. The United States has no overall national strategy for sustainable development, and is a long way away from employing the strategic analysis and decision making required for sustainable development. The United States government has moved toward environmental indicators in the past five years, but not sustainable development indicators. While there has been a serious and necessary effort to engage the public on behalf of the nation's anti-terrorism effort, there has been no comparable effort to engage the public to address the variety of other sustainability threats we face, including climate change¿perhaps the most urgent and obvious of all sustainability issues. To move ahead, the United States needs to formally integrate sustainable development into its existing strategic efforts, develop a set of sustainable development indicators, seriously address climate change, and support and encourage the public on behalf of sustainability.

sustainable development, United States, federal government, Governmental Performance and Results Act, sustainable development indicators, public education, national strategy, partnerships, climate change

Abstract:
At the United Nations Conference on Environment and Development in 1992, the nations of the world committed themselves to an ambitious plan for achieving sustainable development (Agenda 21) and a set of principles to guide that effort (Rio Declaration). This Article addresses the meaning of sustainable development in three ways. First, it synthesizes Agenda 21, the Rio Declaration, and other texts into a conceptual framework for national governance. While these texts address international governance, they focus more on national governance. No such exposition of the sustainable development framework appears in the literature. Second, this Article argues that sustainable development provides a powerful and attractive set of tools for reinvigorating national governance. It would make governance more economically efficient, more socially productive and more environmentally protective. As a framework for governance, sustainable development also provides a response to many current trends that undermine the legitimacy and effectiveness of national governments in general, particularly globalization of the economy and the free market ideology that has become more prevalent since the collapse of the Soviet Union in 1989. Indeed, sustainable development provides an alternative to that ideology. Finally, the Article identifies unresolved issues in the sustainable development framework. These include the comparative responsibilities of developed and developing countries, high consumption of materials and energy by developed countries, the role of international trade, and the substantial commitment most governments already have made to unsustainable economic activities. Much of the framework's value is in the important issues it forces us to confront.

sustainable development, Agenda 21, Rio Declaration, UN Conference on Environment and Development, Earth Summit, integrated decision making, precautionary approach, precautionary principle, intergenerational equity, polluter-pays principle, subsidiarity, public participation, environmental law

Abstract:
Growing international pressure to curb greenhouse gas (GHG) emissions has focused attention on existing policies that may, either by design or by effect, subsidize fossil fuel production and consumption. This paper reviews existing studies of fossil fuel subsidies within the United States, as well as assessments of the potential impact of subsidy reform on GHG emissions. Evaluating the differences across the studies, it highlights the most important disparities in subsidy definition and valuation in order to clarify the conclusions that can be drawn from this body of work. For example, these studies place the costs of fossil fuel subsidies between $2.6 and $121 billion.

We then present some of the tools used to provide transparency in environmental regulation. If subsidies were exposed to the same transparency as federal environmental regulations, there would be a central registry, akin to the Code of Federal Regulations, where basic information about subsidies could be found. In addition, proposed subsidies would be subject to the same kind of public justification requirements to which proposed regulations are subject. Such public disclosure would likely improve governmental decision making about subsidies, engage the public in that decision making, and lead to the reduction or elimination of the most damaging or least effective subsidies.

subsidies, climate change, administrative law, Framework Convention on Climate Change, regulation, taxation, environmental law

Abstract:
This Article explains how and why sustainable development emerged as a conceptual framework, the basic concepts or principles on which this framework is based, why sustainability is primarily a matter for domestic national governance, and why the United States needs to play a leading role in fostering sustainable development. Because "sustainable" modifies "development," it is first important to understand what development means. Since the end of World War II, development has included at least four related elements: peace and security, economic development, social development, and supportive national governance. Each element is reflected in major multilateral treaties that provide a common framework for relations among sovereign nations as well as a shared set of national purposes. These elements together are intended to foster human quality of life and opportunity.

While the development model has been successful on its own terms, it has not addressed or prevented two related problems - environmental degradation or the large number of people living in poverty. Sustainable development modifies the traditional development model by adding a fifth element, protection of the environment, but the idea of fostering human quality of life and opportunity remains the same. Key principles include integration of the environment into decision making, the polluter-pays principle, the precautionary principle, intergenerational equity, public participation, and common but differentiated responsibilities for developed and developing countries. Because of national sovereignty, sustainable development is primarily the responsibility of national governments. While environmental and conservation laws provide a foundation for sustainable development, they do not reflect the range or depth of necessary actions, nor are they necessarily the most economically efficient means of achieving sustainable development. The United States should play a leading role in addressing sustainable development because of the contribution it has made to global environmental challenges and because of its enormous potential capability to address these challenges.

sustainable development, Rio Declaration, Agenda 21, Brundtland Commission, national governance, development, integrated decision making, environmental law, polluter-pays principle, intergenerational equity, public participation, common but differentiated responsibilities

Abstract:
This Article assesses the relationship between state climate change mitigation measures and potential national climate change legislation. It describes and evaluates eleven different legal and policy tools being employed by states. These are: customer choice of electricity providers, environmental labeling requirements for electricity sources, building codes requiring energy efficiency, demand-side management, system benefit charges, cap-and-trade programs, tax credits, net metering, planning and siting preferences for renewable energy facilities, CO2 limits for new power plants, and renewable energy portfolio standards.

Two broad conclusions emerge from this analysis. First, these tools have considerable potential to reduce greenhouse gas emissions. They achieve reductions primarily within the borders of the states that enacted them, not elsewhere. These tools are often used in mutually reinforcing combinations, not as stand-alone measures. While no one of these tools is necessarily capable of achieving great reductions, the careful combination of many tools is likely to have significant effects. To be sure, the effect of state actions so far is relatively modest. Still, they have considerable potential to reduce net emissions. These tools also provide a variety of benefits in addition to mitigating climate change. They are intended to conserve energy, limit other air pollutants, foster local economic growth, lower energy costs on the poor, and serve other purposes. Indeed, they are notable in part because these other benefits likely equal or even exceed their benefits in reducing greenhouse gases. Finally, these tools appear to involve negligible costs.

Second, a strong case can be made for applying these tools at the national level. Many state tools result from, or work within the framework of, federal energy or environmental law. National use of these tools is likely to result in deeper reductions in net greenhouse gas emissions than state-by-state action. National uniformity in rules, particularly for market-based approaches, is likely to enhance the effectiveness of such approaches. National use of these tools is also more likely to reduce national security risks from climate change. If these tools can work at the state level, they surely can do so nationally. Because states have historic police power roles that are relevant to climate change, moreover, any national legislation should enlist the states in creative and effective ways.

Framework Convention on Climate Change, Kyoto Protocol, climate change, states, state government, sustainable development, sustainability climate change, state climate change initiatives, federal climate change legislation, energy efficiency, renewable energy, federalism, federal government, state g

Abstract:
This paper provides a brief assessment of the ethical issues raised by the Intergovernmental Panel on Climate Change's (IPCC) Working Group III report, Mitigation of Climate Change. It argues that energy efficiency and conservation are not simply two more options that can be employed to address climate change; they are the most equitable and sustainable options. The other major options available to address climate change are direct reduction of greenhouse gas emissions, long-term storage of carbon, and adaptation. The paper argues that Working Group III should issue a special report in the near future assessing the potential of energy efficiency and conservation to contribute to stabilization of greenhouse gas emissions in the next ten years. It also argues that Working Group III should directly address developed country leadership in future reports, especially on per capita energy consumption and greenhouse gas emissions.

United Nations Framework Convention on Climate Change, Intergovernmental Panel on Climate Change, Working Group III, Mitigation of Climate Change, climate change, equity, ethics, energy efficiency, energy conservation, common but differentiated responsibilities, sustainable development

Abstract:
Integrated decisionmaking is the foundational principle of sustainable development. Other principles, including the precautionary approach or principle, intergenerational equity, and public participation, all depend on integrated decisionmaking. Unsustainable development results from the fragmentation of decisionmaking into economic, security, environmental, and social categories. Thus, sustainable development requires that fragmentation in decisionmaking be eliminated - that environmental and social concerns be integrated into economic and security decisionmaking. This integration can and should be done in many ways. Decisionmaking processes can be integrated according to their objective, the resources they affect, the activities on which they are based, the place in which activities take place, and the time over which their effects will be felt. A variety of legal and policy tools can be integrated into the decisionmaking process. In addition, the actions of multiple decisionmakers can be integrated with each other. The foundational aspect of integrated decisionmaking has substantial practical consequences for the achievement of sustainable development, for it suggests that the achievement of sustainable development will depend to a great degree on the extent to which integrating legal and analytical tools can be devised and employed. The many forms of integrated decisionmaking suggest a set of important law and policy tools for achieving sustainable development - tools whose potential we have only begun to exploit.

sustainable devleopment, decisionmaking, integrated decisionmaking, precautionary approach, intergenerational equity

Abstract:
This article explains what sustainable development would mean for cities and other communities in the United States, describes U.S. efforts toward sustainable communities between 1992 and 2002, and recommends actions for the next decade. While the connections between environment and development are often abstractions at the national and international levels, they are perhaps nowhere more clear than the places where people live, work, and play. Municipalities should work with each other and with other levels of government to integrate their decision making processes for environment and development, using a strategic planning process and setting goals. Between 1992 and 2002, a small number of local governments addressed sustainable development in some comprehensive way. Sustainable community efforts were most visible on specific issues such as brownfield redevelopment; public access to information, participation, and justice; land use; transportation; housing; public health services; and education. In the coming decade, local governments should adopt and implement sustainable development strategies in coordination with nearby municipalities, and that states and the national government support such efforts. Sustainable development can and should be the organizing principle for improving quality of life and opportunity in our communities. The article also includes recommendations on specific issues.

sustainable development, sustainable communities, brownfield redevelopment, land use, transportation, housing, public information, public health services, education

Abstract:
This article attempts to answer a question about the design of Lieberman-Warner Climate Security Act (S. 2191) that has not received significant attention: How should Congress engage individuals in the effort to address climate change? Individuals outside of their work are responsible for one-third of U.S. greenhouse gas emissions, and the U.S. has a higher per capita energy consumption rate than virtually any other country. The article recommends a broad range of provisions, including public participation, targets and timetables, numerous forms of public information, and a variety of incentives and pathways for individual action. The purpose of such provisions is to complement, not substitute for, provisions addressing major emitters. A congressional effort to engage individuals would take advantage of some of the nation's key strengths - individual initiative, engaged citizenship, and collective sense of purpose. Such legislation would more likely be at least equal to the challenge in front of us.

climate change, legislation, energy efficiency, energy conservation, allowances, offsets, U.S. legislation, climate change, sustainable development, Warner-Lieberman Climate Security Act

Abstract:
This book addresses two questions. First, what progress did the United States make toward sustainable development between the 1992 (the date of the U.N. Conference on Environment and Development, or Earth Summit) and 2002? Second, what should the United States do next, particularly in the next 5 to 10 years? The primary focus of this book is law and policy because law and policy represent one of the most powerful ways to change a society's behavior. The book's 32 chapters were written by 42 contributors. The book is divided into sections on consumption and population; international trade, finance, and development assistance; conservation and management of natural resources; waste and toxic chemicals; nongovernmental actors; education; institutions and infrastructure; and governance. The book provides a critical appraisal of U.S. activities, identifying both progress and shortcomings. It also makes recommendations for short-term and long-term actions. More broadly, the book refines and applies sustainable development concepts to the United States. While the United States has unquestionably begun to take some steps toward sustainable development, the country is now far from being a sustainable society, and in many ways is farther away than it was in 1992. The book contains a Synthesis summarizing its findings and recommendations.

sustainable development, sustainable development-United States, consumption, population, international trade, international finance, official development assistance, natural resources, waste, toxic chemicals, nongovernmental actors, education, governance

Abstract:
This article explores how law can use individual behavior to stabilize and reduce U.S. energy consumption. Drawing on the work of social scientists and behavioral researchers, it concludes that many opportunities exist to influence individual behavior to increase energy efficiency and reduce energy consumption. More broadly, the options suggested by this literature provide an important bridge between purely regulatory approaches and purely voluntary approaches. They provide a way of addressing the seemingly intractable problem of individual choices that lead to greater and greater energy consumption. To be sure, a variety of technological, economic, legal, and other barriers to energy efficiency also exist. Thus, the approaches suggested here are in addition to those needed to overcome these other obstacles.

regulation, energy consumption, energy efficiency, individual behavior, climate change, environmental law, motor vehicles, buildings, appliances

Abstract:
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. While it is possible for industry to have a positive impact, achieving that positive impact will require a dramatic reduction in three things: pollution, materials consumption, and energy consumption. A growing global economy and population provide the underlying reason. To foster a significantly more sustainable industrial sector, United States laws will need to address at least four types of activities in a new and different way: (1) resource extraction, (2) the use of resources in manufacturing products, (3) the use and disposition of products, and (4) consumption. Goals for reductions in pollution as well as energy and materials consumption should be a major feature of these new laws. The article illustrates, on an activity-by-activity basis, some of the changes that may be required. These four activities extraction, production, products, and consumption and the goals they entail, indicate that current environmental laws, for all their volume and detail, are relatively superficial; they only scratch the surface of what sustainable industry means.

sustainable industry, industry, Agenda 21, sustainable development, environmental law, pollution prevention, pollution control, consumption

Abstract:
The debate about how to regulate has all but ignored the most fundamental question of all - what to regulate. This article analyzes similarities and differences in the lists of regulated toxic and hazardous pollutants under five statutes the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Occupational Safety and Health Act and the consequences of those choices.

The article first provides a comparative analysis of the five lists, highlighting the extent of the inconsistencies in their coverage. A total of 1134 pollutants are regulated as toxic or hazardous under at least one of the five statutes, but only 49 are regulated under all five, and nearly 768 are regulated under only one. The article then analyzes the development of all five lists to show that policy grounds fail to explain or justify the inconsistencies in coverage. To some extent, differences in chemical effects do account for discrepancies. Most differences among lists, however, stem from the fact that different experts developed the lists independently over two decades and based the lists on different criteria. Inconsistencies in the lists limit the practical effectiveness of environmental protection and occupational health laws. Regulatory gaps encourage the transfer of pollutants that are regulated in a particular medium into other, unregulated media. In addition, inconsistent listing prevents government officials, the public, and most facility managers from gaining an overall understanding of the types and amounts of pollutants being released from and within individual facilities. The article concludes with a legislative proposal to address the problem. By focusing directly on pollutants and pollutant reductions, and by requiring more complete information about pollutants, Congress could, at a greatly reduced cost, better protect human health and the environment.

environmental law, pollution prevention, risk assessment, risk management, regulation, pollution control, toxics, toxic chemicals, hazardous, environmental regulation, toxics release inventory, EPCRA

Abstract:
The article explores what we can learn about sustainable development, and the progress the United States has already made or not made, by looking at citizen suits under United States environmental law. The article focuses on four aspects of citizen suits: the manner in which they allow access to U.S. courts, the rules concerning standing to sue, the purposes of the laws that have provisions authorizing citizen enforcement, and the extent to which we would want such provisions in a world that has reached some form of sustainable development.

Citizen suits are an important part of an environmentally sustainable legal system because they provide access to justice for persons injured by violations of environmental laws. The law of standing requires plaintiffs to allege injury to their uses of the environment as a result of the defendant's use or misuse of the environment. It thus suggests, in rough terms, competition between sustainable uses and unsustainable uses. The plaintiffs in the U.S. Supreme Court's decision in Tennessee Valley Authority v. Hill (1978) provide a useful example of that point. The environmental laws being enforced in citizen suits tend to be based on a damage control model of environmental protection, largely to reduce economic and social costs. In a sustainable society, by contrast, economic development could help drive both greater environmental protection and greater social well-being. Moreover, environmental protection in a sustainable society would be based on the full range of laws and policies that affect the environment, not just environmental regulation. Yet even these laws would need to include citizen suit provisions of some kind, because citizen involvement is necessary for sustainable development.

sustainable development, environmental law, citizen suit, Tennessee Valley Authority v. Hill, standing,environment, public participation, Agenda 21, Rio Declaration

Abstract:
This essay aims to persuade the U.S. environmental law profession that sustainable development is important to them, in their various roles as advocates, counselors, and citizens. Sustainable development is increasingly important to their clients, businesses, causes, or communities. As federal, state, and local governments move to sustainable development, they will need the guidance of the legal profession in the fundamental law reform that is required, including not only better environmental statutes but also the widespread adoption of new legal instruments such as economic tools, tax laws, property laws, and land use and planning authorities. Corporations will need the service of counsel to embrace the new, more comprehensive system of regulation, incentives, and contracts, including implications for compliance and liability, as well as opportunities for profit. Citizen organizations will need the best possible lawyering to ensure that implementation protects the public interest. Environmental lawyers should also care because sustainable development is important to the future of America. Sustainable development is squarely within the U.S. national interest, as traditionally defined â014 in our economic interest, in our social interest, in our security interest. The United States is by far the world's largest consumer of energy and materials, and the world's largest polluter, so it is impossible to achieve sustainable development on a global basis without U.S. participation in a broad international effort, including implementation across American society. In turn, U.S. economic health depends on foreign resources and foreign markets, including, importantly, those in the poorer countries. Given the threat to our nation and our planet, however, sustainable development may require more than participation by attorneys; it may imply a new professional duty.

sustainable development, environmental law, legal profession, lawyer, attorney, legal ethics, pollution control

Abstract:
This article is a critique of Bjørn Lomborg's The Skeptical Environmentalist (2001) from the perspective of sustainable development. While the author often uses the language of sustainable development, the book would turn sustainability on its head.

It is generally true, as Lomborg says, that many social and economic measures of human well-being have improved, including life expectancy, human health, and education. But the book systematically underestimates environmentally-related risks, ignores the problem of unsustainable patterns of production and consumption, and does not seriously address the moral and even religious issues raised by global environmental degradation.

Lomborg also asserts that children born today will unquestionably be better off in both developed and developing countries, if only we focus primarily on economic development. While economic development is important, it is not the complete answer, and not all forms of economic development will do. Laws and policies need to play a role in fostering economic, social, environmental, and security goals in mutually reinforcing ways. We need to recognize at least six things about these laws and policies: 1) good governance and other factors, not just economic growth, contribute to human quality of life, 2) laws and policies are essential for environmental protection, 3) poverty and environmental degradation are mutually reinforcing, 4) economic growth is not an essential precondition to environmental protection, 5) precautionary measures are appropriate to address significant environmental risks, and 6) laws and policies are increasingly available for sustainable development. The book is inconsistent with at least five of these propositions; it occasionally concedes that laws and policies may improve environmental quality. The good news is that the risks we face are also opportunities to improve human quality of life; appropriate laws and policies that address these risks provide a more realistic basis for a future in which we are all better off.

sustainable development, Lomborg, skeptical environmentalist, environment, science, environmental law, national governance

Abstract:
The broad international framework for sustainable development contains few specific goals for environmental protection and social well-being. At both the national and international levels, targets and timetables for achieving particular sustainable development objectives make sustainable development more understandable and more achievable. Targets and timetables by themselves are not enough; they must be accompanied by political and legal commitments and resources to achieve them, as well as appropriate governance structures. The article surveys international efforts to establish targets and timetables for sustainable development, including the nonbinding agreement reached at the World Summit on Sustainable Development (which includes the U.N. General Assembly's Millennium Development Goals). While some progress has been made, targets, timetables, and effective implementing mechanisms will need to play a greater role in achieving sustainable development - internationally and at the national level - in coming decades.

sustainable development, World Summit on Sustainable Development, Millennium Development Goals, targets and timetables, implementation

Abstract:
This is a review of United States sustainable development efforts at the national level from 1992-2002. At the United Nations Conference on Environment and Development in 1992, the United States and other countries agreed to develop and implement a national sustainable development strategy in order to fully integrate environmental matters into national decision making. In this period, the United States did not have such a strategy. Through much of the Clinton Administration, the President's Council on Sustainable Development (PCSD) (1993-1999) provided the basis for such a strategy through a rich variety of policy recommendations, but relatively little effort was made to implement them within the executive branch of the federal government. While committed individuals were working within some specific agencies, there was no individual or organizational entity at the helm to steer the executive branch, or any charted course by which to steer. The congressional effort to foster sustainable development during this period was even more meager. There appears to have been little if any strategic thinking within the U.S. as a whole about how the United States can and should achieve sustainable development. The United States should develop and implement a strategy for achieving sustainable development. Within the executive branch, there should be a coordinating entity or mechanism for this strategy as well as for the integration of sustainable development concepts into its day-to-day activities. A parallel mechanism or entity should exist within Congress.

sustainable development, national governance, integrated decision making, President¿s Council on Sustainable Development, Agenda 21, Rio Declaration, Governmental Performance and Results Act, public education, sustainable development indicators, United Nations Conference on Environment and Developme

Abstract:
The first part of this Article suggests a framework for understanding Article I, Section 27 of the Pennsylvania constitution. This second and final part of the Article outlines ways in which that framework should be applied.

The Article argues that the environmental rights and public trust provisions of Article I, Section 27 are self-executing against the government. The public trust clause requires an understanding of the trust corpus (publicly-owned natural resources), the trustee (state), the beneficiaries (the public, including future generations), and the substantive obligations of the trustee (to conserve and maintain these resources). Because the state's obligation to conserve and maintain public natural resources for the benefit of all the people is stated in the Amendment itself, this obligation should be the basic benchmark against which state decisions concerning management of these resources are judged. Courts should read the environmental rights clause to prohibit the state, including any state agency or municipality whose decisions affect these resources or values, from interfering with their protection.

In addition to its substantive application, Article I, Section 27 has also been used by the courts to reinforce the application of other rules or principles. Article I, Section 27 confirms and extends the application of the police power to environmental matters, provides guidance in statutory interpretation, and supports the constitutionality of laws whose constitutionality has been challenged on other grounds.

Finally, the public trust clause suggests the need for judicial recognition of several subsidiary rules that reinforce the state's substantive obligations. In private trust law, the trustee is obliged to keep track of the trust corpus, to report to the beneficiary at the beneficiary's request on the status of the trust corpus, and to permit third-party auditing of the trustee's accounts. Such obligations would reinforce the state's substantive obligations under Article I, Section 27 and would also force the state to deal with its trust responsibilities in a more holistic manner.

environmental law, property rights, constitutional law, state constitutional law, Pennsylvania, sustainable development, public trust doctrine, environmental rights

Abstract:
Article I, Section 27 of the Pennsylvania constitution does something that statutes and regulations cannot do; it makes environmental and historic protection part of the constitutional purpose of state government. This two-part Article explains how the Amendment accomplishes that purpose and what it should mean for Pennsylvania, and suggests the value of similar inquiries under other state and national constitutions. Pennsylvania's experience is particularly important in understanding such provisions because Article I, Section 27 is the most prominent environmental amendment to a state constitution.

Part I of this Article suggests an interpretative framework for understanding the Amendment that is based on its text, legislative history, and purposes. First, the Amendment creates two separate constitutional rules - one concerning the public's right to clean air, pure water, and the preservation of certain environmental values; and the other creating a public right in the conservation and maintenance of public natural resources.

Second, Article I, Section 27 gives the environment the same legal protection that other provisions of the state constitution give to individual property rights. The Amendment, when balanced by provisions protecting property rights, is thus not anti-development. Rather, it is directed toward environmentally sustainable development.

Third, Article I, Section 27 needs to be understood primarily on the basis of governmental responsibilities. While citizen rights are an essential part of the Amendment, such rights should be directed primarily at enforcement of the government's duties.

Finally, when legislation or administrative regulation provides as much protection as Article I, Section 27, or even more protection, there is no need for judicial enforcement of the Amendment. Where legal gaps exist, however, courts should enforce the substantive rules contained in the Amendment. Courts should also use Article I, Section 27 to support the application of other legal rules. These four premises create a framework for understanding the environmental rights and public trust parts of the Amendment, which are discussed in detail in Part II of this Article.

environmental law, property rights, constitutional law, state constitutional law, Pennsylvania, sustainable development, public trust doctrine, environmental rights

Abstract:
This article explains why industrial waste that is not legally hazardous must be given greater attention and regulatory oversight. Industrial waste (including coal ash) may represent as much as 94 percent of municipal, hazardous, and industrial wastes combined. The article explores the existing federal framework for industrial waste and looks at innovative state approaches, particularly the approach taken in Pennsylvania. The article recommends four national goals for addressing industrial waste: energy and materials conservation, environmental protection at waste management facilities, prompt and significant results, and genuine state and federal partnerships. The author suggests changes to the federal Resource Conservation and Recovery Act that would help achieve these goals.

[comma separated] industrial waste, industrial solid waste, coal ash, bottom ash, fly ash, disposal impoundment, solid waste, waste disposal, groundwater contamination, groundwater pollution, Resource Conservation and Recovery Act, residual waste, Pennsylvania

Abstract:
This article evaluates U.S. activities related to sustainability in the five-year period immediately following the 1992 United Nations Conference on Environment and Development (or Earth /summit). The article evaluates 17 different areas of activity, including agriculture, forestry, community sustainability, and official development assistance. In this period, the Earth Summit had little discernible effect on U.S. law and policy. The article recommends that the country adopt an overall sustainable development strategy, educate the public about the importance of sustainable development and the choices the nation faces, and intensify its efforts to move toward sustainable development. This article is the first of three such evaluations of U.S. sustainability efforts. The other two are books: Stumbling Toward Sustainabilty (2002) and Agenda for a Sustainable America (2009).

sustainable development, sustainable development-United States, Agenda 21, official development assistance, natural resources, environmental law, national strategy, President’s Council on Sustainable Development, consumption, climate change, education, governance

Abstract:
On Wednesday, Nov. 29, 2006, the U.S. Supreme Court heard oral argument in the first case on climate change to reach the high court. University of Arizona College of Law professor Kirsten Engel co-authored an amicus brief in the case on behalf of a group of world renown climate scientists together with Professors John Dernbach of Widener University School of Law, Robert B. McKinstry Jr., of Penn State University and Stephanie Tai of the University of Wisconsin School of Law. The lawsuit will decide whether the federal Clean Air Act applies to climate change and whether EPA had a nondiscretionary duty to regulate climate-warming greenhouse gases from motor vehicles. EPA refused to regulate these gases in 2003; shortly thereafter Massachusetts and other states and environmental groups brought suit against the federal environmental agency. The brief filed by Engel and others claims that EPA and the federal appeals court mischaracterized a critical government report on climate change - written by many of the scientists on the amicus brief - by making knowledge of climate science seem less certain than it really is. The brief states that, in refusing to regulate, EPA failed to apply the standard set forth in the federal Clean Air Act.

climate change, Clean Air Act, Massachusetts v. EPA, Amicus brief, scientists, scientific certainty