General Practice, Solo & Small Firm DivisionBest of ABA Sections
SPRING 1998 - VOLUME 2, NUMBER 1
Natural Resources, Energy, and Environmental Law
Pollution Control and Sustainable Industry
By John C. Dernbach
Sustainable development has been defined as "socially responsible economic development" that protects "the resource base and the environment for the benefit of future generations." Our pollution control laws have moved the United States toward sustainable development. They have made our cities more livable, our lakes and rivers more suitable for recreation, our workplaces safer, and our air healthier. These laws have also shown that economic growth can occur without corresponding increases in pollution and energy consumption. The release of many pollutants has declined, and the energy required to produce each constant dollar of gross domestic product is almost 30 percent lower than it was in 1973.
Achieving sustainable development, however, will require massive changes in the industrial sector. "Whereas yesterday’s businesses were often oblivious to their negative impact on the environment and today’s responsible businesses strive for zero impact," writes Professor Stuart L. Hart of the University of Michigan Business School, "tomorrow’s businesses must learn to make a positive impact." That positive impact is impossible without a dramatic reduction in three things: pollution, materials consumption, and energy consumption. A growing global economy and population provide the underlying reason. The world’s population, now estimated at 5.7 billion, will grow to between 7.9 billion and 11.9 billion by 2050. In the same period, the global economy will grow to between four and five times its present size. As a result, industrialized nations will need to reduce material throughput, energy use, and environmental degradation by more than 90 percent in that period just to maintain overall impacts at current levels.
To foster a significantly more sustainable industrial sector, the nation’s laws will need to address at least four types of activities in a new and different way: (1) re-source extraction; (2) the use of resources in manufacturing products; (3) the use and disposition of products; and (4) consumption.
Resource Extraction. Many of the environmental, economic, and social impacts of various industrial activities are concentrated in the places where materials are extracted and converted into usable raw materials—in forests, mines, and oil fields.
Sustainable development changes the policy debate about the management of those resources in several important ways. The emphasis on ecological integrity, for example, means that one-species tree plantations are not an appropriate way to manage renewable resources such as forests. The ecological emphasis, in turn, requires the development and enhancement of incentives for private landowners. Most forests are on private land. As a result, sustainable forestry requires that private landowners have incentives to manage their property for both tree products and for other values, such as wildlife and biodiversity, that may not have an apparent economic value. It is also important to reduce the need for extraction of raw materials as much as possible. In addition to reducing the environmental impact of such activities, reducing extraction of raw materials preserves ecosystems as well as options for future generations.
Production. A consensus is emerging that our existing pollution control laws for manufacturing have achieved about as much as they can. Conventional regulatory approaches, often described pejoratively as "command and control," exact a toll on regulated industries. The criticisms are familiar to practitioners: traditional regulation is inflexible and costly, it does not encourage innovation, there is too much paperwork, and so on.
These laws also do not fully protect human health and the environment. They provide no coherent or compelling answer to the most fundamental question of all: Which pollutants should be regulated? About 1,134 pollutants are regulated as toxic or hazardous under at least one of five statutes. Only forty-nine are regulated under all five, however, and almost 800 are regulated under only one.
The debate about reforming pollution controls, unfortunately, has mostly been about means. Much is said about incentives, technology-based requirements, public information, risk, cost-benefit analysis, management systems such as ISO 14000, and enforcement. Little is said about the goals toward which those particular instruments should be directed. Regulatory reinvention proposals that include goals tend to present them in such vague terms as to be almost useless.
Congress should expressly foster ecologically efficient production through pollution prevention, energy conservation, and other means. It should set, or authorize the setting of, long- and short-term goals for reduction of pollutants, consumption of materials, and energy use within particular industrial sectors and at individual facilities. Such goals would be directly related to the performance that is being sought, easily understood by the public, and precise enough to provide a meaningful dialogue among affected parties.
Products. Products can pollute, both during proper use and after they are discarded. Products also use energy and materials. The rapid technical obsolescence of personal computers and the approaching retirement of an entire generation of old televisions as high definition television comes into prominence are two of the most obvious examples.
The President’s Council on Sustainable Development (PCSD) recommended the development of systems for extended product responsibility for all of those involved in the product’s life cycle. In addition to manufacturers, these would include designers, suppliers, and users of products.
By using analytical tools known as life-cycle analyses or life-cycle assessments, companies gain an understanding of the pollutants, materials, and energy involved in extraction of raw materials, production, use of the product, and management of the used product. This kind of systematic thinking is essential for sustainable industry.
The most sustainable approach will thus differ from product to product, but two things seem reasonably clear. First, manufacturers need to have greater legal responsibility for the design of their products and for encouraging more ecologically sound decision making by consumers. Second, manufacturers should have incentives to reduce the energy and materials use of their products as well as the pollution these products can create.
Consumption. From a sustainable development perspective, high consumption levels do not simply provide the background against which other problems must be addressed; consumption itself is the problem. If the planet develops to U.S. levels of consumption, the environmental stresses, as well as economic and social disruption, are likely to be overwhelming for everyone. With 5 percent of the world’s population, the U.S. was responsible for 24 percent of the world’s energy consumption and almost 30 percent of the world’s raw materials consumption in 1993.
Reducing consumption is hard to talk about in the United States because people tend to think about it in terms of limits or doing without things or comforts. But most of the policy debate so far has been about dramatically reducing the pollution, materials, and energy associated with manufacturing and the use of products, not about restrictions on the number and kind of products.
Conclusion. These four elements—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. On issues of this importance, our government leaders have an obligation to educate the public about our interconnected social, economic, and environmental problems and the choices we face in addressing them. We need debate and action in all levels of government, in both executive and legislative branches. It is there that much of the real change will need to occur.
John C. Dernbach is an associate professor of law at Widener University in Harrisburg, Pennsylvania.
This article is an abridged and edited version of one that originally appeared on page 101 in Natural Resources & Environment, Fall 1997 issue (12:2).