The Sustainable Development Principle in United States Environmental LawLaw Faculty Scholarly Articles
AbstractThe American public perceives the principle of sustainable development and sustainability, the shorthand nomenclature, through green-tinted lenses. Whether the user of the term is academic, corporate, or governmental, the advocate of sustainability is understood as an advocate of protecting the environment. The international legal understanding of the principle of sustainable development, however, is more ambiguous than this popular American understanding. Part II of this Article describes the important principle of sustainable development in modern international environmental law. It discusses how the sustainable development principle has evolved from its initial appearance in the 1987 Brundtland Commission Report through its central position at the Rio Earth Summit of 1992. These formulations of the principle accepted that two contrasting goals-environmental protection and economic development-combined to define sustainable development. The Johannesburg Summit of 2002 returned to the question of the meaning of sustainable development and accepted a definition that enriches the principle's paradoxical nature. This international understanding of sustainable development minimizes its value as a principle of international law because so much government policy may be defended by reference to it. The principle may, however, provide a framework for assessing a particular nation's environmental law. Part III addresses the extent to which U.S. environmental law adheres to the principle of sustainable development. The Article evaluates three broad approaches taken by the principal federal environmental statutes. The first approach, the "thumb on the scale" approach, includes the Clean Air Act ("CAA") and the Clean Water Act ("CWA"). The second approach is the balancing approach, which includes the National Environmental Policy Act ("NEPA"), the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), and the Endangered Species Act of 1973 ("ESA"). The third approach, which is to shift the regulatory regime along the sustainable development spectrum, features the Toxic Substances Control Act ("TSCA"), the CAA regulation of hazardous air pollutants mandated by the 1990 amendments, the Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund"), and the Safe Drinking Water Act ("SDWA"). An analysis of these statutes reveals a wide range of approaches to balancing environmental protection with economic growth. Although the wide variety of U.S. environmental protection statutes makes them difficult to evaluate with regard to sustainable development, Part IV presents several conclusions. When deciding whether U.S. environmental law conforms to the principle, one important conclusion is that the CWA fails to offer sufficient protection of the environment. This summary also shows how sustainable development values may be accounted for in the type of regulatory response that is employed. Favoring environmental protection is more likely to be politically acceptable if the resulting regulatory requirements are less expensive. The sustainable development principle also assists in understanding when less protection of the environment is more defensible.
Citation InformationMichael P. Healy, The Sustainable Development Principle in United States Environmental Law, 2 Geo. Wash. J. Energy & Envtl. L. 19 (2011).