Navigating the U.S. Transition to Sustainability: Matching National Governance Challenges with Appropriate Legal Tools John Dernbach Widener University Law School

22 The U.S. Sustainability Paradox  Well developed and reasonably effective body of environmental law  Has not prevented continuing deterioration of environment  U.S. models a high- consumption standard of living that is unsustainable

3 What should the U.S. do?  1. The United States should systematically reduce its ecological footprint.  2. The United States government must adopt, as soon as possible, greenhouse gas emission reduction programs that will reduce U.S. emissions to our fair share of safe global emissions.  The United States should create more employment opportunities in environmental protection and restoration, and make it easier for unskilled and low- income persons to enter and remain in the workforce. Agenda for a Sustainable America (2009)

4 Why governance for sustainability is different  Directed at huge long-term goal—sustainability  At least two generations  2-, 4-, and 6-year election cycles  Little or no national experience of intentionally moving from one state of affairs to another over a period of that length  Challenge of constantly moving toward that goal in face of new crises, information, and ideas  Systematic integration of environment with development raises issues with which we have relatively little experience  Integration is necessary  Integration makes decision-making more complex

5 Reflexive governance for sustainability  Reflexive law: procedural requirements that encourage self-critical reflection by private and public entities on their environmental performance.  Examples:  National Environmental Policy Act  Public participation in environmental decision making

6 Reflexive law and governance can:  provide information to government agencies and institutions on effectiveness of particular laws and policies, which can then be used to modify those laws and policies  encourage nongovernmental entities, including businesses, to make their activities more sustainable, without being overly prescriptive

7 National strategic process  Navigation tool for identifying priority issues and objectives, and coordinating development and use of a mix of policy and legal tools  Directed at achievement of specified goals  Process, not a document  Netherlands strategic process includes—  Vision for sustainability  Transition goals and agendas  Creation and maintenance of public support  Explicit use of learning goals for policy decisions  Periodic reassessment and adaptation

Toward a national legal structure for sustainability

9 Mandatory strategic process  Needs to be founded in law, not simply policy or executive order  Amend Government Performance and Results Act:  Require each agency’s strategic plan, and annual reports on its implementation, to be explicitly directed toward sustainable development  Require development and implementation of single strategic plan  Synthesizes various agency plans  Identifies key sustainability issues and challenges

10 Policy integration  Short-term and intergenerational goals  Horizontal integration  federal agencies  Additional decision making criteria or principles  Sustainable development (Canada)  Reduction in consumption patterns, precautionary approach  Biodiversity conservation

11 Vertical integration  Federal, state, and local governments all need to be working together in mutually reinforcing ways toward same goals  Congress could:  Fund (or condition funding) on state and local sustainability efforts  Provide means of sharing what works  Permit continued state and local efforts even when national legislation is adopted (e.g., climate change)

12 Public education and engagement  Sustainability indicators  Public disclosure and reporting requirements for subsidies  Public information—for example:  Greenhouse gas impacts of products  Corporate reporting of progress toward sustainability goals  Engage individuals in national effort to address climate change  National partnerships for sustainable development

13 Broad range of economic and policy tools  Greater use of economic tools  New legislation to address pressing issues (e.g., climate change)

14 Address anti-environmental laws  Environmental Law  Intended primarily to protect human health and environment  Primarily regulatory  Transparent  Significant public participation  Well documented  Anti-Environmental Law  Effect is to harm environment and public health  Exists in all types of laws  Not transparent  Not subject to significant public participation  Not well documented

15 Governmental coordinating or implementing entities  Single government entity needs to have responsibility for directing and coordinating this effort.  Most effective approach involves office or department with cross-cutting function across government. Environmental agency is not normally best choice. Options:  CEQ  OMB  New independent agency

16 For more detail: See Navigating the U.S. Transition to Sustainability: Matching National Governance Challenges with Appropriate Legal Tools (2009), ?abstract_id=

17 Prof. John C. Dernbach Widener University Law School 3800 Vartan Way Harrisburg, PA (717) (717) (fax)