Sustainable Development: Some Legal and Economic Perspectives
by Michael Watson, Ph.D. [1]
Introductory paper at the Round-Table Conference "Sustainable Use of Natural Resources on Middle Danube" (May 11, 2003)
Although 'sustainable development' is the central principle of international environmental law, its meaning is contested. The term was first brought into prominence in 1980 when the World Conservation Union published its World Conservation Strategy. Seven years' later the World Commission on Environment and Development (chaired by Gro Harlem Brundtland) produced a report - Our Common Future - which provided a definition: 'Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs'.[2] This widely-used definition is notoriously vague. In essence it states a problem without solving it.
- What are'needs'? Are needs the same as wants?
- What is development? Does it mean an ever-increasing supply of services and goods? How should development be measured?
- Should equity take priority over economic efficiency? How can there be equity between generations?
- Should assumptions be made about the ability of future technological advances to alleviate resource scarcities?
The ecological economist Herman Daly has argued that: 'Sustainable development is a term that everyone likes, but no one is sure what it means'.[3] It must, of course, be recognised that the report had to be acceptable to most members of the United Nations. Ambiguous statements are more likely to pass this test than precise ones. Despite its weaknesses, it would be difficult to exaggerate the importance of Our Common Future. According to Susan Smith, it 'catapulted the principle of sustainable development to paramount international significance'.[4] In 1992 the Royal Society of London and the United States National Academy of Sciences produced a joint action statement titled Population Growth, Resource Consumption and a Sustainable World. This said:
'The future of our planet is in the balance. Sustainable development can be achieved, but only if irreversible degradation of the environment can be halted in time. The next 30 years may be crucial'.[5]
In the same year the United Nations Conference on Environment and Development (UNCED: the so-called 'Earth Summit') was held in Rio de Janeiro. It was attended by 30,000 governmental and non-governmental organisations from over 170 countries.
There were five major agreements:
- The Rio Declaration on Environment and Development
- The Convention on Climate Change
- Agenda 21 - the Global Programme of Action on Sustainable Development
- The Convention on Biological Diversity
- The Convention to Combat Desertification.
The main weakness of the 'Rio Agreements' was the absence of effective enforcement or compliance systems. They are often cited as examples of 'soft law'.
In August 2002 the World Summit on Sustainable Development took place in Johannesburg. It was held to review progress since Rio and to reinforce the global commitment to sustainable development. Tension soon emerged between those who sought binding agreements and clear timetables and those who favoured the soft law declaratory approach. It was eventually agreed that sustainable development has three aspects or 'pillars': social development, economic development and environmental protection. As far as international law is concerned, sustainable development appears to be moving away from specifically environmental issues. The concept is being enlarged to include broader concerns about human rights, health, poverty, governance and political stability.[6] The European Economic Community was established by the Treaty of Rome in 1957.
Its original name is significant. The central aim was the creation of a 'common market' in goods, persons, services and capital. It soon became obvious that environmental issues could not be ignored, however, and the first piece of environmental legislation was introduced in 1967.[7] The first Action Programme for the Environment was launched in In 1986 the Single European Act amended the Treaty to include a new title on environmental protection. The process of integrating environmental matters into the core of the EC's activities continued in the nineteen-nineties.[8] Article 2 of the Treaty, which sets out the objectives of the EC, now refers to the goal of promoting 'a harmonious, balanced and sustainable development of economic activities'. Article 6 provides that 'environmental protection requirements must be integrated into the definition and implementation of Community policies and activities… in particular with a view to promoting sustainable development'. Unfortunately, sustainable development is not defined in the Treaty.
The European Community is ostensibly committed to a high level of environmental protection (Articles 2 and 174). One of the main tasks of countries wishing to join the Community is to implement its environmental legislation (with some support from the Community's funding programmes). Yet the record of the Community is not above criticism. In 1999, for example, the European Environment Agency claimed that the state of the European environment was 'far from satisfactory'.[9] Critics claim that the ambiguities associated with the concept of sustainable development (and, in particular, with the potential costs of compliance) enable actors to do little while appearing to be politically correct.[10] The concept of sustainable development undoubtedly appeals to European leaders and their expert advisers but it is difficult to disagree with Andrea Lenshow that 'the sustainability story often loses power on the ground'.
'The very slow "greening" process of agricultural policy is a commonly known example showing that concerns with the immediate costs of reforms prevail over responsibilities for a common good. Even the argument that intensive farming methods may destroy the very basis for future farming, namely unpolluted soil, has proven insufficient to convince the average farmer of the need to restructure production'.[11]
Academic discussions of sustainable development often distinguish between 'weak' and 'strong' sustainability. Advocates of weak sustainability tend to argue that natural capital and human capital are potentially substitutable. The maintenance of the capital stock is more important than its composition. According to Our Common Future the use of non-renewable resources like minerals and fossil fuels' reduces the stock available for future generations. But this does not mean that such resources should not be used. In general the rate of depletion should take into account the criticality of that resource, the availability of technologies for minimising depletion, and the likelihood of substitutes being available. Thus land should not be degraded beyond reasonable recovery 'Sustainable development requires that the rate of depletion of non-renewable resources should foreclose as few future options as possible'.[12]
Saudi Arabia has few valuable natural resources other than oil. Oil reserves are plentiful but finite. Spending oil revenues on palaces and armed forces is ultimately unsustainable. In order to ensure long-term prosperity and stability the country will need to create other sources of wealth. One option is the development of water desalination projects. The availability of fresh water in large quantities could be used to encourage agriculture - as in Egypt and Iraq.
Advocates of strong sustainability generally see human and natural capital as complements. For Daly:
'Man-made capital and natural capital are fundamentally complements and only marginally substitutes…. One cannot build the same wooden house with half the timber no matter how many saws and carpenters one tries to substitute'.[13]
As economic systems are often intimately linked to ecological ones, neither should be viewed in isolation.
The fishing industry depends on human capital (boats, nets, skilled fishermen) and on natural capital (stocks of fish). Increasing the former may over exploit - and potentially destroy - the latter. This happened in the northwest Atlantic in the late nineteen-eighties.
Over a period of about five years fish stocks collapsed and the Newfoundland fishing industry experienced a 90 per cent decline in catches. The situation in the northeast Atlantic is little better. According to the International Council for the Exploration of the Seas (ICES) two-thirds of our planet's commercial fish species are at historically low levels and 'below safe biological limits'. A recent British study estimated that there may be no more than 32,000 tonnes of adult breeding cod in the North Sea, i.e. one fifth of the adults required to ensure a thriving breeding population.[14] The European Commission estimates that the EC's fishing fleet is about twice the size it should be. Dramatic reductions in fishing quotas are currently being made. Huge protected breeding sites and no-fishing zones covering tens of thousands of square kilometres will have to be established under the Habitats Directive (92/43/EC).
In Johannesburg in 2002, 180 countries agreed to 'maintain or restore [fish] stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and, where possible, not later than 2015'. It may, of course, be argued that the pursuit of 'maximum sustainable yield' destroyed fish stocks in the first place.[15] Although most people would agree that unrestricted fishing can lead to the collapse of fish stocks, it is more difficult to reach a consensus regarding their optimum size.
Various controversies surround water pollution. Is it acceptable, for example, to discharge waste into a river in quantities which exceed its assimilative capacity? A society may value the economic benefits associated with the pollution more than the damage caused by it.[16] A clean environment may be seen as an expensive luxury.
Although it may sometimes be appropriate to allow short-term damage to a particular ecosystem, it is very difficult to balance economic prosperity against environmental degradation. In 1917 the Bolsheviks seized power in Russia. According to the eminent economic historian David Landes:
'The greatest asset of the revolutionary regime was the unspoiled natural treasures it inherited from a late developing economy. It ran these down with the recklessness that comes with self-proclaimed virtue'.[17]
In the nineteen-thirties tens of thousands of labourers were forced to work on the disastrous White Sea canal. The slogan of the enterprise was: 'We will instruct nature and we will receive freedom'. Most failed to fulfil either ambition.[18] More recently, Soviet planners decided to divert water from the Amu Darya and Syr Darya rivers - the main tributaries of the Aral Sea - in order to increase the basin's agricultural output in general and cotton production ('white gold') in particular. This misguided policy caused the volume of the sea to fall by 85 per cent. The Aral Sea - once the fourth largest body of freshwater on earth - is now heavily salinated and 40,000 square kilometres of saline seabed have been exposed. Total production of cotton is now down to the levels achieved in the early nineteen-sixties when large-scale irrigation began. Mortality rates in the region have risen sharply. A tenth of all children die before reaching their first birthdays.[19]
Approximately 16 million people inhabit the coastal areas around the Black Sea. Many more visit its beaches and nature reserves as tourists. The Black Sea is a highly complex ecosystem. In the second half of the twentieth century its environment was seriously degraded, however, and 87 per cent of its volume is now effectively devoid of marine life. Such marine life as exists is confined to the top 180 metres and this is increasingly threatened by pollution. Nitrogen and phosphorous compounds are the primary sources of Black Sea pollution. The basic cause is the excessive use of fertilisers.The main effect of these chemicals is to encourage algal growth and water eutrophication (deoxygenation).
According to the United Nations, 62 per cent of Romania's land is used for agriculture and agriculture provides 20 per cent of the national income. Despite the importance of agriculture, 'productivity is diminished by 20-30 per cent due to certain limiting factors [such] as chemical pollution due to the unreasonable utilisation of fertilisers and pesticides, emissions of heavy metals and hydro-carbonates'.[20] The situation in neighbouring Moldova appears to be even worse:
'Moldova is considered to be one of the top-ranking agricultural nations in the world, due to the chernozem soil which is rich in humus and constitutes 75 per cent of the land. However, the integrity of the soil has been compromised after years of intensive, chemically-supported agriculture. Disregard for crop rotation and a high degree of agricultural specialisation and concentration resulted in the application of large amounts of fertilisers and pesticides and in soil degradation. It is estimated that the quality of the soils has declined by 25 per cent to 30 per cent during the past decades'. [21]
The pursuit of short-term agricultural development can have catastrophic implications for nature reserves which (in addition to their inherent value) are potentially major tourist attractions. In 1990 UNESCO designated the Danube Delta a 'Biosphere Reservation' and claimed that it was the earth's third most important wetland (the others being the Amazon and Nile deltas). Yet the Danube Delta's unique ecosystem was seriously threatened in the nineteen-eighties by river pollution and by President Ceausescu's attempts to develop the area as an agricultural region. Although it now receives some protection, much remains to be done. According to one popular tourist guide:
'The list of damages is depressing: deforestation, erosion, polluting industries and illegal hunting are all threatening what many ornithologists see as the most important avian breeding grounds in eastern Europe, if not in Europe as a whole…. Overfishing and pollution caused by the dumping of raw sewage on the Black Sea's northwest shelf have drastically affected fish supplies'.[22]
In 1980 the World Conservation Strategy argued that: 'development and conservation are equally necessary for survival'. The concept of sustainable development is closely linked to a principle of conservation which is, or should be, an integral part of the planning process.[23]
Although it is not possible to discuss planning law in this paper it is perhaps appropriate to mention an increasingly important issue relating to planning - Environmental Impact Assessment (EIA). Until recently, planning was generally seen as a regional or national matter. This changed in the United States with the National Environmental Policy Act After many years of debate within the European Community, Directive 85/377 appeared.
What is Environmental Impact Assessment? The idea that planning authorities should receive information about the likely environmental implications of proposed developments is far from new. Stuart Bell and Donald McGillivray point out that the 'innovation behind the formal EIA process is the systematic use of the best objective sources of information and the emphasis on the best techniques to gather that information. The ideal EIA would involve a totally bias-free collation of information produced in a form which would be coherent, sound and complete. It should then allow the local planning authority and members of the public to scrutinise the proposal, assess the weight of predicted effects and to suggest modifications or migration (or refusal) where appropriate'.[24]
Although developers are required to provided 'environmental statements' prepared by themselves or their hired consultants, planning authorities should also take account of relevant information provided by independent third parties and members of the public. A planning authority may authorise a development which is likely to have negative environmental effects. But it cannot do so without giving due consideration to them.
It would obviously be inappropriate to subject all requests for planning permission to this process. Directive 85/337 (as amended by Directive 97/11) distinguishes between Annex I projects (where EIA is mandatory) and Annex II projects (where EIA is mandatory if significant environmental consequences are likely). Annex I projects include: crude oil refineries; nuclear power stations; new motorways; plant for transferring water between river basins; industrial timber pulp plants; and quarries over 25 hectares. Annex II projects include: reclaiming land from the sea; using uncultivated land for intensive agriculture where the area exceeds 0.5 hectares; open cast and underground mining; motor car factories; and shopping centres where the area is more than 5 hectares.
Directive 85/337 is arguably the EC's most important environmental directive. It was certainly the first directive which addressed the need to integrate environmental concerns into decision-making processes.[25] This is one of the central themes of sustainable development.
In the early nineteen-nineties the European Commission revealed that there were serious inconsistencies in the application of the Directive in different member states.[26] In order to strengthen procedures and remove ambiguities Directive 97/11/EC has been adopted. The law relating to EIA continues to evolve. Directive 2001/42/EC provides for EIA at the plan making stage. Member states are required to implement it by 21st July 2004.
Sustainable development also continues to evolve. In the past it has often been seen as a goal to be achieved. From this perspective, a sustainable society is the ultimate objective of environmental law and environmental lawyers. It is now widely regarded as a process that can lead to sustainability. It is a means by which environmental concepts and values can influence social, political and economic policies. It provides, in particular, an opportunity for public participation in the making of environmental decisions and legal redress for those who suffer as a result of environmental degradation.[27]
[1] Senior Lecturer in Law, School of Social Sciences, Bath Spa University College, Bath, United Kingdom
e-mail: m.watson@bathspa.ac.uk
[2] (1987), Oxford University Press, 43.
[3] Beyond Growth: The Economics of Sustainable Development (1996), 1.
[4] 'Ecologically Sustainable Development: Integrating Economics, Ecology and Law' (1995), 31, Willamette Law Review, 261, 272-273.
[5] Cited by Douglas A. Kysar, 'Sustainability, Distribution and the Macroeconomic Analysis of Law' (2001), 43(1), Boston College Law Review, 1, 70-71.
[6] For a useful survey see Kevin R. Gray, 'Accomplishments and New Directions' (2003), 52(1), International and Comparative Law Quarterly, 256-268.
[7] Directive 67/548/EEC (Classification, Packaging and Labelling of Dangerous Substances).
[8] The Treaty on European Union ('Maastricht Treaty') 1992 and the Treaty of Amsterdam 1997 were of particular importance.
[9] Environment in the European Union at the Turn of the Century (1999), Environmental Assessment Report No 2, Copenhagen; cited by Andrea Lenschow, 'New Regulatory Approaches in "Greening" EU Policies' (2002), 8(1), European Law Journal, 19-37 at 1.
[10] J.J.Richardson, 'The Politics of Sustainable Development', in S.Baker, M.Kousis, D. Richardson and S.Young (editors), The Politics of Sustainable Development: Theory, Policy and Practice Within the European Union (1997), Routledge, 43-60.
[13] Beyond Growth, note 3 above, at 76.
[14] Mark Townend, 'North Sea Ban could ruin Trawlermen' (2002), Observer, 15th December.
[15] Euan Dunn, 'Net Losses' (2002), Guardian, 2nd October. Some countries opposed the proposed targets, arguing (not unreasonably) that any targets should be based on sound science; Gray, note 5 above, 262.
[16] 'Where there's muck there's brass' (i.e. where there is dirt there is money) has been a common saying in the industrial north of England for two centuries.
[17] The Wealth and Poverty of Nations: Why Some Are So Rich and Some Are So Poor (1999), Abacus, 497.
[18] Ibid. 495. The labourers were often referred to as 'white coal'. See generally Paul Josephson, ' "Projects of the Century" in Soviet History: Large-Scale Technologies from Lenin to Gorbachev' (1995), 36(3), Technology and Culture, 519-559.
[19] World Development Report 2003: Sustainable Development in a Dynamic World (2003), World Bank and Oxford University Press, 21.
[20] See http://www.un.org/esa/agenda21/natlinfo/countr/romania/natur.htm#agro
[21] See http://www.un.org/esa/agenda21/natlinfo/countr/moldova/natur.htm#agro
[22] Caroline Juler, Romania (2000), Blue Guide Series, A & C Black (Publishers) Ltd
[23] D.Hughes, T.Jewell, J.Lowther, N.Parpworth and P de Prez, Environmental Law (2002), Butterworths, 4th edition, 20,22.
[24] Environmental Law (2000), Blackstone Press, 5th edition, 347.
[25] Ibid., 370. It also pioneered the use of procedural law for environmental protection within the EC.
[26] See COM (93) 28.
[27] Hughes et al, note 22 above. See generally, M.Declaris, The Law of Sustainable Development: General Principles (2000), European Communities.
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