Law for Sustainability: A View from Rio de Janeiro

What role can law and lawyers play in the quest for sustainability?  That question has been discussed in a wide variety of side events here, including a Colloquium on Environmental Law and Justice at the Supreme Court of the State of Rio de Janeiro, a World Meeting of Environmental Lawyers at the Rio de Janeiro Botanical Garden, a conference on Legal Frameworks for Sustainable Development at Fundação Getulio Vargas (a teaching and research institution), and a World Congress on Justice, Governance, and Law for Environmental Sustainability at the Portobello Resort and the State Supreme Court of Rio de Janeiro.

A simple summary of what was said at these events is impossible, but two themes emerge.  First, environmental law matters a great deal.  It protects what would otherwise not be protected, prevents and punishes the worst behaviors, and sets a level playing field for business and industry.  Recent amendments to Brazil’s new forestry law, which provide amnesty to some who have unlawfully cut the country’s rainforests, were subject to a lot of criticism for weakening the country’s regulatory regime.

On the other hand, the Environmental Law Institute in Washington, D.C. has trained more than 1,000 judges in 20 countries on environmental and natural resources law, and many judges, including Justice Antonio Benjamin of Brazil’s Supreme Court, expressed support for expansion of ELI’s work.

Access to justice is also an important issue.  Environmental pollution and degradation hurt not only the environment but also other people.  And so the availability of lawyers who are willing to represent ordinary citizens was often emphasized.

For all its value, however, environmental law is a blunt instrument.  It does not—and probably cannot—require companies and other actors to do their best in furthering environmental, social, and economic goals at the same time.  So the second theme–creation of the “law of sustainability”–is both essential and challenging.  Examples from these side events:

  • Throughout Brazil, landowners (many with low incomes) are being paid for the environmental services that their land provides to others, including protection of biodiversity, carbon storage, scenic beauty, and watershed protection.  Of course, they must engage in specified conservation practices to be paid.
  • Norway and other countries are moving toward “green fiscal reform,” which involves taxation of environmental pollution, often in return for reductions in other taxes, including income taxation.
  • In trade law, the European Union is moving toward sustainability by subjecting bilateral trade agreements to sustainability impact assessment and also by facilitating liberalization of trade in green goods and services.
  • Intellectual property rules, particularly patent law, often discourage innovation for environmental sustainability, including renewable energy, by discouraging new entrants to the field.  To be successful at fostering sustainability, these rules need to be revised.
  • Mexico’s new climate change law, which requires the development of a national plan to reduce greenhouse gas emissions, is also intended to promote a green economy by, among other things, fostering innovation in renewable energy and energy efficiency.
  • In the United States, as I explained at two of these side events, much of the progress toward energy efficiency, renewable energy, organic food production and other sustainable development activities over the past two decades has come about because of laws that are intended to foster those forms of economic development.  (see http://www.actingasiftomorrowmatters.com/)
  • The list of innovative measures for sustainable development has become so extensive—and the demand for knowledge about these measures so great—that the International Development Law Organization has prepared a compendium of legal best practices for a green economy.

These are only examples of the emerging law of sustainability.  My friend and colleague, Ann Powers, who teaches at Pace Law School, has a nice explanation for how we can create more of these examples.  Law for sustainability, she said, requires “not only analytical skills but also creativity, imagination, and innovation.”  How can we do a better job of teaching, encouraging, and practicing these things?

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