1 A Framework for Application: Three Concrete ...

A Framework for Application: Three Concrete, Scalable Strategies to Accelerate Sustainability Jonathan Rosenbloom1 I.

INTRODUCTION

A common position among legal and science scholars is that climate change makes our continued survival and development as a society dependent on the infiltration and incorporation of sustainability into all aspects of human life.2 Notwithstanding its critical importance, defining sustainability may prove to be an exceedingly difficult and potentially distracting task. When consensus is reached on a definition for “sustainability,” that definition is often highly generalized, such as meeting the “triple bottom line” or incorporating the “three pillars” of sustainability (environmental, social, and economic concerns).3 These and other generalized definitions are sufficiently broad to capture the many contextual variations in which sustainability can be applied, ranging from sustainable business practices to zoning ordinances to stormwater management. In doing so, however, the term loses specification. It is so broadly worded that the definition provides little guidance on how to actually achieve goals associated with sustainability in a specific context.4 Thus, sustainability presents a theoretical and practical dilemma: while incorporating it into all facets of society is essential, the attempt to define it (and anchor it for purposes of consistency and mutual understanding) is a difficult task that may provide limited real world value and may divert resources from accomplishing the goals associated with sustainability. This is not to say that “sustainability” is undefinable. There are numerous definitions, some broadly worded and others quite specific. The challenge in defining it, however, is that the broadly worded definitions provide little practical guidance, while content-specific definitions have little applicability to other contexts. This Chapter explores themes that exist in both broadly worded and content-specific definitions. The themes bridge the gap between the generalized and

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Thank you to the attendees at the Environmental Law Collaborative (2012), and a special thank you to Keith Hirokawa and Jessie Owley for organizing and compiling the written documents for this book. Being a part of the Collaborative has been an educational experience that has helped me to better understand sustainability in an age of climate change. Thank you also to Drake University Law School Professor Jerry Anderson and LSU Law Center and LSU School of the Coast and Environment Associate Professor Blake Hudson for their thoughtful comments, edits, and suggestions, and Drake University Law School student Jacob Lantry for his thorough and excellent research assistance. 2 I first engaged in this discussion in a brief essay. Jonathan Rosenbloom, Sustainability: Defining It Provides Little Value, But Its Meaning Is Essential in Rethinking Sustainability to Meet the Climate Change Challenge, 43 ENVTL. L. REP. NEWS & ANALYSIS 10342, 10344 (2013). This book chapter further develops the thesis of that essay. 3 JOHN ELKINGTON, THE ZERONAUTS: BREAKING THE SUSTAINABILITY BARRIER 55 (Routledge 2012). 4 Rosenbloom, supra note 2; see generally Melissa Powers, Making Sustainability Count, in Rethinking Sustainability to Meet the Climate Change Challenge, 43 ENVTL. L. REP. NEWS & ANALYSIS 10342, 10345 (2013) (noting definitions of sustainability can be “ubiquitous and amorphous”). This Chapter is primarily concerned with the term “sustainability,” as opposed to “sustainable development.” For a discussion of the international community’s movement from sustainability to sustainable development see Paolo Galizzi, From Stockholm to New York Via Rio and Johannesburg: Has the Environment Lost its Way on the Global Agenda?, 29 FORDHAM INT’L L.J. 952 (2006).

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specific definitions. This Chapter accepts generalized definitions as currently drafted and then distills them to find common themes that help provide action-oriented advice regardless of context. This Chapter is not attempting to add to the scholarship on how to define the term sustainability. Rather, this Chapter accepts existing generalized definitions and looks across them to extract concrete and scalable strategies that can provide practical advice to help apply sustainable practices in numerous situations. Extracting the themes from existing definitions is an attempt to rely on widely-accepted understandings of sustainability and what others have previously identified as being necessary to achieve the goals associated with sustainability. Unearthing the themes is intended to identify elements of sustainability that are embedded in generalized definitions and that must be included for practical effect so that we can begin to move beyond definition to application. The three themes are: (1) integration of an ecosystem management approach to more accurately reflect costs of a given action, (2) implementation and identification of context-specific baselines and metrics that offer practical and pragmatic advice to decision makers, and (3) collaboration as a means of overcoming institutional obstacles. The three themes may not be explicitly set forth in existing definitions, but they are necessary to achieve sustainability under any definition. The themes are designed to provide concrete, scalable, and understandable guidance that bridges the gap between a highly conceptual term, “sustainability,” and the need to apply sustainability initiatives and practices to real world climate-related challenges.5 The next Part, Part II, clarifies that a continued discourse on defining sustainability is a difficult academic exercise, providing only a small benefit to society. Part II reiterates that, even though questions remain over the definition of sustainability, deploying sustainability initiatives is critical. Part III sets forth the three themes in more detail. While these three are not the only themes incorporated in sustainability across contexts, they will, hopefully, encourage further discussion to identify additional strategies to help policymakers move towards incorporating sustainable practices in diverse contexts. II.

DEFINING SUSTAINABILITY VERSUS ACHIEVING SUSTAINABILITY

Over the last forty years, international, national, and subnational bodies have spent an enormous amount of time and resources debating the definition of sustainability. Widely accepted definitions have emerged as a result of intense negotiations spanning decades and taking place in numerous arenas. The negotiations often involve conflicts over consumption levels, economic development, science, and natural resources.6 To overcome these conflicts and differences and to reach consensus on a definition, “sustainability” has been defined in vague, 5

See John C. Dernbach, Sustainable Development in the United States, in AGENDA FOR A SUSTAINABLE AMERICA 9 (John C. Dernbach ed., 2009) (“Sustainability is best understood as a framework (or a perspective, lens, or approach) for the integration or balancing of environmental protection, economic development, and social justice.”); see KLAUS BOSSELMANN, THE PRINCIPLE OF SUSTAINABILITY: TRANSFORMING LAW AND GOVERNANCE 41 (2009) (noting that sustainability “provides crucial guidance for the interpretation of legal norms and sets the benchmark for the understanding of justice, human rights and state sovereignty. In doing so, sustainability represents the foundational concept of emerging ‘sustainability law’ based on ecological justice, human rights and institutions”). 6 For a brief summary contributions to the definition of sustainability, see SIMON DRESNER, THE PRINCIPLES OF SUSTAINABILITY Part I (2d ed. 2002).

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broadly worded terms.7 For example, several widely-accepted definitions of sustainability incorporate principles from the 1987 Brundtland Report by the World Commission on the Environment and Development. The Brundtland Report defined “sustainable development” as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”8 Although this definition was used to define sustainable development, it has been frequently and, some have argued, incorrectly used to help define sustainability. Embedded in the Brundtland Report definition is the concept of intergenerational equity, which “ensures that our small planet is passed over to future generations in a condition which guarantees a life of human dignity for all.”9 Sustainability has been additionally defined as incorporating “three pillars,” a “three legged-stool,” or a “triple bottom line” and as being “able to endure without failing.”10 Notwithstanding these and other broadly-worded definitions, battles continue to be fought over how to define sustainability. Yet, achieving sustainability seems more remote than ever.11 In From Stockholm to New York Via Rio and Johannesburg: Has the Environment Lost its Way on the Global Agenda?, Paolo Galizzi outlines decades and numerous international conferences and summits where resources were expended discussing the definition of sustainability.12 Galizzi concludes that these discussions have not produced a more useful definition and, more importantly, they have not moved us closer to achieving a sustainable society, as the natural environment has continued to erode.13 One of the challenges of defining sustainability stems from the complexity and malleability of the subject. As noted by Galizzi and others, the process in which definitions evolved was inclusive and attempted to capture numerous contexts and scenarios. To capture the variations of diverse scenarios any definition was required to be broad and generalized. The broader and more inclusive the definition is, the less connection it has to the specific operational steps necessary to meet the goals of sustainability. So, for example, if we say that sustainability means making the world a better place, it is too broad to help us figure out how to achieve it. If we say sustainability means reducing the use of non-renewable resources, then we have

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See David R. Hodas, The Role of Law in Defining Sustainable Development: NEPA Reconsidered, 3 WIDENER L. SYMP. J. 1, 2–3 (1998). 8 WORLD COMMN. ON ENVT. AND DEV.: OUR COMMON FUTURE pt. 1, ch. 2, ¶1 (1987) (known as the Brundtland Report), available at http://www.un-documents.net/our-common-future.pdf. 9 United Nations Environment Programme, Nairobi Declaration 10 (1982). 10 See Mark Sharfman, Rex Ellington & Mark Meo, Regulation, Business, and Sustainable Development: The Management of Environmentally Conscious Technological Innovation Under Alternative Market Conditions, 44 AM. BEHAV. SCIENTIST 277 (2000); U.N. Conference on Environment and Development, June 3–14, 1992, Report of the U.N. Conference on Environment and Development, Vols. § 8.4, U.N. Doc. A/Conf. 151.26 Rev. 1 (June 25, 1993) (defining sustainability as “economically efficient, socially equitable and responsible and environmentally sound”); ROBIN MORRIS COLLIN & ROBERT WILLIAM COLLIN, ENCYCLOPEDIA OF SUSTAINABILITY xi (2009) (defining “sustainability” as environment and ecology, business and economics, and equity and fairness). 11 Galizzi, supra note 4. 12 See generally id. at 1006–07. [11]. Galizzi begins with the United Nations Conference on the Human Environment in 1972 in which for the first time humans were widely accepted to have an impact on the environment. Id. at 964 (citing U.N. Conf. on the Human Env’t, Report of the U.N. Conference on the Human Environment, P 33, U.N. Doc. A/CONF.48/14 (1972)) (the U.N. Report was known as the “Stockholm Declaration”). He then details United Nations conferences in Nairobi, Rio, New York, and others, spanning thirtyfive years. Id. at 970–93. 13 Id. at 1005–06. [12]

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something more concrete, but we may exclude other efforts that would help make the world a better place. John Dernbach analogized the challenges of incorporating all contexts into a single definition of sustainability to defining “democracy” or “freedom.”14 All three terms, he noted, are critical, yet have different meanings in different contexts.15 Any attempt to capture all contexts relevant to the respective terms results in a highly negotiated and generalized definition with little real-world utility. For example, the elements necessary to understand and define sustainability for purposes of commercial leasing may include the identification of baselines and metrics relevant to utility costs and their reallocation between the landlord and tenant to reduce energy usage (including upfront capital for system upgrades and daily usage costs).16 In another context, sustainable procurement policies may include baselines, metrics, and tools of assessment incorporated into a life-cycle analysis or corporate social responsibility measures, which have little overlap with the elements necessary to achieve sustainability in a commercial leasing setting.17 A single definition would need to capture not only varying contexts, such as commercial leasing and procurement, but also diverse conditions, such as those associated with geological and cultural differences, within one context. For example, our understanding of what is necessary to achieve sustainability in one area of the globe in a particular context is likely to be very different from another geographic area. “[W]hat is sustainable for purposes of land use in rural Africa is fundamentally different from what is sustainable for purposes of land use in dense, urban China. . . . [T]o garner a definition of sustainability that is relevant to land use in [both of these areas] . . . we may sacrifice all helpful specifics of the term.”18 While defining sustainability presents a scaling challenge relative to whether it is broadly applicable or content-specific, it is clear we are trending towards “unsustainability”—however we decide to define the term.19 In the final draft of Climate Change 2013: The Physical Science Basis, the Intergovernmental Panel on Climate Change notes increases in land surface, air, and sea surface temperatures; sea levels; and tropospheric temperatures, while Arctic sea-ice, glacier mass, and northern hemisphere snow cover are decreasing.20 Further, the Report ties these changes to anthropogenic activities, stating “[i]t is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.”21 The United 14

Dernbach, supra note 5, at 9. Id. [14]. 16 See Celeste Hammond & Virginia Harding, A Reminder That Green Buildings Need Green Leases, CHI. DAILY L. BULL. (July 30, 2010). 17 For an analysis of sustainable procurement codes, see Danielle Conway, Sustainable Procurement Policies and Practices at the State and Local Government Level, in GREENING LOCAL GOVERNMENT 63–70 (Keith H. Hirokawa & Patricia E. Salkin eds., 2012). 18 Rosenbloom, supra note 2, at 10344–45. 19 William Futrell notes that it is easier to identify “unsustainable conduct,” than it is to identify sustainable conduct because we are better able to track behavior or impacts that conclude with our or another’s ultimate destruction. J. William Futrell, Defining Sustainable Development Law, 19 NAT. RESOURCES & ENV’T 9, 9 (2004). Futrell accepts a definition of sustainability founded on the three pillars. Id. at 9. However, he states that attempting to define sustainability further is a waste of vital resources. See id. 20 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2013: THE PHYSICAL SCIENCE BASIS, SUMMARY FOR POLICYMAKERS 3 (2013). 21 Id. [20] at 12. 15

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States is experiencing similar significant temperature increases, including some of the largest temperature anomalies in 2012 with 34,008 daily high records,22 increased volume of rainfall in almost all areas,23 and increases in the number of “extreme” weather events and billion-dollar disasters.24 Most climate model projections forecast a dire situation in which we will continue to experience an increase in these climate patterns.25 Simultaneously, the global population continues to grow and is expected to reach nine billion by 2050, placing enormous demands on an already over-taxed system. At a minimum and regardless of definition, with a global footprint well in excess of what is renewable, we are able to state that our current manner of living is unsustainable, and moving towards more sustainable society is not likely to be advanced by arguing over a definition. We will only improve upon the current conditions if we actually become more sustainable. A discourse on the definition of sustainability will not avert or abate the risks associated with climate change and other impacts. This is not to say that a discourse on defining sustainability was not important in the past. Conversations at Stockholm (1972, United Nations Conference on the Human Environment), Rio (1992, United Nations Conference on Environment and Development), and other settings, in which sustainability was developed as a concept in its modern form and was defined, were critical. Those discussions helped establish a critical movement that included the examination of anthropogenic activities. It is time to move beyond those discussions and push toward a framework of implementation of sustainable practices. The environment has continued to suffer because there is a lack of action on initiatives aimed at promoting sustainability, which is not rectified by a discourse on broad, elusive definitions. Rather, progress toward achieving the goals associated with sustainability requires formidable, concrete action, resources, education, and difficult decisions concerning how we live our lives. III.

BRIDGING THE GAP BETWEEN CONCEPTUAL AND PRACTICAL

This Part examines three themes to help move beyond broadly framed definitions and toward a sustainable society. The detailing of these themes assumes an operational and pragmatic perspective. I adopt this perspective not at the exclusion of other perspectives (theoretical or otherwise), but rather because I believe resources have been under-allocated to helping incorporate sustainable practices and accelerate its attainment. The three themes are interrelated and are extracted from broadly worded definitions of sustainability. The themes serve as a starting point for developing a structured framework consisting of general criteria embedded in the idea of “sustainability.” Identification of the themes is intended to provide guidance to policymakers seeking sustainable solutions, regardless of context and to bridge the gap between a highly theorized definition and a useful tool for purposes of application. The themes are not presented as an all-inclusive list and more research is welcome and needed to develop a full list of relevant considerations inherent in achieving a sustainable society and meeting the climate change challenge.

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AM. METEOROLOGICAL SOC’Y, STATE OF THE CLIMATE IN 2012 (Jessica Blunden & Derek S. Arndt eds.,

2013). 23

NAT’L CLIMATE ASSESSMENT & DEV. ADVISORY COMM., DRAFT CLIMATE ASSESSMENT REPORT 108–09, 168 (2013). 24 AM. METEOROLOGICAL SOC’Y, supra note 22, at 151. 25 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, supra note 20, at 14.

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In identifying the themes there was particular attention focused on ensuring that each theme could apply to as many context as possible to help understand and achieve sustainability. The first theme involves adopting an ecosystem services management approach. Such an approach would be a fundamental shift in the way we value and allocate resources. To fully support an ecosystem services management approach, the other two strategies—establishing baselines and metrics and collaboration—help move sustainability from a concept to a reality. That said, establishing baselines and metrics and collaborating are strategies that can be implemented with or without ecosystem services management and can independently help move toward a sustainable society. Although the themes, as laid out below, lack some specificity, they provide direction to facilitate an action-oriented approach that will help make the term “sustainability” more apt to meet the climate change challenge. A. Ecosystem Services Management Achieving sustainability—regardless of context or definition—will likely involve the consideration, quantification, and/or calculation of ecosystem services.26 Ecosystems provide services that result from the “physical, chemical and biological activities that influence the flows, storage, and transformation of materials and energy within and through ecosystems.” 27 An ecosystem services management approach accounts for these “flows,” which are “combine[d] with manufactured and human capital services to produce human welfare.”28 “Ecosystem goods (such as food) and services (such as waste assimilation) represent the benefits human populations derive, directly or indirectly, from ecosystem functions.”29 Currently, many ecosystem services are inadequately accounted for in public and private policy decisions and in markets.30 However, [j]ust because these services have no market price[] does not mean that they are without value. Quite the opposite. One cannot begin to understand flood control, for example, without realizing the impact of widespread wetland destruction on 26

For a brief history of an ecosystem services approach to governance, see J.B. Ruhl & James Salzman, The Law and Policy Beginnings of Ecosystem Services, 22 J. LAND USE & ENVTL. L. 157, 157 (2007). For alternative perspectives and criticism of an ecosystem services approach see Nancy E. Bockstael et al., On Measuring Economic Values for Nature, 34 ENVIRON. SCI. & TECH. 1384 (2000); David Pearce, Auditing the Earth, 40 ENVIRONMENT 23, 23–28 (1998); COMMITTEE ON ASSESSING AND VALUING THE SERVICES OF AQUATIC AND RELATED TERRESTRIAL ECOSYSTEMS, NAT’L RESEARCH COUNCIL, VALUING ECOSYSTEM SERVICES: TOWARD BETTER ENVIRONMENTAL DECISION-MAKING 189 (Nat’l Academies Press 2004). 27 DAVID GOODSTEIN, OUT OF GAS: THE END OF THE AGE OF OIL 32–33 (2004); see also MILLENNIUM ECOSYSTEM ASSESSMENT, ECOSYSTEMS AND HUMAN WELL-BEING: SYNTHESIS v (2005) (defining “ecosystem services” as “the benefits people obtain from ecosystems. These include provisioning services such as food, water, timber, and fiber; regulating services that affect climate, floods, disease, wastes, and water quality; cultural services that provide recreational, aesthetic, and spiritual benefits; and supporting services such as soil formation, photosynthesis, and nutrient cycling.”). Costanza et al. identified seventeen ecosystem services: gas regulation, climate regulation, disturbance regulation, water regulation, water supply, erosion control and sediment retention, soil formation, nutrient cycling, waste treatment, pollination, biological control, refugia (habitat), food production, raw materials, genetic resources, recreation, and cultural. Robert Costanza et al., The Value of the World’s Ecosystem Services and Natural Capital, 387 NATURE 254 tbl.1 (1997). 28 Costanza et al., supra note 27, at 254; see also id. (stating that “[e]ach form of capital stock generates, either autonomously or in conjunction with services from other capital stocks, a flow of services that may be used to transform materials . . . to enhance the welfare of humans.”). 29 Id. at 253. [27] 30 Id. at 255. [27]

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the ecosystem service of water retention; nor can one understand water quality without recognizing how development in forested watersheds degrades the service of water purification. The costs from degradation of these services are high, and suffered in rich and poor countries alike.31 Partially born out of a collective lamentation among scientists about the “near total lack of public appreciation of societal dependence upon natural ecosystems,”32 an ecosystem services approach places a monetary value on ecosystem services and attempts to quantify the cost of “replac[ing] the services of ecosystems at the current margin.”33 This monetary value is often referred to as natural capital and has been estimated to have a world-wide annual value of $33 trillion, compared to a global gross national product of $18 trillion per year. Ecosystem services management focuses on two primary questions: “(1) what services do natural ecosystems provide society, and (2) what is a first approximation of their monetary value?”34 Ecosystem services help inform the designing and drafting of initiatives aimed at improving sustainability by identifying economic externalities relevant to the use and management of natural resources. These externalities have historically been left out of economic quantification, leading to, among other things, a partial disregard for their value. Accounting for ecosystem services and the impacts to them helps bridge the gap between generalized or conceptual definitions of sustainability and the practice of incorporating sustainability practices. Similar to an ecosystem services approach, several broadly worded definitions of sustainability, such as meeting the “triple bottom line,” link economic and environmental goals. Ecosystem services management seeks to more completely integrate the true value of natural resources such that decisions (long and short-term) are made relative to environmental impacts and not in ignorance of them—a goal consistent with achieving sustainability. Two examples relevant to ecosystem services illustrate the diversity of this strategy and its usefulness in achieving sustainability. In their seminal piece on ecosystem services, Economic Returns from the Biosphere, Graciela Chichilnisky and Geoffrey Heal detail New York City’s determination to protect its water source by purchasing property rights upstream in the Catskills watershed, as opposed to constructing a pre-treatment water facility.35 “The moral of the story was simple—investing in [and protecting] natural capital [through an ecosystem services approach was] . . . a better commercial option than investing in built capital.”36 In a different context, the World Resources Institute, World Business Council for Sustainable Development, and the Meridian Institute adopted a set of guidelines based on an ecosystem services approach to promote sustainable practices in business.37 “Left unchecked,” the authors stated, ecosystem 31

Blake Hudson, Federal Constitutions” The Keystone of Nested Commons Governance, 63 ALA. L. REV. 1007, 1023 (2012) (quoting DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 11 (4th ed. 2010)). 32 NATURE’S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS xv (Gretchen Daily ed., 1997). 33 Costanza et al., supra note 27, at 259 (noting that an ecosystem services analysis such as this is often theoretical in that “it ignores the fact that many ecosystem services are literally irreplaceable”). 34 Ruhl & Salzman, supra note 26, at 159. 35 Graciela Chichilnisky & Geoffrey Heal, Economic Returns from the Biosphere, 391 NATURE 629 (1998). 36 Ruhl & Salzman, supra note 26, at 160. For more information on New York City’s water management plan in the Catskills watershed see NAT’L ACAD. OF SCIS., WATERSHED MANAGEMENT FOR POTABLE WATER SUPPLY: ASSESSING THE NEW YORK CITY STRATEGY (2000). 37 WORLD RES. INST. ET AL., GUIDELINES FOR IDENTIFYING BUSINESS RISKS AND OPPORTUNITIES ARISING FROM ECOSYSTEM CHANGE (2012).

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“degradation jeopardizes not just the world’s biodiversity, but also its businesses . . . . because companies depend on the services healthy ecosystems provide such as fresh water, wood, genetic resources, pollination, climate regulation, and natural hazard protection.”38 The authors then set forth a methodology that incorporated ecosystem services into company strategic and business plans.39 These two examples illustrate how an ecosystem services management approach can be applied to diverse contexts (from public water supplies to private business development) and result in “sustainable” solutions. As Keith Hirokawa notes, ecosystem services management allows stakeholders to identify “the types of advantages (ecological, economic, and social) that suit their communities” and to implement “innovative regulatory schemes aimed at capturing the advantages of ecosystem function.”40 It facilitates a move toward sustainability by helping policymakers account for externalities stemming from the use of ecosystems. Ecosystem services are an attempt to internalize a cost, similar to avoiding a tragedy of the commons, discussed in more detail below. Like collaboration, also discussed below, ecosystem services management is a mechanism for facilitating the proper management of multi-jurisdictional issues that challenge our ability to create a sustainable society. An ecosystem management approach is flexible enough to be applied to private sector and public sector actions. By more accurately considering ecosystem services, we may “better reflect the value of ecosystem services and natural capital,” and better understand whether the choices we make are sustainable.41 This is not to suggest that accounting for ecosystem services and human impacts on them is a panacea that will eradicate unsustainable practices and/or climate changing conditions. While an ecosystem services management approach may not always lead to sustainable choices, it is a necessary step to understanding the frequency and intensity of ecosystem impacts and whether we are making sustainable choices. We cannot fully address the unsustainable affects we are having on ecosystems and make the necessary behavioral alterations if we fail to adequately account for and acknowledge the impacts and look to properly allocate the costs of those impacts. B. Baselines and Metrics Achieving the goals associated with sustainability will be made more attainable by identifying and establishing baselines and metrics relevant to measuring ecosystem impacts and other externalities. Baselines and metrics provide information to help understand the current status of a given item, they track changes (positive and negative), and they inform which tactics are having the desired impact. Baselines and metrics are necessary to help calculate externalities and the associated costs to natural capital. Without baselines and metrics, decisions are aimless and policymakers are unable to determine whether they are achieving some measure of sustainability, or continuing on an unsustainable path. Establishing baselines and metrics relevant to ecosystems services is a “prerequisite[] to the development of markets in ecosystem

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Id. at ii. [37] Id. at 8–34 [37] 40 Keith H. Hirokawa, Sustaining Ecosystem Services Through Local Government Environmental Law, 28 PACE ENVTL L. REV. 760, 786 (2011). 41 Costanza et al., supra note 28, at 259 (citing Gail Bingham et al., Issues in Ecosystem Valuation: Improving Information for Decision Making, 14 ECOL. ECON. 73 (1995)). 39

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goods and services” and is “essential for any performance-based investment in ecosystems.”42 A “baseline” is “a minimum or starting point used for comparison,” 43 while a “metric” is “a technical system or standard of measurement.”44 Combined, the two provide a consistent method for tracking and assessing changes in a given ecosystem and/or the impacts of a given decision. “They help establish a point for which we can then measure improvement, stagnation, or failure.”45 In an ideal world, baselines and metrics are constantly monitored and consistently reviewed to determine whether the proper metrics are being measured and providing useful information. Baselines and metrics provide concrete and responsive data that allow policymakers to efficiently alter strategic plans and focus on relevant ecosystem impacts.46 They help progress towards sustainability by identifying unknown harms or unintended consequences that require the development of a new strategy or policy to address the changes.47 “While the strength of the success of any policy may always be debated, discernible metrics exist that can be assessed to help observers determine . . . whether the policy problem [failing to act sustainably]. . . has in fact been addressed.”48 This is particularly important with climate change where altering the solution may change the problem, and may require constant reassessment of the relevant baselines and metrics.49 Eric Biber provides a useful example where baselines and metrics can be used in conjunction with an ecosystem services management approach to help achieve sustainability. Biber notes that the management of the Columbia River Basin in the Pacific Northwest is heavily informed by a series of baselines and metrics impacting the relevant ecosystem services: Managers attempt to balance multiple goals (such as electricity production and salmon production) through a wide range of resource decisions (such as water flow, fisheries restrictions, and land-use management) by operating facilities and

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Lynn Scarlett & James Boyd, Ecosystem Services: Quantification, Policy Applications, and Current Federal Capabilities 38 (Resources for the Future, Discussion Paper 11-13, 2011). 43 Baseline Definition, OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definition/american_english/baseline?q=baseline (last visited Oct. 15, 2013). 44 Metric Definition, OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definition/american_english/metric?q=metric (last visited Oct. 15, 2013). 45 Jonathan Rosenbloom, Now We're Cooking!: Adding Practical Application to the Recipe for Teaching Sustainability, 2 PACE ENVTL. L. REV. ONLINE COMPANION 21 (2011). For specific examples of baselines in the context of sustainability, see Jody M. Endres, Agriculture at a Crossroads: Energy Biomass Standards and a New Sustainability Paradigm?, 2011 U. ILL. L. Rev. 503, 519 (2011) (use of baselines in measuring sustainability of energy policies); Kamaal R. Zaidi, Environmental Mitigation Aspects of Water Resources in Geothermal Development: Using a Comparative Approach in Building a Law and Policy Framework for More Sustainable Water Management Practices in Canada, 23 GEO. INT’L ENVTL. L. REV. 97, 144 (2010) (same for water policies); Andrew Long, Auditing for Sustainable Forest Management: The Role of Science, 31 COLUM. J. ENVTL. L. 1, 36 (2006) (same for forestation and ecological diversity). 46 Eric Biber, The Problem of Environmental Monitoring, 83 U. COLO. L. REV. 1, 16 (2011) (stating “[e]cosystem management incorporates adaptive management, consciously structured to produce useful new information that can improve future decision making”). 47 Id. at 14. [46] 48 Blake Hudson, Federal Constitutions: The Keystone of Nested Commons Governance, 63 ALA. L. REV. 1007, 1034 (2012). For a variety of challenges concerning baselines and metrics see Biber, supra note 46. 49 See Hirokawa, supra note 40, at 10,353 (“Shifting baselines resulting from climate shifts challenge our present ability to match future needs with future environmental circumstances, thereby making it difficult to chart a course today.”).

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designing regulations in ways that will produce new information. The results of different management choices are, in theory, supposed to inform decision makers for future decision making.50 In this way, baselines and metrics provide concrete data to policymakers to help ensure that the natural resources relevant to the Columbia River Basin are managed in a sustainable manner. Policymakers are able to make and adjust decisions as the information changes. The process involved with developing and monitoring baselines and metrics also “requires ongoing dialogue among scientists, decision makers, and those affected by decisions . . . . This interaction, properly structured, can enhance our understanding of biophysical and social systems, help interested and affected parties develop trust in uncertain science, and help direct analysis towards the key issues for shaping decisions.”51 As presented here in the form of a general theme, baselines and metrics do not specify which impacts are to be measured. By doing so, they are applicable to many different contexts simultaneously, helping to provide guidance on how to implement sustainable practices. Baselines and metrics help start and continue a process towards sustainability that can be readily applied to any scenario. This is not to suggest that the process of identifying and selecting the appropriate baselines and metrics is not difficult or contentious. However, a failure to determine the proper baselines and metrics will lead (and has led) to an absence of key, or any, indicators necessary to determine whether a particular action is sustainable. C. Collaboration A final theme prevalent in achieving any measure of sustainability is collaboration. However sustainability is defined, it will require collaboration to address the fragmentation of governance structures and the broad impact ecosystems have across those structures. As discussed above, many challenges impacting sustainability arise in ecosystems. These challenges and ecosystems “are amorphous and multi-jurisdictional—freely flowing in and out of [institutional] borders.”52 Jurisdictional borders are rarely drawn or redrawn to respond to the proper management and operation of ecosystems and their corresponding services. Borders are definitive and often inflexible, and limit regulatory authority to the respective territory. This limit often has little, if any, relation to the ecosystem challenges the institutional structures are asked to address.53 “The juxtaposition of limited . . . authority and multi-jurisdictional . . . challenges has the potential to create inefficiencies and discourage [individuals and entities] . . . from seeking innovative solutions to the challenges they face.”54 50

Biber, supra note 46, at 17 (citations omitted). The EPA has used baselines and metrics in adopting an ecosystem services approach. See, e.g., Michelle Bryan Mudd, A Next, Big Step for the West: Using Model Legislation to Create a Water-Climate Element in Local Comprehensive Plans, 3 WASH. J. ENVTL. L. & POL'Y 1, 31–32 (2013) (”On the climate change side, in its Guiding Principles of Adaptation, the EPA recommends adaptation strategies that closely dovetail best practices in comprehensive planning” such as “[c]ontinuously evaluat[ing] performance by using ‘measureable goals and performance metrics’ to ‘assess whether adaptive actions are achieving desired outcomes.’”). 51 Thomas Dietz, Elinor Ostrom & Paul C. Stern, The Struggle to Govern the Commons, 302 Sci. 1907, 1912 (2003). 52 Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 HARV. ENVT’L L. REV. 446, 446–47 (2012) (citation omitted). 53 Id. at 450–53. [52] 54 Id. at 447. [52]

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The inefficiencies arise out of collective action problems and are exacerbated by the mismatch between jurisdictional boundaries and ecosystems. In the Tragedy of the Commons, Garret Hardin set forth the paradigmatic starting point to explore and hypothesize possible outcomes relevant to collective action challenges.55 Hardin describes a “commons” pasture open to herders upon which each herder has the right to use the resource as much as possible and no right to stop other herders from doing so. This formation of rights, Hardin theorized, incentivizes each herder to make a ”rational” decision to maximize personal economic gain by adding cattle.56 “Eventually, without some coordinating force . . . each individual’s exercise of rational self-interest results in overconsumption . . . and ultimately [is unsustainable, resulting in] . . . complete and tragic elimination [of the resource].”57 Natural capital found in ecosystems raises classic collective action challenges, where numerous self-interested actors compete to consume the natural capital, such as water or clean air.58 Climate change, implicated in several natural capital commons, has been described as the “ultimate” collective action problem.59 One of the complexities of climate change is that it consists of multiple common resource challenges, including an atmospheric commons subject to depletion by greenhouse gas emissions and numerous natural capital commons that serve as greenhouse gas sinks, such as wetlands and forests.60 The atmosphere, for example, is a depletable resource (clean air) from which almost every individual and entity consumes or appropriates, even minimally, by emitting greenhouse gases.61 Each actor benefits by reducing the cost of containing or reducing their greenhouse gas emissions, and shares (unequally across geographic areas and temporally)62 the negative effects of climate-changing conditions 55

Garrett Hardin, Tragedy of the Commons, 162 SCIENCE 1243 (1968). Several lines of scholarship challenge Hardin’s analysis. See, e.g., Mark Granovetter, Economic Action and Social Structure: The Problem of Embeddedness, 91 AM. J. SOCIOLOGY 481, 493 (1985) (arguing that individuals are “so constrained by ongoing social relations that to construe them as independent is a grievous misunderstanding”—a theory Granovetter calls “embeddedness”); Richard H. Thaler, The Psychology of Choice and the Assumptions of Economics, in QUASI RATIONAL ECONOMICS (1991) (introducing “behavioral decision theory,” which purports to contradict the theory that individuals always act in their own self-interest using empirical analyses); Herbert A. Simon, Rational Choice and the Structure of the Environment, in MODELS OF MAN: SOCIAL AND RATIONAL 261, 270–71 (1957) (arguing that individuals operate with “bounded rationality,” meaning that they often take decisionmaking shortcuts that fail to maximize their self-interest); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 58–103 (1990) (observing certain characteristics when individuals collaborate to successfully manage a common pool resource, communities); Bryan E. Burke, Hardin Revisited: A Critical Look at Perception and the Logic of the Commons, 29 HUM. ECOLOGY 449, 457 (2001) (summarizing Ostrom's argument that “it may be rational for common resource users to forego individual benefits and cooperate toward collective goals”). 56 Hardin, supra note 55, at 1245. 57 Blake Hudson & Jonathan Rosenbloom, Uncommon Approaches to Commons Problems: Nested Governance Commons and Climate Change, 64 HASTINGS L. J. 1273, 1281–82 (2013) (citations omitted). 58 See id. at 1283–1314. [57] 59 Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 YALE L.J. 350, 369 (2011). 60 For a discussion of forests as a natural capital commons see Blake Hudson, Commerce in the Commons: A Unified Theory of Natural Capital Regulation under the Commerce Clause, 35 HARV. ENVTL. L. REV. 375, 394 (2011); and for a discussion of wetlands as a natural capital commons see id. at 426–27. 61 Robert O. Keohane & Elinor Ostrom, Introduction, in LOCAL COMMONS AND GLOBAL INTERDEPENDENCE 1, 13 (Robert O. Keohane & Elinor Ostrom eds., 1995) (describing common pool resources as “depletable natural or human-made resources from which potential beneficiaries are difficult to exclude.”). 62 Because greenhouse gases remain in the atmosphere for extended periods of time, future generations, who may not emit greenhouse gases, will bear the brunt of the greenhouse gases emitted by prior generations.

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associated with greenhouse gases with the global population.63 The delineation of jurisdictional boundaries further exacerbates the complexity of climate change by creating additional collective action problems at numerous levels. Private sector actors and government actors at every governance scale—local, state, national, and global—appropriate or facilitate the appropriation of natural capital essential to combatting climate change, such as wetlands and forests. While each commons within and across scales presents a distinct body of actors that have diverse perceptions of their respective commons, they appropriate the same or similar natural capital resources as actors on other scales. In other words, each scale holds several potential opportunities to devolve into a tragedy of the commons and deplete natural resources necessary to combat climate change.64 Collaboration may help overcome the inefficiencies relevant to collective action problems to incentivize and more equitably allocate risks and costs among the relevant parties— regardless of the context—to encourage sustainable actions.65 Brought to life by the late Elinor Ostrom’s Nobel Prize-winning work, collaborations offer an alternative to the tragedy of the commons by, in effect, readjusting the geopolitical boundaries, costs, and risks so that they better correspond to the challenges. Collaborations help shift the dynamic so that individuals and entities with a stake in an ecosystem and its services have the ability to measure, use, and protect that ecosystem in a sustainable manner. Instead of fragmenting and acting individually, collaboration offers the opportunity to control and alter the fate of a given ecosystem. As Ostrom, Thomas Dietz, and Paul Stern noted: The 35 years since Hardin’s essay have yielded new understandings of commons governance. Governance still frequently fails due to inadequate knowledge, inadequate application of the knowledge we have, narrow political and economic interests, or events outside the control of governance institutions. The record of the late twentieth century shows remarkable success where we have applied emerging knowledge of commons governance and remarkable failure where we have ignored those lessons or simply failed to address commons governance at all.66 Watersheds provide a useful example. A watershed may cut across numerous

63

See Ewing & Kysar, supra note 58, at 369. Hudson & Rosenbloom, supra note 56, at 1341. 65 When confronted with a collective action problem, scholars have recognized several alternatives to devolving into a tragedy of the commons. Actors may self-regulate and act against their rational self-interest by controlling their externalities despite the inefficiencies. Alternatively, they may be regulated by a government body, which compels the actors to control or limit their externalities. The resource may also be privatized in a way in which selected actors are granted rights to exclude others from appropriating from the resource. For a discussion of altruism, regulation, and privatization see Rosenbloom, supra note 52, at 462–68. Collaboration is suggested as an additional model, not to the exclusion of other institutional arrangements, such as a polycentric approach. For a description of polycentric systems see ELINOR OSTROM, UNDERSTANDING INSTITUTIONAL DIVERSITY 281–86 (2005). 66 Thomas Dietz, Elinor Ostrom & Paul C. Stern, The Struggle to Govern the Commons, 302 Sci. 1907, 1912 (2003). 64

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jurisdictional boundaries (city, county, state, national), and private properties. 67 Watershed partnerships have emerged to collaboratively and sustainably manage and protect the ecosystem. These partnerships “enable the participants to share goals and participate in mutually beneficial consequences of concerted action. Partnerships can be responsive to the particular circumstances of a given watershed, as they ‘can build on local knowledge and craft specialized policies congruent with local watershed problems.’”68 For example, in 2010, following several disastrous floods, Iowa authorized the creation of Watershed Management Authorities (WMA). The jurisdictional boundaries of WMAs correspond to the various watersheds around the state, and are comprised of the cities, counties, or soil and water conservation districts in a given watershed. When created, the WMAs assume a regional and holistic approach to watershed management, addressing issues such as flood risk, water quality, land use planning, education, and funding. In this way, the WMS’s adopt a collaborative approach among existing local governments to address key issues relevant to sustainability. Perhaps most important, “collaborative models in watershed governance have proven effective in breaching intractability between competing interests, establishing a process for information sharing, and rallying neighboring jurisdictions to cumulative goals.”69 IV.

CONCLUSION

The three themes were identified because they are flexible and apply to various actors and diverse situations in which sustainability is an issue. The following two examples illustrate how the three themes could work to help achieve the goals associated with sustainability. In the first example, the Chesapeake Bay Program incorporates the three themes by fostering state collaboration and establishing baselines and metrics to help properly manage and account for impacts to a shared ecosystem. The participating states (Pennsylvania, Virginia, Maryland, Delaware, New York, and West Virginia) appropriate natural resources from shared ecosystems (through water, wetland, and forest usage) connected to the Chesapeake Bay.70 The states work to preserve the Chesapeake Bay and connecting ecosystems by, among other things, establishing baselines and metrics to target sustainable solutions to conserve the Bay and monitor whether those solutions are having the desired effect. Approximately twenty times a year, the Program tracks physical, chemical, and biological characteristics in the main stream and tributaries, including nutrient and sediment levels, chemical contaminants, plankton, and water levels and temperature.71 It then takes appropriate action based on the measurements. Similarly, local governments around the world are collaborating to tackle climate change. The C40 Cities: Climate Leadership Group is a group of approximate five dozen “megacities,” representing eighteen percent of the global GDP and approximately eight percent of the global population.72 The cities have committed themselves to help baseline, track, monitor, and assess 67

For a detailed discussion of collaboration and watersheds, see Keith Hirokawa, Driving Local Governments to Watershed Governance, 42 ENVTL. L. 157 (2012). 68 Id. at 198 [67] (internal citations omitted) (quoting Mark Lubell et al., Watershed Partnerships and the Emergence of Collective Action Institutions, 46 AM. J. POLI. SCI. 148, 149 (2002)). 69 Id. (internal citations omitted). [67] 70 Partner Organizations, Chesapeake Bay Program, http://www.chesapeakebay.net/about/partners (last visited Nov. 5, 2013). 71 Hudson & Rosenbloom, supra note 56, at 1331-32. 72 Id. [71]

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greenhouse gas emissions.73 They have created a number of programs designed to support best practices, share information, and establish metrics to facilitate a reduction in climate-changing conditions. These two examples illustrate how various entities (here state and local governments, however, the analysis equally applies to individuals, businesses, and the federal government) may collaborate to adopt an ecosystem services management approach, including establishing and assessing baselines and metrics, to preserve the ecosystem and to help accelerate a move toward sustainability. As depicted in the image below, they move toward sustainability by, among other things, incorporating the three themes in a multi-layered system. Incorporation of each theme advances the issue closer to the goals associated with sustainability.

As the term “sustainability” evolves, the themes can help convert that evolution into concrete changes without having to revisit a discourse on definition. Ecosystem services management is an attempt to more accurately recognize, measure, and evaluate externalities and the loss of natural resources. It may help assess the risks involved with using natural capital by identifying the cost of that use, which can lead to the proper allocation of the cost. At a minimum, it helps paint a more accurate picture of who and what is affecting ecosystems in an unsustainable fashion. The current institutional structures are a barrier, however, to addressing multi-jurisdictional ecosystem challenges. Collaboration is a means of overcoming this barrier. 73

Id. [71]

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Further, baselines and metrics help move forward in a knowledgeable and informed fashion to reduce inefficiencies as we seek to meet the climate change challenge. Framing the discourse on sustainability as one about definitions—as opposed to implementation—draws capital (at least human and financial) away from considering creative approaches to achieving sustainability. It hampers action by failing to provide focus or guidance to those looking to implement sustainable practices. Ultimately, however one defines “sustainability,” while important, is less likely to address the very real and pressing challenges we face in an era of climate change.

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