Sustainability and the US Supreme Court


The opinions rendered in the landmark cases of the last few days provide an example for all who are interested in and concerned about sustainability. Chief Justice Roberts argued in his opinion, upholding the Affordable Care Act, that the contested phase in question could not be understood out of the context of the entire statute that it is embedded in. Further that context clearly, in his opinion and that of his co-opining Justices, was designed to solve a social problem of significant magnitude. Many commentators agreed with him against the textualists (Scalia and others) that meaning is to be found in the particular text under scrutiny. For the textualists, only the words, themselves, carry meaning; the context in which they rest is irrelevant. I am solidly in the camp of the contextualists.

Now let’s take this interpretation and examine the word, sustainability, and how it is being used to create and justify action. Sustainability never means anything without some reference to a system and properties of that system that are to be sustained. So when we begin to examine what is being done in the name of sustainability, we must consider the system and what is to be maintained. In the case of the ACA, the system is the US society as a whole, and the health of the people and their right to decent health care is what is to be maintained. Looking at the other immediate decision about the “right” to marriage for homosexuals, again the system is the US society and the property to be maintained is dignity, as Justice Kennedy (pictured) so eloquently wrote in his majority opinion.

Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

In the latter case, Justice Kennedy points to the context of the Constitution as a whole and picks out dignity as the particular property to be sustained. Of course in both cases, it may take a while for the system to adjust to a point where these properties are present in sufficient amounts to be deemed sustainable. From a contextualists point of view, we must identify both the system that provides the context and the property that is to sustained, either presently or after it has been created in sufficient amount. My problem with the word and its application have to do with both pieces, context and property. The word, itself, was plucked out of the dictionary and crammed into public awareness by the 1987 publication by the UN of the book, Our Common Future (generally known as the Brundtland Report).

Sustainable development, as it proposed, would produce a future that was fair for all, metaphorically including the Earth. Its intent was to place environment solidly into the hegemonic economically driven political agendas of governments. Its context was the whole world’s socio-economic-environmental system, and the unfair history of economic growth and its concomitant use and spoilage of nature. Two tightly connected problems were to be addressed: unfair economic growth among countries and regions, and the limits of the environment to support unlimited growth now and in the future. Future generations were to be included in the system. As a policy instrument, it has been largely impotent to stop either continuing environmental predation and degradation and unfair economic development.

Of significance to current practices, the word sustainability, was not included, out of this context. But something not so unusual has happened in the almost thirty years since the report’s publication, the context has been lost. Words tend to do that, as legal and linguistic contextualist scholars tend to note. Today, when companies, particularly, or governments speak of sustainability, they look only at their own narrow contexts, not the same world of Brundtland. They presume, but fail to incorporate realistic connections, that what they do will have positive impacts on the whole system, but they have the wrong system and properties as criteria. But so did the original Brundtland report. It had the world system right, but sought to sustain economic growth, both then and now, as the system property of primary and singular concern. Those invoking sustainability, then and now, make a categorical error. They mistake a process, growth, as a system property, instead of emergent systemic properties like flourishing or justice, or many other possibilities.

The lack of justice or equity among nations and generations was one of the key reasons behind the drive propelled by Brundtland and the many actions that have followed. The failure for the Earth, comprising its humans and the rest of the system, to flourish was the other. Focus, then and now, has been on the symptoms of illth (as Herman Daly called the unhealthy state of today’s world), like habitat destruction, pollution, health, climate change, and so on. I call them unsustainability, but not in the sense of impeding growth. I refer to the inability to maintain justice and flourishing as the reasons to care about the state of the world, whether you look at it from either side of a half-filled glass. Growth is increasingly being recognized as one of the causes of illth and the the loss of capability to produce and sustain justice and flourishing. I tend to concatenate these two into flourishing as the single normative goal for the world and its manifold polities. We are surely far from being able to do that. That is one clear reason to stop talking about sustainability.

Almost all efforts carrying the name sustainability or sustainable in them look only at the system of bads we are producing as unintended consequences of our normal, dominant belief in growth as the purveyor of human happiness. Most sustainability efforts are some form of eco-efficiency or remediation, neither of which affects the critical entire system. They always focus on a mere piece of the puzzle, the company’s explicit contributions to harms, that is, these efforts are self-referential. Such efforts are to be welcomed for making, hopefully, the harms less worse, but also tend to allow the actors to become even less mindful of the systemic nature of the problems. This is why all the sustainability reports in the world cannot bring forth justice or flourishing. The are useful for discriminating among individual efforts, but not about the effectiveness of these efforts as a whole. Only the whole relates to the system.

The Dutch, some time ago, recognized the nature of this situation and allocated reduction goals to industrial sectors, who then passed along reduction targets to individual entities, using models of

“environmental utilisation space” a concept that “reflects that at any given point in time, there are limits to the amount of environmental pressure that the Earth’s ecosystems can handle without irreversible damage to these systems or to the life support processes that they enable”…The “society” for which the biosphere provides services is of course global. As defined by Weterings and Opschoor (the authors of the Dutch paper proposing this idea), environmental space similarly means the space available to humanity as a whole for utilisation of stocks and sinks. At least, this applies to stocks that are globally tradeable, and sinks that are global in extent. However, the same authors point out that the recognition of global limits forces us to face the issue of how environmental space is to be allocated between nations and regions.

While understood as only a partial answer, they made the Earth system context explicit, but we never got even that far here in the US. Those that do understand both the whole system context and the need to select one or more emergent properties, not some internal process, as the normative goal, are critical of the efforts of the US and virtual all modern polities being made in the name of sustainability. We do not question the intentions to stop the social and environmental bleeding, but are quite certain that tourniquets being placed only on a limb of the system will not do the necessary job. The implicit or explicit reliance on growth as the cure for the ills that lie within the whole system must be replaced by some other engine of social and environmental health. That’s a very hard message, but pops right out when one’s focus expands to encompass the whole system we call home.

Without that as the context for what we name as our norms and processes, we are stuck in our present retrograde trajectory. The great steps forward in American jurisprudence and American life have been made only when the whole context of our Constitutional system emerges. In the classic case that established the right to privacy, Justice Douglas wrote as a basis for the majority opinion, “In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.”┬áIf we are to flourish, similarly to privacy as a system property, we need to recognize and act within the “penumbra” of the whole world.