Over a quarter century has passed since the Clean Air Act of 1970(1) ushered in the era of modern environmental law, establishing for the first time tough, nationally uniform command-and-control requirements.(2) From today's vantage point, the major environmental statutes passed in the 1970s such as the Clean Water Act.(3) and the Resource Conservation and Recovery Act(4) have been largely successful. Overall, the air is purer, the water is cleaner.(5) Despite this progress, however, public opinion polls consistently show a general perception that the threats facing the environment are more serious today than in 1970.6 The question is why? Where have our environmental laws fallen short?
Clearly, one problem is the inadequacy of domestic laws in the face of international environmental threats. The local identification of our environmental problems in 1970 was, in retrospect, parochial. An equally important problem, however, is that our vision of environmental law has been constricted. By narrowly focusing on basic pollution issues such as the production and disposal of waste, our laws have largely ignored other significant contributors to environmental harms. Chief among these contributors, and the focus of this article, is consumption.
With few exceptions, our modern environmental laws have been pollution control laws. As a result, our factories are now cleaner and more efficient, producing less pollution per unit of production.(7) This is surely an important achievement, but its significance is diminished by the fact that we are all consuming more, resulting in accelerated use of natural resources and associated impacts both at home and abroad.(8) Indeed, more goods and services have been consumed since 1950 than by all previous generations combined.(9) The manufacture of cars, for example, produces less pollution than twenty years ago, but the far greater number of cars on the road has led to major increases in resource consumption.(10) Put simply, in concentrating our laws on the reduction of waste from pipes and smokestacks, we have largely neglected to address the reason we produce the waste in the first place.
This is a serious failing, for stringent regulation of polluting industries will not ensure environmental protection if current trends of consumption continue over the longer term.(11) As Gro Harlem Brundtland, former Prime Minister of Norway and chair of the commission that produced the seminal work, Our Common Future, has stated:
It is simply impossible for the world as a whole to sustain a Western level
of consumption for all. In fact, if seven billion people were to
consume as much energy and resources as we do in the West today we
would need ten worlds, not one to satisfy all our needs.(12)
The international community has recognized the importance of consumption in environmental protection, declaring at the 1992 Earth Summit that, "[t]he major cause of the continued deterioration of the global environmental degradation is the unsustainable pattern of consumption and production, particularly in the industrialized countries, which is a matter of grave concern, aggravating poverty and imbalances .... Developed countries should take the lead in achieving sustainable consumption patterns . . . ."(13)
The clear implication of this statement, endorsed by 178 countries and repeated in subsequent international declarations, is that over the longer term we in the developed world must consume less, consume better, or both. This general goal has been described as "Sustainable Consumption." The key challenge is how to translate this goal into effective practice. Indeed, what level of consumption is sustainable? What does consuming better actually mean? And, the focus of this Article, what role does and should the taw play in influencing our patterns and levels of consumption?
The term, "sustainable consumption," as used in this Article, refers to a level of consumption which causes a level of environmental impact over time that does not degrade basic ecosystem services, such as the provision of fresh water, fertile soil, and a protective ozone layer. …