International Environmental Law and Industrial Ecology

If sustainable development is ever to be achieved, the course of industrial development must be charted to serve not only concerns for economic competitiveness, but also concerns for an ecologically sustainable future. If industrial ecology is to provide a common ground between the industrial and environmental agendas, it is important to consider the impact of international environmental law on industrial ecosystems and what steps might be taken to effect needed system-wide changes.

Briefly summarized, industrial ecology represents a systemwide approach to analyzing industrial processes. With this approach it is possible to evaluate how environmental concerns and costs may be integrated into industrial and economic decision making, and to maximize the beneficial use of resources while minimizing disruptions to the industrial ecosystem.

In some cases, the integration of environmental factors into business decisions has resulted in a direct cost-savings to the manufacturer, creating an economic incentive sufficient to encourage the adoption of these principles. However, in the majority of cases, such efforts will not be cost-effective either in the short term, because of start-up costs, or in the long term, because market failures may prevent true environmental costs from being included in the cost-benefit analysis. In this context, law can play a critical role, since it embodies a host of noneconomic social value judgments (e.g., saving a species is good). Laws, therefore, can be crafted to correct market failures and provide incentives for undertaking activities that are cost-effective only over the long term.

At the national level, particularly in the United States and other industrialized countries, domestic environmental laws are slowly shifting to providing incen-tives to protect the environment. For example, the United States in 1990 adopted the Pollution Prevention Act (42 U.S.C. °13101 (a)(3)), which explicitly recognizes that

There are significant opportunities for industry to reduce or prevent pollution at the source through cost-effective changes in production, operation, and raw materials use. Such changes offer industry substantial savings in reduced raw material, pollution control, and liability costs as well as help protect the environment and reduce risks to worker health and safety.

The act also recognizes that current environmental laws often impede cleaner production and consumption practices. To remedy this, the act declares a national policy to eliminate these disincentives and, to the greatest extent feasible, provide incentives for the wider acceptance of pollution prevention techniques for environmental protection. Similarly, the new German auto initiative sets standards for reuse and recycling of used automobiles. Domestic laws such as these seek to internalize environmental costs in decision making and to encourage consideration of the environmental impacts of resource use.

MOVING BEYOND “COMMAND-AND-CONTROL” IN INTERNATIONAL ENVIRONMENTAL LAW
International environmental law, like many national domestic environmental laws, is directed primarily to controlling pollution at the end of processes. A more comprehensive approach is needed to encourage systemwide changes in complex production and consumption practices. A wide range of regulatory approaches and devices could be incorporated to encourage systems approaches to addressing environmental concerns in international environmental law. A number of these approaches are discussed below; however, the list laid out here is in no way exhaustive. Moreover, the following approaches are not necessarily mutually exclusive, and the best regulatory approach may consist of a combination of these, as well as other potential approaches.

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