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The future Scotland wants – is it really all about Sustainable Economic Growth?

Document Cited authorities 39 Cited in Related
Vincent
AuthorAndrea Ross
Pages66-100
DOI10.3366/elr.2015.0251
Published date01 January 2015
Date01 January 2015
INTRODUCTION

On 16 January 2014, with the passing of the Regulatory Reform (Scotland) Act 2014 (“the Act”), the Scottish Parliament imposed a statutory duty on certain public bodies to “contribute to achieving sustainable economic growth” in the exercise of their regulatory functions.1

Regulatory Reform (Scotland) Act 2014 s 4(1).

The duty follows on from the Scottish Government's overall purpose to “focus government and public services on creating a more successful country, with opportunities for all of Scotland to flourish, through increasing sustainable economic growth”.2

Scottish Government, The Government Economic Strategy (2011), available at http://www.scotland.gov.uk/Publications/2011/09/13091128/8.

That same day, a team of ten world experts in economics, health, environmental sustainability, public policy and climate change published a paper in Nature which stated that the time had come to realise that gross domestic product is a misleading measure of national success – the emphasis on GDP growth in developed countries now fuels social and environmental instability and blinds developing countries to the possibilities of more sustainable models of development.3

R Costanza et al, “Time to leave GDP behind” (2014) 505 Nature 283.

Globally, we are currently using the resources of 1.5 planets to meet our needs and, using business as usual predictions, this is expected to rise to two planets by 2030.4

WWF, Zoological Society of London, Global Footprint Network, and European Space Agency, Living Planet Report 2012 (2012) 38, available at http://awsassets.panda.org/downloads/1_lpr_ 2012_online_full_size_single_pages_final_120516.pdf; J Rockstrom et al, “A safe operating space for humanity” (2009) 461 Nature 472.

 There is an emerging consensus that we are exceeding safe planetary boundaries because we are consuming too much, and this can be attributed to our dependence on growth.5

UNEP, Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication (2011) 17 and 259, available at www.unep.org/greeneconomy/Portals/88/documents/ger/ger_ final_dec_2011/Green%20EconomyReport_Final_Dec2011.pdf; T O'Riordan, “Sustainability in an age of Austerity” (2011) 23 ELM 160; T Jackson, Prosperity without Growth: The transition to a sustainable economy (2009).

 This article critically examines the Scottish Government's decision explicitly to promote sustainable economic growth as its overall objective. It questions whether the new legal duty is evidence of this dependence and evaluates the duty's potential in promoting and measuring national success and providing opportunities for all to flourish

The paper also examines the possible relationship between sustainable economic growth and the widely accepted objective of sustainable development as complementary or contrasting policy objectives and legal duties. In doing so, it demonstrates the difficulties governments face in trying to put flesh on the bones of the Brundtland definition of sustainable development and to accelerate progress towards sustainable living.6

World Commission on Environment and Development (WCCD), Report of the World Commission on Environment and Development: Our Common Future, UN Doc A/42/427 (1987), available at http://www.undemocracy.com/A-42–427.pdf.

More specifically, the article analyses the legal and practical implications of an overall stated Government objective of increasing sustainable economic growth and the further implications that arise now that the term is formalised in legislation. It is based on a critical review of Scottish Government policy, the provisions of the Regulatory Reform (Scotland) Act 2014, as well as the written and oral evidence submitted to parliamentary committees scrutinising the Bill, their reports, and the subsequent Government responses. It also draws on previous research on the use of legal duties to deliver government objectives and on the meaning and delivery of sustainable development

The paper begins by examining the evolution of sustainable development as a widely accepted policy goal and the role of the economy in that journey. It then explains the Scottish Government's policy on sustainable economic growth in Scotland and the specific legal duties recently introduced in the Act, before moving on critically to unravel the policy goal of sustainable economic growth in the context of environmental law in Scotland and to examine how the various interpretations of the term that have been offered by the Scottish Government and others relate to wider environmental law in Scotland. The possible interpretations and practical implications of the legal duty on its own and in relation to other functions and duties of public bodies are then explored. This analysis is used to question whether increasing sustainable economic growth is the most suitable overall goal for the Scottish Government and Scotland, comparing it with other possible overall objectives such as “flourishing” and “sustainable development”. The article ends by suggesting an alternative role for sustainable economic growth in the context of overall Scottish Government policy.

 SUSTAINABLE DEVELOPMENT AND THE ROLE OF ECONOMIC GROWTH

Humans have always understood, to some degree, that their quality of life and wellbeing depend on the quality of their environment and the availability of necessary resources. In 1980, the World Conservation Strategy: Living Resource Conservation for Sustainable Development, explicitly linked conservation and development in a new term, sustainable development.7

International Union for the Conservation of Nature and Natural Resources, World Conservation Strategy: Living Resource Conservation for Sustainable Development (1980), available at http://data.iucn.org/dbtw-wpd/edocs/WCS-004.pdf.

In 1987, the World Commission on Environment and Development – a panel of experts from around the world that was chaired by the Norwegian Prime Minister Gro Harlem Brundtland – set out what is now the most widely accepted interpretation of sustainable development: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.8

World Commission on Environment and Development, Our Common Future (1987) (n 6).

The world community officially endorsed sustainable development in 1992 at the first World Summit on Sustainable Development held in Rio de Janeiro. The Rio Declaration sets out twenty seven principles of sustainable development that, although non-binding, are set out in strong legal terms. Another conference output, Agenda 21, sets out a 470 page plan of action or blueprint for sustainable development.9

General Assembly of the United Nations (UNGA), The Rio Declaration on Environment and Development 31 ILM 874 (1992); UNGA, Agenda 21, A/CONF.151/26 vol 1 (1992).

At the second summit, held in Johannesburg in 2002, the three interdependent dimensions of sustainable development – environmental protection, economic development, and social development – were confirmed, and focus shifted actually to delivering sustainable development.10

United Nations (UN), Plan of Implementation of the World Summit on Sustainable Development (2002) A/CONF.199/20/Res.2.

 Indeed, while sustainable development could be seen as a product, it is more usefully seen as a process that integrates development with environmental considerations and takes into account both intra and intergenerational equity.11

P Birnie, A Boyle and C Redgwell, International Law and the Environment 3rd edn (2009) 127; Implicit in the decision of the Gabcikovo-Nagymaros Case 1997 ICJ 7; 37 ILM 162 (1998).

Sustainable development is now included in numerous multilateral and bilateral conventions and treaties as a binding objective, and the UK is party to many of these treaties.12

E.g. Convention on Climate Change 31 ILM 848 (1992), art 3; Convention on Biological Diversity 31 ILM 818 (1992), arts 8 and 10.

Similarly, sustainable development is an objective of the European Union.13

Consolidated Version of the Treaty on European Union OJ 2008 C115/13, art 3; Consolidated version of Treaty on the Functioning of the European Union, OJ 2008 C115/47, art 11; Council Directive 2000/60/EC OJ 2000 L 327 establishing a framework for Community action in the field of water policy, arts 1, 3, 7, 11.

 Many national constitutions include a reference to sustainable development, and in the UK and Scotland a legal duty to “contribute to the achievement of sustainable development” (or words to that effect) regularly appears in statutes.14

E.g. Planning etc. (Scotland) Act 2006 s 2; Local Government in Scotland Act 2003 s 1(4); Water Environment and Water Services (Scotland) Act 2003 s 2(4); Climate Change (Scotland) Act s 44(1); Marine (Scotland) Act 2010 s 3.

 In most cases, if such a legal obligation exists, it is not to achieve sustainable development but to strive for it or require development decisions to take account of sustainable development, and to employ appropriate processes for doing so.15

V Barral, “Sustainable development in international law: nature and operation of an evolutive legal norm” (2012) 23(2) EJIL 377 at 391; Birnie, et al (n 11).

Unfortunately, there is no precise meaning of sustainable development. The Brundtland definition sets wide parameters for countries, regions, organisations and individuals to operate, and allows each to set out its own detailed interpretation of sustainable development based on its particular circumstances. While this encourages discourse by bringing together different and conflicting interests, it suffers from being vague and imprecise.

French describes three main tensions within the Brundtland definition.16

D French, International Law and Policy for Sustainable Development (2005) 10–34.

First, to what extent should we preserve and conserve those environmental assets that are critical to our well-being and survival as critical natural capital? Tensions exist in...

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