States as Engines of Sustainable Development: Some Think They Can

John A. Pendergrass

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations gathered in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. Prof. John C. Dernbach has edited a book, Stumbling Toward Sustainability, that assesses progress made by the United States on sustainable development in the past 10 years and recommends next steps. The book, published by the Environmental Law Institute in July 2002, is comprised of chapters on various subjects by experts from around the country. This Article appears as a chapter in that book. Further information on Stumbling Toward Sustainability is available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

John A. Pendergrass is a Senior Attorney and Director of the Center for State, Local, and Regional Environmental Programs at the Environmental Law Institute. He has conducted extensive research into state environmental programs and the federal-state partnership in environmental law. The author wishes to thank John Dernbach for his very helpful comments and Ryan Hamilton for his excellent assistance in research for this Article.

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States have been and should continue to be engines of sustainable development in the United States. They are not the only forces at work, and some have been willing to let others, along with the large federal locomotive, pull them up the sustainable development hill, but they are necessary if the United States is to reach its goals. The important roles that states have in policymaking and implementation means that a complete assessment of progress toward sustainable development in the United States must include an examination of what states are accomplishing. This Article begins by narrowing the broad sweep of sustainable development to those aspects that are of particular relevance to U.S. states, then provides an overview of what states had done prior to the Rio Summit, followed by an assessment of what they have done in the intervening 10 years. It concludes with recommendations for states to continue their progress toward sustainable development. As will be discussed further, states in the United States have many attributes of national governments, particularly with respect to their authority and responsibility for most aspects of sustainable development. This Article could then, in theory, encompass all of sustainable development, but it will not attempt to assess aspects of sustainable development related to specific media, resources, and issues covered comprehensively in other Articles.

Beginning even before the advent of the modern era of environmental law in the United States in 1970, some states have developed innovative laws and programs that have served as models for other states and the federal government for solving environmental problems and promoting what is now understood as sustainable development. Sustainable development depends on local action that keeps larger social goals in mind while satisfying local needs. This is the role state governments are intended to carry out in the United States and, at their best, some have done much to promote and to achieve sustainable development, but the efforts and progress have been uneven. In order to achieve sustainable development in the United States, all the states must join the effort, follow the examples of the leading states, adopt the innovations that have proven successful, involve their citizens, report on their progress, and continue to create innovative policies and programs.

Characteristics of Sustainable Development in the Context of States

Sustainable development remains an elusive concept even 10 years after the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro in June 1992 (Rio Summit). The Rio Declaration on Environment and Development¹ and Agenda 21² have defined sustainable development in terms of a series of principles and needed actions, but these documents are not well known to state officials, or the public, in the United States. Sustainable development, particularly in the context of the states, is probably best understood as a process. There is a substantive goal for that process, but because the goal is to simultaneously achieve a society's economic, social, environmental, and security goals while maintaining the ability of future generations to attain their goals in the same areas, it will never be possible to say that the goal of sustainable development has been achieved and the process is complete.³ Nevertheless, achieving perceptible progress toward those goals is important. This Article seeks to provide both an overview of the way states approach sustainable development and a spotlight on some of the most notable achievements, tangible results, and policies.

The process of sustainable development is dynamic, integrative, participatory, decentralized, and continuous. Sustainable development is necessarily dynamic, because it [32 ELR 11366] serves needs and goals of society as they change over time. It is integrative, because it seeks to achieve disparate societal goals that are, nevertheless, interrelated. Participation is essential if sustainable development is to successfully meet the needs and goals of society as a whole while treating all segments of society fairly.⁴ Decentralization is considered important in order to enhance the effectiveness of participation in the process of sustainable development and to assure that local needs and goals are met.⁵ Finally, sustainable development must be a continuing process, because societal needs and goals change over time, particularly as some needs are met. The intergenerational aspect of sustainable development means that the process must be renewed at least on a generational schedule.

At least five principles have been identified as being important to sustainable development: integrated decision-making, the polluter-pays principle, the precautionary principle, intergenerational equity, and developed country leadership.⁶ The latter clearly is of more relevance at the national level, although the relative lack of leadership by the federal government has meant that a few states have by default taken on leadership roles for the United States. The polluter-pays principle has been widely adopted in federal and state laws and thus can be taken as a given in the context of assessing the progress of states toward sustainable development. In contrast, the precautionary principle has not been widely applied in the United States and, therefore, for opposite reasons it also provides little grist for assessing sustainable development in the states. The fact that U.S. states have largely ignored the precautionary principle should not be understood to lessen its importance to achieving sustainability, and notable examples of its use may help to demonstrate its value and advantages to state policymakers. Integrated decisionmaking⁷ and intergenerational equity are the most salient of these principles for evaluating states' efforts to promote sustainable development. In addition, the mechanism of decentralization of decisionmaking⁸ is also an important aspect of sustainable development in the context of the roles of the federal, state, and local governments in the United States.

Integrated Decisionmaking

Integrated decisionmaking is essential for the process of sustainable development to be successful in achieving society's needs and goals with respect to economic development, environmental protection, social development, and security. The Rio Declaration speaks of integrating environmental protection into development decisions,⁹ but the better practice is to integrate all decisions that relate to the broad social needs identified above. Decisions intended to further one goal should not, as a general rule, make it more difficult to achieve other goals and, to the extent possible, should support and reinforce efforts to achieve the other objectives. Agenda 21 states that "the overall objective is to improve or restructure the decision-making process so that consideration of socio-economic and environmental issues is fully integrated and a broader range of public participation assured."¹⁰ Development decisions made without consideration of social and environmental consequences will have, at best, only a random chance of contributing to sustainable development.¹¹ The Rio Declaration also recommends that nations adopt environmental impact assessment (EIA) procedures, which institutionalizes integrated decision-making, as a decisionmaking tool.¹²

Governments, including state governments, typically are not organized to integrate all these factors in their decision-making. Rather, they are organized into departments with specific responsibilities for particular issues and mandates and authorities limited to those issues. Thus states have departments of environmental protection, economic development, and human services, each of which is authorized and directed to maximize public welfare with respect to their specific issue, but with little or no authority to coordinate with other departments or consider the effects they have on other aspects of public welfare or vice versa. Integrated decisionmaking is intended to reverse this tendency.¹³

Effective integrated decisionmaking relies on information and the ability to monitor progress toward goals. Agenda 21 recommends improving "the data systems and [32 ELR 11367] analytical methods used to support [integrated] decision-making processes."¹⁴ Similarly, it recommends improving the indicators commonly used to monitor progress toward societal goals, noting that gross national product (GNP) and measurements of individual resource or pollution flows are inadequate indicators of sustainability.¹⁵ It recommends that national governments develop indicators of sustainable development.¹⁶ In fact, a few states and nongovernmental organizations (NGOs) have been the leaders in the United States in developing and applying indicators of sustainable development.¹⁷

Intergenerational Equity

Intergenerational equity is perhaps the core defining principle of sustainable development. The classic definition states: "Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs."¹⁸ The Rio Declaration restates it as: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."¹⁹ This is a simple statement but represents a significant commitment by the present generation, and all succeeding "present" generations, to consider the interests of future generations in making decisions about the use of natural resources and care for the environment.

State governments at some level, though sometimes in a not well-articulated fashion, typically consider intergenerational equity an important policy goal. This derives from the fact that state governments have the most direct responsibility for assuring the general welfare of their citizens, including future generations of citizens. One of the demands that citizens make on their state and local governments in particular is that they demonstrate a commitment to assuring that the children and grandchildren of the current generation have better opportunities for safe, healthy, and prosperous lives than does the current generation. Intergenerational equity is, therefore, typically at least something to be aspired to by states.

Decentralized Decisionmaking

Unlike the first two principles of particular relevance to states, decentralized decisionmaking is derivative of other higher order principles. Principle 10 of the Rio Declaration states:

Environmental decisions are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes.²⁰

In addition, Principle 11 provides that "environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply."²¹ Finally, Principle 22 states that "indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and . . . enable their effective participation in the achievement of sustainable development."²²

Decentralized decisionmaking serves several of the purposes articulated in these principles. It facilitates participation by individuals, indigenous people, and local communities in environmental decisionmaking processes, particularly those that affect local resources or development projects and thus affect them directly. It also facilitates access to information that is most relevant, such as information relating to individual communities. For these reasons, Agenda 21 specifically recommends "delegating planning and management responsibilities to the lowest level of public authority consistent with effective action" as a method of supporting integrated decisionmaking.²³

Decentralized decisionmaking is well established in the United States, having a constitutional basis²⁴ as well as being a core political value. This Article focuses on the devolution of environmental decisionmaking from the federal government to the states. Decentralization clearly extends to local governments as well, and all states rely on their local governments to make decisions regarding many aspects of environment and development, such as the siting and support of development projects. Involvement of local governments in sustainable development is, however, beyond the scope of this Article.²⁵

Status of Sustainable Development in the States Before the Rio Summit

This section discusses the status of sustainable development in the states at the time of the Rio Summit in 1992. In particular, it focuses on the extent to which elements and principles of sustainable development were already institutionalized in states by 1992. This background provides the context for describing, understanding, and evaluating states efforts and progress toward sustainable development since 1992.

Integrated Decisionmaking

After the beginning of the modern era of environmental law in 1970, many states quickly grasped the advantages of integrated decisionmaking and adopted various forms of it. [32 ELR 11368] Most commonly these were based on the example of the environmental impact statement (EIS) adopted in the National Environmental Policy Act (NEPA).²⁶ That particular form of integrated decisionmaking also was the one most successfully implemented, as EIS were, despite opposition, routinely prepared in a number of states. Integrated decisionmaking also was adopted in a few states' constitutions, most often through recognition of a public trust obligation. In addition, a few leading states incorporated concepts of integrated decisionmaking into their land use statutes prior to 1992. The law enacted by New Jersey, in particular, sought to implement many of the principles of sustainable development, including integrated decisionmaking and intergenerational equity. Finally, a few states made integrated decisionmaking the centerpiece of laws aimed at encouraging pollution prevention. While these states may have been visionary in adopting such laws, their record in implementing them prior to 1992 was mixed.

A sizeable minority of states had already adopted a form of procedural integration²⁷ before 1992 by having passed state environmental policy acts (SEPAs) based on NEPA. Fourteen states, plus the District of Columbia and Puerto Rico, have enacted SEPAs and four others adopted similar requirements by Executive Order.²⁸ A significant purpose of SEPAs is to integrate environmental considerations into state decisions. For example, the New York Legislature, in enacting its State Environmental Quality Review Act (SEQRA), declared:

It is the intent of the legislature that the protection and enhancement of the environment, human and community resources shall be given appropriate weight with social and economic considerations in public policy. Social, economic, and environmental factors shall be considered together in reaching decisions on proposed activities.²⁹

Like NEPA, a key provision of the SEPAs is a requirement to conduct an environmental impact assessment (EIA) for proposed state actions, including approvals of major projects.³⁰ These EIAs are intended to "ensure systematic consideration of environmental risks at the early stages of planning before the state commits its resources."³¹ Unlike NEPA, SEPAs have generally taken a step toward substantive integration by requiring agencies to balance environmental impacts with the economic and other needs involved in the decision.³² A few states have gone even further, favoring the environmentally preferable alternative over others.³³

A few states have even raised integration of environmental, social, and economic welfare to the level of their state constitutions. For example, the Louisiana Constitution states: "The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the public."³⁴ The Louisiana Supreme Court held that this provision created a public trust obligation on the state government that included demonstrating that adverse environmental effects of a proposed state action had been minimized.³⁵ Implementation of the constitutional provision thus begins to merge with the procedural and, in this case, the substantive integrating functions of environmental impact analysis.

The public trust concept, that the state government has a duty to protect the state's natural resources for the benefit of all the citizens of the state,³⁶ is more explicit in the Pennsylvania Constitution, which provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.³⁷

The Pennsylvania Commonwealth Court has held that this provision imposes an affirmative duty on the state that applies to its decisions to approve economic activity.³⁸ In deciding whether to approve an activity, such as mining, the state decisionmaker must make three determinations: (1) the applicant complied with all rules and regulations protecting the commonwealth's natural resources; (2) "a reasonable effort to reduce environmental incursion to a minimum" was made; and (3) that the environmental harm from the action does not so clearly outweigh the benefits that to approve the action would be an abuse of discretion.³⁹ The commonwealth has institutionalized these requirements by incorporating them into the permit process and requiring applicants to demonstrate the basis for the latter two findings.⁴⁰ Pennsylvania thus achieved at least a first order level of procedural and substantive integration of environmental considerations into decisions [32 ELR 11369] that had traditionally been made based on economic and other public welfare criteria.⁴¹

The Hawaii Constitution specifically requires the state and its local governments to integrate conservation and development of environmental resources for the benefit of present and future generations, marrying two of the key principles of sustainable development. In 1978, the state added the following provision:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.⁴²

The section also includes a classic statement of the public trust: "All public natural resources are held in trust by the State for the benefit of the people."⁴³ The Hawaii Supreme Court interpreted this provision to have elevated the public trust "to the level of a constitutional mandate."⁴⁴ As such, the legislature and state agencies may not override the public trust responsibilities of the state. The court also explained that "the public trust is a dual concept of sovereign right and responsibility."⁴⁵ The state's responsibility is to preserve the trust resources for public purposes, which can evolve over time. In the case of water, the court held that the public trust has evolved to include retaining water in its natural state, use for drinking water, and use by native Hawaiians, but "the public trust has never been understood to safeguard rights of exclusive use for private commercial gain."⁴⁶ The court continued: "We hold that, while the state water resources trust acknowledges that private use for 'economic development' may produce important public benefits and that such benefits must figure into any balancing of competing interests in water, it stops short of embracing private commercial use as a protected 'trust purpose.'"⁴⁷ Instead, the court held that "the water resources trust also encompasses a duty to promote the reasonable and beneficial use of water resources in order to maximize their social and economic benefits to the people of this state."⁴⁸ The Hawaii Supreme Court thus interprets its state's constitutional public trust responsibility as being intended to assure that resources are used to achieve integrated environmental, social, and economic goals and to evolve over time as needed.

Other states expanded the public trust concept through legislation. The Michigan Environmental Protection Act (MEPA) grants citizens the right to sue "for the protection of the air, water, and other natural resources and the public trust therein from pollution, impairment or destruction."⁴⁹ A defendant to such a suit may defend on the grounds that "there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources."⁵⁰ The MEPA not only raised the level of protection for natural resources, it also recognized the value of citizen enforcement of environmental protection. Furthermore, the statute provides that any defense must demonstrate that it promotes public health, safety and welfare, not allowing a more traditional economic justification to prevail.

Integrated decisionmaking is of particular importance for determinations that relate to the use of resources, of which land is the most inclusive. In 1973, Oregon became the first state to adopt a comprehensive, statewide land use planning program.⁵¹ Oregon's land use planning program is based on 19 statewide planning goals that provide the framework for all local land use plans in the state. The goals, adopted in the mid-1970s, begin with the goal of providing citizens the opportunity to participate in all phases of the planning process, lists the resources, such as agricultural lands, forest lands, air, water, and land quality, open space, scenic areas and natural resources, and estuaries that are to be included in land use plans, and specifies services, such as housing, public facilities, transportation, and energy conservation, that should be provided for in plans.⁵² Oregon's land use planning program seeks to integrate improvement and diversification of the state's economy⁵³ with planning for resource use and protection⁵⁴ and efficient provision of public services, including housing.⁵⁵ In other words, it makes integrated decisionmaking the foundation of land use planning. It emphasizes five principles, all elements of what has since come to be seen as sustainable development: (1) efficient use of land and energy resources; (2) full utilization of urban services; (3) ensuring a mix of uses such as retail, offices, residences, schools, and recreation; (4) transportation options, including bike paths and walkways; and (5) detailed, human-scaled design.⁵⁶

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Prior to 1992, New Jersey had perhaps come the closest to establishing integrated decisionmaking as a tool for meeting the goals of sustainable development. The New Jersey State Planning Act, enacted in 1986, established the Office of State Planning and the New Jersey State Planning Commission and required the preparation of a State Development and Redevelopment Plan (Plan).⁵⁷ The state's legislature declared that the Act was needed to provide "sound and integrated Statewide planning . . . to conserve [the state's] natural resources, revitalize its urban centers, protect the quality of its environment, and provide needed housing and adequate public services at a reasonable cost while promoting beneficial economic growth, development and renewal."⁵⁸ The legislature included social justice along with development and environmental protection as goals for the Plan, noting that

an increasing concentration of the poor and minorities in older urban areas jeopardizes the future well-being of this State, and a sound and comprehensive planning process will facilitate the provision of equal social and economic opportunity so that all of New Jersey's citizens can benefit from growth, development and redevelopment.⁵⁹

The Plan was required to "represent a balance of development and conservation objectives" and to coordinate planning for land use, housing, economic development, transportation, natural resource conservation, agriculture and farmland retention, recreation, urban and suburban redevelopment, historic preservation, public facilities and services, and intergovernmental coordination.⁶⁰ Furthermore, the state adopted a broadly inclusive process for developing and obtaining widespread approval of the Plan, including by local planning agencies.⁶¹ Thus, years before the Rio Summit, New Jersey saw the importance of incorporating fair and affordable housing, conservation of natural resources, and other issues into a statewide plan to achieve a balanced set of goals adapted from the traditional ones of development and conservation. In 1986, the New Jersey Legislature essentially created a statewide blueprint for sustainable development.

Integrated decisionmaking also is an important part of the analytical process involved in pollution prevention. Pollution prevention is one of the most important methods of achieving the environmental goals of sustainable development and relies heavily on integrated decisionmaking in order to identify the methods, technologies, and practices that will successfully prevent pollution in specific applications. Massachusetts enacted a ground-breaking pollution prevention statute in 1989, the Toxics Use Reduction Act (TURA),⁶² which requires anyone who meets the thresholds for reporting under the federal Emergency Planning and Community Right-To-Know Act (EPCRA)⁶³ to prepare a toxic use reduction plan.⁶⁴ Toxics use reduction is defined as

in-plant changes in production processes or raw materials that reduce, avoid, or eliminate the use of toxic or hazardous substances or generation of hazardous byproducts per unit of product, so as to reduce risks to the health of workers, consumers, or the environment, without shifting risks between workers, consumers, or parts of the environment. . . . However, toxics use reduction shall not include or in any way be inferred to promote or require incineration, transfer from one medium of release or discharge to other media, off-site or out-of-production unit waste recycling, or methods of end-of-pipe treatment of toxics as waste.⁶⁵

This definition embodies the goals of sustainable development by seeking to protect workers and consumers as well as the environment and by excluding from its ambit any change that would merely shift risks from one receptor to another. The state set a goal of a 50% reduction by 1997 from 1987 in the quantities of toxic or hazardous byproducts generated by industry in Massachusetts.⁶⁶ The statute includes minimum requirements for the required toxics use reduction plans, but turns over to private toxics use reduction planners the function of certifying that plans meet the minimum requirements.⁶⁷ One of the requirements is that workers must be notified six months prior to the date a plan or its update is due and their comments and suggestions must be solicited.

New Jersey enacted a similar law in 1991. Its Pollution Prevention Act (PPA) also requires facilities subject to EPCRA reporting requirements to prepare pollution prevention plans that meet statutory standards.⁶⁸ Like the Massachusetts statute, New Jersey's PPA seeks to protect workers, consumers, and the environment without shifting risks.⁶⁹ New Jersey also set a statewide goal of reducing by 50%, calculated on the basis of 1987 amounts, "the generation of hazardous substances as nonproduct output" within five years after the pollution prevention plans were required to be completed.⁷⁰ The New Jersey Department of Environmental Protection (NJDEP) is authorized to approve the plans and to require pollution prevention be made a part of a facility's permit.⁷¹

California passed the Hazardous Waste Source Reduction and Management Review Act of 1989 the same year as Massachusetts enacted TURA.⁷² This law requires generators that generate more than 12,000 kilograms of hazardous waste per year at a site to "conduct a source reduction evaluation review and plan" beginning in 1991 and every four years thereafter.⁷³ The review and plan must include numerical goals for reducing the generation of hazardous waste based on its best estimate of what is achievable during the four-year period of the plan.⁷⁴ It also must specify the "technically feasible and economically practicable source reduction measures" that the generator will implement and explain and document why it is not implementing any source [32 ELR 11371] reduction approaches that it has determined areavailable and potentially viable.⁷⁵

In 1986, the citizens of California also passed a referendum that has had the effect of preventing pollution. Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986,⁷⁶ requires the state to publish a list of chemicals that are known to cause cancer, birth defects, or other reproductive harm.⁷⁷ Some manufacturers would prefer to reformulate their products in order to avoid the stigma of labeling them as causing disease. For example, one proponent of the law claims that "Proposition 65 has spurred faster and more significant lead reductions than federal law by prompting companies to reformulate products and change their manufacturing processes."⁷⁸ More importantly, the benefits are often nationwide because manufacturers of consumer goods make the changes uniformly rather than creating a California-specific product.⁷⁹ This statute also illustrates the power and effectiveness of providing information to the public.

The varying provisions of states' constitutions and statutes that purport to make environmental protection a fundamental principle of state law may be "essentially hortatory,"⁸⁰ but they reveal the typical early response states made in order to cope with environmental problems—add consideration of the environment to the existing order. That did not necessarily result in the type of integrated decision-making envisioned by the Rio Declaration and Agenda 21, but it did substantially increase the level of consideration of environmental issues in economic development decisions. Largely through the procedural and substantive provisions of specific environmental and pollution control statutes, many based on federal law, the states made consideration, avoidance, mitigation, and remediation of the environmental effects of economic development into an almost wholly separate function of state government. Even before Rio some states had begun to introduce a broader consideration of issues into the narrow realm of the environmental function of state government through pollution prevention laws. Other states had attempted to integrate decisions on the broad range of issues relevant to sustainable development. Finally, to a certain extent many states had at least formally achieved procedural integration of environment into decisionmaking on major projects prior to the Rio Summit.

Intergenerational Equity

Prior to 1992, intergenerational equity in environmental matters was generally at most an aspiration for states. A number of states adopted formal statements of policy that natural resources or the environment should be maintained for the benefit of future generations. The few such policies that were incorporated into state constitutions had little effect in practice. Even among those adopted by statute few were effectively implemented before the Rio Summit.

In 1972, Montana adopted intergenerational equity as an explicit goal for its environmental and natural resources policy, with a constitutional provision that states: "The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations."⁸¹ Hawaii adopted a similar provision in 1978, but integrated environmental and development policy. In the article devoted to Conservation, Control, and Development of Resources, the Hawaii Constitution provides:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, . . . and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.⁸²

For decades, however, neither state took action explicitly based on these provisions or had reason to interpret them.⁸³

States also had incorporated the goal of intergenerational equity into various statutes, such as the New Jersey Development and Redevelopment Plan. In directing that the Office of State Planning develop this plan, the state legislature stated:

It is in the public interest to encourage development, redevelopment and economic growth in locations that are well situated with respect to present or anticipated public services and facilities, giving appropriate priority to the redevelopment, repair, rehabilitation or replacement of existing facilities and to discourage development where it may impair or destroy natural resources or environmental qualities that are vital to the health and well-being of the present and future citizens of this State.⁸⁴

The state was, however, slow to implement the state plan.⁸⁵

Preserving environmental quality for the future is also stated as a goal of the California Environmental Quality Act. The legislature declared that: "The maintenance of a quality environment for the people of this state now and in the future is a matter of statewide concern."⁸⁶ It also stated that it is the policy of the state to:

Develop and maintain a high quality environment now and in the future, . . . and preserve for future generations representations of all plant and animal communities . . . ensure that the long term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions . . . [and] create and maintain conditions under which man and nature can exist in productive harmony to fulfill the social and economic requirements of present and future generations.⁸⁷

California has implemented this provision through the requirement for environmental impact review, which has been used extensively in the state.

The New York Legislature made similar findings in enacting the SEQRA: "The maintenance of a quality environment for the people of this state that at all times is healthful and pleasing to the senses and intellect of man now and in [32 ELR 11372] the future is a matter of statewide concern."⁸⁸ The legislature also declared that

it is the intent of the legislature that all agencies conduct their affairs with an awareness that they are stewards of the air, water, land, and living resources, and that they have an obligation to protect the environment for the use and enjoyment of this and all future generations.⁸⁹

As with California, these policies were most observably implemented through EIA of specific projects.

Although these statements demonstrate that state legislatures, and the constitutional convention in the case of Montana, recognize the concept of a duty to future generations, they have not resulted in much else. Such statements did not cause intergenerational equity to become part of the regular practice and implementation of environmental law in most of these states prior to the Rio Summit. Certainly it can be difficult to apply a concept such as intergenerational equity in making a decision on a specific project, but there is at least one conceptual framework that can help decisionmakers in their deliberations. John Rawls would have decisionmakers consider how they would decide if they were behind a "veil of ignorance" that prevented them from knowing how their decision would affect their interests, including not knowing "to which generation they belong."⁹⁰ In fact, in Rawls' view, "these broader restrictions on knowledge are appropriate in part because questions of social justice arise between generations as well as within them, for example, the question of . . . the conservation of natural resources and the environment of nature."⁹¹ It may be difficult to consider intergenerational equity in the abstract, but, as discussed before, most citizens readily agree that it is important for states to provide for their children and their children's children. The "veil of ignorance" can provide a framework for decisionmakers to consider the interests of those and more distant future generations in making determinations that will have present and future consequences.

Decentralization of Decisionmaking

Tension between centralized and decentralized decisionmaking is a fundamental principle of government in the United States. Although it can be hard to remember when the focus of attention and discussion of environmental and economic policymaking was at the national level, the federal government remains one of limited powers. The Commerce Clause of the U.S. Constitution⁹² is broad, amply broad enough to encompass the substantial pollution control statutes passed by the U.S. Congress since 1970, but it has limits.⁹³ Power to legislate outside those limits is reserved to the states.⁹⁴ Thus, the importance of decentralized decisionmaking is enshrined in the Constitution, arguably obviating any need for additional impetus from the Rio Declaration or Agenda 21.

The key to understanding the roles of the states in sustainable development in the United States is to recognize that the Constitution established tension between the states and the federal government. The constitutional system retained sovereign powers and responsibilities in the states, in particular through the police power. The authority of states to protect the health, safety, and welfare of the citizenry under their police power is plenary. Accordingly, states have independent authority over environmental issues, which they exercised long before the explosion of federal environmental law in the 1970s.⁹⁵ States also typically delegated substantial authority to local governments, particularly with respect to land use planning and decisions on development.⁹⁶

Congress asserted the power of the federal government over environmental issues throughout the 1970s and 1980s, passing numerous pollution control and natural resource protection statutes.⁹⁷ These laws cover many aspects of the environment, but they are not comprehensive and the states retain their authority over issues not addressed in the federal statutes. The pollution control laws generally adopted a federal-state partnership model, whereby Congress established minimum federal standards for controlling pollution and allowed states to take over implementation of the requirements if they so desired.⁹⁸ In keeping with the Supremacy Clause of the Constitution,⁹⁹ states that were so inclined were required to adopt laws and regulations that were no less stringent than the federal provisions.¹⁰⁰ The federal government in turn authorizes the state to implement the provisions of the particular federal statute.¹⁰¹ In most cases, the state and federal government have concurrent authority [32 ELR 11373] to enforce the standards,¹⁰² while a few statutes limit the federal agency's authority to enforce after a state program has been approved.¹⁰³ The final component of the typical federal pollution control statute is federal oversight of approved state programs. Federal oversight includes federal review of state performance and sanctions may be applied if the state's performance does not meet the statutory standards. Typically, however, the only statutory sanction is withdrawal of approval to implement the program or federal assumption of primary enforcement authority.¹⁰⁴ Federal agencies have invoked such sanctions in only a few rare instances, preferring to use other methods, including reducing grant funding, to induce states to change their programs to meet federal standards.¹⁰⁵ This basic system was first enacted in 1970 under the Clean Air Act (CAA) and was established for all the major federal environmental statutes, except for the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), by the end of that decade.

Environmental federalism was well established before the Rio Summit. States implemented numerous pollution control programs approved by federal agencies under federal statutes, but they also exercised their independent authority to protect the public health and welfare, which covered all aspects of the environment. Among the many aspects of the environment over which states exercise authority largely unfettered by federal law are mining of minerals other than coal, groundwater, use of water, land use, and use of natural resources.

The basic policy elements considered critical to sustainable development, including integrated decisionmaking, consideration of intergenerational equity in decisions, and decentralized decisionmaking, had been established in a number of states in the 1970s and 1980s. The states adopted these policies as independent responses to rising concerns about environmental issues. Only a few states had developed policies covering all aspects of sustainable development, and implementation was uneven. Nevertheless, these basic policies were familiar to legislators and other state policymakers prior to the Rio Summit. This provides the background for assessing the progress states have made toward sustainable development since 1992.

Indicators of State Accomplishments

Actual progress toward sustainable development is the ultimate goal of integrated decisionmaking, intergenerational equity, and the other key principles of sustainability. In order to accurately and systematically assess progress toward sustainability, governments need indicators of sustainable development to measure the results of their actions. States in general had not identified the development of indicators of sustainable development as an important task prior to the Rio Summit. In the 1980s, however, Oregon initiated a strategic planning process aimed at meeting the overall goal of "a prosperous Oregon that excels in all walks of life."¹⁰⁶ Oregon leaders and citizens determined that the overall goal depended on the "interconnectedness of quality jobs, a sustainable environment, and caring communities,"¹⁰⁷ goals very similar to those of sustainable development. In 1989, the legislature created the Oregon Progress Board to focus the state on the future by developing and implementing a strategic plan for meeting the stated goals. The board adopted, and continued to refine, a set of benchmarks as a way of measuring, reporting, and tracking over time indicators of economic, social, and environmental health to show what progress the state was making toward achieving the goals of its strategic plan. Despite the similarity to sustainable development, the Oregon Progress Board did not explicitly link its strategic plan to the state's sustainability efforts until 2000.¹⁰⁸

Assessment of States' Progress Since the Rio Summit

Few states, if any, have explicitly focused on Agenda 21 or the Rio Declaration as guides for their efforts to move toward sustainable development.¹⁰⁹ Nevertheless, since 1992, a number of states have made substantial progress in developing and implementing policies aimed at achieving sustainable development. Coupled with the already well-developed policies existing in a few states prior to 1992, this has resulted in a variety of sophisticated policies in place. As a group the states are, at a minimum, fulfilling their role as laboratories for experimenting with programs and policies and are, to an extent, leading policy development in the United States. State experimentation in sustainable development policy is important for several reasons. First, national policy often is based on, if not outright copied from, [32 ELR 11374] successful state policies.¹¹⁰ Second, regardless of whether a state's residents follow sustainable development policy, they typically are vitally interested in the state achieving the quality of life goals of sustainable development, including improvements for their children and grandchildren. This demand for tangible progress is a powerful stimulus for creative thinking and for action, both of which continued to be needed from states in large measures after 1992. Such creative thinking was necessary because the pre-Summit policies dealt largely with pollution and natural resources as issues separate from development,¹¹¹ and often from each other, even given the advent of several laws integrating development and environmental decisionmaking.

Results are ultimately more important than policies. Producing meaningful changes in people's lives is difficult and can take years or even decades. It also can be difficult to show that progress is occurring when the changes being sought are in biological, ecological, climate, and evolutionary processes that operate on time scales much longer than what is easy for humans to perceive and understand. Thus, one of the important activities that some states have undertaken is the development and application of indicators of sustainable development.

It is important to examine what states have accomplished since the Rio Summit because having good laws and policies can be virtually meaningless if they are not implemented. Although there may have been substantial policy development before 1992, few states had fully implemented those policies for a substantial amount of time before the Rio Summit. Furthermore, the establishment of integrated decisionmaking laws, or even of substantive laws dealing with pollution control and sustainable use of natural resources, does not necessarily mean that those states have achieved, or are far along the path to achieving, sustainable development. States such as New Jersey and California have been leaders in environmental policy partly because their environmental problems, including a legacy of past pollution, are substantial.¹¹² This section examines the progress states have made on both sustainable development policy and results since the Rio Summit.

Integrated Decisionmaking

Development and implementation of policies designed to promote and achieve sustainable development, typically relying on integrated decisionmaking as a means to that end, is one important element of progress toward sustainability. A few states have shown leadership on the policy level since 1992. Prominent among the states that have led recent policy developments are some of the jurisdictions, such as Minnesota, New Jersey, and Oregon, that pioneered sustainable development policy prior to the Rio Summit. Other states, such as Maryland, may be more recent innovators, but have contributed significant policies. Implementation of existing policies has seen some success mixed with some missed opportunities. Many states with SEPAs, for example, have successfully implemented them, thereby improving their consideration of environmental issues when making decisions on economic development and other projects. A few states, however, have so limited the application of their SEPAs as to make them largely ineffective.

Policy Developments in Leading States

One of the major missed opportunities of the decade after the Rio Summit was the failure of more states to enact SEPAs. While countries around the globe were adopting EIA as an important decisionmaking tool for promoting sustainable development, states that had not adopted it ignored EIA. Despite the favorable view that much of the world took of EIA, in the United States developers—and others who viewed it as largely contributing to delay of development projects rather than to improving them—had to a large extent captured the public understanding of the process.¹¹³ Thus, one of the notable policy "developments" of the last decade, and even of much of the decade preceding it, has been the halting of the spread of SEPAs among the states.

In some instances, states that adopted important policy innovations that were well-designed to promote sustainable development did not fully implement those policies. Although New Jersey established its State Plan as the policy framework for integrated decisionmaking and planning for sustainable development in the 1980s, there was little progress on implementing the plan in the first decade. "There is little evidence on the ground of the Plan's impact. . . . Municipal application of the State Plan has been scattered and minimal. State agency use of the Plan has been at the margins. Many people had given up hope for the New Jersey Plan."¹¹⁴ Then-Gov. Christine Todd Whitman (R) changed this in 1998, making implementation of the State Plan a key element of her second term.¹¹⁵ As part of this initiative, the NJDEP developed water quality rules requiring proposed developments in areas outside of established centers to conduct comprehensive analyses of the effects of development on water quality. The first step in implementing broader changes to wastewater management plan regulations was to require new developments to follow the same rules whether they relied on septic tanks and discharge to the ground or connections to sewers and wastewater treatment plants.¹¹⁶

New Jersey Future, an NGO, has initiated and organized a broadly inclusive effort, called the Sustainable State Project, by New Jersey citizens to define goals for what type of state they want to pass on to the next generation.¹¹⁷ The Sustainable [32 ELR 11375] State Project acknowledges the State Plan as the basis for promoting sustainable development in the state and builds on that base.¹¹⁸ Sustainability is defined as "an efficient economy, a healthy environment and a just society" functioning in harmony.¹¹⁹ The 11 goals established by the project were adopted by then-Governor Whitman as goals for state agencies to pursue.¹²⁰

At least in concept, the State Plan seems to transcend politics in New Jersey. Within days of being sworn in on January 15, 2002, Gov. James E. McGreevey (D) issued an Executive Order creating a Smart Growth Policy Council comprising cabinet members and senior policy officials of his administration, who are charged with ensuring that all state agencies incorporate principles of smart growth and the State Plan into their policies and regulations.¹²¹

Oregon also has built on its early initiatives, such as its statewide land use planning program,¹²² to integrate certain aspects of development and environmental decision-making. The Transportation and Growth Management Program, a joint program of the Oregon Departments of Transportation and of Land Conservation and Development, integrates transportation and land use planning on a statewide basis.¹²³ Oregon Gov. John Kitzhaber (D) also signed an Executive Order in May 2000, directing the state government to develop and promote policies for achieving sustainability by 2025, with the emphasis on internal state government operations.¹²⁴

Like Oregon and New Jersey, Minnesota has continued and expanded upon efforts to move toward sustainable development begun before the Rio Summit. One of those early efforts was Minnesota Milestones, a set of 30-year goals for the state.¹²⁵ The state also has an agency, Minnesota Planning, with a broad mandate to lead the state's efforts at achieving sustainability goals. A Governor's Round Table on Sustainable Development was created to promote sustainability and issued a report establishing an agenda for sustainable development.¹²⁶ The Round Table set out five principles for sustainable development in Minnesota; global interdependence, stewardship, conservation, indicators, and shared responsibility.¹²⁷ The state legislature directed state agencies to determine how they could implement these principles.¹²⁸ The Minnesota Legislature has, in fact, been quite active in enacting legislation that furthers sustainable development goals. It has passed the Sustainable Forest Resources Act of 1995,¹²⁹ the Metropolitan Livable Communities Act,¹³⁰ the Environmental Regulatory Innovations Act of 1996,¹³¹ and the Community-Based Planning Act of 1997.¹³² Under the latter act, the state has provided technical assistance to local governments through a Local Planning Assistance Center¹³³ and by developing model ordinances for sustainable development.¹³⁴ The state also assures that local plans are consistent with the statewide goals by requiring that they be reviewed and approved by Minnesota Planning.¹³⁵

The efforts to use integrated strategies also extend to agricultural policies. The Energy and Sustainable Agriculture On-Farm Demonstration Grant program, which actually began in 1989, provides up to $ 25,000 for on-farm demonstrations of systems or methods that increase energy efficiency, reduce agricultural chemical usage, and show environmental and economic benefits.¹³⁶

Maryland, in particular, has enacted a series of programs intended to reform development practices in the state to encourage development in existing centers and discourage development of greenfields. Maryland's Smart Growth Areas Act added substantial incentives to the concept, adopted in New Jersey's State Plan, of focusing development in existing centers.¹³⁷ Maryland first adopted a policy of concentrating growth in "suitable areas" in 1992,¹³⁸ but in 1997 the state decided to restrict its funding of new infrastructure to "priority funding areas," which were defined to include existing developed centers and areas designated by counties for concentrated growth.¹³⁹ The law also generally prohibits the state from spending its money on growth-related projects that are not within priority funding areas.¹⁴⁰

Although the policy of integrating state funding for infrastructure with land use planning is a significant advance in policy, implementation has revealed gaps in Maryland's [32 ELR 11376] program. First, monitoring of counties' progress and compliance with the program is difficult because they are not required to provide information about how they designate priority funding areas.¹⁴¹ Nor does the law authorize the state to take action to ensure that county smart growth areas comply with the statute. Finally, although the lack of state funding for infrastructure is a disincentive for new development outside of the designated areas, the law does not otherwise address such development.¹⁴²

Comparative Evaluation of State Policies for Integrated Decisionmaking

A recent report by the Resource Renewal Institute (RRI)¹⁴³ attempts to evaluate the "shifting emphasis toward sustainability" of all 50 states.¹⁴⁴ The report focuses on states' capacity to engage in "green planning" as the indicator of capacity for sustainable development.¹⁴⁵ "Green plans" are described as "long-term environmental management strategies that have the ultimate aim of achieving environmental and economic sustainability—whether for a city, state, region, or nation."¹⁴⁶ They also are defined as having the following 10 characteristics: long-term, comprehensive, dynamic, cooperative, integrated, informed, flexible, strategic, results-oriented, and investment-intensive.¹⁴⁷ In simpler terms, green plans can be seen as a method of engaging in integrated decisionmaking.

The State of the States evaluates states on four categories of indices of capacity (using the Green Planning Capacity Index (GPCI) for green planning: comprehensiveness of the environmental management framework; level of environmental policy innovation; fiscal and program commitment; and quality of governance.¹⁴⁸ Although The State of the States substitutes RRI's criteria for green plan capacity as a surrogate for sustainable development,¹⁴⁹ it is a good starting point for assessing states' progress toward sustainable development, and more specifically the integrated decisionmaking aspect of sustainability, if for no other reason than the dearth of indicators of sustainability at the state level or of comprehensive evaluations of state sustainable development.

New Jersey and Oregon stand out as innovators under RRI's GPCI, as the only states with more than 70 of the 100 points.¹⁵⁰ Only seven states had more than one-half of the 100 points possible, with Maine, Massachusetts, Minnesota, Vermont, and Washington joining New Jersey and Oregon as leaders.¹⁵¹

Oregon's leadership in regional planning, recycling, and promoting sustainability in state operations was cited by RRI as notable; the state achieved the highest score under the GPCI. The report also notes that Oregon had completed a comprehensive state of the environment report, which would help guide the green planning process. Interestingly, Oregon had the highest score despite not having adopted a green plan.¹⁵²

New Jersey, like Oregon, scored high in the environmental management framework, environmental policy innovation, and fiscal and program commitment subindices of the GPCI.¹⁵³ The State Plan¹⁵⁴ was considered noteworthy, along with the Sustainable State Project.¹⁵⁵ RRI concluded that although "New Jersey does not yet have an official green plan, . . . no other state has done more to learn about and incorporate green planning principles, especially in the areas of flexible, goal-oriented environmental regulation and statewide land use and transportation planning."¹⁵⁶

Minnesota is also cited by RRI as a state leader in developing policies for sustainable development and for its reliance on broad public participation in developing and implementing those policies. It pointed to Minnesota's many innovative programs, particularly Minnesota Planning, the Sustainable Forest Resources Act, Metropolitan Livable Communities Act, and the Environmental Regulatory Improvement Act, aimed at integrating policies and programs related to environment, economy, and communities.¹⁵⁷ RRI concluded that Minnesota would have ranked even higher on the GPCI, but some of its innovations, including statewide watershed planning, a statewide planning agency, and an environmental data clearinghouse, were so far ahead of other states that data was not available from enough states for those indicators to be included.¹⁵⁸

The State of the States paid particular attention to Minnesota, New Jersey, and Oregon as the states with the highest capacity for green planning, which it equates with being farthest along the path to sustainable development.¹⁵⁹ The [32 ELR 11377] other four states with relatively high scores, Maine, Massachusetts, Vermont, and Washington, are briefly profiled. Maine's governor is described as strongly supporting sustainability and the state had relatively high scores in three of the four sub-indices.¹⁶⁰ Washington is lauded for its state of the environment report, long-term strategic planning, and for its Watershed Management Act, which deals with water resource and quality issues along with salmon habitat.¹⁶¹ Massachusetts is rightly singled out for its innovative Toxics Use Reduction Act, which requires firms to prepare and submit plans for reducing their use of toxic substances.¹⁶² Its state of the environment report and high scores on the capacity and innovation indicators are also cited as reasons for its ranking among the leading states. Vermont is praised for being a leading innovator in environmental policies, particularly pollution prevention and recycling.¹⁶³ Specific innovative programs in other states are also mentioned, but the report does not distinguish between programs adopted and being implemented and ones that are merely under consideration and which may never become reality.¹⁶⁴

RRI's GPCI is significant as an attempt to evaluate the progress of states toward sustainable development. It is valuable for the simple fact that it indicates the importance of evaluating states on sustainability, and for creating a method for the evaluation. Upon close examination, however, the methodology employed leaves substantial room for improvement. First, the report equates green planning with sustainable development when such planning is more analogous to the integrated decisionmaking aspect of sustainable development. The lack of economic and social indicators also is a serious flaw. Sustainable development concerns economic and equity factors as well as environmental ones,¹⁶⁵ but the GPCI ignores them. Third, while there is ample room for debate about which environmental indicators are most important to sustainable development, the absence of any indicators related to water,¹⁶⁶ a vital resource for development and for public health,¹⁶⁷ seems a significant gap. Missing indicators can be added,¹⁶⁸ indicators that provide minimal information can be dropped,¹⁶⁹ and the GPCI can become a much better index of state efforts to achieve sustainable development, but perhaps the most fundamental change that should be made is to eliminate the use of green planning as a surrogate for sustainable development and to focus explicitly and directly on sustainability as a multi-dimensional yet integrated whole.

Intergenerational Equity

Since the Rio Summit, few states have devoted any attention to policy developments or made significant progress toward assuring that the needs of future generations are taken into account when making decisions concerning development, use of natural resources, or environmental issues. The few developments largely have related to implementation of policies adopted before 1992. For example, the Hawaii Supreme Court recently held that the public trust provision in the state's constitution is intended to be dynamic in order to serve the needs of future generations.¹⁷⁰ The court wrote: "the public trust, by its very nature, does not remain fixed for all time, but must conform to changing needs and circumstances."¹⁷¹ In that case, the court held that in response to current needs the public trust has evolved to cover protecting water in its natural state, protecting water quality so it may be used for drinking water, and protecting water for use by native Hawaiians.

Although it did not rule on the intergenerational aspect of the Montana constitutional right to a clean environment, the Montana Supreme Court recently held that the

right to a clean and healthful environment is a fundamental right because it is guaranteed by the Declaration of Rights found at Article II, Section 3 of Montana's Constitution, and that any statute or rule which implicates that right must be strictly scrutinized and can only survive scrutiny if the State establishes a compelling state interest and that its action is closely tailored to effectuate that interest and is the least onerous path that can be taken to achieve the State's objective.¹⁷²

The court then applied strict scrutiny to a state rule exempting certain discharges into waters of the state from review to assure that they did not degrade the receiving waters and held that the exemption violated the constitutional provision as applied to the facts of the case where the plaintiffs had shown that a discharge included carcinogens. The court stated: "Our constitution does not require that dead fish float on the surface of our state's rivers and streams before its farsighted environmental protections can be invoked."¹⁷³

These two state supreme court decisions are relatively rare examples of states implementing the principle of intergenerational equity. The Montana case may, unfortunately, be the exception that proves the rule because there the court struck down state agency action that would not have protected the water for the use of future generations. Nevertheless, the Hawaii case demonstrates that the public trust doctrine is intended to protect resources for future generations and that it is precisely the type of dynamic rule that can continue to meet the resource needs of future generations as those needs change. More importantly, these two [32 ELR 11378] courts have created precedents for acting in a sustainable manner that other states' agencies and courts can follow.

Decentralization of Decisionmaking

Conflicts between the federal government, particularly the U.S. Environmental Protection Agency (EPA), and the states caused the normally esoteric topic of federal-state relationships in implementing environmental law to become the subject of news stories and many governmental and other reports in the mid-1990s.¹⁷⁴ Devolution, or transferring to the states power to deal with environmental issues, dominated discussion of process and governance issues in environmental law. The subject has been a part of national environmental policy since the earliest days, but reemerged as states' environmental programs matured and the states came together to advance coordinated policy positions on the subject. The Environmental Council of the States (ECOS), the organization of the heads of the environmental agencies of the states and territories, was formed in 1993 and made devolution and the state-federal relationship key issues for the organization.¹⁷⁵

One of the early acts of ECOS was to negotiate an agreement with EPA to shift the federal-state relationship to a more flexible and cooperative one than it had become by the mid-1990s. The National Environmental Performance Partnership System (NEPPS) was established in May 1995, "to strengthen [state and EPA] protection of public health and the environment by directing scarce public resources toward improving environmental results, allowing states greater flexibility to achieve those results, and enhancing [state and EPA] accountability to the public and taxpayers."¹⁷⁶ Conceptually, NEPPS substantially revised the relationships between EPA and the states for the first time since they were established in the early 1970s. In addition to the basic statutes, which provided relatively little specific guidance about the functioning relationship between the two levels of government, the relationship had been defined by a series of federal regulations, guidance memoranda, and policies.¹⁷⁷

In practice, NEPPS has not replaced the former system, but has provided states the opportunity to negotiate greater flexibility within it.¹⁷⁸ Most, but not all, states have negotiated Performance Partnership Agreements with EPA that replace the former system of detailed work plans that the states were required to follow. One of the reforms under NEPPS was to replace the preexisting top-down priority setting system with a joint state-federal process for goal-setting and planning.¹⁷⁹ The planning process has had mixed success, working best in states that themselves emphasize planning.¹⁸⁰ States and EPA also perceive the results of the NEPPS process quite differently, with EPA officials reporting that it led to joint priority setting, while state officials perceived it as improving their respective understanding of the other's priorities without either changing their position.¹⁸¹ The change also has been greater at the higher levels of state and federal agencies than it has been at the staff level.

State Accomplishments

The goals of sustainable development are, of course, principally concerned with results, not just laws, policies, and processes. Answering the question of what on-the-ground progress states have made toward sustainable development is difficult, particularly because there are few established and accepted indicators of sustainable development.¹⁸² Minnesota has published a report of its progress toward sustainability, entitled Smart Signals: An Assessment of Progress Indicators, but it is unusual in this respect.¹⁸³ The next best option would be if each state would regularly publish a "State of the State's Environment" report that would provide information on the quality of the environment in the state, including progress toward meeting state and federal statutory goals. Many states have indeed published such reports,¹⁸⁴ but no national compilation or summary has been prepared.

Nationwide Assessments of Progress

Although there is no comprehensive report on the state of the environment for all the states, there are some media-specific and other national assessments of particular aspects of the state of the environment in the states. A recent assessment of water quality for the entire nation concluded that the quality of surface waters of the United States has not improved since the Rio Summit and, by some measures, has [32 ELR 11379] declined.¹⁸⁵ Because this national assessment is based on a compilation of biennial reports that states are required to submit to EPA,¹⁸⁶ it is the best overall assessment of states' progress toward meeting water quality goals. One significant problem with relying on the simple indicator of whether a stream or lake meets the water quality criteria for its designated use is that states may choose the designated use for a body of water, making the "attainment" status of any body of water a relative matter.¹⁸⁷

Other indicators of water quality also show little improvement. For example, states issued more than 2,500 fish and wildlife consumption advisories in 1998 due to contaminants in water.¹⁸⁸ This is a more holistic indicator of water quality because it shows how pollution is affecting species dependent on water. Other assessments also indicate that freshwater ecosystems are declining in health, with a few indications of improvement over the past decade.¹⁸⁹

Assessing the on-the-ground progress of the states toward meeting basic indicators of air quality is more difficult than determining progress toward water quality goals. Although many states now report on ambient air quality standards, the historical data needed in order to assess progress often is not reported.¹⁹⁰ All states have met the minimum federal standards, the national ambient air quality standards (NAAQS), for three of the six pollutants for which such standards exist.¹⁹¹ At least for lead, however, national regulation in the form of the phase out of lead in gasoline had more to do with attainment of the standard than actions by the states.¹⁹² Many states are still struggling to meet the NAAQS for ozone, particulate matter, and carbon monoxide in their urban areas.¹⁹³ Attainment of air quality standards is complicated for eastern states in particular by pollution blown into their jurisdictions from upwind states, but the failure to meet all of the NAAQS three decades after passage of the federal CAA demonstrates that many states still have much to do. States have attempted to devise regional solutions to the ozone problem in particular, but despite various agreements, little change has actually occurred.¹⁹⁴

A recent report on state performance that was intended only to "diffuse the 'jobs versus the environment' myth" actually includes a number of useful indicators of sustainable development.¹⁹⁵ The Gold and Green 2000 report by the Institute for Southern Studies ranks states on 20 economic (gold) and 20 environmental (green) indicators as a method of evaluating claims that strong environmental standards hurt a state's economy.¹⁹⁶ Many of these indicators measure actual results rather than policies, in contrast to RRI's GPCI, which focuses on policies aimed at green planning.

Although the report makes no claim to evaluating states with respect to sustainable development, many of the indicators used in the study are relevant to sustainability. This study improves on the GPCI simply by considering economic indicators as well as environmental ones. Moreover, some of the indicators chosen in each category are particularly relevant to on-the-ground progress toward sustainable development. For example, the economic indicators include unemployment rate, workplace deaths, workers in high-in-jury and illness jobs, employment growth, annual pay, infant mortality rate, uninsured population, disability benefits, households in poverty, and high school education attainment, all of which could be used as indicators of sustainable development, not just of economic well being.¹⁹⁷ Similarly, the environmental indicators include the following that are well-suited to measuring sustainable development: air quality, carbon dioxide emissions from fossil fuel use, emissions of acid rain components per capita, emissions-to-job ratio, energy consumption, fertilizer use, pesticide use, solid waste recycled, sprawl rating, and toxic chemical discharges.¹⁹⁸

Minnesota and Vermont led the combined rankings, with Vermont ranking first under the green indicators and third under the gold indicators, and Minnesota second under the gold and sixth under the green indicators.¹⁹⁹ Although no other states ranked in the top 10 under both sets of indicators, five states, Colorado (gold 5, green 14), Maine (gold [32 ELR 11380] 13, green 6), Maryland (gold 6, green 15), Rhode Island (gold 15, green 4), and Wisconsin (gold 11, green 12), ranked in the top 15 in both.²⁰⁰

Gold and Green 2000 was an update of a study originally done in 1994, which had similar results. Vermont had the same rankings in 1994, and Minnesota's green ranking was one slot lower in 1994 than in 2000.²⁰¹ Hawaii fared much better in the economic indicators in 1994, ranking first, while also ranking fourth on the green scale. New Hampshire also had a more balanced pair of rankings in 1994, sixth on the economic scale and second on the environmental scale. The authors conclude that "states with the highest environmental standards have the best economic performance."²⁰²

It would be unfair to criticize Gold and Green 2000 for failures with respect to sustainable development indicators, but questions arise even in considering it on its own terms. First, there seems to be considerable overlap in some of the indicators in each category. The definition of the "workers in high-injury and illness jobs" indicator,²⁰³ for example, overlaps with the one for "jobs with high risk of disease,"²⁰⁴ and, to a lesser extent, with "workers in toxic industries."²⁰⁵ There is similar overlap in the environmental indicators for "change in energy consumption"²⁰⁶ and "energy consumption."²⁰⁷ Similarly, the indicators for "gasoline use"²⁰⁸ and "miles driven"²⁰⁹ overlap. Other indicators are simply poor choices because they do not, in fact, provide clear information about a state's economic or environmental record. The percentage of a state's budget spent on natural resources and "state spending on environment,"²¹⁰ for example, may be high in states whose economies rely heavily on extractive or other unsustainable natural resource-based industries because those states spend large amounts of money to facilitate extraction of natural resources. In fact, the four states rated highest under the per capita spending indicator, Alaska, Wyoming, Montana, and North Dakota, have mining and/or oil producing industries, which damage the environment. Moreover, the eight highest ranked states all have [32 ELR 11381] small populations,²¹¹ which may indicate only that a certain level of spending is necessary regardless of the size of the state and that the determining factor in the indicator is the population denominator. Some traditional indicators are also missing from this report, notably gross state product. As a traditional measure of a state's total economic activity gross state product seemingly would have a place in a set of 20 indicators of economic health, perhaps combined with other information.²¹² Finally, the entire methodology of this report is based on relative rankings of the states, which do not measure whether the states are meeting objective economic or environmental goals.

State Indicator Initiatives

Measurement and evaluation of states' on-the-ground progress toward sustainable development is only in its infancy and clearly needs substantially more work on the conceptual level, followed by collection and analysis of appropriate data. A few states have been actively developing indicators of sustainable development to measure and evaluate their own programs and progress. New Jersey Future's Sustainable State Project produced Living With the Future in Mind: Goals and Indicators for New Jersey's Quality of Life in 1999, which contains a comprehensive and authoritative set of sustainable development indicators that has been adopted by the state.²¹³

Minnesota's Smart Signals report demonstrates the value of a comprehensive report on sustainable development in a state. In it, the state reports trends in a wide variety of indicators of sustainable development covering economic, environmental, and community conditions.²¹⁴ This report also consolidates multiple measures of these three types of conditions into composite indicators which demonstrate that from 1990 to 1997 the environmental factors improved while the economic and community factors declined.²¹⁵ Breaking out components of the environmental factors revealed variations among categories of indicators. For example, renewable resources declined until the mid-1990s, and then recovered slightly, though not to the 1990 levels.²¹⁶ The health of habitat indicator showed improvements for the first two years, but then declined substantially.²¹⁷ On the other hand, the measure of overall toxicity of the Minnesota environment improved from 1990 to 1997²¹⁸ and the waste indicator also improved substantially.²¹⁹ Finally, a composite indicator of changes in air, water, and land quality was slightly higher than the 1990 baseline from 1991 to 1996, but then fell slightly below the baseline for 1997.²²⁰ The overall progress indicator was 3% higher in 1997 than it was in 1990, demonstrating that Minnesota had made some actual progress toward sustainable development.²²¹

Minnesota Milestones²²² is part of that state's effort to establish sustainable development indicators. Minnesota Planning, the state planning office, also developed a new set of indicators of economic health, called the Minnesota Progress Indicator (MPI), to replace traditional economic measures, such as gross state product, unemployment rate, and median household income.²²³ Itself an aggregation of 5 goals and 42 indicators, the MPI was proposed as a "beginning step in integrating environmental, economic and community information in a way that can help citizens and policymakers view the state's progress from a more realistic and comprehensive perspective."²²⁴ The goals are: "Minnesota will have strong, sustainable economic development"; "All Minnesotans will have the means to maintain a reasonable standard of living"; "Rural areas, small cities and urban neighborhoods throughout the state will be economically viable places for people to live and work"; "Minnesotans will conserve natural resources to give future generations a healthy environment and a strong economy"; and "Minnesotans will restore and maintain healthy ecosystems in support of a healthy economy."²²⁵ The indicators are grouped under the three broad areas of environment, community, and economy, but some cover multiple areas. Among the economic ones are the traditional gross state product, but modified by comparing it to the number of workers, the amount of energy consumption, and the amount of solid waste.²²⁶

Minnesota Planning already has used the MPI to take a hard look at its performance. In its first assessment, the economic component of the MPI provided a dramatically different view of Minnesota's economic performance from 1990 to 1997, declining slightly, than did the gross state product alone, which rose by 27% during the period. Overall, the MPI showed only a 3% increase, raising the question "whether the gross state product paints too rosy a picture of [32 ELR 11382] the state's economy."²²⁷ In 2000, Minnesota Planning conducted a second assessment of the state's performance according to the MPI, finding that the MPI peaked in the mid-1980s, followed by a decline until by 1995 the levels were similar to the indicator's values for the early 1960s.²²⁸

Maryland is another example of a state that developed its own set of sustainable development indicators. The Maryland Economic Growth, Resource Protection, and Planning Commission was created in 1992 to report annually on state and local progress toward sustainability in the named areas.²²⁹ The commission has developed benchmarks and indicators of sustainable development in land use, public/private transportation, land preservation, public infrastructure, and economic development.

Oregon recently began reevaluating the benchmarks it has been using to measure progress toward meeting the goals of its state strategic plan to determine if they can measure sustainability. The Oregon Progress Board was established in 1989 to monitor and report on progress in achieving the state's strategic planning goals. The strategic plan, called Oregon Shines, has an overall goal of "a prosperous Oregon that excels in all walks of life."²³⁰ In his Executive Order on sustainability, Governor Kitzhaber asked the Progress Board to assess whether the existing benchmarks could measure sustainability.²³¹ The Progress Board found that many of the elements outlined in widely accepted sustainability guidelines are contained in Oregon Shines II, the benchmarks, and the State of the Environment Report (SOER) 2000. However, several issues remain, including the need for: (1) the involvement of a broad cross-section of residents in developing Oregon's sustainability vision; (2) measures of intergenerational equity; (3) an accounting system that includes social and environmental costs/benefits; and (4) measures that demonstrate the interrelationships between the three spheres of economic performance, community, and environment.²³²

On a less comprehensive scale, Massachusetts and New Jersey have tracked and reported progress toward meeting the goals of their pollution prevention programs.²³³ By 1998, one year later than its target, Massachusetts met its goal of halving its generation of toxic waste.²³⁴ New Jersey achieved its similar goal by 1994.²³⁵ Many states have reduced their releases of toxic substances as measured by the federal toxic release inventory,²³⁶ but Massachusetts and New Jersey have documented reductions that were greater and faster than the national results and can point to their state pollution prevention laws and programs as contributing to their results.

States have contributed substantially to the development of measures and indicators of sustainable development. As a group states such as Maryland, Minnesota, New Jersey, and Oregon have provided intellectual leadership and have demonstrated the utility of sustainability indicators. Minnesota, in particular, has demonstrated its commitment to the MPI, using it and publicizing its use even though it shows the state's progress to be substantially less than more traditional economic indicators had suggested.

Recommendations

Because the states have not as a group focused on Agenda 21 or, except for a minority of them, even on the procedural and substantive recommendations embodied therein, the principal recommendation for states over the next 5 to 10 years is straightforward. States need to make sustainable development an explicit goal. The label is not important, but the substantive goals of sustainable development, particularly leaving a legacy that enables future generations to meet their needs, should be expressly brought into the mainstream of policymaking in all the states.

One of the major strengths of the U.S. system of government is the ability of states to act independently to make and implement policies designed to meet the specific needs of the particular jurisdiction, while having a federal government that ensures that all citizens are treated equally and fairly regardless of where they live or travel. The states have long been highly creative and productive laboratories of environmental policy, and this has continued in the field of sustainable development. There is a continuing need for policy development and experimentation in sustainable development, but some states already have proven the effectiveness of some policies. For those policies, it is time to move to the next stage, through widespread adoption and implementation by other states. Because sustainable development depends on integrating economic development with social development, sustainable use of resources, and environmental protection, all of which are primarily the responsibility of state governments, states should be the engines for sustainable development. More states need to follow the examples set by states such as Minnesota, New Jersey, and Oregon, among others, in adopting and implementing policies promoting sustainable development and in holding themselves accountable for achieving sustainability.

[32 ELR 11383]

Integrated Decisionmaking

Regardless of whether states follow the specific frame-work of Agenda 21, which seems unlikely, they need to integrate decisionmaking to account for economic, social, and environmental values as a matter of routine. And they need to report on their progress to their citizens and listen to them in setting priorities, making policies, and making decisions on specific projects. These recommendations are more a matter of good governance than being specific to sustainable development.

EIA is one of the few tools recognized as effective in promoting integrated decisionmaking and in enabling decisionmakers to make more informed choices. States should take advantage of this tool. The Rio Declaration calls for national governments to use EIA whenever a proposed activity that is subject to a decision by the national government is likely to have a significant adverse impact on the environment.²³⁷ The federalist structure of government in the United States, in which states have much of the authority and responsibility for development, means that in order to fully and appropriately implement this principle, the states must commit to using EIA. The majority of states that have not have adopted EIA²³⁸ should do so as a principal method of integrating their decisions on development with environmental and social values. Even the states that have adopted EIA should reexamine their laws to assure that they apply broadly to any activity that may have a significant impact on the environment and that is subject to a state agency decision.

A few states have taken the lead in developing statewide strategies, sometimes specifically aimed at promoting sustainable development²³⁹ and sometimes focused on other goals.²⁴⁰ Other states should consider adopting strategic plans for promoting long-term progress in all areas that contribute to quality of life for their citizens. Whether denominated as sustainable development or not, such strategic plans can contribute to achieving many of the goals of Agenda 21. A key element of such strategic plans should be measuring the progress the state makes toward achieving the goals of the plan. In this regard, Minnesota and Oregon provide excellent examples for other states to follow.

States that already have developed indicators of sustainable development tailored for their circumstances should continue to refine those indicators. More importantly, they should use them in evaluating their progress and to establish priorities for action, much as Minnesota has done with the MPI. Maryland, Minnesota, New Jersey, and Oregon also should proselytize among the large number of states who lag in their development and use of such indicators.

A number of specific laws and programs have been demonstrated to be successful in one or more states and deserve to be more widely adopted by the rest of the states. Pollution prevention planning is one of these innovative ideas. Laws such as Massachusetts' Toxic Use Reduction Act, or similar laws enacted by other states, have proven successful in reducing the use, and risk associated with that use, of toxic materials. Similarly, California's Proposition 65 has lead to greater consumer awareness of toxic materials, but perhaps more importantly, to changes in product formulations and process changes to avoid the need to label products as containing toxic chemicals. Land use planning laws, like New Jersey's and Oregon's, have shown that it is possible to consider many of the elements of sustainable development when making land use decisions. And Maryland and other states have shown the effectiveness of connecting state financial support of development to land use decisions that promote sustainability. These merely illustrate the types of proven innovations made by states that other states should be considering in order to promote sustainable development within their jurisdictions.

Many states also could make better use of the opportunities available to them under federal environmental statutes and the NEPPS to reorient their environmental programs toward more cross-cutting, integrated sustainable development programs. This cannot be done by the states alone, it requires greater and more sustained cooperation from the federal government to implement NEPPS and similar state-federal cooperative programs.²⁴¹ The next generation of state environmental programs should take full advantage of the flexibility available under the federal environmental laws to focus on improving the overall welfare of the residents of each state. One step in that direction would be to integrate natural resource, environmental, public health, and development programs to pursue compatible goals. As they explore the limits of the flexibility under existing federal law and their own state laws to achieve integrated programs aimed at achieving sustainable development, states should analyze the need for changes to federal and state law that would further facilitate an integrated approach to sustainability.

Intergenerational Equity

States need to take into consideration the needs of future generations in making decisions that may affect the options available to those future generations. While constitutional provisions such as Montana's and Hawaii's that acknowledge the duty owed by the present to the future are useful reminders, it is more important to incorporate consideration of future needs into current decisions. EIA is one method that can incorporate consideration of future needs into current decisions. Many economists argue that cost-benefit analysis, with appropriate discounting of future costs and benefits, also accounts for future needs.²⁴² Many others, including some economists, consider cost-benefit analysis inadequate and inappropriate for making social policy decisions.²⁴³ In contrast to this reductionist approach, EIA integrates [32 ELR 11384] information and analytical methods from multiple disciplines in order to provide decisionmakers with more complete information about the range of effects of various options. States can do much better in bringing intergenerational equity into their development and policy decisions by making greater and better use of EIA.

Decentralized Decisionmaking

The states need to work with EPA, the U.S. Department of the Interior's Office of Surface Mining, and other federal agencies that oversee state implementation of federal laws to improve the methods for monitoring, measuring, reporting, and evaluating states' discharge of their responsibilities under federal laws. NEPPS should be used by states and EPA, and the concept extended to other agencies with similar state-federal systems of regulation, as a method of accomplishing much of this. NEPPS can be the mechanism for agreements between individual states and the federal government concerning joint priorities, work plans, and funding. It also can provide the framework for the states as a group to work with the federal government to continue to improve the federal-state system of environmental governance to focus onachieving goals, and in monitoring and reporting progress toward achieving those goals.

Congress also needs to revise the basic environmental statutes to provide federal agencies with better incentives and sanctions to use in motivating states to improve their implementation of federal laws. For example, the authority to withhold funding for transportation projects if a state does not demonstrate that it is making progress toward attainment of NAAQS has motivated some states to implement more effective air programs. Congress also should clarify that its oversight of federal agencies' implementation of federal environmental laws includes meaningful review of states that have been authorized to implement those laws. Congress must critically examine the performance of states in implementing federal laws.

The failure of many eastern states to meet the NAAQS for ozone highlights the need for more effective action by the federal government working with states to solve the difficult remaining pollution problems. Because ozone crosses state boundaries, it is a matter for which the federal government has a large responsibility, but the federal role does not absolve states from dealing with their large local contributions to the problem. This is a policy area that has been marked by too much litigation and not enough action by the federal government, the upwind states, or the even many of the downwind jurisdictions.²⁴⁴ Both cooperation and more innovative and possibly more stringent action is needed by both sets of states, and there is a continuing need for federal government mandates.

Finally, the existence in approximately one-half of the states of laws prohibiting environmental standards that are more stringent than federal ones indicates that many states are not willing to take action on their own. In light of Gold and Green 2000,²⁴⁵ states that have such provisions should reconsider whether they truly promote the interests of their citizens.

Conclusion

The goals of sustainable development—simultaneously achieving economic, social, environmental, and security goals while maintaining the ability of future generations to attain their goals in the same areas—are the goals of state governments. In fact, except for the national security element of the security goal, states are primarily responsible for achieving these goals in the United States. States have therefore taken leadership roles in developing policies designed to achieve these goals and in taking actions and making actual progress toward them. This illustrates the strength of federalism; it is designed for decentralized decisionmaking, for involving citizens in decisions that most affect them, and it promotes policies and actions tailored to local conditions. Widespread achievement of the substantive goals of sustainable development may, however, be more difficult if the national government does not also take a role. Even successful strategies, policies, and laws can take years or decades to be adopted by the majority of states. At a minimum, the federal government must ensure that all states meet minimum standards and that the citizens of no state are left behind.

States are the level of government that has direct responsibility for the key elements of sustainability. States also are close enough to the issues and the people affected by them to achieve results that meet current demands while considering the needs of future generations. Regardless of the role taken by the federal government in the next decade, the states will therefore continue to be critically important to achievement of sustainable development in the United States.

1. Rio Declaration on Environment and Development, U.N. Conference on Environment and Development (UNCED), U.N. Doc. A/CONF.151/5Rev. 1, 31 I.L.M. 874 (1992).

2. Agenda 21, UNCED, U.N. Doc. A/CONF.151.26 (1992).

3. See John C. Dembach, Sustainable Development: Now More Than Ever, 32 ELR 10003, 10003 nn.4-7 (Jan. 2002) and accompanying text.

4. See Rio Declaration, supra note 1, princ. 10 ("Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.").

5. See id. princs. 10 ("Environmental issues are best handled with the participation of all concerned citizens, at the relevant level."), 11 ("Environmental standards . . . should reflect the environmental and developmental context to which they apply.").

6. Dernbach, supra note 3, at 10009-12.

7. Rio Declaration, supra note 1, princ. 4 ("In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process.") (for further discussion of Principle 4, see Dernbach, supra note 3, at 10009.

8. Agenda 21, supra note 2, P8.5(g).

9. Rio Declaration, supra note 1, princ. 4.

10. Agenda 21, supra note 2, P8.3.

11. This Article leaves considerations of the security aspects of sustainable development to national level assessments, because national security is a federal government responsibility, Nevertheless, the reaction to terrorist attacks on New York and Washington, D.C., indicate that this division may no longer be as simple as it once seemed. States now are actively involved in homeland security and some of the actions taken as part of new security measures are having and will continue to have substantial effects on sustainable development. In particular, new restrictions on the availability to the public of information are likely to substantially hinder public participation in a wide variety of decisions relating not only to the security aspects of sustainable development, but to the development, environmental, and social aspects as well. See Carl Bruch, The Right to "No" Increases Vulnerability, ENVTL. F., Jan./Feb. 2002, at 50. For a list of governmental information, including some state information, removed from the Internet, see http://www.ombwatch.org/info/2001/access.html (last visited Apr. 20, 2002).

12. Rio Declaration, supra note 1, princ. 17 ("Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.").

13. See Agenda 21, supra note 2, P8.2:

An adjustment or even a fundamental reshaping of decision-making . . . may be necessary if environment and development is to be put at the centre of economic and political decision-making, in effect achieving a full integration of these factors. . . . some Governments have also begun to make significant changes in the institutional structures of government in order to enable more systematic consideration of the environment when decisions are made on economic, social, fiscal, energy, agricultural, transportation, trade and other policies, as well as implications of policies in these areas for the environment.

14. Id. P8.5. Specifically, Agenda 21 recommends "improving the use of data and information at all stages of planning and development, making systematic and simultaneous use of social, economic, developmental, ecological and environmental data." Id. P8.5(a).

15. Id. P40.4.

16. Id. P40.6.

17. See infra notes 150, 196 and accompanying text.

18. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 43 (1987).

19. Rio Declaration, supra note 1, princ. 3.

20. Id. princ. 10.

21. Id. princ. 11.

22. Id. princ. 22.

23. Agenda 21, supra note 3, P8.5(g).

24. U.S. CONST. amend. X.

25. For further discussion of local governments and sustainable development, see PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT (PCSD), TOWARD A SUSTAINABLE AMERICA: ADVANCING PROSPERITY, OPPORTUNITY, AND A HEALTHY ENVIRONMENT FOR THE 21ST CENTURY (1999).

26. 42 U.S.C. §§ 4321-4370d, 4332(2)(C), ELR STAT. NEPA §§ 2-209, 102(2)(C).

27. See Dernbach, supra note 3, at 10010 ("Procedural integration is the simultaneous and coherent consideration of economic, environmental and social factors in making a particular decision.").

28. SHELDON M. NOVICK ET AL. (ENVIRONMENTAL LAW INSTITUTE), LAW OF ENVIRONMENTAL PROTECTION § 6.03[1][c] (2000). The states with SEPA legislation include California, Connecticut, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, Virginia, Washington, and Wisconsin. Id. n.21. The states adopting SEPAs by Executive Order include Michigan, New Jersey, Texas, and Utah. Id. n.23.

29. N.Y. ENVTL. CONSERV. LAW § 8-0103(7).

30. Id. § 6.03[1][c].

31. Town of Westport v. State, 204 Conn. 212, 527 A.2d 1177, 1182 (Conn. 1987).

32. DANIEL P. SELMI & KENNETH A. MANASTER, STATE ENVIRONMENTAL LAW §§ 10.02[3] and 10.05 (1999). For example, the New York statute requires an agency to "make an explicit finding that the requirements of this section have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided." N.Y. ENVTL. CONSERV. LAW § 8-0109, subd. 8.

33. NOVICK ET AL., supra note 28, at n. 30 and accompanying text. See, e.g., In re City of White Bear Lake, 311 Minn. 146, 247 N.W.2d 901 (1976).

34. LA. CONST. art. IX, § 1.

35. Save Ourselves, Inc. v. Louisiana Envtl. Control Comm'n, 452 So. 2d 1152, 1160 14 ELR 20790, 20793 (La. 1984).

36. See Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892).

37. PA. CONST. art. I, § 27.

38. Payne v. Kassab, 11 Pa. Commw. 14, 312 A.2d 86, aff'd, 468 Pa. 226, 361 A.2d 263, 6 ELR 29796 (1976).

39. Id. at 29-30.

40. NOVICK ET AL., supra note 28, § 6.01[2][b].

41. One commentator has argued that Article I, § 27 of the Pennsylvania Constitution supports sustainable development by providing a basis for integrating environment into all state decisionmaking. John C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part I—An Interpretative Framework for Article I, Section 27, 103 DICKINSON L. REV. 693, 716-22 (1999); John C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Protects the Environment: Part II—Environmental Rights and Public Trust, 104 DICKINSON L. REV. 97 (1999).

42. HAW. CONST. art. XI, § 1.

43. Id.

44. In the Matter of the Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waihole Ditch Combined Contested Case Hearing, 94 Haw. 97, 131, 9 P.3d 409, 443 (2000) [hereinafter Water Use Permit Applications].

45. Id. at 135, 9 P.3d at 447.

46. Id. at 138, 9 P.3d at 450.

47. Id.

48. Id. at 139, 9 P.3d at 451.

49. MICH. STAT. ANN. § 324.1701(1). A few other states have followed Michigan's lead. Connecticut, CONN. GEN. STAT. § 22a-16; Florida, FLA. STAT. ANN. § 403.412(2)(a); Minnesota, MINN. STAT. ANN. §§ 116B.01-13; and New Jersey, N.J. STAT. ANN. § 2A:35A-4, are among the states that have passed environmental rights acts empowering citizens to sue for violations of environmental law or to protect natural resources and the environment. The Minnesota Legislature made explicit what was implicit in the Michigan statute, that "economic considerations alone shall not constitute a defense." MINN. STAT. ANN. §§ 116B.04.

50. MICH. STAT. ANN. § 324.1703.

51. OR. REV. STAT. chs. 195 & 197 (1999) (first enacted as Senate Bill 100 in 1973).

52. See Oregon Department of Land Conservation and Development, A Summary of Oregon's Statewide Planning Goals, at http://www.lcd.state.or.us/goalpdfs/goals_summary.PDF (last visited Apr. 20, 2002).

53. Id. Goal 9.

54. Id. Goals 5 and 6.

55. Id. Goals 10-12.

56. See http://www.lcd.state.or.us/goalhtml/goals.html (last visited Apr. 20, 2002).

57. N.J. STAT. ANN. §§ 52:18A-196-207.

58. Id. § 52:18A-196.

59. Id.

60. Id. § 52:18A-200.

61. Id. § 52:18A-202.

62. MASS. GEN. LAWS ch. 211, § 11.

63. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

64. MASS. GEN. LAWS ch. 211, § 11.

65. Id. § 2.

66. Id. § 13.

67. Id. § 11.

68. N.J. STAT. ANN. § 13:1D-41.

69. Id. § 13:1D-37.

70. Id.

71. Id. § 13:1D-43.

72. CAL. HEALTH & SAFETY CODE §§ 25244.12-25244.24.

73. Id. §§ 25244.15(d), 25244.19.

74. Id. § 25244.19(b)(9).

75. Id. § 25244.19(b)(5).

76. Id. §§ 25249.5-25249.13, 25180.7, 25192.

77. Id. § 25249.8.

78. Clifford Rechtschaffen, How to Reduce Lead Exposures With One Simple Statute: The Experience of Proposition 65, 29 ELR 10581, 10581 (Oct. 1999).

79. Id. at 10583.

80. NOVICK ET AL., supra note 28, § 6.01[2][b].

81. MONT. CONST. art IX § 1.

82. HAW. CONST. art. XI, § 1.

83. See infra notes 170-73 and accompanying text.

84. N.J. STAT. ANN. § 52:18A-196 (emphasis added).

85. See infra note 110 and accompanying text.

86. Cal. Pub. Res. Code § 21000.

87. Id. § 21001.

88. N.Y. ENVTL. CONSERV. LAW § 8-0103(1).

89. Id. § 8-0103(8).

90. JOHN RAWLS, A THEORY OF JUSTICE 137 (reprint 1971). Rawls was arguing for the use or simulation of the "veil of ignorance" in choosing among principles of justice, but the framework can be useful in considering more specific and concrete decisions as well.

91. Id.

92. U.S. CONST. art. I, § 8.

93. See, e.g., Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 531 U.S. 159, 31 ELR 20382 (2001) (interpreting the scope of authority of the U.S. Army Corps of Engineers under the Clean Water Act (CWA) to exclude certain intrastate wetlands on the grounds that a broader interpretation would raise questions of whether the U.S. Congress had exceeded its authority under the U.S. Commerce Clause).

94. U.S. CONST. amend. X.

95. See CELIA CAMPBELL-MOHN ET AL., SUSTAINABLE ENVIRONMENTAL LAW § 3.2(A) (1993) [hereinafter SUSTAINABLE ENVIRONMENTAL LAW].

96. JOEL S. HIRSCHORN, GROWING PAINS: QUALITY OF LIFE IN THE NEW ECONOMY 60 (2000) [hereinafter GROWING PAINS].

97. Id. § 1.2(I)(1)-(4).

98. See, e.g., 42 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b) (Under the CWA, a state may apply for approval by EPA of its plan for issuing permits that meet the standards of the national pollutant discharge elimination system (NPDES)). For a comparison of the statutory provisions governing state and federal responsibilities under the Safe Drinking Water Act (SDWA), the Clean Air Act (CAA), the CWA, the Resource Conservation and Recovery Act (RCRA), and the Surface Mining Control and Reclamation Act (SMCRA), see ENVIRONMENTAL LAW INSTITUTE, COMPARISON OF FEDERAL-STATE ALLOCATION OF RESPONSIBILITY IN FIVE ENVIRONMENTAL STATUTES (1995) [hereinafter COMPARISON].

99. U.S. CONST. art. VI.

100. See, e.g., 42 U.S.C. § 300g-2(a)(1), ELR STAT. SDWA § 1413(a)(1) (A state has primary enforcement authority for public water systems if the U.S. Environmental Protection Agency (EPA) determines that the state has adopted drinking water standards that are no less stringent than the national standards promulgated by EPA, and if EPA makes other findings about the state program.). States generally are free to adopt provisions that are more stringent than federal law, but about one-half of the states have enacted statutes making the federal "floor" the "ceiling." James M. McElfish, Minimal Stringency: Abdication of State Innovation, 25 ELR 10003, 10003 (Jan. 1995).

101. Id. See also 42 U.S.C. § 7411(c)(1), ELR STAT. CAA § 111(c)(1) (if EPA finds that a state's plan for implementing and enforcing new source performance standards (NSPS) under the CAA, it must "delegate any authority [it] has . . . to implement and enforce such standards").

102. See, e.g., 42 U.S.C. § 7411(c)(2), ELR STAT. CAA § 111(c)(2) (nothing in the provision for delegating authority to enforce NSPS prohibits EPA from enforcing any applicable standard of performance). For a comparison of federal and state enforcement authorities under five environmental statutes, see COMPARISON, supra note 98.

103. See, e.g., 30 U.S.C. § 1271(a)(1), ELR STAT. SMCRA § 521(a)(1) (The U.S. Department of the Interior (DOI) may take action only after notifying the state of information indicating that a person is in violation of a requirement or permit and if the state fails to take action or provide good cause for failing to take action within 10 days of the notification.).

104. See, e.g., 42 U.S.C. § 6926(e), ELR STAT. RCRA § 3006(e) (EPA must withdraw authorization of a state's hazardous waste regulatory program if it is not administering and enforcing the program in accordance with the federal requirements); but see 42 U.S.C. § 300g-4(a)(1)(G), ELR STAT. SDWA § 1415(1)(G) (EPA may revoke variances issued by a state if it finds that the state abused its discretion in granting the variances). For a discussion of oversight under the SDWA, the CAA, the CWA, and RCRA, see ENVIRONMENTAL LAW INSTITUTE, FEDERAL OVERSIGHT OF STATE ENVIRONMENTAL PROGRAMS: REFORMING THE SYSTEM (1995) [hereinafter FEDERAL OVERSIGHT].

105. EPA withdrew approval of a state program for the first time on December 1, 2001. Anita Huslin, EPA Takes Over Md. Clean Air Permit Process, WASH. POST, Dec. 4, 2001, at B2. The Maryland Department of the Environment argues that the effect of the decision is limited and leaves the Maryland program largely in place. See http://www.mde.state.md.us/arma/Programs/Aqpermit/title5.html (last visited Feb. 11, 2002). The Office of Surface Mining, within the DOI, has exercised its similar authority to withdraw approval of a state program only twice. JAMES M. McELFISH JR. & ANN E. BEIER, ENVIRONMENTAL REGULATION OF COAL MINING: SMCRA'S SECOND DECADE 33 (1990); accord Larry McBride & John Pendergrass, Coal, in SUSTAINABLE ENVIRONMENTAL LAW, supra note 95, at 993, 1065 (§ 14.3(A)).

106. OREGON PROGRESS BOARD, ACHIEVING THE OREGON SHINES VISION: THE 2001 BENCHMARK PERFORMANCE REPORT 1 (2001).

107. Id.

108. Id. at 4.

109. Research for this Article found no mention of Agenda 21 or the Rio Declaration among states' descriptions of their activities, policies, and initiatives.

110. John A. Pendergrass, A Rich History of State Innovation, ENVTL. F., Nov./Dec. 1994, at 12 (citing examples of laws from Pennsylvania, California, New Jersey, and Oregon that became models for federal laws).

111. See SUSTAINABLE ENVIRONMENTAL LAW, supra note 95.

112. More than 90% of the populations of New Jersey and California live in counties that exceed CAA national ambient air quality standards (NAAQS) for one or more pollutants. CHRIS KROMM & KEITH ERNST, GOLD AND GREEN 2000, INDICATOR REPORTS, AIR QUALITY (2000) [hereinafter GOLD AND GREEN]. For example, Atlantic City, Los Angeles, Newark, and Trenton, like many cities around the country, are nonattainment areas for ozone. U.S. EPA, PEAK AIR QUALITY STATISTICS FOR THE SIX PRINCIPAL POLLUTANTS BY METROPOLITAN STATISTICAL AREA (2000), available at http://www.epa.gov/oar/aqtrnd00/pdffiles/factbook.pdf (last visited Nov. 30, 2001).

113. Jeff MacNeely, "Shoe" cartoon, PLAIN DEALER, Jan. 6, 1979, at 19C ("What's cookin,' Roz?" "Fresh pot of coffee." "What? Without filing an environmental impact statement?").

114. BARBARA L. LAWRENCE & DORRIE MARGOLIN, STATE PLAN UP-DATE: 1999 (New Jersey Future 2001), available at http://www.njfuture.org/HTMLSrc/updatestateplan.html (last visited Jan. 31, 2002).

115. GROWING PAINS, supra note 96, at 32-33.

116. N.J. ADMIN. CODE § 7:15-8 (2001).

117. NEW JERSEY FUTURE, LIVING WITH THE FUTURE IN MIND; GOALS AND INDICATORS FOR NEW JERSEY'S QUALITY OF LIFE 2 (1999).

118. Id. at 5.

119. Id.

120. RESOURCE RENEWAL INSTITUTE, THE STATE OF THE STATES: ASSESSING THE CAPACITY OF STATES TO ACHIEVE SUSTAINABLE DEVELOPMENT THROUGH GREEN PLANNING 40 (2001) [hereinafter STATE OF THE STATES].

121. New Jersey Exec. Order No. 4 (Jan. 31, 2002).

The order includes among its premises that a sound and comprehensive planning process will facilitate the provision of equal social and economic opportunity so that all of New Jersey's citizens can benefit from growth, development and re-development; and . . . the "State Plan," embodies the State's official land use and development policies, to guide public investment, infrastructure development, economic growth, urban revitalization, sound housing and transportation policy, agriculture promotion and preservation, energy policy, and preservation of natural, environmental, coastal, historic and cultural resources.

(Emphasis added.)

122. See supra notes 51-56 and accompanying text.

123. See http://www.lcd.state.or.us/tgm (last visited Jan. 26, 2002).

124. Oregon Exec. Order No. EO-00-07 (May 17, 2000), Development of a State Strategy Promoting State Sustainability in Internal State Government Operations, 39 Or. Admin. R. Bull. 4 (July 1, 2000), available at http://www.governor.state.or.us/governor/legal/execords/eo00-07.pdf (last visited Apr. 20, 2002).

125. STATE OF THE STATES, supra note 120, at 41.

126. INVESTING IN MINNESOTA'S FUTURE: AN AGENDA FOR SUSTAINING OUR QUALITY OF LIFE (1998).

127. Id. at 2.

128. STATE OF THE STATES, supra note 120, at 41.

129. MINN. STAT. ANN. ch. 89A

130. Id. §§ 473.25-473.255, 1995 Sess. Laws ch. 255.

131. Id. ch. 116C, 1996 Sess. Laws ch. 437.

132. 1997 Sess. Laws ch. 202, MINN. STAT. §§ 394.232, 462.3535.

133. See http://www.mnplan.state.mn.us/commplan/index.html (last visited Apr. 8, 2002).

134. MINNESOTA PLANNING, FROM POLICY TO REALITY: MODEL ORDINANCES FOR SUSTAINABLE DEVELOPMENT (2000).

135. HIRSCHORN, supra note 96, at 61.

136. MINN. STAT. § 17.116 (2001).

137. S.B. 389 (1997) (amending and adding MD. CODE ANN. §§ 23A-8C, 2-103, 8-610, 5-7B-01-5-7B-10).

138. Economic Growth, Resource Protection, and Planning Act of 1992, MD. CODE ANN. § 66B-1.01.

139. Id. § 5-7B-02.

140. Id. § 5-7B-04(A).

141. CHESAPEAKE BAY FOUNDATION AND 1000 FRIENDS OF MARYLAND, MARYLAND'S NEXT STEPS: MAKING SMART GROWTH SMARTER — RECOMMENDATIONS FOR INCREASING THE EFFECTIVENESS OF SMART GROWTH AND EXPANDING ITS APPLICATION THROUGH NEW INITIATIVES (1999).

142. ENVIRONMENTAL LAW INSTITUTE, SMART GROWTH IN SMALL TOWNS AND RURAL COMMUNITIES: MARYLAND'S EASTERN SHORE 4 (2001).

143. The RRI is a nonprofit, nongovernmental organization whose mission is to "catalyze the development and implementation of green plans." See http://www.rri.org/home.html (Nov. 30, 2001).

144. STATE OF THE STATES, supra note 120.

145. Id. at iv.

146. Id. at 3.

147. Id. at 5.

148. Id. at 13. RRI created the GPCI, with 65 indicators within these 4 categories, using a weighting system resulting in a 100-point scale with the greatest weight given to RRI's indicators of innovation.

149. For further discussion of the specific elements of the GPCI, see infra note 165 and accompanying text. The most glaring failure of the GPCI as a measure of sustainable development is the absence from the index of any economic indicators. Also, green planning is a means of achieving sustainable development, but not necessarily the only means.

150. STATE OF THE STATES, supra note 120, at 20.

151. Id. at 20-21. In addition to these seven, three other states, including Connecticut (45), Illinois (45), and Florida (43), are characterized in Table 1, "Overview of Research Results—Selected Indicators, GPC Index" of the report as having a high GPC score. Id. at 16-17. But, in Figure 7, "Green Plan Capacity (GPC) Index," only the seven states with scores above 50 are grouped together as the top states, with states scoring from 34-49 characterized as above average. Id. at 23.

152. Id. at 20.

153. Id. at 16-17 (both Oregon and New Jersey were rated above average in the governance sub-index).

154. See supra text accompanying note 57.

155. STATE OF THE STATES, supra note 120, at 20, 37-38.

156. Id.

157. Id. at vii and 15.

158. Id. at 15, 20. Although these are laudable efforts by Minnesota, all are also being implemented in other states and the GPCI would have been a better indicator of efforts to achieve sustainability if they had been included. In contrast, the GPCI included state level right-to-know laws even though only California satisfied the criterion. Id. app. A, at 58.

159. Id. at 35.

160. Id. at 20.

161. Id. at 21. It is unclear, however, how the Watershed Management Act could be considered in the GPCI, as none of the indicators refer to watershed or water issues, and RRI stated that it would try to include watershed-based planning programs in future surveys. Id. at 15.

162. Id. at 21.

163. Id.

164. Proposed legislation in New York, for example, is given the same attention and credit as California's long-standing leadership in implementing air quality and tailpipe emissions standards and as Maryland's landmark smart growthlegislation. Id. at 21-22.

165. See Dernbach, supra note 3, at 10004-05.

166. STATE OF THE STATES, supra note 120, app. A, at 57-59.

167. See Agenda 21, supra note 2, P7.5(d) & ch. 18.

168. An indicator covering the state's consideration of environmental impacts when making significant decisions seems directly related to sustainable development.

169. For example, the indicator based on state right-to-know laws actually provides only one data point, as California is the only state recorded as having legislation that meets RRI's criterion. STATE OF THE STATES, supra note 120, app. A, at 58, 61.

170. For further discussion of this provision, see supra notes 42-45 and accompanying text.

171. Water Use Permit Applications, supra note 44, 94 Haw. at 135, 9 P.3d at 447.

172. Montana Envtl. Information Ctr. v. Department of Envtl. Quality, 296 Mont. 207, 988 P.2d 1236 (1999) (emphasis in original).

173. Id. at 230, 988 P.2d at 1249.

174. See, e.g., U.S. GENERAL ACCOUNTING OFFICE, EPA AND THE STATES: ENVIRONMENTAL CHALLENGES REQUIRE A BETTER WORKING RELATIONSHIP (1995); John A. Pendergrass, States, EPA Talk Past Each Other, ENVTL. F., Mar./Apr. 1997, at 8. See also Rena I. Steinzor, EPA and Its Sisters at 30: Devolution, Revolution, or Reform?, 31 ELR 11086, 11089 (Oct. 2001) (calling the mid-1990s a period of "outright nastiness . . . when state officials accused EPA of being drunk with power").

175. See http://www.sso.org/ecos/General%20Info.htm (Dec. 21, 2001).

176. Joint Commitment to Reform Oversight and Create a National Environmental Performance Partnership System (May 17, 1995), at http://www.epa.gov/ocirpage/nepps/memos.htm (Dec. 21, 2001) [hereinafter NEPPS Agreement].

177. COMPARISON, supra note 98; FEDERAL OVERSIGHT, supra note 104, at 6.

178. ENVIRONMENTAL LAW INSTITUTE, AN INDEPENDENT REVIEW OF THE STATE-FEDERAL ENVIRONMENTAL PARTNERSHIP AGREEMENTS FOR 1996, at 13 (1996).

179. NEPPS Agreement, supra note 176.

180. NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, ENVIRONMENT.GOV 145 (2000).

181. Id. at 146.

182. For further discussion of indicators of sustainable development at the level of states in the United States, see infra notes 185-236 and accompanying text.

183. MINNESOTA PLANNING, ENVIRONMENTAL QUALITY BOARD, SMART SIGNALS: AN ASSESSMENT OF PROGRESS INDICATORS (2000) [hereinafter SMART SIGNALS].

184. See STATE OF THE STATES, supra note 120, at 22 (reporting that 31 states have recently published comprehensive state of the environment reports that include monitoring of and reporting on progress). See, e.g., MARYLAND DEPARTMENT OF ENVIRONMENT, MARYLAND'S ENVIRONMENTAL INDICATORS: STATUS REPORT (1999), available at http://www.mde.state.md.us/enpa/2000_enpa/envi_indicators/index.html (last visited Feb. 4, 2002) [hereinafter Maryland Environmental Indicators] (Maryland reports the most current status of environmental quality indicators, including the six criteria air pollutants, hazardous waste generated per year, toxic releases, reported exceedances of lead poisoning standard, public water systems in compliance with drinking water standards, waters meeting designated use standards, and others. The report provides the goal for each indicator and current measures, but does not provide historical data or an indication of trends).

185. Robert W. Adler, Fresh Water—Toward a Sustainable Future, 32 ELR 10167, 10178-79 (Feb. 2002) (noting that the percentage of lakes that do not support their designated use, i.e., fishing, swimming, or public drinking water, was at its highest level (45%) in the most recent reporting period).

186. See 33 U.S.C. § 1315(b), ELR STAT. FWPCA § 305(b). The latest such report is the National Water Quality Inventory: 1998 Report to Congress. U.S. EPA, NATIONAL WATER QUALITY INVENTORY: 1998 REPORT TO CONGRESS (2000).

187. See 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA § 101(a)(2) (setting an interim goal that waters support protection and propagation of fish, shellfish, and wildlife and recreational uses).

188. See Adler, supra note 185, at 10179.

189. Id. at 10180-81 (citing studies showing freshwater-dependent animals are in worse condition than other animals and that freshwater habitats continue to decline in extent and quality, but also that some species of ducks have recovered to reach population management goals).

190. See, e.g., Maryland Environmental Indicators, supra note 184. Oregon includes daily reports on air quality on its website. See http://www.deq.state.or.us/aq/aqi_home.htm (last visited Apr. 20, 2002).

191. See David M. Driesen, Sustainable Development and Air Quality: The Need to Replace Basic Technologies With Cleaner Alternatives, 32 ELR 10277, 10278 n.6 (Mar. 2002) (reporting on national trends showing all areas now meet standards for lead, sulfur oxides, and nitrogen oxide).

192. Id.

193. Id. at 10277-78, 10281.

194. See, e.g., John A. Pendergrass, OTAG Opens New Vistas Among States, ENVTL. F., Jan./Feb. 1997, at 5; John A. Pendergrass, When Northeast Meets Midwest, ENVTL. F., Sept./Oct. 1997, at 6 (describing efforts by the Ozone Transport Assessment Group (OTAG), a group of midwestern and eastern states including both the upwind and downwind states, to reach agreement on a regional approach).

195. GOLD AND GREEN, supra note 112, at 1.

196. See http://www.southernstudies.org/gg2000methodology.html (last visited Apr. 8, 2002).

197. See http://www.southernstudies.org/gg2000statesandindicators.html (last visited Apr. 9, 2002). The other economic indicators are: African Americans and Latinos in top jobs, business start-ups, income gap between rich and poor, jobs with high risk of disease, statutory protections for workers, tax fairness, unemployment duration, women in top jobs, workers in toxic industries, and youth unemployment rate. Id.

198. Id. The other environmental indicators are: average individual's added cancer risk, carcinogens in water, change in energy consumption, gasoline use, hazardous waste generated, miles driven, portion of state budget for environment, solid waste generated, state spending on environment, and total water use per capita. Id.

199. See http://www.southernstudies.org/goldgreen2000.html (last visited Apr. 8, 2002). Minnesota also was first in a recent report of state health rankings, as it was in 1990. UNITED HEALTH FOUNDATION, STATE HEALTH RANKINGS 2001 EDITION (2002), available at http://www.unitedhealthfoundation.com/rankings2001/index.html (last visited Apr. 8, 2002).

200. Id. The study highlights these states as highest ranking under both indicators, but adding the two rankings together is another simple method for analyzing the combine rankings and that would result in New Hampshire, ranked first under the gold indicators and 16th under the green indicators, being the third highest ranked state. Under this method Hawaii, third under the green and 17th under the gold, would be seventh, ahead of Maryland and Wisconsin.

201. See http://www.southernstudies.org/gg2000trends.html (last visited Apr. 8, 2002).

202. See http://www.southernstudies.org/gg2000introduction.html (last visited Apr. 8, 2002).

203. Percent of 1998 workforce covered by unemployment insurance employed in major industries (two-digit Standard Industrial Classifications (SICs)) with illness and injury incidence rates at least twice the national average (6.7 cases per 100 full-time workers) for all private employers. The five industries are Primary Metal Industries (14.0 cases), Fabricated Metal Products (13.9 cases), Transportation Equipment (14.6 cases), Food and Kindred Products (13.6 cases), and Transportation by Air (14.5 cases). Alaska and Hawaii had workforces in Primary Metal Industries too small to register in BLS databases. There were no data available for New Jersey for 1998. See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing BUREAU OF LABOR STATISTICS, U.S. DEPARTMENT OF LABOR, STATE OCCUPATIONAL INJURIES AND ILLNESSES (updated Feb. 22, 2000), available at http://www.bls.gov/oshstate.htm (last visited Apr. 8, 2002) and BUREAU OF LABOR STATISTICS, U.S. DEPARTMENT OF LABOR, COVERED EMPLOYMENT & WAGES (updated Jan. 24, 2000), available at http://stats.bls.gov/cewhome.htm (last visited Apr. 8, 2002)).

204. Percent of 1998 workforce covered by unemployment insurance in nine major industries (two-digit SICs), with incidence rates of disease that are at least double the national average of 44.2 cases per 10,000 full-time workers. The nine industries are Food and Kindred Products (258.5 cases). Apparel and Other Textile Products (129.6 cases), Furniture and Fixtures (109.5 cases), Leather and Leather Products (279.2 cases), Primary Metal Industries (106.2 cases), Fabricated Metal Products (102.3 cases), Electronic and Other Electric Equipment (112.4 cases), Transportation Equipment (343.3 cases), and Instruments and Related Products (97.2 cases). The categories for disease, as identified by the U.S. Occupational Health and Safety Administration, are Skin Diseases or Disorders, Dust Diseases of the Lungs, Respiratory Conditions due to Toxic Agents, Poisoning, Disorders due to Physical Agents, Disorders Associated with Repeated Trauma (which accounted for the largest number of workplace illness incidents), and All Other Occupational Illnesses. See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing BUREAU OF LABOR STATISTICS, U.S. DEPARTMENT OF LABOR, NONFATAL OCCUPATIONAL ILLNESS INCIDENCE RATES BY INDUSTRY AND CATEGORY OF ILLNESS. 1998 (updated Jan. 2000), available at http://www.bls.gov/special.requests/ocwc/oshwc/osh/os/ostb0766.pdf (last visited Apr. 8, 2002).

205. Percent of 1998 workforce covered by unemployment insurance employed in the top seven major industries (two-digit SICs) accounting for the vast majority (87.21%) of the Total On- and Off-site Toxic Releases compiled in the Toxic Release Inventory (TRI). In 1998, the amount of toxic releases was 7,307,337,223 pounds for 270,248,003 Americans or 27.55 pounds per capita. The seven industries that account for 87.21% of these releases, with pounds of toxic release per capita, are: Metal Mining (13.23 lbs.); Electric, Gas, and Sanitary Services (4.21 lbs.); Chemicals and Allied Products (2.78 lbs.); Primary Metal Industries (2.14 lbs.); Paper and Allied Products (.87 lbs.); Rubber and Miscellaneous Plastic Products (.41 lbs.); and Transportation Equipment (.39 lbs.). Some states had workforces in one or more industries that were too small to register in Bureau of Labor Statistics databases. There were no data available for New Jersey for 1998. See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing OFFICE OF POLLUTION PREVENTION AND TOXICS, U.S. ENVIRONMENTAL PROTECTION AGENCY, TRI OFF-SITE AND ON-SITE RELEASES BY INDUSTRY, 1998 (updated July 18, 2000), available at http://www.epa.gov/tri/tri98/data/rlms98at2.pdf (last visited Apr. 8, 2002) and COVERED EMPLOYMENT & WAGES, supra note 204.

206. Percent change in per-capita energy consumption from 1992 to 1997, See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing ENERGY INFORMATION ADMINISTRATION, U.S. DEPARTMENT OF ENERGY, STATE ENERGY DATA REPORT, 1997 (1999), available at http://www.eia.doe.gov/pub/state.data/pdf/SEDR97.pdf (last visited Apr. 8, 2002) [hereinafter STATE ENERGY DATA REPORT]).

207. Millions of British Thermal Units (BTUs) consumed per capita from all energy sources, 1997. See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing STATE ENERGY DATA REPORT, supra note 206).

208. Total miles traveled by car, truck, or bus per gallon of gas consumed in 1998, See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing OFFICE OF HIGHWAY POLICY INFORMATION, FEDERAL HIGHWAY ADMINISTRATION, HIGHWAY STATISTICS 1998 (updated June 13, 2000), available at http://www.fhwa.dot.gov/////ohim/hs98/hs98page.htm (last visited Apr. 8, 2002) [hereinafter HIGHWAY STATISTICS]).

209. Total annual vehicle-miles of travel, in millions, driven in 1998 by car, truck, or bus per square mile of land in the state. See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing HIGHWAY STATISTICS, supra note 208).

210. Percent of 1998 state budget spent on natural resources. See http://www.southernstudies.org/gg2000sources.htm (last visited Apr. 8, 2002) (citing U.S. CENSUS, DEPARTMENT OF COMMERCE, SPREADSHEET OF 1998 STATEBUDGETS (updated Apr. 26, 2000), available at http://www.census.gov/govs/state/98states.xls (last visited Apr. 8, 2002) [hereinafter SPREADSHEET]). Total per capita spending, in dollars, in fiscal year 1998 on state programs addressing natural resources, defined as "conservation, promotion, and development of natural resources, such as soil conservation, water, forests, minerals, and wildlife. Includes irrigation, drainage, flood control, forestry and fire protection, soil reclamation, soil and water conservation, fish and game programs, and agricultural fairs." Id. (emphasis added) (citing SPREADSHEET. supra).

211. The states are, in order: Alaska, Wyoming, Montana, North Dakota, Vermont, South Dakota, Idaho, and Maine. See http://www.southernstudies.org/gg2000indicatorreports/gg2000spendonenviro.html (last visited Apr. 8, 2002).

212. See, e.g., SMART SIGNALS, supra note 183 and accompanying text (Minnesota Progress Indicator includes gross state product per worker, gross state product per unit of energy consumption, and gross state product per amount of solid waste). Also, the Rio Declaration recommends that nations supplement this traditional indicator with additional indicators but does not suggest ignoring gross domestic product. See Rio Declaration, supra note 1.

213. See http://www.njfuture.org/HTMLSrc/sustainablestate.html (last visited Apr. 8, 2002).

214. SMART SIGNALS, supra note 183, at 18-20.

215. Id. at 19.

216. Id. at 27 (the renewable resource indicator measured trends in timber harvest, renewable energy used, annual water use, and change in depth of two acquifers compared to historical levels).

217. Id. at 30 (the habitat indicator combined population trends for indicator species for Minnesota's five primary habitat types, loons for lakes, sharp-tailed grouse for brush land, black-throated green warbler for forest, prairie chicken for prairie, and pheasant for farmland).

218. Id. at 28 (the toxicity of the environment indicator combined measures of emissions of criteria air pollutants, percentage of monitored wells with atrazine levels below or equal to one part per billion, and toxic release inventory releases).

219. Id. (the indicator on elimination of waste combined tons of solid waste generated and percentage of solid waste recycled and showed a 49% improvement in 1997 compared to 1990).

220. Id. at 30 (this indicator combined criteria air pollutants, emissions of carbon dioxide, number of leaking underground storage tanks, lake transparency compared to historical levels, quantity of fertilizer used, and percentage of monitored wells with nitrate levels equal to or below three parts per billion).

221. Id. at 19.

222. See supra notes 125-36 and accompanying text.

223. SMART SIGNALS, supra note 183, at 9.

224. Id. The Minnesota Progress Indicator was based on the Genuine Progress Indicator developed by Redefining Progress, an NGO, in 1995, as modified in keeping with Minnesota Milestones and with local data when available. Id. at 1, 9-10 (2000). See C. COBB ET AL., THE GENUINE PROGRESS INDICATOR: SUMMARY OF DATA AND METHODOLOGY (1995).

225. SMART SIGNALS, supra note 183, at 11.

226. Id.

227. Id. at 12.

228. Id. at 11.

229. Chapter 432, Acts of 1992.

230. OREGON PROGRESS BOARD, ACHIEVING THE OREGON SHINES VISION; THE 2001 BENCHMARK PERFORMANCE REPORT 1 (2001), available at http://www.econ.state.or.us/opb/2001report/2001new.html (last visited Apr. 8, 2002). The overall strategic vision has three major goals: (1) quality jobs for all Oregonians; (2) safe, caring and engaged communities; and (3) healthy sustainable surroundings. Id. at 2. From the start benchmarks to measure progress were considered an integral part of the strategic plan. For 2001, the board reported on 90 benchmarks, including 16 environmental, 17 economy, 12 education, 9 civic engagement, 8 social support, 7 public safety, and 7 community development benchmarks. The current Benchmark Progress Report gives the state a C+ for 2001, improving from a C in 1998.

231. Id. at 4.

232. Id.

233. See supra notes 57, 62 and accompanying text.

234. MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION, 1999 TOXICS USE REDUCTION INFORMATION RELEASE: SPRING 2001, 10 YEARS OF TOXICS USE REDUCTION 1, 6 (2001) (the percentage reduction accounts for an increase in production of more than half, but even the unadjusted figures showed a sharp reduction as firms that were subject to the toxics use reduction program from the start reported a 34% reduction in "byproduct generation" or toxic waste).

235. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW JERSEY'S ENVIRONMENT 1998, at 23 (1999) (New Jersey achieved a 50% reduction in nonproduct output by 1994, while the same measure for the United States as a whole showed a slight increase in the same period) See also NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ENVIRONMENTAL INDICATORS TECHNICAL REPORT: POLLUTION PREVENTION, SOURCE REDUCTION, AND TOXICS USE 7 (1998).

236. See U.S. EPA. 1999 TOXICS RELEASE INVENTORY — STATE FACT SHEETS 27, at tbl. 23 (2001).

237. See supra note 12 and accompanying text.

238. See supra note 28 and accompanying text.

239. See supra notes 134, 223 and accompanying text (discussing Oregon Executive Order on sustainability and Minnesota Milestones and related efforts).

240. See supra note 230 and accompanying text (discussing the Oregon's strategic plan. Oregon Shines).

241. This Article has discussed federal environmental programs in terms of EPA, but similar cooperation is important in programs administered by the DOI, U.S. Departments of Agriculture, Commerce, Labor, and Energy, as well as by independent agencies including the Nuclear Regulatory Commission and the Federal Energy Regulatory Commission.

242. See, e.g., Frank S. Arnold, Can't Do Cost-Benefit Without It, ENVTL. F., Nov./Dec. 2001, at 16 (noting that some economists argue for a declining discount rate as the time under consideration grows longer or that the appropriate social discount rate should be low).

243. See, e.g., LISA HEINZERLING & FRED ACKERMAN, PRICING THE PRICELESS: COST-BENEFIT ANALYSIS OF ENVIRONMENTAL PROTECTION (2002).

244. Downwind states are indeed taking action. See, e.g., John A. Pendergrass, What Whitman May See in N.J. Trading Program, ENVTL. F., Mar./Apr. 2001, at 10 (describing New Jersey's trading program for nitrogen oxides and volatile organic compounds). But even these actions are unlikely to be sufficient. See, e.g., John A. Pendergrass, Pennsylvania, New York Act Uniquely, ENVTL. F., June/July 2000, at 8 (describing a New York statute prohibiting trading sulfur dioxide emissions credits to upwind states and noting that it is unlikely to have the desired effect if the trading market operates as intended); John A. Pendergrass, Birth to Twin Rules in Massachusetts, ENVTL. F., June/July 2001, at 10 (describing new rules to regulate grandfathered and new power plants in Massachusetts, noting that the rules do not deal with issues related to trading credits out of state).

245. GOLD & GREEN, supra note 112.