Is strong sustainability a realistic basis for governing critical raw materials? A debate
By Kenny Ng, Niko Soininen, Charlotte Ehrmann, Myele Rouxel, Kia Duché, Marina Dutra Trindade, Antti Iho, Anni Kärkkäinen, César Soares de Oliveira, Paul Tiensuu andFrancesco Venuti.
This blogpost reflects on an online debate held in April by CCEEL’s Sustainability Law research group on the motion “strong sustainability is a realistic and desirable basis for governing critical raw materials”. The debate invited discussion from the viewpoints of both strong sustainability and weak sustainability on the contemporary and contested topic of critical raw materials (CRMs), such as lithium, copper, cobalt and rare earths. John Stuart Mill in On Liberty argued that the value of an expressed opinion is not whether it is right or wrong. Even a false position is useful, because it forces the truth to be articulated, defended and better understood. Without contestation, even correct ideas can become shallow and dogmatic. Accordingly, this debate did not proclaim any winners or losers. It instead focused on sharpening our researchers’ understanding and articulation of a notion as broad as sustainability and the real-world challenges posed by CRMs.
For strong sustainability: ecology first
The proponents emphasised strong sustainability’s basis in ensuring a habitable Earth within planetary boundaries by limiting activities that could have long-term adverse effects on ecological systems, such as mining. It seeks to ensure that human needs are met, while reducing resource overconsumption that drives ecological degradation without improving well-being. Empirical studies indicate that well-being does not substantially increase beyond a certain level of material consumption. The mining and processing of CRMs can harm local environments and create issues for social and environmental justice, which are disproportionately borne by developing countries. Their end-products would consume more resources and generate more waste. Electric vehicles can perpetuate environmental and social harms, particularly during the extraction and processing of CRMs vital to their production, and have high production emissions, even if they could reduce tailpipe emissions. Data centres can also generate a significant amount of electronic waste and deplete the local water and electricity supply. The clearest way forward is therefore to reduce human consumption under strong sustainability.
Governing CRMs under strong sustainability is necessaryfor securing political legitimacy and public acceptance. CRMs are crucial for the green transition, but their extraction and processing cannot ignore environmental sustainability, otherwise their policy justification would collapse. Mining projects are often controversial because of their environmental and social risks. If they are governed unsustainably, opposition toward them would increase. An environmental policy that damages what it claims to protect has no legitimacy. A green transition cannot be obtained if the environment is harmed, such that a strong sustainability governance model is necessary.
Strong sustainability is a realistic basis for governing CRMs since it is already a policy objective and a legal obligation across the EU. The policy goal can be illustrated by the EU’s Biodiversity Strategy for 2030. It states, “Protecting and restoring biodiversity is the only way to preserve the quality and continuity of human life on Earth”. It expressly acknowledges that humans are part of and are fully dependent on the web of life and that they must remain within planetary boundaries. Legal examples are the EU’s Birds Directive and Habitats Directive, and the precautionary principle, which is rooted in environmental law and can reinforce environmental objectives, reflected in impact assessment obligations and permit provisions that mining is subjected to. Courts have taken a strict approach to the precautionary principle when determining the threshold of acceptable adverse effects of developmental projects. In this way, it can act as a gatekeeper by preventing existing environmental laws from being weakened.
Immediate action is needed. Many dimensions of the natural environment cannot be bought or brought back. Strong sustainability is a more realistic and desirable basis for governing CRMs, as well as consumption patterns and supply chains generally, than weak sustainability that threatens nature.
For weak sustainability: improving balance
The opponents defined weak sustainability as an approach that allows natural capital to be substituted by manufactured capital. The desirability of weak sustainability in governing CRMs can be seen from a utilitarian and green energy or low-carbon transition viewpoint. The end products of CRMs are often those that play critical roles in modern society across the economy, defence and technology, including those that support the green energy transition. In developing countries, or during crises such as wars and pandemics, a system modelled under weak sustainability supports the urgent attainment of basic human rights such as access to affordable, reliable, sustainable and modern energy, and energy security, whereas strong sustainability could conflict with them. Weak sustainability also allows sustainability to coexist more evenly with fundamental normative commitments, such as democracy, the rule of law, sovereignty and liberalism.
Weak sustainability has been cemented into legal and political systems, complementing the global status quo well. It has been underscored in the European Green Deal that demands the phase-out of fossil fuels and phase-in of low-carbon energy technologies, which rely heavily on CRMs; the Renewable Energy Directive adopted in 2023 that increases the EU’s binding renewable energy target for 2030 to at least 42.5°C; and the EU’s legally binding objective enshrined in the European Climate Law to reach climate neutrality by 2050. The EU’s Critical Raw Materials Act (CRMA) was adopted to “ensure access to a secure and sustainable supply of CRMs and to safeguard the Union’s economic resilience and open strategic autonomy”. It acknowledges the importance of circularity in the value chain and identifies CRMs based on their economic importance and supply risk.
Meanwhile, the International Renewable Energy Agency’s 1.5°C Scenario aims to achieve the 1.5°C target by 2050 by positioning electrification as a key transition driver enabled by renewable energy, which heavily relies on CRMs. General principles such as legal certainty and legitimate expectations act as temporal barriers to radical change in law, such that strong sustainability is less feasible than weak sustainability in the short term. The essential role of CRMs means that they are often non-substitutable bottlenecks in the short run, although in the long run, innovation and system redesign could increase their substitutability. Property rights and legal certainty, notably in relation to land and natural resource use, has flourished under legal systems governed by weak sustainability, and strong sustainability can weaken them.
Strong sustainability sets hard ecological constraints to be normatively rigid, but the reality of the law is that it rarely operates through absolute constraints, thriving under weak sustainability. We can have goals towards strong sustainability, but it is uncertain if they can ever be completely met. Thus, weak sustainability is more realistic and desirable in governing CRMs.
Rebuttals
Rebutting a weak sustainability approach to governing CRMs, the proponents contended that strong sustainability’s prioritisation of ecology could benefit economies and societies as they are fundamentally built upon nature. A strong sustainability approach would reduce the demand for CRMs by curtailing their excessive consumption and protecting their supply, to enhance resource-poor Europe’s strategic autonomy. Weak sustainability emphasises the role of industrial efficiency and the opportunities from recycling CRMs, downplaying the need to reduce consumption overall. However, the amount obtained from recycled CRMs would still be outpaced by present levels of consumption. We have already crossed several planetary boundaries, so our current trajectory is not feasible, such that strong sustainability should be upheld to protect the interests of our future generations. Strong sustainability may not clash with property rights, as seen in our laws that protect habitats: strict nature conservation obligations can coexist with property rights. Inaction by forsaking strong sustainability approaches could lead to higher future living costs and other burdens, creating untenable political implications. There is a need for bolder approaches, such as those offered by strong sustainability, to tackle the root causes of the problem.
The opponents in their rebuttal raised that the EU legal and political frameworks were founded on economic integration, focusing on the policy objectives of market competition and productivity that foster weak sustainability. The EU has recently adopted a binding 90% greenhouse gas reduction target by 2040, which will require significant amounts of CRMs and other investments to meet. Even though the EU recognises the importance of biodiversity and nature in its laws, it still permits economic activity, evident in the CRMA’s inherent support for mining. More recent legal and political interventions have also been toning down the EU Green Deal’s ecological ambitions. Strong sustainability could impede fairness by depriving communities that are defined by particular temporal and socioeconomic contexts of their wants and [KN1] needs in the name of the “common good” it seeks to protect, potentially eroding happiness, life satisfaction or utility. Strong sustainability might only be more applicable in idealistic conditions, in the absence of poverty or war, not in real life.
Takeaways: “The road to hell is paved with good intentions”
Debates can tease out the normative assumptions and disagreements that are typically not explicitly addressed. They help to understand how and why legitimate disagreement can arise over core values, such as those within sustainability. Less competitive debates are useful for team building, as they provide a safe environment for exchanging knowledge and perspectives without undue rivalry. A debate’s format is crucial to achieving its objective, which in this case was to foster learning from each other, recognising that each researcher has their own unique set of expertise, in an inclusive and low-threshold manner. To attain this objective, this debate was structured upon concepts that were broad enough (strong versus weak sustainability) so that participants could apply them to a real-world issue (CRMs) on an equal footing. The debaters not only promoted their own views but also engaged with perspectives that may have conflicted with their personal values, despite cognitive dissonance, emulating what lawyers would face when advocating for clients.
This debate highlights the importance of how sustainability is defined. The conceptualisation of sustainability can have multidimensional implications that challenge our perceptions of the status quo. Can mining ever be an activity consistent with strong sustainability? Is society progressing in political ideology from weak to strong sustainability? While some argued that the law is grounded in strong sustainability, others contended that it is in fact grounded in weak sustainability. We also see that while there has been a gradual trend towards stronger views of sustainability in law at national (e.g. Finland’s Constitutional Law Committee (perustuslakivaliokunta)), supranational and international levels, there has been a more recent political shift towards weaker views of sustainability.
Some participants thought that the divide between strong and weak sustainability could be softened by appreciating sustainability as being fundamentally concerned with managing constraints and priorities across time horizons (e.g. short versus long term), communities (e.g. Global North versus Global South) and governing domains (e.g. ecological versus economic systems), without necessarily having to choose once and for all between strong and weak sustainability. Applying this non-binary approach, weak sustainability could be prioritised first by specific communities to tackle their most pressing concerns, before relying on strong sustainability at a later stage. This nevertheless could still risk irreversibly transgressing planetary boundaries, such that a strong (or stronger) sustainability approach would be justifiable, given the plausibly differing emphases on time horizons, communities and domains under weak and strong sustainability.
A parallel was drawn to Astrid Lindgren’s story of Ronja, ryövärintytär (“Ronia, the Robber’s Daughter”). Ronja and Birk were the children of clans of robbers. They decided that the robber’s life was not for them and thought of becoming miners instead, to essentially reject a social system that they saw as being morally wrong for another. When we reject one form of resource extraction, exemplified in the story by robbery, another form would be required because we rely on natural resources to survive, and currently on CRMs to thrive. When we ask whether the mining of CRMs or the extraction of natural resources can ever be sustainable, the response may not necessarily be a “yes” or “no”, but one that adopts contextual nuance in terms of how (under what constraints), when and where we extract.
Organiser: Kenny Ng, CCEEL
Moderator: Prof Niko Soininen
Debaters: Kia Duché, Marina Dutra Trindade, Charlotte Ehrmann, Dr Antti Iho, Anni Kärkkäinen, Kenny Ng, Myele Rouxel, César Soares de Oliveira, Paul Tiensuu, Francesco Venuti