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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Protection of the Environment

Lana Ofak

Subject(s):
Environment and energy policy — Environmental rights — Fundamental rights

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition of Environment Protection, Its Origin and Evolution

1.  Environment is defined as surroundings or conditions in which a person, animal, or plant lives or operates. The environment in which we live provides us with basic necessities for living and achieving progress. Adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself. Environment that is appropriate for health and well-being of present and future generations is essential for the survival of humanity. Every human activity has an impact on the environment, and the environment has limited resources. It can absorb pollution and neutralize its harmful effects only to some limited extent. The history of human civilization has shown that people tend to act in a way that leads to a significant deterioration of the environment if their activity is not placed under legal restrictions (Wilkinson 5–8).

2.  Since the earliest civilizations mankind has perceived the significance of nature’s basic commodities for long-term survival, and every known civilization has had rules aimed at preventing environmental degradation to some extent (Wilkinson 1–2). Nevertheless, environmental protection is a newer element of the constitutions worldwide. As opposed to present day constitutions containing explicit provisions regarding environmental protection, the earliest constitutions did not have such provisions. The best illustration is the Constitution of the United States of America (17 September 1787 (US)). Although it does not mention the concept of environmental protection, such a fact did not hinder the rapid development of environmental law, which was at its peak in the United States during the 1970s and 1980s (Bačić 730–731).

3.  The process of introducing environmental protection in the constitutions started in the 1970s and was inspired by the United Nations Conference on the Human Environment held in Stockholm (Swed) from 5-16 June, 1972. The Stockholm Conference resulted in the Stockholm Declaration, as the first document in international environmental law to recognize the right to a healthy environment (although it is not legally binding). At the time of the Stockholm Declaration in 1972, there were no constitutions that protected environmental rights and only a small number of constitutions that imposed environmental duties (Boyd (2012) 47). The list includes the following constitutions: Constitution of the Italian Republic: 22 December 1947 (It), Constitution of the Republic of Madagascar: 29 April 1959 (Madag), Constitution of the State of Kuwait: 11 November 1962 (Kuwait), the Constitution of the Republic of Malta: 2 September 1964 (Malta), Constitution of the Czechoslovak Socialist Republic: 11 July 1960 (Czech-Slovk), Constitution of the Republic of Guatemala: 15 September 1965 (Guat), Constitution of the German Democratic Republic: 6 April 1968 (East Ger), Constitution of the People’s Republic of Bulgaria: 18 May 1971 (Bulg), Provisional Constitution of the United Arab Emirates: 18 July 1971 (UAE) and Federal Constitution of the Swiss Confederation: 29 May 1874 (As Amended to 31 December 1971) (Switz).

4.  These constitutions may be divided into three groups. The first group consists of Italy and Malta whose constitutions stipulated the duty of the Republic to protect the landscape (It—Art. 9, para. 2 and Malta—Chapter II, Section 9), and Switzerland prescribing that the protection of nature and landscapes is a cantonal concern (Switz—Art. 24 sexies). Furthermore, this group includes constitutions of Guatemala, which imposed the duty to the State to conserve the natural beauty of the country (Guat—Art. 108) and Kuwait, which stipulated that the State shall ensure the preservation and proper exploitation of natural resources, due regard being given to the requirements of State security and the national economy (Kuwait—Art. 21).

5.  The second group of countries further extended the duty to protect and preserve nature and natural resources to competent bodies, society and every citizen (Bulg—Art. 31 and East Ger—Art. 15, para. 2), or to society (UEA—Art. 23) and to each individual (Madag—Preamble).

6.  There is a third group of constitutions which additionally envisaged the obligation of the State to enact environmental law (Czech-Slovk, Guat and Switz). More specifically, the purpose of legislation was to regulate the conservation of nature and the preservation of the beauties of the country so as to create an increasingly rich source of benefit to the people with a view to their health and their right to recreation (Czech-Slovk— Art. 15, para. 2), the protection of flora and fauna (Switz—Art. 24sexies, and Guat—Art. 108 referring to national parks), the conservation and exploitation of water and the protection of surface and underground water against pollution (Switz—Art. 24bis) and the protection of human beings and their natural environment against harmful acts, and, in particular concerning the air pollution and noise (Switz—Art. 24 septies). As shown, the provisions of the Swiss Constitution were the most substantial in comparison to other constitutions.

7.  Every year since the 1972 Stockholm Declaration, at least one country has written or amended its constitution to include or strengthen provisions concerning environmental protection (Boyd (2012) 47). The leading countries in introducing the environmental protection in their constitutions were the countries from Latin America and Western Europe during the 1980s and African and Eastern European countries during the 1990s (Boyd (2012) 47–48).

B.  Delineation of Overlapping Concepts

8.  Boyd has identified five types of environmental protection provisions in today’s constitutions (Boyd (2012) 47–48). The most common form of constitutional provision concerning environmental protection is the imposition of the duty on the State (Boyd (2012) 52–59). The second category grants substantive environmental right to everyone to live in a healthy environment (Boyd (2012) 59–66). The next type are constitutions which provide procedural environmental rights that include the right to information (right to access to environmental information), the right to participate in decision-making (public participation), and the right of access to judicial procedures in environmental matters (Boyd (2012) 66–67; see also concept and types of environmental rights; implementation and enforcement of environmental rights). The forth category of constitutions assigns the individual responsibility for protecting the environment (Boyd (2012) 67–68). The last type includes constitutions with a broad variety of environmental provisions (from general to very detail) that cannot be classified in the previous categories (Boyd (2012) 68–71).

9.  Some of the constitutions also guarantee the right to development and the right to healthy housing (right to housing). Furthermore, many constitutions contain specific provisions requiring protection of natural resources, which will not be analysed here.

C.  List of Analysed Constitutions

10.  The constitutions of the following countries have been selected for the comparative analysis (the countries are listed by continents):

11.  Asia (6)—Constitution of the People’s Republic of China: 4 December 1982 (as Amended to 14 March 2004) (China), Constitution of the Republic of India: 4 December 1982 (as Amended to 1 August 2015) (India), Constitution of Japan: 3 November 1946 (Japan), Constitution of the Federal Democratic Republic of Nepal: 20 September 2015 (Nepal), Constitution of the Republic of the Philippines: 2 February 1987 (Phil), and Constitution of the Kingdom of Thailand (Interim) (BE 2557): 22 July 2014 (Thai),

12.  Africa (5)—Constitution of the Arab Republic of Egypt: 18 January 2014 (Egypt), Constitution of the Federal Democratic Republic of Ethiopia: 21 August 1995 (Eth), Constitution of the Federal Republic of Nigeria: 29 May 1999 (Nigeria), Constitution of the Republic of South Africa: 11 October 1996 (As Amended to 1 February 2013) (S Afr), Constitution of the United Republic of Tanzania: 26 April 1977 (as Amended to 2005) (Tanz),

13.  North America (3)—Constitution of Canada: the Constitution Acts 1867 to 1982 (Consolidated as of 1 January 2013, Department of Justice, Canada) (Can), Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 7 February 2014) (Mex), Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) (US),

14.  South America (4)—Constitution of the Argentine Nation: 23 August 1994 (Arg), Constitution of the Federative Republic Brazil: 5 October 1988 (As Amended to 16 September 2015) (Braz), Constitution of the Republic of Colombia: 5 July 1991 (As Amended to 15 July 2015) (Colom), Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011) (Ecuador),

15.  Europe (4)—Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 23 December 2014) (Ger), Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) (Fr), Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014) (Russ), and Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 8 June 2016) (Turk),

16.  Australia (1)—Commonwealth of Australia Constitution Act: 9 July 1900 (as Amended to 31 October 1986 (Austl)).

17.  A total of 25 countries have been covered by the analysis (which also included two countries without a written constitution (Isr and UK)). The criteria for the selection were the following:

  • •  Countries with the largest population,

  • •  Countries whose constitutions contain environmental protection provisions, and

  • •  Countries where environmental protection has been the subject of judicial interpretation by the highest courts.

D.  Comparative Description

1.  Duty of the State to Protect the Environment and the Right to a Healthy Environment

18.  The most common inclusion of environmental provisions in national constitutions refers to the duty of the State to protect the environment and guaranteeing the right to healthy environment. The fundamental issue at stake is whether such provisions are enforceable in courts. Therefore, special attention shall be given to the jurisprudence of the highest courts. Due to their large number and for better clarity, countries with those types of provisions in their constitutions will be presented by continents/regions.

(a)  Asia

(i)  Law

19.  Out of six analysed constitutions two of them do not contain any provision concerning environment (Japan and Thai). Constitutions of China (Art. 26) and India (Art. 48A) prescribe the duty of the State to protect the environment. Indian Constitution imposes the duty to protect the environment on the citizens as well (Art. 51A(g); duties of citizens). Nepal’s Constitution guarantees the right to healthy environment (Art. 30) and provides for an additional right of the victim of environmental pollution and degradation to be compensated by the pollutant as provided for by law (Art. 30, para. 2). The Constitution of Philippines requires the State to protect and advance the right of the people to a balanced and healthful ecology (Art. II, Section 16).

(ii)  Jurisprudence

20.  With respect to those Asian countries, court decisions related to the constitutional provisions on environmental protection were identified in all of them except for China where the role of the courts in handling environmental disputes has been limited, but it is growing. Wilson notes that the brightest hope for environmental litigation comes in the form of China’s newly established environmental courts (Wilson 871). Between 2007 and 2013 China set up over 130 environmental courts (Stern 53).

21.  In India there have been hundreds of cases decided by the Supreme Court and High Courts on the basis of the implicit right to a healthy environment (Boyd (2012) 175–183, Basu and Shankar 62–72). In 1984, the Bhopal disaster occurred in which toxic fumes from a pesticide plant killed thousands of Indians and severely injured thousands more. Later, during the late 1980s and early 1990s, the Indian Supreme Court applied the Constitution’s right to life provision (Art. 21) to environmental cases (some of the landmark court decisions were Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh, Attakoya Thangal v Union of India, Subhashkumar v State of Bihar). Among the environmental issues that were decided by the Indian Supreme Court were the cases concerning the air pollution, water pollution, protection of forests and wildlife and municipal solid waste practices (Rajamani 295).

22.  In Nepal, successful public interest litigation has involved issues ranging from motor vehicle pollution to industrial pollution (Boyd (2012) 170–171, Puvimanasinghe 43–44). Suray Prasad Sharma Dhungel v Godavari Marble Industries and Others was one of the landmark cases, decided by the Supreme Court, in which the Court determined that the time has come to fulfil national and international responsibilities towards the environment and directed the enactment of the relevant legislation necessary for the protection of the air, water, sound and environment (Suray Prasad Sharma Dhungel v Godavari Marble Industries and others [1995] WP 35/1992 (Nepal)).

23.  There have been many significant decisions of the Supreme Court of the Philippines based on the right to a balanced and healthful ecology (Boyd (2012) 167–170, Gatmaytan-Magno 1–30). In 2015 the Supreme Court struck down as unconstitutional the oil exploration, development, and exploitation of petroleum resources within Tanon Strait, a protected seascape known for its abundance in whales and dolphins (Mongaya). Another significant decision from 2015 is the Supreme Court’s temporary prohibition of the contained use, field testing, propagation and commercialization, and importation of genetically modified organisms (GMO), until the enactment of new administrative order, and a permanent ban of the field testing of GMO eggplant (Dela Cruz and Serapio).

(b)  Africa

(i)  Law

24.  The analysis of five constitutions of African countries determined that the right to healthy environment is guaranteed in Egypt (Art. 46), Ethiopia (Art. 44, para. 1) and South Africa (Section 24). Nigeria and Tanzania do not recognize such right in their constitutions. The Constitution of Ethiopia provides for an additional right to all persons who have been displaced or whose livelihoods have been adversely affected as a result of State programmes to commensurate monetary or alternative means of compensation, including relocation with adequate State assistance (Art. 44, para. 2). It also prescribes the duty of citizens to protect the environment (Art. 92, para. 4).

25.  Tanzanian Constitution contains more detailed provisions entitled ‘Duty to safeguard public property’. Every person has the duty to protect the natural resources of the United Republic, the property of the State authority, all property collectively owned by the people, and also to respect another person’s property (Art. 27 para. 1). Moreover, all persons shall be required by law to safeguard the property of the State authority and all property collectively owned by the people, to combat all forms of waste and squander, and to manage the national economy assiduously with the attitude of people who are masters of the destiny of their nation (Art. 27 para. 2).

26.  As regards the duty of the State to protect the environment, this obligation is stipulated in Egypt (Art. 46), Ethiopia (Art. 92) and Nigeria (Art. 20). Tanzanian Constitution does not explicitly mention environmental protection, but prescribes the duty of State authority and all its agencies to conduct activities of the Government in such a way to ensure that the national wealth and heritage are harnessed, preserved and applied for the common good (Art. 9(c)). However, the constitutions of Nigeria (Art. 6, para. 6(c)) and Tanzania (Art. 7, para. 2) expressly state that such duties are not enforceable by court.

(ii)  Jurisprudence

27.  Court decisions of the highest instance concerning the constitutional provisions on environmental protection were not found in Egypt and only one was identified in Ethiopia, although both countries recognize the constitutional right to a healthy environment. According to the Egyptian Constitution the principles of Islamic Sharia are the principal source of legislation in Egypt (Art. 2; constitutions and Sharia provisions). The Supreme Constitutional Court of Egypt (Al-Mahkamah al-Dustūrīyah al-‘Ulyā) has confirmed this in its decision from 1985 stating that all Egyptian legislation must be consistent with the principles of Islamic Sharia (Zartner 141). Environmental law is not in conflict with the Islamic law, since Islam, like many religions, calls for the protection of the natural world (Zartner 151). Zartner notes that the environmental movement that does exist in Egypt rarely uses environmental ethics of Sharia. A secular approach to the environment is not as effective, because of the Islamic nature of the Egyptian legal tradition (Zartner 153).

28.  In Ethiopia, the first ever case of public interest litigation in environmental matters occurred in 2006 at the Federal First Instance Court (Action Professionals Association for the People (APAP) v Environmental Protection Authority). APAP filed an action against the federal Environmental Protection Authority, alleging that the authority should have done something to prevent pollution to the Akaki and Mojo Rivers in the area near Addis Ababa. In 2009 the Supreme Court decided in this case that citizens did not have standing to sue the Environmental Protection Authority and could only proceed against the polluting industry directly (Krueger, Gebru and Asnake 94). Bishaw explains the reasons for underdeveloped public interest environmental litigation in Ethiopia, such as the strict requirement of interest for a person to be a party in a suit, lack of legal and institutional framework to refund the cost of litigation and fee allocation and lack of clearly stipulated environmental standards (Bishaw 90). Additionally, the public demand for development of environmental policy is virtually non-existent in Ethiopia due to the low economic situation of most citizens (Janka 126).

29.  Courts in Nigeria and Tanzania have ruled that the right to a healthy environment is implicitly incorporated in the right to life even without an explicit constitutional provision (Boyd (2012) 156). In the case of Johnah Gbemre v Shell Petroleum Development Company of Nigeria Limited the Federal High Court of Nigeria ordered oil companies to stop natural gas flaring in the Niger Delta and declared that such activities are a violation of the fundamental right to life (including healthy environment) and dignity of human persons guaranteed by the Constitution (Abdulkadir 89). However, prospects for protecting the environment before Nigerian courts are limited, due to strict rules on standing, procedure, and costs (Boyd (2012) 156). Amechi points out that a major limitation for citizens suits in environmental matters in Nigeria is the fact that, to succeed in such a suit, it must be proved that the State’s act, neglect or default in the execution of any public environmental duties adversely affected the health and well-being of the represented persons by infringing or threatening to infringe any of the fundamental human rights (Amechi 386). Thus, the interest of protecting the environment is not sufficient for standing.

30.  The landmark decision of the High Court of Tanzania was in the case of Joseph D Kessy v Dar es Salaam City Council, in which the residents of Tabata, a suburb of Dar es Salaam, sought an injunction to stop the Dar es Salaam City Council from continuing to dump and burn waste in the area. The City Council in turn sought an extension to continue with the operation of garbage dumps. The High Court denied such extension and held that the actions of the City Council endangered the health and lives of the applicants and thus violated the constitutional right to life (Kameri-Mbote and Odote 34). In comparison to Nigeria, courts in Tanzania interpret the rules of standing (locus standi) liberally, generally holding that in environmental cases individuals have standing (Kameri-Mbote and Odote 35).

31.  Boyd highlights that South Africa represents ‘a beacon of hope with its strong constitution and comprehensive environmental laws’ (Boyd (2012) 160). Jurisprudential development of environmental citizen suit in South Africa can serve as a role model for other countries in Africa (for instance Nigeria (Amechi 383–404)). The Constitutional Court’s leading decision concerning environmental protection is the case Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others in which the Court stated:

The role of the courts is especially important in the context of the protection of the environment and giving effect to the principle of sustainable development. The importance of the protection of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights contained in the Bill of Rights; indeed, it is vital to life itself. It must therefore be protected for the benefit of the present and future generations (Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others [2007] ZACC 13 (S Afr), para. 102).

(c)  Latin America

(i)  Law

32.  In Latin America, all constitutions that were analysed guarantee the right to a healthy environment. Mexican Constitution recognizes the right of everyone to a healthy environment and prescribes the duty of the State to guarantee protection for this right (Art. 4, para. 5). Environmental damage and deterioration will generate responsibility for whoever provokes it in terms so provided by the law. This principle of environmental liability as mechanism to make effective the human right to a healthy environment was included in the amendment of the Constitution in 2012 (published in the Diario Oficial de la Federación on 8 February 2012). This amendment additionally included the right to access to, provision of and disinfection of water for personal and domestic consumption in sufficient, healthy, acceptable and attainable form (Art. 4, para. 6).

33.  Boyd noted that, although Art. 4 of the Mexican Constitution was amended in 1999 to recognize the right to a healthy environment, no cases have been brought successfully to a Mexican court on the basis of a violation of this constitutional provision (Boyd (2012) 142). The reason for this is that the Mexican Supreme Court ruled that citizens do not have the right to bring amparo cases involving environmental protection (Boyd (2012) 142). However, a constitutional reform which was passed in 2011 (published in the Diario Oficial de la Federación on 6 June 2011) amended the articles that regulate the amparo action, which is one of the most important instruments for human rights protection in Mexico. On the basis of the constitutional amendment of Art. 107 amparo action may be filed not only to protect individual legal interests, as the original text of the Constitution provided, but also to protect collective legal interests, such as the interest in protecting the environment (Montelongo and Gonzales 215).

34.  The Constitution of Argentina prescribes that all inhabitants are entitled to a healthful and balanced environment fit for human development, and they also have the duty to preserve it. Moreover, as a first priority, environmental damage shall bring about the obligation to repair it according to law (Section 41, para. 1). The Constitution further imposes the duty on authorities to provide for protection of this right (Section 41, para. 2).

35.  The constitutional acknowledgement of the right of any inhabitant to a healthy environment is directly enforceable in Argentina. This means that judicial protection of such right may be granted, even if public authorities have not passed the necessary rules as the Constitution requires in Section 41 (Sabsay and Ryan 7). Any person may file an expeditious and swift action of amparo, whenever no other more appropriate judicial means exists, against any act or omission by public authorities or by private individuals, that presently or imminently harms, restricts, alters or threatens, in an arbitrary or manifestly illegal manner, the rights and guarantees recognized by this Constitution, by a treaty, or by a law. As appropriate, the judge may declare the norm upon which the harmful act or omission is founded unconstitutional (Section 43, para. 1). The Constitution grants legal standing to three different subjects for filing an action for the protection of collective rights (group rights), including the rights that protect the environment: the affected party, the Defender of the People, and the associations that support these ends that are registered as required by a law that shall determine the requirements and forms of their organization (Section 43, para. 2).

36.  The Brazilian Constitution recognizes both a right to an ecologically balanced environment as well as a duty of the Government and the community to defend and preserve the environment for present and future generations (Art. 225). The Constitution imposes several obligations on the Government to assure the effectiveness of this right, such as requiring, as provided by law, a prior environmental impact study, which shall be made public, for installation of works or activities that may cause significant degradation of the environment (Art. 225, para. 1). Furthermore, there is a popular action which covers environmental issues. Any citizen has standing to bring a popular action to annul an act injurious to the public patrimony or to the patrimony of an entity in which the State participates, to administrative morality, to the environment and to historic and cultural patrimony; except in a case of proven bad faith, the plaintiff is exempt from court costs and from the burden of paying the prevailing party’s attorneys’ fees and costs (Art. 5, LXXIII). It is also prescribed that one of the institutional functions of the Public Ministry is to institute civil investigations and public civil actions to protect the environment and other diffuse and collective interests (Art. 129, III).

37.  Colombian Constitution includes many environmental provisions. Chapter III refers to the collective rights and the environment. The Constitution entitles every individual to a healthy environment (Art. 79, para 1), and it also imposes upon the State to protect the diversity and integrity of the environment, to conserve the areas of special ecological importance, and to foster education for the achievement of these ends (Art. 79, para 2). Furthermore, the duty to preserve healthy environment is prescribed as one of the duties of every individual and citizen (Art. 95, para. 3). The State has additional constitutional obligations regarding the environment, such as to provide environmental sanitation services (Art. 49, para. 2), to prevent and control the factors of environmental deterioration, impose legal sanctions, and demand reparation for any damages caused (Art. 80, para. 2), and to protect the integrity of the public space and its assignment to common use (Art. 82, para. 1).

38.  Colombian Constitution provides for several legal actions which can be used for protecting the environment: actions of protection (acción de tutela) for immediate protection of fundamental constitutional rights whenever these are consequently damaged or threatened by the action or omission of any public authority (Art. 86), enforcement actions for requiring compliance with the law (Art. 87), and popular actions for the protection of collective rights and interests (Art. 88). In addition to those actions, the law will establish the other recourses, actions, and the procedures necessary to enable persons to defend themselves through the integrity of the juridical order, and for the protection of their individual, group or collective rights, against the action or omission of the public authorities (Art. 89). Moreover, Colombian Constitution empowers the Procurator General of the Nation, who is the supreme director of the Public Ministry, to protect the collective interests, especially of the environment (Art. 277).

(ii)  Jurisprudence

39.  Argentina is a Latin American leader in judicial enforcement of the constitutional right to live in a healthy environment (Boyd (2012) 129). The following are some of the environmental issues addressed by the case law in Argentina: polychlorinated biphenyl (PBC) contamination, the environmental impacts of the oil and gas industry, wildlife, water pollution, noise pollution, high-voltage power lines, construction of a building in an ecological reserve, and ecosystem restoration (Boyd (2012) 129).

40.  The most significant Argentine case decided by the Supreme Court was Mendoza Beatriz Silva and Others v State of Argentina and Others on damages resulting from environmental pollution of Matanza-Riachuelo river. In July 2008, the Supreme Court issued a decision in which it required the River Basin Authority to complete the programme that pursued three objectives – to improve the quality of life of the river basin inhabitants, restore the river basin’s environmental components (water, air and soil) and prevent the reasonably foreseeable harm (Mendoza Beatriz Silva et al v State of Argentina et al on Damages [2008] M.1569 XL (Arg), para. 17 (I)).

41.  In Brazil, the result of the constitutional environmental provisions (enacted in 1988) is that there has been significant increase in the enforcement of environmental laws by citizens and Public Ministry (Boyd (2012) 132). By 2010, the High Court of Brazil (national court of last resort for infraconstitutional questions of federal law) had decided some three thousand environmentally-focused cases and received high praise from officials in the United Nations Environment Programme (UNEP) and the International Union for Conservation of Nature (IUCN) for transparency and innovation in its environmental law jurisprudence (Bryner 475–476).

42.  The constitutional right to a healthy environment is directly and regularly enforced in Colombian courts, including the Constitutional Court (Boyd (2012) 134, Cepeda-Espinosa 628–631). In the case Alberto Castilla Salazar et al v Colombia the Constitutional Court declared unenforceable certain parts of Law 1753 of 2015 that would have allowed existing permit holders to extract minerals, oil and gas in páramos (high-altitude wetlands). The Constitutional Court concluded that under the provisions of the Constitution

environmental protection prevails over the economic rights acquired by individuals through environmental permits and concession contracts in circumstances in which it is proven that the activity causes harm, or where there is a reason to apply the precautionary principle to avoid damage to non-renewable natural resources and human health (Alberto Castilla Salazar et al v Colombia (9 September 2016) C-035/16 (Colom), para. 128).

(d)  Europe

(i)  Law

43.  Among the analysed European countries, France has the most articles pertaining to the environment. The French Constitution was amended in 2005 by the Charter for the Environment (Loi constitutionnelle n° 2005-205 du 1er mars 2005 relative à la Charte de l’environnement (Fr)). The Charter contains ten articles, enshrining a right to a healthy and balanced environment (Art. 1) and a duty to participate in preserving and enhancing the environment (Art. 2). It establishes the preventive principle (Art. 3), the polluter-pays principle (Art. 4) and the precautionary principle (Art. 5). It states that public policies shall promote sustainable development, and to this end they shall reconcile the protection and enhancement of the environment with economic development and social progress (Art. 6). It grants procedural environmental rights (Art. 7) and prescribes that education and training (Art. 8) and research and innovation (Art. 9) shall contribute to the preservation of environment. Finally, the Charter shall inspire France’s actions at both European and international levels (Art. 10).

44.  The German Constitution does not guarantee right to a healthy environment. There is only an objective obligation of the State, mindful also of its responsibility toward future generations, to protect within the framework of the constitutional order the natural bases of life and animals (protection and status of animals) by legislation and, in accordance with law and justice, by executive and judicial power (Art. 20a). However, to the extent the quality of the environment is conditional for the health or property of an individual the environment enters into the realm of the basic rights to health (Art. 2, para. 2) and property (Art. 14) (Winter).

45.  The Constitution of the Russian Federation recognizes the right of everyone to a favourable environment, reliable information on the state of the environment and compensation for damage caused to his (her) health and property by violations of environmental laws (Art. 42). In the Chapter that prescribes the foundations of the constitutional order, it is stipulated that the land and other natural resources shall be utilized and protected in the Russian Federation as the basis of the life and activity of the peoples living on the territories concerned (Art. 9). Additionally, everyone shall have a duty to preserve nature and the environment (Art. 58).

46.  Turkish Constitution guarantees the right to live in a healthy, balanced environment (Art. 56, para. 1) and imposes the duty to the State and citizens to improve the natural environment, and to prevent environmental pollution (Art. 56, para. 2). It also prescribes the extent of the social and economic duties of the State. The State shall fulfil its duties in the social and economic fields laid down in the Constitution within the capacity of its financial resources, taking into consideration the priorities in line with the objectives of these duties (Art. 65).

(ii)  Jurisprudence

47.  The French Charter for the Environment is a part of bloc de constitutionnalité, allowing the Constitutional Court to review compliance of the draft law with the Charter (Marrani 11). In addition, the Charter has become a direct legal source for the lower courts over which control is performed by the Conseil d’Etat (the highest administrative jurisdiction) and the Court of Cassation (Marrani 21). In doing so, the precautionary principle that is enshrined in the Charter plays an important role. According to the precautionary principle, public authorities when making their decisions must take into account the health risks, even when scientific knowledge is still uncertain. The Charter raised the precautionary principle to a position in a ‘bill of rights’. If the decisions of public authorities are subsequently subjected to judicial review, the uncertainty of health risk can provide the basis for the court’s decision (Marrani 21).

48.  In many judgements of the German Federal Constitutional Court the basic rights to health and property were invoked in an environmental protection context and can provide some constitutional basis for environmental protection (Winter). For instance, in a judgement on the fast breeder reactor (Kalkar I) the Federal Constitutional Court held that the individual has a right to demand health protection against possible damages caused by the nuclear power company (nuclear energy).

49.  In 2013, the European Commission took Germany to the Court of Justice of the European Union (CJEU) over a loophole in its legislation on access to justice in environmental matters. Under European Union legislation, Member States must ensure a legal review procedure for decisions taken in the context of the Environmental Impact Assessment (EIA) Directive and the Industrial Emissions Directive. The Commission was concerned at apparent gaps in German legislation in this area, which may be restricting citizens’ access to justice. In October 2015, the CJEU declared that the Federal Republic of Germany has failed to fulfil its obligations by restricting the right of the public concerned to challenge the legality of administrative decisions in the areas covered by those directives (Case C-137/14 European Commission v Federal Republic of Germany).

50.  The most known case from the Russian constitutional jurisprudence is Zlotnikova T V, Lebedeva K E et al v Russian Federation in which the Supreme Court of the Russian Federation voided a series of government decrees that enabled the transfer of the strictly protected forest land to status that permitted development (Boyd (2012) 198, Houck 357–362).

51.  The case law of the Turkish Constitutional Court is under the influence of the European Court of Human Rights and the European Union’s acquis communautaire. There have been several environmental cases in which the European Court of Human Rights held that there had been violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (for instance, Taşkın and Others v Turkey, Öneryıldız v Turkey, Özel and Others v Turkey). In October 2013, Turkey amended its horizontal legislation on the environment in a way that was not consistent with the requirements of the EIA, by introducing additional exemptions to the EIA. Several large infrastructure projects were excluded from national EIA procedures, such as micro hydropower plants and the third bridge on the Bosphorus. The Constitutional Court annulled two amendments introducing exemptions to investments from environmental legislation which were not in line with the acquis (European Commission 69).

2.  Government Policy

52.  Statements of public policy are a type of constitutional provision that contain directives and guidelines for governmental action or objective state goals (Brandl and Bungert 16). As an example, Nepal’s Constitution lists State’s policies that have to take into account the environmental protection interests (ie Policies regarding agriculture and land reform (Art. 51(e)), Development policy (Art. 51 (f)), Policy regarding the conservation, management and use of natural resources (Art. 51 (g)), Policies regarding the basic needs of citizens (Art. 51 (h)) and Policies regarding tourism (Art. 51 (l)).

53.  Colombia’s Constitution recognizes as a basic objective of the State’s activity the fulfilment of unsatisfied needs of health, education, environment, and potable water, and for this purpose public social expenditures will have priority over any other allocation in the plans and budgets of the Nation and of the territorial entities (Art. 366; public finance). Environmental protection is also mentioned in provisions concerning the cooperation with the bordering territorial entity of the neighbouring country, of the same level (Art. 289) and the allocation of a percentage of real property taxes to the entities in charge of the management and conservation of the environment (Art. 317, para. 2).

54.  In contrast to fundamental rights, statements related to public policy are objective provisions that require attention by the government and cannot be individually invoked (Brandl and Bungert 17–18, Ruhl 73–74).

3.  Environmental Protection, Private Property and Economic Development

55.  Comparative analysis shows that constitutions usually also deal with the interaction between different constitutional values—environmental protection on one side, and private property and economic development on the other. Depending on the jurisdiction, those provisions can be very brief or very detailed.

56.  For instance, Nepal’s Constitution prescribes that the State shall not, except in the public interest, acquire, requisition, or create any encumbrance on the property of any person (Art. 25, para. 2). However, the provisions that relate to the right to property shall not hinder the State in carrying out land reforms, management and regulation by law in order to, inter alia, protect the environment (Art. 25, para. 4). Similarly, the Constitution of the Russian Federation stipulates that citizens and their associations shall have the right to possess land as private property. Possession, utilization and disposal of land and other natural resources shall be exercised by the owners freely provided that this is not detrimental to the environment and does not violate the rights and lawful interests of other people. The conditions and procedure for the use of land shall be determined by federal law (Art. 36, paras 1–3). Therefore, the environment may be one of the legitimate aims for imposing restrictions on the exercise of property rights.

57.  With respect to national development, Nepal’s Constitution stipulates that provisions regarding the right to a healthy environment shall not be deemed to obstruct the adoption of required legal provisions to strike a balance between environment and development for the use of national development works (Art. 30, para 3). This is a new provision from the 2015 Constitution that was not a part of Nepal’s 2007 Interim Constitution (Interim Constitution of the Federal Democratic Republic of Nepal: 15 January 2007 (Nepal)).

58.  In the part of the Brazilian Constitution that concerns general principles of economic activity, environmental protection is included as one of the principles upon which the country’s economic order is founded, specifically allowing for differential treatment of goods and services based on their environmental impact (Art. 170).

59.  Part of the Mexico’s Constitution which relates to national economic development was amended in 2013 (published in Diario Oficial de la Federación on 20 December 2013). Montelongo and Gonzales explain that the main objective of the constitutional reform in 2013 was to open up opportunities for private, national and foreign investment into the energy sector, but environmental considerations were also included (Montelongo and Gonzales 217). In this way, the Constitution was amended to stress the principle of sustainability as the cornerstone of economic development (Montelongo and Gonzales 217). It is stipulated that the enterprises of the social and private sector of the economy shall be subject to the modalities that the public interest dictates, and to the use, for general benefit, of the productive resources, assuring their conservation and the environment (Art. 25, para. 6).

60.  Pursuant to the Colombian Constitution, economic activity and private initiative are free within the limits of the public good. For their exercise, no one may demand prior permits or requirements without authorization of the law (Art. 333, para. 1). However, the law will delimit the scope of economic freedom when the social interest, the environment, and the cultural patrimony of the nation require it (Art. 333, para. 5). Furthermore, the State will intervene, by mandate of the law, in the exploitation of the natural resources, land use, the production, distribution, use, and consumption of goods, and in the public and private services, in order to rationalize the economy with the purpose of achieving in the national and territorial plan, in the framework of fiscal sustainability, the improvement of quality of life of the inhabitants, the equitable distribution of opportunities and the benefits of development and the preservation of a healthy environment (Art. 334, para. 1). Environmental concerns must be addressed in National Plan of Development (Art. 339).

61.  These examples illustrate that sustainability is one of the emerging issues in today’s constitutions (see, Daly and May (2014)). Nearly 20 countries expressly include a constitutional goal of ‘sustainability’ or ‘sustainable development’ (Daly and May (2014)). Our Common Future, also known as the Brundtland Report, defines sustainable development as development that meets the needs of the present without compromising the ability of future generations to meet their own needs (World Commission on Environment and Development). Constitutions from about a dozen countries acknowledge the duty to preserve the environment for the welfare of both present and future generations (see Daly and May (2014)). For example, Argentine Constitution prescribes that all inhabitants are entitled to a healthful and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations (Section 41, para. 1). Pursuant to the Constitution of South Africa, everyone has the right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development (Section 24). Furthermore, each year, the South African Human Rights Commission, as one of the State Institutions that supports constitutional democracy, must require relevant organs of State to provide the Commission with information on the measures that they have taken towards the realization of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment (Section 184, para. 3).

4.  Rights of Nature

62.  Out of all analysed constitutions, Ecuador has the most detailed in terms of provisions related to environmental protection. It is also famous as the first constitution in the world to grant legal rights to nature in 2008 (Constitution of the Republic of Ecuador: 28 September 2008 (Ecuador)). It was followed by Bolivia the year after (Constitution of the Pluri-National State of Bolivia: 25 January 2009 (Bol)).

63.  The guiding principle of the new constitutions of Ecuador and Bolivia is the indigenous concept of sumak kawsay. Sumak kawsay (Buen-vivir), which can be translated as ‘well-being’ or ‘living well’, emerges as an alternative to capitalist development (García Álvarez 228–230, Lalander 154). It is a concept that promotes the harmony between human activities and nature or Pachamama (García Álvarez 228, Lalander 154).

64.  Pachamama, often translated as ‘Mother Nature’, derives from the Andean and Amazonian indigenous cultures. It is related to the concept of biocentrism which puts nature in the central position, as opposed to the traditional anthropocentric view that considers human beings to be the most significant entity in the world (García Álvarez 228–229). The rights of nature afforded by the Constitution of Ecuador are not merely declarative, but are enforceable in a court of law (Daly 63).

65.  According to the Constitution of Ecuador, nature or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes (Art. 71, para. 1). Nature also has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems (Art. 72, para. 1). Persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living (Art. 74).

66.  The Constitution recognizes the right of the population to live in a healthy and ecologically balanced environment that guarantees sustainability and the good way of living (sumak kawsay) (Art. 14 and Art. 66). The State shall promote, in the public and private sectors, the use of environmentally clean technologies and non-polluting and low-impact alternative sources of energy (Art. 15, para. 1). Energy sovereignty shall not be achieved to the detriment of food sovereignty nor shall it affect the right to water (Art. 15, para. 2). The development, production, ownership, marketing, import, transport, storage and use of chemical, biological and nuclear weapons, highly toxic persistent organic pollutants, internationally prohibited agrochemicals, and experimental biological technologies and agents and genetically modified organisms that are harmful to human health or that jeopardize food sovereignty or ecosystems, as well as the introduction of nuclear residues and toxic waste into the country’s territory, are forbidden (Art. 15, para. 3). Furthermore, environmental concerns are included in provision relating to education (Art. 27), health (Art. 32), collective rights of indigenous communes, communities, peoples and nations (Art. 57), responsibilities of Ecuadorians (Art. 83), and establishment of special systems for reasons of environmental conservation (Art. 242). Environmental protection is also taken into account in many provisions relating to the Development Structure (Title VI) and the Good Way of Living System (Title VII).

67.  Finally, the Constitution has a long special chapter on biodiversity and natural resources (Arts 395–415). This chapter is divided into seven sections (Nature and environment; Biodiversity; Natural assets and ecosystems; Natural resources; Soil; Water; Biosphere, urban ecology, and alternative sources of energy). These provisions include the principle that in the event of doubt about the scope of legal provisions for environmental issues, it is the most favourable interpretation of their effective force for the protection of nature that shall prevail (Art. 395). To guarantee the individual and collective right to live in a healthy and ecologically balanced environment, the State pledges, inter alia, to permit any natural person or legal entity, human community or group, to file legal proceedings and resort to judicial and administrative bodies without detriment to their direct interest, to obtain from them effective custody in environmental matters, including the possibility of requesting precautionary measures that would make it possible to end the threat or the environmental damage that is the object of the litigation. The burden of proof regarding the absence of potential or real danger shall lie with the operator of the activity or the defendant (Art. 397).

68.  The first successful case of the rights of nature implementation in Ecuador was in the case RF Wheeler and EG Huddle v Attorney General of the State of Loja (Judgment No. 11121-2011-0010 Loja Provincial Court of Justice (30 March 2011) (Ecuador)) involving damage to a river from road construction. A provincial court ruled in favour of nature affirming the importance and enforceability of the constitutional rights of nature (Daly 64–66, Boyd (2012) 140). In its judgment the court stated that the importance of nature is so evident and indisputable and that it should never be forgotten that the damages caused to nature are generational damages that, due to their magnitude, affect not only the present generation but also future generations (Juicio No: 11121-2011-0010 (30 March 2011) (Ecuador)).

5.  Division of Powers between Different Levels of Government

69.  Lastly, environmental protection is sometimes referred to in sections that concern the division of the powers between different levels of the government and/or prescribing their competences (eg Argentina—Section 41, para 3, Brazil—Art. 23 and 24, India—Art. 234W(a)(ii), Nepal—Schedules 5, 7 and 9). The protection of the environment, pursuant to the Constitution of the Russian Federation, is within the joint jurisdiction of the Russian Federation and its constituent entities (Art. 72, para. 1). In the Constitution of South Africa environment is referred to in Schedule 4 which regulates the functional areas of concurrent national and provincial legislative competence. Furthermore, it is stipulated that in the event of a conflict between national and provincial legislation, national legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if it is necessary for the protection of the environment (Section 146, para. 2 (c) (vi)).

70.  The regulatory division between different levels of government may arise from explicit constitutional text or, in its absence, from constitutional interpretation undertaken by the judiciary (Hudson 202). Hudson uses the term structural environmental constitutionalism, and defines it as ‘the allocation of environmental regulatory authority across levels of government within particular nations’ (Hudson 202). It can create constraints on environmental regulatory efforts at each level of government (Hudson 202). This is particularly relevant in federal systems of government (Hudson 202). One example from the United States of America (Robinson Twp v Pennsylvania, 83 A.3d 901, 976 (Pa. 2013) (Pennsylvania)) and one from Australia (Commonwealth v Tasmania (‘Tasmanian Dam), High Court of Australia 1 July 1983, [1983] HCA 21; (1983) 158 CLR 1 (Austl)) are given below.

6.  Countries without Constitutional Provisions on Environmental Protection

71.  Countries without environmental protection provisions in their constitutions are a minority today. Boyd identified three-quarters of the world’s constitutions (147 out of 193) that include explicit references to environmental rights and/or environmental responsibilities (Boyd (2012) 47). The countries whose constitutions do not contain environmental protection provisions are mainly former British colonies, countries with common-law systems, and small island states (Boyd (2012) 49).

72.  The comparative analysis of 25 countries presented in this contribution showed that the environmental provisions do not exist in the constitutions of Australia, Canada, Israel, Japan, Thailand, the United Kingdom, and the United States of America. However, there are certain differences between these countries in terms of judicial interpretation of the importance of environmental protection by their highest courts.

(a)  Asia

73.  Thailand’s previous constitutions (Constitution of the Kingdom of Thailand (BE 2540): 11 October 1997 (Thai) and Constitution of the Kingdom of Thailand (BE 2550): 24 August 2007 (Thai)) did afford protection to the environment. Under the 2007 Constitution, any project or activity which may seriously affect the quality of the environment, natural resources and biological diversity shall not be permitted, unless its impacts on the quality of the environment and on the health of the people in the communities have been studied and evaluated and consultation with the public and interested parties have been organized. The opinions of an independent organization, consisting of representatives from private environmental and health organizations and from higher education institutions providing studies in the field of environment, natural resources or health, must also be obtained prior to the operation of such project or activity (Section 67, para. 2). On the basis of this constitutional provision, companies needed approval for projects that might be harmful to environment, which entailed an environmental impact assessment (EIA) and a health impact assessment (HIA) including public hearings. In 2009 Thailand’s Supreme Administrative Court halted the bulk of new projects at the world’s eighth-biggest petrochemicals hub because the companies failed to abide by HIA requirements that had been introduced in the 2007 Constitution (Boonlai and Changplayngam). Unger and Siroros noted that effective use of the courts to press policy concerns is relatively new in Thailand and activists have yet to use them more extensively (Unger and Siroros 211).

74.  The current Constitution of Japan, which dates from 1947, contains two articles which could provide a constitutional basis for environmental protection—Art. 13, which guarantees the right to life, liberty, and the pursuit of happiness, and Art. 25, which guarantees the right to maintain the minimum standards for wholesome and cultured living of the people. In theory, these articles could be used to bring a cause of action in cases of environmental harm (Gellers 482). However, the Supreme Court’s restrictive construal of the right to bring an action limits popular access to the courts (Gellers 486). Japanese Supreme Court has developed a very conservative constitutional jurisprudence ever since its establishment (Matsui 1375). Matsui defines this conservative approach as ‘the unwillingness of the Supreme Court to scrutinize and overturn statutes and to restrict other government conduct’ (Matsui 1375). Since the 1960s there have been cases of applying to the courts regarding environmental issues in Japan, although scarcely (Kidder and Miyazawa 605–627, Galanti and Levkowitz 325–327). One of the most important examples is the Supreme Court’s decision from 15 October 2004 in which it upheld the Osaka Court’s ruling holding the national government responsible in the development of Minamata disease (chronic poisoning that occurred in humans who ingested fish and shellfish contaminated by methylmercury (MeHg) discharged in waste water from a chemical plant) (Galanti and Levkowitz 325).

75.  Instead of a formal written constitution, Israel has enacted a series of basic laws that make no mention of environmental protection. Nonetheless, the Supreme Court had the opportunity to address the constitutional status of the right to a satisfactory environment (Adam Teva Va-Din v Israel’s Prime Minister). Non-governmental organization Adam Teva Va-Din challenged the constitutionality of an amendment to the Planning and Building Law, which was designed to accelerate approvals for national infrastructure projects. In the judgment ‘the Court was unwilling to read into the constitutional right to human dignity an independent human right to a satisfactory environment’ (Shany 3). However, it did state that ‘a law which harms environmental conditions in a way which causes harm to the requirements of minimum human subsistence harms human dignity and liberty’ (Shany 3). In addition, the Supreme Court President, Aharon Barak, who wrote for the Court, agreed that ‘extremely dangerous and devastating environmental harms might conflict with the right to life and body integrity (covered by article 2 of Basic Law: Human Dignity)’ (Shany 3). Shany concludes that the Court adopted a cautious approach affording constitutional protection only to the most serious violations of environmental standards (Shany 7).

(b)  North America

76.  Canada, despite pleas from environmentalists, did not include any environmental provisions in the 1982 Constitution (Boyd (2012) 51). Environmental cases only rarely make it to the Supreme Court of Canada (Cour suprême du Canada), but there are six very progressive decisions in which the Court ‘set precedents emphasizing the importance of environmental protection’ (Boyd (2003) 221–222; the six cases are: R v Crown Zellerbach Canada Ltd, Friends of the Oldman River Society v Canada (Minister of Transport), Quebec (Attorney General) v Canada (National Energy Board), Ontario v Canadian Pacific Ltd, R v Hydro-Québec, and 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town)). Boyd additionally points out ‘[t]hat the Supreme Court of Canada’s environmental enlightenment has important consequences, because its decisions set precedents that are binding on all other courts in Canada’ (Boyd (2003) 223).

77.  With respect to decisions of the Supreme Court of the United States in environmental cases, Lazarus explains that

[f]or most of the Court, most of the time, environmental law has become no more than a subspecies of administrative law, raising no special issues or concerns worthy of distinct treatment as a substantive area of law. Environmental protection is merely an incidental context for resolution of a legal question (Lazarus 14).

78.  Lazarus also notes that, although the Court’s decisions in TVA v Hill, City of Chicago v Environmental Defense Fund, and Babbitt v Sweet Home Chapter of Communities for a Great Oregon represent significant (albeit rare) victories for environmental concerns in the Supreme Court, in none of those rulings do those concerns play an explicit positive role, if any, in the Court’s analysis (Lazarus 13).

79.  As opposed to the US Constitution, many states in the United States have provisions addressing the environment in their respective constitutions. Twenty-two US states have constitutional amendments that explicitly cover environmental concerns (May and Romanowicz 306). Most of the environmental provisions were added in the 1960s and 1970s (May and Romanowicz 306). These provisions authorize the legislature to enact legislation protecting the environment, direct the government to adopt a specified policy regarding environmental protection and/or grant rights to a specified level of environmental quality (Ruhl 66). Generally the US courts have been against the idea that ‘constitutionally embedded environmental rights provide an independent, separately enforceable cause of action’ (May and Romanowicz 306). However, in Robinson Township v Pennsylvania a plurality of the Pennsylvania Supreme Court held that a statute pre-empting municipalities’ ability to regulate natural gas fracturing and other oil and gas operations violated the Environmental Rights Amendment of the State Constitution (Hudson 212, see also, Daly and May (2015) 151).

(c)  Europe

80.  The United Kingdom has no written constitution and no constitutional court and therefore no judicial review which is comparable to that in many European countries. The United Kingdom also does not recognize a legally enforceable right of individuals to live in a healthy environment. In April 2011 the European Commission took the UK to the CJEU over the high cost of challenges of decisions on the environment. Under EU law, the possibility of challenging decisions affecting the environment should be fair, equitable, timely and not prohibitively expensive. The Commission was concerned that the potentially high cost of losing legal actions is preventing NGOs and individuals in the UK from bringing cases in the first place. In February 2014 the CJEU found that the UK’s costs rules in environmental litigation are prohibitively expensive and declared that the United Kingdom has failed to fulfil its obligations under the Directive 2003/35/EC (Case C530/11 European Commission v United Kingdom of Great Britain and Northern Ireland).

(d)  Australia

81.  The lack of a Bill of Rights in Australian Constitution has resulted in limited rights protection and accompanying limited case law (McKee 116). Furthermore, the Australian High Court has also been reluctant to expand standing in environmental cases (McKee 116). Generally, there are very few cases, only about seventy a year, that go up to the High Court, and for the most part, it is the Court of Appeal which will decide in environmental cases (Preston 604). The Tasmanian Dam Case (Commonwealth v Tasmania) is the most famous and influential environmental case in Australian constitutional law. The High Court ruled that the Commonwealth had power, under Section 51 (xxix) of the Australian Constitution, to stop a large hydro-electric dam based on Australia’s international obligations under the World Heritage Convention. The judgment had great significance for the extent of Commonwealth powers to make laws on many subjects, including protecting the environment (Murchison 508–520).

E.  Conclusion

82.  The comparative analysis of 25 countries showed that the environmental provisions do not exist in the constitutions of Australia, Canada, Israel, Japan, Thailand, the United Kingdom, and the United States of America. All the remaining constitutions prescribe to a certain extent the duty of the State to protect the environment or they guarantee the right to a healthy environment.

83.  There are major differences between the continents, but also between countries on the same continent. Newly established environmental courts give hope for environmental litigation in China. In Africa, South Africa can serve as a role model for other countries.

84.  The countries whose constitutions do not contain environmental protection provisions are mainly former British colonies, countries with common-law systems, and small island states (Boyd (2012) 49). Differences among them also exist. The Supreme Court of Canada set several precedents emphasizing the importance of environmental protection.

85.  The countries in South America implemented the most innovative ideas of protecting the environment in their constitutions, with Ecuador being the first country to recognize rights of nature in its Constitution. The constitutional right to a healthy environment influenced both legislation and litigation in the majority of these countries (Boyd (2012) 124).

86.  Finally, European countries are under the significant influence of the case law European Court of Human Right and Court of Justice of the European Union whose judgments can contribute to better environmental protection before the domestic courts.

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