Implementation and Enforcement of Environmental Rights
James R May, Erin Daly
- Environmental rights — Universalism
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 and Scope
1. Environmental rights are a primary facet of ‘environmental constitutionalism’ which entails the adoption or amendment of constitutional texts so as to advance rights to environmental entitlement, stewardship, duties, commodities, information, and process (May and Daly (2015)). Environmental constitutionalism represents a turn toward rights-based approaches to environmental protection. Boyd reports that as of 2012, the constitutions of 147 of the 193 members of the United Nations address environmental matters in some form, a number that continues to advance with nearly every constitutional reformation or revolution (Boyd (2012) 65). Because of the global proliferation of constitutional environmental rights over the last 40 years, this entry surveys the landscape and provides examples from jurisdictions worldwide and from a full range of legal traditions and constitutional cultures; we focus on a few key decisions from different parts of the world to illustrate the breadth and depth of constitutional environmental rights.
2. Environmental constitutionalism is ubiquitous, potentially implicating most matters affecting the human condition, including rights to life, dignity, health, food, housing, education, work, socioeconomic status, culture, non-discrimination, peace, war, children’s health, and general well-being—as well as the quality of the earth’s water, soil, and air. The grand scope of environmental constitutionalism suggests a complex and multi-layered constitutional value. It can bridge some of the most entrenched divides in constitutional and international law. By protecting political minorities, environmental rights serve basic civil rights in the same vein as and often implicating rights to life, free speech, religion, due process, and equal protection and they also advance social norms much like other socioeconomic rights, including rights to education, food, and shelter. Sometimes, environmental rights are inextricably intertwined with other rights such as dignity rights, offering symbiotic opportunities to advance complementary norms.
3. Constitutional environmental rights also integrate human and environmental claims. A right to water, to clean air, to a balanced ecosystem, or to a harmonious environment benefits both the natural environment itself as well as the people who live within it. This blending recognizes the multiple and overlapping values of a healthy environment, including that people are more likely to thrive—to have better health and longer and happier lives, to fulfil their potential for human dignity and well-being—if they live in a healthy and balanced environment that is sustainable for future generations (see also right to health).
4. Though their roots are in international environmental law, environmental rights are now firmly a part of the domestic constitutional landscape, with its rights-based framework. One principal difference between environmental protection at the international and national levels is that the latter permits elucidation according to a nation’s particular values. Environmental constitutionalism serves a normative function that is superior to international law, as well as to other domestic legal approaches because ‘as supreme law of the land, constitutional provisions promote a model character for the citizenry to follow, and they influence and guide public discourse and behaviour’ (Brandl and Bungert (1992) 4–5). This is true by the very fact of constitutional entrenchment, and is important even where constitutional rights are not easily enforceable. To the extent that a constitution reflects national values, it is of some utility for a constitution to provide substantive rights, even if the country cannot, perhaps yet, make them enforceable. The constitutionalization even of under-enforced environmental rights may be valuable in developing social and adjudicatory norms.
5. But in many constitutional systems, environmental rights provisions have proven to be enforceable in the courts of the nation including constitutional courts and tribunals. This relative amenability to judicial enforcement, and the possibility of securing compliance with court orders constitutes a second significant advantage of environmental constitutionalism in comparison with protection of the environment at the international and regional levels. Domestic codification and regulation also, of course, entails adumbration and elaboration through adjudication, although such common law development generally does not enjoy the level of respect and impact as interpretation and application by supreme or constitutional courts.
6. Environmental constitutionalism derives from the environmental movement of the early 1970s, having crystalized with 1972’s Stockholm Conference, ‘widely viewed as the high point of international accord that human beings have a fundamental human right to a quality environment’ (May and Daly (2015)). Within a few years, environmental rights provisions began to make their way into domestic constitutions as the ethos of environmentalism and constitutionalism converged (May (2006)).
7. A country’s propensity toward constitutional acceptance of social, economic, and cultural rights (‘SECs’) may be the most significant predictor of potential acceptance of environmental rights. SECs are designed to protect human well-being and quality of life, aiming to foster minimum standards of or access to economic and social well-being. These can include rights to work, to form or join a trade union, to strike, to social security, to child protection, to food and housing, to healthcare, and to education. Nations that have constitutionalized concern with quality of life matters are more likely to include environmental provisions in this array. This is even more likely to be true where constitutions have constitutionalized collective or solidarity rights (May and Daly (2015)).
8. Timing matters, too. Most environmental constitutionalism has occurred in the last 40 years, as environmental consciousness has increased globally and particularly more recently as the threat of climate change has become more pressing. Most countries adopt environmental constitutionalism as part of a major constitutional reform, particularly one that includes social and economic rights, and this has occurred in waves, relating to post-colonialism (much of which occurred prior to the environmental revolution and largely in countries that followed the minimalist constitutionalism of the Commonwealth countries) and then to post-communism, where social and economic rights are far more common (May (2006)). On the other hand, Gellers concludes that a nation's tendency to consider the adoption of social and economic rights, including environmental rights, may have much more to do with external normative pressures than an internal economic and social rights agenda (Gellers (2012)).
9. Several other factors may be somewhat predictive of whether a country is likely to have constitutionalized environmental rights. One is isomorphism, that is, the tendency to copy or converge around certain constitutional features of an adjacent country. Indeed, some countries that have been most active in this arena share borders or regional affinities, including India, Pakistan and Nepal, and several nations in the former Soviet Bloc and others in Latin America. Yet Gellers concludes that a country’s decision to embed environmental constitutionalism appears to have little if anything to do with developments in nearby nations (Gellers (2011)).
10. Situational similarities may be another predictor, say, democratizing following a period of conflict against autocratic rule. For example, Egypt and Tunisia (draft) both chose to instantiate environmental rights constitutionally following transition toward democratic rule in what came to be known as the ‘Arab Spring’ (May and Daly (2015)). Many conflict-prone countries in both Africa and the former Soviet Bloc have opted to instantiate environmental rights constitutionally, including most recently Zimbabwe (ibid.).
11. Presently, constitutional environmental rights provisions and environmental constitutionalism more generally span the globe and can be found in every type of legal system. In the constitutional reform movement of the 1980s, environmental rights figured prominently in the constitutions of Latin America, and have been expanding in those constitutions since then. In the 1990s, they were adopted in constitutions of the former Soviet Bloc countries; they can be found in the constitutions of Europe, the Middle East, and throughout Asia. Indeed, since the turn of the millennium, about two dozen countries have adopted new or newly amended substantive environmental rights provisions in their constitutions, including Armenia, Bolivia, Ecuador, Dominican Republic, France, Guinea, Hungary, Jamaica, Kenya, Maldives, Madagascar, Montenegro, Myanmar, Nepal, Rwanda, Serbia, South Sudan, Sudan, and Turkmenistan (ibid. 67–70, app. A).
12. Environmental constitutionalism is also becoming increasingly common at the subnational level, most notably in Brazil, Germany, and the United States (ibid. chapter 8). Most people on earth now have at their disposal constitutional text designed to advance particular environmental outcomes or processes, engendering, augmenting and supplementing other legal means for addressing environmental matters, including international law, domestic statutory law, and common law (ibid. 55–84, apps B-I).
C. Comparative Description
1. Constitutional Provisions
13. Who can enforce environmental rights? Most constitutional traditions have rules about who can initiate litigation, although they vary widely from country to country. Some systems limit who can challenge government action to certain members of the government or to an ombudsman, while others encourage anyone to seek judicial protection. These rules can have a dramatic effect on a nation’s legal culture: where standing rules are broad and inviting, more people are encouraged to bring more cases to enforce more laws not only for their own private benefit but for the public good. India, along with some of its neighbours, has long accepted cases by any citizen in the form of public interest litigation. See eg Farooque v Government of Bangladesh (1996) (Bangl) (Flood Action Plan Case):
The High Court Division will grant locus standi to a person who agitates a question affecting a constitutional issue of grave importance, posing a threat to his fundamental rights which pervade and extend to the entire territory of Bangladesh. If a fundamental right is involved, the impugned matter need not affect a purely personal right of the applicant touching him alone. It is enough if he shares that right in common with others.
14. In 2017, a high court in India extended the right to sue for the Ganges:
15. Some Latin American countries—including Argentina, Ecuador and Bolivia—have explicitly extended standing to sue on behalf of nature itself. In some countries this is done through recognition of tutela and amparo actions that apply to all constitutional litigation (see eg Constitution of the Republic of Colombia: 5 July 1991, Art. 86 (Colom): ‘Every person has the right to file a writ of protection (acción de tutela) before a judge, at any time or place, through a preferential and summary proceeding, for himself/herself or by whomever acts in his/her name for the immediate protection of his/her fundamental constitutional rights when that person fears the latter may be violated by the action or omission of any public authority’) while in other countries, expanded standing is aimed at facilitating environmental actions (Constitution of the Argentine Nation: 23 August 1994, Art. 43 (Arg): ‘Any person shall file a prompt and summary proceeding (acción expedita y rápida de amparo) regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality [which summary proceedings apply to] rights protecting the environment’ among other things.).
16. The constitution of Argentina and the Constitution of the Republic of Ecuador: 28 September 2008 (Ecuador), for instance, invite any citizen to vindicate such rights, the latter even allowing claims on behalf of nature itself. The Constitution of the Republic of South Africa: 11 October 1996 (S Afr) and the Constitution of the Republic of the Philippines: 15 October 1986 (Phil), too, adopt an open attitude toward standing, which is buttressed by legislation that reinforces the right of any person to assert his or her own interest, the interest of another, or the public interest, or the environment (see eg Supreme Court, Republic of the Philippines, AM No 09-6-8-SC: 13 April 2010 Rules of Procedure for Environmental Cases).
17. In the United States, standing to sue at least in federal courts is much more limited to those who can prove at the outset of the litigation that they have suffered a particularized and concrete injury that was caused by the defendant and that would be redressable by a favourable judicial order (see Lujan v Defenders of Wildlife (1992) (US)).
(a) Constitutional Texts
18. At least 76 countries recognize a substantive constitutional right to a ‘quality’, ‘adequate’, ‘clean’, ‘healthy’, ‘productive’, ‘harmonious’, or ‘sustainable’ environment. In addition, more than 120 of the constitutions in force protect or conserve natural resources in some form, including water (63), land (62), fauna (59), minerals and mining (45), flora (42), biodiversity or ecosystem services (35), soil/subsoil (34), air (28), nature (27), energy (22), and other (17) (ibid.). Greece, for instance, specifically protects forests, (Constitution of the Hellenic Republic: 7 June 1975, Part 2, Section 1, Art. 24 (Greece)), while Haiti protects its flora and fauna (Constitution of the Republic of Haiti: 29 March 1987, Chapter II, Art. 257 (Haiti)). Other nations promote sustainable development (South African Constitution, Art. 24) or seek to protect against climate change (Constitution of the Dominican Republic: 28 November 1966, Art. 194 (Dom Rep)). Ecuador famously—and so far uniquely—protects the rights of nature itself (Constitution of Ecuador, Art. 71).
19. Language from the Constitution of the French Republic: 28 September 1958 (Fr) (‘[e]veryone has the right to live in a balanced and health-friendly environment’), the Constitution of the Federal Democratic Republic of Nepal: 20 September 2015 (2072) (Nepal) (‘Every person shall have the right to live in clean environment’), the Constitution of the Republic of South Sudan: 9 July 2011 (‘Every person or community shall have the right to a clean and healthy environment’) and the Constitution of the Bolivarian Republic of Venezuela: 15 December 1999 (Venez) (‘Every person has a right to individually and collectively enjoy a life and a safe, healthy and ecologically balanced environment’) provide just a few examples of how countries have incorporated environmental rights constitutionally. Countries in all parts of the world have incorporated environmental rights in their national constitutions.
20. Some constitutional provisions take a long view, recognizing the interests of future generations or invoking the public trust doctrine or sustainability. These include the Constitution of Bolivia (Art. 33: ‘Everyone has the right to a healthy, protected, and balanced environment. The exercise of this right must be granted to individuals and collectives of present and future generations, as well as to other living things, so they may develop in a normal and permanent way’); the Constitution of the Grand Duchy of Luxembourg: 17 October 1868 (Lux) (Art. 11.2: ‘The State guarantees the protection of the human and natural environment, working to establish a sustainable balance between nature conservation, especially its capacity for renewal, and satisfying the needs of present and future generations ... It promotes the protection and welfare of animals’); and the Constitution of the Republic of Namibia: 21 March 1990 (Namib) (Chapter 11, Art. 95(l): ‘The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at ... maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilization of living natural resources on a sustainable basis for the benefit of all Namibians, both present and future’). Others strive to ameliorate the adverse environmental effects of specific activities, such as energy extractive industries, carbon outputs, and the dumping of chemicals or radioactive materials including the constitution of the Dominican Republic (Art. 67(3): ‘The State shall promote, in the public and private sectors, the use of alternative and clean [no contaminants] technologies and energy’) and the Constitution of the Republic of Yemen: 28 September 1994 (Yemen) (Art. 8: ‘All types of natural resources and sources of energy, whether above ground, underground, in territorial waters, on the continental shelf or the exclusive economic zone are owned by the State, which assure their exploitation for the common good of the people’).
21. Some constitutions allow the government to elevate environmental values over others, such as the right to property or freedom of movement or freedom of enterprise, such as Madagascar (Constitution of the Republic of Madagascar: 8 April 1998, Title II, Sub-title II, Art. 37 (Madag): ‘The State guarantees the freedom of enterprise within the limits of respect for the general interest, the public order and the environment’) and Australia (Commonwealth of Australia Constitution Act: 9 July 1900, Chapter 4, Section 100 (Austl): ‘The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters or rivers for conservation or irrigation’). Many impose reciprocal duties on individuals and the government to protect the environment (see eg Constitution of the Republic of Cape Verde: 25 September 1992, Art. 72(1) (Cape Verde): ‘Everyone shall have the right to a healthy, ecologically balanced environment, and the duty to defend and conserve it’).
22. More still promote environmental policies that are intended to influence governmental decision-making but are generally not judicially enforceable (eg Constitution of the Democratic Republic of Timor-Leste: 20 May 2002, Section 61(2) (Timor-Leste): ‘The State recognizes the need to preserve and rationalize natural resources’ and Constitution of the Arab Republic of Egypt: 18 January 2014, Art. 59 (Egypt): ‘Safeguarding the environment is a national duty, and the law shall regulate the right to a good environment and the measures necessary to safeguard it’). The constitutions of about three-dozen nations establish special procedural rights in environmental matters (see eg Constitution of the Republic of Montenegro: 19 October 2007, Art. 23 (Montenegro): ‘Everyone shall have the right to a sound environment. Everyone shall have the right to receive timely and full information about the status of the environment, to influence decision-making regarding the issues of importance for the environment, and to legal protection of these rights’). Such rights to information, participation, and access to justice in environmental matters are a modern constitutional innovation largely owing to the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention; right to access to environmental information). These sorts of provisions appear to serve both human and environmental interests, and can advance democratic values generally insofar as they expand the reach of public participation in public policy making. Most of these constitutional procedural environmental rights provisions seem to be designed to help implement environmental rights. Boyd concludes that with one exception every country to guarantee procedural environmental rights constitutionally contains a companion provision that guarantees a substantive right to a quality environment (Boyd 74). This suggests that procedural environmental rights are usually designed to complement substantive environmental rights. Brazil’s constitution, for instance, protects the substantive right ‘to an ecologically balanced environment’ but also imposes obligations on the government to ‘ensure the effectiveness of this right’, including the obligation to demand and make public environmental impact studies (Constitution of the Federative Republic of Brazil: 5 October 1988, Title VIII, Chapter VI, Art. 225 (Braz)).Where constitutions do not explicitly establish environmental rights, courts in about a dozen countries have found that attendant rights to life, dignity, equality, or health also embed rights to a quality environment (eg Bulankulama and six Others v Ministry of Industrial Development and seven Others (2000) (Sri Lanka); Petition of Clarissa Vega de Ferrera et al re General Mining Law (2007) (Hond)).
23. In most constitutional systems, environmental rights are not absolute and may be limited or overcome in at least three situations, all of which pertain equally to the enforcement of other constitutional rights. First, the right may be limited if it conflicts with another right, such as the right to life or a non-derogable right like the right to dignity. Second, the environmental right, like other rights, is almost always subject to a limitations clause or a proportionality test. The South African Constitution, for instance, states that: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors ...’ (South African Constitution, Sec. 36). Third, courts may decline to vindicate environmental interests if they are deemed to be not an individual right, but an obligation on the State (individual rights). Thus, a court may order the government to develop a plan for environmental protection, but will not find that a government or private actor has violated a particular plaintiff’s right to a healthy environment.
(c) Interdependence with Other Rights
24. Although constitutional environmental rights are often free-standing in constitutional texts, they are frequently interpreted in light of other rights. Environmental rights can be linked to civil and political rights including rights to political participation. This has been a particularly prominent feature of Latin American law which recognizes indigenous claims to consultation and participation in environmental policy-making (rights of indigenous communities) both jurisprudentially (see eg Decision SU.383/03 (2003) Colombia Constitutional Court (Colom)) and legislatively (see eg Ley 29785 del Derecho a la Consulta Previa a los Pueblos Indígenas u Originiarios Reconocido en el Convenio 169 de la Organización Internacional delTrabajo (Peru)). Environmental rights are also often linked to substantive rights including the right to life and the right to dignity (see eg Gbemre v Shell Petroleum Development Company Nigeria Limited and Others (2005) (Nigeria) finding that defendants' continued gas flaring ‘in the course of their oil exploration and production activities in the applicants’ community is a gross violation of their fundamental right to life (including healthy environment) and dignity of human person as enshrined in the Constitution’). In some cases, they are even linked to other protections such as the constitutional right against inhuman and degrading treatment (see eg Mosetlhanyane v Attorney General (2011) (Bots)). In some circumstances, courts have allied environmental interests with more specific constitutional provisions such as where water is especially protected (see eg Mendoza Beatriz Silvia y Otros C/ ESTADO NACIONAL y Otros S/ Daños y Perjuicios (daños derivados de la contaminación ambiental del Río Matanza-Riachuelo) (2008) (Arg); see also Abdallah Abu Massad and others v Water Commissioner and Israel Lands Administration (2011) (Isr)).
2. Implementation and Enforcement
25. While the argument could be made that constitutionalizing environmental values or interests could dilute the effectiveness of other constitutional rights, there is no evidence that the amplification of constitutional environmental rights has resulted in a reduction in enforcement of other rights; indeed, this is undeniably a period of burgeoning enumeration and enforcement of both human and environmental rights.
26. Nonetheless, there is no guarantee that a right recognized in a constitution will be judicially enforced. Some provisions in some constitutions get tested immediately while others lay fallow for years or generations. The problem is certainly exacerbated in thin constitutional cultures or those without effective tools for judicial review. Environmental rights are subject to this risk as well as any other. But eventually, some environmental rights provisions have gained the attention of potential plaintiffs, lawyers, and judges.
27. There have been, all over the world, some notable victories for environmental rights. The Supreme Court of the Philippines galvanized the field in the celebrated case known as Minors Oposa. Attorney, writer, and law professor Tony Oposa filed a lawsuit on behalf of his children, his friends’ children, and generations to come to ‘prevent the misappropriation or impairment’ of Philippine rainforests and ‘arrest the unabated haemorrhage of the country’s vital life-support systems and continued rape of Mother Earth’ (Oposa v Factoran (1993) (Phil)). The plaintiffs claimed that the government’s continued issuance of ‘timber licensing agreements’ violated the country’s recently minted constitutional directive that, inter alia, ‘[t]he State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature’ (ibid. 280–281). In reversing the trial court, the Supreme Court upheld Oposa’s constitutional claim, and also found that the plaintiffs had standing to represent themselves, their children, and posterity (ibid. 185). In a sweeping pronouncement, the Court determined that rights to a quality environment are enforceable even if they are not constitutionally expressed, because they ‘exist from the inception of humankind’ (ibid. 187):
As a matter of fact, these basic rights need not even be written in the constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as State policies by the constitution itself, thereby highlighting their continuing importance and imposing upon the State a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come—generations which stand to inherit nothing but parched earth incapable of sustaining life.
28. Just a few years after the Philippine decision, the Supreme Court of Chile issued what may be that country's most significant constitutional environmental rights decision. The Tierra del Fuego region of Chile contains some of the world’s last remaining continuous stands of cold-climate virgin forests, known as ‘dwarf trees’, stands that were observed and written about by Magellan and Darwin. The United States-based Trillium Corporation saw the trees as cropland for the global paper market, and asked the Chilean government for permission to log 270,000 hectares of it for $350 million in what it called the Rio Condor Project. The Chilean government saw economic opportunity and was persuaded by the company’s stated intentions of sustainable silvicultural practices; it approved the application.
29. Chilean citizens then sued, claiming that the Rio Condor Project violated their constitutional ‘right to live in an environment free from contamination’ (‘Trillium Case’ (1997) (Chile)). The Supreme Court of Chile agreed. In what is known as the Trillium decision, the Court enjoined the project, holding that the Chilean constitution required ‘the maintenance of the original conditions of natural resources’, and that governmental agencies were required to keep ‘human intervention to a minimum’ (ibid. para. 12). The Court held that the constitutional right to a healthy environment is owed to all citizens, even though none of them had personally suffered any injury. In the aftermath of Trillium, Chile instituted an environmental review procedure to hear constitutional claims—although some believe that this has all but relegated the country’s constitutional environmental rights to administrative purgatory. Nonetheless, Oliver Houck writes, ‘the decision produced one undeniable effect. An intact, virgin, and very unusual forest park at the very bottom of the world’ (Houck (2008) 314).
30. Another, more recent example of robust enforcement of constitutional environmental rights comes from the Commonwealth of Pennsylvania in the United States, although it took 40 years from the time of the provision's adoption until the Supreme Court grasped its value. In Robinson Township et al v Commonwealth of Pennsylvania (2013) (US), the Supreme Court of Pennsylvania invalidated a state law that would have allowed the virtually unregulated exploitation of the state's natural gas resources with little regard for the environment or the people whose lives would be adversely affected. In so doing, the court provided a roadmap for how courts can manoeuvre through the factual, legal, and political complexities of environmental constitutionalism. The linchpin of the court’s plurality opinion was Pennsylvania’s own ‘Environmental Rights Amendment’, which appears in the state constitution’s bill of rights provision, and provides (Constitution of the Commonwealth of Pennsylvania: 23 April 1968, Art. I, sec. 27):
Natural Resources and the Public Estate: 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.
31. Robinson Township et al v Commonwealth of Pennsylvania (2013) (US) implicates almost all of the major issues that courts face when engaging constitutional environmental provisions. First, the court had to decide that plaintiffs had standing and that the lawsuit was not barred because of separation of powers concerns, nor for lack of implementing legislation. Looking at the language of the provision itself, it attended to the plain meaning of the constitutional text, giving the terms their due individually and holistically. Finally, it assessed the obligations that section 27 imposes on the state government and its subdivisions.
32. The court found that the textual command to preserve the environment as a public trust ‘necessarily emphasizes the importance of each value separately, but also implicates a holistic analytical approach’ (Robinson Township et al v Commonwealth of Pennsylvania (2013) (US) 647). This, the court reasoned, reinforces the ‘conservation imperative: future generations are among the beneficiaries entitled to equal access and distribution of the resources, thus, the trustee cannot be short-sighted’ (ibid. 659). Thus, the court read into all of these obligations the necessity to protect both present and future generations—in part because of the explicit reference to future generations in the provision’s text, in part because of the nature of the trust obligations that typically are owed to future generations, and in part because of the ‘conservation imperative’ that the spirit of section 27, even more than the letter, emblematizes (ibid. 658).
33. But there was more to the Court's opinion than a plain reading of the constitutional text. Its interpretation inferred several important corollaries that inhere in environmental constitutionalism, including the commitment to sustainability and the concomitant need for balancing. It also recognized the need for procedural rights to secure substantive environmental rights. Perhaps most strikingly, it emphasized throughout its opinion, the importance of situating the constitutional right in the local environment:
By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivalling the environmental effects of coal extraction,
34. the Court said, referring to the region’s history as a major producer of coal, whose environmental effects are still being felt today (ibid. 687).
35. The opinion demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. The Robinson Township et al v Commonwealth of Pennsylvania (2013) (US) plurality recognized that given the powerful interests at play, there would be no feasible political recourse for the plaintiffs (either individual or municipal) and that both the plaintiffs and the environment would thereby suffer irreparable harm. Given the explicit command by the people of Pennsylvania in their constitution to protect the environment, the Court recognized that judicial intervention was legally justified and environmentally necessary.
36. While there have been judicial victories in all parts of the world, the courts of Latin America have been particularly vigilant in vindicating constitutional environmental rights, with a cascade of decisions in Argentina (Mendoza Beatriz Silvia y Otros C/ ESTADO NACIONAL y Otros S/ Daños y Perjuicios (daños derivados de la contaminación ambiental del Río Matanza-Riachuelo) (2008) (Arg) and Expediente sobre permisos de mineras a cielo abierto en los sitos de la UNESCO (2010) (Arg)), El Salvador (Domitila Rosario Piche Osorio, conocida por Domitila Rosario Piche Estrada, en contra del Ministro y de la Viceministra del Medio Ambiente y Recursos Naturales (2010) (El Sal)), Costa Rica (Padilla Gutierrez, Clara Emilia y otros, todos en su condición de vecinos de lugares aledaños al Parque Nacional Marino Las Baulas de Guanacaste c/ SETENA, Secretaria Técnica Nacional Ambiental (2008) (Costa Rica)), and (after a 20-year lapse) Chile (Consejo de Defensa del Estado c/ García Brocal Julio y otro (2013) (Chile)). Notably, the Ecuadorian Constitutional Tribunal has recently taken a strong stand in the implementation of that nation's constitutional protection for the rights of nature, in holding that a lower court's failure to acknowledge the fundamental paradigm shift manifested by the recognition of nature's right to be the subject of its own rights and not merely the object of human rights constituted such an extreme degree of unreasonableness as to amount to a violation of due process (La Camaronera en la Reserva Ecológica (Marmeza) (2015) (Ecuador)).
37. The rights of nature have also been recognized in India where the Rivers Ganga and Yamuna (Salim v. State of Uttarakhand and Others (2015) (India); Miglani v. State of Uttarakhand and Others (2017) (India)) were recognized as juridical persons and legislatively in Bolivia (T-622 de 2016 Referencia: Expediente T-5.016.242 (2016) (Colom), esp. discussion at pp. 134-140) and, with respect to one river in particular, in New Zealand (Te Urewera Act 2014), as well as in many cities in the United States, including Pittsburgh, Pennsylania. The geographic spread is noteworthy because it indicates that the notion of protecting nature for its own sake, without limitation as to whether it is useful or pertinent for people, transcends culture and tradition. Indeed, while some of the impetus to protect nature because of its particularly strong significance for some indigenous groups, it has also been recognized for independent reasons.
38. The greatest global environmental challenge is of course climate change, and courts are beginning to be responsive to this emerging threat. In a case against ten federal ministries and a further eleven provincial ministries, the Lahore High Court in Pakistan in 2015 found that ‘the delay and lethargy of the State in implementing the Framework offends the fundamental rights of the citizens which need to be safeguarded’ including the rights to ‘the right to a healthy and clean environment and right to human dignity (Art. 14) read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine’. The Court therefore ordered the establishment of a Climate Change Commission that would ‘comprise (a) representatives of the key ministries/departments (b) NGOs (c) Technical Experts etc.’. The court maintained continuing jurisdiction to ensure follow-through (Ashgar Leghari v Federation of Pakistan (2015) (Pak)).
39. In the United States, a series of cases has been filed in courts throughout the nation in a coordinated strategy to hold federal and state government officials accountable for acts and omissions that permitted or contributed to the release of increased greenhouse gases by industrial actors. While most of these cases have been dismissed at the jurisdictional stage, one court has permitted a case to go forward on the claim that increased water temperatures may violate the substantive due process rights of the youth who brought the claims (Juliana v United States (2016) (US)).
40. One notable success on the merits is Urgenda Foundation v The State of the Netherlands (2015) (Neth), in which the Dutch government was ordered, pursuant to Art. 21 of the Dutch Constitution (‘It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment’) among other legal authorities to ‘take more action to reduce the greenhouse gas emissions in the Netherlands’.
D. Comparative Assessment.
41. Despite landmark decisions such as these, enforcement of constitutional environmental rights still lags far behind their adoption in constitutional texts, and even countries that have seen landmark constitutional environmental rights decisions have not necessarily seen them enforced by executive action or followed by subsequent judicial decisions. This problem characterizes all of constitutionalism and there is no evidence that environmental rights are more or less likely to be vindicated than any other types of rights.
42. Even finding appropriate litigants can be challenging—not only because so many constitutional systems impose significant barriers to entry, but because the thrust of environmental rights tend to be diffuse across a population: rights such as those relating to climate change or air pollution affect the population generally, but may not affect any particular individual or group strongly and distinctively enough to allow standing or to justify the effort and expense of litigation. Some national constitutions, particularly in Latin America, have taken extraordinary steps to expand standing to include the public as a whole. Indeed, environmental claims are starting to be made on behalf of interests that have no possibility of protecting themselves politically, including children, future generations, and nature itself.
43. Even when the affected parties have been identified, other deterrents to constitutional vindication of environmental rights include the cost of litigation (including expert costs) and the likelihood of encountering well-resourced adversaries who are heavily invested in economic development, resource extraction, and other activities that the constitutional environmental rights are meant to protect against.
44. Once in court, another factor affecting the implementation of a constitutionally-incorporated environmental rights provision is whether it is self-executing. Self-executing provisions may be enforced without the need for interceding legislative action (Bruckerhoff 627–628.). Indeed, one significant purpose of entrenching a right is to ensure that the value remains protected even if (and especially when) a political majority does not support it. Self-execution can be exhibited either syntactically or structurally.
45. Some nations place substantive environmental rights among other civil and political rights by designating them as an express ‘Right’, or as a ‘Major’, ‘Human’, ‘Fundamental’, ‘Basic’, or ‘Guaranteed’ right. Structural placement makes it more likely that such provisions are self-executing and enforceable (Hayward 93–128). Indeed, the Pennsylvania Supreme Court's opinion in Robinson Township et al v Commonwealth of Pennsylvania (2013) (US) confirmed that the environmental rights protected in that state’s constitution are ‘on par with’ other constitutional rights because they all reside in the Bill of Rights.
46. Other provisions are written in such a way as to leave little doubt that they are self-executing, enforceable, and subject to redress without the need for intervening state action. Notably, constitutions from the former Soviet Bloc make it clear that affected parties can recover compensation for violations of constitutional environmental rights, including Chechnya (‘Everyone has the right to favourable environmental surroundings ... and to compensation for damage caused to his/her health or property through ecological violations of the law’, Constitution of the Chechen Republic: May 23, 2003, Section I, Chapter 2, Art. 39) and the Russian Federation (‘Everyone shall have the right to a favourable environment ... and to compensation for the damage caused to his or her health or property by ecological violations’, Constitution of the Russian Federation: December 12, 1993 (as Amended to July 21, 2014), Chapter 2, Art. 42).
47. Other texts make it clear that environmental rights provisions are not self-executing, such as the constitutions of Costa Rica (Constitution of the Republic of Costa Rica: 7 November 1949, Title V (‘Social Rights and Guarantees’), Art. 50 (Costa Rica) (‘Every person has the right to a healthy and ecologically balanced environment ...’)) and Portugal (Constitution of the Portuguese Republic: 2 April 1976, Part 1 (‘Fundamental Rights and Duties’), Title III (‘Economic, Social, and Cultural Rights and Duties’), chapter II (‘Social Rights and Duties’), Art. 66(1) (Port) (‘All have the right to a healthy and ecologically balanced human environment and the duty to defend it’)).
48. Moreover, placing substantive environmental rights within preambles, among general provisions, or in statements of general policy may suggest something other than a judicially enforceable right. For instance, environmental rights appear in preambles in the constitutions of Algeria (Constitution of the People’s Democratic Republic of Algeria: 28 November 1996, Title I, chapter V, Art. 66 (Alg) (‘Every citizen has the duty to protect public property and the interests of the national community and to respect the property of others’)) and Norway (Constitution of the Kingdom of Norway: 17 May 1814, Part E (‘General Provisions’), Art. 110 b (Nor) (‘Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved’)). Even though such provisions are usually not justiciable, they can still wield tremendous influence over legislative, policy, and judicial interpretation (Hill et al 382). For instance, while Cameroon’s constitution recognizes environmental rights in its Preamble, it also states that the provision is ‘part and parcel’ of the remainder of the constitution (Constitution of the Republic of Cameroon: 2 June 1972, Preamble (‘[E]very person shall have a right to a healthy environment’) and Art. 65 (Cameroon)).
49. Once the provision is found to be judicially enforceable, the real work of interpretation and application begins. Environmental rights can be particularly challenging insofar as the language defies easy definition. For some, the definition of constitutional environmental rights is ‘too uncertain a concept to be of normative value’ (Boyle (2010) 12). To be sure, environmental rights can induce syntactical gymnastics—though this did not stop the Philippine Supreme Court from giving meaning to one of the more unbounded provisions: the constitutional mandate to ‘advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature’ (Oposa v Factoran (1993) (Phil) (n 36) 280–281; Constitution Art. 2, ss 15–16 (Phil)).
50. Despite the significant impediments, environmental rights continue to advance. And the more environmental rights-based approaches we see at the constitutional level, the more often claims are made, engendering more environmental jurisprudence which, in turn, inspires and invites even more efforts at enforcement and vindication of constitutional environmental rights.
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