Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea. Today it is widely recognized in international law and endorsed by an overwhelming proportion of countries. Even more importantly, despite their recent vintage, environmental rights are included in more than 90 national constitutions. These provisions are having a remarkable impact, ranging from stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water.1
Environmental rights and responsibilities have been a cornerstone of indigenous legal systems for millennia.2 Yet the right to a healthy environment is not found in pioneering human rights documents such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), or the International Covenant on Economic, Social, and Cultural Rights (1966). Society's awareness of the magnitude, pace, and adverse consequences of environmental degradation was not sufficiently advanced during the era when these agreements were drafted to warrant the inclusion of ecological concerns.
The first written suggestion that there should be a human right to a healthy environment came from Rachel Carson in Silent Spring, published in 1962:
If the Bill of Rights contains no guarantees that a citizen shall be secure against lethal poisons distributed either by private individuals or by public officials, it is surely only because our forefathers, despite their considerable wisdom and foresight, could conceive of no such problem.3
Similarly, in her final public speech before dying of cancer, Carson testified before President Kennedy's Scientific Advisory Committee, urging it to consider
a much neglected problem, that of the right of the citizen to be secure in his own home against the intrusion of poisons applied by other persons. I speak not as a lawyer but as a biologist and as a human being, but I strongly feel that this is or ought to be one of the basic human rights.4
The first formal recognition of the right to a healthy environment came in the Stockholm Declaration, which emerged from the pioneering global eco-summit in 1972:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.5
In the four decades since the Stockholm Declaration, the right to a healthy environment rapidly migrated around the globe. As of 2012, 177 of the world's 193 UN member nations recognize this right through their constitution, environmental legislation, court decisions, or ratification of an international agreement (see Figure 1). The only remaining holdouts are the United States, Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. Even among these laggards, some subnational governments recognize the right to a healthy environment, including six American states, five Canadian provinces or territories, and a growing number of cities.6
Caption: Figure 1: Nations recognizing the right to a healthy environment in constitutions, laws, or international agreements
Regional human rights agreements recognizing the right to a healthy environment have been ratified by more than 130 nations spanning Europe, Asia, the Americas, the Caribbean, Africa, and the Middle East. The Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human and Peoples Rights, the European Court of Human Rights, and the European Committee on Social Rights have issued decisions in cases involving violations of this right.
While international law plays a vital role in establishing norms and offering a court of last resort for human rights violations, the reality is that most of the action to protect and fulfill rights occurs at the national level. Within countries, a constitution is the highest and strongest law, as all laws, regulations, and policies must be consistent with it. A constitution protects human rights, sets forth the obligations of the state, and restricts government powers. On a deeper level, constitutions reflect the most deeply held and cherished values of a society. As a judge once stated, “A constitution is a mirror of a nation's soul.”7
Portugal (in 1976) and Spain (1978) were the first countries to include the right to a healthy environment in their constitutions. Article 66 of Portugal's Constitution states, “Everyone has the right to a healthy and ecologically balanced environment and the duty to defend it.”8 Since the mid-1970s, 92 countries have granted constitutional status to this right (see Figure 2). Constitutional law experts observe that recognition of environmental rights has grown more rapidly over the past 50 years than any other human right.9
Caption: Figure 2: Nations recognizing the constitutional right to a healthy environment
Despite this progress, there is an ongoing debate about the scope and potential utility of the right to a healthy environment. Supporters argue that the potential benefits of constitutional environmental rights include:
Stronger environmental laws and policies
Improved implementation and enforcement
Greater citizen participation in environmental decision making
Reduction in environmental injustices
A level playing field with social and economic rights
Better environmental performance
Critics, on the other hand, argue that constitutional environmental rights are:
Too vague to be useful
Redundant because of existing human rights and environmental laws
A threat to democracy because they shift power from elected legislators to judges
Likely to cause a flood of litigation
Likely to be ineffective
Is the constitutional right to live in a healthy environment merely a paper tiger with few practical consequences? Or is this right a powerful catalyst for accelerating progress toward a sustainable future? The best way to answer these questions is by examining the experiences of the 92 nations where this right enjoys constitutional status.
Proving a clear cause-and-effect relationship is always challenging in the social sciences. However, new research demonstrates that the incorporation of the right to a healthy environment in a country's constitution leads directly to two important legal outcomes—stronger environmental laws and court decisions defending the right from violations (see Box 1). Evidence indicates that the other anticipated benefits of constitutional environmental rights also are being realized, while the potential drawbacks are not materializing.
stronger Environmental Laws
In 78 out of 92 nations, environmental laws were strengthened after the right to a healthy environment gained constitutional status. Laws were amended to specifically focus on environmental rights, as well as access to environmental information, participation in decision making, and access to justice. This includes all surveyed nations in Eastern Europe (19 out of 19); almost all nations in Western Europe (8/9), Latin America and the Caribbean (16/18), and Asia (12/14); and a clear majority in Africa (23/32).
Among the small number of nations where no constitutional influence on environmental laws is discernable are countries where constitutional changes are very recent (e.g. Jamaica—2011, Morocco—2011) and countries wracked by civil war and other overriding social, economic, or political crises (e.g., Democratic Republic of the Congo). Nine of the 14 nations where there is no evidence of constitutional influence on environmental laws are in Africa. However, Kenya's 2010 constitution offers a new wrinkle intended to overcome this legislative lethargy, mandating that new environmental laws to implement constitutional commitments must be enacted within four years.10
In some nations, the constitutional right to a healthy environment has become a unifying principle, permeating the entire body of environmental law and policy. This is most clearly the case in Argentina, where the reform of the constitution in 1994 to include the right to a healthy environment “triggered the need for a new generation of environmental legislation.”11 After 1994, Argentina passed a new comprehensive environmental law (which “sought to make the constitution a reality”), a law governing access to environmental information, and minimum standard laws on issues ranging from industrial waste to clean water.12 The national constitution also caused a cascade effect, as provincial constitutions were amended to incorporate the right to a healthy environment, and provincial environmental laws were altered to identify the right as a guiding principle.13 The constitutional right to a healthy environment also had a comprehensive effect on environmental law in other countries, including Portugal, Costa Rica, Brazil, Colombia, South Africa, and the Philippines. A similar transformation is underway in France following the enactment of the Charter for the Environment in 2005 (see Box 2).14
Constitutional provisions are not the only factor contributing to improved environmental laws. For example, the European Union's accession process had a major influence on environmental legislation in Eastern Europe. Other key factors include public pressure, the migration of ideas and legislative approaches from other jurisdictions, and international assistance from agencies such as the UN Environment Programme and the International Union for the Conservation of Nature (IUCN).
Advance Screening of New Laws and Regulations
Constitutional recognition of the right to a healthy environment requires that all proposed laws and regulations be screened to ensure that they are consistent with the government's duty to respect, protect, and fulfill the right. In some nations this is a formal process. For example, in France, the Constitutional Council reviews proposed legislation prior to its enactment. In other nations, the screening process is informal. For example in Colombia, the close scrutiny of the Constitutional Court has compelled legislators to consider constitutional case law when drafting the content of new legislation.15
In 2005, the French Congress (including both the National Assembly and the Senate) approved the Charter for the Environment by a landslide vote of 531–23.64 The Charter for the Environment is influencing legislation, government policy, court decisions, and the French education system.65 In 2011, France cited the Charter for the Environment in becoming the first nation in the world to ban hydraulic fracturing, or fracking, the environmentally destructive method of extracting natural gas from underground rock formations. The Council of State (the highest administrative court in France) has based more than a dozen decisions on the Charter for the Environment, on issues ranging from nuclear power to the protection of mountain lakes. While it was anticipated that the Charter for the Environment would increase the prominence of environmental issues in French law, Professor David Marrani asserts that “it has developed beyond all predictions.”66
In addition to providing an impetus for strengthening environmental laws, the constitutional right to a healthy environment has been used to close gaps in environmental law. Costa Rica and Nepal offer examples of courts ordering governments to enact legislation or regulations that would protect fisheries and reduce air pollution, respectively.16 The courts did not spell out the details of the laws but merely clarified that certain legislation is an essential element of fulfilling the government's environmental responsibilities. In other nations, courts issued carefully crafted judgments that did not compel but rather influenced states to take action (e.g., legislation governing plastic bags in Uganda, public smoking in India, and air quality standards in Sri Lanka).17
Courts are not always willing to fill legislative or regulatory gaps. The Supreme Court of the Philippines, despite agreeing that air pollution from motor vehicles was a threat to health, declined to order the government to convert all of its vehicles to compressed natural gas because it believed this would have interfered with legislative and executive responsibilities.18
Another legal advantage flowing from constitutional recognition of the right to a healthy environment is that it may prevent the future weakening of environmental laws and policies (commonly referred to as rollbacks). Courts have articulated the principle, based on the right to a healthy environment, that current environmental laws and policies represent a baseline that can be improved but not weakened.19 This concept is called the standstill principle in Belgium and is also recognized in Hungary, South Africa, and many nations in Latin America. In France, the principle is known as the “ratchet effect” or “nonregression.”20
Belgian authorities are precluded from weakening levels of environmental protection except in limited circumstances where there is a compelling public interest.21 For example, a proposal to accommodate motor racing by weakening standards for air and noise pollution was rejected.22 Similarly, Hungary's Constitutional Court rejected an attempt to privatize publicly owned forests because weaker environmental standards governed private land.23 The standstill principle recognizes that in society's quest for sustainable development, the only viable direction is toward stronger environmental laws and policies.
Improved Implementation and Enforcement
Recognition of the constitutional right to a healthy environment can facilitate increased implementation and enforcement of environmental laws. Citizens, communities, and nongovernment organizations (NGOs) in Europe, Latin America, and Asia have supplemented the enforcement efforts of the state, drawn attention to violations, and provided an impetus for the allocation of additional resources to environmental monitoring and protection. A leading example is the cooperative approach taken in Brazil where the public and NGOs can report alleged violations of constitutional rights and environmental laws to the independent Ministerio Publico, which conducts investigations, civil actions, and prosecutions. The constitutional changes in 1988 that empowered the Ministerio Publico to enforce constitutional environmental rights have resulted in a dramatic increase in enforcement of environmental laws.24 A Brazilian judge wrote that “hundreds of pages would be needed to mention all the precedents” set by Brazilian courts in recent years dealing with constitutional protection for the environment.25 In the state of São Paolo alone, between 1984 and 2004, the Ministerio Publico filed over 4,000 public civil actions in environmental cases addressing issues ranging from deforestation to air pollution.26
Increased Public Involvement
Constitutional environmental provisions have substantially increased the public's role in environmental governance. The right to a healthy environment has been interpreted consistently as including procedural environmental rights—access to information, participation in decision making, and access to justice. Citizens, in ever-increasing numbers, are using these rights. Other major factors contributing to the growing public role in environmental governance include the enhanced importance of civil society, advances in communications technology (particularly the Internet), and in many nations the transition from closed, authoritarian types of government to open, participatory democracy. In many nations recognizing the right to a healthy environment, administrative processes and courthouse doors are now open to citizens who lack a traditional economic or personal interest but seek to protect society's collective interest in a healthy environment.
Several Latin American nations—Costa Rica, Colombia, Argentina, and Brazil—are in a class of their own in terms of enhancing access to justice. Procedural innovations have greatly increased the ability of citizens, communities, and environmental NGOs (ENGOs) to seek judicial protection of their constitutional rights, including the right to a healthy environment. These innovations reduce costs, decrease delays, and minimize risks previously associated with pursuing judicial remedies. The Philippines, with its special procedural rules for environmental litigation, is moving in the same direction.27
Corporate and government accountability are increased by more rigorous implementation and enforcement of environmental laws. One measurable indicator of the influence of the constitutional right to a healthy environment on accountability is court decisions based on this right. Court decisions defending the right to a healthy environment have been made in at least 44 of 92 nations and are increasing in frequency and importance. This includes almost all surveyed nations in Western Europe (8 out of 9), most nations in Latin America and the Caribbean (13/18) and Eastern Europe (12/19), a minority of nations in Asia (6/14), but only a few nations in Africa (5/32).
The number of reported cases per nation ranges from one (e.g. Malawi) to hundreds in some Latin American, Asian, and European nations. In total, thousands of reported cases are available, led by Colombia, Costa Rica, Brazil, Argentina, India, the Philippines, the Netherlands, Belgium, and Greece. The recent nature of some constitutional environmental rights, combined with difficulties in accessing the jurisprudence of at least 46 nations, means that these statistics likely underestimate the full extent of litigation based on the right to a healthy environment.28
Data from Latin America, Europe, and India indicate that the majority of lawsuits based on the constitutional right to a healthy environment are successful.29 In Brazil, environmental public civil actions are successful in 67.5 percent of cases.30 In Colombia, the applicants were successful in 53 percent of the cases related to drinking water based on the right to a healthy environment brought between 1991 and 2008.31 In Costa Rica, roughly 66 percent of cases asserting violations of the right to a healthy environment are successful.32 Jariwala estimated that nearly 80 percent of environmental cases brought in India up until 1999 were successful.33 These statistics assuage concerns that environmental activists will attempt to block economic development by filing frivolous lawsuits.
Courts have ruled that the constitutional right to a healthy environment imposes three duties upon government: to respect the right by not infringing it through state action; to protect the right from infringement by third parties (which may require regulations, implementation, and enforcement); and to take actions to fulfill the right (e.g., by providing services including clean water, sanitation, and waste management). In addition, courts have consistently held that laws, regulations, and administrative actions that violate the constitutional right to a healthy environment will be struck down.
It is rare for courts to decide that the constitutional right to a healthy environment is not enforceable, although this is the case in South Korea, Spain, the Czech Republic, Slovakia, and Paraguay. In these nations, the courts are constrained by constitutional language specifying that the right can only be enforced pursuant to enabling legislation. Overall, constitutional principles related to the right to a healthy environment “have created the right conditions for courts of law … to begin to play a more prominent role in protecting the environment.”34
Addressing Environmental Justice
The constitutional right to a healthy environment should promote environmental justice by ensuring a minimum standard of environmental quality for all members of society. Some politically weak and marginalized communities have enjoyed success in the courts in enforcing their right to a healthy environment. Many cases, particularly in Latin America, deal with the provision of clean water, sewage treatment, and adequate waste management, environmental concerns more likely to confront the poor than middle or upper classes. Millions of people enjoy clean drinking water today because the constitutional right to a healthy environment compelled governments to invest in infrastructure and protecting water supplies.
There are many examples of courts addressing environmental injustices by defending people's right to live in a healthy environment. Citizens in countries as diverse as Russia, Romania, Chile, and Turkey brought lawsuits based on their right to a healthy environment and received compensation for damage to their health caused by industrial pollution.35 Because of litigation based on their constitutional environmental rights, people in the Peruvian village of La Oroya are finally receiving medical treatment for their long-term exposure to lead and other heavy metals emitted by a nearby smelter.36
There are some situations where systemic changes are being produced by constitutions, legislation, and litigation. In Brazil, litigation based on the constitutional right to a healthy environment resulted in a new government policy that all citizens have the right to a core minimum of essential services including clean water, adequate sanitation, and proper waste management.37 The comprehensive court-ordered cleanup and restoration of the Matanza-Riachuelo watershed in Argentina will lead to improved living conditions for millions of economically marginalized people (see Box 3).
On the other hand, it is often difficult for the communities most affected by environmental degradation to influence law and policymaking processes or to take advantage of their constitutional right to a healthy environment. Barriers include limited awareness of their rights, lack of financial resources, lack of access to legal assistance, and distrust of the judicial system. Some critics claim that environmental litigation brought by middle-class litigants to enforce their right to a healthy environment worsens the plight of the poor. For example, the closure or relocation of polluting factories in India is alleged to have displaced workers and to have caused adverse socioeconomic effects.38 More broadly, there are unresolved questions about leakage, wherein legislation, litigation, or other societal forces displace environmentally harmful activities from relatively wealthy nations to poorer nations or regions.39
Level Playing Field
Another advantage of the constitutional right to a healthy environment is the prospect of a level playing field with competing social and economic rights. Environmental laws often constrain the exercise of property rights, recognizing that there are circumstances in which the public interest should take precedence over private interests. In many nations where environmental rights are articulated in constitutions, courts have rejected challenges in which plaintiffs alleged that their property rights were violated by environmental laws or policies. For example, the Slovenian Constitutional Court upheld a tax on water pollution based on the constitutional interest in environmental protection.40 In Belgium, “courts are no longer inclined when facing conflicting interests, to automatically sacrifice environmental interests in favor of economic interests.”41
Governments and courts go to great efforts to balance competing rights and conflicting social priorities. For example, in a Turkish case involving air pollution from coal-fired power plants, the courts ordered the installation of pollution abatement equipment instead of requiring the plants to be closed.42 Some would argue that courts have not gone far enough to level the playing field and defend constitutional environmental rights, particularly in cases involving powerful economic interests, such as the Sardar Sarovar Dam in India, the Camisea natural gas project in Peru, or French controversies involving genetically modified crops.43 On the other hand, the constitutional right to a healthy environment played an instrumental role in the Greek Council of State's repeated decisions to strike down approvals for the Acheloos water diversion project, the Finnish Supreme Administrative Court's decision blocking the Vuotos hydroelectric project, Costa Rican court decisions blocking offshore oil and gas development, the Ecuadorian Constitutional Court's rejection of the Baba Dam, Hungarian and Russian court decisions preventing the privatization of public forests, and the Thai Supreme Court's decision to block dozens of petrochemical projects.44 These cases involved powerful actors and major economic consequences, yet courts took bold decisions based on constitutional environmental provisions.
Finally, constitutional recognition of the right to a healthy environment can have a systematic effect on the exercise of discretion by legislators, judges, and public authorities, pushing countless decisions in a more sustainable direction. At a minimum, constitutional provisions requiring environmental protection should ensure a better balancing of competing interests than has been the case in the past.
Among the many laws spurred, at least in part, by constitutionalizing environmental protection are national laws related to environmental education in nations including the Philippines, Armenia, South Korea, and Brazil.45 Courts in India, Argentina, and the Philippines have issued creative orders requiring governments to develop and implement environmental education programs.46 The French Charter for the Environment reportedly revitalized environmental education in France.47 Also, extensive efforts have been made by international agencies to educate judges, enforcement agencies, prosecutors, and other groups involved in the implementation and enforcement of environmental laws about the right to a healthy environment.48
The Impact on Environmental Performance
While the foregoing developments are impressive, the ultimate test of constitutional environmental rights is whether they contribute to cleaner air and water and healthier people and ecosystems. The evidence in this regard is strikingly positive. Nations with environmental provisions in their constitutions have smaller ecological footprints, rank higher on comprehensive indices of environmental indicators created by researchers at Simon Fraser University and the Conference Board of Canada, are more likely to ratify international environmental agreements, and made faster progress in reducing emissions of sulfur dioxide, nitrogen oxides, and greenhouse gases than nations without such provisions. This positive relationship was consistent in a heterogeneous group of 150 nations from across the world and in two smaller, more homogeneous groups of nations (30 members of the Organization for Economic Cooperation and Development and 17 large, wealthy democracies).49
The consistency of the correlation between constitutional protection for the environment and superior environmental performance across three indices and four indicators provides persuasive, albeit not conclusive, evidence of substantial influence. There are other potential explanations for this pattern. For example, it might be that the causal relationship works in the other direction—a nation with strong environmental policies and broad public support for environmental protection may be more likely to entrench constitutional environmental rights. In such circumstances, the costs of implementing constitutional environmental responsibilities could be perceived as small.
However, when the consistent relationship between constitutional provisions and superior environmental performance is combined with the evidence of stronger environmental legislation, enhanced opportunities for public participation in environmental governance, and increasing enforcement of environmental laws, the case for entrenching environmental protection in national constitutions must be regarded as compelling.
Most importantly, these constitutional provisions are making a substantial contribution to improving people's lives and well-being. Benefits include improved access to safe drinking water, cleaner air, more effective sanitation and waste management practices, more sustainable approaches to managing natural resources, and healthier ecosystems.
The Challenges Ahead
Few of the potential downsides of constitutional environmental rights have materialized. The widespread reliance on the right to a healthy environment by citizens, legislatures, and courts demonstrates that it is not too vague to be implemented, nor does it duplicate the protection offered by existing human rights and environmental laws. Environmental rights have not been used to systematically trump other rights, with legislators and judges opting instead for careful balancing. There has been no flood of frivolous litigation, as lawsuits based on the right to a healthy environment represent a small fraction of the total number of constitutional cases in any given nation and enjoy a high success rate.
Two critiques have some degree of validity. First, there are some countries where constitutional environmental rights and responsibilities have had minimal impact. Problems such as the absence of the rule of law (e.g., effective legal institutions, including an independent judiciary), widespread poverty, civil wars, or authoritarian governments can pose daunting obstacles to progress in realizing human rights, including the right to a healthy environment. Thus most of the nations where constitutional environmental provisions have not yet had a discernible effect are in Sub-Saharan Africa.
Second, excessive judicial activism can undermine democracy by shifting power from elected politicians to unelected judges. The most prominent example is the Supreme Court of India, which has been accused of exceeding its reach in several high-profile cases, involving motor vehicles in Delhi, pollution of the Ganges River, and forest conservation.50 The Indian Supreme Court's actions can be defended as responding to government's persistent failure to implement and enforce its environmental laws, as mandated by the constitution. In general, however, excessive judicial activism is rare.
There are still dozens of countries that have not incorporated environmental rights into their constitutions, including the United States, Canada, China, Japan, Australia, and New Zealand. Some of these countries refuse to recognize that the right at all, making constitutional recognition unlikely in the short term. For example, in response to a case brought to the Inter-American Commission on Human Rights by citizens of Mossman, Louisiana, the U.S. government argued that no right to a healthy environment exists under international law.51 Even if proven wrong on that point, the U.S. government claimed that the right would not apply to American citizens, since the United States had persistently objected to the recognition of such a right. In China, it is likely that meaningful recognition of the right to a healthy environment and other human rights will have to wait until the current authoritarian government is replaced.
Another obstacle facing some countries is the extreme difficulty inherent in amending the constitution. For example, Denmark has not revised its constitution since 1953. Canada's constitution is also notoriously hard to amend.
In countries whose constitutions are silent on the environment, options for moving forward include legislative recognition of the right to a healthy environment, litigation that seeks to establish that the right is implicit in another constitutional right, or recognition at the subnational level. In the United Kingdom, a joint committee of the House of Commons and the House of Lords recommended that the right to a healthy environment be included in a proposed UK Bill of Rights.52 Canada came close to legislating an environmental bill of rights in 2011.53 While ordinary laws recognizing the right to a healthy environment lack the legal strength and symbolic power of constitutional provisions, they are a step in the right direction.
In at least 20 nations—from Argentina to Israel—where the constitution did not include explicit environmental rights, supreme or constitutional courts have ruled that the right to life includes an implicit right to a healthy environment.54 In a typical example of judicial reasoning, the Supreme Court of Nepal held that “since a clean and healthy environment is an essential element for our survival, the right to life encompasses the right to a clean and healthy environment.”55 Again, the United States is an outlier, as American courts rejected this argument in several cases during the 1970s.56
The right to live in a healthy environment continues to gain recognition. New constitutions incorporating the right to a healthy environment were enacted in Kenya and the Dominican Republic in 2010, and in Jamaica, Morocco, and South Sudan in 2011. New constitutions in Iceland and Zambia, pending formal approval, include the right. A broad coalition of Zimbabwean civil society organizations has called for the drafting of a new constitution with a “justiciable Bill of Rights that recognizes civil, political, social, economic, cultural and environmental rights.”57 In 2012, the UN Human Rights Council appointed an independent expert to report on the universal right to a healthy environment.58
From Argentina to Zambia, something extraordinary is happening. In communities, legislatures, and courtrooms around the world, a new human right is blossoming from seeds planted decades ago. The constitutional right to live in a healthy environment represents a tangible embodiment of hope, an aspiration that the destructive, polluting ways of the past can be replaced by cleaner, greener societies in the future. While no nation has yet achieved the holy grail of ecological sustainability, the evidence indicates that constitutional protection of environmental rights can be a powerful and potentially transformative step toward that elusive goal. As Gus Speth, former dean of the Yale School of Forestry, recently stated, “I am very excited about the move to rights-based environmentalism. Lord knows we need some stronger approaches.”59
Box 1. Research Methods
This article is based on research conducted as part of a doctoral dissertation exploring linkages between constitutions, human rights, and the environment. The goals of this research were to determine:
The extent to which environmental protection, and in particular, the right to a healthy environment, is now included in national constitutions.
Whether these environmental provisions are enforceable, at least on paper.
The extent to which these constitutional provisions influenced environmental laws, court decisions, and, most importantly, environmental performance.
The constitutions of 193 UN member nations were reviewed to identify environmental protection provisions and limits, if any, on their enforceability. An unprecedented analysis of environmental laws and court decisions was undertaken, covering the 92 nations whose constitutions explicitly recognize the right to a healthy environment. This systematic research utilized newly available national and international databases of environmental laws and jurisprudence, as well as online translation programs. Quantitative statistical analysis, using seven different metrics of environmental performance, was used to investigate whether nations with constitutional environmental provisions performed better than nations without such provisions.60
Box 2. France's Charter for the Environment
In 2001, French President Jacques Chirac unveiled a proposal for a constitutional Charter for the Environment that incorporated recognition of the right to live in a healthy environment, the obligation to protect the environment, the precautionary principle, and other key ecological principles. Chirac's proposal was greeted with skepticism from environmental groups and opposition from the business community.61 Pundits suggested he was merely trying to secure green votes in the 2002 election.62 Chirac ignored the critics and enthusiastically championed his proposal:
The Charter was drafted following a major national public debate and has been submitted to Parliament. It declares everyone's right to live in a balanced environment that is not harmful to their health. It calls on everyone, and first and foremost the State, to adopt an attitude of responsibility based on education, information, prevention, precaution and compensation for the sake of future generations. This text raises great hopes. I am aware of the questions that such a move could raise and I understand them, but I believe that the adoption of this Charter will represent a huge step forward for France. … A benchmark text that will inspire France's national, European and international policies for decades to come.63
Box 3. Beatriz Mendoza vs. The World
One of the most extraordinary environmental court decisions in history occurred in Argentina in 2008, and its consequences, like the aftershocks of an earthquake, continue to be felt. The case was started in 2004 by Beatriz Mendoza, a health care worker living in a poor and heavily polluted area of Buenos Aires. When her own health began to suffer, Mendoza enlisted neighbors and lawyers and filed a lawsuit against the federal, provincial, and municipal governments as well as 44 industrial polluters, asserting violations of her constitutional right to a healthy environment. Because of the lawsuit's broad scope, Argentina 's media dubbed the case Beatriz Mendoza vs. The World.
The Matanza-Riachuelo River is acknowledged as one of the most polluted water bodies in Latin America. The area where Beatriz Mendoza lives is surrounded by petroleum refineries and petrochemical facilities. The air, water, and soil are heavily contaminated, and residents suffer from myriad health ailments, ranging from skin rashes and breathing problems to cancer and birth defects.
In 2006, the Supreme Court of Argentina (the nation's highest court) ordered governments and industry to provide detailed information about the state of the Matanza-Riachuelo watershed. In 2007, the court ordered the government to draft a cleanup and restoration plan. Recognizing the limits of its own expertise, the court appointed leading scientists from universities to review and critique the government's plan. The court also held a series of open hearings, where members of the public could contribute to the process.
In 2008, the Supreme Court issued a comprehensive decision in which it ordered, on a strict schedule:
Regular inspections of all polluting enterprises and implementation of wastewater treatment plans
Closure of all illegal dumps, redevelopment of landfills, and cleanup of the riverbanks
Improvement of the drinking water, sewage treatment, and stormwater discharge systems in the river basin
Development of a regional environmental health plan, including contingencies for possible emergencies
Supervision, by the federal Auditor General, of the budget allocation for implementation of the restoration plan
Ongoing judicial oversight of the implementation of the plan, with a federal court judge empowered to resolve any disputes related to the court's decision
Notice that any violations of the timelines established by the court would result in daily fines against responsible politicians67
These remedies are intended to restore past damage, as well as to prevent future degradation of the river system.
Substantial on-the-ground progress has already been made. The World Bank approved US$2 billion in financing for the Matanza-Riachuelo Basin Sustainable Development Project.68 The Argentine government established a new watershed authority that must (i) implement a comprehensive action plan, (ii) coordinate and harmonize activities, and (iii) control and monitor environmental compliance.69 The number of environmental inspectors in the region is increasing from three to 250.70 Progress made by mid 2011 included provision of clean drinking water to 1 million people, a new sewage treatment system serving half a million people, 167 polluting companies closed, 134 garbage dumps closed, and the creation of 139 sampling points for monitoring water, air, and soil quality.71 The Supreme Court continues to hold quarterly public hearings in which it questions the federal Environment Minister and the head of the watershed authority on progress toward fulfilling the court's order. International scholars have hailed the litigation for its “remarkable policy impact” and benefits for marginalized communities.72 As the World Bank observed, there have been previous pledges to restore the Matanza-Riachuelo watershed, but the Supreme Court ruling ensures an unprecedented degree of political and legal accountability.73
1. This article summarizes new research published in D. R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: University of British Columbia Press, 2012).
2. J. Borrows, The Indigenous Constitution. (Toronto: University of Toronto Press, 2010).
3. R. Carson, Silent Spring (Boston: Houghton Mifflin, 1962), pp. 12–13.
4. Carson is quoted in J. Cronin and R. F. Kennedy, Jr., The Riverkeepers: Two Activists Fight to Reclaim Our Environment as a Basic Human Right (New York: Scribner, 1997), p. 235.
5. Stockholm Declaration (Declaration of the United Nations Conference on the Human Environment), 1972, UN Doc. A/Conf.48/14/Rev.1.
6. The six U.S. states are Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. The Canadian provinces and territories are Ontario, Quebec, the Yukon, Nunavut, and the Northwest Territories. Cities include Pittsburgh, Santa Monica, and Montreal.
7. State v. Acheson 1991 2 SA 805 (Namibia).
8. Constitution of Portugal. In R. Wolfrum and R. Grote, Constitutions of the Countries of the World, G. H. Flanz, ed. emeritus (New York: Oceana Law, 1976), 2012.
9. D. S. Law and M. Versteeg, “The Declining Influence of the United States Constitution,” New York University Law Review 87 (2012): in press.
10. Constitution of Kenya (2010), Art. 261(1), Fifth Schedule.
11. J. R. Walsh, “Argentina's Constitution and General Environmental Law as the Framework for Comprehensive Land Use Regulation,” in N. J. Chalifour, P. Kameri-Mbote, L. H. Lye, and J. R. Nolon, eds., Land Use Law for Sustainable Development, (Cambridge: Cambridge University Press, 2007), pp. 503–25 at 505.
12. D. A. Sabsay, “Constitution and Environment in Relation to Sustainable Development,” in M. E. Di Paola, ed., Symposium of Judges and Prosecutors of Latin America: Environmental Compliance and Enforcement (Buenos Aires: Fundacion Ambiente y Recursos Naturales, 2003), pp. 33–43.
13. An example of a provincial law that incorporates the right to a healthy environment as a guiding principle is Rio Negro's Environmental Impact Assessment Law (Rio Negro Law No. 3266, 16 December 1998).
14. D. Marrani, “The Second Anniversary of the Constitutionalisation of the French Charter for the Environment: Constitutional and Environmental Implications,” Environmental Law Review 10, no. 1 (2008): 9–27 at 25.
15. M. J. Cepeda Espinosa, “The Judicialization of Politics in Colombia: The Old and the New,” in R. Sieder, L. Schjolden, and A. Angell, eds. The Judicialization of Politics In Latin America. (New York: Palgrave Macmillan 2005), pp. 67–104.
16. Suray Prasad Sharma Dhungel v. Godavari Marble Industries and others (1995), WP 35/1991, Supreme Court of Nepal. Asociación Interamericana para la Defensa del Ambiente y otros (2009), Costa Rican Constitutional Court.
17. Lalanath de Silva v. Minister of Forestry and Environment (1998), Fundamental Rights Application 569/98, Supreme Court of Sri Lanka. Greenwatch v. Attorney General and National Environmental Management Authority, (2002), Miscellaneous Application 140 of 2002 (Uganda). Murli S. Deora v. Union of India (2001) 8 SCC 765 (Supreme Court of India).
18. H. M. Henares, Jr. et al. v Land Transportation Franchising and Regulatory Board et al, (2006), G.R. No. 158290, 23 October 2006, Supreme Court, Third Division, Philippines. See also Anjum Irfan v LDA (2002), PLD 2002 Lahore 555 (Pakistan).
19. L. Lavrysen, “Presentation of Aarhus-Related Cases of the Belgian Constitutional Court,” Environmental Law Network International Review 2 (2007): 5–8.
20. M. Prieur, “De L'urgente Necessite de Reconnaitre le Principe de Non Regression en Droit de l'environnement,” IUCN Academy of Environmental Law E-Journal 1 (2011): 26–45.
21. L. Lavrysen, “Presentation of Aarhus-Related Cases of the Belgian Constitutional Court,” Environmental Law Network International Review 2 (2007): 5–8.
22. Jacobs v. Flemish Region (1999), Council of State No. 80.018, 29 April 1999. Venter (1999), Council of State no. 82.130, 20 August 1999.
23. Constitutional Court of Hungary. 1994. Judgment 28, V. 20 AB, p.1919.
24. L. K. McAllister, Making Law Matter: Environmental Protection and Legal Institutions in Brazil (Stanford, CA : Stanford University Press, 2008).
25. V. Passos de Freitas, “The Importance of Environmental Judicial Decisions: The Brazilian Experience,” in M. E. Di Paola, ed. Symposium of Judges and Prosecutors of Latin America: Environmental Compliance and Enforcement (Buenos Aires: Fundacion Ambiente y Recursos Naturales, 2003), pp. 59–64 at 62.
26. McAllister, note 24, p. 99.
27. Supreme Court of the Philippines, Resolution A.M. No. 09-6-8-SC, Rules of Procedure for Environmental Cases (Manila: Supreme Court, 2010).
28. S. Stec, “Environmental Justice through Courts in Countries in Economic Transition,” in J. Ebbesson and P. Okowa, eds., Environmental Law and Justice in Context (Cambridge: Cambridge University Press, 2009), pp. 158–175.
29. Regarding Europe, see N. de Sadeleer, G. Roller, and M. Dross, Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (Groningen: Europa Law Publishing, 2005).
30. K. Hochstetler and M. E. Keck, Greening Brazil: Environmental Activism in State and Society (Durham, NC: Duke University Press, 2007), p. 55.
31. Defensoria del Pueblo, Diagnostic del cumplimiento del derecho humano al agua en Colombia (Bogota: Defensoria del Pueblo, 2009).
32. Boyd, note 1.
33. C. M. Jariwala, “The Directions of Environmental Justice: An Overview,” in S. K. Verma and K. Kusum, eds., Fifty Years of the Supreme Court of India: Its Grasp and Reach (New Delhi: Oxford University Press, 2000), pp. 469–494.
34. United Nations Economic Commission for Latin America and the Caribbean, The Sustainability of Development in Latin America and the Caribbean: Challenges and Opportunities (Santiago, Chile: United Nations, 2002), p. 163.
35. Tatar and Tatar v. Romania (2009) no. 67021/01, 27 January 2009 (European Court of Human Rights); Fadeyeva v. Russia (2005) No. 55723/00, 9 June 2005 (European Court of Human Rights). Okyay et al. v. Turkey, No. 36220/97, 12 July 2005 (European Court of Human Rights). In Chile, see “Defensa de los Derechos Humanos: Caso contaminación en Arica,” Fiscalía del Medio Ambiente, 2012, http://www.fima.cl
36. Pablo Miguel Fabián Martínez and others v. Minister of Health and Director General of Environmental Health (2006), Second Chamber of the Constitutional Court, Exp. No. 2002-2006-PC/TC.
37. Supreme Court of Justice Appeal no. 575.998 (Minas Gervais), 16 November 2004. Supreme Court of Justice Appeal no. 70011759842 (Rio Grande do Sul), 1 December 2005. Supreme Court of Justice Appeal no. 70012091278 (Rio Grande do Sul), 25 January 2006.
38. K. D. Alley and D. Meadows, “Workers' Rights and Pollution Control in Delhi,” Human Rights Dialogue 2, no. 11 (2004): 15–17.
39. D. A. Ghertner, and M. Fripp, “Trading Away Damage: Quantifying Environmental Leakage through Consumption-Based Life-Cycle Analysis” Ecological Economics 63, 2/3 (2006): 563–577.
40. Pavel Ocepek, Breg pri Komendi (1999), Up-344/96, 04/01/1999 (Constitutional Court).
41. L. Lavrysen, “Belgium,” in L. J. Kotze and A. R. Paterson, eds., The Role of the Judiciary in Environmental Governance: Comparative Perspectives (The Hague: Kluwer Law International, 2009), pp. 85–122 at 114.
42. Okyay et al v. Turkey (2005) no. 36220/97, 12 July 2005 (European Court of Human Rights).
43. P. Cullet, The Sardar Sarovar Dam Project (Aldershot, UK: Ashgate, 2007). S. J. Turner, A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers Towards the Environment (New York: Kluwer Law, 2009).
44. Greece Council of State 2759/1994, 2760/1994, 3478/2000. T. Koivurova, “The Case of Vuotos: Interplay between International, Community, and National Law,” Review of European Community and International Environmental Law 13, no. 1 (2004): 47–60. M.M. Levy y Asociacion Ecologista Limonense v. Ministerio del Ambiente y Energia, Decision 2001-13295, Expediente 00-007280-0007-CO, 21/12/2001 (Costa Rica). Baba Dam Case (2008) Third Chamber, Constitutional Court, 12 December 2008, Case no. 1212-2007-RA (Ecuador). T. V. Zlotnikova, K. E. Lebedeva et al., v. Russian Federation (1998), no. GPKI 97-249, Ruling of 17 February 1998 (Russia Supreme Court). K. Boonlai and P. Changplayngam, “Thai Court Halts Many New Plants in Big Industrial Zone,” Reuters, 3 December (2009).
45. Environmental Education Promotion Act (South Korea, 2008). National Environmental Awareness and Education Act of 2008 (Philippines). Law on Ecological Education of the Population (Armenia, 2001). National Environmental Education Policy Act (Brazil, 1999).
46. Beatriz Silvia Mendoza and others v. National Government and Others (2008) (Damages stemming from contamination of the Matanza-Riachuelo River), M. 1569, 8 July 2008 (Supreme Court of Argentina). Concerned Residents of Manila Bay et al v. Metropolitan Manila Development Authority, Department of Environment and Natural Resources and others (2008) G.R. nos. 171947-48 (Supreme Court of the Philippines). M.C. Mehta v Union of India AIR 1988 SC 1031 (Supreme Court of India).
47. Marrani, see note 14.
48. Boyd, note 1.
49. Boyd, note 1, chapter 12.
50. Delhi motor vehicle pollution—M.C. Mehta v. Union of India, 2002 (4) SCC 356; Ganges pollution—M. C. Mehta v. Union of India, AIR 1988 SC 1115; forest conservation—T. N. Godavarman Tirumulpad v. Union of India, AIR 1999 SC 43.
51. Mossman Environmental Action Now v. United States (2010), Petition 242-05, Inter-American Commission on Human Rights Admissibility Decision, Report no. 43/10, 17 March 2010.
52. UK House of Commons and House of Lords Joint Committee on Human Rights, Twenty-ninth Report (London: House of Lords, 2008).
53. Canadian Environmental Bill of Rights, Bill C-469, 40th Parliament, 3rd Session. Bill C-469 passed second reading in the House of Commons but was not enacted prior to the dissolution of Parliament for the spring election in 2011.
54. D. Boyd, “The Implicit Constitutional Right to a Healthy Environment,” Review of European Community and International Environmental Law 20, no. 2 (2011): 171–179.
55. Suray Prasad Sharma Dhungel v. Godavari Marble Industries and Others (1995), WP 35/1991, Supreme Court of Nepal.
56. J. P. Eurick, “The Constitutional Right to a Healthy Environment: Enforcing Environmental Protection Through State and Federal Constitutions,” International Legal Perspectives 11, no. 2 (2001): 185–222.
57. Zimbabwe Lawyers for Human Rights and National Constitutional Assembly, Economic, Social, and Cultural Rights in Zimbabwe: Options for Constitutional Reform (Cambridge, MA: Harvard Law School International Human Rights Clinic, 2009), p. 80.
58. UN Human Rights Council, Resolution on Human Rights and the Environment, A/HRC/19/L.8/Rev.1, 20 March (2012).
59. Quoted in J. Mark, “Natural Law,” Earth Island Journal 27, no. 1 (2012): 40–46 at 43.
60. For additional details regarding research methods, see Boyd, note 1, appendix 1.
61. C. Ollivier, “French Cabinet Approves Plan for a New Environmental Charter,” Associated Press, June 26 (2003).
62. C. Ollivier, “French President Issues Strong Call to Protect the Environment,” Associated Press, May 3 (2001).
63. J. Chirac, “Statement,” at the Opening Ceremony of the Founding Congress of the World Organization for Cities and Local Government, Paris, May 2 (2004).
64. D. Case, “Liberte, Egalite, Environment: The French Constitution gets a Dash of Green,” The Daily Grist July 14 (2005).
65. M. Prieur, “La chart de l'environnement: Droit dur ou gadget politique?” Pouvoirs 127, no. 4 (2008): 49–65. D. Marrani, “Human Rights and Environmental Protection: The Pressure of the Charter for the Environment on French Administrative Courts,” Sustainable Development Law and Policy 10, no. 1 (2008): 52–57.
66. D. Marrani, “The Second Anniversary of the Constitutionalisation of the French Charter for the Environment: Constitutional and Environmental Implications,” Environmental Law Review 10, no. 1 (2008): 9–27 at 25.
67. Beatriz Silvia Mendoza v. National Government and Others (2008) (Damages stemming from contamination of the Matanza-Riachuelo River), M. 1569, 8 July (2008) (Supreme Court).
68. World Bank, Project Appraisal Document on a Proposed Adaptable Loan Program in the Amount of $US840 Million to the Argentine Republic for the Matanza-Riachuelo Basin Sustainable Development Project, Phase 1, Report no. 48443-AR (Washington, DC: World Bank, 2009).
69. Law on the Matanza-Riachuelo Watershed, Law no. 26.168 (B.O. 15 November 2006).
70. T. Yang and R. V. Percival, “The Emergence of Global Environmental Law,” Ecology Law Quarterly 36 (2009): 615–664.
71. Matanza-Riachuelo Watershed Authority (Autoridad de Cuenca Matanza Riachuelo). Pisa 2010 Actualizado. (Buenos Aires, Argentina: ACUMAR, 2011). See http://www.acumar.gov.ar
72. K. I. Staveland-Saeter, Litigating the Right to a Healthy Environment: Assessing the Policy Impact of the Mendoza Case (Bergen, Norway: Chr. Michelson Institute, 2011), p. 48.
73. World Bank, note 67, p. 15.
Dr. David R. Boyd is one of Canada's leading experts in environmental law and policy and an adjunct professor at Simon Fraser University's School of Resource and Environmental Management. He has advised the governments of Canada Sweden, and Iceland on environmental and constitutional issues and co-chaired Vancouver's Greenest City Action Team. Boyd is the award-winning author of more than 100 publications related to environmental law and policy, including the books The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment, Dodging the Toxic Bullet: How to Protect Yourself from Everyday Environmental Health Hazards, and Unnatural Law: Rethinking Canadian Environmental Law and Policy.