Environmental Rights

Both the legislative and executive branches seem incapable of making changes fast enough to save humanity from another mass extinction. As a result, the public will continue to turn to the courts, which are still largely perceived as independent. Judges will broadly interpret environmental provisions as subjective and enforceable human rights as the urgency and gravity of the situation increases. The article therefore argues that international treaties alone, such as the Kyoto Protocol and the Paris Agreement, will not be sufficient for comprehensive environmental protection, and that national efforts are needed. The article then highlights three approaches in particular: (1) designing environmental protection as enforceable material constitutional rights, (2) designing it as policy directives, and (3) relying on implied rights derived from fundamental rights already enshrined in the constitution. The latter can be used as a defensive mechanism against harmful environmental impacts by the state and can even create a duty of care on the part of the state to protect against harmful environmental impacts by third parties. The article reviews the various environmental references in world constitutions, ranging from little or no mention in the constitution, to coverage in the preamble, to explicit mention in the constitutional text itself and recommends the inclusion of an intergenerational equity clause. These explicit environmental rights in constitutions are reviewed in detail. The concept of recognising nature as a legal person with its own rights is emerging as a new development. The article then discusses ways in which existing overarching principles such as “the polluter pays principle” can be used to establish comprehensive environmental protection in constitutions. Finally, the article provides a brief overview of the increasing importance of climate litigation in environmental protection and a transnational environmental protection standard.