To what extent do national constitutions protect citizens’ rights to a healthy environment?

Canadian professor summarizes his recent research findings in a paper drawn from his book, including Canada’s dismal performance

No 551 Guest post by Helga, August 19, 2012

Recent evidence (e.g. here, here, and here) suggests that any serious campaign to nudge governments (and corporate lobbyists) to protect citizens from the ravages of climate change must include a legal component. In this post, my partner Helga (LL.B.) provides a summary of a summary of a book that examines the extent to which national constitutions protect human rights to a healthy environment.

The Constitutional Right to a Healthy Environment, a paper by Dr. David R. Boyd published in the July-August, 2012 issue of the journal Environment: Science and Policy for Sustainable Development, summarizes new research published in his 468-page book, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: University of British Columbia Press, 2012). (Paperback edition available at Amazon.ca for $33.20).

In her post, Helga has condensed Boyd’s 6,000-plus, word paper to a manageable 2,000 word summary, while omitting yet referencing (with the abbreviation fn) a few of the author’s 73 footnotes. In addition, Helga has reorganized some of Boyd’s content, added subheadings to aid browsing, and highlighted sections related to Canada and Ontario.

Enough said. Here is Helga’s summary of –

The Constitutional Right to a Healthy Environment by David R. Boyd. Environment: Science and Policy for Sustainable Development, July-August, 2012.

To what extent do we have a legal right to a healthy environment? In a highly informative summary of his recent research, David R. Boyd, adjunct professor at Simon Fraser University and one of Canada’s leading experts in environmental law and policy, sets out to answer three questions:

1. The extent to which environmental protection, and in particular, the right to a healthy environment, is now included in national constitutions;
2. Whether these environmental provisions are enforceable, at least on paper; and
3. The extent to which these constitutional provisions have influenced environmental laws, court decisions, and, most importantly, environmental performance.

Our thinking has evolved

To set the stage, Dr. Boyd explains that the right to a healthy environment is not included in pioneering human rights documents drafted in the 1940s and the 1960s, as  “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.”

Rachel Carson’s Silent Spring , published in 1962, contained the first written suggestion of a human right to a healthy environment.  The Stockholm Declaration, 1972, was the first formal recognition of the right to a healthy environment:

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.(fn.5)

Environmental Protection recognized by most UN member nations — but not the U.S. and Canada among others

Dr. Boyd notes that “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. 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… 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.” Five international bodies have issued decisions in cases involving violations of this right.

National constitutions provide the highest and strongest environmental protection law

As Dr. Boyd notes, “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.” Since the mid-1970s, 92 countries have included the right to a healthy environment in their constitutions.

Typical objections raised by opponents to constitutional environmental rights

Some of the arguments against constitutional environmental rights are that these rights are redundant; too vague to be useful; not enforceable; likely to be ineffective; a threat to democracy because they shift power from elected legislators to judges; and are likely to cause a flood of litigation. In general, these potential drawbacks have not materialized.

Have constitutional environmental rights actually been effective?

To answer this question, Dr. Boyd examined the experiences of the 92 countries that incorporated this right into their constitutions. He found that:

• In 78 of the 92 nations, environmental laws were strengthened.  Among the others – where no influence was found – the constitutional change may have been very recent, or the countries were in the throes of civil war or other overriding social, economic, or political crises.
• In some nations, the constitutional right became a unifying principle.  For example, in Argentina, it triggered a new comprehensive environmental law, a law governing access to environmental information, laws setting minimum standards on issues ranging from industrial waste to clean water and led to the amendment of provincial constitutions and environmental laws.
• Since the constitutional right requires that all proposed laws and regulations be consistent with it, it has spawned formal and informal processes for advance screening of new laws and regulations and has increased the prominence of environmental issues.  For example, in France, the Charter of the Environment, approved in 2005, is influencing legislation, government policy, court decisions and the French education system. In 2011, France cited the Charter in deciding to ban hydraulic fracturing.
• The constitutional right has been used to close gaps in environmental law. For example, courts may order governments to enact legislation or regulations or may influence them to take action.
• The constitutional right may prevent the future weakening of environmental laws and policies. Courts have held that current environmental laws and policies form a baseline that can be improved but not weakened. (fn 19)
• The constitutional right can facilitate increased implementation and enforcement of environmental laws, as citizens, communities and NGOs draw attention to and report violations and lobby for additional resources for environmental monitoring and protection. For example, in Brazil, in the state of Sao Paulo alone, between 1984 and 2004, the Ministerio Publico filed over 4000 public civil actions on issues ranging from deforestation to air pollution. (fn 26)
• Because they include procedural rights such as access to information, participation in decision-making and access to justice, constitutional environmental rights have led to increased public involvement in environmental governance.
• The constitutional right can promote environmental justice by ensuring a minimum standard of environmental quality for all members of society. Many cases deal with the provision of clean water, sewage treatment, and adequate waste management and many lives have been improved through court-ordered investment in infrastructure, protection of water supplies, and medical treatment. However, it is often difficult for communities most affected by environmental degradation to take advantage of their rights and having and enforcing these rights may displace environmentally harmful activities to poorer nations or regions.
• The constitutional right has the effect of balancing competing social and economic rights, as environmental laws recognize that there are circumstances in which the public interest should take precedence over private interests. Court decisions have, for example, blocked a water diversion project in Greece, a hydroelectric project in Finland, a dam in Ecuador and offshore oil and gas development in Costa Rica.

Is the right to a healthy environment enforceable?

Court decisions defending the right to a healthy environment have been made in at least 44 of the 92 nations with this constitutional provision. The majority of lawsuits based on the constitutional right to a healthy environment are successful. (fn 29) 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.

A success story in Argentina: Matanza-Riachuelo River

The Matanza-Riachuelo River was known to be one of the most polluted water bodies in Latin America, and local residents suffered from myriad health ailments.  In 2004, Beatriz Mendoza, a health care worker with health issues 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. In 2008, Argentina’s Supreme Court issued a comprehensive decision in which it ordered, on a strict schedule, remedial action to restore past damage and to prevent future degradation of the river system. 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. (fn 71)   Whereas previous pledges to restore the Matanza-Riachuelo watershed were ineffective, the Supreme Court ruling ensured an unprecedented degree of political and legal accountability.

The ultimate test: Impact on environmental performance

Does a constitutional right contribute to cleaner air and water and healthier people and ecosystems? “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 and was seen in two smaller, more homogeneous groups of 30 nations and 17 nations, respectively. These constitutional provisions are making a substantial contribution to improving people’s lives and well-being.”

There are some countries where constitutional environmental rights haven’t made a difference – but these tend to have daunting obstacles, such as lack of effective legal institutions, widespread poverty, civil wars or authoritarian governments

Is a constitutional right the only legal option?

Countries may enact legislation recognizing the right to a healthy environment, or litigation may establish that the right to a healthy environment is implicit in another constitutional right.  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 where the constitution did not include explicit environmental rights, courts have ruled that the right to life includes an implicit right to a healthy environment, since it is an essential element for survival. (fn 54)

What about Canada?

Canada came close to legislating an environmental bill of rights in 2011. (fn 53) The bill passed second reading in the House of Commons but was not enacted prior to the dissolution of Parliament for the spring election in 2011. Given Canada’s resource-dependent economy and the government’s preoccupation with economic growth, it is unlikely that such a bill will be resurrected in the current session of Parliament.

At the subnational level, Ontario, Quebec, the Yukon, Nunavut, and the Northwest Territories recognize the right to a healthy environment, as does the city of Montreal. (fn 6).

Ontario’s Environmental Bill of Rights was enacted in 1993. However, as the Canadian Environmental Law Association points out in an Application For Review, filed in 2010, this statute does not actually contain a stand-alone, substantive public right to a healthful environment.

“Apart from the section 84 statutory tort, citizens’ recourse to the courts is precluded (apart from ordinary civil proceedings where personal injury or property damage occurs). The only real “rights” of citizens are rights of notice, opportunities to comment, and the right to have their comments taken into account when government makes its decisions; failure to respect such rights will not invalidate those decisions.”

The right to live in a healthy environment continues to gain recognition, as countries incorporate the right into their constitutions. In 2012, the UN Human Rights Council appointed an independent expert to report on the universal right to a healthy environment. (fn 58) Canada may find that it is increasingly out of step with societal values and environmental priorities.

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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.