As the world faces the increasing dangers of climate change, biodiversity loss, and pollution, recognizing a human right to a clean, healthy, and sustainable environment is crucial to transformative change. Environmental harm relating to issues like poor air quality, water quality, climate change, and poor access to green spaces falls disproportionately on Black, Indigenous, and People of Color (BIPOC) communities. The recognition of environmental rights as human rights can critically protect all people, elevating the issue to the level of social and economic rights already in the human rights arena.
Hutheir national constitutionsman rights sit in a variety of places—in international human rights instruments, in national constitutions, and even at the state and local levels. Enjoyment of the full suite of human rights is dependent on a healthy environment; there has always been a fundamental interdependence. At the international level, the Stockholm Declaration first proclaimed in 1972 that people have a fundamental right to an environment of quality that permits a life of dignity and well-being. Half a century later, in July 2022, the United Nations General Assembly (UNGA) passed a resolution recognizing the right to a clean, healthy, and sustainable environment as a human right. See G.A. Res. A/76/L.75 (July 28, 2022). The resolution, which passed by a recorded vote of 161 in favor and zero against, with eight abstentions, asserts this right is “related to other rights and existing international law.” Id. UN Secretary-General António Guterres declared the landmark development would be instrumental in helping to “reduce environmental injustices; close protection gaps and empower people, especially those in vulnerable situations, including environmental human rights defenders, children, youth, women, and Indigenous Peoples; and accelerate the implementation of Member States’ environmental and human rights obligations and commitments.” Press Release, UN, Hailing General Assembly Historic Resolution on Healthy, Sustainable Environment, Secretary-General Urges States to Make Text “a Reality for Everyone, Everywhere” (July 28, 2022).
Costa Rica, the Maldives, Morocco, Slovenia, and Switzerland initially proposed the 2022 resolution, which was ultimately cosponsored by more than 100 countries. Its foundational text, adopted in October 2021 by the UN Human Rights Council (UNHRC), was the first formal global recognition of the right to a clean, healthy, and sustainable environment. More than 1,300 civil society organizations and Indigenous Peoples’ groups, 15 UN agencies, business groups, and the Global Alliance of National Human Rights Institutions supported the UNHRC’s 2021 efforts. While not legally binding, the UNGA resolution is anticipated to serve as catalyst for action.
Prior to the UNGA Resolution, other international and regional protocols and declarations existed addressing the right to a healthy environment. Unfortunately, these provisions also lack desired enforcement provisions. The San Salvador Protocol to the American Convention on Human Rights states, “[e]veryone shall have the right to live in a healthy environment,” but it is not subject to claims filed with the Inter-American Commission on Human Rights. Org. of Am. States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, art. 11 (Nov. 16, 1999).
Additionally, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) requires parties to guarantee access to information, public participation in decision-making, and access to justice in environmental matters. The Convention, however, only has procedural access rights and not a general right. Aarhus Convention, 2161 U.N.T.S. 447 (June 25, 1998).
Resolutions relating to climate justice also touch on the concept of rights. The Malé Declaration on the Human Dimension of Global Climate Change, along with a subsequent 2007 resolution, was the first international instrument to explicitly state that “climate change has clear and immediate implications for the full enjoyment of human rights.” Malé Declaration on the Human Dimensions of Global Climate Change, A/C.2/44/7 (Nov. 22, 1989). It even called on the UN human rights system to address the issue. The Paris Agreement, adopted in December 2015, acknowledged that “Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women, and intergenerational equity.” Paris Agreement to the United Nations Framework Convention on Climate Change, T.I.A.S. No. 16-1104 (Dec. 12, 2015). The Paris Agreement, however, failed to recognize any right to a clean and healthy environment. Less paper tiger than the prior conventions, the African Charter provides that “all peoples shall have the right to a general satisfactory environment favorable to their development” while subjecting the provision to the review of the African Commission on Human and People’s Rights and the African Country on Human and People’s Rights. Org. of African Unity, African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
Enforcement of human rights at the international level is wrought with difficulties. The international courts and tribunals responsible for determining the outcomes of human rights (e.g., the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the European Court of Human Rights, the European Committee of Social Rights, and the African Commission on Human and People’s Rights) do consider various types of pollution and exposure cases. However, the number of cases on the environment brought before these bodies is limited, and they often take a long time to adjudicate. Limited remedies and the implementation and enforcement of decisions are also problematic.
The need for procedural and substantive obligations to protect the right to a healthy environment is generally not met through these provisions. Nevertheless, the right raises visibility of the list of human rights in general, gives them more clarity, and ties the varied elements of human rights together. Such declarations can be a cornerstone for developing obligations at other levels, serving as a catalyst for the action of independent governments at the national, state, and even local levels.
While the UN’s recognition of the human right to a healthy environment is quite significant, the adoption of the right outside of the realm of international convention arguably offers greater protection. In particular, constitutional status of an environmental right has been demonstrated to lead to stronger environmental laws and court decisions that defend the environmental right. The constitutionalization of environmental rights is often associated with the 1972 UN Conference on the Human Environment and the resulting Stockholm Declaration that included Principle 1: “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.” Stockholm Declaration on the Human Environment, Report of the United Nations Conference on the Human Environment, 2 and Corr.1, U.N. Doc. A/CONF. 48/14 (June 1972). While this fell short of declaring the right in question, and was a soft law, it did influence a number of countries to consider environmental rights and obligations in their national constitutions.
The constitutionalization of environmental rights is often associated with the 1972 UN Conference on the Human Environment and the resulting Stockholm Declaration.
Portugal was the first country to incorporate provisions relating to environmental protection in its constitution in 1974. See Constitution of the Republic of Portugal, art. 66 (2005). Since that time, more than 100 countries have adopted a human right to a healthy environment as a constitutional requirement. For example, article 112 of Norway’s constitution states: “Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved. Natural resources should be made use of on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.” Norway Const. art. 112 (2015).
A lack of constitutional provisions specific to the environment has not prevented the consideration of other rights to bolster arguments to protect environmental health. There are standards where a “right to life” has been utilized for environmental purposes. Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh 66 (Kluwer Law Int’l 2004). A clean and healthy environment is essential to quality of life—reducing mortality and morbidity, allowing for healthier lifestyles, and improving the lives of vulnerable people. Consider India, a country with a strong environmental policy and legislative framework that is supported by a judiciary. The country’s courts have addressed environmental protection using a broad interpretation of article 21 of the Constitution of India, which states that “No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law.” India Const. art. 21 (1950). Provisions on the environment and health are supported in additional constitutional provisions—article 48A, mandating state protection and improvement of the environment; article 51A(g), imposing a duty on every citizen to protect and improve the natural environment and to have compassion for living creatures; and article 47, making improvement of public health a primary duty of the state. Although not directly creating a human right to a clean and healthy environment as clearly as that created in Argentina’s and France’s respective environmental rights amendments, controlling environmental pollution and preserving the environment have been clearly connected to the right to life and threats to the environment have been determined to be inseparable from human dignity. The Supreme Court of India has, for example, stated:
Article 21 protects the right to life as a fundamental right. Enjoyment of life … including the right to live with human dignity encompasses within its ambit, the protection and preservation of the environment … without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. . . . [P]ollution, etc … should be regarded as amounting to a violation of Article 21. Therefore, a hygienic environment is an integral facet of the right to a healthy life and it would be impossible to live with human dignity without a human and healthy environment.
Virender Gaur v. State of Haryana, (1995) 2 SCC 577 (India).
Seven states currently provide for explicit environmental rights in their constitutions: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, Rhode Island, and New York.
Further, the Indian Parliament passed the National Green Tribunal Act (NGT) in June 2010, creating a specialized environmental court to address, among other things, enforcement of environmental legal rights. Any aggrieved person can seek relief from the Tribunal. Following the supreme court’s messaging, the NGT also recognized the right to the environment as a part of the right to life. See M/S Sterlite Industries Ltd. v. Tamil Nadu Pollution Control Bd., Judgment 8 (Aug. 2013) (India). More than 150 countries recognize the right to a healthy environment in constitutions, legislation, and court decisions and through the ratification of international instruments.
While congressional authority “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes” is established through the Commerce Clause of the Constitution (art. 1, § 8), constitutionally speaking, the United States does not recognize any right to a healthy environment. The environment is protected by a series of statutes, regulations, and executive orders. Examples of such actions to address environmental justice include Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations; the Council on Environmental Quality’s 1997 Guidance Under the National Environmental Policy Act directing federal agencies on effectively identifying and addressing environmental justice concerns; and Interim Guidance on Considering Environmental Justice During the Development of an Action, created in 2010 and updated in 2015 to help Environmental Protection Agency (EPA) staff identify environmental justice concerns and encourage public participation in the rule-making process. President Biden’s Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, was signed in January 2021. The Order established the White House Environmental Justice Advisory Council, the White House Environmental Justice Interagency Council, and the Justice40 Initiative. Further, the American Rescue Plan Act of 2021 appropriated $100 million to the EPA to address health outcome disparities from pollution and the COVID-19 pandemic; $50 million to grants, contracts, and other agency activities that identify and address disproportionate harms and risks on minority and low-income populations; and $50 million to grants and activities to monitor and improve air quality. Pub. L. No. 117-2, 135 Stat. 4 (2021).
The lack of a statutory framework for a right to a healthy environment means the majority of action is at the executive level, which is far less regulatory in effect, and less stable. With what has often been active resistance to adopting environmental rights at the federal level, state and local governments have been forced to lead the way.
A number of state constitutions specify the government’s role in protecting public health and natural resources. Fewer specifically speak to the environment. Seven states currently provide for explicit environmental rights in their constitutions: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, Rhode Island, and New York. As early as the 1970s, Pennsylvania and Montana adopted “Green Amendments” to their respective constitutions alongside the creation of much of today’s federal environmental regulation. The Pennsylvania Supreme Court has interpreted the constitutional provision to impose two duties on the Commonwealth. First, “the Commonwealth has a duty to prohibit the degradation, diminution, and depletion of our public natural resources, whether these harms might result from direct state action or from the actions of private parties.” Pa. Env’t Def. Found. v. Commonwealth, 161 A.3d 911, 933 (Pa. 2017). Second, “the Commonwealth must act affirmatively via legislative action to protect the environment.” Id.
Montana’s constitution guarantees a “clean and healthful environment” and requires the legislature to provide “adequate remedies to prevent unreasonable depletion and degradation of natural resources.” Mont. Const. art. II, § 3, art. IX, § 1.
Most recently, New Yorkers overwhelmingly approved an amendment to their state constitution. This 16th right enumerated in the state’s Bill of Rights states that “Each person shall have a right to clean air and water, and a healthful environment,” making New York just the third state to recognize environmental rights as inalienable. N.Y. Const., art. 1, § 19. The amendment arose as a result of legislators and state citizens responding to the inability of existing environmental law to sufficiently protect disadvantaged communities.
Other states have also incorporated environmental provisions into their constitutions or state legislation in some way. Hawaii’s state constitution, for example, establishes “Environmental Rights” for its residents:
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.
Hawaii Const., art. 11, § 9.
Constitutional provisions on environmental rights have also been used to strike down conflicting state and local laws. In Pennsylvania, the state supreme court struck down oil and gas legislation found to violate the state’s green amendment. See Robinson Twp. v. Pa. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013). Similarly in 2020, the Montana Supreme Court upheld the district court’s determination that amendments to the governing Montana Environmental Protection Act unconstitutionally prevented equitable relief in violation of the state’s environmental rights amendment, making it possible to void the exploration license challenged in the case. See Park Cnty. Env’t Council v. Mont. Dep’t of Env’t Quality & Lucky Minerals, Inc., 402 Mont. 168 (2020). The court said of the preventative language of the Montana Environmental Rights Amendment that it:
clearly indicates that Montanans have a right not only to reactive measures after a constitutionally-proscribed environmental harm has occurred, but to be free of its occurrence in the first place. Montanans’ right to a clean and healthful environment is complemented by an affirmative duty upon their government to take active steps to realize this right.
Id. at 194.
State legislation has also been enacted that considers issues surrounding the right to a healthy environment, albeit in a more restricted manner. For example, New Jersey in June 2020 approved an environmental justice bill to reduce the harmful and inequitable effects of pollution in low-income communities and communities of color. See N.J. Stat. Ann. § 13:1D-157 et seq. (West 2020). Environmental justice, while not embracing fully the right to a clean and healthy environment, does, according to the EPA’s definition, require “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” U.S. EPA, Guidance on Considering Environmental Justice During the Development of an Action (2015).
In 2021, states considered at least 150 bills related to environmental justice. Shelly Oren, State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legislatures (2022). Some state legislatures, including Iowa, Kentucky, Maine, Maryland, New Jersey, New Mexico, Oregon, Vermont, Washington, and West Virginia, have proposed their own green amendments. See Maya van Rossum, Green Amendment: Securing Our Right to a Healthy Environment (2022).
In 2021, states considered at least 150 bills related to environmental justice. Some state legislatures, including Iowa, Kentucky, Maine, Maryland, New Jersey, New Mexico, Oregon, Vermont, Washington, and West Virginia, have proposed their own green amendments.
Laws and policies have also been adopted seeking to reduce environmental health impacts, revising land use and development, and ensuring community participation in environmental decision-making. There has also been a more concerted effort to improve data collection and create tools (e.g., screening tools similar to EPA’s EJSCREEN) that can be used to pinpoint specific environmental and demographic indicators to aid in creating, implementing, and enforcing policy. Climate action has also gained increasing attention at the state level, many of these laws having some element speaking to the need for an equitable transition to net-zero emissions, thereby incorporating the idea of a right to a healthy environment for all (e.g., Mass. SB 9 and R.I. SB 78).
Municipalities have also taken action where the federal government has failed. San Francisco, for example, has incorporated language on the right to a “healthier and more just San Francisco” in its Environment Code. S.F. Env’t Code, ch. 1, sec. 100. The city’s law states:
Every San Franciscan has an equal right to a healthy and safe environment. This requires that our air, water, land, and food be of a sufficiently high standard that individuals and communities can live healthy, fulfilling, and dignified lives. The duty to enhance, protect and preserve San Francisco’s environment rests on the shoulders of government, residents, citizen groups and businesses alike.
Id.
Whereas historically, environmentally harmful activities have only been addressed after causing environmental degradation or toxic exposure, the city has adopted a “precautionary principle policy,” meaning that “in the absence of conclusive proof that something is harmful, the burden lies with the producer to prove that it is safe.” S.F. Env’t Dep’t, Guiding Environmental Principles—Our Home. Our City. Our Planet, sfenvironment.org (2019). Rather than wait for perfect information on health and safety risks to acknowledge potential harm, the precautionary principle uses the best science available to determine the safest, most cost-effective option. While such local recognition of a right to environmental health has value, there are limits on the impact that cities can have on environment. Their small footprints can mean that municipalities are unable to control sources of pollution outside of their jurisdiction and subject them to greater risk of capital migration resulting from environmental regulation.
American writer and environmental activist Wendell Berry stated: “[T]he Earth is what we all have in common.” The Unsettling of America: Culture & Agriculture 146 (1986). Despite this shared interest, the foundations of human rights, dignity, freedom, and equality have not been elevated to this level of recognition at the global level until very recently. It took the United Nations a half century from when the Stockholm Declaration first considered the idea for the body to finally establish the right to a clean, healthy, and sustainable environment as a human right. Fortunately, the right has surfaced in numerous other international and regional conventions, national constitutions and legislation, and state and local regulatory frameworks. Recognition of the right to a clean, healthy environment helps create stronger environmental laws and policies. It improves implementation and enforcement of these laws, increasing accountability, paving the way for increased citizen participation in environmental decision-making, and drawing attention to environmental justice. Any recognition of the human right to a healthy environment is also significant in its placing the concept on the same level as other human rights and in hopefully leading to better social, economic, and environmental outcomes.
