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    The constitutional right to a clean environment: Human rights violations as an emerging legal foundation and vehicle for a clean environment

    Monica McCann

    Jun 30, 2023

    5 min read

    Air & Climate Climate Change International Regional Impacts Tribes, Justice, & Community

    Summary

    • In July 2022, the United Nationals (UN) General Assembly declared access to a clean, healthy and sustainable environment a human right.
    • The idea that human rights include rights to a healthy environment appears to have found more general acceptance recently.
    • The UN’s declaration could usher in a new era of redress for state environmental harms.
    • Emboldened by new rights and precedents, litigants are writing a new playbook with human rights violations as the predicate for environmental claims.
    The constitutional right to a clean environment: Human rights violations as an emerging legal foundation and vehicle for a clean environment
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    In July 2022, the United Nationals (UN) General Assembly declared access to a “clean, healthy and sustainable environment” a human right, which created a revolutionary new pathway for international cases seeking environmental protection and responsibility for contributions to climate change. Historically, successful international cases pursuing state responsibility for environmental harms eluded litigants due to standing issues, reliance on state responsibility for action and enforcement, lack of treaty enforcement, and lack of dependable legal foundation for environmental harms allegations. Combined with the increasing prevalence of constitutional provisions providing the right to a clean environment, however, the UN’s declaration could usher in a new era of redress for state environmental harms.

    Ineffective environmental protection through treaties alone

    Within international law, treaties have acted as a vehicle adhering countries to unified duties and goals. In 2015, all countries party to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) signed the Paris Agreement (PA), adopted to address climate change and its adverse effects to limit the earth's temperature increase. The UNFCCC unambiguously describes the PA as a “legally binding international treaty on climate change,” but the treaty itself has few legal repercussions. The PA allows for voluntary participation and nationally determined targets, politically encouraged rather than legally bound. It does not impose penalties for parties that violate its terms, and countries are left responsible for their own monitoring and enforcement. The PA exhibits how international treaties can lack real “legal teeth.” Strict treaty enforcement surrounding environmental harms and climate change responsibility remains abstract under the PA standing alone.

    Despite early setbacks, hope remains for successful prosecution of environmental harms as human rights violations. As the following examples demonstrate, emboldened by new rights and precedents, litigants are writing a new playbook with human rights violations as the predicate for environmental claims.

    Constitutional rights as a legal foundation in Brazil

    The Amazon Rainforest spans the entire Amazon River Basin through a total of 1.4 billion acres of forestland––approximately 40 percent of South America. Brazil encompasses 60 percent of the Amazon rainforest––around 1.2 million square miles. About 30 percent of all Amazon deforestation occurs in Brazil alone, and as such, Brazil ranks first in Amazon deforestation and is the fifth-largest greenhouse gas producer in the world. Brazil is currently projected to miss all of its environmental commitments and goals under the PA for 2030.

    Amended in 2017, article 255 of Brazil’s constitution provides “everyone has the right to an ecologically balanced environment, which is a public good for the people’s use and is essential for a healthy life. The government and the community have a duty to defend and to preserve the environment for present and future generations.” Although providing the right to a clean environment, the provision failed to meaningfully impact legal liability or accountability on environmental matters in domestic forums. On the international stage, however, recent developments recognizing and upholding the constitutional rights to a clean environment, where they exist, has helped provide a foundation for environmental protection for the Amazon.

    Specifically, in 2020, The Institute of Amazonian Studies (IAS) filed a civil case against Brazil (IAS v. Brazil) for illegal Amazon deforestation, failure to comply with climate mitigation in violation of Brazil’s Climate Change National Policy Act, and the human right to a stable climate “for current and future generations,” as stated in Brazil’s constitution. Although the case is currently pending, the fact that the case has made it this far has already validated Brazil’s constitutional human right to a clean environment helped develop the movement of climate constitutionalism

    Brazil’s constitution also provides land rights for Indigenous peoples based on their traditional range, which has dependably acted as a legal foundation and vehicle for protecting the Amazon. In 2020, seven government organizations and NGOs filed a civil action against Brazil (Partido Socialista Brasileiro (PSB) v. Brazil, ADPF 760), alleging the violation of constitutional land rights of Indigenous peoples through failure to implement the nation’s deforestation regulations. The plaintiffs specifically demanded an 80 percent decrease in deforestation, with the potential for a moratorium if not achieved. One of the ministers considering the case recognized in her decision “unconstitutional aspects regarding illegal deforestation in the Amazon Rainforest and the failure of the Brazilian state concerning the role of protecting an ecologically balanced environment.” However, due to procedural issues, a remedy in this case has so far been forestalled.

    Other small movements toward a more reliable and steadfast foundation for environmental cases in Brazil have been making their way through the courts. For example, in PSB v. Brazil, (ADPF 708), a landmark decision following the UN’s declaration, the Brazilian Supreme Court recognized the PA as a human rights treaty, and held that Brazil breached its constitutional right to protect the environment “for current and future generations” due to excessive Amazon deforestation. As a result, Brazil’s government must resume funding for climate change mitigation and monitoring to reduce emissions. The outcome represents a pioneering shift to international alignment of human rights with environmental protection through treaties.

    Common law human rights as a foundation in Columbia

    Even without reference to constitutional amendments and international declarations, the idea that human rights include rights to a healthy environment appears to have found more general acceptance recently. For example, in Columbia in April 2018, 25 young people persuaded the Columbian Supreme Court to order the government to protect a portion of the Amazon from deforestation and preserve its value for present and future generations. The Columbian court’s ruling recognized a right to the Amazon for current and future generations, creating a revolutionary legal pathway for environmental protection through court-ruled common law rather than constitutional backing, as seen in Brazil’s cases. Combined with the UN’s recent declaration of the basic right to a clean environment, successful cases like Columbia’s could provide guidance for climate change hearings in the International Court of Justice (ICJ) and countries that have not expressly married human rights and environmental sustainability.

    International litigation seeking environmental protection and responsibility for climate change contributions faces many challenges. But these cases may stand a chance when framed as environmentally motivated human rights violations. Many countries have seen a progressive movement toward heightened environmental awareness and protections driven by constitutional rights to a clean environment. Along with new international doctrines, these rights have created a new lens for viewing environmental claims and have paved the way for citizens to seek redress of environmental harms associated with climate change.

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