Environmental constitutionalism: Aspiration or transformation?

Abstract

A striking feature of environmental constitutional provisions is that state obligations are predominantly entrenched using contrajudicative provisions: provisions, such as directive principles, that are designed to be given effect by the political branches and not by direct judicial enforcement. Yet, scholarship to date has largely focused on the direct judicial enforcement of environmental constitutional rights. This article argues that a rights-focused approach is misguided. Correctly understood, environmental constitutionalism presents an alternative to existing, rights-based models of social values constitutionalism within the legal constitutionalist tradition: the “contrajudicative model.” This model addresses concerns about constitutional entrenchment by allocating institutional responsibility for defining fundamental social values and the legal norms that they require to the political branches. By drawing attention to its unique formal features, the article thus demonstrates that environmental constitutionalism holds significant interest for constitutional theory and should not be treated as a sub-topic in environmental law or subsumed within existing debates about the forms of judicial review and enforcement mechanisms appropriate for social rights.