Realization of the Right to Environment Protection as a Fundamental Right in the United States: Some Reflections

This study outlines the international legal regime on environmental protection and then examines the link between the environment and human rights by reference to the applicaion of human rights law as a legal remedy for environmental issue. Several decades ago, Public International Law not concerned with environmental protecion. The Stockholm conference of 1972 and subsequent international instruments have enriched the international community on the subject. Undoubtedly environmental rights are self executing and they need positive State intervention for their fulfillment. The human fights both procedural and substantive human rights, found in the international Bill of Rights are being applied in relation to environmental issues. The procedural rights must be distinguished from substantive rights recognized in international human rights instruments such as the right to life, the right to health or the right to decent standard of living. The invocatin of substantive human rights in relation to environmental issues has become popular at the national level. The efforts made by Sri Lanka and several South Asian countries are of considerable value. The right to a healthy environment on the other hand denotes the identification of a separate indepedent human right not dependent on existing human rights in the incorporation of a human right to healthy environment into the fundamental rights chapter of our Constitution.

Since the 1970s, there has been a growing awareness that environmental hazards are disproportionately sited in low-income communities and communities of color. Under the label of the environmental justice movement, community groups have pursued various means to fight against the discriminatory concentration of environmental burdens in their neighborhoods. Yet in its Civil Rights Act and Equal Protection Clause jurisprudence, the Supreme Court has largely shut the door on federal environmental justice litigation by requiring plaintiffs to prove that the government acted with discriminatory intent in its siting and permitting decisions. This Note argues that Pennsylvania’s Environmental Rights Amendment provides an avenue for disparate impact environmental justice litigation at the state level. In its 2013 Robinson Township v. Commonwealth decision, the Pennsylvania Supreme Court interpreted the state’s Environmental Rights Amendment as imposing significant public trust obligations on the state legislature and other governmental actors. While previous scholarship has analyzed Robinson Township’s impact on environmental constitutionalism generally, this Note focuses on the decision’s environmental justice implications. In particular, this Note argues that one public trust duty imposed by the Pennsylvania Supreme Court—the duty of impartiality—should prohibit state actors from continuing to site environmental hazards in communities that already bear disproportionate environmental burdens.

Climate change, acid rain, depletion of the ozone layer, species extinction—all of these issues point to one thing: environmental health is a global issue that concerns all nations of the world. Now add environmental justice to the list. From South Bronx to Soweto, from Penang to El Paso, communities all over the world are finding commonality in their experiences and goals in seeking environmental justice. Environmental justice was defined by Robert Bullard, director of the Environmental Justice Resource Center at Clark Atlanta University, in his seminal 1990 work Dumping in Dixie: Race, Class, and Environmental Quality as “the principle that all people and communities are entitled to equal protection of environmental and public health laws and regulations.” In countries around the world, the concept of environmental justice can apply to communities where those at a perceived disadvantage—whether due to their race, ethnicity, socioeconomic status, immigration status, lack of land ownership, geographic isolation, formal education, occupational characteristics, political power, gender, or other characteristics—puts them at disproportionate risk for being exposed to environmental hazards. At a global scale, environmental justice can also be applied to scenarios such as industrialized countries exporting their wastes to developing nations. In either case, “environmental and human rights have no boundaries, because pollution has no boundaries,” says Heeten Kalan, senior program officer of the Global Environmental Health and Justice Fund of the New World Foundation in New York City. “Environmental justice organizations are starting to understand that they are working in a global context.”

The article is devoted to the study of constitutional environmental rights in the Republic of Armenia and the Republic of Azerbaijan. The author focuses on the fact that in Armenia, constitutional norms do not formally enshrine constitutional environmental rights, which reflects the novelty of the study. In the Republic of Azerbaijan, constitutional environmental rights are reflected in domestic legislation, but they have their own individual features that distinguish them from other CIS member states. In the domestic legislation of the Republic of Azerbaijan, the legislator reflects only the category of damage.Harm that can also be caused to a citizen as a subject of law is not reflected in the laws of Azerbaijan.In our opinion, this fact indicates a lack of legal regulation. In the Republic of Armenia, constitutional environmental rights are not formally reflected in constitutional norms, but they are reflected in the norms of the fundamentals of legislation on environmental protection. At the same time, the constitutional norms of Armenia stipulate that laws must comply with constitutional laws. In this regard, we consider it necessary to enshrine in the constitutional norms of Armenia the classical triad of constitutional environmental rights reflected in the domestic legislation of this state.

Human rights provisions, particularly constitutional environmental rights, are essential to promoting environmental justice. They provide the basis upon which citizens may challenge and thereby limit government’s potential to abuse its powers to deny the citizenry’s fundamental freedoms, which in the contemporary world we live in includes environmental rights. While an increasing number of national constitutions now recognize the importance of integrating environmental concerns, many do not adopt a rights-based approach. The paper argues that although constitutional recognition is important, there are other factors that may promote or limit environmental justice (particularly in developing countries) such as the reliance on resource revenues for national income, sociopolitical history, judicial activism, and ethnic considerations. These arguments are highlighted by the experiences drawn from four case study countries—Nigeria, South Africa, India, and Papua New Guinea. Although these countries share common political history, hence certain shared values, including respect for human rights, they recognize environmental rights at different levels, arguably as a result of the factors listed above. Adopting a comparative analysis of relevant constitutional provisions that form the basis for the recognition of environmental rights in these four countries, the paper highlights how these provisions contribute to the attainment of environmental (in)justice. While adopting the position and concluding that constitutional (environmental) human rights provisions are important to the promotion and attainment of environmental justice in developing countries, the paper posits that it is essential to draw specific attention to other issues that influence the dynamics of environmental justice in such countries.

The rapid increase in population and the uncontrolled expansion of Nigerian cities has led to a concomitant rise in the generation of solid waste. The absence of a wholesome policy on solid waste disposal has thus foisted a dire situation raising strong concerns about environmental sustainability in Nigeria. The government’s response to waste management has been marked by inadequate or unenforced environmental laws and deficiency of integrated waste management strategies. This paper examines the human rights perspective and argues that government’s lackadaisical attitude to waste management is a violation of citizens’ fundamental right to dignity of human person and the right to a safe and clean environment. The paper maintains that to avoid a gruesome pandemic caused by improper waste disposal, the government needs to enforce environmental protection laws and accord recognition to environmental rights without which there will be no environmental justice with dreadful consequences for environmental sustainability.

Contents: Volume I Acknowledgements Introduction Dinah L. Shelton PART I THEORETICAL APPROACHES 1. Joseph L. Sax (1990), `The Search for Environmental Rights' 2. James W. Nickel (1993), `The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Justification' 3. Gunther Handl (1992), `Human Rights and Protection of the Environment: A Mildly `Revisionist' View' 4. Sumudu Atapattu (2002), `The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law' 5. Alan Boyle (2007), `Human Rights or Environmental Rights? A Reassessment' 6. Roda Mushkat (2009), `Contextualizing Environmental Human Rights: A Relativist Perspective' 7. Hari M. Osofsky (2005), `Learning from Environmental Justice: A New Model for International Environmental Rights' 8. Richard P. Hiskes (2005), `The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational Justice' 9. James R. May (2006), `Constituting Fundamental Environmental Rights Worldwide' 10. Prudence E. Taylor (1998), `From Environmental to Ecological Human Rights: A New Dynamic in International Law?' PART II SPECIFIC ISSUES AND PROBLEMS 11. Malgosia Fitzmaurice (2007), `The Human Right to Water' 12. Paul L. Joffe (2009), `Conscience and Interest: Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty' 13. Marc Limon (2009), `Human Rights and Climate Change: Constructing a Case for Political Action' 14. Cyril Uchenna Gwam (2002), `Adverse Effects of the Illicit Movement and Dumping of Hazardous, Toxic, and Dangerous Wastes and Products on the Enjoyment of Human Rights' 15. Michael N. Schmitt (2000), `Humanitarian Law and the Environment' 16. Christopher Tracy (1994), `The Roots of Influence: Nongovernmental Organizations and the Relationship Between Human Rights and the Environment' 17. Daniel Barstow Magraw and Lauren Baker (2007), `Globalization, Communities and Human Rights: Community-Based Property Rights and Prior Informed Consent' Volume II Acknowledgements An introduction to both volumes by the editor appears in Volume I PART I VULNERABLE POPULATIONS 1. Lawrence Watters (2002), `Indigenous Peoples and the Environment: Convergence from a Nordic Perspective' 2. Cherie Metcalf (2003), `Indigenous Rights and the Environment: Evolving International Law' 3. Rebecca Tsosie (2007), `Indigenous People and Environmental Justice: The Impact of Climate Change' 4. Aurelie Lopez (2007), `The Protection of Environmentally-Displaced Persons in International Law' 5. Karen E. MacDonald (2006), `Sustaining the Environmental Rights of Children: An Exploratory Critique' PART II INTERNATIONAL TEXTS AND JURISPRUDENCE 6. Neil A.F. Popovic (1996), `In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment' 7. John H. Knox (2009), `Linking Human Rights and Climate Change at the United Nations' 8. Dinah Shelton (2010), `Developing Substantive Environmental Rights' 9. Stephen J. Powell (2007), `Should or Must?: Nature of the Obligation of States to Use Trade Instruments for the Advancement of Environmental, Labour, and Other Human Rights' 10. Ole W. Pedersen (2008), `European Environmental Human Rights and Environmental Rights: A Long Time Coming?' 11. Kristof Hectors (2008), `The Chartering of Environmental Protection: Exploring the Boundaries of Environmental Protection as Human Right' 12. Jona Razzaque (2007), `Linking Human Rights, Development, and Environment: Experiences from Litigation in South Asia' 13. Cesare Pitea (2006), `The Non-Compliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control Mechanisms'

The notion of public participation has emerged as a significant trend in international environmental law due to its incorporation in many environmental treaties and soft law instruments. In essence, public participation in environmental matters (hereinafter referred to as “PPEM”) is a fundamental procedural aspect of environmental protection as it provides an opportunity for public input in environmental impact assessment (hereinafter referred to as “EIA”). In the environmental sphere, PPEM has emerged as an important strategy through which people can participate in policy formulation, decision-making, and implementation measures relating to any project or plan regarding environmental protection. Moreover, it has been elevated in the human rights discourse since environmental rights are increasingly viewed as human rights. Apart from that, public participation is an integral part of the concept of environmental governance. Effective public participation serves a variety of purposes in the frameworks of environmental governance, sustainable development, and environmental justice. The concept of PPEM has been incorporated into various international environmental instruments. While the norm of PPEM has been deeply ingrained in international instruments, its implementation at the national level requires the necessary legislative and institutional frameworks and strategies. This article examines the legal framework for PPEM in Bangladesh, highlights its role as a principle of international environmental law, establishes linkages between PPEM and sustainable development, and further explores judicial decisions around PPEM across several jurisdictions. Finally, this article argues that despite its many potential benefits, PPEM is yet to be adequately integrated into environmental laws in Bangladesh.

The scientific article is devoted to the study of the practical experience of judicial protection of environmental rights. The article defines the main concepts in the field of protection of environmental rights of citizens: “ecological rights”, “judicial protection”, “ecological policy”, “judicial protection of environmental rights” and other concepts in the context of the conceptual and categorical apparatus of the subject of research. The scientific article contains an analysis of the norms enshrined in the current legislation of Ukraine regarding the judicial protection of environmental rights of communities and the separate protection of environmental rights of citizens. The peculiarities of the practice of consideration by Ukrainian courts of cases regarding the violation of the environmental rights of citizens are given. The methodology of researching issues of environmental rights of citizens is given. The information policy of the state in the sphere of protection of environmental rights of citizens is defined. The peculiarities of the legal doctrine in the field of judicial protection of citizens’ environmental rights and the protection of citizens’ environmental rights in general are indicated, as well as the proposals of scientists in the field of law to improve the regulatory regulation of citizens’ environmental rights, as well as to improve the practice of judicial protection of citizens’ environmental rights. Peculiarities of normative and legal regulation of the sphere of judicial protection of citizens’ environmental rights have been studied. The environmental rights and obligations of individuals and legal entities in the field of protection of environmental rights are defined, and the responsibility of legal entities and individuals in terms of violation of environmental or nature protection legislation is defined. The importance of increasing the level of ensuring the realization of the environmental rights of citizens in Ukraine by implementing an effective state information policy, improving the legal regulation of ensuring judicial protection of the environmental rights of citizens, and forming an environmental policy to prevent violations of the environmental rights of citizens was emphasized.

Earth System at Risk: Challenging Environmental (In)Justice

Adopting the Language of Rights for Environmental Protection: Legal and Theoretical Justifications

What happens when environmental protection is framed using human rights language? Here, a new type of norm change – norm fusion – is conceptualized. Linking norms derived from different issue areas, it is realized through continuous use of strategic frames obtained from various issues, acceptance of the norm by society, and action in accordance with the new norm. The fusion process is decentralized and dynamic, does not proceed at the same speed everywhere and involves norm contestation. Norm fusion is discussed through the example of human rights and environmental norms. Environmental activists increasingly use a rights-based discourse, environmental cases are brought before human rights tribunals, and various international documents recognize the link between human rights and the environment. However, due to problems in the implementation of environmental rights in a neoliberal economic framework and clashes between environmental and human rights norms, fusion between environmental and human rights norms remains contested.

David Hallowes’ chapter provides a critical analysis of South Africa’s post-apartheid constitutional order with a focus on its Bill of Rights and the implications of the latter for environmental justice and rights. The chapter shows the contradictions that characterize the country’s democratic constitution order and its limits as a resource for struggles for environment rights and justice.

Procedural Environmental Rights and Environmental Justice: Assessing the Impact of Environmental Constitutionalism

In the scientific article the main problems that hinder properly protect environmental rights in court are considered: the presence of an exhaustive list of grounds for appeal to the courts environmental organizations, that are limited according to international standards. Another problem relates to the legal ignorance of citizens on how to protect environmental rights and their irrational use, abuse of the law in some cases. Prevents the realization of environmental rights the interests of others, improper investigation of the case by the court. Another aspect that prevents qualitative access to justice is ignorance of citizens in the proper formulation of the claim, thus the courts make decisions not in favor of those whose environmental rights violated or denied the opening of the proceedings. It is advisable to enable citizens to apply for legal aid centers providing primary legal aid from the state budget (for lawyers providing explanations, advice, preparation of legal documents), as the environment and citizens' rights - a line of action in which the first all Ukraine state concerned. The issue of environmental protection of human rights, the preservation and restoration of natural resources on the principles of sustainable (environmentally sustainable) Nature should be regarded as one of the priorities and an important precondition for the European integration of Ukraine. Thus, environmental rights, and above all the constitutionally enshrined right to safe living environment and health must defend. After all, the quality and duration of life depend on Ukrainian Ecology