Constitutional Environmental Rights Research Articles

The Private Litigation Impact of New York’s Green Amendment

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environ-ment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.” However, the power of the NYGA and similar green amendments turns on judicial interpretations of their scope. In the first decision to reach the issue, a New York trial court held, with little analysis, that the NYGA provides no private rights against private polluters. This conclusion could severely limit the reach and significance of state envi-ronmental rights. This article examines a single question: Does the NYGA grant private rights that are enforceable against private parties? In answering this question, we examine the 50-year history of private litigation under green amendments, the substance and historical context of the NYGA, and the broader structure of New York’s constitution and environmental law. We conclude that the New York trial court got it wrong, and that the NYGA does provide a private cause of action against private parties. We further assess the indirect impact of constitutional envi-ronmental rights on private litigation, and conclude that the NYGA will have an enormous impact on private litigation generally, irrespective of whether New York’s courts reject private litigation under the NYGA. This discussion provides a novel evaluation of the shadow that consti-tutional changes cast on non-constitutional law.

Assessment of the impact on the environment when performing economic activities as a legal guarantee of the implementation of Constitutional Environmental Rights

The article discusses the issue of environmental impact assessment as a procedure designed to guarantee the constitutional rights of a person to life and to an environment safe for life and health, to ensure the balance of economic and ecological components of sustainable development. The authors briefly analyze the political and legal prerequisites for the introduction of the environmental impact assessment procedure into national legislation in view of Ukraine’s European integration obligations, the main stages of such a procedure and its importance for guaranteeing the realization of the above-mentioned right. Recommendations were formulated for improving the regulatory regulation of the environmental impact assessment procedure in order to increase its effectiveness as a guarantee of the implementation of the specified constitutional human rights.

Article: An Environmental and Legal Component of Criminal Offenses in Conditions of the Russian-Ukrainian International Military Conflict

The article examines the ecological and legal component of criminal offenses under martial law, since the risk of man-caused accidents and ecological disasters, which threaten security, including environmental and human ones, as well as international legal order, is increasing owing to aggressor-country army’s deliberate actions. It has been argued that the consequences of the military conflict for the environment, human life and health are already considered catastrophic. It has been proven that the ecological crisis should be recognized as an existential threat to the national security of Ukraine. Pressing issues of forming interdisciplinary (synergistic) connections between environmental and criminal law science and other areas of scientific knowledge have been covered. Considering the outlined problem is becoming of a significant relevance due to the fact that certain criminal offenses cause damage to the environment, thus, leading to its destruction. It is a matter of such criminal offence compositions as laws of the war violation (Article 438 of the Criminal Code of Ukraine (CCU) and ecocide (Article 441 of the CCU)). The expediency of improving the current criminal legislation and legal liability mechanism, which would satisfy the proportionality requirement, namely commensurate punishment of severity and consequences of the committed acts, has been substantiated. The expediency of further criminal law prohibition of ecocide in the new CCU Draft has been motivated, taking into account the degree of social danger as well as the severity of large-scale and long-term consequences for the environment and the entire humanity. It has been proven that the state’s environmental function to ensure environmental security, fundamental constitutional environmental rights of citizens, as well as to maintain ecological balance and sustainable development on Ukraine’s territory should become today’s narrative, with the environmental security component to be further included into the sectoral state restoration programs in order to form a new environmental law under martial law both for Ukraine and European countries. Based on our own conclusions and generalizations, proposals and recommendations for improving the current national legislation and greening the sectoral national policy components have been provided. It has been argued that legal mechanisms for fixing and determining the amount of environmental damage caused to natural resources and complexes as a result of armed aggression and hostilities under martial law should be established at the legislative level. environmental safety, environmental damage, environmental damage, environmental right protection, country’s natural resource potential restoration, severity of consequences, state’s environmental function, environmental and legal conflictology

Constitutional Environmental Rights and State Violence: Implications for Environmental Justice in Protected Forests

Constitutional Environmental Rights and State Violence: Implications for Environmental Justice in Protected Forests

Environmental Rights Between Constitutional Law and Local Context: Reflections on a Moving Target

AbstractEnvironmental rights such as the right to a sound environment and rights of nature, while playing an increasingly important role in global environmental governance and protection, frequently do not correspond to articulations of fundamental experiences of injustice by communities particularly affected by serious environmental degradation caused by, for example, extractive activities or major infrastructure projects. We present three empirically grounded case studies that employ concepts and methods from anthropology to demonstrate this. The work is still in progress, but sufficiently well advanced to present some findings. Our ethnographic research in Ethiopia and Mongolia reveals that vulnerable local communities take recourse to constitutional environmental rights far less often than expected. The reasons for this range from rule-of-law issues to local perceptions of vulnerability and relevant norms. Conversely, where environmental rights are demanded or claimed at the local level, they are often not translated adequately into the law of the state. Our case study on Ecuador, where rights of nature as a specific type of environmental rights have been included in the constitution, shows that transfers from local practice, while potentially having a transformative effect, may lead to conceptual selectivity, ambiguity, lack of clarity, and overlaps with existing state norms and, hence, redundancies. Environmental rights are, therefore, a moving target whose concrete added value hinges on context—as methods of law and anthropology serve to illustrate.

Environmental Constitutionalism and Duties of Individuals in India

Abstract Environmental constitutionalism encompasses rights as well as duties of the State and individuals. However, environmental duties of individuals are seldom discussed in detail. What is their contribution to environmental constitutionalism? This article examines the origin and design, as well as judicial adjudication of the fundamental environmental duty of citizens in the Constitution of India to answer this question. It finds that internal and external factors influence the constitutional origin and design of this duty. The constitution drafters viewed this duty as distinct from the duties of the State. However, judicial practice concerning the nature, scope and content of the duty, as well as its implementation and enforcement evidences a dynamic and symbiotic relationship between constitutional environmental rights and duties. The right-holders corresponding to the duty of citizens may include the environment and future generations. These findings provide a framework for the examination of individual environmental duties in other constitutions.

Legal aspects guaranteeing implementation of constitutional environmental rights of citizens

The article researches modern legal aspects that regulate the set of environmental rights of citizens, as well as the basic principles that ensure their implementation in the practice. The essence and content of environmental law were studied, its functionality and main forms of manifestation were structured. The current domestic system of guarantees for the realization of environmental human rights is analyzed. Its methodological and practical aspects were supplemented from the standpoint of separating the institutional component from the existing forms of manifestation. The functional concept of environmental law is defined and studied from the standpoint of one of the most promising, priority and key elements of the sustainable development of society and national economies in the modern practice of the developed countries of the world. The author's approach to the formation of a system of tools for the organizational and economic mechanism for ensuring the implementation of the constitutional environmental rights of citizens is presented. The world's leading experience in the implementation of social environmental rights has been studied. It was determined that environmental priorities, rights and goals become the basic strategic dominants of the further development of society, both at the level of leading national economies and on a global scale. According to the results of research and systematization of foreign and domestic experience, priority directions for further improvement of guaranteeing the implementation of environmental rights of citizens have been determined. Among the main and most promising directions for domestic practice are recommended: taking into account the progressive world experience of developing and adopting the environmental code, using digital tools to promote the implementation of environmental programs and development projects, ensuring the guarantee of society's access to relevant information, spreading the practice of environmental auditing and drawing up environmental reporting. It was determined that raising the level of public awareness, popularizing global and national sustainable development initiatives, and raising the level of national environmental culture should be the basis of the mechanism for realizing the environmental rights of the country's population. Keywords: environmental rights, guarantees, environmental safety, constitutional guarantees, sustainable development, mechanism for ensuring the implementation of environmental rights.

Обеспечение экологических прав граждан России–приоритетное направление экологической политики государства

Introduction. Decent and safe life and activities of Russian citizens can only be possible in the favorable environment. The constitutional and legal guarantee in this area is the consolidation of the environmental rights of Russian citizens as a constitutional value, and its provision is a priority task of the state and, accordingly, the most important direction of the implemented environmental policy. Theoretical analysis. The author determines the constitutional and legal content of environmental rights of Russian citizens, reveals their significance for citizens and peoples living on the territory of Russia, identifies trends, prospects and problems of their implementation and development, the role of public authorities in this process. Empirical analysis. The researcher claims that the right of citizens to participate in the management of state affairs in the environmental sphere is implemented in various forms, of which an environmental referendum should be recognized the most effective, since its results are binding on public authorities. Despite this, environmental referendums are not often held. The reasons for this are, on the one hand, the unwillingness of the authorities to listen to the opinion of the population when delivering commercially successful projects, on the other hand, the complexity of the legally established procedure for holding a referendum. Results. It is proved that the right to the favorable environment is the main comprehensive constitutional environmental right, with other constitutional environmental rights being the means of its implementation, or restoration in case of violation. It is concluded that the problems associated with the realization of human rights arise from imperfections in the field of law-making, law enforcement, as well as systemic problems of the state structure of Russia. It is pointed out that there is a need to develop state environmental policy in terms of strengthening legal, organizational and other measures aimed at more effective implementation of environmental rights of Russian citizens.

ПРОБЛЕМИ ПРАВОВОГО ЗАБЕЗПЕЧЕННЯ ЕКОЛОГІЧНИХ ПРАВ ГРОМАДЯН В УМОВАХ ВОЄННОГО СТАНУ

The article analyzes the issue of the possibility of restricting the environmental rights of citizens in martial law. It is determined that in connection with the introduction of the legal regime of martial law, a number of constitutional rights and freedoms of man and citizen may be limited. At the same time, the environmental rights of citizens were not de jure restricted, but de facto some environmental rights of citizens, which are enshrined in the Constitution of Ukraine, were limited. It is separately established that ensuring the environmental rights of citizens, namely the right to compensation for environmental damage caused to them as a result of illegal actions of the aggressor is impossible without clear and transparent methods of calculation. A positive assessment was given to the implemented methods of calculating the damage to land, soils due to emergencies and / or armed aggression of the Russian Federation. It is emphasized that the method of calculating the damage of fugitive emissions of pollutants or mixtures of such substances into the atmosphere due to emergencies and / or martial law is imperfect due to unreasonable inclusion in the formula for calculating the amount of damage caused by fugitive emissions of pollutants or mixtures substances into the atmosphere due to emergencies and / or during martial law, a factor that depends on the nature of the event. At the same time, it is emphasized that the relevant methods of calculating the damage can be described only positively, because they provide a real opportunity for citizens in martial law to exercise their constitutional environmental right to compensation for environmental damage. It is pointed out that the partial restriction of public access to some open registers containing environmental information externally resembles the restriction of constitutional environmental rights of citizens. It was noted the beginning of a major reform of the state environmental monitoring system, which, among other things, significantly systematizes and streamlines terminology related to environmental information, as well as establishes clear mechanisms for access to it. The conclusions of the study are formulated and the possibility of further scientific research in this area is indicated.

Constitutional Environmental Rights: Lessons from the States

Constitutional Environmental Rights: Lessons from the States

The Representation Of Interests In The Mechanism For The Legal Regulation Of Environmental Relations: Certain Aspects

The article is aimed at studying the legal means (ways) of representing (formalizing) interests in the mechanism for the legal regulation of environmental relations.
 The conclusion is reached that it deems reasonable to pose a question about an optimal correlation between interests, i.e. about their sound compromise, not a balance between them, since the latter requires balancing them out which is neither factually, nor legally possible.
 One characteristic feature of environmental law is its simultaneous use of a permit-based way of the legal regulation by granting the corresponding rights and introducing prohibitions. It contributes to developing a rigid model of the behaviour between the subjects of environmental relations.
 One of the criteria determining the degree of the efficiency of the mechanism for the legal regulation of a certain type of relations is, among others, taking a full account of the interests of the subjects of this type of relations by means of representing (formalizing) these interests in legislation, their juridization. There exist several ways aimed at formalizing environmental interests: 1) permits, concerning only citizens and public unions, i.e the powers provided for by the environmental rights of the subjects of environmental law; 2) obligations - prescriptions binding on persons to be fulfilled, designed for state authorities, subjects of economic relations, citizens and their unions; 3) proscriptions.
 All of the components of the environmental law mechanism described in the article are complex in terms of their procedure and, in fact, constitute the public law mechanism being aimed at ensuring mostly public environmental interests. Furthermore, its implementation will definitely involve influencing private, often nonenvironmental interests, which should also be taken into consideration. This is what constitutes the very purpose of the environmental law mechanism as a comprehensive coherent system of normatively established measures and requirements, actions and processes aimed at gradually and effectively achieving the objectives of environmental law. This objective lies in developing environmental law and order as a guarantee for the fulfillment of the constitutional environmental rights and nature conservation, including the objective of conserving biodiversity.
 Considering the dynamic nature of the development of environmental and other relations with regard to the possibility of the direction of the interests of the subjects of these relations being changed, it deems necessary to reconsider the nature and content of those legal means that constitute the environmental law mechanism.

The Global Emergence of Constitutional Environmental Rights, by Joshua C. Gellers Routledge, 2017, 150 pp, £95 hb, £36.99 pb, £35.99 e-bk ISBN 9781138696495 hb, 9780367024222 pb, 9781315524412 e-bk

The Global Emergence of Constitutional Environmental Rights, by Joshua C. Gellers Routledge, 2017, 150 pp, £95 hb, £36.99 pb, £35.99 e-bk ISBN 9781138696495 hb, 9780367024222 pb, 9781315524412 e-bk

The Global Emergence of Constitutional Environmental Rights

<i>The Global Emergence of Constitutional Environmental Rights</i>

Toward Environmental Democracy? Procedural Environmental Rights and Environmental Justice

The global trend toward adopting environmental rights within national constitutions has been largely regarded as a positive development for both human rights and the natural environment. The impact of constitutional environmental rights, however, has yet to be systematically assessed using empirical data. In particular, expanding procedural environmental rights—legal provisions relating to access to information, participation, and justice in environmental matters—provides fertile ground for analyzing how environmental rights directly interface with conditions necessary for a functioning democracy. To understand the extent to which these provisions deliver on their lofty aspirations, we conducted a quantitative analysis to assess the relationship between procedural environmental rights and environmental justice, while also controlling for the extent of democracy within a country. The results suggest that states with procedural environmental rights are more likely than nonadopting states to facilitate attaining environmental justice, especially as it relates to access to information.

Updating New York’s Constitutional Environmental Rights

The stakes are high as New York State considers whether to amend the constitution. The electorate contemplates the gathering crises of sea level rise, disruption of weather patterns, intensified summer heat waves, and other climate change impacts. New York also faces escalating environmental problems, which the newly perceived climate impacts in turn exacerbate. It is timely to debate whether or not New York should recognize the right to the environment to its constitution. In 2016, the House of Delegates of the New York State Bar Association adopted the report of its committee on the constitution, regarding the environmental conservation article XIV. That report did not take a position on whether to expand the Constitution’s existing environmental rights to recognize a broad environmental right explicitly. A task force of the association’s section on environmental and energy law examined the issue for six months and concluded that there is merit in recognizing the right to the environment. This article introduces the emergence of this issue in its historical context.

Constitutional environmental rights

Constitutional environmental rights

Do Constitutions Matter? The Effects of Constitutional Environmental Rights Provisions on Environmental Outcomes

SummaryWe use a novel data set within an instrumental variables framework to test whether the presence and language of constitutional environmental rights influence environmental outcomes. The outcome variables include Yale's Environmental Performance Index and its components. We employ two‐stage least squares to account for reverse causality, that is, the possibility that a country which takes steps to protect the environment might also be more likely to constitutionalize environmental rights. Our first stage theory combines constitution norms, opposition costs, and generation effects. Our controls include country income, which means that our study is also related to the Environmental Kuznets Curve literature. We find that constitutions do indeed matter for positive environmental outcomes, which suggests that we should not only pay attention to the incentives confronting polluters and resource users, but also to the incentives and constraints confronting those policymakers who initiate, monitor, and enforce environmental policies.

On the temporal effects of static constitutional environmental rights provisions on access to improved sanitation facilities and water sources

Using novel panel data on constitutional environmental rights (CER) for 190 countries from 1990 to 2012, this paper questions if the presence/language of CER provisions provides increased access to improved sanitation facilities and drinking water sources. While implementing statutory laws/regulations derived from CER provisions is a dynamic process, the presence/language of CER provisions is temporally fixed. To capture these dynamics, the presence of a CER and a measure of its legal strength are interacted with its age as explanatory variables within a fixed effects framework yielding: (1) no evidence of an association between the CER measures and access to improved sanitation facilities; (2) a positive statistically significant association between ageing CER provisions and access to improved water sources; and (3) a positive but weakly statistically significant association between the legal strength of ageing CER provisions and access to improved water sources, which is improved upon for countries with British as opposed to French legal origins.

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

The global trend toward the adoption of environmental rights within national constitutions has been largely regarded as a positive development for both human rights and the natural environment. The impact of constitutional environmental rights, however, has yet to be systematically assessed using empirical data. In particular, the expansion of procedural environmental rights — legal provisions relating to access to information, participation, and justice in environmental matters — provides fertile ground for analyzing how environmental rights directly interface with conditions necessary for a functioning democracy. In order to understand the extent to which these provisions deliver on their lofty aspirations, the authors conduct a quantitative analysis designed to evaluate the relationship between procedural environmental rights and environmental justice. The results demonstrate that states with procedural environmental rights are more likely than non-adopting states to facilitate the attainment of environmental justice, especially as it relates to access to information.

The arguments for environmental rights in Niger Delta: a theoretical framework

Purpose– This paper aims to examine the extent to which environmental rights enforcement is currently practiced in Nigeria and the relevant characteristics for the development of a legal framework for the practice of environmental rights enforcement in Nigeria, particularly in the interest of the Niger Delta region of the country. The Niger Delta region of Nigeria is rich with abundant hydrocarbon resources and plays host to numerous multinational oil companies. For over five decades, oil spills and gas flaring from the operations of these companies have polluted water bodies and degraded farmlands on which the inhabitants depend for their livelihood. However, the absence of a legal regime of environmental rights has made it difficult for inhabitants of the region to seek legal remedy against these companies.Design/methodology/approach– This paper examines the extent to which environmental rights enforcement is currently practiced in Nigeria and the relevant characteristics for the development of a legal framework for the practice of environmental rights enforcement in Nigeria, particularly in the interest of the Niger Delta region of the country.Findings– Nigeria does not have constitutional environmental rights. The legal implication of this provision is that it is not justiciable as such no court of law can exercise jurisdiction to hear any matter that is connected with the provisions of that chapter. In other words, even the government’s “constitutional” responsibility to protect the environment cannot be judicially enforced, let alone environmental rights for victims of environmental damage.Originality/value– The original and significant contribution of this paper is to highlight the real issues and address them through substantive and procedural environmental rights provisions either in the constitution or positive legislations.