Widener Law School Legal Studies Research Paper Series No. 09-35

Widener Law School Legal Studies Research Paper Series no.
09-35
Vindicating Fundamental Environmental Rights: Judicial Acceptance

of Constitutionally Entrenched Environmental Rights
James R. May
Erin Daly
Widener University School of Law
This paper can be downloaded without charge from

The Social Science Research Network
http://ssrn.com/abstract=1479849
Electronic copy available at: http://ssrn.com/abstract=1479849

JAMES R. MAY AND ERIN DALY∗
Vindicating Fundamental Environmental

Rights Worldwide
I. Constitutional Entrenchment of Fundamental
Environmental Rights............................................................ 373
A. Structural and Syntactical Choices................................. 373
B. Shaping Framers’ Views on Fundamental
Environmental Rights..................................................... 377
C. Presumptions About Enforceability ............................... 383
II. Judicial Tolerance of Constitutionally Enshrined
Environmental Rights............................................................ 390
A. Independent Environmental Rights................................ 391
B. Dependent Environmental Rights .................................. 398
C. Derivative Environmental Rights................................... 399
D. Dormant Environmental Rights ..................................... 405
III. Vindicating Constitutionally Entrenched Fundamental
Environmental Rights Worldwide ......................................... 407
A. Conceptual Conundrums ................................................ 407
B. Pragmatic Considerations............................................... 415
1. Who Can Sue? .......................................................... 415
2. Who Can Be Sued?................................................... 420
3. Defining the State’s Obligation ................................ 421
4. Defenses and Limitations ......................................... 424
C. Remedies ........................................................................ 424
1. Fashioning the Remedy ............................................ 426
2. Enforcing the Remedy.............................................. 431
∗ James R. May is Professor of Law and the H. Albert Young Fellow in Constitutional
Law at Widener University School of Law. Erin Daly is Professor of Law and Associate
Dean for Faculty Research and Development at Widener University School of Law. The
assistance of Marie Hobson, Destiny Prater, Gina Serra, Angela Whitesell, and Beau
Grove in the preparation of this Article, and comments of Carl Bruch, Sylvia Bankobeza
and John Dernbach to a draft manuscript, are noted with gratitude. Copyright © James R.
May and Erin Daly (2009).
[365]

366 OREGON REVIEW OF INTERNATIONAL LAW [Vol. 11, 365
IV. Pathways to Successful Constitutional Environmental

Litigation ............................................................................... 433
A. Constitutional Culture .................................................... 434
B. Enabling Constitutional Litigation ................................. 434
C. Tolerance of Judicial Reform......................................... 436
Conclusion........................................................................................ 437
Such a right belongs to a different category of rights altogether for it

concerns nothing less than self-preservation and self-perpetuation
. . . the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind.
Minors Oposa v. Factoran1
So it was that in Oposa v. Factoran, Jr. the Court stated that the
right to a balanced and healthful ecology need not even be written
in the Constitution for it is assumed, like other civil and political
rights guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with
intergenerational implications.
Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay2
This Article addresses judicial tolerance toward a recent

constitutional phenomenon at the confluence of constitutional,
international, human rights, and environmental law: the notion that
advancing the human condition entails recognizing a fundamental
constitutional right to a quality environment. Dozens of countries
have adopted or amended constitutions to entrench fundamental
environmental rights.3 This extension of constitutionalism has the
potential to transform the conversation about environmental rights,
responsibilities, and regulation. That potential is a function of judicial
openness to efforts to vindicate emerging constitutional
environmental rights in new and unknown ways. But courts asked to
vindicate constitutional environmental rights face a variety of
obstacles, from conceptual uncertainties about the very meaning of
1 Minors Oposa v. Factoran, G.R. No. 10183, 224 S.C.R.A. 792 (July 30, 1993). (Phil.),
reprinted in 33 I.L.M. 173, 187 (1994) [hereinafter Minors Oposa].
2 Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. Nos. 171947–
48 (S.C., Dec. 18, 2008). (Phil.).
3 See generally James R. May, Constituting Fundamental Environmental Rights
Worldwide, 23 PACE ENVTL. L. REV. 113 (2006).

2009] Vindicating Fundamental Environmental Rights Worldwide 367
the environment, to jurisprudential questions about standing and

whether the claims are justiciable, to practical problems about how to
fashion remedies that are muscular enough to be effective, and yet
within the bounds of the court’s authority and legitimacy.
Courts worldwide are with growing frequency recognizing that
human rights and the environment are inextricably intertwined.
Fundamental human rights to life and liberty, for example, cannot be
achieved without adequate environmental conditions of clean water,
air, and land.4 A fair amount has been written about the link between
human and environmental rights:5 whether there is a fundamental
right to a quality environment,6 whether and the extent to which
countries have entrenched environmental rights constitutionally,7 and
the emergence of such rights in the global order of environmental
law.8 We aim to explain how constitutionally enshrined
environmental rights have fared in courts worldwide, and to discuss
features that influence vindication of such rights.
Fundamental environmental rights have followed a crooked path.
Forty years ago, the Universal Declaration of Human Rights first
4 See generally SVITLANA KRAVCHENKO & JOHN E. BONINE, HUMAN RIGHTS AND THE
ENVIRONMENT: CASES, LAW AND POLICY (2008).
5 See e.g., W. PAUL GORMLEY, HUMAN RIGHTS AND THE ENVIRONMENT: THE NEED
FOR INTERNATIONAL CO-OPERATION (1976); Melissa Thorme, Establishing Environment
as a Human Right, 19 DENV. J. INT’L L. & POL’Y 301 (1991); J.G. Merrills,
Environmental Protection and Human Rights: Conceptual Aspects, in HUMAN RIGHTS
APPROACHES TO ENVIRONMENTAL PROTECTION 25 (Alan E. Boyle & Michael R.
Anderson eds., 1996) (reconciling environmental and human rights).
6 See generally STEPHEN J. TURNER, A SUBSTANTIVE ENVIRONMENTAL RIGHT (2009);
Environmental Law Institute, U.N. Env’t Program [UNEP], Constitutional Environmental
Law: Giving Force to Fundamental Principles in Africa (2007) [hereinafter Constitutional
Environmental Law]; TIM HAYWARD, CONSTITUTIONAL ENVIRONMENTAL RIGHTS 12-13
(2005); Marc Pallemaerts, The Human Right to a Healthy Environment as a Substantive
Right, in HUMAN RIGHTS AND THE ENVIRONMENT 11, 11–21 (Maguelonne Déjeant-Pons
& Marc Pallemaerts eds., 2002) (discussing the extent to which international law
recognizes the existence of a substantive individual right to a healthy environment).
7 See May supra note 3; see, e.g., Ernst Brandl & Hartwin Bungert, Constitutional
Entrenchment of Environmental Protection: A Comparative Analysis of Experiences
Abroad, 16 HARV. ENVTL. L. REV. 1 (1992); Dinah Shelton, Human Rights,
Environmental Rights, and the Right to Environment, 28 STAN. J. INT’L L. 103 (1991)
[hereinafter Shelton I]; Symposium, Earth Rights and Responsibilities: Human Rights and
Environmental Protection, 18 YALE J. INT’L L. 215 (1993); Joseph L. Sax, The Search for
Environmental Rights, 6 J. LAND USE & ENVTL. L. 93 (1990). Cf. José L. Fernandez,
State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution:
A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993) (objecting to enforcement of
constitutional environmental rights).
8 Tseming Yang & Robert V. Percival, The Emergence of Global Environmental Law,
36 ECOLOGY L.Q. 615 (2009).
recognized the link between human and environmental rights.9 This

accord, however, lacked enforceability.10 Next were efforts to have
foundational international environmental measures—such as the
Stockholm Declaration on the Human Environment,11 the Rio
Declaration on Environment and Development,12 and more recently,
the United Nations’ Ksentini Report13—expressly recognize a human
right to a quality environment. These provisions also lack
enforceability. Then, various regional multilateral agreements began
to recognize the right, including the African Charter on Human and
Peoples’ Rights, the Protocol on Economic, Social and Cultural
Rights to the American Convention on Human Rights,14 and the
9 Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d sess., 1st
plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948); see generally EDITH BROWN WEISS, IN
FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND
INTERGENERATIONAL EQUITY (1989) [hereinafter BROWN WEISS I]; R.R. Churchill,
Environmental Rights in Existing Human Rights Treaties, in HUMAN RIGHTS
APPROACHES TO ENVIRONMENTAL PROTECTION, supra note 5, at 89.
10 May, supra note 3, at 123, citing NORMAN DORSEN ET AL., COMPARATIVE
CONSTITUTIONALISM 1313–14 (2003) (“[I]nternational human rights systems do not
include any direct right to a healthy or satisfactory environment. In fact, most important
human rights treaties were put into force prior to the institution of environmental
protection nationally or globally.”); Shelton I, supra note 7, at 116 ( “[T]he scope of
protection for the environment based on existing human rights norms remains narrow
because environmental degradation is not itself a cause for complaint, but rather must be
linked to an existing right.”); Iveta Hodkova, Is There a Right to a Healthy Environment in
the International Legal Order?, 7 CONN. J. INT’L L. 65, 67 (1991); Thorme, supra note 5,
at 317.
11 “Both aspects of a man’s environment, the natural and the man-made, are essential to
his well-being and to the enjoyment of basic human rights—even the right to life itself.”
U.N. Conference on the Human Environment, Stockholm, Swed., June 5–16, 1972, Report
of the U.N. Conference on the Human Environment, at 3, U.N. Doc. A/CONF.48/14/Rev.1
(June 16, 1972); “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 . . . .” Id. at 4, princ. 1.
12 “Human beings are at the centre of concerns for sustainable development. They are
entitled to a healthy and productive life in harmony with nature.” U.N. Conference on
Environment and Development, Rio de Janiero, Braz., June 3-14, 1992, Report of the
U.N. Conference on Environment and Development, princ. 1, U.N. Doc.
A/CONF.151/26/Rev.1 (Vol. I) (1992); “States shall enact effective environmental
legislation. Environmental standards, management objectives and priorities should reflect
the environmental and developmental context to which they apply.” Id princ. 11.
13 See U.N. Econ. & Soc. Council [ECOSC], U.N. Comm’n on Human Rights, Sub-
Comm’n on Prevention of Discrimination & Prot. of Minorities, Human Rights and the
Environment, U.N. Doc. E/CN.4/Sub.2/1994/9 (July 6, 1994) (prepared by Fatma Zohra
Ksentini).
14 African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217
(1982).
Aarhus Convention15 regarding procedural environmental rights in

Europe.16 These have provided idiosyncratic means to engage the
right, most notably in procedural ways.17 Last, domestic courts have
declined to find that these normative developments in international
law amount to a domestically enforceable human right to a quality
and clean environment.18 Meanwhile, many countries still lack the
laws, agencies, resources, or political will to protect environmental
rights. And fewer still had constitutionally enshrined environmental
rights.
Which brings us back to the negotiations the produced the
Stockholm Declaration, circa 1972. In the days leading up to that
venerated meeting a group of contrarians led by Jacques Cousteau—
who did not think much was afoot—set off to hold a “counter”
summit to apply pressure against those attending the official event.19
15 Convention on Access to Information, Public Participation in Decision-Making and

Access to Justice in Environmental Matters, opened for signature June 25, 1998, 2161
U.N.T.S. 447.
16 See Benjamin W. Cramer, The Human Right to Information, the Environment and
Information About the Environment: From the Universal Declaration to the AARHUS
Convention, 14 COMM. L. & POL’Y 73, 89 (2009); see also Ole W. Pedersen, European
Environmental Human Rights and Environmental Rights: A Long Time Coming?, 21 GEO.
INT’L ENVTL. L. REV. 73, 108-09 (2008).
17 Cramer, supra note 16, at 86.
The multilateral or regional agreements that do exist are also largely lacking in
enforcement mechanisms and rely on signatory states to enact their own internal
legislation, which has only occurred in some countries. Fortunately, some
components of environmental human rights activism have found their way into
national statutes and constitutions.
Id. (footnote omitted).
18 See, e.g., Flores v. S. Peru Copper Corp., 343 F.3d 140, 160 (2d Cir. 2003) (finding
customary international law does not include a “right to life” or “right to health”).
19 Oliver A. Houck, A Case of Sustainable Development: The River God and the Forest
at the End of the World, 44 TULSA L. REV. 275, 305 (2008) [hereinafter Houck, A Case of
Sustainable Development].
However, a group of dissidents led by Jacques Cousteau, who had quit the French
delegation to take a more proactive role, held a counter-summit with their own
agenda, paralleling the official one, but treating each issue on the agenda the day
before it would be taken up by the official event. Quickly seized on by the press,
their proposals became, in effect, the agenda to which the government delegations
had to respond. One of the more dramatic proposals was a declaration of a right to
a healthy environment. Who could oppose that? Who even knew what it meant?
And so, emerging from Stockholm was an official resolution that nations should
declare a constitutional right to a clean and healthy environment. Most nations in
attendance did just that, and little more. Of all the resolutions adopted, this one
seemed the most innocuous.
Id. (footnotes omitted).
The alternate summit helped convince those at the principal

conference to recognize a right to a healthy environment.20 It also
cajoled the Stockholm Conference to issue a resolution that continues
to resonate: it encouraged nations to have their domestic constitutions
entrench a fundamental right to an adequate environment.21 Of all the
resolutions at Stockholm, the one encouraging efforts to embody
fundamental environmental rights in national constitutions was
thought to be the “most innocuous.”22
Astonishingly, though, that innocuous resolution morphed into an
elegant forerunner to constitutional embodiment of environmental
rights. Since Stockholm, about sixty nations have adopted
constitutionally entrenched fundamental environmental rights.23 The
list of those nations who have is hardly discriminating. It has
developing and developed, north and south, east and west. It contains
nations from the four corners: Africa, the Middle East, Western
Europe, the Former Soviet Bloc, Latin America, and Oceania and
archipelago,24 as well as those with civil, common law, Islamic,
Native American, and other traditions.25 It includes countries with
developed, developing, and nascent environmental legal and
regulatory structures. Moreover, the constitutions of many more
contain “directive principles” to guide national policy and procedural
rights, specifically for matters affecting the environment.26
Adjudicating constitutionally entrenched environmental rights
comes with certain unavoidable challenges. New concepts and
vocabulary need to be developed. Does the noun “environment”
mean human environment, natural environment, or both? And which
adjective to choose: “quality,” “healthful,” “clean,” “adequate,” or
something else? What does a fundamental right to a quality
environment entail? And how does one recognize an infraction,
identify who is responsible, and impart remedies? The applications
seem limitless, ranging from whether a fundamental environmental
20 Id.
21 Id.
22 Id.
23 See May, supra note 3, App. A (listing constitutional provisions recognizing
fundamental environmental rights).
24 Id.
25 See generally Constitutional Environmental Law, supra note 6.
26 See May, supra note 3, App. B (listing constitutional provisions recognizing
environmental policies, duties and procedural rights).
right engenders a right to potable water to protection from the effects

of climate change.27
Vindication of fundamental rights by environmental advocates face
the usual hurdles: cost, competence, conviction, skepticism, and
vigilant defense counsel. It can be exhausting. Advocates pursuing
constitutional environmental rights play Rogers to defense counsel’s
Astaire: she had to do everything he did only backward and in high
heels. Inertia to new constitutional rights is often buttressed by
superior funding, resources, access to power, and judicial reluctance
to recognize new rights and remedies.
Regardless, one might suppose that with so much constitutional
entrenchment of fundamental environmental rights during the last
forty years that advocates would have beaten a path to the courthouse
door, and that there would be a rich body of judicial decisions
implementing constitutional fundamental rights.
That much has not happened. There are surprisingly few judicial
decisions implementing constitutionally enshrined environmental
rights provisions.28 But the trend is positive and powerful.29 Those
courts that have embraced these provisions have transformed a notion
writ large—environmental human rights—into a multitude of national
narratives writ small, from the last stands of ancient forests in the
Philippines to the last cold-climate forests in Patagonia, from the
Ganges River in India to the Archeoos River in Greece, from
celebrated woodlands of Hungary to water supplies in Africa. In
many cases constitutionally enshrined environmental rights provided
the last clear chance at vindicating a human right to an adequate
environment.
What follows examines the extent to which constitutionally
embedded fundamental environmental rights have met the promise of
ensuring a right to a quality environment.30 It explains these results
27 See Randall S. Abate, Climate Change, The United States, and the Impacts of Arctic
Melting: A Case Study in the Need for Enforceable International Environmental Human
Rights, 43A STAN. J. INT’L L. 3, 10 (2007) (discussing the relationship between human
rights and environmental protection).
28 May, supra note 3, at 133–36.
29 Barry E. Hill et al., Human Rights and the Environment: A Synopsis and Some
Predictions, 16 GEO. INT’L ENVTL. L. REV. 359, 382 (2004) (“In an increasingly large
number of countries, but still the vast minority, courts are finding environmental
constitutional provisions self-executing, conveying both procedural and substantive
rights.”).
30 The purpose here is not to quibble about which adjective is most appropriate. We
use “quality” as the default and “adequate,” “healthy,” and “clean” generically except as
applied to the constitutional nomenclature of a specific constitution.
and suggests ways to neutralize judicial resistance to these emerging

constitutional rights. Part I marks the emerging trend and prevalence
of constitutionally entrenched rights to a quality environment in
constitutional systems worldwide. Part II chronicles judicial
receptivity to these provisions and observes that courts have
approached them as either independent, dependent, derivative, or
dormant. Part III examines institutional and structural factors,
conceptual disjunctions, and pragmatic considerations that help to
explain judicial receptivity to constitutionally entrenched
environmental rights. And, finally, Part IV suggests modalities for
successful constitutional environmental litigation of constitutionally
enshrined environmental rights.
We conclude that courts have engaged fundamental environmental
rights provisions fairly infrequently, and that judicial receptivity to
fundamental environmental rights provisions embedded in domestic
constitutions belies predictable patterns. There is no unitary
explanation for the relative dearth of cases that involve these
provisions. In any given country, the reasons for the lack of
receptivity may be structural, institutional, political, or practical, or a
combination of each.
Yet while courts have not been as enthusiastic to embrace
environmental rights as some might have expected, there is noticeable
and steady progress toward their growing recognition in courts
throughout the world. And as courts become more aware of what
their peers are doing, this momentum is likely to increase. Moreover,
even where courts have not accepted that a constitutional
environmental right has been contravened, the mere fact that such
arguments are being made and considered augments the attention that
constitutional fundamental environmental rights receive in public
discourse. And this, in itself, can meaningfully contribute to the
success of environmental claims in the future. The result is that
collectively the judiciary will continue to play a necessary, if not
sufficient, role in the vindication of fundamental environmental rights
worldwide.
I
CONSTITUTIONAL ENTRENCHMENT OF FUNDAMENTAL
ENVIRONMENTAL RIGHTS
All inhabitants enjoy the right to a healthful, balanced environment
fit for human development, so that productive activities satisfy
current needs without compromising those of future generations
....
Constitución Argentina31
With such a high percentage of Nepalis totally dependent on the
land for survival, a healthy environment and continued supply of
natural resources are vital. Faced with the reality of prolonged
droughts, unpredictable weather patterns caused by climate change
is making already vulnerable Nepalis even more vulnerable.
Activists are now pushing for environmental rights to be enshrined

as a fundamental right in the new constitution.
Dewan Rai32
A. Structural and Syntactical Choices

Domestic constitutions tend to reflect environmental norms in one
of three ways:33 (1) as a policy directive, (2) as a procedural right or
duty, or (3) as a substantive right either expressly or implicitly.34
Policy directives are intended to influence governmental decision-
making but are generally not directly judicially enforceable. For
example, in 1966, Uruguay amended its constitution to provide the
policy directives that “[t]he protection of the environment is of
common interest.”35 The 2003 Constitution of Qatar provides that
31 Constitución Argentina, art. 41. Unless otherwise noted, all constitutional

translations and quotations are per Constitutions of the Countries of the World, Oceana,
http://www.oceanalaw.com, compiled in May, supra note 3, App. A.
32 Dewan Rai, Naturally Nepal: Protecting the Natural Environment is Protecting the
Nation, NEPALI TIMES, May 22–28, 2009, available at http://www.nepalitimes.com.np/
issue/2009/05/22/ConstitutionSupplement/15973.
33 See HAYWARD, supra note 6, at 72–92; see also May, supra note 3, at 115
(“Constitutional provisions offer broad and powerful tools for protecting the
environment . . . .” (quoting Carl Bruch et al., Constitutional Environmental Law: Giving
Force to Fundamental Principles in Africa, 26 COLUM. J. ENVTL. L. 131, 132 (2001)).
34 Professor Glazewski divides domestic constitutional environmental provisions into
those that (1) confer a human right, (2) direct policy, and (3) impose a duty. Jan
Glazewski, The Environment, Human Rights and a New South African Constitution, 7 S.
AFR. J. HUM. RTS. 167, 173–75 (1991).
35 Constitución Política de la República Oriental del Uruguay de 1967 con las
Modificaciones Hasta 1996, art. 47. In 2004, the Constitution was amended to state that
“[t]he State endeavors to protect the environment and its natural

balance, to achieve comprehensive and sustainable development for
all generations.”36 Constitutional policy directives can be
instrumental in providing environmental norms that loomed large, for
example, in saving Greece’s famed Acheloos River from being
dammed beyond recognition.37 Even in countries yet established, a
draft constitution might contain environmental policy directives. For
example, Palestine’s May 2003 Draft Constitution says the State
“strives to achieve a clean, balanced environment.”38
The constitutions of many countries recognize procedural
environmental rights, including environmental assessment and rights
to information and participation.39 Bolivia (in 2009)40 and Kosovo (in
“‘water is a natural resource essential to life,’ and that access to piped water and sanitation
services are ‘fundamental human rights.’” Raul Pierri, Uruguay: Referendum Gives
Resounding ‘No’ to the Privatisation of Water, IPS, http://ipsnews.net/
interna.asp?idnews=26097.
36 Permanent Constitution of the State of Qatar pt. II, art. 33.
37 See Houck, A Case of Sustainable Development, supra note 19, at 286–87; see also
OLIVER A. HOUCK, TAKING BACK EDEN: EIGHT ENVIRONMENTAL CASES THAT
CHANGED THE WORLD 131–50 (2010) [hereinafter HOUCK, TAKING BACK EDEN]
(explaining the Acheloos story and providing pictures).
In the absence of legislation, all the Court had to work with was the Article 24 of
the Greek Constitution, which stated opaquely that environmental protection was an
“obligation of the state” and that the government should take “special measures” to
conserve it. There was nothing about citizen lawsuits, impact assessment, or
sustainability. . . . It took Article 24 and within a few years created a roadmap for
environmental impact review, and strong protections for coastal areas, urban
ecology, and other sensitive parts of the landscape—and the right of all Greek
citizens to enforce them.
Houck, A Case of Sustainable Development, supra note 19, at 286–87 (footnotes omitted).
38 Constitution of the State of Palestine Third Draft, art. 15, available at
http://www.jmcc.org/documents/palestineconstitution-eng.pdf.
39 See William Onzivu, International Environmental Law, the Public’s Health, and
Domestic Environmental Governance in Developing Countries, 21 AM. U. INT’L L. REV.
597, 672 (2006) (“International human rights law and national constitutions provide for
procedural rights that are instrumental in the protection of human health and the
environment. These rights include freedom of association, freedom of information, public
participation in decisionmaking processes, and access to justice and judicial review.”)
(footnote omitted); Cramer, supra note 16, at 74 (“The push for a fundamental human
right to environmental protection is in turn inspiring demands for access to government
documents and meetings that deal with environmental matters.”); Gyula Bandi, The Right
to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT’L L.
439, 450–65 (discussing the Hungarian Constitution’s public participation provisions);
HAYWARD, supra note 6, at 200–03 (discussing procedural environmental rights in Africa
and elsewhere).
40
See generally World Resources Institute, Bolivia’s New Pro-Environment
Constitution, http://projects.wri.org/node/1206 (last visited Feb. 11, 2010) (describing
2008),41 for instance, have recently included provisions for

participation in environmental decision making. While procedural
rights can be enforceable, they do not impart a substantive right to a
quality environment.42 For example, in 2007, Thailand amended its
constitution to require an environmental assessment and public
participation prior to government approval of any project that “may
seriously affect the quality of the environment, natural resources and
biological diversity.”43 About 130 countries have constitutional
provisions that reflect policy directives and procedural rights.44
The end game, though, is played out in provisions that purport to
provide a substantive right. Since the Stockholm Conference, about
sixty countries have included or added constitutional provisions that
expressly recognize a right to a quality environment.45 The more
recent of these include Ecuador in 2007,46 France in 2005
(“[e]veryone has the right to live in a balanced and health-friendly
environmental rights provisions in new constitution, including public participation in

environmental decision making).
41 United Nations Interim Administration Mission in Kosovo, Constitutional
Framework for Provisional Self-Government, UNMIK/Reg/2001/9, May 15, 2001, pmbl.,
available at http://www.unmikonline.org/constframework.htm (“Recognizing the
importance of creating a free, open and safe environment which facilitates the participation
of all persons including all members of Communities in the process of establishing
democratic institutions of self-government.”).
42 Brandl & Bungert, supra note 7, at 82, tbl.1 (discussing constitutional environmental
policies of Germany, Austria, Switzerland, the Netherlands, Spain, Greece, Portugal,
Turkey, and Brazil).
43 Ra tta‘tamma noon Ha‘eng Raatcha anaaja‘k Tai [Ra tta‘tamma noon] [Constitution]
§ 67 (Thail.):
Any project or activity which may seriously affect the quality of the environment,
natural resources and biological diversity shall not be permitted, unless its impacts
on the quality of the environment and on health of the people in the communities
have been studied and evaluated and consultation with the public and interested
parties have been organized, and opinions of an independent organization,
consisting of representatives from private environmental and health organizations
and from higher education institutions providing studies in the field of
environment, natural resources or health, have been obtained prior to the operation
of such project or activity.
44 See May, supra note 3, App. B.
45 See id. at 129, App. A; see also EARTHJUSTICE, ENVIRONMENTAL RIGHTS REPORT
2008, available at http://www.earthjustice.org/library/reports/2008-environ mental-rights-
report.pdf. For another compilation, see A Substantive Environmental Right, Resources,
http://hrge.org/en/resources (last visited Jan. 20, 2010).
46 Constitución Política de la República del Ecuador, art. 14, available at
http://www.asambleanacional.gov.ec/documentos/constitucion_de_bolsillo.pdf (“Right to
live in an environment that is healthy and ecologically balanced,” and that guarantees
sustainable development.).
environment”),47 and Afghanistan in 2004 (right to “prosperous life

and sound living environment for all inhabitants of this land”).48
Some provisions are self-referential. The 1987 Constitution of the
Philippines, for example, proclaims that “[t]he State shall protect and
advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.”49 The individual
rights segment of the Chilean Constitution of 1980 guarantees the
right to live in an environment free of contamination (pollution) and
states that it is “the duty of the State to see to it that this right is not
affected and to control the preservation of nature.”50 The Rwandan
Constitution entitles every citizen “to a healthy and satisfying
environment.”51 One of the more elaborate provisions is found in the
1996 South African Constitution:
Everyone has the right[:]
a. to an environment that is not harmful to their health or
well-being; and
b. to have the environment protected, for the benefit of
present and future generations, through reasonable legislative
and other measures that—
i. prevent pollution and ecological degradation;
ii. promote conservation; and
iii. secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development.52
The great diversity in linguistic approaches makes these provisions
seem haphazard; the almost complete lack of evidence of framers’
intent about environmental provisions reinforces the sense of
randomness.
47 Charter of the Environment, 2004 (adopted into the Constitution, Constitución

Política de la República del Ecuador, pmbl).
48 Const. of Afg. pmbl.
49 CONST. (1987), Art. II, § 16, (Phil.).
50 Constitución Política de la República de Chile de 1980 ch. III, art. 19(8).
51 Const. of the Rep. of Rwanda art. 49.
52 S. AFR. CONST. 1996 art. 24. Even in South Africa, where volumes have been
written about the writing of the constitution, relatively little attention has been paid to this
provision; see HASSEN EBRAHIM, THE SOUL OF A NATION (1998); see also Constitución
Argentina, art. 41.
B. Shaping Framers’ Views on Fundamental Environmental

Rights
The diversity of approaches to constitutionalizing fundamental
environmental rights is shaped by three considerations. First is
whether human rights, including environmental rights, ought to be
constitutionalized at all,53 and if so whether they should be included
as a substantive feature in the instrument’s “Bill of Rights” or
otherwise.54 On one hand, substantive rights are those that
individuals within society might deem most salient, including the
right to life, liberty, and property.55 These are preferable to rights’
advocates. Entrenching constitutional rights “are strong indicators of
national opinio juris and represent the highest level of national law
operating as a lex suprema.”56 They “stand on an equal footing with
other fundamental rights,”57 are less destructible “than statements of
policy or procedural norms, enjoy the highest level of legal norms, are
less subject to political whims, and tend to be better understood by
both the polity and citizenry.”58 They can remedy “a public assault
upon an individual’s substantive right to life and health.”59 They
53 See HAYWARD, supra note 6, at 63–92 (arguing in favor of constitutionalizing

environmental rights).
54 Id. at 93–128.
55 May, supra note 3, at 118, n.26, citing John Hart Ely, who described the U.S.
Constitution as “not one of trying to set forth some governing ideology . . . but rather one
of ensuring a durable structure for the ongoing resolution of policy disputes.” JOHN HART
ELY, DEMOCRACY AND DISTRUST 90 (1980).
56 Pedersen, supra note 16, at 111.
57 Brandl & Bunger, supra note 7, at 87 (explaining classical-liberal, institutional,
value-oriented or objective, democratic, and social theories supporting fundamental
rights).
The strongest argument in favor of an environmental fundamental right is that
such a right is a mechanism for resolving conflicts. . . . Inclusion of environmental
rights in the constitution amounts to a declaration that such rights stand on an equal
footing with other fundamental rights and freedoms. . . . [It] indicates that a nation
bestows upon environmental protection the same respect it grants the right to life
and physical integrity.
58 May, supra note 3, at 118.
59 Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L.
REV. 1063, 1109 (1992). As Professor Brooks explains,
The fundamental purpose of a constitutional right to a healthful environment is
to frame the description of the pollution event in terms of a public assault upon an
individual’s substantive right to life and health. [These] values . . . are nationally
shared. From this point of view, a federal constitutional right to a healthful
environment makes sense.
provide explicit positive or negative rights and other advantages.60 As

legal norms they are superior to statutory or regulatory law, and they
can promote model character and national pride.61 Moreover, many
countries lack the resources and statutory and regulatory architectures
to provide a quality environment.62 Where these mechanisms fail,
constitutional substantive environmental rights provide a “safety net”
for addressing environmental issues.63
On the other hand, skeptics argue that constitutionalizing a human
right trivializes it,64 has unacceptable counter-anti-majoritarian
effects,65 dilutes other fundamental rights, creates “spillover” effects
Id.
60 See, e.g., Abate, supra note 27, at 26 (“[R]ecognition of environmental health as a
fundamental right protects citizens from political whims; provides policy guidance to
courts, legislatures, corporations, and private citizens; and highlights the growing
importance of conserving ecosystems and biodiversity.”).
61 As Brandl and Bungert observed:
[E]nvironmental protection in a constitution offers several advantages over

statutory law. Constitutional implementation enables environmental protection to
achieve the highest rank among legal norms, a level at which a given value trumps
every statute, administrative rule, or court decision. . . . In addition, addressing
environmental concerns at the constitutional level means that environmental
protection need not depend on narrow majorities in legislative bodies. Rather,
environmental protection is more firmly rooted in the legal order because
constitutional provisions ordinarily may be altered only pursuant to elaborate
procedures by a special majority, if at all.
In addition, as the supreme law of the land, constitutional provisions promote a
model character for the citizenry to follow, and they influence and guide public
discourse and behavior. On a practical level, the public tends to be more familiar
with constitutional provisions than specific statutory laws. Citizens tend to identify
with, and in turn are identified by, the form of their national constitution. Thus,
establishing some form of environmental protection in a national constitution
results in the identification of environmental protection with expressions of
national pride and character. The establishment process itself further informs the
nation's consciousness.
Thus, constitutional enactment of environmental goals offers an opportunity to
promote environmental concerns at the highest and most visible level of a legal
order, where the impact on laws and the public could prove to be quite dramatic.
Brandl & Bungert, supra note 7, at 4–5.
62 Bruch et al., supra note 33, at 134 (“Even countries with advanced environmental
protection systems find that their laws do not address all environmental concerns; this
problem is more pronounced in nations that are still developing environmental laws and
regulations.”).
63 Id. at 134. For an interesting argument in favor of amending the South African
Constitution to include fundamental environmental rights, see Glazewski, supra note 34, at
177–98.
64 See May, supra note 3, at 127.
65 See id.
that curtail private property,66 undermines executive mandates,67 and

invites political and societal backlash.68 Others maintain that a
specific environmental right is redundant in those constitutional
systems that already guarantee a right to life, which some courts have
construed as including a right to a quality environment.69
The second consideration is whether there ought to be a
constitutional right to some degree of environmental quality as a
threshold matter. Confounding factors include lack of syntactical
precision,70 purpose, precedential value,71 political will, resources,72
66 See id. at 128.

67 See Onzivu, supra note 39, at 673–74 (“Constitutional provisions offer a strong tool
for health and environmental protection in developing countries and courts are
instrumental in ensuring their application. However, some commentators have stated that
excessive environmental activism by courts has undermined executive mandates to protect
the environment.”).
68 Professor Lazarus makes the following observation about rights-based political
theory:
[T]here are individuals on both sides of the environmental protection debate who
summarily reject any characterization of environmental lawmaking as the attempt
to balance competing economic interests. Each camp views their position as being
supported by absolute, not relative, rights. The right to human health. The right to
a healthy environment. The rights of nature itself. The right to private property.
The right to individual liberty and freedom from the will of the majority.
. . . Each side tends to view the other as beginning from an unacceptable moral
premise.
RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 28 (2004).
69 Onzivu, supra note 39, at 672 (“The right to life is an important basis to promote
health and the environment. Courts have positively ruled on concerns such as pollution,
environmental health, and related health concerns.”). Hayward says that this proposition
"is ultimately . . . not very credible, since environmental protection is not a primary aim."
HAYWARD, supra note 6, at 13.
70 Joshua J. Bruckerhoff, Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights, 86 TEX. L. REV. 615, 625–26
(2008):
[O]nly a few national courts have held that their constitution's purported
environmental right is actually enforceable. In many cases, the problem of
enforcement is a product of the constitutional language itself—when the provision
is passive or vague, it is difficult for courts to determine both if and how to interpret
the right. (footnote omitted).
71 Thomas T. Ankersen, Shared Knowledge, Shared Jurisprudence: Learning to Speak
Environmental Law Creole (Criollo), 16 TUL. ENVTL. L.J. 807, 822–23 (2003):
Several factors contribute to the difference in the jurisprudential efficacy of
national constitutional environmental rights in Latin America and the Caribbean.
These include the force and clarity of the language creating the right, the extent to
which the right can be characterized as a “fundamental” and “subjective right”
(derecho subjetivo), a “collective right” (derecho collectivo), or both under the
standing,73 and judicial competency. Above all, there is the question

of meaning, of adjective (“adequate”? “healthful”? “quality”?) and of
noun (“environment”).74 Just when is constitutional review
triggered?75 On the other hand, countries with constitutional courts—
such as South Africa, Hungary, and Turkey—would seem to be more
inclined and better equipped to give substance to constitutionally
entrenched fundamental environmental rights provisions.
At bottom, there is no standard approach for identifying or
vindicating fundamental environmental rights.76 Definitional issues
national legal system, and whether the right can be interpreted in a manner that has
precedential value.
See also Bruckerhoff, supra note 70, at 637 (“The constitutional provision itself can, if
properly written, help resolve some of the principal questions surrounding the enforcement
of environmental rights by directing the judiciary to construe the environmental provision
as an individually enforceable right.”).
72 Abate, supra note 27, at 27 (“[C]ountervailing economic and social factors, such as
lack of political will or resource constraints, are likely to affect nations’ decisions to
enforce environmental rights provisions.”).
73 Bruckerhoff, supra note 70, at 628–29:
Various constitutional-environmental-rights provisions are ineffectual because

courts have employed a limited and defined notion of standing to restrict
environmental rights cases.
....
It is possible for constitutional text to encourage liberalized standing rules.
When the environmental right also protects “future generations,” courts have been
more likely to apply liberalized standing rules. (footnote omitted).
74 See, e.g., Karen E. MacDonald, Sustaining the Environmental Rights of Children: An
Exploratory Critique, 18 FORDHAM ENVTL. L. REV. 1, 7 (2006):
[E]nvironmental rights are those rights related to environmental standards or
protection that are safeguarded so as to benefit someone or something. That
someone or something could be the environment itself, humans or combinations
thereof. Environmental rights thus concern the right to protect human health and
private or common property (including the “natural” environment) from damage or
potential damage sourced through the environment.
See also Hill et al., supra note 29, at 395:
Once a court has determined that a constitutional-environmental provision is
self-executing and the plaintiff has standing, it must determine the standard against
which it will review the complained of action. With the exception of the State of
Hawaii, which defines “healthful,” using standards established by state and federal
law, state constitutional provisions affording a right to a clean and healthy
environment provide little specific guidance as to the appropriate standard of
review. (footnotes omitted).
75 Bruckerhoff, supra note 70, at 638 (“In the context of environmental rights, the more
important element of constitutional review is designing an objective test to determine
when constitutional review is triggered.”).
76 See HAYWARD, supra note 6, at 25–58 (making a case for a human right to an
“adequate environment”); Hill et al., supra note 29, at 361:
abound, including whether “environment” is anthropogenic or should

include ecocentric interests such as biodiversity. Some observe that
traditional liberal constitutional theory supports a strictly
anthropogenic approach.77 Others argue that environmental rights
ought to be stretched to include non-human harms and biodiversity.78
The nearly unending scope of a human right to a quality environment
can diminish judicial receptivity to enforcing such a claim. To some,
the scope of definitional issues suggests that whether or not to
recognize environmental rights is best left to a legislative body, not to
courts, and therefore ought not to be addressed in judicially
enforceable constitutional provisions.
[W]hile there appears to be a growing trend favoring a human right to a clean and
healthy environment—involving the balancing of social, economic, health, and
environmental factors—international bodies, nations, and states have yet to
articulate a sufficiently clear legal test or framework so as to ensure consistent,
protective application and enforcement of such a right.
See also Onzivu, supra note 39, at 666:
The right to a healthy environment is controversial, but scholars have attempted to
link the environment to human rights. A school of thought believes that no human
rights exist without environmental rights. Another school believes no
environmental rights exist. Another school believes there is an environmental right
based on existing rights such as the right to health and right to information.
(footnotes omitted).
77 Abate, supra note 27, at 10 (“Existing sources of domestic and international law
embrace a human-centered approach to environmental protection and recognize the
connection between human rights and environmental protection. These mechanisms can
serve as a viable foundation upon which to build a new system to recognize and protect
international environmental human rights.”); Onzivu, supra note 39, at 667 (“An emerging
right to a healthy environment favors the protection of public health. This is because such
a right is viewed as anthropocentric and ecocentric, supporting environmental protection
for both public health and intrinsic or aesthetic reasons.”).
78 Dinah Shelton, Human Rights and the Evironment: What Specific Environmental
Rights Have Been Recognized?, 35 DENV. J. INT’L L. & POL’Y 129, 163 (2006)
[hereinafter Shelton II] (“Moreover, recognizing a right to environment could encompass
elements of nature protection and ecological balance, substantive areas not generally
protected under human rights law because of its anthropocentric focus.”); Bruckerhoff,
supra note 70, at 646 (“A less anthropocentric interpretation of constitutional
environmental rights could be one, albeit small, component of national and international
efforts to protect the wonders of nature for us and for the benefit of our children.”). The
prospects of a less anthropogenic approach seem unlikely at present.
As world environmental concerns continue to grab public attention, it is likely
that we will see increased environmental rights litigation. It is unlikely, however,
that any country will amend its constitution in the near future to either include
provisions on biodiversity protection or to make its environmental right less
anthropocentric.
Id. at 645 (footnote omitted).
The third consideration is whether the country possesses the

wherewithal to enforce constitutional fundamental environmental
rights. The reach of constitutional environmental rights provisions
boggles the mind: “Like human rights, environmental law houses a
hidden imperial ambition; both potentially touch upon all spheres of
human activity, and claim to override or trump other
considerations.”79 And environmental rights are even broader as they
include nonhuman phenomena as well. They provide “an overarching
legal-normative framework for directing environmental policy.”80
They have the potential to reach most matters affecting the human
condition, including rights to life, dignity, health, food, housing,
education, work, culture, nondiscrimination, peace, and children’s
health,81 as well as the health of the earth’s water, ground, and air.
The nearly limitless application of environmental rights makes it
difficult for constitutional drafters to choose appropriate language by
which to constitutionalize environmental rights and may dampen
judicial enthusiasm for vindication.
Therein lies the question of whether fundamental rights provisions
are enforceable in the first place.
79 Michael R. Anderson, Human Rights Approaches to Environmental Protection: An

Overview, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION, supra
note 5, at 1:
The late twentieth century has witnessed an unprecedented increase in legal claims
for both human rights and environmental goods. Never before have so many
people raised so many demands relating to such a wide range of environmental and
human matters. And never before have legal remedies stood so squarely in the
centre of wider social movements for human and environmental protection. . . .
Like human rights, environmental law houses a hidden imperial ambition; both
potentially touch upon all spheres of human activity, and claim to override or trump
other considerations.
See also Alan Boyle, The Role of International Human Rights Law in the Protection of the
Environment, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION, supra
note 5, at 43; May, supra note 3, at 123–24.
80 HAYWARD, supra note 6, at 6.
81 See ECOSOC, U.N. Comm’n on Human Rights, Sub-Comm’n on Prevention of
Discrimination & Prot. of Minorities, Human Rights and the Environment, ¶ 248, U.N.
Doc. E/CN.4/Sub.2/1994/9 (July 6, 1994) (prepared by Fatma Zohra Ksentini).
Environmental damage has direct effects on the enjoyment of a series of human
rights, such as the right to life, to health, to a satisfactory standard of living, to
sufficient food, to housing, to education, to work, to culture, to non-discrimination,
to dignity and the harmonious development of one’s personality, to security of
person and family, to development, to peace, etc.
See also MacDonald, supra note 74, at 5. (“Others have even argued that environmental
harm can result in a breach of the right to security of the person (non-intervention).”)
(footnote omitted).
C. Presumptions About Enforceability

It has become quite fashionable to include environmental
provisions in new or revised constitutional texts along with provisions
protecting other second, third, and fourth generation rights.
Relatively little attention is paid, however, to the practical
implications of the drafting and ratification processes: drafters seem
to feel that including fundamental environmental rights contributes to
the global legitimacy of the new constitution, and they are willing to
leave the details of enforcement and application to the courts at a later
date.
But there are fair presumptions that can be made about
enforceability. Nations from around the globe recognize
environmental rights in a manner that appears to provide substantive
self-executing civil rights of the first order in constitutional rights
hierarchy.82 That is, they include the right as an express “Right,” or
as a “Major,” “Human,” “Fundamental,” “Basic,” or “Guaranteed”
right. In Africa83 these include: Angola,84 Benin,85 Burkina Faso,86
Chad,87 Congo,88 Ethiopia,89 Mali,90 Niger,91 South Africa,92 Sudan,93
82 See HAYWARD, supra note 6, at 93–128 (examining challenges of judicial

enforcement of fundamental environmental rights); Bruckerhoff, supra note 70, at 627–28
(“It is important for fundamental rights to be self-executing because enforcement of such
rights should not depend on the legislative machinery. Moreover, it is particularly
important for environmental rights to be self-executing because legislatures are not likely
to provide sufficient implementing legislation.” (footnote omitted)).
83 See generally Constitutional Environmental Law, supra note 6.
84 Constituiçao da República de Angola pt. II (“Fundamental Rights and Duties”), art.
24(1) (“All citizens shall have the right to live in a healthy and unpolluted environment.”).
85 La Constitution de la République du Bénin, tit. II (“Rights and Duties of the
Individual”), art. 27 (“Every person has the right to a healthy, satisfying and lasting
environment . . . .”).
86 La Constitution du Burkina Faso, tit. I (“Fundamental Rights and Duties”), ch. IV,
arts. 29–30 (“[Recognizes] the right to a healthy environment . . . [makes] the protection,
the defense and the promotion of the environment . . . a duty for all[, and the] right to
initiate an action . . . .”).
87 Constitution de la République du Tchad, tit. II (“Liberties, Fundamental Rights and
Duties”), ch. I, art. 47(Chad) (“Every person has the right to a healthy environment.”).
88 Constitution de la République du Congo, tit. II (“Rights and Fundamental Liberties”),
art. 35 (Congo) (“Every citizen has the right to a healthy satisfying and durable
environment and the duty to defend it. The State watches over the protection and
conservation of the environment.”); see also Constitution de la République Démocratique
du Congo tit. II (“Human Rights, Fundamental Liberties and the Duties of the Citizen and
the State”), art. 53 (Dem. Rep. Congo) (“All persons have the right to a healthy
environment that is favorable to their development.”).
Togo,94 and the island nations of Cape Verde95 and Seychelles.96 In

Latin America97 these include: Argentina,98 Brazil,99 Ecuador,100 El
89 Federal Negarit Gazeta of the Federal Democratic Republic of Ethiopia

[Constitution], ch. III (“Fundamental Rights and Freedoms”), pt. II (“Democratic Rights”),
art. 44(1) (“All persons have the right to a clean and healthy environment.”).
90 La Constitution de la République du Mali, tit. I (“The Rights and Duties of the
Human Person”), art. 15 (“Every person has a right to a healthy environment.”).
91 Constitution de la République du Niger Du 18 Juillet 1999, tit. II (“On Rights and
Duties of the Human Person”), art. 27 (“Each person has the right to a healthy
environment.”).
92 S. AFR. CONST. ch. 2 (“Bill of Rights”), art. 24 (“Everyone has the right to an
environment that is not harmful to their health or well-being; and to have the environment
protected, for the benefit of present and future generations . . .”).
93 The Democratic Republic of Sudan’s Interim National Constitution, which was
adopted in July 2005 and is due to expire in 2011, provides in pt. 1 (“The State, the
Constitution and Guiding Principles”), ch. II, art. 11(1) that “[t]he people of the Sudan
shall have the right to a clean and diverse environment.” It also provides that “every
citizen shall . . . preserve the natural environment.” Pt. 1, ch. III, art. 23(2)(h).
94 La Constitution de la Republique Togolaise, tit. II (“Rights, Freedoms and Duties of
Citizens”), § I, art. 41 (Togo) (“Anyone has the right to a healthy environment.”).
95 Constituição da República Cabo Verde [Constitution], tit. III (“Economic, Social and
Cultural Rights and Duties”), art. 70(1) (Cape Verde) (“Everyone shall have the right to a
healthy, ecologically balanced environment . . . .”).
96 La Constitution du République des Seychelles, ch. III, pt. I (“Seychellois Charter of
Fundamental Human Rights and Freedoms”), art. 38 (“[R]ecognises the right of every
person to live in and enjoy a clean, healthy and ecologically balanced environment . . . .”).
97 See generally Ankersen, supra note 71, at 820:
In Latin America, environmental rights have been expressed in most of the

region's constitutions, a phenomenon that can be traced back to the 1972 Stockholm
Conference on Environment and Development where the linkage between human
rights and the environment began to evolve. Some countries have devoted whole
chapters of their constitutions to environmental rights. Moreover, lawyers are
asserting the right and courts are developing constitutional jurisprudence around it.
(footnotes omitted).
98 CONST. ARG. pt. 1, ch. 2 (“New Rights & Guarantees”), art. 41 (“All inhabitants
enjoy the right to a healthful, balanced environment fit for human development, so that
productive activities satisfy current needs without compromising those of future
generations . . . .”).
99 Constituição Federal [C.F.] [Constitution] tit. II (“Fundamental Rights &
Guarantees”), ch. I, art. 5(LXXIII) (Braz.) (“[A]ny citizen has standing to bring a popular
action to annul an act injurious to the public patrimony or to the patrimony of an entity in
which the State participates . . . to the environment . . . .”). For a discussion of the
extensive reach of Brazil’s constitutional environmental provisions, see John C. Tucker,
Constitutional Codification of an Environmental Ethic, 52 FLA. L. REV. 299, 312–14
(2000).
100 Constitución Política de la República del Ecuador, tit. III (“Of Rights, Guarantees
and Duties”), ch. 5, § 1, art. 86 (“The State shall protect the right of the population to live
in a healthy and ecologically balanced environment, that guarantees sustainable
development.”).
Salvador,101 Guatemala,102 Honduras,103 and Venezuela.104 Nations of

Eastern Europe that do so include: Azerbaijan,105 Albania,106
Belarus,107 Bulgaria,108 Croatia,109 Chechnya,110 Estonia,111 Georgia,112
Hungary,113 Montenegro,114 Romania,115 Russia,116 Moldova,117
101 Constitución de 1983, Reformas hasta 2003 incluídas de República de El Salvador

tit. II (“The Rights and Fundamental Guarantees of the Person”), ch. II, § 1, art. 34
(“Every child has the right to live in familial and environmental conditions that permit his
integral development, for which he shall have the protection of the State.”).
102 Constitucion de 1985 con las Reformas de 1993 (Guat.), tit. II (“Human Rights”),
ch. II, § VII, art. 93 (“The right to health is a fundamental right of the human being without
any discrimination.”).
103 Constitucion Politica de la République de Honduras 1982, tit. III, ch. VII, art. 145
(“[R]ight to the protection of one’s health . . . .”).
104 Constitución de 1999 República Bolivariana de Venezuela, tit. III, ch. IX, art. 127
(“Every person has a right to individually and collectively enjoy a life and a safe, healthy
and ecologically balanced environment.”).
105 Azrbaycan Konstitusiya [Constitution] (Azer.), second pt. (“Major Rights,
Freedoms, and Responsibilities”), ch. III (“Principal Human Rights and Civil Liberties”),
art. 39 (“[R]ight to live in a Healthy Environment.”).
106 Const. pt. 2 (Alb.) (“The Fundamental Human Rights and Freedoms”), ch. IV
(“Economic, Social and Cultural Rights and Freedoms”), art. 56 (“Everyone has the right
to be informed for the status of the environment and its protection.”).
107 Kanstytucyja Rèspubliki Belarus’ [Constitution], § II (“The Individual, Society and
the State”), art. 46 (“Everyone is entitled to a wholesome environment and to
compensation for loss or damage caused by the violation of this right.”).
108 Konstitutsiya na Balgariya [Constitution] ch. 2 (“Fundamental Rights and Duties of
Citizens”), art. 55 (“Citizens have the right to a healthy and favorable environment . . . .”).
109 Ustav Republike Hrvatske [Constitution] (Croat.), ch. III (“Protection of Human
Rights and Fundamental Freedoms”), pt. 3 (“Economic, Social, and Cultural Rights”) art.
69 (“Everyone has the right to a healthy life.”).
110 Konstituciia Chechenskoj Respubliki [Constitution] (Chechen Republic of Ichkeria)
§ 1, ch. 2, art. 39 (“Everyone has the right to a decent environment, reliable information
about its condition and compensation for damage caused to their health or property as a
result of ecological violation of the law.”).
111 Eesti Vabariigi põhiseadus [Constitution] (Est.) ch. 2 (“Fundamental Rights,
Freedoms and Duties”), § 53 (“Everyone has a duty to preserve the human and natural
112 Sakartvelos K’onstitutsia, ch. 2 (“Georgian Citizenship, Basic Rights and Freedoms
of [the] Individual”), (Geor.), art. 37(3) (“Everyone shall have the right to live in a healthy
113 A Magyar Koztársaság Alkotmánya (Hung.) ch. I (“General Provisions”), art. 18
(“The Republic of Hungary recognizes and shall implement the individual’s right to a
healthy environment.”); ch. XII (Fundamental Rights and Duties), art. 70/D(1) (“Everyone
living within the territories of the Republic of Hungary has the right to the highest possible
level of physical and mental health.”); ch. XII, art. 70/D(2) (“The State shall implement
this right . . . through the protection of the . . . natural environment.”).
114 Const. (Mont.) § 2, art. 23 (“Everyone shall have the right to a healthy environment
and shall be entitled to a timely and complete information on its state. Everyone has the
Slovakia,118 Serbia,119 Slovenia,120 and Ukraine.121 Western

European122 countries include Belgium123 and France.124 Asian
duty to preserve and promote the environment.”); art. 65 (“The state shall protect
environment.”).
115 Constitutia României (Rom.) tit. 2 (“Fundamental Rights, Freedoms, and Duties”),
ch. 2, art. 35(1) (“The State recognizes the right of every person to a healthy, well-
preserved and balanced environment.”).
116 Konstitutsiia Rossiikoi Federatsii [Constitution] ch. II (“Rights and Freedoms of
Man and Citizen”), art. 42 (“Everyone shall have the right to a favorable environment . . .
.”).
117 Const. (Mold.) tit. II (“Fundamental Rights, Freedoms, and Duties”), ch. I
(“Fundamental Rights and Freedoms”), art. 37(1) (“Every person has the right to an
environment that is ecologically safe for life and health as well as to safe food products
and household goods.”).
118 Ústava Slovenskej Republiky [Constitution] (Slovk.) ch. 2 (“Basic Rights and
Freedoms”), § 6, art. 44(1) (“Everybody has the right to a favorable environment.”).
119 Const. (Serb.) pt. 2, art. 74 (“Everyone shall have the right to healthy environment
and the right to timely and full information about the state of environment. Everyone,
especially the Republic of Serbia and autonomous provinces, shall be accountable for the
protection of environment. Everyone shall be obliged to preserve and improve the
environment.”)
120 Ústava Republike Slovenije [Constitution] (Slovn.) pt. 3, art. 72 (“Everyone has the
right . . . to a healthy living environment.”).
121 Konstitutsiya Ukrainy [Constitution] (Ukr.) ch. II (“Human and Citizens’ Rights,
Freedoms and Duties”), art. 50 (“Everyone has the right to an environment that is safe for
life and health . . . .”).
122 See Pedersen, supra note 16, at 108:
Although the approach to a substantive right to the environment is perhaps one of

caution on a regional level in Europe, a number of national constitutions recognize
rights to a healthy environment. These constitutional provisions, while effective
only on a national level, indicate that the issue is one of increasing importance
throughout Europe.
123 De Belgische Grondwet/La Cosntitution Belge/Die Verfassung Belgiens
[Constitution] (Belg.) tit. II (“Belgians and Their Rights”), art. 23 (“Everyone has the right
to lead a life worthy of a human being . . . . includ[ing] . . . [t]he right to enjoy the
protection of a sound environment.”).
124 1958 CONST. tit. XVII (“Charter of the Environment”), art. 1 (“Everyone has the
right to live in a balanced and health-friendly environment.”) (Fr.).
nations include those from East Timor125 to Kyrgyzstan126 and

Mongolia.127
Other nations grant environmental rights in a constitutional manner
that appears self-executing and substantive, though secondary to
enumerated civil and political rights of the first order. For instance,
the following nations identify environmental rights as
“socioeconomic rights”: Chile,128 Colombia,129 Costa Rica,130 South
125 Konstitusaun Du Timor-Leste [Constitution] (E. Timor) pt. II (“Rights, Duties,

Liberties and Fundamental Guarantees”), tit. III (“Economic, Social and Cultural Rights
and Duties”), art. 61(1) (“All have the right to a humane, healthy, and ecologically
balanced environment and the duty to protect it and improve it for the benefit of the future
generations.”).
126 Const. (Kyrg.) § I, ch. II, (“Citizens”) § III, (“Rights and Duties of A Citizen”) art.
35(1) (“Citizens of the Kyrgyz Republic have the right to a favorable and healthy natural
127 Mongol Ulsyn Ündsen Khuuli [Constitution] (Mong.) ch. II (“Human Rights and
Freedom”), art. 16(2) (“The citizens of Mongolia are guaranteed to enjoy . . . [t]he right to
healthy and safe environment, and to be protected against environmental pollution and
ecological imbalance.”).
128 Constitución Política de la República de Chile de 1980 ch. III (“Constitutional
Rights and Duties”), art. 19(8) (“The right to live in an environment free from
contamination.”).
129 Constitución Política de la República de Columbia de 1991 tit. II (“Rights,
Guarantees, and Duties”), ch. III (“Collective Rights and the Environment”), art. 79
(“Every individual has the right to enjoy a healthy environment.”).
130 Constitución Política de la República Costa Rica tit. V (“Social Rights and
Guarantees”), art. 50 (“Every person has the right to a healthy and ecologically balanced
Korea,131 Nicaragua,132 Macedonia,133 Mozambique,134 Paraguay,135

Poland,136 Portugal,137 Sao Tome,138 Spain,139 and Turkey.140
Some nations identify environmental rights in a manner that does
not appear to be directly enforceable, such as in a “Preamble,”
“General Provision,” or as a “Directive Principle.” These include:
Afghanistan,141 Algeria,142 Cameroon,143 Comoros,144 and Norway.145
131 South Korea [Constitution] ch. II (Rights and Duties of Citizens”), art. 35(1) (“All
citizens shall have the right to a healthy and pleasant environment.”).
132 Constitución Política de la República de Nicaragua [Cn.] [Constitution] tit. IV, ch.
III (“Social Rights”), art. 60, La Gaceta [L.G.] 9 January 1987, as amended by Ley No.
330, Reforma Parcial a la Constitución Política de la Republica de Nicaragua, Jan. 18,
2000, L.G. Jan. 19, 2000 (“Nicaraguans have the right to live in a healthy environment.”).
133 Const. (Maced.) § II (“Fundamental Freedoms and Rights of the Individual and
Citizen”), ch. II (“Economic, Social and Cultural Rights”), art. 43 (“Everyone has the right
to a healthy environment.”).
134 Const. (Mozam.) pt. 1, ch. IV, art. 37 (“The State shall promote efforts to guarantee
the ecological balance and the conservation and preservation of the environment for the
betterment of the quality of life of its citizens.”), pt. 2 (“Fundamental Rights, Duties and
Freedoms”), ch. 1, art. 72 (“All citizens shall have the right to live in, and the duty to
defend, a balanced natural environment.”).
135 Constitucion Politica del Paraguay de 1992 pt. I (“About Basic Principles, Rights,
Duties, and Guarantees”) tit. II (“Rights, Duties, and Guarantees”), ch. I (“About Life and
Environment”), § II (“About the Environment”), art. 7 (“Everyone has the right to live in a
healthy, ecologically balanced environment.”).
136 Konstytucja Rzeczpospolitej Polskiej [Constitution] (Pol.) ch. II (“Freedoms, Rights
and Duties of Man and Citizens”), art. 71 (“The Republic of Poland . . . ensures the
protection of the natural environment . . . .”). For a brief account of Poland’s
constitutional environmental provisions, see Tucker, supra note 99, at 315.
137 Constituição da República Portuguesa [Constitution] (Port.) pt. 1 (“Fundamental
Rights & Duties”), tit. III (“Economic, Social, and Cultural Rights and Duties”), ch. II
(“Social Rights and Duties”), art. 66(1) (“All have the right to a healthy and ecologically
balanced human environment and the duty to defend it.”).
138 Const. (São Tomé and Príncipe) pt. II, tit. III, art. 48(1) (“All have the right to
housing and to an environment of human life . . . .”).
139 Constitución [C.E.] (Spain) tit. I (“Fundamental Rights and Duties”), ch. III, art.
45(1) (“Everyone has the right to enjoy an environment suitable for the development of the
person, as well as the duty to preserve it.”).
140 Türkiye Cumhuriyeti Anayasası [Turk. Repub. Const.], pt. II (“Fundamental Rights
and Duties”), ch. III, art. 56 (“Everyone has the right to live in a healthy, balanced
environment.”).
141 Const. of Afg. pmbl. (“[A] prosperous life and sound living environment for all
inhabitants of this land . . . .”).
142 Const. tit. I (“The General Principles Governing the Algerian Society”), ch. V, art.
66 (Alg.) (“Every citizen has the duty to protect public property and the interests of the
national community and to respect the property of others.”).
143 Const. (Cameroon) pmbl. (“[E]very person shall have a right to a healthy
environment.”) and art. 65 (“The Preamble shall be part and parcel of this Constitution”).
144 Const. (Comoros) pmbl. (“[There is] the right to health . . . .”).
Even though such provisions are usually not justiciable, they can still
wield tremendous influence over legislative, policy, and judicial
interpretation.146
Many countries have declined to entrench constitutional
environmental rights. These include Austria,147 Germany,148 the
United States149 (where all efforts to amend the U.S. Constitution to
provide a substantive right to a clean environment have so far failed),
and countries in the Caribbean.150 Nonetheless, the constitutions of
political subdivisions in some of these countries expressly provide a
substantive right to a quality environment,151 including five explicitly
and eleven implicitly in the United States,152 as well as in Canada153
145 Kongeriget Norges Grundlov (Norway) pt. E (“General Provisions”), art. 110 b
(“Every person has a right to an environment that is conducive to health and to natural
surroundings whose productivity and diversity are preserved.”).
146 Hill et al., supra note 29, at 382.
147 See, e.g., Brandl & Bungert, supra note 7, at 23–52 (discussing proposed
environmental rights amendments in Germany and Austria).
148 Id.
149 See Cramer, supra note 16, at 90 (“In America, protection of the environment has
not yet become an inalienable constitutional right for citizens, though there are statutory
protections for obtaining information about protection of the environment.”); J.B. Ruhl,
The Metrics of Constitutional Amendments: And Why Proposed Environmental Quality
Amendments Don’t Measure Up, 74 NOTRE DAME L. REV. 245, 252 (1999) (“[T]o capture
a normative statement about the environment and plug it into the United States
Constitution is simply a bad idea.”). He also notes that of “over ten thousand proposed
amendments to the Constitution . . . . a handful have” succeeded so “there is little chance
that an [environmental quality amendment] will ever find its way into the Constitution.”
Id. at 250–51.
The U.S. Congress, which has enacted what are arguably the strongest
environmental laws yet conceived, has, however, allowed each attempt to create an
express individual right in environmental quality to languish. Congress’ reluctance,
in some significant part, may have to do with the structure of the federal-state
government relationship, more than any specific objection to creation of an
environmental right. . . . Commentators have, therefore, pointed out that creation of
a constitutional-environmental right would create structural questions with respect
to basic notions of federalism, namely the establishment of federal plenary
authority.
Hill et al., supra note 29, at 389–90 (footnotes omitted). See generally Brooks, supra note
59, at 1083; Robin Kundis Craig, Should There Be a Constitutional Right to a
Clean/Healthy Environment?, 34 Envtl. L. Rep. (Envtl. Law Inst.) 11013 (2004).
150 See Hill et al., supra note 29, at 381, n. 84 (“Caribbean constitutions generally have
not addressed a right to a healthy environment.”).
151 For a discussion of the interconnectedness between human rights and the
environment at the subdivision level, see generally ENVIRONMENTAL RIGHTS: LAW,
LITIGATION & ACCESS TO JUSTICE (Sven Deimann & Bernard Dyssli eds., 1995).
152 See EDITH BROWN WEISS ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND
POLICY 416 (1998) [hereinafter BROWN WEISS II] (identifying Illinois, Hawaii, California,
and Germany.154 Moreover, fewer than twenty of the countries with

entrenched constitutional environmental rights make those engaged in
environmentally harmful activities expressly liable for compensation
or remediation, or furnish a right to compensation.155
Judicial resistance to entrenched fundamental rights provisions is
to some extent a function of the genesis of these rights, and to the
haphazard way in which they have been expressed in constitutions.
What emerges is that while there may be a trend toward acceptance,
the judicial reluctance to enforce fundamental environmental rights is
similar to judicial reluctance to enforce other constitutionally
entrenched provisions with a human-rights based pedigree.156 Just
how willing courts have been to enforce entrenched substantive
environmental rights provisions in national constitutions is the subject
of Part II.
II
JUDICIAL TOLERANCE OF CONSTITUTIONALLY ENSHRINED
ENVIRONMENTAL RIGHTS
[I]t has fallen frequently to the judiciary to protect environmental
interests, due to sketchy input from the legislature, and laxity on the
part of the administration.
Chief Justice B.N. Kirpal, Supreme Court of India157
It should be recognized that a healthy environment is a sina qua non
condition for life itself and that no right could be exercised in a
deeply altered environment.
Fundepublico v. Mayor of Bugalagrande158
Florida, Massachusetts, Montana, Pennsylvania, Rhode Island, and Virginia). For a

discussion of judicial application of fundamental environmental rights in state
constitutions in the United States, see Tucker, supra note 99, at 315–24. For an argument
for devolving fundamental environmental rights to the states, see Brooks, supra note 59, at
1063.
153 For a discussion of Ontario’s approach to fundamental environmental rights, see
Sandra Walker, The Ontario Environmental Bill of Rights, in ENVIRONMENTAL RIGHTS:
LAW, LITIGATION & ACCESS TO JUSTICE, supra note 151, at 20.
154 Brandl & Bungert, supra note 7, at 38–44 (discussing German constitutions,
particularly Bavaria’s constitution).
155 Hill et al., supra note 29, at 381-82.
156 Bruch et al., supra note 33, at 134 (“Constitutional provisions that enumerate
substantive individual rights have not always been directly enforceable by citizens, and
even now do not always create an affirmative right. However, a consistent and
increasingly universal trend leans toward giving force to these provisions.”).
157 B.N. Kirpal, Chief Justice, Supreme Court of India, M.C. Bhandari Memorial
Lecture: Environmental Justice in India (2002), in (2002) 7 S.C.C. 1, available at
http://www.ebc-india.com/lawyer/articles/2002v7a1.htm.
Despite the prevalence of constitutionally entrenched fundamental

environmental rights, relatively few courts have actually engaged the
provisions,159 but those that have, have done so in remarkably varied
ways.160 At the most generic conceptual level, one might say that
courts have treated fundamental environmental rights as being either
independent, dependent, derivative, or dormant. An independent
environmental right typically appears expressly in the “Bill of Rights”
or “Fundamental Rights” provisions of a constitution. Dependent
environmental rights are those that, while typically expressed as a
“directive principle” or the like, are nonetheless held to embody
environmental rights. Derivative environmental rights are those that,
while having no textual expression, are found to reside in another
independent constitutional right, such as a “right to life.” Dormant
rights are those that have yet to be tested judicially. In this sense, the
pattern of judicial enforcement of fundamental environment rights is
similar to judicial treatment of other socioeconomic and cultural
rights, such as the right to food, shelter, education, and dignity.
A. Independent Environmental Rights

As discussed in Part I.C., many of the highest courts in Latin
America have given force to constitutional environmental rights
provisions identified above as being presumptively self-executing
including Chile, Peru, Costa Rica, Argentina, and Ecuador, as well as
158 Fundepublico v. Mayor of Bugalagrande, Interlocutorio #032, (Dec. 19, 1991)

(Colom.) [hereinafter Fundepublico], cited in DINAH SHELTON & ALEXANDRE KISS,
JUDICIAL HANDBOOK ON ENVIRONMENTAL LAW, UNEP 7 (2005).
159 Shelton wrote:
The constitutional rights granted are increasingly being enforced by courts. In

India, for example, a series of judgments between 1996 and 2000 responded to
health concerns caused by industrial pollution in Delhi. . . . South African courts
also have deemed the right to environment to be justiciable. In Argentina, the right
is deemed a subjective right entitling any person to initiate an action for
environmental protection. Colombia also recognizes the enforceability of the right
to environment. In Costa Rica, a court stated that the right to health and to the
environment are necessary to ensure that the right to life is fully enjoyed.
Shelton II, supra note 78, at 165–66 (footnotes omitted); Bruch et al., supra note 33, at
140 (“[T]he near-total absence of African court cases interpreting these provisions
suggests that it could be productive to consider how courts in other countries implement
[fundamental environmental rights].”).
160 Ankersen, supra note 71, at 822 (“Despite the fact that most countries now
explicitly address the environment through constitutional guarantees, the legal force and
jurisprudential value of these constitutional provisions varies greatly—ranging from little
more than hortatory aspiration to enforceable positive law.”).
Hungary, Turkey, Portugal, and South Korea.161 For example, in the

1988 case of Pedro Flores v. Corporación del Cobre, Codelco,
Division Salvador, the Supreme Court of Chile upheld a constitutional
environmental right “to live in an environment free from
contamination,”162 in a lawsuit that aimed to stop the deposition of
copper mill tailings onto Chilean beaches to protect marine life.
Likewise, in Comunidad de Chañaral v. Codeco División el Saldor,
the Court upheld the right of a farmer to bring a constitutional right to
life claim to enjoin the drainage of Lake Chungarà. These cases
turned out to be just a taste of things to come.163
In an extraordinary decision in 1997, the Supreme Court of Chile
enforced the provision to stop a huge logging project at the bottom of
the world. In what is commonly referred to as the Trillium decision,
the Court held that the Chilean government’s approval of the Rio
Condor Project, a U.S.-based Trillium Corporation’s $350 million
project to log 270,000 hectacres of pristine forests in Tierra del Fuego
at the southern tip of South America, violated that country’s
constitutional environmental “right to live in an environment free
from contamination.”164 The Court said that this required “the
maintenance of the original conditions of natural resources” designed
to keep “human intervention to a minimum.”165 The Court also held
that the constitutional right to a healthy environment is owed to all
citizens, thus allowing the plaintiffs to pursue the matter as an accion
de amparo even though none of them had personally suffered any
161 See Adriana Fabra Aguilar, Enforcing the Right to a Healthy Environment in Latin
America, 3 REV. EUR. COMMUNITY & INT’L ENVTL. L. 215 (1994). For a description of
several of these actions in Argentina, Brazil, Chile, Colombia, Mexico, and Venezuela in
the 1990s, see generally Isabel Martínez, El Acceso a la Justicia Ambiental en Argentina,
Brasil, Chile, Colombia, México y Venezuela Durante la Década de 1990 (UNEP 2000),
available at http://www.eclac.cl/argentina/noticias/noticias/2/33212/catalogo2008.pdf.
162 Constitucion Politica de la Republica de Chile de 1980 ch. III, art. 19(8) (“The right
to live in an environment free from contamination.”). The cases include Pablo Orrego
Silva y Otros v. Empresa Electrica Pange SA (Sup. Ct., Aug. 5, 1993), and Antonio
Horvath Kiss y Otros v. Nat’l Comm’n for the Env’t (Sup. Ct., Mar. 19, 1997), cited in
SHELTON & KISS, supra note 158, at 7.
163 See Hill et al., supra note 29, at 387; infra text at note 293.
164 The “Trillium Case,” Decision No. 2.732-96, at 8, Supreme Court, Mar. 19, 1997
(Chile), available at http://www.elaw.org/node/1310 [hereinafter Trillium], Constitución
Polítika de la República de Chile de 1980, art. 19(8); see generally, HOUCK, TAKING
BACK EDEN, supra note 37, at 151–74 (explaining the story behind the Trillium case and
providing pictures).
165 Houck, A Case of Sustainable Development, supra note 19, at 307.
injury.166 Likewise, in Proterra v. Ferroaleaciones San Ramon S.A.,

the Supreme Court of Peru permitted citizens to proceed with such
open standing to enforce entrenched environmental rights.167
Trillium shows the agility of fundamental environmental rights. It
helped to preserve some of the world’s last remaining continuous
stands of cold-climate virgin forests, “dwarf trees,” spied and written
about by Magellan and Darwin, but viewed as crop in the 1990s by an
enterprising American.168 It also shows how controversial these
decisions can be. The Court has not recognized the right since. In the
aftermath of Trillium, Chile instituted an environmental review
procedure that has all but relegated its constitutional environmental
rights to administrative purgatory. As Professor Houck wrote:
The constitutional right to protect the environment—the basis of the
first Supreme Court opinion—has been lost in the interminable
166 Id. An accion de amparo is a cause of action to enforce constitutional rights, used
widely throughout the Spanish-speaking world. As Professor Houck explains:
The process is variously called an action of amparo or tutela and works like a
habeas corpus. One story goes that a Spanish judge was dining on the veranda one
day when a group of soldiers came down the street, kicking and propelling a
prisoner ahead of them. The prisoner called out, “Protect me!” (“Amparo!”), at
which point the judge ordered the soldiers to stop, held a hearing on the matter, and
freed the prisoner. Whatever the true origins, Spanish and Latin American
jurisprudence have long afforded special adjudication for constitutional rights.
Where a constitutional violation is alleged, plaintiffs may go directly to a judge,
bypassing the labyrinth and delays of civil practice. All of which would be
academic, but for the fact that, years after they were enacted, enterprising
environmental lawyers dug up the forgotten environmental provisions of their
country’s constitutions and began seeking direct and expedited amparo review to
determine what the phrase “right to a healthy environment” might mean.
Houck, A Case of Sustainable Development, supra note 19, at 306 (footnotes omitted).
167 Proterra v. Ferroaleaciones San Ramon S.A., Judgment No. 1156-90, Supreme
Court, Nov. 19, 1992 (Peru), cited in Constitutional Environmental Law, supra note 6, at
27.
168 For a fascinating account of this case, see Houck, A Case of Sustainable
Development, supra note 19, at 294–95:
Tierra del Fuego remained an isolated dab at the foot of the continent and a dragon
at the gate to the Pacific Ocean. One sailed by Tierra del Fuego, God willing, as
quickly as one could. The thick and stunted forests also remained untouched and
off the radar of a globalizing world until l993, when an enterprising businessman
from Seattle, Washington decided to buy them and cut the timber. Suddenly, Tierra
del Fuego mattered, halfway up the chain of the Andes Mountains to Santiago,
Chile and back to the boardrooms of corporate North America. The furor was
certainly a surprise. Who could possibly care about some dwarf trees at the bottom
of the world?
See also The Center for International Environmental Law, Chilean Supreme Court Rejects
Controversial Trillium Logging Project, Mar. 21, 1999, http://www.ciel.org/Publications/
trillium.html (providing case background).
hallways of administrative law. One has the impression that it will

be a hot day in Tierra del Fuego before the Chilean judiciary goes
this way again. This said, the decision produced one ineludible
effect. An intact, virgin, and very unusual forest park at the very
bottom of the world.169
Other countries in Latin America have also enforced environmental
rights. In Carlos Roberto Garcia Chacon, the Constitutional Court of
Costa Rica upheld a constitutional “right to a healthy and ecologically
balanced environment”170 as fundamental, self-executing, and
enforceable171 and one that “all citizens possess to live in an
environment free from contamination. This is the basis of a just and
productive society.”172 In one celebrated case, a court in Costa Rica
invoked the country’s fundamental environmental rights provision to
stop a transnational banana company from clearcutting approximately
700 hectares—that includes nesting habitat for the endangered green
macaw—near the Tortuguero National Park.173 This case has since
settled with an agreement to institute measure to protect the habitat.174
Likewise, courts in Argentina have found enforceable its
constitutional guarantee that “[a]ll inhabitants enjoy the right to a
healthful, balanced environment fit for human development, so that
productive activities satisfy current needs without compromising
those of future generations.”175 In 1993, the Supreme Court of
Argentina observed that “[t]he right to live in a healthy and balanced
environment is a fundamental attribute of people. Any aggression to
the environment ends up becoming a threat to life itself and to the
169 Houck, A Case of Sustainable Development, supra note 19, at 314 (footnote
omitted).
170 Constitución Política de la República Costa, art. 50.
171 See Adriana Fabra & Eva Arnal, Review of Jurisprudence on Human Rights and the
Environment in Latin America n.5 (Joint UNEP-OHCHR Expert Seminar on Human
Rights and the Environment, Background Paper No. 6, 2002), available at
http://www2.ohchr.org/english/issues/environment/environ/bp6.htm (describing right as a
“fundamental human right”); see also Presidente de law sociedad Marlene S.A. v.
Municipalidad de Tibas, Sala Constitucional de la courte Supreme de justicia, Decision
No. 6918/94, Constitutional Court, Nov. 25, 1994 (Costa Rica), cited in SHELTON & KISS,
supra note 158, at 8.
172 Fabra & Arnal, supra note 171.
173 See Constitutional Environmental Law, supra note 6, at 26; Environment Law
Alliance Worldwide (ELAW), Valuing Biodiversity in Costa Rica (July 1999),
http://www.elaw.org/node/866.
174 Id.
175 CONST. ARG. art. 41.
psychological and physical integrity of the person.”176 In Alberto

Sagarduy, the Supreme Court of Argentina upheld a citizen’s rights to
enforce constitutional environmental rights without first having to
exhaust administrative remedies.177 And in Sociedad de Fomento
Barrio Félix v. Camet y Otros, Argentina’s Supreme Court invoked
the provision in upholding the right to enjoy an ocean view.178
The Constitutional Court of Ecuador has embraced that country’s
enshrinement of fundamental environmental rights. In Fundación
Natura v. Petro Ecuador, the court turned to a constitutional right to
live in a “healthy” environment when it upheld a civil verdict
concluding that Petro Ecuador’s production of leaded fuel violated
federal law.179 In Arco Iris v. Instituto Ecuatoriano de Mineria, the
Court concluded that the company’s degradation of Podocarpus
National Park “is a threat to the environmental human right of the
inhabitants of the provinces of Loja and Zamora Chinchipe to have an
area which ensures the natural and continuous provision of water, air
humidity, oxygenation and recreation.” 180
Courts in post-communist countries in Eastern Europe have also
aimed to implement newly minted constitutional environmental rights
provisions. For example, in 1989, Hungary amended its constitution
to recognize “the individual’s right to a healthy environment.”181 The
Constitutional Court of Hungary seems to have been the first in
176 Irazu Margarita v. Copetro S.A., Camara Civil y Comercial de la Plata, Supreme
Court, May 10, 1993 (Arg.), in SHELTON & KISS, supra note 158, at 7; accord Asociacion
Para la Proteccion de Medio Ambiente y Educacion Ecologica ’18 de Octubre’ v. Aguas
Argentinas S.A., Federal Appellate Tribunal of La Plata, 2003 (Arg.); Kattan v. Nat’l
Gov’t, Juzgado Nacional de la Instancia en lo Contenciosoadministrativo Federal. No. 2,
May 10. 1983, La Ley, 1983-D, 576 (Arg.); see also CONST. ARG. pt. 1, ch. II, § 41.
177 See Fabra & Arnal, supra note 171.
178 Id. (citing Sociedad de Fomento Barrio Félix v. Camet y Otros); see also Irazu
Margarita v. Copetro S.A., Camara Civil y Comercial de la Plata, May 10, 1993 (Arg.), in
179 Case Nos. 377/90, 378/90, 379/90, 380/90 combined, Fundacion Natura v.
Petroecuador, Tribunal of Constitutional Guarantees, Resolution No. 230-92-CP, Oct. 15,
1992 (Ecuador).
180 Case No. 224/90, Arco Iris v. Instituto Ecuatoriano de Mineria, Constitutional Court
of Ecuador, Judgment No. 054-93-CP, translated from Constitutional Environmental Law,
181 A Magyar Köztársaság Alkotmánya [Constitution] (Hung.) art. 18 (“The Republic
of Hungary recognizes and shall implement the individual’s right to a healthy
environment.”), art. 70/D(2) (requiring the State to implement this right “through . . .
protection of the . . . natural environment.”).
Central and Eastern Europe to give force to this type of provision.182

In Case 28/1994, the Court held that the Hungarian legislature’s
efforts to sell for cultivation previously nationalized forested lands
under the former communist regime would be unconstitutional,
finding that it violated the constitutional environmental rights residing
in the Hungarian Constitution.183 The Court rejected the state’s
justification for the repeal, reasoning that “[t]he right to a healthy
environment guaranteed the physical conditions necessary to enforce
the right to human life . . . . extraordinary resolve was called for in
establishing legislative guarantees for the right.”184 Thus, it held that
once the State created a baseline of environmental protection, it could
not thereafter degrade it.185
This case served as a clarion call for similar cases in Eastern
Europe and elsewhere.186 In Eurogold, the Turkish government
agreed to allow the giant French mining conglomerate to use cyanide
heap-leaching to mine gold and other metals from an centuries-old
olive growing region in Turkey. 187 After government-paid loggers
began to remove olive trees, olive farmers brought a suit claiming that
the government’s license contravened Turkey’s new constitutional
environmental right “to live in a healthy, balanced environment.”188
Turkey’s highest administrative court agreed, stopping the operation
182 See Bandi, supra note 39, at 449 (“[T]he right to an environment may serve as a
possible basis for legal action only in the procedure of the Constitutional Court. Only this
court is authorized to revise legal provisions based upon constitutionality. The general
courts rarely use a constitutional right as a reference in cases.”).
183 Alkotmánybíróság [Constitutional Law Court] Case No. 1994/Decision 28, MK.
55/1994 (Hung.), English translation available at http://www.mkab.hu/admin/data/file/
749_28_1994.pdf; Svitlana Kravchenko, Citizen Enforcement of Environmental Law in
Eastern Europe, 10 WIDENER L. REV. 475, 484 (2004) (calling it “a remarkable case.”);
Stephen Stec, Ecological Rights Advancing the Rule of Law in Eastern Europe, 13 J.
ENVTL. L. & LITIG. 275, 320–21 (1998). The Court also held that violation of
environmental rights ran afoul of the constitution’s “right to life.” See CATHERINE
DUPRÉ, IMPORTING THE LAW IN POST-COMMUNIST TRANSITIONS 69, 73–74 (2003).
184 Alkotmánybíróság [Constitutional Law Court] Case No. 1994/Decision 28, at 14,
MK. 55/1994.
185 Id. at 1–3. Some describe this case as enforcing a “third generation” right. See
DUPRÉ, supra note 183, at 69.
186 Kravchenko, supra note 183, at 485. (“There may be room for similar direct
application of national constitutions in other countries of Eastern Europe. For example, in
Ukraine . . . .”).
187 Aaron Sachs, What Do Human Rights Have To Do With Environmental Protection?
Everything., SIERRA MAGAZINE, Nov.-Dec. 1997, available at http://www.sierraclub.org/
sierra/199711/humanrights.asp.
188 Türkiye Cumhuriyeti Anayasası [Turk. Repub. Const.], pt. II, ch. III, art. 56
(“Everyone has the right to live in a healthy, balanced environment.”).
in its tracks.189 Courts in Portugal have found actionable an

analogous constitutional provision that everyone shall have “the right
to a healthy and ecologically balanced human environment and the
duty to defend it.”190 South Korea also recently read its independent
fundamental environmental rights provision as being actionable,
although it declined to find that the government’s failure to regulate
the use of loudspeakers used in furtherance of political campaigns to
have violated the right.191
On the other hand, some courts have declined to enforce other
constitutional provisions that might have been construed as providing
independent environmental rights.192 The Constitutional Court of
Turkey has interpreted the constitutional provision that “[e]veryone
has the right to live in a healthy, balanced environment,”193 as
permitting solely facial challenges to legislation, notwithstanding its
orbit with other “Social and Economic Rights and Duties.”194 And
Spain’s constitutional “right to enjoy an environment suitable for
the development of the person,”195 falls outside the actionable private
“rights” the constitution otherwise guarantees.196 Likewise,
Namibia’s environmental rights provision may only be enforced by an
189 Sachs, supra note 187. Unfortunately the story did not end there and the legal and
administrative battle over the mining continued. See Üstün Reinart, Background to the
Newmont/Normandy Bergama Case, Miners and Communities, Apr. 15, 2002,
http://www.minesandcommunities.org/article.php?a=1347.
190 Constituição da República Portuguesa, art. 66(1); see Brandl & Bungert, supra note
7, at 67 (saying provision “is to be seen primarily as a fundamental right” because, inter
alia, it is a constitutional “Social right[] and dut[y]” enforceable in the Portuguese
Constitutional Court.).
191 Case on the Constitutionality of Election Campaign Using Loudspeaker, July 31,
2008. 2006 Hun-Ma 711, translated by Professor Jibong Lim, Sogang University College
of Law.
192 Abate, supra note 27, at 27. (“Although constitutional statements of environmental
rights are increasing, many national courts, such as those in Spain, Hungary, Turkey,
Cameroon, and Namibia, have severely limited the operation of environmental rights
provisions, often interpreting them to offer no substantive protections or cause of action.”);
see Bruch et al., supra note 33, at 138.
193 Türkiye Cumhuriyeti Anayasası [Turk. Repub. Const.], pt. II, ch. III, art 56.
194 Id. ch. III; see also Brandl & Bungert, supra note 7, at 72 (discussing the
provisions).
195 Constitución [C.E.] tit. I, ch. III, art. 45.
196 Brandl & Bungert, supra note 7, at 65 (noting that the provision “is not enforceable
through a constitutional complaint brought by an individual,” but must be brought by a
state-appointed ombudsman); see also Alberto A. Herrero de la Fuente, in ACCESS TO
JUSTICE IN ENVIRONMENTAL MATTERS IN THE EU 421, 442 (Jonas Ebbesson ed., 2002)
(“The right to an adequate environment . . . is not understood as a fundamental right, but
rather as a leading principle for social and economic politics.”).
ombudsman,197 and citizens of Cameroon are not allowed to pursue

environmental rights before the country’s Constitutional Court.198 In
these decisions, standing and other jurisprudential doctrines
intermingle with the courts’ interpretations of the environmental
rights provision itself.
B. Dependent Environmental Rights

The Supreme Court of the Philippines has led the way in enforcing
dependent environmental rights. In the celebrated case of Minors
Oposa v. Factoran, attorney, writer, and law professor Tony Oposa
filed a lawsuit on behalf of his children, his friends’ children, and
generations to come to “‘prevent the misappropriation or impairment’
of Philippine rainforests and ‘arrest the unabated hemorrhage of the
country’s vital life-support systems and continued rape of Mother
Earth.’”199 At one time, the Philippines contained nearly 100 million
acres of verdant, ancient forests.200 By the 1990s, commercial
logging had reduced this by about ninety-nine percent.201 The
plaintiffs claimed that the government’s continued issuance of timber
licensing agreements (TLAs) violated the country’s recently minted
constitutional directive that, inter alia, “[t]he State shall protect and
advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.”202
In reversing the trial court, the Supreme Court upheld Oposa’s
constitutional claim, and also found that the plaintiffs had standing to
represent themselves, their children, and posterity.203 In a sweeping
pronouncement, the Court determined that rights to a quality
environment are enforceable notwithstanding whether they are
constitutionally expressed because they “exist from the inception of
humankind.”204
197 BROWN WEISS II, supra note 152, at 417.

198 Bruch et al., supra note 33, at 139.
199 Minors Oposa, supra note 1, at 176 (discussing petitioners’ cause of action).
200 Id. at 179; Oliver Houck, Light from the Trees, The Stories of Minors Oposa and the
Russian Forest Cases, 19 GEO. INT’L ENVTL. L. REV. 321, 326 (2007) [hereinafter Houck,
Light from the Trees]; see generally, HOUCK, TAKING BACK EDEN, supra note 37, at 43–
60 (describing the story behind Minors Oposa and providing pictures).
201 Houck, Light from the Trees, supra note 200, at 326.
202 Minors Oposa, supra note 1, at 180–81, (citing CONST. (1987), Art. II, §§ 15–16,
(Phil.)).
203 Minors Oposa, supra note 1, at 185.
204 Id. at 187.
As a matter of fact, these basic rights need not even be written in

the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology
and to health are mandated as state policies by the Constitution
itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far when
all else would be lost not only for the present generation, but also
for those to come—generations which stand to inherit nothing but
parched earth incapable of sustaining life.205
More recently, in Metropolitan Manila Development Authority v.
Concerned Residents of Manila Bay, the same court upheld a request
for multifaceted injunctive relief by the same lawyer as in Minors
Oposa to prevent massive pollution discharges from choking Manila
Bay, and to clean and protect it for the benefit of future generations.206
In upholding the lower court’s granting of injunctive relief, the Court
wrote:
Even assuming the absence of a categorical legal provision
specifically prodding petitioners to clean up the bay, they and the
men and women representing them cannot escape their obligation to
future generations of Filipinos to keep the waters of the Manila Bay
clean and clear as humanly as possible. Anything less would be a
betrayal of the trust reposed in them.207
These two cases serve as an important model for other courts to
follow, particularly for those construing policy directives that purport
to recognize a fundamental right to a healthy environment.
C. Derivative Environmental Rights

Courts from about a half dozen nations have recognized
fundamental environmental rights as deriving from other constituted
civil liberties, such as a “right to life,” including India, Pakistan,
Bangladesh, Nepal, and Columbia. The right to life, being one of the
broadest, is often chosen to harbor environmental rights. Courts in
Southern Asia have led the way in enforcing environmental rights as
deriving from some other constitutionally entrenched right, most
commonly a “right to life.”208 Most notably, the highest courts in
205 Id. at 187–88.

206 Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. Nos.
171947–48 (S.C., Dec. 18, 2008). (Phil.).
207 Id.
208 Bruch et al., supra note 33, at 133.
India,209 Pakistan,210 Bangladesh, and Nepal have each read a

constitutional “right to life” in tandem with directive principles aimed
at promoting environmental policy to embody substantive
environmental rights.211
The Supreme Court of India was one of the first to find that a
“right to life”212 embeds a right to a quality environment.213 For
example, in Subhash Kumar v. State of Bihar, the plaintiffs brought
an action to stop tanneries from discharging into the Ganges River. 214
While the Court dismissed the action for lack of standing, it observed
that the right to life is a fundamental right under Article 21 of the
Constitution and “includes the right of enjoyment of pollution-free
water and air for full enjoyment of life.”215 Subsequently in M.C.
Mehta v. Union of India, the Court ordered the tanneries to shut down
unless effluent was first subjected to pretreatment processes approved
by the governing environmental agency: “Closure of tanneries may
bring unemployment [and] loss of revenue, but life, health and
ecology have greater importance to the people.”216
The Supreme Court of Pakistan has held that environmental rights
are embedded within that country’s constitutional “right to life.” In In
re: Human Rights Case (Environment Pollution in Balochistan), the
Court took judicial notice of a newspaper report that, “business
209 See Sanjay Chubai, Environmental Law of India, in INTERNATIONAL

ENVIRONMENTAL LAW AND REGULATION, Ind-1, § 2.2; Hill et al., supra note 29, at 382
(“Perhaps more than in any other country, the judiciary of India has taken a proactive role
in developing jurisprudence around environmental and other constitutional provisions to
help secure a right to a clean and healthy environment for its citizens.”). For a helpful
discussion of these environmental rights in India, see Michael R. Anderson, Individual
Rights to Environmental Protection in India, in HUMAN RIGHTS APPROACHES TO
ENVIRONMENTAL PROTECTION, supra note 5, at 199.
210 For discussion of environmental rights in Pakistan, see Martin Lau, Islam and
Judicial Activism: Public Interest Litigation and Environmental Protection in the Islamic
Republic of Pakistan, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL
PROTECTION, supra note 5, at 285.
211 See Bruch et al., supra note 33, at 166–76 (discussing constitutional interpretation in
Tanzania, India, Pakistan, Bangladesh, Nepal, Columbia, Ecuador, Costa Rica, and some
countries in Africa).
212 INDIA CONST. art. 21.
213 Bandhua Mukti Morcha v. Union of India, (1984) 3 S.C.C. 161 in SHELTON & KISS,
supra note 158, at 8; Charan Lal Sahu v. Union of India, A.I.R. 1990 S.C. 1480 in
214 Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420.
215 Id. cited in SHELTON & KISS, supra note 158, at 8.
216 M.C. Mehta v. Union of India, (1987) 4 S.C.C. 463; see also Charan Lal Sahu v.
Union of India, A.I.R. 1990 S.C. 1480 (interpreting the right to life guaranteed by Article
21 of the Constitution to include the right to a wholesome environment).
tycoons are making attempts to purchase coastal area of Balochistan

and convert it into dumping ground” for nuclear and highly hazardous
waste.217 The Court ordered the agency charged with implementing
environmental laws in the area to monitor land allocations in the
affected area and forbid such use.218 In West Pakistan Salt Miners v.
Directors of Industries and Mineral Development, the Court upheld a
claim that the right to life included a right to water free from
contamination from mining activities: “The right to have unpolluted
water is the right of every person wherever he lives.”219
The Supreme Court of Bangladesh has also held that a right to a
quality environment derives from a constitutional guarantee to a
“right to life.” In Mohiuddin Farooque v. Bangladesh, the petitioner
alleged that the implementation of a substantial flood control plan
would so disrupt the affected community’s life, property, and
environmental security as to violate a constitutional “right to life.”220
While the Supreme Court of Bangladesh held that the Constitution’s
guarantee of a “right to life” included environmental rights, it
dismissed the action, reasoning that petitioners were not “person[s]
aggrieved” within the meaning of Constitution.221 In Subash Kumar
v. State of Bihar, it held that pollutant discharges sufficient to make
the Bokaro River in the State of Bihar unfit for drinking and irrigation
217 Human Rights Case No. 31-K/92(Q), P.L.D. 1994 S. C. 102 (1992) (Pak.), in U.N.
ENV’T. PROGRAMME [UNEP], COMPENDIUM OF JUDICIAL DECISIONS IN MATTERS
RELATED TO ENVIRONMENT: NATIONAL DECISIONS, Vol. I, 280 (1998) [hereinafter
UNEP COMPENDIUM].
218 Id. at 281.
219 1994 S.C.M.R. 2061 (S.C. Pak.), in UNEP COMPENDIUM, supra note 217, at 282;
see also Ms. Shehla Zia et al. v. WAPDA, P.L.D. 1994 S.C. 693, in UNEP COMPENDIUM,
supra note 217, at 323 (constitutional right to life provides cause of action for
electromagnetic hazards associated with construction of power plant and power grid).
220 Mohiuddin Farooque v. Bangladesh, 48 Dir 1996 (S.C. Bangl. App. Div., Civ.), in
UNEP, COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT-
RELATED CASES 90 (2005) [hereinafter UNEP SUMMARIES].
221 Id.
Articles 31 and 32 of our Constitution protect[s] right to life as a fundamental right.

It encompasses within its ambit, the protection and preservation of the environment,
ecological balance free from pollution of air and water, and sanitation, without
which life can hardly be enjoyed. An act or omission contrary thereto will be
violative of the said right to life.
Quoted in Parvez Hassan & Azim Azfar, Securing Environmental Rights Through Public
Interest Litigation in South Asia, 22 VA. ENVTL. L.J. 215, 242 (2004).
could abridge a constitutional “right to life.”222 The Court held that

the “right to life” includes the enjoyment of water and air free of
pollution.223 Nonetheless, the Court dismissed the action, holding that
the petitioner was motivated by self-interest and thus did not have
standing to file a petition on behalf of the public interest.224
The Court has entertained the provision more frequently as of late
in a series of petitions for review brought by the Bangladesh
Environmental Lawyers Association (BELA), for example, to enjoin
dumping of wastes in a flood zone,225 to prevent cutting forests for a
cement factory,226 to curtail pollution caused by a polyurethane
recycling factory,227 and to stop operation of a confectionary and
party shop in a residential area.228
The Supreme Court of Nepal also found that a right to life harbors
environmental protections. In Yogi Narahari Nath v. Honourable
Prime Minister Girija Prasad Koirala, the Supreme Court of Nepal
issued an injunction to stop the government from granting a lease to
establish a College of Medical Science on the site of an
environmentally and archaeologically significant piece of land.229
The Court found that the lease would infringe the constitutional “right
to life,” which it held implicitly includes the right to a pollution-free
environment as “the environment is an integral part of human life.”230
Moreover, in Advocate Kedar Bhakta Shrestha v. HMG, Department
of Transportation Management, it found that the constitutional “right
to life” includes environmental rights.231 In a reverse environmental
rights action of sorts, petitioners claimed that the government’s ban
on the use of “tempos,” three-wheeled diesel-engine-run vehicles that
were a principal source of air pollution in Kathmandu, violated their
222 Subash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420, in UNEP SUMMARIES, supra
note 220, at 104; see also Mohiuddin Farooque, 48 Dir 1996, in UNEP SUMMARIES, supra
note 220, at 90.
223 Subash Kumar, A.I.R. 1991 S.C. 420, in UNEP SUMMARIES, supra note 220, at
104.
224 Id.
225 See BELA v. Bangladesh, (2006) Writ. Pet. 7465.
229 Yogi Narahari v. Honourable Prime Minister Girija Prasad Koirala, 33 N.L.R. 1955
(S.C. Nepal) in UNEP SUMMARIES, supra note 220, at 134.
230 Id.
231 Advocate Kedar Bhakta Shrestha v. HMG, Dep’t of Transp. Mgmt.,Writ No. 3109
of 1999 (S.C. Nepal) in UNEP SUMMARIES, supra note 220, at 138.
right to carry on a trade or business.232 The Court upheld the

governmental action, reasoning that personal freedom to carry on
business practices yields to environmental rights embodied in the
constitution’s “right to life”: “Every individual has an inherent right
to live in a healthy environment.”233
Similarly, the Constitutional Court of Colombia has read a
constitutional “right to life” as encompassing a substantive right to a
healthy environment.234 In Fundepublico v. Mayor of Bugalagrande,
the Constitutional Court of Colombia wrote that “[i]t should be
recognized that a healthy environment is a sina qua non condition for
life itself and that no right could be exercised in a deeply altered
environment.”235 In Maria Elena Burgos v. Municipality of
Campoalegre (Huila), the Court upheld a lower court’s order to
destroy pig stalls that caused neighbors to fall ill with respiratory
distress and fever, finding they constituted an actionable violation of
the country’s fundamental environmental right encompassed in a right
to life.236 And in Victor Ramon Castrillon Vega v. Federacio
National de Algodoneros, the Court found that emissions of toxic
fumes from an open pit contravened a constitutional right to life and
ordered a company to remediate the pit and pay medical expenses.237
In reaching these results, the Court has conceived the right to the
environment as “a group of basic conditions surrounding man, which
define his life as a member of the community and allow his biological
and individual survival.”238 Thus, environmental rights exist, “side by
side with fundamental rights such as liberty, equality and necessary
conditions for people’s life . . . . [W]e can state that the right to the
environment is a right fundamental to the existence of humanity.”239
Hence, even in Jose Cuesta Novoa v. Secretary of Public Health of
232 Id.
233 Id; see also Dhungel v. Godawari Marble Indus., WP 35/1992 (S.C. Nepal, Oct. 31,
1995) (en banc), reprinted in KRAVCHENKO & BONINE, supra note 5, at 96, 97 (“Since a
clean and healthy environment is an indispensable part of a human life, the right to clean,
healthy environment is undoubtedly embedded within the Right to Life.”).
234 The Colombian Constitution now reads: “Every individual has the right to enjoy a
healthy environment.” Constitución Política de la República de Columbia de 1991, art. 79.
235 Fundepublico, cited in SHELTON & KISS, supra note 158, at 7.
236 María Elena Burgos v. Municipality of Campoalegre (Huila) (Const. Ct. Colom.
Feb. 27, 1997) in UNEP SUMMARIES, supra note 220, at 79.
237 Hill et al., supra note 29, at 386.
238 Fabra & Arnal, supra note 171 (citing Fundepublico, cited in SHELTON & KISS,
supra note 158, at 7).
239 Fabra & Arnal, supra note 171 (citing the case of Antonio Mauricio Monroy
Cespedes).
Bogota, which confirmed on procedural ground a lower court’s

dismissal of an effort to enforce environment rights, the Court still
recognized that a right to life embodies environmental protections. 240
A court in Hong Kong recently accepted that a prima facie case
could be made that a deteriorated environment infringed upon
constitutionally guaranteed rights to health and life. In Clean Air
Foundation v. Hong Kong Special Administrative Region, plaintiffs
alleged that the provincial government of Hong Kong’s failure to
adequately protect air quality in Hong Kong amounted to a violation
of constitutional rights to health and life.241 Here, while the
government prohibited the sale of diesel fuel, it did not prohibit its
use or importation.242 The plaintiffs alleged that this contributed to
soot levels nearly three times higher than that of New York City.243
The Court of First Instance found “that it is at least prima facie
arguable that the constitutional right to life may apply.”244 Yet it
found the matter to be essentially one of policy consigned to the
political process, observing: “How possibly can this court decide that
this decision fails to reach a fair balance between the duty
Government has to protect the right to life and the duty it has to
protect the social and economic well-being of the Territory? It cannot
do so . . . .”245
Courts operating under other constitutional systems have allied
environmental rights with other particular rights, such as the right to
survival, the right to security,246 the right to information,247 and for
protection of the “public trust.”248
The availability of derivative constitutionally embedded
environmental rights has led some to question whether there is any
need to entrench them explicitly.249 Somewhat ironically, the
240 José Cuesta Novoa v. the Sec’y of Pub. Health of Bogota (Const. Ct. Colom. May
17, 1995) in UNEP SUMMARIES, supra note 220, at 77.
241 Clean Air Found. Ltd. v. H.K. Special Administrative Region, [2007] HKEC 1356,
HCAL 35/2007 (CFI), available at 2007 WL 1824740, at n.9.
242 Id. ¶¶ 29, 30.
243 Id. ¶ 4.
244 Id. ¶ 17.
245 Id. ¶ 42.
246 See KRAVCHENKO & BONINE, supra note 5, at 593.
247 Guerra v. Italy, (Case 14967/89) 1998-1 Eur. Ct. H.R. (1998).
248 See, e.g., M.C. Mehta v. Kamal Nath, 1 S.C.C. 388 (1997), in UNEP COMPENDIUM,
249 Abate, supra note 27, at 16-17. Explaining that:
Philippines Supreme Court’s opinion in Minors Oposa has fueled this

argument by holding that environmental rights are inherent, and need
not be independent, dependent, or derivative.250
On the other hand, national courts elsewhere have generally
declined to infer that other rights, such as a right to life or dignity,
include a substantive right to a quality environment. In the United
States, while the Supreme Court has never addressed the issue
directly and is not likely to do so any time soon,251 every other court
that has done so in the United States has rejected the position that
constitutional rights to “liberty” or “life” provide an implied or
penumbral right to a clean environment.252 Likewise, the Supreme
Court of Switzerland declined to read a constitutional passage that the
“federal legislature enacts laws concerning the protection of man and
his natural environment against detrimental or burdensome
influences” as one that confers a substantive environmental right.253
Courts elsewhere have declined to infer substantive environmental
rights into constitutional provisions that impel governmental adoption
of sound environmental policies, including the Netherlands.254
D. Dormant Environmental Rights

Provisions that purport to provide a fundamental right to a quality
environment often lie dormant. While South Africa’s post-apartheid
constitution guarantees a fundamental right to a clean environment,
Some scholars have proposed a right to a healthful environment by relying on

constitutional provisions that guarantee citizens the right to life using similar or
identical language to the U.S. Constitution’s due process guarantees. The
recognition of the right to life in these provisions suggests that the United States
can recognize the right to a healthful environment within the theory of substantive
due process under the Fifth and Fourteenth Amendments.”
251 Abate, supra note 27, at 17 (“The current U.S. Supreme Court is unlikely to use a
substantive due process theory to find a right to a healthful environment within those
provisions of the U.S. Constitution.”).
252 See, e.g., Harry W. Pettigrew, A Constitutional Right of Freedom from Ecocide, 2
ENVTL. L. 1 (1971); Ronald E. Klipsch, Aspects of a Constitutional Right to a Habitable
Environment: Towards an Environmental Due Process, 49 IND. L.J. 203 (1974).
253 Brandl & Bungert, supra note 7, at 52–53 (translating Bundesverfasung der
Schwerzerischen Eidgenossen-schaft [BV], Constitution féedérale de la Confédération
suisse [Cst] [Constitution] April 18, 1999, SR 101, RO 101, art. 24 (Switz.)).
254 Id. at 56 (“It shall be the concern of the authorities to keep the country habitable and
to protect and improve the environment.” (translating Grondwet voor het Koninkrijk der
Nederlanden [GW] [Constitution] (Neth.) art. 21)).
functionally open standing, and access to a constitutional court, that

court has yet to enforce the right. Brazil’s Constitution, with its aim
to protect the Amazon Rain Forest,255 has among the most detailed
environmental provisions of all national constitutions.256 Yet, it is
doubtful whether its promise that all have “the right to an ecologically
balanced environment, which is a public good for the people’s use
and is essential for a healthy life”257 will be enforceable.258 Brazil’s
environmental constitutional provisions are yielding to high foreign
debt and reliance on timber, crop, and cattle farming.259
Environmental rights provisions in Ecuador have underperformed for
similar reasons.260 Likewise, environmental rights provisions in most
of the former Soviet Bloc lie fallow in part because of economic and
social challenges and legacy pollution.261 In other countries,
environmental rights provisions are expressed so insipidly as to be
thought too weak to be worth litigating.262 Constitutionally
entrenched provisions in subnational state constitutions in the United
States have fared only slightly better in court.263 Courts in most states
have been reluctant to enforce these provisions, except in Montana.264
255 James Bruinsma, Environmental Law: Brazil Enacts New Protections for the
Amazon Rain Forest, 30 HARV. INT’L L.J. 503, 503–05 (1989).
256 See Brandl & Bungert, supra note 7, at 77-81 (discussing a panoply of provisions).
257 Constituição Federal [C.F.] [Constitution] art. 225 (Braz.).
258 Brandl & Bungert, supra note 7, at 78 (describing “[t]he subjective, or individually
enforceable, character” of the provision as “very weak.”); see also Keith S. Rosenn,
Brazil’s New Constitution: An Exercise in Transient Constitutionalism for a Transitional
Society, 38 AM. J. COMP. L. 773, 796–97 (1990).
259 BROWN WEISS II, supra note 152, at 417. For further discussion of developments in
Brazil, see Edesio Fernandes, Constitutional Environmental Rights in Brazil, in HUMAN
RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION, supra note 5, at 265.
260 For a discussion of environmental rights in Ecuador, see Adriana Fabra, Indigenous
Peoples, Environmental Degradation and Human Rights: A Case Study, in HUMAN
RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION, supra note 5, at 245.
261 See Kravchenko, supra note 183; Y. Shemshuchenko, Human Rights in the Field of
Environmental Protection in the Draft of the New Constitution of the Ukraine, in
ENVIRONMENTAL RIGHTS: LAW, LITIGATION & ACCESS TO JUSTICE, supra note 151, at 33
(discussing Ukraine’s approach to fundamental environmental rights).
262 Ankersen, supra note 71, at 826 (“Cuba’s environmental constitutional language
also appears relatively weak and is framed in terms of state duties (deberes). It does not
appear to confer defensible individual or collective rights.” (footnote omitted)).
263 Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a
Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173, 181 (1993). Among the
different types of environmental amendments to state constitutions are “those granting
citizens the right to a healthful environment; public policy statements concerning
preservation of natural resources; financial provisions for environmental programs; and
clauses that restrict the environmental prerogatives of state legislatures.” Id.; Hill et al.,
supra note 29, at 390:
In sum, judicial receptivity to fundamental environmental rights

provisions seems to belie predictable patterns. Courts in countries
that have identified environmental rights in a “bill of rights” provision
or as “fundamental” are not necessarily more receptive to vindicating
these provisions than those that have not. Courts in countries with a
common law tradition are not necessarily more receptive than those
with a civil law tradition. Countries with national courts specifically
charged with hearing constitutional claims do not necessarily produce
more decisions involving fundamental environmental rights than
countries that do not have specialized constitutional courts. If
anything, courts from developed countries have been less receptive to
constitutional environmental rights claims than have courts from the
developing world.
While growing, the body of judicial opinions applying
constitutionally entrenched environmental rights is still quite limited
given the prevalence of such provisions globally. Thus, Part III
examines the institutional and practical obstacles to vindicating
constitutionally entrenched environmental rights.
III
VINDICATING CONSTITUTIONALLY ENTRENCHED FUNDAMENTAL
ENVIRONMENTAL RIGHTS WORLDWIDE
I fully sympathise with . . . concerns about the deteriorating quality
of the environment . . . . But the Court can only apply law. The
Judiciary cannot manage the environment. That is the role of the
Executive.
Ng Ngau Chai v. Town Planning Bd.265
The overview of cases described in Part II suggests conceptual
conundrums, pragmatic considerations, and remedial responses that
Environmental constitutional provisions at the state level, however, have fared

better than at the federal level. Every state constitution drafted after 1959 explicitly
addresses “modern concerns” regarding pollution control and preservation. Indeed,
fully one-third of all state constitutions include: (1) policy statements regarding the
importance of environmental quality; (2) environmental enabling language; and/or
(3) language creating an individual right to a clean and healthy environment.
(footnote omitted).
264 MONT. CONST. art. II, § 3; see generally Bryan P. Wilson, State Constitutional
Environmental Rights and Judicial Activism: Is the Big Sky Falling?, 53 EMORY L.J. 627
(2004).
265 Ng Ngau Chai v. Town Planning Bd., [2007] HCAL 64/2007 (H.K), quoted in
Clean Air Found. Ltd. v. H.K. Special Administrative Region [2007] HKEC 1356, HCAL
35/2007 (C.F.I.), available at 2007 WL 1824740, at n. 9.
arise when litigants try to enforce constitutional environmental rights

and courts try to determine whether or not they have been violated
and to what result.
A. Conceptual Conundrums
Constitutionally enshrined environmental rights present unique
conceptual conundrums; many of these flow from the lack of certainty
about what the “environment” actually entails and how a meaningful
conception of the environment can be incorporated into the structure
of constitutional adjudication.
First, while constitutions are often criticized for being aspirational
if not downright unrealistic, fundamental environmental rights
epitomize this problem: In what society are policies promulgated “in
accord with the rhythm and harmony of nature”?266 How can a
country promote industry, create jobs, provide housing, and provide
for the other things the people need without throwing nature—“the
created world in its entirety”267—out of balance? While the
aspirational attributes of constitutionalism are not without value, they
may be inconsistent with the idea of judicial enforcement, which
entails the expectation of realization: one sues not because one hopes
someday to achieve something, but because one is entitled to it at the
present moment. It is therefore quite possible that fundamental
environmental rights are included in constitutions not with the
expectation that they will be realized or judicially enforced, but with
the hope that they will, at most, influence the attitudes of
policymakers, maybe the public, and perhaps, in the long term,
encourage people within the nation to take environmental concerns
into account.
Attributing any more specific intent to the framers of these
provisions would, in many cases, be speculative at best. In most
constitutional contexts, it is not clear whether the right is meant to be
self-executing, whether the right imposes horizontal obligations to
private entities or just on state actors, whether it is intended to support
an assessment of damages (including punitive damages) or just
equitable relief, whether it is meant to operate retroactively or not,
and many other issues that invariably arise in the context of
constitutional litigation.
266 CONST. (1987), Art. II, § XVI, (Phil.).

Perhaps the most difficult challenge is to identify the harm or

injury that fundamental environmental rights are intended to protect
against and to square that with commonly accepted constitutional
harms. Constitutional adjudication is defined by a particular harm
that has occurred or is imminent and will injure a particular individual
or discrete group (an arrest in violation of a right to free speech or a
racially discriminatory policy). Violations of environmental policy,
by contrast, may cause harm now or in the future to an individual, a
discrete group, a culture, or (in the case of climate change) all of
humanity now and forever.
At the root of the problem is a deep conceptual problem that is,
even in the context of thorny constitutional rights litigation, uniquely
complex to fundamental environmental rights: the need to identify the
purpose of the right. Every other constitutional provision is included
for the purpose of protecting the population of the nation or some
clearly defined segment thereof (e.g., women, ethnic minorities,
criminal defendants). These individuals or groups are the bearers of
the rights and putative litigants who would enforce those rights. In
environmental litigation, it is not so obvious who, if anyone, the
putative beneficiaries of those rights are. The Indian Constitution
makes the conundrum clear: under a directive principle of state
policy, the state is required to “endeavour to protect and improve the
environment and to safeguard the forests and wild life of the
country.”268 This seems to be as much for the benefit of the citizens
as for the wildlife and even the forests themselves. But who can sue
if the wildlife is not safeguarded? This is not only a question of
standing (which is addressed in more detail below) but of the nature
of the right and purpose of judicial intervention into the policy-
making authority of the state. Is the right violated when the
environment is harmed? That is, when the river is polluted or the
forest is cut down? Or when a governmental policy throws out of
balance the “rhythm and harmony” of nature? The Supreme Court of
Chile seems to have recognized that this type of harm is sufficient to
trigger its remedial powers. In Pedro Flores, the Court observed:
[T]he daily accumulation of thousands of tons of contaminants by
whose fast and silent chemical action the ecology, along the coast,
is destroyed, producing the ecological destruction of all forms of
marine life in hundreds of square kilometers . . . a devastation that
268 INDIA CONST. art. 48A: amended by the Constitution (Forty-second Amendment)
Act, 1976.
blossoms over the whole coastal area of the National Park Pan de
Azucar, with which dies a piece of Chile.269
Other courts might not be so willing to entertain such a claim.
These courts might define a violation of an environmental right as
occurring only when the defendant’s action produces harm to animals
that can be proven and quantified. For instance, when a country’s
policies or a company’s practices can be shown to have reduced the
panda’s habitat such that the world panda population is reduced to a
fraction of its former size, is there a violation? And is the
environmental claim moot if the panda population stabilizes?
Or perhaps the violation occurs (as would be the case with other
constitutional rights) when the defendant’s actions caused a
cognizable harm to a defined cohort of individuals who are the
intended beneficiaries of the constitutional right (e.g., when the
pollution is shown to cause birth defects, or when the clear-cutting of
forests impairs a group’s ability to hunt, which threatens their
livelihood and their way of life). Any of these interpretations is
possible under most constitutional provisions, but they obviously
involve dramatically different types of inquiries and they place the
constitutional court in the vortex of very different types of
constitutional controversies. Even where the constitutional provisions
are clear that they are designed to benefit the nation’s living human
population, courts sometimes view themselves as remediating broader
problems.270
If vindicating fundamental environmental rights does not require
harm to humans, it is hard to square with the concept of a
constitutional right. A plaintiff would be complaining about a bad
state of affairs, like suing over the global financial crisis or the
prevalence of cancer. If it does require harm to humans, then it starts
269 Pedro Flores v. Codelco, División Salvador, Rol. 2.052 (Sup. Ct. Chile, June 23,
1988), translated in 2 GEO. INT’L ENVTL. L. REV. 251, 253 (1989) (Claudia C. Bohorquez
trans.).
270 It is very clear in the Turkish constitution that the purpose of protecting the
environment is for the benefit of people:
Each individual has the right to live in a healthy and balanced environment. . . . The
State must provide centralised health institutions and organise related services, so
that people’s lives are protected, people can continue to live in a physical and
mental health, saving human and material energy, increasing efficiency and
developing cooperation.
Türkiye Cumhuriyeti Anayasası [Turk. Repub. Const.] art 56, quoted in Supreme
Administrative Court of Turkey, 13 May 1997, Ref. No. 1996/5447, Ruling No.
1997/2312, Senih Özay v. Ministry of the Env’t [hereinafter Senih Özay], translated in 4
INT’L ENVTL. L. REP. 452, reprinted in KRAVCHENKO & BONINE, supra note 5, at 90–91.
to look more like a constitutional (or indeed any kind of common law)
claim, but the difficulty of proof increases with each additional
required showing. It does not require significant litigation resources
to prove that a company is dumping toxic waste into a river, but it is
very difficult to prove that such dumping did or will increase the
incidence of cancer in the local community. This problem is
magnified with the growing number of claims relating to climate
change, of which there is abundant evidence, but the evidence tying it
to specific harms suffered by specific humans within a specific nation
is much more tenuous. And unfortunately, neither the constitutional
texts nor the drafting history in most countries illuminates the purpose
of constitutionalizing environmental rights.
As a result, environmental litigation raises questions beyond
normal judicial line-drawing, such as whether particular speech is
protected or whether a particular practice violates the right to vote.
This almost invariably requires a nod to the concept of
intergenerational equity, the appropriate limits of industrial and
commercial development, and the obligations of a state—all of which
are complex questions of policy and social justice that courts in most
traditions normally avoid.
Even if constitutional litigation is restricted to those claims that
affect humans, fundamental environmental rights still raise very
significant line-drawing questions. While line-drawing questions
attend many other types of rights that are routinely included in
constitutions,271 fundamental environmental rights magnify the
problem because environmental problems are so conceptually distant
from the traditional form of constitutional litigation. While
constitutional litigation is specific to a discrete set of facts that can be
supported by clear evidence, environmental degradation is broad and
its contours are vague, creeping into many different areas of life: a
single leak may pollute the water and the air, prevent farming, poison
the water, cause disease, and produce social insecurity. This is
essentially a problem of the breadth or scope of fundamental
environmental rights. The Chilean Supreme Court has recognized
that:
271 See, for instance, the catalogue of affirmative action litigation in the Indian Supreme
Court attempting to discern the proper proportion of seats in university classes and job
opportunities to be set aside for underprivileged Indians. See, e.g., Balaji v. State of
Mysore, A.I.R. 1963 S.C. 649; Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 447;
Ashoka Kumar Thakur v. Union of India, (2008) 6 S.C.C. 1 (2007).
[T]he environment, environmental heritage and preservation of

nature, of which the Constitution speaks and which it secures and
protects, is everything which naturally surrounds us and that permits
the development of life, and it refers to the atmosphere as it does to
the land and its waters, to the flora and fauna, all of which comprise
nature, with its ecological systems of balance between organisms
and the environment in which they live.272
With this broad conception of the environment in mind, it is easy to
see why admitting, or rather denying, particular claims would be
difficult. As Justice Feliciano famously said in his concurrence in
Minors Oposa v. Factoran:
It is in fact very difficult to fashion language more comprehensive
in scope and generalized in character than a right to “a balanced and
healthful ecology.” The list of particular claims which can be
subsumed under this rubric appears to be entirely open-ended:
prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents,
garbage and raw sewage into rivers, inland and coastal waters by
vessels, oil rigs, factories, mines and whole communities; of
dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-
pit mining; kaingin or slash-and-burn farming; destruction of
fisheries, coral reefs and other living sea resources through the use
of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora;
and so on.273
A degraded environment may affect people’s lives, dignity, health,
housing, access to food and water, and livelihood. Indeed, by
definition, the environment is everything around us. The problem
exists, in different guises, whether the rights are thought of as
independent, dependent, or derivative of other rights.
In addition to these problems of breadth, fundamental
environmental rights also raise problems of depth: how much
degradation is permissible before a violation is said to occur? What is
the benchmark from which no more pollution is permissible? This, in
part, may be the adjectival problem: what is a healthful, clean
environment? But it is also a complex, policy-based cost-benefit
trans.) (quoting a prior decision).
273 Minors Oposa, supra note 1, at 201–02 (Feliciano, J., concurring). By contrast, he
also expressed significant reservations about the lawsuit as it went forward on remand:
“My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right—a right cast in language of a significantly lower order of generality than
Article II (15) of the Constitution . . . .” Id. at 203.
problem: at what cost do we protect the environment? How much

development do we forego in order to protect the environment? How
many jobs are not created? How many people will not get electricity,
shoes, or inexpensive food because of the countervailing interest in a
clean environment? How much of a company’s profits should be
allocated to environmental clean-up rather than benefiting workers or
shareholders, or reducing the price of its products? How many
businesses should be allowed to close down (particularly in an already
stressed global economy) because of the increased cost of
environmental protection or clean-up?274
These are not questions of principle, but of economic and social
policy. Indeed, the effort to vindicate fundamental environmental
rights raises several of the concerns that actually define the political
doctrine. As the U.S. Supreme Court explained in Baker v Carr, the
political question doctrine precludes judicial cognizance of an issue
when there is “a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government” and so on.275 How can a court, with limited
political authority and negligible enforcement power, actually
determine the contours of the right “to live in an environment free of
pollution,”276 and enforce that judgment against public and private
actors who have different views?277 Although courts around the
world do not typically expressly invoke the American political
question doctrine, their reluctance to engage with fundamental
environmental rights may be attributable to the same concerns:
institutional bodies with frail historical legitimacy, with neither police
power nor economic muscle to buttress their orders, are reluctant to
try to force coordinate branches to make radical policy changes.278
274 See generally M.C. Mehta v. Union of India, (1987) 4 S.C.C. 463 (noting that
“closure of tanneries may bring unemployment [and] loss of revenue, but life, health and
ecology have greater importance to the people”).
275 Baker v. Carr, 369 U.S. 186, 217 (1962).
trans.).
277 For a discussion on similar issues in the context of climate change litigation. see
James R. May, Climate Change, Constitutional Consignment, and the Political Question
Doctrine, 85 DENVER U. L. REV. 919 (2008).
278 As we will see below, this is especially a concern at the remedies stage of litigation.
The problem may also be one of proportion requiring careful

balancing, as is indicated by the language in the Philippine
Constitution requiring that the State “protect and advance the right of
the people to a balanced and healthful ecology.”279 Recognizing the
need for proportion and context, the Supreme Court of Nepal has said:
“It is beyond doubt that industry is the foundation of development of
the country. Both the country and society need development;
however it is essential to maintain an environmental balance along
with industry.”280 Other courts have drawn the line where the
environmental degradation seems neglectful281 or vindictive.282
These difficult questions of public policy may, in some instances,
even require rethinking the location and the very validity of the
public/private line, as governments are held responsible for the
environmental degradation caused by their licensees and as
corporations are required to take on public goods like environmental
clean-up. Environmental litigation may often in fact invert the
normal expectations relating to the roles of public and private parties.
Whereas traditional constitutional rights litigation pits the private
individual against the public authority, environmental litigation often
pits members of the public against a private entity (thus invoking the
principle of the horizontal application of constitutional rights and
obligations). Moreover, in many of these cases, private individuals
are asserting public rights, whereas the government is facilitating
private gain.283 But whether a court is in fact willing, or able, to make
such judgments is often the greatest unanswered, or unanswerable,
question.
279 Philippines constitution explicitly requires harmony and balance: “The State shall
protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.” CONST. (1987) § 16 (Phil.)
280 Dhungel v. Godawari Marble Indus., WP 35/1992 (S.C. Nepal, Oct. 31, 1995) (en
banc), reprinted in KRAVCHENKO & BONINE, supra note 5, at 96, 97.
281 See, e.g., Defensoria de Menores Nro 3 v. Poder Ejecutivo Municipal, Agreement 5,
Superior Justice Court. Neuquen. Mar. 2, 1999. (Arg.). Court required State Government
to provide 100 liters of drinkable water per day to each individual member of the families
living in rural colony of Valentina Norte who were drinking water polluted with
hydrocarbons. Id.
282 See, e.g., Soc. & Econ. Rights Action Ctr. v. Nigeria, Commc’n 155/96, African
Commission on Human and Peoples’ Rights (Oct. 27, 2001), available at
http://www.cesr.org/downloads/AfricanCommissionDecision.pdf.
283 See, e.g., id.; Minors Oposa, supra note 1, at 173 (involving government-issued
timber licenses); KRAVCHENKO & BONINE, supra note 5, at 79 (referring to Hungary
helping to sell off forests to private interests).
Thus, what starts out as a constitutional right built on aspirations

and high principles often becomes, in the hands of courts, a distinctly
pragmatic evaluation of costs and benefits. Violations are identified
and responsibility attributed where feasible given towering political,
economic, and social constraints. These practical considerations are
assessed in the next section in more detail. Most of these are relevant
not only to environmental claims, but also to claims based on other
socioeconomic rights, such as the right to shelter or medical care.284
B. Pragmatic Considerations
1. Who Can Sue?

Before a court reaches the merits of a constitutional claim, it will
often consider the preliminary question of standing: whether the party
who brought the suit has the right to invoke the court’s jurisdiction.
Most constitutional traditions have a standing doctrine, although they
vary widely from country to country. Some constitutional cultures
limit who can sue to certain members of the government or to an
ombudsman, while others encourage any aggrieved person to seek
judicial protection. But since standing is usually determined at the
outset, a case may get dismissed where the plaintiff is found to lack
standing. For instance, as noted above, the Bangladesh Supreme
Court dismissed a case where the plaintiff, who had challenged a
flood control plan, was found not to have standing to represent
others.285 In Colombia, the court dismissed one case for lack of
standing, but indicated that it would accept it if it were brought as a
class action. It explained that when the specific facts threaten the
constitutional guarantees of an unknown amount of people, a class
action is the best suited protection.286 However, the following year,
the Colombian Constitution was amended to provide for “tutelage”
actions, which dramatically enhance access to justice by providing for
broad jurisdiction over cases by individuals, with or without lawyers,
284 See, e.g., Soobramoney v. Minister of Health, Kwazulu-Natal 1998 (1) SA 765 (CC)
(S. Afr.).
UNEP SUMMARIES, supra note 220, at 90.
286 Jose Cuesta Novoa & Milciades Ramirez Melo v. the Sec’y of Public Health of
Bogota (Const. Ct. Colom. May 17, 1995) in UNEP SUMMARIES, supra note 220, at 77.
to enforce fundamental rights.287 This has become widely used in

Colombian courts.288
The broader or more lenient the standing requirements, of course,
the more likely that a constitutional right will be enforced. Some
constitutional courts have explicitly lowered standing requirements to
permit suits to vindicate fundamental environmental rights. The
Indian Supreme Court famously imposes low standing hurdles to
encourage constitutional litigation, particularly on behalf of the
needy. “Public interest litigation contemplates legal proceeding for
vindication or enforcement of fundamental rights of a group of
persons or community which are not able to enforce their fundamental
rights on account of their incapacity, poverty or ignorance of law.”289
Its approach in environmental rights cases is no different. “A petition
under Art. 32 for the prevention of pollution,” the Court has said, “is
maintainable at the instance of affected persons or even by a group of
social workers or journalists.”290 The Supreme Court of Nepal has
followed suit, recognizing the standing of a non-profit organization to
vindicate environmental rights on behalf of the public. In the
Nepalese case, the group claimed rights on behalf of residents, as well
as on behalf of workers to wear masks.291 “[A]s the environmental
conversation is one of the objectives of the applicant ‘LEADERS
Inc.,’ it needs to be accepted that the applicant has the locus standi for
the prevention of the environmental degradation.”292 In Chile, the
courts have “protective jurisprudence [over the Constitution] that is
enforceable by individuals.”293
Standing is a critical question in environmental constitutional
litigation for a number of reasons. Some environmental litigation
centers on the health of the environment in the abstract and may raise
287 Constitucion Politica de la Republica de Colombia de 1991, art. 86.

288 “Between 1999 and 2003, the Constitutional Court received almost 145,000 writs of
injunction, 25% of them invoking the right to health, with an average of 7.8 tutelage
actions per 10,000 inhabitants during that period. 71% of them were based on medical
attention rights violations” including the right to a healthy environment and environment-
based health claims. SOCIAL WATCH REPORT 2006, NATIONAL REPORTS, COLOMBIA: A
RESOURCE ALLOCATION THAT WILL NOT MEET THE MDGS 195 n.3, available at
http://www.socialwatch.org/sites/default/files/pdf/en/colombia2006_eng.pdf.
290 Id.
291 Dhungel v. Godawari Marble Indus., WP 35/1992 S. Ct. of Nepal (Oct. 31, 1995)
(en banc), reprinted in KRAVCHENKO & BONINE, supra note 5, at 96.
292 Id.
293 KRAVCHENKO & BONINE, supra note 5, at 70.
claims based on esthetics or the health of a particular animal

population that do not directly affect most people. Such litigation is
usually brought by environmental groups that have to show their
commitment to environmental protection in order to establish
standing, as in the Nepalese case.294 However, most constitutional
environmental rights are asserted by individuals or groups that are
directly affected by the challenged environmental degradation. In
some cases, the plaintiffs not only enjoy the esthetic value of the
environment, but depend on it for their subsistence. These claims are
based on the environment as it provides access to water, arable land,
shelter to the world’s poorest people, and to the essentials to sustain a
certain quality of life, including individual dignity, a cohesive
community, and life itself.295 They are brought on behalf of the
world’s poorest people because people with means can often purchase
immunity from environmental degradation: they can live in
neighborhoods that are not used as landfills, they have sufficient
access to medical care to be buffered from the worst health effects of
industrial air pollution, they can access food and water from
sophisticated infrastructures in global markets, and they do not
depend on the nearby rivers remaining clean for their sustenance.
Litigation that ties environmental harm to deprivation of the
incidents of sustenance can be theoretically easier to maintain because
the harm is easily recognizable. However, proving that the
complained-of injury resulted from the action of the defendant can be
both costly and time-consuming. Most legal services agencies
throughout the world are experienced in asserting immediate and
direct claims on behalf of their clients (e.g., accessing medical care or
social benefits), but environmental litigation entails different and
often more complex and more elaborate types of litigation. The
unfortunate fact is that social, economic, and political power is often
as important in claiming victory in court as in prevailing within the
political sectors. As discussed elsewhere in this Article, one of the
few groups to be successful in litigating such claims on behalf of poor
people is the Bangladesh Environmental Lawyers Association.296
In addition to the normal standing questions that attend most
constitutional litigation, including whether the plaintiff has been
294 Dhungel, WP 35/1992, reprinted in KRAVCHENKO & BONINE, supra note 5, at 96.
295 Soc. & Econ. Rights Action Ctr. v. Nigeria, Commc’n 155/96, African Commission
on Human and Peoples’ Rights, ¶ 65 (Oct. 27, 2001).
UNEP SUMMARIES, supra note 220, at 90.
injured and whether an individual or group effectively represents the

people on whose behalf the plaintiff is suing, environmental litigation
also raises difficult questions of intergenerational standing, because
of the long-term effects of the behavior that is being challenged. In
Comunidad de Chañaral v. Codeco División el Saldor, as noted
above, the Chilean Supreme Court held that a farmer had standing to
enjoin drainage of Lake Chungarà, recognizing that with
environmental damage “future generation[s] would claim the lack of
prevision of their predecessors if the environment would be polluted
and nature destroyed.”297 And in Minors Oposa, as noted above, the
Philippine Supreme Court also recognized intergenerational
standing—that is, the right of an individual to sue on behalf of future
generations—although it did so on the basis of pre-existing norms as
much as constitutional right. The Court said “It may, however, be
recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the ‘environmental
right’ of the present and future generations.”298 The Court cited two
policies that articulate the goal of fulfilling “the social, economic and
other requirements of present and future generations of Filipinos . . . .
As its goal, it speaks of the ‘responsibilities of each generation as
trustee and guardian of the environment for succeeding
generations.’”299
297 KRAVCHENKO & BONINE, supra note 5, at 70; see also Pedro Flores v. Codelco,
División Salvador, Rol. 2.052 (Sup. Ct. Chile, June 23, 1988), translated in 2 GEO. INT’L
ENVTL. L. REV. 251, 260 (1989) (Claudia C. Bohorquez trans.); Hill et al., supra note 29,
at 388, quoting Trillium:
The right to live in an environment free of contamination is a human right of
Constitutional hierarchy, which presents a double character: public subjective right
and public collective right. The first aspect means that its exercise corresponds, as
provided in article 19 of the Political Constitution, to all persons, being the duty of
the authority through the regular legal suits and through the constitutional
protection claim to protect that right. And regarding the second aspect, the right to
live in an environment free from contamination is meant to protect social rights of a
collective character, whose defense is the interest of the community as a whole, in
the local level as well as in the national level, to all the country, because the very
basis of the existence as a society and as a nation are comprehended, and due to the
fact that in damaging or limiting the environment and natural resources, the
possibilities of life and development of the present and future generations are also
limited.
In this sense, the safekeeping of these rights are in the interest of the whole society,
because it affects to a plurality of parties that are placed in the same factual
situation, and whose damage, despite the fact that it carries an enormous social
harm, does not cause a meaningful damage clearly appreciated in the individual
realm.
299 Id. (footnote omitted).
And yet, notwithstanding the appeal of a standing doctrine that is

broad enough to include future generations, it has been argued that
this victory for environmental rights litigation is illusory. As
commentator Dante Gatmaytan has written:
[T]he use of “intergenerational equity”—invoking the rights of
future generations—while intellectually titillating, is ultimately
useless in the resolution of the case. The Philippine Supreme Court
would have decided Oposa exactly the same way had the children
filed the case solely on their own behalf. In cases involving the
protection of the environment, the distinction between present and
future generations is inconsequential—we cannot protect the rights
of future generations without protecting the rights of the present.300
Indeed, in certain cases, the problem of intergenerational standing
is less challenging than the problem of international standing. While
some environmental violations are felt locally, the consequences of
others do not stop at national boundaries, which do limit the
jurisdictions of constitutions and constitutional courts. This is
particularly salient with challenges based on climate change, whose
effects are felt not only across time but across space as well, and it is
particularly true where, as noted above, the harm is felt primarily not
only to individuals, but also to other species of flora and fauna and
essentially to the environment itself.
The question of standing is intricately linked to the question of
whether the plaintiff has suffered or will imminently suffer a
cognizable injury or harm: lowering the threshold for standing
recognizes broader types of harms. Where a plaintiff’s health is
impaired by reason of the defendant’s environmental degradation,
standing is clear. But a court may be less likely to find standing
where the claimed injury is that the rivers and forests are no longer as
pristine as they once were, or that once-potable water has become
contaminated, or that thousands of acres of arable land have become
desert.
The problem of standing often implicates questions of timing.
Standing normally requires that the injury be actual or imminently
threatened. Thus, a plaintiff who has already developed symptoms of
illness will have standing, but it is more difficult to sue to prevent the
action that will cause the illness because there are too many
unknowns that affect standing. It is difficult for an individual to
persuade a court that he or she will become ill, how severe it will be,
300 Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran

as Pyrrhic Victory, 15 GEO. INT’L ENVTL. L. REV. 457, 460 (2003).
how much treatment will be required, and how much that treatment
will cost. Even across a community, it is difficult to prove even by a
preponderance of the evidence how widespread the illness will be or
how devastating to the community it will be when it strikes. Thus, a
court may be less likely to find standing where the plaintiff’s physical
condition has yet to be compromised. The problem of timing is
particularly acute, and unfortunate, in environmental litigation
because the harms caused by environmental degradation are often
hard to discern, but with widespread and irreversible consequences.
Where the environmental violations do not result in specific
physical impairments to the people, it is even more difficult to prove
standing. The mere fact of a violation may be sufficient in some
courts,301 but other courts might require evidence to prove that the
violation caused a particular injury to the particular plaintiff.
Questions concerning the proper defendant, and the problem of
causation, are discussed in more detail below.
2. Who Can Be Sued?

In the simplest cases, defendants are state actors who are obligated
to comply with constitutional mandates. In most situations, it does
not matter whether the government was acting as sovereign/regulator,
as licensor,302 or as a “market participant”303 since in any event, it is
obligated to comport with constitutional norms.304 In federal systems,
the local (state or provincial) government may be liable instead of or
in addition to the federal authorities. Under the theory of horizontal
application that operates in some constitutional systems, private
parties are also held accountable for violation of constitutional
norms.305
301 See Trillium, supra note 164.

302 See Minors Oposa, supra note 1, at 195–96; Soc. & Econ. Rights Action Ctr. v.
Nigeria, Commc’n 155/96, African Commission on Human and Peoples’ Rights, ¶ 55
(Oct. 27, 2001); see also Senih Özay, translated in 4 INT’L ENVTL. L. REP. 452, reprinted
in KRAVCHENKO & BONINE, supra note 5, at 90, 92 (cannot allow gold mining with
cyanide).
303 The phrase is borrowed from the American dormant commerce clause cases to
describe situations where a government operates a business or functions in some capacity
as would a private actor. Outside of the United States, this is far more common.
304 See, e.g., Pedro Flores v. Codelco, División Salvador, Rol. 2.052 (Sup. Ct. Chile,
June 23, 1988), translated in 2 GEO. INT’L ENVTL. L. REV. 251, 251 (1989) (Claudia C.
Bohorquez trans.) (successful suit for discharge of tailings from government-run copper
mine).
on Human and Peoples’ Rights, ¶ 57 (Oct. 27, 2001); see also María Elena Burgos v.
Horizontal application of constitutional obligations is useful in

environmental litigation because a court is more likely to find liability
against a private party than against the government, both because
separation of powers principles and values tend to protect government
actors, and because in most cases the private party’s action (e.g., the
cutting down of the forests or the mining) is more likely to be the
direct cause of the environmental degradation than is the
government’s decision to authorize the private party’s action. Aside
from liability, a court is more likely to award damages against a
private defendant than against a government defendant, as the latter is
likely to be protected against damage awards by principles of
sovereign immunity.306 As we discuss next, in some situations, the
constitution imposes not only a negative protection against
degradation of constitutional rights against non-state actors, but an
affirmative duty of care requiring non-state actors to protect the
environment.307
3. Defining the State’s Obligation

In addition to acts of commission—such as operating a mine in
violation of the constitution or allowing a company to cut down the
nation’s timber resources—some constitutional systems impose
affirmative obligations to protect the environment, and therefore seem
to envision liability for some acts of omission. The Dutch
Constitution, as we have seen, uses mandatory language. It states that
“[i]t shall be the concern of the authorities to keep the country
habitable and to protect and improve the environment.”308 Similarly,
but more emphatically, the new Constitution of Bhutan devotes an
entire article to the protection of the environment, which, in addition
to imposing duties on citizens to safeguard the environment, also
imposes these obligations on the government: “The Royal
Municipality of Campoalegre (Huila) (Const. Ct. Colom. Feb. 27, 1997) in UNEP
SUMMARIES, supra note 220, at 79 (enforcing environmental right against neighbor raising
pigs).
306 María Elena Burgos v. Municipality of Campoalegre (Huila) (Const. Ct. Colom.
Feb. 27, 1997) in UNEP SUMMARIES, supra note 220, at 79.
307 See Türkiye Cumhuriyeti Anayasası [Turk. Repub. Const] art. 56 (“Everyone has
the right to live in a healthy, balanced environment. It is the duty of the state and citizens
to improve the natural environment, to protect environmental health, and to prevent
environmental pollution.”).
308 Grondwet voor het Koninkrijk der Nederlanden [GW] [Constitution] (Neth.) art. 21;
see also A Magyar Koztársaság Alkotmánya [Constitution] (Hung.), art. 18 (“The
Republic of Hungary recognizes and shall implement the individual’s right to a healthy
environment.”).
Government shall: (a) Protect, conserve and improve the pristine

environment and safeguard the biodiversity of the country; (b)
Prevent pollution and ecological degradation; (c) Secure ecologically
balanced sustainable development while promoting justifiable
economic and social development; and (d) Ensure a safe and healthy
environment.”309 Presumably, the failure to protect and indeed
improve the environment would be actionable in the courts. The
Chilean Court has, as has already been noted, already used the
affirmative obligation in that country’s constitution to hold the
government liable for failure to protect,310 as has the Turkish Court.311
This echoes the levels of obligation that have been identified by
some courts even in the absence of textual adumbration. As the
African Commission on Human and Peoples’ Rights said in the
Nigerian/Shell case:
Internationally accepted ideas of the various obligations engendered
by human rights indicate that all rights-both civil and political rights
and social and economic-generate at least four levels of duties for a
state that undertakes to adhere to a rights regime, namely the duty to
respect, protect, promote, and fulfil these rights.312
The Philippine Court has also made clear that the State owes
different levels of obligation: “a balanced and healthful ecology and
to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect and
advance the second . . . .”313
These levels of obligation require progressively greater
commitment on the part of the government (and sometimes private
parties). Yet, even the most moderate level may, in the hands of the
right court, significantly constrain the government and obligate it to
change its policies. For instance, licensing a company to clear-cut a
forest may violate the obligation to “respect” the environment.
Beyond that, under a constitution that requires the government to
309 CONST. (Bhutan); see also Türkiye Cumhuriyeti Anayasası [Turk. Repub. Const.]
art. 56; see also Const. (Ghana) art. 41 (“The exercise and enjoyment of rights and
freedoms is inseparable from the performance of duties and obligations, and accordingly,
it shall be the duty of every citizen . . . (k) to protect and safeguard the environment.”).
310 Trillium, supra note 164.
311 Senih Özay, translated in 4 INT’L ENVTL. L. REP. 452, reprinted in KRAVCHENKO
& BONINE, supra note 5, at 90, 93.
on Human and Peoples’ Rights, ¶ 44 (Oct. 27, 2001).
“protect” the environment, a court might find actionable the

government’s failure to create an environmental protection agency or
to incorporate environmental concerns into its energy or economic
development program. “Protection” may well require the government
to take affirmative measures to ensure continued sustainability. The
obligation to “promote” the environment imposes even greater
obligations. Here, the government must take affirmative steps not
only to preserve, but also to improve the environment. Plaintiffs in
these types of cases may be able to identify certain environmental
problems that existed at the time of the adoption of the constitution
and entreat a court to hold the government liable for failing to
improve the situation, such as cleaning up a toxic dump site, reducing
air or water pollution, and so on. And finally, where the obligation to
“fulfill” the right to a clean environment exists, a court may hold the
government responsible for failing to provide the means by which a
clean and healthful environment can be enjoyed. For example, in
very poor countries, the government may need to ensure that all
citizens have adequate access to drinking water, food, and appropriate
shelter.
Each of these requires not only increasing action from the State,
but increasing resources as well. This is, of course, where the
obstacles to judicial enforcement creep in. In addition to the
problems of standing discussed above, plaintiffs are unlikely to sue
where the payback is not worth the cost of litigation. If the most that
can be gained under a “respect” case is the cancellation of one license,
a putative litigant may not bother suing if it is likely that the
government would simply issue another license to a different timber
company the next year. Even if a plaintiff is successful in securing a
judicial order mandating the development of an environmental plan,
he or she may not have the resources to sue the following year to
ensure that the plan is implemented. And most obviously, in the
countries where environmental protection is most needed, it is least
likely to be enforced for reasons of cost, if not political will. Even
when millions live in squalor with inadequate access to shelter and
clean water, a sympathetic court may not have enough muscle to force
the government to “protect and improve the environment.”314
314 INDIA CONST. art. 48A (“The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country.”).
4. Defenses and Limitations

Most constitutional defenses and limitations apply similarly in
fundamental environmental rights litigation. State and non-State
defendants may assert the usual factual defenses (e.g., that they did
not do the complained-of action, or that their actions or omissions did
not cause the complained-of injury) and legal defenses (e.g., that their
actions or omissions did not violate any legal duty imposed by the
constitution). Legal objections may be particularly pertinent where
the fundamental environmental right falls under a directive principle
of state policy and is therefore formally judicially unenforceable. As
we have seen, however, even in those situations, some courts have
overcome this objection by finding that the unenforceable
environmental right appertains to another enforceable right, such as
the right to life or to health.
In most constitutional systems, however, environmental rights are
not absolute and may be limited or overcome in at least three
situations, all of which pertain equally to the enforcement of other
constitutional rights. First, the environmental right may be limited if
it conflicts with another right, such as the right to life or a non-
derogable right like the right to dignity. Second, the environmental
right, like almost all other rights, is usually subject to a
proportionality test; that is, the right may be limited if the limitation is
proportionate to the need. Third, the right may resist vindication
where it is not deemed an individual right, but an obligation on the
State. In that situation, a court may order the government to develop
a plan for environmental protection, but will not find that a
government or private action has violated a particular plaintiff’s right
to a healthy environment. The question of remedies is thus central to
the definition and enforcement of fundamental environmental rights.
C. Remedies
The question of remedies comprises a complex web of issues
because it goes to the heart of the power and authority of the
constitutional court. What authority does a court have to order one
party to do something? What power does it have to enforce its order?
Constitutional courts do not typically have the power to ensure that an
order will be implemented. What Justice Felix Frankfurter said
almost fifty years ago of the United States Supreme Court is true of
every other court as well: “The Court’s authority—possessed of
neither the purse nor the sword–ultimately rests on sustained public
confidence in its moral sanction.”315 While the force of law stands

behind a court when it seeks to enforce an order against a private
actor, a government actor within the executive branch may well
control the forces of law. Many courts will therefore fashion only
those orders they believe the executive branch will choose to comply
with. Likewise, in the rarer case of an order against a legislative
entity, a court is unlikely to fashion an order that might be met with
intransigence, or worse, financial or political retribution (in the form
of diminished salaries, impeachment, or ultimately closure of the
courts). The firing of the Chief Justice of Pakistan in 2007 is one of
the most dramatic recent examples of political retribution for judicial
activity that is undesired by those who wield more power than the
court.316 This is the realpolitik that stands behind the political
question doctrine and the question of remedies. An environmental
case with significant political and economic repercussions could well
spark this kind of political backlash.
Thus, the question of remedies, their fashioning and their
enforcement, is in part a question of power, both de jure and de facto:
both the power that a court actually has as a matter of the positive law
that creates it and determines its authority, and the power that a court
may in fact exercise, given the monetary, political, and social or
cultural constraints that in reality demarcate the scope of its authority.
The legal limitations may be written into the constitution or in other
positive law that authorizes the court to entertain certain types of
cases and to fashion certain types of remedies. Does the constitution
give the court the authority to vindicate fundamental environmental
rights or are the fundamental environmental rights protected only as
directive principles of state policy?317 Does the relevant law or
practice allow writs of tutelage or amparo or does the court allow
“public interest litigation” (as in India), all of which permit private
individuals to challenge government action, or does it only allow
public officials to do? Does the court have power to order injunctive
relief, monetary damages, or both?
315 Baker v Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting).
316 Somini Sengupta, Musharaff Finds Himself Weakened After Firing of Judge, N.Y.
TIMES, Mar. 25, 2007, at A10.
317 See INDIA CONST. art. 37 (“The provisions contained in this Part shall not be
enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles in making laws.”).
But unwritten limits are also important. What are the expectations
of the people toward the court in each country? What is the social
tolerance for courts making policy or criticizing the government? In a
clash between an activist court and conservative government, who
would the people support? What would be the cost of overstepping
the bounds of social expectations? Is the court staffed by people who
are wont to defy cultural expectations by ordering the government to
rescind an industrial license or to clean up a toxic dump? In part, this
refers back to whether the court operates within a context of civil law
or common law, whether the court follows the Kelsenian model or the
American model.318 But as these categories merge and meld, the
formal structure becomes less important than the habit of
constitutional adjudication in each country.
1. Fashioning the Remedy

Once a court has determined that plaintiffs have standing, that the
case is otherwise justiciable, and that the defendant did violate a legal
duty thereby causing the injury of which the plaintiff complains, it
may choose to remedy the situation by ordering the defendant to do or
refrain from doing something. In an ordinary common law case,
fashioning the remedy is as simple as determining the dollar amount
of harm, ordering the defendant to make the plaintiff whole, or
ordering the defendant to stop doing the action that causes the harm.
In the case of fundamental environmental rights, fashioning the
remedy is another challenging area for the courts.319
The simplest remedies are the least likely to be effective in fixing
the problem. A declaratory judgment merely announces a violation
but imposes no obligation on the government or on any private party
to take action to improve the environmental situation. Most courts
have at their disposal a panoply of writs, but again, they are often
318 Following the work of the Austrian legal theorist and jurist Hans Kelsen, many
countries have adopted a model of constitutional adjudication that concentrates the power
of constitutional review in one tribunal (rather than dispersing it throughout the nation’s
courts), with the result that constitutional jurisprudence is developed by specialized jurists
whose sole function is to interpret the constitution and who operate largely outside the
general judicial hierarchy; in some countries following this model, legislative or
parliamentary supremacy is the norm. For a comparative overview of Kelsenian courts,
see generally VICTOR FERRERES COMELLA, CONSTITUTIONAL COURTS AND DEMOCRATIC
VALUES: A EUROPEAN PERSPECTIVE (2009).
319 Fashioning remedies in other areas of public interest litigation may be complex as
well. See, e.g., President of the Republic of S. Afr. V. Modderklip Boerdery 2005
CCT20/04 (S. Afr.) (trying to ensure that 400 squatters are removed from private property
humanely). The difference is that complex remedies in other types of cases are the
exception; in environmental litigation, they are the rule.
unlikely to suit the particularities of environmental litigation. In one

environmental case, the Supreme Court of Nepal held that mandamus
was unavailable because, “[f]or the purpose of mandamus, the legal
duty must be definite and fixed.”320
In the most important environmental cases, fashioning a remedy
can be more complex than ascertaining liability. Sometimes, an
award of damages can help fix an environmental problem, though
affixing a monetary amount to environmental degradation or ongoing
impairment to people’s health is obviously extraordinarily difficult.
In one Colombian case, where toxic fumes emanated from an open
pit, defendants were required “to remediate the site and to pay past
and future medical expenses to those who became sick.”321 In other
cases, the source of the environmental degradation is clear and the
remedy is simply to cease the offensive conduct. But in some
situations, even these seemingly simple orders are complex in the
aggregate. One author has described the series of Bangladeshi cases
discussed above as follows:
In a public interest litigation concerning air and noise pollution, the
Dhaka High Court ordered the Government to convert petrol and
diesel engines in government-owned vehicles to gas-fueled engines;
the same order also calls for the withdrawal of hydraulic horns in
buses and trucks by 28 April 2002. Another far reaching decision
of the Dhaka High Court has called for the withdrawal of two-
stroke engine vehicles from Dhaka City by December 2003, the
cancellation of licenses for nine-year-old three-wheelers, the
provision of adequate numbers of compressed natural gas stations,
and the establishment of a system for issuing fitness certificates for
cars through computer checks.322
As described above in a Nepalese case, environmental rights
prevailed over the use of diesel trucks through Kathmandu.323 In all
these cases, the remedies are much easier for a court to say than to
measure or enforce.
These types of remedies require nuanced line-drawing by the court:
how many compressed natural gas stations must there be? At what
320 Dhungel v. Godawari Marble Indus., WP 35/1992 (S.C. Nepal, Oct. 31, 1995) (en
banc), reprinted in KRAVCHENKO & BONINE, supra note 5, at 98.
321 KRAVCHENKO & BONINE, supra note 5, at 70 (discussing Corte [Constitucional,
Chamber of Civil and Agrarian Appeals], Castrillon Vega v. Federación Nacional de
Algodoneros y Corporacion Autonoma Regional del Cesar, Acción de Tutela Case No.
4577, Nov. 19, 1997 (Colom.)).
322 Hassan & Azfar, supra note 221, at 244 (footnotes omitted).
323 Advocate Kedar Bhakta Shrestha v. HMG, Dep’t of Transp. Mgmt., Writ No. 3109
of 1999 (Nepal).
age must cars be removed from the streets? They require a court to
engage in significant policy decisions, such as whether the
government should promote gasoline, diesel, or the newer clean diesel
engines. They require the allocation of resources toward one set of
goals, invariably at the expense of other social needs: if the
government is developing a computer system for issuing fitness
certificates for cars, it may not have the resources to develop a
computer system for maintaining the health records of newborns. In
one early Nepalese case, the Supreme Court prohibited the
government from leasing an important archeological site to a medical
college. “The environment is an integral part of human life,” the
Court said, and therefore environmental resources should be protected
in order to prevent the harm of degradation and to maintain a
pollution-free environment.324 But this masks a difficult policy
question requiring balancing the value of a protected environment
against the social benefits that would result from a medical college.
Which would save more lives or enhance the quality of life more?
There are further-reaching costs to any order that protects
environmental rights. How will people who rely on inexpensive two-
stroke-engine vehicles get around once they are banned from Dhaka
City? How will a family get a child to school without such a vehicle,
or an adult get to work if there is no money for newer, more
expensive, and more environmentally friendly vehicles? If a
government cancels drilling or mining contracts, how will it make up
the revenue shortfall? In a case from India, the court recognized (as
noted above) that “closure of tanneries may bring unemployment
[and] loss of revenue,” and it made the policy judgment that “life,
health, and ecology have greater importance to the people,”325 even
though those who rely on the tanneries for their livelihood may not
have made the same calculation. In other words, when government
policy changes to enhance the environment, it is often private
individuals who bear the burden.326 Some courts may be willing to
vindicate environmental rights for the benefit of the community as a
whole, future generations, or humanity in general, but other courts
may be reluctant to favor the global at the expense of the specific
324 Yogi Narahari Nath v. Honourable Prime Minister Girija Prasad Koirala, 33 N.L.R.
1955 (S.C. Nepal) in UNEP SUMMARIES, supra note 220, at 134.
325 M.C. Mehta v. Union of India, A.I.R. (1987) 4 S.C.C. 463 (India).
326 Yogi Narahari Nath & Others v. Honourable Prime Minister Girija Prasad Koirala &
Others, 33 N.L.R. 1955 (S.C. Nepal) in UNEP SUMMARIES, supra note 220, at 134 (here
environmental rights prevailed over establishment of a medical college).
individuals before them, or to protect the abstract value of a clean

environment over the immediate needs for sustenance or jobs for
members of a poor community.
Courts seeking to avoid this intensively policy-based assessment
have relied on principles of progressive realization to encourage
governments to promote environmental and other socio-economic
goals, without having to draw the fine lines themselves. Some
constitutions, such as South Africa’s327 explicitly provide for the
progressive realization of some rights while others leave it to the
courts to make the inference from the constitutional text or from
international law.328 In a recent case involving the right to water, the
South African Constitutional Court explained that:
[I]t is clear that the right does not require the state upon demand to
provide every person with sufficient water without more; rather it
requires the state to take reasonable legislative and other measures
progressively to realise the achievement of the right of access to
sufficient water, within available resources.329
The Court recognized that the right to progressive realization of a
constitutional right does give rise to justiciable obligations by the
State: the State must formulate policies to promote the right, and
“policies formulated by the state will need to be reviewed and revised
to ensure that the realisation of social and economic rights is
progressively achieved.”330 Thus, a litigant may always argue that the
state has failed to develop a policy concerning the right–viz.
environmental protection–or that the policy has not been adequately
revised and updated, and has been allowed to lie dormant. However,
the Court emphatically rejected the notion that socioeconomic rights
contain a particular “minimum core” which must be respected or
provided in the legislative plan.331 While the failure to include any
327 S. AFR. CONST. § 26(2): “The state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive realisation of each of
these rights” with regard to housing and section 27(2) with regard to healthcare, food,
water, and social security.
328 “Each State Party . . . undertakes to take steps . . . to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.” International Covenant on Economic, Social and
Cultural Rights, G.A. Res. 2200A (XXI), at pt. II, art. 2(1), 21 U.N. GAOR, 21st Sess.,
Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966).
329 Mazibuko v. City of Johannesburg 2009 ZACC 28, Case CCT 39/09 (CC), ¶ 50 (S.
Afr.).
330 Id. ¶ 40.
331 Id. ¶¶ 53, 56.
content in the policy might be considered unreasonable, and therefore

render the plan invalid, the failure to provide for a certain quantum of
housing, food, water, or environmental protection will not invalidate a
plan that otherwise aims to progressively realize the right. The
rejection of the “minimum core” is simply because of the judicial
impossibility of determining “the minimum threshold for the
progressive realisation of the right . . . without first identifying the
needs and opportunities for the enjoyment of such a right.”332
There are analogies that can be drawn from socioeconomic rights
litigation. In Grootboom, the South African Constitution Court held
that the right to housing explicitly protected in the South African
Constitution did not entitle anyone to a particular house at a particular
time, but rather it imposed on the government the obligation to
develop, and implement, a plan to alleviate the tremendous housing
shortage, caused by the unjust policies of apartheid, that continues to
plague South Africa.333 Similarly, in Treatment Action Campaign, the
Court refused to hold that there is a “minimum core” of health care to
which every individual is entitled, but that the government must have
a plan to deal, in particular, with the AIDS epidemic.334 The Court
recognized in these cases, as well as in Mazibuko, that imposing such
obligations on the government would have some fiscal ramifications,
but it placed the burden of weighing the competing policies and
allocating funds on the government (rather than the courts) in the first
instance.
The concerns raised with regard to housing and health care are
heightened with regard to a healthy or clean or safe environment,
where there is no baseline or objective that has been identified and
agreed upon a priori. This reluctance to impose a minimum core
definition on socio-economic rights stems from the same concerns
about separation of powers and judicial legitimacy that have been
discussed previously. The South African Constitutional Court
explained that courts:
[A]re ill-suited to adjudicate upon issues where Court orders could
have multiple social and economic consequences for the
community. The Constitution contemplates rather a restrained and
focused role for the Courts, namely, to require the State to take
measures to meet its constitutional obligations and to subject the
332 Id. ¶ 53, citing South Africa. v Grootboom 2001 (1) SA 46 (CC) ¶ 32 (S. Afr.)
(concerning the right to housing).
333 Grootboom, ¶ 54.
334 Minister of Health v. Treatment Action Campaign 2002 (5) SALR 721 (CC) ¶ 34 (S.
Afr.).
reasonableness of these measures to evaluation. . . . In this way, the

judicial, legislative and executive functions achieve appropriate
constitutional balance.335
But, as we shall see, formulating the right to a healthy environment
as a right to the progressive realization of a healthy environment—
without any minimum core—reduces the attractiveness to plaintiffs of
attempting to vindicating such a right: the payoff is far less palpable
than might initially appear, as we discuss in the next section,
regarding enforcement.
2. Enforcing the Remedy

When a court has made a decision to vindicate a fundamental
environmental right, it still needs to ensure that its remedy is
enforceable and enforced. Here the questions are who bears the
obligation to comply with the order, and, just as importantly, who is
responsible for ensuring that the order is complied with? If the order
requires Parliament to develop a plan or to change the law, who will
ensure that it does so effectively and in a timely fashion? And who
will ensure that the government enforces the new law?
It is usually up to the courts to ensure compliance with their orders.
In most cases, of course, parties (who have already accepted the
court’s jurisdiction over the controversy) will accept the court’s order
and abide by it if for no other reason than to avoid contempt of court
citations and the penalties that accompany them. However, the more
costly the order in financial, political, or other terms, the less likely
the defendant is to comply. This is true as well when the court’s
order is unusually complex or requires an ongoing commitment,
which is more likely to be the case with environmental constitutional
claims. In India, “[t]he main thrust is to substitute the ineffective
administrative directives issued by the pollution control boards under
the Water Act and the Environment (Protection) Act, with judicial
orders, the disobedience of which invites contempt of court action and
penalties.”336 If the government is required to develop a set of
standards for controlling air pollution, implement a clean-up program
for a toxic waste site, or award contracts for mining based in part on
environmental responsibility, a court may need to retain jurisdiction
over the defendant on an ongoing basis.
335 Mazibuko, ¶ 55 (quoting Treatment Action Campaign, ¶ 38).

336 Shubhankar Dam & Vivek Tewary, Polluting Environment, Polluting Constitution:
Is a ‘Polluted’ Constitution Worse than a Polluted Environment?, 17 J. ENVTL. L. 383,
389 (2005).
But this requires a continued commitment not only on the court’s

part but also on the part of the plaintiffs who originally brought the
suit or their successors. And it is not at all clear that even persistence
on the part of the litigants will bear fruit.337
In one Indian case, the court recognized this ongoing obligation
and expressly ordered that Mr. Mehta should be given liberty to apply
to the Court from time to time for further direction, if necessary.338
But this is problematic as well: continued vigilance on the part of
plaintiffs privatizes the burden for securing what is clearly a public
good. It requires the plaintiffs to ensure, on an open-ended basis, that
the government take responsibility for the environmental violation,
and that the government comply with the rule of law as mandated by
the judicial branch. This requires significant resources on the part of
the original litigants and their lawyers.339 As the Bangladeshi
environmental protection organization, BELA, has said: “winning a
court case is only the first step.”340 In Nepal, the nongovernmental
organization Pro Public has been forced to adopt “a comprehensive
strategy for obtaining compliance” with court orders.341 Ensuring
enforcement of court orders is difficult, though not impossible to do.
In sum, no single solution explains the lack of judicial engagement
with constitutionally entrenched fundamental environmental rights
provisions. In any given country, the reasons for the lack of
receptivity may be structural. Many constitutions expressly state that
fundamental rights provisions are unenforceable by citizens, or
337 As one set of commentators wrote:

Perhaps it was overly optimistic to place lofty hopes upon laws that are
ultimately implemented by poorly trained bureaucracies rooted in cultures of
corruption and inefficiency. . . .
....
. . . Naturally, in a situation where the policing authorities are the culprits
themselves, recourse to the administration becomes pointless and the affected
people turn to the defensive mechanisms afforded by the courts.
Hassan & Azfar, supra note 221, at 222–23.
338 M.C. Mehta v. Union of India, A.I.R. (1987) 4 S.C.C. 463 (India).
339 Indeed one commentator contends that the Oposa litigation was never fulfilled
because the original plaintiffs did not pursue the matter after the Philippine Supreme
Court’s remand: “The Supreme Court did not order the cancellation of the TLAs, but
ordered the case to be remanded for trial. Because the petitioners did not pursue the case
after it was remanded, no TLA was cancelled.” Gatmaytan, supra note 300, at 459
(regarding the Oposa decision).
340 KRAVCHENKO & BONINE, supra note 5, at 99.
341 Id.
contain other obstacles to the courthouse door, such as standing. The

reasons may be institutional. Courts are generally wary of new claims
that had previously been consigned to the political process. They can
also feel as though they lack competence and resources to adjudicate
fundamental environmental rights. Or they may be political. To
jurists and litigants alike, vindicating environmental rights can have
negative repercussions, from loss of political station to death.342 They
may be practical. Even under the best circumstances vindicating
fundamental rights provisions is most often left to threadbare litigants
often represented pro bono by a handful of public interest
environmental advocates pursuing some of the most profound issues
of the day with virtually no prospect for remuneration. Part IV
discusses ways to enhance the prospects of vindicating
constitutionally enshrined environmental rights provisions.
IV
PATHWAYS TO SUCCESSFUL CONSTITUTIONAL ENVIRONMENTAL
LITIGATION
Public interest litigation contemplates legal proceeding for
vindication or enforcement of fundamental rights of a group of
persons or community which are not able to enforce their
fundamental rights on account of their incapacity, poverty or
ignorance of law.
Subhash Kumar v. State of Bihar343
[The] safekeeping [of these rights] is in the interest of the collective

population . . . and whose violation, in spite of its being the source
of great social damage, does not cause significant or appreciable
damage on an individual level.
The “Trillium Case”344
Given all the hurdles discussed above, it is not surprising that there
has been so little successful constitutional environmental litigation;
perhaps what is surprising is that courts have been willing to look
beyond these obstacles and grant relief at all. What follows is a
summary of strategic choices that those seeking to vindicate
constitutionally enshrined fundamental environmental rights should
consider.
342 Houck, Light from the Trees, supra note 200, at 334 (discussing the fear of physical
violence as a result of bringing such a suit).
344 Trillium, supra note 164, at 13 (translated by authors).
A. Constitutional Culture
First, it is critical to ensure that the constitutional culture (whether
explicit or not) allows individuals to bring constitutional claims
against government and/or private actors for violation of fundamental
environmental rights. This means that the constitution should protect
environmental rights and that courts should have the authority to
vindicate them, either because they are explicitly guaranteed in a bill
of rights, or dependent on or derivative of some other explicitly
protected right (such as the right to life, to health, etc.). This may
require an explicit constitutional right to a remedy345 or an accepted
practice of providing a remedy where a constitutional right has been
violated.346 The Nepalese Constitution, for example, provides a
remarkable scaffolding for the enforcement of environmental and
other rights. It contains not only a right to environment and health
(art. 16), but also a right to constitutional remedy (art. 107), an
obligation on the State to protect the environment (art. 35.5), specific
jurisdiction for public interest cases (art. 207), and also imposes an
explicit duty on government to assist judiciary in delivering justice
(art. 115) and to follow precedent (art. 116), and a duty on the
Attorney General to monitor compliance.347 If this is not made
explicit in the constitutional text itself, this structure must all be in
place at the constitutional, statutory, or common (or customary) law
level in order for environmental justice to be judicially enforced.
B. Enabling Constitutional Litigation

Second, plaintiffs who seek to bring fundamental environmental
right claims must ensure that they have standing to bring the claim.
Obviously, this is easier in constitutional regimes that encourage
public interest litigation, whether by practice or under special writs or
special jurisdictional rules. Once standing has been established, the
plaintiffs’ claims will be scrutinized. Ordinarily, the more
specifically and narrowly the claim is drawn, the more likely a court
is to find it cognizable. This is true both in systems that are part of a
civil law tradition, as well as with courts that draw heavily on their
common law heritage. The chances of success will increase if the
345 See Const. (Nepal) art. 32 (“The right to proceed in the manner set out in Article
107 for the enforcement of the rights conferred in this Part is guaranteed.”).
346 See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
347 KRAVCHENKO & BONINE, supra note 5, at 99 (referring to Nepal’s Interim
Constitution 2007).
environmental right can be buttressed by or hybridized with other

constitutional claims (e.g., environmental claim plus dignity, life,
health, housing, occupation). In the course of the litigation, plaintiffs
should also pay close attention to the burden of proof. Often, if the
plaintiff can make out a prima facie case that the government violated
the constitutional right, the burden will shift to the government to
defend its action. This may significantly minimize the cost and
difficulty of proving causation and damages.348
Lastly, as noted above, winning the case is only the first step;
successful litigants need to ensure that the court order constitutes an
appropriate remedy, and that the remedy is enforced. Again, seeking
a remedy that is precisely and narrowly defined will increase the
likelihood that it will be adopted by the court and that it will be
followed by the government and subsequently enforced by the
courts.349 Negative obligations (that require the defendant to refrain
from an action) are more likely to be complied with and enforced than
affirmative obligations. Orders that do not require excessive
expenditures from the public fisc are more likely to be issued by a
court because they are more likely to be complied with by the
government. Conversely, orders that require extensive ongoing
judicial oversight are also less attractive to courts because they
involve greater judicial resources and expose the court to greater
criticism from the government and the public.
Nonetheless, some plaintiffs have successfully secured novel and
creative remedial orders from courts. In MC Mehta v. India, the court
ordered curricular reform to include environmental education and
ordered the showing of programs on television and radio as a
condition of a cinema license to educate the public about
environmental issues.350 In another Indian case:
[T]he Court set a deadline for the closure of polluting tanneries,
imposed a deposit fee on the price of the land, ordered the State
Government to set up a unified single agency consisting of all
departments concerned to act as a nodal agency, directed the State
348 Where the government failed to complete environmental impact assessment, it

“could not offer sufficient evidence that the logging of forests was sustainable” as
required. Trillium, supra note 164, at 11.
349 Some courts, particularly in the United States, are reluctant to enter this
environmental thicket. See, e.g., In re Katrina Canal Breaches Consol. Lit., 533 F. Supp.
2d 615, (E.D. La. 2008) (finding wrongdoing but not imposing liability on U.S. Army
Corps of Engineers). But see, L.K. Koolwal v. Rajasthan, 1988 A.I.R. (Raj.) (Supreme
Court of India ordering the City of Jaipur to “clean the entire Jaipur City”).
350 M.C. Mehta v. Union of India, (1987) 4 S.C.C. 463 (India).
Government to appoint an authority to assess the ecological loss to

the region and asked the same to frame scheme in consultation with
[others] for reversing the ecological loss.351
In Dhungel v. Godawari Marble Industries, the Supreme Court of
Nepal, in 1995, insisted that “[f]irst remedial and then regulatory
measures need to be adopted to mitigate such negative effects” and
then required the legislature to “enact necessary legislation for
protection of air, water, sound and environment and to take action for
protection of the environment of Godawari area.”352 These types of
remedies reflect the courts’ recognition that the government’s
obligation is not binary but layered, embodying different levels of
obligation to protect, preserve, promote, and fulfill fundamental
environmental rights. They are constructive remedies, focusing not
only on remedying past injuries, but also on creating new systems that
will prevent environmental injuries in the future.353 In response to
past environmental degradation, a government may be ordered to set
aside land that cannot be developed, to allocate financial resources for
environmental clean-up, to establish a department of environmental
protection, and so on. These solutions are often more effective and
more equitable than traditional injunctive or monetary relief,
particularly where a cease-and-desist order would not remedy the
environmental degradation that already occurred, where governments
lack the resources to pay significant monetary damages to a particular
individual or community, or where such an award would produce
significant disparities. It may be better social policy for all the
nation’s citizens to establish government oversight of the environment
than for the government to pay significant sums to clean up one
particular site or pay the medical bills of one particular community.
Litigants should encourage courts to develop creative solutions to the
multi-faceted problem of environmental protection.
C. Tolerance of Judicial Reform

In some countries, the judicial system and culture may not be
receptive to fundamental environmental rights for the reasons
351 Dam & Tewary, supra note 336, at 389-90 (footnotes omitted).
352 Dhungel v. Godawari Marble Indus, WP 35/1992 (S.C. Nepal, Oct. 31, 1995) (en
banc), reprinted in KRAVCHENKO & BONINE, supra note 5, at 96, 98.
353 Courts are doing this in other areas of constitutional litigation as well. See, e.g.,
South Africa v. Grootboom 2001 (1) SA 46 (CC); Soobramoney v. Minister of Health,
Kwazulu-Natal 1998 (1) SA 765 (CC); Minister of Health v. Treatment Action Campaign
2002 (5) SALR 721 (CC) (developing remedies for violations of housing and medical care
rights).
indicated in this Article. In these countries, it may be worth the effort

to lobby for specialized courts to deal with environmental litigation,
including both fundamental environmental right litigation and
litigation based on climate change. Specialized courts could develop
unique standing and evidentiary rules to facilitate the investigation of
environmental claims. They would be staffed by experts in the
various aspects of environmental litigation, such as the health effects,
the biological and chemical implications of government or private
action to the environment, or the economic effects of enhancing
environmental regulation. With added expertise, the courts would
benefit from increased social legitimacy, and would thereby have the
power to issue broader, more creative orders to remedy environmental
violations. This in turn would help avoid the problem articulated by
Justice Feliciano, concurring in Minors Oposa:
[T]he result will be, it is respectfully submitted, to propel courts
into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical
competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then
the policy making departments—the legislative and executive
departments—must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and to
implement them before the courts should intervene.354
The observation is largely true, and promoters of constitutional
environmental rights should be prepared to respond to it.
CONCLUSION
Given the complexity of environmental litigation—the necessary
involvement of all branches of government as well as a multiplicity of
private and public actors—it is obvious that the judiciary plays a
necessary but not sufficient role in the vindication of fundamental
environmental rights.
Litigation of fundamental environmental rights is useful where the
causation is clear and the injury is remediable by a simple order that
does not require extraordinary measures for enforcement. But where
the claims are broader, one may legitimately ask whether litigation is
the most effective vehicle for improving the environment. Should the
relative value of a medical college versus a clean environment be
decided by a few politically unaccountable judges? Should the Inuit
354 Minors Oposa, supra note 1, at 205 (Feliciano, J., concurring).

adapt to the effects of global warming by suing? Should the

Yanomami have to, or be able to, characterize the loss of their culture
and way of life caused by development throughout Brazil as “a
violation of the right to residence and movement”?
Litigation in these kinds of situations may not only distort the
injury that is being experienced,355 but may also put courts in the
untenable position of trying to fix a wrong they have no capacity to
fix, particularly where legitimate separation of powers concerns
appropriately limit their authority. Ultimately, the problem, as noted
above, is that litigation over fundamental environmental rights
requires courts to treat a public injury as if it were a private wrong.
The closest analogy may be to the anti-discrimination litigation
pursued in the 1950s in the United States, the most famous instance of
which was Brown v. Board of Education.356 Choosing litigation as
the vehicle to dismantle the broad-ranging and deeply entrenched
system of segregation that permeated American life was perhaps not
the wisest choice, because courts were unwilling for many years to
entertain such claims. Even those judges that had the inclination to
help the downtrodden felt, for the most part, that they did not have the
institutional capacity to dismantle a system of life through court
order. As with constitutional environmental litigation, litigating
segregation forced a handful of private individuals to bear the burden
of changing an entire social system that injured millions and forced
them to articulate the harm in terms that were familiar to the
traditional forms of constitutional law, even though the real injuries of
generations of segregation are broad, deep, and ultimately ineffable.
And even Brown, considered the high watermark of civil rights
litigation, is deeply flawed. The states strenuously resisted it, it
required decades of ongoing judicial supervision, it did not help the
millions of children who were in the plaintiffs’ situation, and it did
not end segregation in America, or even in primary schools. The
legacy of its failure is felt to this day. But for all its flaws, it was,
nonetheless, critical to the effort to end segregation. It started the
conversation and set the moral terms of debate. It rendered the
question of segregation a national, constitutional one, and it made
ignoring segregation impossible. It may not have been the wisest
choice, but it may have been the only choice.
355 See KRAVCHENKO & BONINE, supra note 5, at 567.

356 See generally Brown v. Bd. of Educ., 347 U.S. 483 (1954).
Likewise, in order to move the issue of environmental protection to

the fore, the best course may have to be litigation. Even in the more
complex, multi-faceted, and politically sensitive situations, where
judicial enforcement requires the conversion of a public injury into a
private wrong, constitutional litigation can be salutary. The
restrictions on authority and legitimacy that courts contend with may
not enable them to protect the environment on their own, but they are
nonetheless able to participate in and indeed set the terms of the social
and political debate on a particular issue. Through their opinions
which are reported in the press and debated in the public arena, they
can bring the problems to people’s attention so that environmental
issues will ultimately get resolved not in the courts, but through the
political process. Thus, by resolving particular disputes between
private parties or with the government on particular issues, courts can
serve as necessary if not sufficient galvanizers of environmental
awareness and environmental action.

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Widener Law School Legal Studies Research Paper Series no.

Vindicating Fundamental Environmental Rights: Judicial Acceptance

This paper can be downloaded without charge from

Electronic copy available at: http://ssrn.com/abstract=1479849

Vindicating Fundamental Environmental

Electronic copy available at: http://ssrn.com/abstract=1479849

IV. Pathways to Successful Constitutional Environmental

Such a right belongs to a different category of rights altogether for it

This Article addresses judicial tolerance toward a recent

Electronic copy available at: http://ssrn.com/abstract=1479849

the environment, to jurisprudential questions about standing and

recognized the link between human and environmental rights.9 This

Aarhus Convention15 regarding procedural environmental rights in

15 Convention on Access to Information, Public Participation in Decision-Making and

The alternate summit helped convince those at the principal

right engenders a right to potable water to protection from the effects

and suggests ways to neutralize judicial resistance to these emerging

Activists are now pushing for environmental rights to be enshrined

A. Structural and Syntactical Choices

31 Constitución Argentina, art. 41. Unless otherwise noted, all constitutional

“[t]he State endeavors to protect the environment and its natural

2008),41 for instance, have recently included provisions for

environmental rights provisions in new constitution, including public participation in

environment”),47 and Afghanistan in 2004 (right to “prosperous life

47 Charter of the Environment, 2004 (adopted into the Constitution, Constitución

B. Shaping Framers’ Views on Fundamental Environmental

53 See HAYWARD, supra note 6, at 63–92 (arguing in favor of constitutionalizing

provide explicit positive or negative rights and other advantages.60 As

[E]nvironmental protection in a constitution offers several advantages over

that curtail private property,66 undermines executive mandates,67 and

66 See id. at 128.

standing,73 and judicial competency. Above all, there is the question

Various constitutional-environmental-rights provisions are ineffectual because

abound, including whether “environment” is anthropogenic or should

The third consideration is whether the country possesses the

79 Michael R. Anderson, Human Rights Approaches to Environmental Protection: An

C. Presumptions About Enforceability

82 See HAYWARD, supra note 6, at 93–128 (examining challenges of judicial

Togo,94 and the island nations of Cape Verde95 and Seychelles.96 In

89 Federal Negarit Gazeta of the Federal Democratic Republic of Ethiopia

In Latin America, environmental rights have been expressed in most of the

Salvador,101 Guatemala,102 Honduras,103 and Venezuela.104 Nations of

101 Constitución de 1983, Reformas hasta 2003 incluídas de República de El Salvador

Slovakia,118 Serbia,119 Slovenia,120 and Ukraine.121 Western

Although the approach to a substantive right to the environment is perhaps one of

nations include those from East Timor125 to Kyrgyzstan126 and

125 Konstitusaun Du Timor-Leste [Constitution] (E. Timor) pt. II (“Rights, Duties,

Korea,131 Nicaragua,132 Macedonia,133 Mozambique,134 Paraguay,135

and Germany.154 Moreover, fewer than twenty of the countries with

Florida, Massachusetts, Montana, Pennsylvania, Rhode Island, and Virginia). For a

Despite the prevalence of constitutionally entrenched fundamental

A. Independent Environmental Rights

158 Fundepublico v. Mayor of Bugalagrande, Interlocutorio #032, (Dec. 19, 1991)

The constitutional rights granted are increasingly being enforced by courts. In

Hungary, Turkey, Portugal, and South Korea.161 For example, in the

injury.166 Likewise, in Proterra v. Ferroaleaciones San Ramon S.A.,

hallways of administrative law. One has the impression that it will

psychological and physical integrity of the person.”176 In Alberto

Central and Eastern Europe to give force to this type of provision.182

in its tracks.189 Courts in Portugal have found actionable an

ombudsman,197 and citizens of Cameroon are not allowed to pursue

B. Dependent Environmental Rights

197 BROWN WEISS II, supra note 152, at 417.