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Constitutional Environmental Rights This page intentionally left blank Constitutional Environmental Rights Tim Hayward 1 1 Great Clarendon Street, Oxford ox26dp Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Bangkok Buenos Aires Cape Town Chennai Dar es Salaam Delhi Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi São Paulo Shanghai Taipei Tokyo Toronto Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Tim Hayward, 2005 The moral rights of the authors have been asserted Database right Oxford University Press (maker) First published 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Hayward, Tim. Constitutional environmental rights / Tim Hayward. p. cm. Includes bibliographical references. ISBN 0-19-927867-9 (alk. paper) — ISBN 0-19-927868-7 (alk. paper) 1. Environmental justice—Political aspects. I. Title. GE220.H39 2005 363.7—dc22 2004023817 ISBN 0-19-927867-9 (hbk.) ISBN 0-19-927868-7 (pbk.) 13579108642 Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by Biddles Ltd., King’s Lynn For David and Holly This page intentionally left blank Contents Acknowledgements xi Introduction 1. Background 1 2. Rationale 5 2.1. The rationale for a constitutional approach to environmental protection 5 2.2. The rationale for taking environmental protection to be a human rights issue 9 2.3. Section conclusion 13 3. Overview of the arguments of the book 14 1. The Case for a Human Right to an Adequate Environment 25 1.1. The case for pursuing environmental ends by means of human rights 27 1.1.1. The scope of an environmental human right 27 1.1.2. Addressing doubts from an environmental perspective 31 1.2. A genuine human right? 36 1.3. A universal moral right to an adequate environment 47 1.3.1. Why the right to an adequate environment meets the criteria of a genuine human right 47 1.3.2. Defending the case means critically assessing the relation of rights to duties 50 1.4. International recognition of a human right to an adequate environment: the precedents 54 1.5. Conclusion 58 2. Constitutionalizing the Right to an Adequate Environment: Challenges of Principle 63 2.1. Why the right to an adequate environment ought to be constitutionalized 65 viii CONTENTS 2.1.1. Assessing the claim that ‘all human rights ought to be constitutionalized’ 66 2.2. Why environmental protection should not be constitutionalized only in the form of a policy statement 72 2.3. Why a substantive right to an adequate environment should not be provided with lesser constitutional status than a fundamental right 78 2.3.1. Why the distinction between fundamental rights and social rights is conceptually problematic 79 2.3.2. Why environmental rights should be substantive and not merely procedural 84 2.4. Conclusion 88 3. The Challenge of Effective Implementation 93 3.1. The necessary conditions for judicial enforcement of constitutional rights, and claims that these cannot be fulfilled for the right to an adequate environment 94 3.2. The peculiar difficulties of enforcing environmental norms 101 3.3. The institutional and constitutional competence of courts 110 3.3.1. Specialist environmental courts 111 3.3.2. The constitutional competence of courts 115 3.4. The jurisprudence of human rights 119 3.5. The effectiveness of a constitutional right to an adequate environment 124 4. Environmental Rights as Democratic Rights 129 4.1. Are constitutional rights inherently undemocratic? 131 4.1.1. Undemocratic transfer of powers from legislature to judiciary 131 4.1.2. Undemocratically binding the future? 133 4.1.3. Rights proposals have an undemocratic motivational structure? 135 CONTENTS ix 4.1.4. Internal tensions in the majoritarian critique of constitutional rights 136 4.1.5. Section conclusion 138 4.2. Democratic rights 139 4.2.1. Democracy’s ‘self-binding’ rights: procedural rights 140 4.2.2. Environmental procedural rights 143 4.3. Substantive environmental rights as democratic rights 145 4.4. Environmental rights as negative rights 149 4.5. The democratic legitimacy of negative environmental rights 153 4.6. Conclusion 158 5. Is a Constitutional Environmental Right Necessary? A European Perspective 159 5.1. Contextualizing the question 160 5.2. Environmental rights in European Community law 165 5.2.1. EC policy principles 166 5.2.2. Directives 170 5.3. Using human rights for environmental protection 173 5.3.1. The environmental potential of existing substantive rights in Europe 174 5.3.2. Procedural environmental rights and the Aarhus Convention 177 5.4. Conclusion 181 6. Environmental Rights and Environmental Justice: A Global Perspective 185 6.1. State constitutions and the permeability of normative orders 188 6.1.1. The continuing importance of the nation-state 188 6.1.2. The permeability of domestic and international normative orders 191 x CONTENTS 6.2. Constitutional environmental rights viewed from the normative perspective of global justice 192 6.3. The value of constitutional environmental rights for poorer societies 200 6.3.1. The need for environmental rights is not nullified by imperatives of development 200 6.3.2. Illustrations of permeability in practice 203 6.3.3. Poorer countries in the avant garde of environmental human rights jurisprudence 205 6.4. Conclusion 210 Bibliography 217 Index 229 Acknowledgements Work on this book was initially stimulated through conversations with several friends and colleagues. For their encouragement, and for their guidance on legal aspects of the inquiry, thanks go to Michael Anderson, Alan Boyle, Christine Boch, Chris Himsworth, Antonia Layard, and Leonor Moral Soriano. Drafts of the work in progress benefited from discussions at various seminars, confer- ences, and workshops, and I would like to thank everyone who has contributed to its development at these events and in per- sonal conversation, in particular Brian Barry, John Barry, Avner De-Shalit, Andrew Dobson, Andrew Light, David Miller, John O’Neill, Graham Smith, and Susan Stephenson. A substantial portion of the initial research was made possible by ESRC grant R000222269 and this is gratefully acknowledged. Part of the research was conducted during a visiting fellowship at the Oxford Centre for Ethics, Environment and Society (OCEES), Hilary Term 1998, for which I warmly thank my hosts at Mansfield College. The rest of the work was carried out at the University of Edinburgh where I have enjoyed the support of excellent colleagues and the additional freedom to write afforded by a couple of terms’ sabbatical leave. The University also sup- ported the 1998 public seminar ‘Constitutional Environmental Rights for Scotland?’, whose assembled panel of lawyers, cam- paigners, and politicians helped simultaneously to broaden and to focus the perspectives that have come to inform this work, and I would particularly like to thank, in addition to people named elsewhere, Sarah Boyack and Andy Myles. I am also indebted to Eurig Scandrett and Friends of the Earth Scotland for the insights yielded by several seminars they have sponsored on environmental justice. Special thanks go to my colleagues Russell Keat and Lynn Dobson for reading all of the chapters at critical stages in their xii ACKNOWLEDGEMENTS development and making numerous constructive suggestions for improvements. In my final push to get the book completed, too, they were generous in their assistance. For comments on individ- ual chapters I am also very grateful to Elizabeth Bomberg, Sara Rich Dorman, Robyn Eckersley, Cecile Fabre, Elizabeth Fisher, Kimberly Hutchings, Ben Minteer, and Bob Pepperman Taylor. It goes without saying that no one other than the author can be held responsible for errors or omissions, but particularly with regard to questions of law, on which I am no expert, I emphasize that any mistakes will be my own, and that the good advice of those I here thank certainly saved me from making others. Chapter 4 is a lightly revised version of a chapter that appeared in Ben A. Minteer and Bob Pepperman Taylor (eds.) Democracy and the Claims of Nature (Lanham, MD and Oxford: Rowman & Littlefield, 2002), and I thank the publishers for their permission to reproduce the material here. Introduction The central claim of this book is that a right of every individual to an environment adequate for their health and well-being should receive express provision in the constitution of any modern demo- cratic state. This claim is to be defended against six general lines of criticism which will be outlined in the latter part of this Introduction. First, though, the general background and rationale for the claim will be sketched out. 1 Background The argument of this book has developed out of research guided by the initial, tentatively formulated question, ‘would constitu- tional environmental rights be a good idea?’ The question arose on the basis of two quite general thoughts: first, that environmental protection is sufficiently important to warrant the provision of guarantees for it at the highest political level, which for practical purposes means the constitutional; second, that because environ- mental protection is equally important for everyone, and for rea- sons which transcend the particular terms of any actual political association, it ought to be considered a human right.

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