The Necessity and Possibilities of Constitutional Environmental Rights

University of Pennsylvania ScholarlyCommons Master of Environmental Studies Capstone Department of Earth and Environmental Projects Science 8-24-2006 The Necessity and Possibilities of Constitutional Environmental Rights Christina Simeone University of Pennsylvania Follow this and additional works at: https://repository.upenn.edu/mes_capstones Part of the Natural Resources Management and Policy Commons Simeone, Christina, "The Necessity and Possibilities of Constitutional Environmental Rights" (2006). Master of Environmental Studies Capstone Projects. 7. https://repository.upenn.edu/mes_capstones/7 Presented to the Faculties of the University of Pennsylvania in Partial Fulfillment of the Requirements for the Degree of Master of Environmental Studies 2006. This paper is posted at ScholarlyCommons. https://repository.upenn.edu/mes_capstones/7 For more information, please contact [email protected]. The Necessity and Possibilities of Constitutional Environmental Rights Abstract This project attempts to give the reader a broad understanding of the nature and definition of a constitutional environmental right, what it would guarantee, whether it should be considered a human right. It goes on to discuss if environmental rights claims could be protected under existing legislation, the process of amending the U.S. Constitution, who currently has environmental rights, and finally the difficulties associated with these rights. The intention of this chapter is to provide an educated conclusion as to the relevance, need, feasibility, and barriers associated with constitutional environmental rights. Disciplines Natural Resources Management and Policy Comments Presented to the Faculties of the University of Pennsylvania in Partial Fulfillment of the Requirements for the Degree of Master of Environmental Studies 2006. This thesis or dissertation is available at ScholarlyCommons: https://repository.upenn.edu/mes_capstones/7 An American Evolution – Environmental Rights Chapter Christina Simeone Introduction This chapter attempts to give the reader a broad understanding of the nature and definition of a constitutional environmental right, what it would guarantee, whether it should be considered a human right. It goes on to discuss if environmental rights claims could be protected under existing legislation, the process of amending the U.S. Constitution, who currently has environmental rights, and finally the difficulties associated with these rights. The intention of this chapter is to provide an educated conclusion as to the relevance, need, feasibility, and barriers associated with constitutional environmental rights. Keep in mind that this chapter has not been written or compiled by an attorney, so legal issues are merely illustrated, not exhaustively explored. Additionally, this chapter focuses on the broad aspects of constitutional environmental rights. There are many other issues, problems, costs, and benefits associated with these rights which are not discussed in this chapter. Nature and Definition of Environmental Rights A constitutionally guaranteed environmental right could be worded in many different ways. The wording of the right would shape its duties and scope. Tim Definition Hayward, a scholar devoted to environmental rights, prefers the definition of of ER environmental rights referenced in the Brundtland report of 1987: ‘All human beings have the fundamental right to an environment adequate for their health and well-being’1. While other definitions have been posed, a right worded in this particular way has been used most frequently by international organizations. This is the definition of the environmental right that I will be working with in this chapter. An environmental right worded like this would be a useful tool with respect to pollution, waste disposal, toxic contamination and other environmental risks to human health and well-being. Many health risks are present from environmental contamination of air, water and food (see the Public Health Chapter). A constitutional environmental right would take great steps to curtail negative health exposures, by creating accountability, encouraging precautionary contamination levels, and setting up pathways of legal redress. Constitutional environmental rights would also do a great deal to eliminate environmental justice and future generation inequity concerns. Depending on how ‘health’ and ‘well- being’ are legally defined, other environmental issues could be protected under the right. Such issues, under a liberal definition, could include quality of life concerns, aesthetics, 1 World Commission on Environment and Development, Our Common Future (1987), Oxford University Press, p. 348 1 cultural and spiritual issues related to the environment2. However, a constitutional environmental right is not a cure for all aspects of environmental concern. The nature of an environmental right is complex. Human rights are classified in Generatio generations3. ‘First generation’ rights in the United States include personal liberties such ns of rights as civil and political rights. These first generation rights are negative rights, ones that the government cannot infringe or act upon. An example is freedom of speech, in which the government must abstain from acting against a person freely exercising. ‘Second generation’ rights mandate government action and usually involve economic or social rights. These second generation rights usually concern themes of equality. They are positive rights, requiring the government to act. An example of these rights is the right to be employed, in which the government must take actions to ensure that disabled or handicapped people can secure themselves employment. ‘Third generation’ rights are collective in nature, which goes against the traditional understanding of individual human rights. They can require positive and negative actions from the government. So the government may be required to act in some instances and prohibited from acting in others. These rights usually concern society as a whole and the union of interests affecting all people. Examples of third generation rights include the right to a reasonable environment, economic development, common heritage of mankind, humanitarian assistance, etc. These third generation rights are extremely hard to implement because of the combination of positive and negative duties imposed on the government. In fact, third generation rights do not exist in practice in the United States. International law does recognize third generation rights. An example of which is the ‘right to self- determination’ guaranteed in the African Charter of Human and Peoples’ Rights of 1981. Things to consider with respect to formulating a third generation right are delineating the positive and negative duties of the government. The development of a U.S. environmental right will be difficult and unprecedented: this is not to say that the feat is impossible or unworthy of undertaking. A U.S. environmental right would be considered an anthropocentric right, because it considers only human health and well-being, not the environment ‘for its own sake’. Weak An ecocentric environmental right would be worded more as a ‘right OF nature’ rather Anthro than a ‘right TO nature’. This distinction is important since legal authorities would probably be more likely to oppose the economic interests of an entity to protect the rights of human than the rights of animals or plants4. An anthropocentric right can have two further distinctions, ‘weak’ or ‘strong’ anthropocentrism. Strong anthropocentrism, also called the utilitarian view, would consider only the interests of humans and excludes the interests of nonhumans and the environment for its own sake. The utilitarian view only considers the short-term value of all variables of the ecosystem. By this view, the environment is seen as a life-support system for humans, to be manipulated and used in whatever way humans feel is to their best interests. The focus of ‘weak’ anthropocentrism is on human interests, but it does consider nonhuman and 2 Hayward, Tim, “Constitutional Environmental Rights: A Case for Political Analysis”, Political Studies, 2000, Vol. 48, p.559 3 Shelton, Dinah, “Human Rights, Environmental Rights, and the Right to Environment”, Stanford Journal of International Law, 1991-1992, Vol. 28, p.122 4 Carnegie Council Website - Apple B, Commentary on ‘The enforceability of environmental rights”, located at http://www.carnegiecouncil.org/viewMedia.php/prmTemplateID/8/prmID/4464 accessed on February 22, 2006 2 environmental interests. This view acknowledges that humans are integrally linked to the environment and cannot be separated from it. Weak anthropocentrism maintains that if relatively subordinate human interests conflict with essential interests of nonhumans or the environment, priority could be given to the non-human or environmental interests5. ‘Weak’ anthropocentrism generally recognizes that, “human interests are inseparable from the good of the nonhuman constituents of the environment in many ways, some of which we may not yet be aware of, so that a reasonable working presumption (which is absent from ‘strong’ anthropocentrism) is that where there is not a serious cost in human terms there is a positive reason actively to show concern for features and constituents of the nonhuman environment, regardless of whether humans stand to derive any 6 immediate benefit.” Global Ultimately, the nature of environmental rights requires a concerted International effort effort towards

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