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Constitutional Right to a Healthy Environment
What Difference Does it Make to Give Environmental Protection Constitutional Status?
28 September 2007
The usefulness of a constitutional right to a healthy environment was the subject of an international law conference entitled ?Constitutional rights to an ecologically balanced environment?, organised by the Flemish Environmental Law Association (VVOR) in cooperation with the European Environmental Law Association (EELA) in Ghent (Belgium) on 28 September 2007. Presentations addressed both the ?haves? and the ?have-nots?, states with (or without) a form of constitutional right to a healthy environment. The conference addressed the situation in a number of EU member states (Belgium, the Netherlands, Spain, Portugal, Greece, Luxembourg and the UK) as well as two states outside Europe: Brazil and the US.
Speakers identified several legal effects of a constitutional right to a healthy environment. Constitutional status (primary legislation) can provide a legal foundation for environmental law (secondary legislation). Constitutional recognition can serve as a mandate or obligation for governmental action on the environment. It can also protect against erosion of legislative protection of the environment. Constitutional status can elevate environmental protection to an equivalent status with other socio-economic rights, requiring a more judicious balancing of competing rights by the courts. Constitutional protection of the environment can also serve as a support for procedural rights such as the right of access to environmental information.
Constitutional status does not however automatically mean the right can be enforced. Nor does a constitutional provision in and of itself suffice to convey standing (the right to bring legal proceedings) to individuals or (environmental) organisations. The question was also raised whether existing provisions in the various constitutions discussed were too anthropocentric.
Some speakers questioned the need for a constitutional right at all. The right to an ecologically balanced environment can be difficult to define and difficult to adjudicate. Opening the door to enforcing a vague constitutional principle could also lead to an excessive judicial role in balancing competing interests to the detriment of the role of the legislator. Establishing principles without effect can also have the negative public impact of raising expectations that cannot be met.
International agreements may also supplant the need for national constitutional provisions. Reference was made to the reach and impact of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters. Consideration should also be given to the opportunities other international agreements or fora may provide for protecting environmental rights as a human right.
Allowing for the reservations expressed, the conference allows for the overall conclusion to be drawn that, based on the experience in the legal systems considered, a constitutional status does convey a number of important benefits for environmental protection.