Giving nature constitutional protection: A less anthropocentric interpretation of environmental rights

Texas Law Review

Volumn 86, Issue 3, 2008, Pages 615-646

  Bruckerhoff, Joshua J ^a  

^a NONE

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EID: 40949164233     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (208)

1. See Dinah Shelton, The Links Between International Human Rights Guarantees and Environmental Protection 22 (University of Chicago, Center for International Studies, 2004), http://internationalstudies.uchicago.edu/ environmentalrights/shelton.pdf ("Human rights are by definition anthropocentric").
2. See Dinah Shelton, Human Rights, Health & Environmental Protection: Linkages in Law and Practice 22, 22 & n.65-66 (World Health Org., Health and Human Rights Working Paper Series, Working Paper No. 1, 2002), available at http://www.who.int/hhr/information/en/ Series_l%20%20Human_Rights_Health_Environmental%20Protection_Shelton.pdf (noting that "[m]ore than 100 constitutions throughout the world guarantee a right to a clean and healthy environment, impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources" and that "[o]ver half of these constitutions explicitly recognize the right to a clean and healthy environment" (footnote omitted));
3. see also TIM HAYWARD, CONSTITUTIONAL ENVIRONMENTAL RIGHTS 203 (2005) (noting that most Latin American countries have constitutions that provide an express right to an adequate environment);
4. Carl Bruch et al., Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa, 26 COLUM. J. ENVTL. L. 131, 143 (2001) (explaining that at least thirty-two African constitutions include a substantive provision that ensures a right to a healthy environment).
5. See DINAH SHELTON & ALEXANDRE KISS, UNITED NATIONS ENV'T PROGRAMME, JUDICIAL HANDBOOK ON ENVIRONMENTAL LAW 7 (2005), available at http://www.unep.org/law/PDF/ JUDICIAL_HBOOK_ENV_LAW.pdf ("It remains to be seen what role constitutional environmental rights might play alongside common law, statutory, and regulatory means for protection of the environment.").
6. See infra Part III (explaining cases where courts applied a constitutional right to the environment).
7. See generally WORLD WILDLIFE FUND, LIVING PLANET REPORT 2006, at 3 (2006), available at http://assets.panda.org/downloads/living_planet_report.pdf (explaining how human activity is causing the extinction of plant and animal species across the globe).
8. See infra subpart 1(B).
9. See infra subpart 11(C) and Part IV.
10. E.g., CONSTITUIÇÃO FEDERAL [C.F.] art. 225 (1988) (Braz.), translated in CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL 1988 (Istvan Vajda et al. trans. and rev., Brasília 3d rev. ed. 2002) ("All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.").
11. CONST. (1987), Art. II, § 16, (Phil.), translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 168 (Albert P. Blaustein & Gisbert H. Flanz eds., 1986).
12. See infra subpart IV(B).
13. See SHELTON & KISS, supra note 3, at 91 (explaining that the terms biological diversity and biodiversity have replaced more narrow phrases, such as nature conservation and wildlife protection). When used in this Note, the term biodiversity is usually employed in its more liberal sense, rather than its more specific and accurate scientific definition.
14. Convention on Biological Diversity, art. 2, opened for signature June 5, 1992, 1760 U.N.T.S. 143, 146, 31 I.L.M. 818, 823, available at http://www.cbd.int/doc/legal/cbd-un-en.pdf. The full text of the Convention is also available at http://www.biodiv.org/convention/con vention.shtml.
15. See Kai Kokko, Biodiversity Law 157, 159, 159-60 (Finnish Forest Research Inst., Working Paper No. 1, 2002), available at http://www.metla.fi/julkaisut/workingpapers/2004/mwp001-14.pdf (delineating biodiversity law's objective as "safeguarding" natural resources while regulating the relationship between people and nature).
16. See infra subpart I(A) (comparing anthropocentrism to biocentrism).
17. See Susan Emmenegger & Axel Tschentscher, Taking Nature's Rights Seriously: The Long Way to Biocentrism in Environmental Law, 6 GEO. INT'L ENVTL. L. REV. 545, 550, 550-55 (1994) (recognizing "immediate human self-interest" as the early anthropocentric rationale for environmental protection).
18. See id. at 577-79 (defining biocentrism as representing protection of all forms of life).
19. See id. at 568-72 (noting that the Convention on Biological Diversity and the World Charter for Nature marked the emergence of the nonanthropocentric paradigm).
20. See World Charter for Nature, G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/Res/37/7Annex (Oct. 28, 1982), reprinted in 22 I.L.M. 455, 456 (1983) ("Every form of life is unique, warranting respect regardless of its worth to man .. . .").
21. See Convention on Biological Diversity, supra note 12.
22. Id. pmbl., 1760 U.N.T.S. at 143-46, 31 I.L.M. at 822-23 (emphasis omitted).
23. Id. pmbl., 1760 U.N.T.S. at 143, 31 I.L.M. at 822.
24. In fact, the preamble is considerably longer than the above quoted passage. The preamble further discusses the importance of biodiversity protection to humans and governments. See id. pmbl., 1760 U.N.T.S. at 145, 31 I.L.M. at 823 (recognizing, for example, the "critical importance [of biodiversity] for meeting the food, health and other needs of the growing world population, for which purpose access to and sharing of both genetic resources and technologies are essential").
25. See James P. Sterba, Biocentrism and Human Health, 5 ETHICS & ENV'T 271, 271 (2000) ("[T]here is a mutually supporting relationship between the requirements of biocentrism and the requirements for human health.").
26. See Neil Gunningham & Mike D. Young, Toward Optimal Environmental Policy: The Case of Biodiversity Conservation, 24 ECOLOGY L.Q. 243, 247 (1997) ("Biodiversity is essential for the maintenance of human life on earth, and scientists have long acknowledged that the preservation of biodiversity is, by definition, vital for an ecologically sustainable society.").
27. See KEVIN J. GASTON & JOHN I. SPICER, BIODIVERSITY: AN INTRODUCTION 92 (2d ed. 2004) ("Biodiversity provides food for humans, and hence is the foundation of all our food industries and related services.");
28. Judith I. McGeary, A Scientific Approach to Protecting Biodiversity, 14 J. NAT. RESOURCES & ENVTL. L. 85, 87 (1998-1999) (explaining that "humans depend on other species for food" and that current agricultural systems "are extremely susceptible to extinction" because they are not biologically diverse).
29. See GASTON & SPICER, supra note 25, at 93-94 (describing the role of biodiversity in providing medical treatments and advances);
30. Norman R. Farnsworth, Screening Plants for New Medicines, in BIODIVERSITY 83, 83-91 (E.O. Wilson ed., 1988) (explaining why biodiversity is vital to medical discoveries);
31. Gunningham & Young, supra note 24, at 247 (stating that human beings derive many of their medicines from both domesticated and undomesticated components of biodiversity).
32. JORDAN GOODMAN & VIVIEN WALSH, THE STORY OF TAXOL: NATURE AND POLITICS IN THE PURSUIT OF AN ANTI-CANCER DRUG 1 (2001).
33. Gunningham & Young, supra note 24, at 247;
34. see also McGeary, supra note 25, at 88 (showing how ecological diversity helps to regulate oxygen in the air and nutrients in the soil).
35. See World Health Organization, Water, Health, and Ecosystems, http://www.who.int/heli/risks/water/water/en/index.html ("Water ecosystems both replenish and purify water resources essential to human health and well-being. But the sustainability of many such ecosystems has been impacted by development and land use changes involving: elimination of marshes and wetlands; the diversion of surface water or alteration of flows; increased exploitation of underground aquifers; and contamination of water ....").
36. Convention on Biological Diversity, supra note 12, pmbl., 1760 U.N.T.S. at 143, 31 I.L.M. at 822;
37. see World Charter for Nature, supra note 18, Annex, 22 I.L.M. at 456 (stating that "[c]ivilization is rooted in nature" and that nature "has shaped human culture and influenced all artistic and scientific achievement"). Some scientists have even argued that the human mind "is genetically programmed to respond positively to nature" and that humans, "[b]y destroying so much of the natural environment,... are now destroying crucial parts of our own psychological as well as physical habitat." Hugh H. litis, Serendipity in the Exploration of Biodiversity: What Good Are Weedy Tomatoes?, in BIODIVERSITY, supra note 26, at 98, 99.
38. See Adriana Fabra, Indigenous Peoples, Environmental Degradation and Human Rights: A Case Study, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION 245, 245 (Alan E. Boyle & Michael R. Anderson eds., 1996) (explaining the relationship between environmental protection and human rights and arguing that there is a clear and "direct relationship between environmental degradation and human rights violations").
39. See Lee P. Breckenridge, Protection of Biological and Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems Under International Environmental Law, 59 TENN. L. REV. 735, 751 (1992) ("The examples of communities drastically affected by environmental destruction prominently include many tribes in the countries of the Amazon, the inhabitants of the Chittagong Hill Tracts in Bangladesh, and forest dwellers in Indonesia and Malaysia . . ..");
40. Fabra, supra note 31, at 247-57 (explaining how oil-development operations in the rainforest of Ecuador have threatened the survival of the Huarorani peoples). See generally Victor M. Toledo, Indigenous Peoples and Biodiversity, in 3 ENCYCLOPEDIA OF BIODIVERSITY 451 (Simon Levin ed., 2000) (arguing that biodiversity and indigenous peoples are linked, and that to preserve one, it is necessary to preserve the other).
41. E.g., U.N. Econ. & Soc. Council [ECOSOC], 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) [hereinafter ECOSOC, Human Rights and the Environment]. For a collection of U.N. documents on the relationship between human rights and the environment, see Office of the United Nations High Commissioner for Human Rights, Human Rights and the Environment, http://www.ohchr.org/english/issues/environment/environ/index.htm.
42. Fabra, supra note 31, at 258 (summarizing U.N. studies on the relationship between cultural rights and environmental rights).
43. See, e.g., The Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, ¶ 30, delivered to the Human Rights Council and the General Assembly, U.N. Doc. A/HRC/4/32/Add.2 (Dec. 28, 2006) (explaining how environmental pollution in Ecuador displaced the Sumac Pamba community from their place of origin); EARTHJUSTICE, ENVIRONMENTAL RIGHTS REPORT 2007, at 7 (2007), http://www.earthjustice.org/ library/references/2007-environmental-rights-report.pdf ("Environmental degradation also implicates the right to culture. Some of the most glaring examples of cultural deprivations involve indigenous peoples, whose lifestyles often depend on their relationship with the natural environment."). It is important to note that although this pollution had direct effects on human health, it was the loss of local wildlife (i.e., biodiversity), which provided a source of daily consumption for households and for recreational purposes, that was the primary cause of the displacement. Id.
44. See Alkotmanybirosag [Constitutional Court], No. 28/1994 (V.20), ABH (1994) (Hung.), translated in LASZLO SOLYOM & GEORG BRUNNER, CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT 298, 301-02 (2000) ("[The right to a healthy environment] . .. goes beyond the bounds of a constitutionally mandated state goal. The right to a healthy environment is named as a 'right' in the Constitution, and is respected and protected by the State as such. . .."). Not every court to consider constitutional environmental "rights" has reached the same conclusion. See infra section III(B)(1).
45. See 1975 Syntagma [SYN] [Constitution] art. 24 (Greece), translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 15 (Gisbert H. Flanz ed., 2003) ("The protection of the natural and cultural environment constitutes a duty of the State and a right of every person."); GRONDWET VOOR HET KONINKRIJK DER NEDERLANDEN [GW.] [Constitution] art. 21 (Neth.), translated in 13 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 4 (Gisbert H. Flanz & Patrice H. Ward eds., 2003) ("It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.").
46. See Ernst Brandl & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 52-75 (1992) (finding that environmental rights in Switzerland, the Netherlands, Greece, Spain, and Turkey have either not been read into constitutional provisions on environmental policy or are unlikely to be protected as such because individuals lack standing to bring suit for judicial enforcement).
47. See, e.g., HAYWARD, supra note 2, at 25.
48. See id. at 63 ("[A]ll human rights ought to be constitutionalized; the right to an adequate environment is a human right; therefore the right to an adequate environment ought to be constitutionalized. ");
49. Michael R. Anderson, Human Rights Approaches to Environmental Protection: An Overview, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION, supra note 31, at 1, 3 ("[T]here is and should be an inalienable human right to a satisfactory environment, and that legal means should exist to enforce this right in a consistent and effective manner.").
50. See James R. May, Constituting Fundamental Environmental Rights Worldwide, 23 PACE ENVTL. L. REV. 113, 122 (2005-2006) ("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." (quoting Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063, 1109 (1992))).
51. Anderson, supra note 40, at 3;
52. see also id. ("Since degraded physical environments contribute directly to infringements of the human rights to life, health, and livelihood, acts leading to environmental degradation may constitute an immediate violation of internationally recognized human rights.").
53. See HAYWARD, supra note 2, at 12-13 (discussing counterarguments to the constitutionalization of environmental rights).
54. Id.
55. See Joshua P. Eaton, Note, The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment, 15 B.U. INT'L L.J. 261, 294-95 (1997) (providing a few sparse examples of international commissions and committees that have recognized the right to life to attempt to prevent environmental harm).
56. HAYWARD, supra note 2, at 7.
57. See id. (arguing that constitutional provisions are important because "environmental protection measures may be costly or unpopular in the short term ... [and] governments ... have an incentive to cut back on them");
58. Rodger Schlickeisen, Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL. ENVTL. L.J. 181, 182 (1994) (explaining that relying on the legislative process is "insufficient because [it is] systemically biased in favor of current benefits as opposed to the long-term future").
59. A good case in point is Chile. In 1988, the Chilean Supreme Court relied, in part, on Chile's constitutional environmental right to prevent a mining company from continuing operations that contaminated a nearby town. Flores v. Codelco, Division Salvador [Capiaco Court of Appeals] June 23, 1988, affd Supreme Court of Chile, July 28, 1988 (Chile), translated in 2 GEO. INT'L ENVTL. L. REV. 251 (1989). The holding is particularly important because, at the time, Chile had no national environmental policy and inadequate institutional apparatus for protecting the environment. See Ryan K. Gravelle, Note, Enforcing the Elusive: Environmental Rights in East European Constitutions, 16 VA. ENVTL. L.J. 633, 655 (1997) (describing why the Flores decision was a landmark environmental case in Chile).
60. HAYWARD, supra note 2, at 6.
61. See Bruch et al., supra note 2, at 135 (arguing that although the United States has an advanced environmental-protection system, a constitutional provision would provide another "potentially powerful tool... for advocates seeking to strengthen environmental protection in a wide range of contexts").
62. See Prudence E. Taylor, From Environmental to Ecological Human Rights: A New Dynamic in International Law?, 10 GEO. INT'L ENVTL. L. REV. 309, 352, 351-52 (1998) (explaining why anthropocentric approaches to environmental protection do not recognize the value of nature and "deprive the environment of direct and comprehensive protection").
63. Id. at 352;
64. see also McGeary, supra note 25, at 92 (stating that an anthropocentric approach to environmental policy is scientifically unsound and can thus lead to environmental degradation). See generally DAVE FOREMAN, CONFESSIONS OF AN ECO-WARRIOR 1, 1-3 (1991) (stating that anthropocentric views about the environment have led to a time of environmental crisis that is "the most critical moment in the three-and-a-half-billion-year history of life on earth").
65. Elizabeth F. Brown, Comment, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191, 212. The drafters of Montana's environmental right provision recognized this fact, and how environmentally protective the language of the right should be became a point of debate among the delegates. See Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236, 1248 (Mont. 1999) (quoting a delegate to the Montana Constitutional Convention who said, "What I'm concerned about is an environment that is better than healthful. If all we have is a survivable environment, then we've lost the battle" (quoting Montana Constitutional Convention, Vol. V, at 1243-44, Mar. 1, 1972)).
66. This exact point was also made during the Montana Constitutional Convention. Delegate Foster exclaimed: But the environment that I'm concerned about is that stage of quality of the environment which is above healthful; and if we put in the Constitution that the only line of defense is a healthful environment and that I have to show, in fact, that my health is being damaged in order to find some relief, then we've lost the battle .... Mont. Envtl. Info. Ctr., 988 P.2d at 1248 (quoting Montana Constitutional Convention, Vol. V, at 1243-44, Mar. 1,1972).
67. See supra subpart I(B) (explaining the importance of biodiversity protection and its connection to human concerns).
68. See infra section IV(B)(2) (explaining the interrelationship between biodiversity protection and the protection of indigenous populations and cultures).
69. See Jan Pronk, Biodiversity is Humankind's Life Insurance, CBD NEWS (Secretariat of the Convention on Biological Diversity, Montreal, Que.), 2002, at 5, 5, available at http://www.cbd.int/doc/newsletters/ news-sd-suplement-en.pdf (explaining that sustainable development of biodiversity "is humankind's biological life insurance" and is "essential for the well being of future generations").
70. See May, supra note 41, at 134-36 (noting that few of the roughly sixty constitutional environmental rights are enforceable).
71. See HAYWARD, supra note 2, at 98 (explaining that constitutional text influences how courts interpret constitutional rights and arguing that the text of the constitution should make the justiciability of environmental rights unconditional);
72. Gravelle, supra note 48, at 634 ("If the drafting is not precise in its language, then theoretically, the attempted granting of an environmental right might become nothing more than a general statement of public policy incapable of enforcement.").
73. See Brandl & Bungert, supra note 38, at 19 ("Courts may hesitate to apply environmental provisions which they perceive as hortatory."). In some cases, the legislative history of an environmental provision even reveals that its drafters thought they were providing a fundamental environmental right, but the courts nonetheless hold that the provision, because of its language, is merely a statement of legislative policy. See id. at 53 (describing the case of Switzerland's constitutional provision on the environment and the ruling of the Swiss high court that the provision did not grant a fundamental right despite legislative intent).
74. See Benjamin Mason Meier & Larisa M. Mori, The Highest Attainable Standard: Advancing a Collective Human Right to Public Health, 37 COLUM. HUM. RTS. L. REV. 101, 103 (2005) (explaining the difference between negative rights and positive rights and noting that Western scholars tend to focus on negative rights);
75. see also Brandl & Bungert, supra note 38, at 16 (explaining the difference between fundamental rights and statements of public policy, specifically in reference to constitutional provisions on the environment);
76. Bryan P. Wilson, Comment, State Constitutional Environmental Rights and Judicial Activism: Is the Big Sky Falling?, 53 EMORY L.J. 627, 634 (2004) (explaining that the concept of an environmental right is troubling to many in the United States because the right is perceived to be a positive, or affirmative, right rather than a negative right).
77. See Brandl & Bungert, supra note 38, at 17 ("[A] statement of public policy may be powerfully worded but never used because practical enforcement depends upon specific action by lawmakers.").
78. See id. ("The main difference between a fundamental right and a statement of public policy is that the former gives the individual a subjective, or personal, right,. .. whereas the latter is an objective provision that requires attention by the government... and cannot be individually invoked.");
79. Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 943 n.91 (1985) (arguing that "only negative rights are judicially valid" because positive rights "lack justiciable criteria"). Some courts, nonetheless, have declared that constitutional statements of policy are enforceable. The Supreme Court of Nepal, for instance, held that Nepal's constitutional provision on the environment was enforceable in certain circumstances even though the Nepal Constitution explicitly stated that "[it] shall not be enforceable by any court." See Bruch et al., supra note 2, at 148-49, 148 n.41 (describing two cases in which the Supreme Court of Nepal held that constitutional directives on the environment grant a cause of action notwithstanding constitutional language to the contrary). Although the Nepal cases are interesting, few courts are likely to be so willing to contravene constitutional language.
80. See Wilson, supra note 61, at 642 (explaining how environmental rights could be considered different from positive entitlement rights);
81. see also Alkotmánybirosag [Constitutional Court], No. 28/1994 (V.20), ABH (1994) (Hung.), translated in SÓLYOM & BRUNNER, supra note 36, at 298, 301-03 (explaining the difference between environmental rights and social rights).
82. See Wilson, supra note 61, at 640 ("Unless it is taken by the government or some other party, a person theoretically possesses the right to a clean environment just as he or she possesses a right to speak.").
83. See infra Part IV.
84. See HAYWARD, supra note 2, at 97 (describing mandatory, negative environmental rights). An example of a clearly written negative environmental right is Article 50 of the Costa Rican Constitution, which states: "Every person has the right to a healthy and ecologically balanced environment, being therefore entitled to denounce any acts that may infringe said right and claim redress for the damage caused." CONSTUTUCIÓN DE LA REPÚBLICA DE COSTA RICA art. 50, translated in 5 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 10 (Rüdiger Wolfram et al. eds., 2007).
85. This Note proposes an environmental rights amendment in section III(C)(2).
86. See Neil A.F. Popovic, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338, 358 (1996) ("Where a constitution is silent about enforcement, direct enforceability turns on the judicial question of whether the constitutional provision at issue is self-executing ....").
87. See id. ("A provision that is self-executing may be sued upon directly. A provision that is not self-executing cannot support a legal claim unless the legislature .. . supplies implementing legislation or takes other steps to put the constitutional provision into force.").
88. See HAYWARD, supra note 2, at 96 ("For a constitutional right to be justiciable ... the authorization to the courts must also be unconditional.... This may not be the case if enabling legislation is required for the right to take legal effect and the legislature has a margin of discretion to decide if and how to introduce it.").
89. See id. at 96-98 (arguing that environmental rights should be self-executing);
90. Brandl & Bundgert, supra note 38, at 19 ("[0]nly a self-executing constitutional provision seems to be worthy of adoption since it alone has true constitutional value.").
91. See Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333, 375 (1993) (explaining that prohibitory provisions, which "clearly restrict[] the power of the legislature to enact contrary legislation," are more likely to be self-executing and therefore enforceable);
92. Barry E. Hill et al., Human Rights and the Environment: A Synopsis and Some Predictions, 16 GEO. INT'L ENVTL. L. REV. 359, 392 (2004) ("[W]hen a state constitutional-environmental provision creates ambiguity as to its self-executing status, judges tend to declare the provisions statements of policy or affirmations of existing legislative authority, rather than .. . enforceable rights ....").
93. See Hill et al., supra note 73, at 381 (explaining that most environmental provisions in national constitutions are not self-executing). Constitutional provisions that imply that the state has a duty to implement the right usually prevent the right from being self-executing. See Brown, supra note 53, at 207-08 (stating that the environmental rights provisions in the constitutions of Bulgaria, the Czech Republic, Slovakia, Slovenia, and Ukraine are not self-executing because they are conditioned on the passage of subsequent legislation).
94. See infra section III(C)(2).
95. See Gravelle, supra note 48, at 639-41 (noting that effective enforcement of environmental rights in constitutions may hinge on individuals' ability to gain access to the judicial system, or in other words, to demonstrate standing).
96. See Bruch et al., supra note 2, at 188-99 (explaining that courts are just beginning to accept broader definitions of standing in environmental rights cases).
97. The Montana Supreme Court, for example, explained that a strict standing rule "would effectively immunize [any] statute from constitutional review." Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236, 1242 (Mont. 1999) (internal quotation marks omitted).
98. See PROTECTING PUBLIC HEALTH & THE ENVIRONMENT 1 (Carolyn Raffensperger & Joel Tickner eds., 1999) ("In its simplest formulation, the Precautionary Principle has a dual trigger: If there is a potential for harm from an activity and if there is uncertainty about the magnitude of impacts or casualty, then anticipatory action should be taken to avoid harm.");
99. see also World Charter for Nature, supra note 18, ¶ 11, 22 I.L.M. at 458 (explaining that one of the functions of the Charter is to implement the precautionary principle to regulate activities that cause irreversible or significant damages to nature).
100. In the endangered-species context, for example, once a species goes extinct, it is impossible to bring the species back-in other words, to remedy the resulting environmental harm.
101. See, e.g., Mont. Envtl. Info. Ctr., 988 P.2d at 1249 (holding that a demonstration of increased pollution in local rivers satisfied the standing requirement even though the plaintiffs could not prove that public health was presently threatened).
102. See, e.g., Adriana Fabra & Eva Arnal, Review of Jurisprudence on Human Rights and the Environment in Latin America 5 (Joint UNEP-OHCHR Expert Seminar on Human Rights & the Env't, Background Paper No. 6, 2002), available at http://www.unhchr.ch/environment/bp6.pdf (quoting translated language from Comunidad de Chañaral v. Codeco Division el Salvador, S/Recurso de Protection [Supreme Court] July 28, 1988 (Chile)). The court proclaims: Present claims are particularly relevant because they relate to the right to live in an environment free from pollutionf. These problems] affect not only the well being of man but also his own life, and actually not only [the livelihood] of a single community of persons, at present: future generations would claim the lack of prevision of their predecessors if the environment would be polluted and nature destroyed .... Id.;
103. see also Hill et al., supra note 73, at 387-88 (explaining Chilean court decisions on intergenerational equality and the issue of standing under Chile's constitutional environmental right).
104. See, e.g., Glisson v. City of Marion, 720 N.E.2d 1034, 1043-45 (Ill. 1999) (holding that a constitutional provision providing the right to a healthful environment to individuals - but not to future generations - did not confer standing on an individual to sue for species preservation).
105. G.R. No. 101083, 224 S.C.R.A. 792 (S.C., July 30, 1993) (Phil.), available at http://www.elaw.org/resources/text.asp?ID=278.
106. Id. at 794.
107. See Bruch et al., supra note 2, at 195 ("The courts of India are at the forefront in recognizing standing to vindicate constitutional rights.").
108. See, e.g., Kumar v. State of Bihar, A.I.R. 1991 S.C. 420, 420 (India), available at http://www.elaw.org/resources/text.asp?ID=1075. This position, however, is also problematic because it invites more litigation over whether the plaintiff is "genuinely interested in the protection of society."
109. See Bruch et al., supra note 2, at 193-95 (discussing U.S. decisions on the issue of standing in environmental cases).
110. See Oposa, 224 S.C.R.A. at 799 (noting that the plaintiffs exhausted administrative remedies before proceeding on constitutional claims).
111. For a discussion of the differing degrees of the anthropocentric paradigm in environmental law, see generally Emmenegger & Tschentscher, supra note 15, at 547 (explaining the different approaches to environmental law and arguing that "environmental instruments show a step by step development towards acknowledging nature's rights in a biocentric perspective"). Emmenegger and Tschentscher divide the evolution of environmental law into three stages, with the first stage being the most anthropocentric and the final stage embracing biocentrism. Id. at 550. Instead of relying on their definitions, this Note characterizes environmental law as either strongly anthropocentric, weakly anthropocentric, or nonanthropocentric.
112. See, e.g., Oposa, 224 S.C.R.A. at 804, 803-05 (holding that petitioners, based on a weakly anthropocentric constitutional right to a "balanced and healthful ecology," stated a cause of action against a government official for destroying biodiversity by granting logging licenses (quoting CONST. (1987), Art. II, § 16, (Phil.)).
113. See Emmenegger & Tschentscher, supra note 15, at 560, 560-62 (explaining that "the freedom to live in a healthy environment" is an aspect of human rights theory, which is restricted to purely anthropocentric considerations).
114. See, e.g., Fundepublico v. Mayor of Bugalagrande, No. T-415/92 (Corte Constitucional June 17, 1992) (Colom.), translated in 4 INTERNATIONAL ENVIRONMENTAL LAW REPORTS 139, 145 (Alice Palmer & Cairo A.R. Robb eds., 2004) (relying on the fundamental right to a healthy environment to close a polluting asphalt plant).
115. CONSTITUCIÓN POLITÍCA DE COLOMBIA art. 79, translated in 4 CONSTITUTIONS OF THE COUNTRIES OF THE
116. Fabra & Arnal, supra note 82, at 3 (quoting a translated portion of Antonio Mauricio Monroy Cespedes, No. T-92/93 (Corte Constitucional Feb. 19, 1993) (Colom.)). In the same vein, a lower court in Colombia previously stated, "It should be recognized that a healthy environment is a sine qua non condition for life itself and that no right could be exercised in a deeply altered environment." Id. (quoting a translated portion of Fundepublico v. Mayor of Bugalagrande, Interlocutorio No. 32 (Juzgado Primero Superior Dec. 19, 1991) (Colom.)).
117. See, e.g., supra note 93 and accompanying text.
118. CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE CHILE art. 19(8), translated in 4 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 42 (Albert P. Blaustein & Gisbert H. Flanz eds., 1991).
119. Fabra & Arnal, supra note 82, at 5 (quoting a translated portion of Comunidad de Chan̈aral v. Codeco Division el Salvador, S/Recurso de Protection [Supreme Court] July 28, 1988 (Chile)).
120. Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236, 1249 (Mont. 1999).
121. MONT, CONST, art. II, § 3.
122. 988 P.2d 1236 (Mont. 1999).
123. See id.
124. Id. at 1246-49.
125. E.g., Lohmeier v. Gallatin County, 135 P.3d 775, 778 (Mont. 2006) (holding that the plaintiffs lacked standing to sue for a violation of their constitutional environmental rights).
126. See id. (stating that the plaintiffs' alleged harm in Montana Environmental Information Center was "possible increases in the amount of pollution" as a result of the defendants' actions).
127. 135 P.3d 775 (Mont. 2006).
128. Id. at 778 (distinguishing the case from both Missoula City-County Air Pollution Control Board v. Board of Environmental Review, 937 P.2d 463 (Mont. 1997) and Montana Environmental Information Center, and implying that the plaintiffs had standing to sue in those cases because the environmental harm was pollution).
129. E.g., Bruch et al., supra note 2, at 151 ("Of the many countries that have interpreted constitutional environmental provisions, India has the most experience.").
130. See id. (describing the Indian Constitution).
131. See Charan Lai v. Union of India, A.I.R. 1990 S.C. 1480, 1509 (1989) (India) ("The right to life and liberty also includes the right to a healthy environment free from hazardous pollutants.");
132. Bruch et al., supra note 2, at 151 (noting that the application of the environmental provisions of the Indian Constitution "has been interwoven with the separate right-to-life provision").
133. A.I.R. 1985 S.C. 652, 656, available at http://www.elaw.org/ resources/text.asp?ID=1095.
134. Id.
135. Id.
136. See, e.g., M.C. Mehta v. Union of India, A.I.R. 1988 S.C. 1037, 1039 (India) (invoking the "right to life" to prevent a tannery from discharging pollutants into water);
137. see also Bruch et al., supra note 2, at 151 (describing the holdings of Indian courts in environmental rights cases).
138. A.I.R. 1991 S.C. 420 (India), available at http://www.elaw.org/ resources/text.asp?ID= 1075.
139. Id.
140. See Emmenegger & Tschentscher, supra note 15, at 563, 562-65 (arguing that the concept of future generations "signals a departure from the pure version of anthropocentrism").
141. See id. at 567 (explaining how protecting future generations adds a new dimension to environmental law).
142. CONST. (1987), Art. II, § 16, (Phil.), translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 168 (Albert P. Blaustein & Gisbert H. Flanz eds., 1986).
143. G.R. No. 101083, 224 S.C.R.A. 792, 814 (S.C., July 30, 1993) (Phil.), available at http://www.elaw.org/resources/text.asp?ID=278.
144. Id. at 796.
145. See id. at 805-06 (noting that the right to a balanced and healthful ecology "implies, among many other things, the judicious management and conservation of the country's forests" because "[w]ithout such forests, the ecological or environmental balance would be irreversibly disrupted").
146. Cf. Ma. Socorro Z. Manguiat & Vicente Paolo B. Yu III, Maximizing the Value o/Oposa v. Factoran, 15 GEO. INT'L ENVTL. L. REV. 487, 489 (2003) (observing that the precedential value of Oposa has been "fairly limited," as only eight Philippine Supreme Court cases have cited Oposa).
147. See Taylor, supra note 51, at 353 (arguing that environmental rights that incorporate "ecological human rights" provide for "the possibility of actions for environmental harm, the standard for which falls below the threshold of direct harm to human interests" because they do "not limit nature's value to the fulfillment of human purposes").
148. CONSTITUIÇÃO FEDERAL [C.F.] art. 225 (1988) (Braz.), translated in CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL 1988 (Istvan Vajda et al. trans, and rev., Brasilia 3d rev. ed. 2002);
149. see May, supra note 41, at 135 (noting that the Brazilian Constitution "has among the most detailed environmental provisions").
150. CONSTITUIÇÃO. FEDERAL [C.F.] art. 225.
151. Id.
152. See Edesio Fernandes, Law, Politics and Environmental Protection in Brazil, 4 J. ENVTL. L. 41, 54 (1992) (arguing that although the Brazilian Constitution recognizes "the collective nature of the right to an ecologically balanced environment, it will probably be some time before such changes are translated into dominant judicial attitudes");
153. May, supra note 41, at 135 (arguing that the enforceability of the provision is "doubtful");
154. see also Brandl & Bungert, supra note 38, at 78 (predicting that it will be difficult to enforce the provision);
155. infra note 132 and accompanying text (explaining why commingling environmental rights language with public-policy statements calls the enforceability of the right into question).
156. See Anderson, supra note 40, at 14 ("A human right to environmental protection, no matter how ambitious in its protective objectives, is still at base a human right, and is very different indeed from a right bestowed upon non-human species or upon natural resources.");
157. J.G. Merrills, Environmental Protection and Human Rights: Conceptual Aspects, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION, supra note 31, at 25, 31 ("Rights cannot exist as free-floating abstractions, but need rights-holders, for the function of rights, as we have seen, is to mark out protected areas for the benefit of someone or something, and so the concept of a right without a rights-holder is a contradiction in terms.").
158. See Merrills, supra note 129, at 34 (arguing that environmental rights should not be given to inanimate objects such as mountains, rivers, trees, and the Earth itself).
159. This two-pronged approach to drafting an environmental provision is based largely on the constitutions of Brazil and Portugal, which arguably contain both a fundamental right and a statement of public policy. See CONSTITUIÇÃO FEDERAL [C.F.] art. 225 (1988) (Braz.), translated in CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL 1988 (Istvan Vajda et al. trans, and rev., Brasília 3d rev. ed. 2002);
160. CONSTITUTION OF THE PORTUGUESE REPUBLIC art. 66, translated in 15 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 39 (Rüdiger Wolfram et al. eds., 2005). It is, however, unclear whether the courts of these countries have made this specific distinction. See Brandl & Bungert, supra note 38, at 65-68, 75-79 (explaining that the constitutions of Brazil and Portugal provide a fundamental right in addition to statements of public policy).
161. See Commonwealth v. Nat'l Gettysburg Battlefield Tower, Inc., 311 A.2d 588, 592 (Pa. 1973) (holding that the first sentence of Pennsylvania's constitutional amendment on environmental rights, if read alone, appeared to be self-executing, but holding that the entire provision was not self-executing because "the remaining provisions. . ., rather than limiting the powers of government, expand these powers").
162. I use the term healthy, as opposed to healthful, because there is a possible argument that the term healthful is too anthropocentric. See Gravelle, supra note 48, at 637 ("'[A] 'healthful' environment means an environment conducive to human health, whereas a 'healthy' environment means an environment that is itself healthy.'" (quoting Popovic, supra note 69, at 346)).
163. This language parallels language in the Convention on Biological Diversity. Convention on Biological Diversity, supra note 12, arts. 8-10, 1760 U.N.T.S. at 148-50, 31 I.L.M. at 825-27.
164. See Hill et al., supra note 73, at 395 (noting that once courts resolve standing issues they must turn to the question of the appropriate level of review for environmental rights cases).
165. A thorough discussion of the arguments for differing levels of scrutiny is beyond the scope of this Note. For simplicity, when discussing the possible levels of constitutional scrutiny, I use the American courts' conception of constitutional review.
166. For a good discussion of why any state action that implicates environmental rights must be strictly scrutinized, see Montana Environmental Information Center v. Montana Department of Environmental Quality, 988 P.2d 1236, 1244-47 (Mont. 1999), which concludes that the right to a healthful environment, as a fundamental right, should be strictly scrutinized.
167. An omission could also form the basis for a constitutional suit, but proving that the state's failure to act was an affirmative cause of environmental degradation beyond the current level of protection would be more difficult. Moreover, it would be difficult to challenge state omissions because such challenges would necessarily appear to be an attempt to enforce a positive right to the environment. In other words, challenging an omission is basically an attempt to have the government affirmatively act to protect the environment. Since few courts will entertain such a suit, the claim is unlikely to succeed.
168. Alkotmánybíróság [Constitutional Court], No. 28/1994 (V.20), ABH (1994) (Hung.), translated in SÓLYOM & BRUNNER, supra note 36, at 298, 299;
169. see infra note 141 and accompanying text.
170. Id. at 298. Unfortunately, the court did not go so far as to articulate objective standards to guide future decision making.
171. Id. at 299.
172. Id. at 300.
173. See Oposa v. Factoran, G.R. No. 101083, 224 S.C.R.A. 792 (S.C., July 30, 1993) (Phil.), available at http://www.elaw.org/resources/text. asp?ID=278 (holding, basically, that the government could not pass laws that substantially degrade environmental quality).
174. Cf. Natural Resources Defense Council, Arctic National Wildlife Refuge: Why Trash an American Treasure for a Tiny Percentage of Our Oil Needs?, http://www.nrdc.org/land/wilderness/ arctic.asp (arguing against drilling in the Artic National Wildlife Refuge).
175. Alkotmánybíróság [Constitutional Court], No. 28/1994 (V.20), ABH (1994) (Hung.), translated in SÓLYOM & BRUNNER, supra note 36, at 298, 299.
176. The Gwich'in, who live across northeast Alaska and northwest Canada, are the northernmost Indian nation. NATIVE Am. RIGHTS FUND, ANNUAL REPORT 2005, at 12 (2005), available at http://www.narf.org/pubs/ar/NARF2005.pdf.
177. See id. at 3 ("7,000 Gwich'in people live on or near the migratory route of the Porcupine caribou herd and rely on the caribou for food, clothing, tools and a source of respect and spiritual guidance. The calving grounds of the caribou lie inside [ANWR] and will be disturbed by any oil drilling."). The survival of indigenous cultures is also inextricably linked to the region's biodiversity and ecological health. See Supporting the Subsistence Lifeways of Alaskan Tribes, Gwich'in, Inupiat, Tlingit and Saint Lawrence Island Native Peoples, and of Related Indigenous Cultures in Canada and Russia, and Opposing Efforts by Multinational Economic and Political Interests that Would Endanger These Lifeways, NatT Cong, of Am. Indians, Resolution No. BIS-02-056, at 2, adopted June 16-19 2002, available at http://aitc.org/files/NCAI%20ANWR%20 Resolution%202002.pdf ("[E]cologically destructive practices . . . threaten[] the very survival of indigenous cultures.");
178. see also EARTHJUSTICE, supra note 35, at 7 ("The impacts of climate change on the Arctic environment, for example, have disproportionate effects on Inuit culture, as the Inuit way of life is closely linked to environmental conditions.").
179. One commentator has explained that most environmental rights are ambiguous in that they "could mean safe and healthy for humans or [they] could mean that the environment itself is safe and healthy, bringing within [their] scope issues of ecology and nature protection." Shelton, supra note 1, at 22. The goal of environmental rights advocates, then, should be to push the courts towards the latter interpretation.
180. 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, 601-05 (2006) (arguing that human health, especially in the developing world, is linked to environmental protection).
181. See supra subpart I(B).
182. See McGeary, supra note 25, at 92 (arguing that the anthropocentric approach is problematic specifically because it is "inconsistent with scientific knowledge").
183. Oposa v. Factoran, G.R. No. 101083, 224 S.C.R.A. 792, 797 (S.C. July 30, 1993) (Phil.), available at http://www.elaw.org/resources/text.asp?ID= 278.
184. Id. at 797-98.
185. See supra subpart I(B) (explaining why indigenous peoples depend on a biologically diverse environment for their continued survival and for the continued survival of their culture).
186. Breckenridge, supra note 32, at 745.
187. See Taylor, supra note 51, at 370 (explaining that the "relationship between indigenous peoples and nature is well documented" especially given the fact that "they often inhabit some of the world's most vulnerable ecosystems and suffer from some of the worst effects of environmental degradation").
188. Oposa, 224 S.C.R.A. at 797. More specifically, the court noted that deforestation contributed to the disappearance of the Filipinos' indigenous cultures. Id.
189. See Fabra, supra note 31, at 263 n.98 (citing the Constitutional Court's affirmance on appeal of a lower court's ruling in Decisió;n del Juzgado Tercero Agrario del Circulo Judicial de Antioquia, Medellin, Colombia (Feb. 24, 1993), in favor of the indigenous inhabitants).
190. 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001), translated at http://www 1 .umn.edu/humanrts/iachr/AwasTingnicase.html.
191. Id.
192. Id. (summarizing witness testimony of Guillermo Castilleja, Special Projects Director for the World Wildlife Fund).
193. See Taylor, supra note 51, at 370 (arguing that the "removal from or destruction or degradation of traditional lands inevitably leads to serious loss of life and health and damage to the cultural integrity of indigenous peoples" (quoting ECOSOC, Human Rights and the Environment, supra note 33, ¶ 77)).
194. Convention on Biological Diversity, supra note 12, pmbl., 1760 U.N.T.S. at 144, 31 I.L.M. at 822;
195. see HAYWARD, supra note 2, at 104 (identifying the most "widely cited characterization" of the precautionary principle).
196. See, e.g., Mont. Envtl. Info. Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236, 1249 (Mont. 1999) ("[W]e conclude that the delegates' intention was to provide language and protections which are both anticipatory and preventative.");
197. see also Hill et al., supra note 73, at 398-99 (explaining how the Montana Supreme Court's reasoning in Montana Environmental Information Center is consistent with the precautionary principle);
198. Onzivu, supra note 149, at 668-69 (explaining how the Supreme Court of India's decision in Rural Litigation is consistent with the precautionary principle).
199. Alkotmánybíróság [Constitutional Court], No. 28/1994 (V.20), ABH (1994) (Hung.), translated in SÓLYOM & BRUNNER, supra note 36, at 298, 299.
200. Shehla Zia v. WAPDA, P.L.D. 1994 S.C. 693 (Pak.), available at http://www.elaw.org/ resources/text.asp?id=280. The Pakistan Supreme Court stated: There is a state of uncertainty and in such a situation the authorities should observe the rules of prudence and precaution. The rule of prudence is to adopt such measure which may avert the so-called danger, if it occurs. The rule of precautionary policy is to first consider the welfare and safety of the human beings and the environment and then to pick up a policy and execute the plan which is more suited to obviate the possible danger or make such alternate precautionary measures which may ensure safety. To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence and precaution. Id.
201. HAYWARD, supra note 2, at 104.
202. Oposa v. Factoran, G.R. No. 101083, 224 S.C.R.A. 792, 799 (S.C, July 30, 1993) (Phil.), available at http://www.elaw.org/resources/text.asp?ID= 278.
203. See PAUL M. WOOD, BIODIVERSITY AND DEMOCRACY: RETHINKING SOCIETY AND NATURE 189-90 (2000) ("The fact that future persons do not yet exist is not a relevant excuse for a government to deplete biodiversity, thereby cutting future generations off from the only long-term source of essential biological resources. Consequently, the implication is that a government that permits the depletion of biodiversity is acting ultra vires, beyond its legitimate jurisdiction."). For a Rawlsian analysis of a present obligation to sustain the environment for future generations, see HENDRIK PH. VISSER 'T HOOF, JUSTICE TO FUTURE GENERATIONS AND THE ENVIRONMENT (1999).
204. CONST. ARG art. 41, translated in 1 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 7 (Gisbert H. Flanz ed., 1999) ("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, and have the duty to preserve the environment.").
205. Juzgado Federal N° II de Mar del Plata, Secretaría Civil y Comercial N° I [Juzg. Fed.], 5/8/1996, "Fundación Fauna Marina contra Ministerio de la Productión de la Provincia de Buenos Aires / amparo," El Derecho [E.D.] (1997-174-448) (Arg.), available at http://www.abogados voluntarios.net/contenido.asp?idcontenido=38&acceso=1;
206. see also Bruch et al., supra note 2, at 154-55 (describing the case).
207. See sources cited supra note 171.
208. See Bruch et al., supra note 2, at 202 ("[A]s environmental awareness has increased worldwide, some courts have [already] reversed earlier decisions and made the constitutional provisions more protective of the environment and human health.").