Human Right to a Clean and Healthy Environment

AuthorBarry E. Hill
Page 913
Chapter 7
Human Right to a Clean and
Healthy Environment
7.1 Overview
Section 101(c) of NEPA states in pertinent part: “e Congress recognizes that each person should enjoy a
healthful environment....” Although the United States has enacted numerous laws to protect the environ-
ment and human health, federal courts have not rendered a decision establishing this a s an expressed legal
right. However, state courts have rendered decisions indicating that there is an enforceable substantive right
to a clean and healthy environment based upon state constitutions.
Some community-based organizations in the United States, however, believe that the concept “that each
person should enjoy a healthful environment” should be ta ken literally, and have been exploring ways to
connect their local struggles to address environmental justice concerns with regional str uggles for environ-
mental justice and sustainable development. ose community-based organizations believe that:
Addressing issues at the metropolitan scale is essential for achieving sustai nability. e air shed, like the hydro-
logical c ycle, crosses jurisdictiona l boundaries. Ai r pollution, caused by st ationary as well as mobile sources,
does not stop at the city line. Biotic resource s become fragmented by the process of suburban sprawl. Patterns
of met ropolitan development have profound eects on tra c congestion, energy use, and c limate change.
Metropolitan regions are a lso the building blocks of the global economy because in formation, money, people,
and goods cross nationa l boundaries.
Addressing concentrated povert y in the United States in the twenty-rst centur y requires a shift of geographic
imagination a nd consciousness among advocate s of fairness, opportun ity, and fu ll participation of disa dvan-
taged populations in t he society a s a whole. During much of the twent ieth centur y, advocates concerned wit h
race and pover ty thought of the city a s a compact urban place conta ined within municipal bounda ries. Such
a perspective is no longer adequate.. .. As David Rusk points out in his inuential bo ok Cities With Suburbs ,
“the city is now the region.”
To be eective, organizers mu st come to terms with this new metropolitan l andscape. e quest for “regional
equity” seeks to implement “just sustainability ” at the metropolitan regional scale. e goals of regional equity
are to reform those policies and practice s that create and sus tain social, racial, economic, and environmental
inequalities among cities, suburbs, and rural area s, and to integrate marginalized people and places into the
region’s structures of social and ec onomic opportunit y.3
One community-based organization, Mossville Environmental Action Now (MEAN), however, has
taken t he struggle for environmental justice and susta inable development to another level—the struggle
to enforce a human right to a clean and healthy environment in an international human rights forum.
MEAN linked human rights and environmental quality, and led a petition on March 14, 2005 at the
Inter-American Commission on Human Rights (Inter-American Commission) aga inst the United States
for failing to protect the human rights of residents of Mossville, Louisiana. On March 17, 2010, the Inter-
American Commission declared that the environmental racism case ag ainst the United States was admis-
sible and would proceed on its merits. e Mossville residents sought to have this human right enforced
by the Inter-American Commission. is chapter includes portions of the following documents: (1)the
petition led by Advocates for Environmental Human Rights, a nongovernmental organization, on behalf
of the Mossville residents; (2)t he response of the United States to the pet ition; and (3)the admissibility
ruling of the Inter-American Commission.
3. Introduction, in B C: S  J   N A M xxxiv (M. Paloma Pavel
ed., 2009).
Page 914 Environmental Justice: Legal Theory and Practice, 4th Edition
e unincorporated community of Mossville (which covers 5.4 square miles) is an old community that
was settled by a handful of free African American men and women in the 1790s. ey were led by a former
slave named Jack Moss. is area was a rich biodiverse region of southwest Louisiana that had plenty of
wild game, shing, wild fruits, and berries. e residents of Mossville lived o the land to a great extent.
Mossville, however, has been destroyed, according to the MEAN petition, by 14 industrial facilities. ree
of t hese facilities—a large oil renery, a vinyl manufacturer, and a petrochemica l facility—are located
within the recognized historic boundaries of Mossville, a nd 11 other facilities—three vinyl manufactur-
ers, one coa l-red power plant, and eight petrochemical facilities—are located within a one-half mile of
the community. is community, at one time, was home to 3,000 families; today there are 375 families
left. ese pollution-generating facilities have polluted the air, land, and water with a combined total of
approximately t wo million kilogra ms (over four million pounds) of toxic chemicals a nnually. is is a
“sick community.” In 1999, the U.S. Agency for Toxic Substances and Disease Registry reported that 28
Mossville residents had their blood tested and the tests revealed an average concentration of dioxin in their
blood that was three times higher than the background level represented by the Agency’s comparison group
of people in dierent parts of the United States. Dioxins are persistent, bio-accumulative, chlorinated com-
pounds that are known to damage human health. Dioxins are known carcinogens that are released during
certain industrial act ivities such as vinyl chloride production. e hea lth eects associated with dioxin
depend on a variety of factors, including: the level of exposure, the timing of exposure, and the length and
frequency of exposure. ere is no known treatment for dioxin toxicity.4 According to Professor Bullard,
“Mossville is the poster child for ‘Environmental Racism’ and ‘Environmental Injustice.’ at’s what makes
it so unique.”5 e residents of Mossville argue in their petition that there is a human right to a clea n and
healthy environment, and that this is an enforceable (not an aspirational) human right.
is chapter explores whether the human right to a clean and healthy environment is, arguably, enforce-
able in accordance with t he “rights-based approach to sustainable development,” as described by former
United Nations Secretary General Ko Anan. In his 1998 Annual Report on the Work of the Organi za-
tion, Mr. Anan stated that: “e rights-based approach describes situations not simply in terms of human
needs, or of development requirements, but in terms of society’s obligations to respond to the inalienable
rights of individuals.”
7.2 Rights-Based Approach to Enforce the Human Right to a Clean and
Healthy Environment
7.2.1 Rights-Based Approach at the International Level and in the United States
Article 3 of the 1948 U.N. Declaration of Human Rights st ates that: “Everyone has the right to life....”
Stockholm Principle 1 declares that: “Man has a fundamental right to ... adequate conditions of life, in
an environment of a quality that permits a life of dignity and well-being.. ..” Rio Principle 1 holds that
“human beings are at the center of concerns about sustainable development. ey are entitled to a healthy
and productive life in harmony with nature.”
Although some experts believe that the right to a hea lthful environment is becoming an international
human right, it remains largely an aspirational goal. However, certain countries, Mexico, Argentina, Chile,
India, South Africa and Indonesia, among others, have incorporated the concept of a hea lthful environ-
ment into their national constitutions. Is there now or in the reasonably foreseeable future an enforceable
human right to a clean and healthy environment? Can a private citizen sue for enforcement of that right
against a government? Under what instrument (e.g., international treaty or regional treaties; or the consti-
tution of a national or st ate government) is this human right enforceable? Is this right a sepa rate human
right or is it derived from another recognized human right such as the “right to life” or the “right to health”?
4. For a comprehensive review of dioxin, see EPA’s Reanalysis of Key Issues Related to Dioxin Toxicity and Response to NAS Comments, Volume 1,
Feb. 17, 2012,
5. Saeed Shabaz, Black Louisiana Town Latest Victim of “Environmental Racism,” T F C (Aug. 9, 2013), available at http://www. nalcall.
Human Right to a Clean and Healthy Environment Page 915
Is this human right a justiciable right instead of a n aspirational goa l? e following article explores those
questions. e second article explores the connection between environmental justice principles and u ni-
versal human rights, a nd sustainable development and corporate social responsibility. It is followed by the
Mossville ca se in which the Inter-American Commission addressed some of those questions. e chapter
proceeds with the article entitled, Mossville Environmental Act ion Now v. United States: Is a Resolution to
Environmental Injustice Unfolding? e chapter concludes with an interesting case that poses a quest ion as
to whether young people could sue the U.S. government for its decisions (or non-decisions) to protect them
from the adverse eects of climate change. Essentially, the court was being asked to determine whether
young people have an enforceable human right against the U.S. government. Hill Article, “Human Rights and the Environment: A Synopsis and Some Predictions”
Barry E. Hill, Steve Wolfson, and Nicholas Targ,
Human Rights and the Environment: A Synopsis and Some Predictions
16 G. I’ E. L. R. 359 (2004)
is Part discusses key milestones in the evolution of the concept of a human right to a clea n and
healthy environment in multilatera l and regional contexts and in the constitutional law of various coun-
tries. A variety of formulations of the right have emerged—some derived from other human rights, others
stand on their own as a fundamental right. As is the case with environmental rights provisions in U.S.
state constitutions (see Part IV), t he international evolution of a human right to a clean and healthy
environment is marked by questions of whether the right is suciently specic to be justiciable. ese
questions of vagueness a nd justiciability are linked to an ongoing debate over the extent to which courts
are appropriate arbiters of the economic and social trade-os involved in ensuring a basic level of environ-
mental health, or whet her an approach that focu ses more on participatory proc esses than on substantive
rights would make better use of the competencies of courts, legislat ures, and tribunals.
Since the United Nations rst expressly linked human rights to the environment in 1972, the inter-
national community ha s grappled with whether the relationship is best stated in terms of a right owed to
individuals (i.e., “hard law”), and, if so, whether that right derives from another already recogniz ed right,
and whether such a right should be considered ha rd law or soft law. e right to a hea lthy environment
was rst expressed a s a right derivative of the “right to life,” in the Stockholm Declaration. Since then, as
the complexity of the link has become better understood, the international community has demonstrated
a reluctance to establish t he right as “hard law.”
1. e 1972 Stockholm Conference
e evolution of the concept of a human rig ht to a clean and healthy env ironment dates back to the
United Nations Stockholm Declaration of 1972. A mong other things, the Stockholm Declaration pro-
vides that: “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, and he bears a solemn responsibility
to protect and improve the environment for present and future generations.” is formulation recognizes
environmental quality as an essential adjunct to fundamental rights. is link was eloquently described
by Christopher G. Weeramantry, former Vice-President of the International Court of Justice, who stated
that: “the protection of the environment is . .. a sine qua non for numerous human rig hts such as the
right to health and the right to life itself. It is scarcely necessar y to elaborate on this, as da mage to the
environment can impair and undermine all the human rights....” e Stockholm formulation, however,

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