Human Right to a Clean and Healthy Environment
| Author | Barry E. Hill |
| Pages | 607-652 |
Page 607
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 as an express 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 eects 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 inuential bo ok Cities With Suburbs ,
“the city is now the region.”
To be eective, 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 y2
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 t he environmental racism ca se against 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
2.
Introduction, in B C: S J N A
M xxxiv (M.
Paloma Pavel ed., 2009).
Page 608 Environmental Justice: Legal Theory and Practice, 3rd Edition
of the Mossville residents; (2) the response of the United States to the petition; and (3) the admissibility
ruling of the Inter-American Commission.
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 renery, 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 dierent 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 eects 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.3 According to Professor Bulla rd,
“Mossville is the poster child for ‘Environmental Racism’ and ‘Environmental Injustice.’ at’s what makes
it so unique.”4 e residents of Mossville argue in their petition that there is a human rig ht to a clean 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.”
is chapter also explores the dimensions of the rights-based approach to enforce the human right to a
clean and hea lthy environment in the commonwealth of Pennsylvania. e Pennsylvania Supreme Court
had to rule on whet her the environmental damage caused by the gas, lumber, oil, and coal industries as
a result of a landmark state hydraulic frac turing, or “frack ing,” law infringed on t he state constitution’s
guarantee of clean a ir and pure water to t he people of the commonwealth. In Robinson Township, Wash-
ington County, PA et al. v. Commonwealth of Pennsylvania et al., the Pennsylvania Supreme Court had to
determine whether this constitutional huma n right to clean air and pure water was enforceable.
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 qua lity 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 a re entitled to a
3. 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, http://www.epa.gov/iris/supdocs/1024 index.html.
4. Saeed Shabaz, Black Louisiana Town Latest Victim of “Environme ntal Racism,” T F C (Aug. 9, 2013), available at http://www.
nalcall.com/artman/publish/Health_amp_Fitness_11/article_100643.shtml.
Human Right to a Clean and Healthy Environment Page 609
healthy a nd productive life in harmony with natu re.” Although some experts believe that the right to a
healthful environment is becoming an international huma n right, it remains largely a n aspirational goal.
However, certain countries, Mex ico, Argentina, Chile, India, South A frica and Indonesia, among others,
have incorporated t he concept of a healthfu l environment into t heir national constitutions. Is t here 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 constitution of a national or state government) is this human
right enforceable? Is this right a separate human right or is it derived from another recognized human right
such as the “right to life” or the “right to health”? Is this human right a justiciable right instead of an aspi-
rational goal? e following article explores those questions. It is followed by the Mossville case in which
the Inter-American Commission addressed some of those questions. e chapter concludes with the Rob-
inson Township case in which the Supreme Court considered whether the people of the Commonwealth of
Pennsylvania have a justiciable human right to clean air and pure water based upon the state’s constitution.
7.2.1.1 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)
. . . .
III. EVOLUTION OF THE CONCEPT OF A HUMAN RIGHT TO A CLEAN AND
HEALTHY ENVIRONMENT AT THE INTERNATIONAL LEVEL
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 suciently specic 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-os 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.
A. INTERNATIONAL INSTRUMENTS
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
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