Human right to a clean and healthy environment

• Author: Barry E. Hill
• Pages: 555-587

Chapter 7

HUMAN RIGHT TO A CLEAN AND HEALTHY

ENVIRONMENT

7.1 Overview

Section 101(c) of NEPAstates in pertinent part: “The Congress recognizes that each person should

enjoy a healthful environment. . . .” Although the United States has enacted numerous laws to protect

the environment and human health, courts, whether federal or state, have not rendered a decision

establishing this as an express legal right.

Some community-based organizations in the United States, however, believe that the concept

“that each person should enjoy a healthful environment” should be taken literally, and have been ex-

ploring ways to connect their local struggles to address environmental justice concerns with regional

struggles for environmental justice and sustainable development. Those community-based organiza-

tions believe that:

Addressing issues at the metropolitan scale is essential for achieving sustainability. The air shed, like

the hydrological cycle, crosses jurisdictional boundaries. Air pollution, caused by stationary as well

as mobile sources, does not stop at the city line. Biotic resources become fragmented by the process of

suburban sprawl. Patterns of metropolitan development have profound effects on traffic congestion,

energy use, and climate change. Metropolitan regions are also the building blocks of the global econ-

omy because information, money, people, and goods cross national boundaries.

Addressing concentrated poverty in the United States in the twenty-first century requires a shift of

geographic imagination and consciousness among advocates of fairness, opportunity,and full partici-

pation of disadvantaged populations in the society as a whole. During much of the twentieth century,

advocates concerned with race and poverty thought of the city as a compact urban place contained

within municipal boundaries. Such a perspective is no longer adequate. ...AsDavid Rusk points out

in his influential book Cities With Suburbs, “the city is now the region.”

To be effective, organizers must come to terms with this new metropolitan landscape. The quest for

“regional equity” seeks to implement “just sustainability” at the metropolitan regional scale. The

goals of regional equity are to reform those policies and practices that create and sustain social, racial,

economic, and environmental inequalities among cities, suburbs, and rural areas, and to integrate

marginalized people and places into the region’s structures of social and economic opportunity.2

One community-based organization, Mossville Environmental Action Now (MEAN), however,

has taken the struggle for environmental justice and sustainable 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 filed a petition on March 14, 2005

at the Inter-American Commission on Human Rights (Inter-American Commission) against 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 against the

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2. Introduction to Breakthrough Communities: Sustainability and Justice in the Next American

Metropolis xxxiv (M. Paloma Pavel ed., 2009).

United States was admissible and would proceed on its merits. The Mossville residents sought to

have this human right enforced by the Inter-American Commission. This chapter includes portions of

the following documents: (1) the petition filed by Advocates for Environmental Human Rights, a

nongovernmental organization, on behalf of the Mossville residents; (2) the response of the United

States to the petition; and (3) the admissibility ruling of the Inter-American Commission.

First, however, this chapter explores the question as to whether the human right to a clean and

healthy environment is, arguably, enforceable in accordance with the “rights-based approach to sus-

tainable development,” as described by former United Nations Secretary General Kofi Anan. In his

1998 Annual Report on the Work of the Organization, Mr. Anan stated that: “The rights-based ap-

proach 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.”

This chapter explores the dimensions of the rights-based approach to enforce the human right to a

clean and healthy environment.

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 states that: “Everyone has the right to

life. . . .” Stockholm Principle 1 declares that: “Man has a fundamental right to . . . adequate condi-

tions of life, in an environment of a quality that permits a life of dignity and well-being. . . .” Rio Prin-

ciple 1 holds that “human beings are at the center of concerns about sustainable development. They

are entitled to a healthy and productive life in harmony with nature.” Although some experts believe

that the right to a healthful 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 healthful environment into

their national constitutions. Is there now or in the reasonably foreseeable future an enforceable hu-

man 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;

constitution of a national or state 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”? Is

this human right a justiciable right instead of an aspirational goal? The following article explores

those questions. It is followed by the Mossville case in which the Inter-American Commission ad-

dressed some of those questions.

556 ENVIRONMENTALJUSTICE: LEGAL THEORY AND PRACTICE

Barry E. Hill, Steve Wolfson, and Nicholas Targ,

Human Rights and the Environment: A Synopsis and Some Predictions

[Georgetown International Environmental Law Review, Vol. 16, 359 (2004)]

....

III. EVOLUTION OF THE CONCEPT OF A HUMAN RIGHT TO ACLEAN AND

HEALTHY ENVIRONMENT AT THE INTERNATIONAL LEVEL

This Part discusses key milestones in the evolution of the concept of a human right to a clean and

healthy environment in multilateral and regional contexts and in the constitutional law of various

countries. 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 provi-

sions in U.S. state constitutions (see Part IV), the international evolution of a human right to a clean and

healthy environment is marked by questions of whether the right is sufficiently specific to be justiciable.

These questions of vagueness and justiciability are linked to an ongoing debate over the extent to which

courts are appropriate arbiters of the economic and social trade-offs involved in ensuring a basic level

of environmental health, or whether an approach that focuses more on participatory processes than

on substantive rights would make better use of the competencies of courts, legislatures, and tribunals.

A. INTERNATIONAL INSTRUMENTS

Since the United Nations first expressly linked human rights to the environment in 1972, the interna-

tional community has 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 recognized

right, and whether such a right should be considered hard law or soft law. The right to a healthy envi-

ronment was first expressed as 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 the right as “hard law.”

1. The 1972 Stockholm Conference

The evolution of the concept of a human right to a clean and healthy environment dates back to the

United Nations Stockholm Declaration of 1972. Among other things, the Stockholm Declaration

provides 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.” This formulation recognizes

environmental quality as an essential adjunct to fundamental rights. This 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...asine qua non for numerous human rights such as the right

to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environ-

ment can impair and undermine all the human rights....”TheStockholm formulation, however, has been

criticized as conceiving of an environmental human right narrowly in that in deriving the environmental

right from “the right to life itself,” the Stockholm formulation limits the right to only apply in

life-threatening situations. Moreover, as will be elaborated upon in the discussion of formulations of

such a right in various states in the United States, this approach frames the right as derivative. This ap-

HUMAN RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT 557