Vindicating Fundamental Environmental Rights: Judicial Acceptance of Constitutionally Entrenched Environmental Rights

Oregon Review of International Law, Vol. 11, p. 365, 2009

Widener Law School Legal Studies Research Paper No. 09-35

77 Pages Posted: 29 Sep 2009 Last revised: 27 Mar 2014

James May

Widener University Delaware Law School

Erin Daly

Widener University Delaware Law School

Date Written: September 28, 2009

Abstract

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V we suggest modalities for successful constitutional environmental litigation of constitutionally enshrined environmental rights.

We conclude that judicial receptivity to fundamental environmental rights provisions embedded in domestic constitutions seems to belie predictable patterns. We also conclude that no single explanation emerges for the relative dearth of cases giving force to these provisions. Although courts have not been as enthusiastic to embrace environmental rights as some activists would have liked, there is noticeable and steady progress toward their growing recognition in courts throughout the world. And as constitutional courts become more aware of what their peers are doing, this momentum is likely to increase. Moreover, even where courts have not accepted the constitutional environmental arguments, the mere fact that such arguments are being made and considered augments the attention that constitutional fundamental environmental rights receive in public discourse. And this, in itself, can meaningfully contribute to the success of environmental claims in the future. The result is that collectively the judiciary will continue to play a necessary if not sufficient role in the vindication of fundamental environmental rights worldwide.

Keywords: environmental law, constitutional law, environmental rights, human rights, international law

JEL Classification: K32, K10, K33

Suggested Citation

May, James and Daly, Erin, Vindicating Fundamental Environmental Rights: Judicial Acceptance of Constitutionally Entrenched Environmental Rights (September 28, 2009). Oregon Review of International Law, Vol. 11, p. 365, 2009; Widener Law School Legal Studies Research Paper No. 09-35. Available at SSRN: https://ssrn.com/abstract=1479849 or http://dx.doi.org/10.2139/ssrn.1479849

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Erin Daly

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
302-477-2143 (Phone)
304-477-2257 (Fax)

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