Never Look Back: Non-Regression in Environmental Law

Abstract

Deregulatory advocates often frame environmental protection and economic well-being as a zero-sum tradeoff. During times of economic crisis, including the long-term fallout from the global covid-19 pandemic, policymakers may seek to withdraw or roll back environmental laws and regulations in an attempt to accelerate economic recovery. In order to safeguard the interests of vulnerable populations that suffer from pollution and other environmental harms, it is imperative to retain environmental regulations, removing or relaxing them only when there is a clear justification for doing so.

Built in environmental legal frameworks in both international and domestic law is a principle of non-regression—no walking back environmental law, regulation, or protection once put in place. Governments and institutions at all levels ought to apply this principle in designing and implementing environmental governance, and judges, in their role of interpreting and applying the law, ought to incorporate the principle in their decisions and ensure the progressive realization of rights guaranteed by environmental law.

This Article brings together a variety of expressions of the principle of non-regression in international treaties, trade agreements, declarations, and in domestic constitutions, statutes, and administrative law—within and outside the United States. Greater recognition of how this principle has worked in practice may be helpful in promoting the notion that, so long as environmental degradation continues to occur and threaten human well-being, environmental standards must continue to move forward, and never look back.

Keywords: environmental law, non-regression, backsliding, human rights