Judicial Handbook on Environmental Constitutionalism

Abstract

This Handbook is designed to provide jurists with an overview of environmental constitutionalism: we address what it is, the peculiar practical and procedural issues it presents, and how courts from around the globe have engaged it. Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. Environmental constitutionalism offers one way to engage environmental challenges that fall beyond the grasp of other legal constructs. It can be coalescent, merging governmental structures and individual rights modalities in furtherance of individual or collective norms and policies. It can be deployed to protect local concerns, such as access to fresh food, water or air, or global concerns like biodiversity and climate change that share elements of both human rights and environmental protection. Environmental constitutionalism offers a way forward when other legal mechanisms fall short. Environmental constitutionalism is variable, manifesting into substantive rights, procedural rights, directive policies, reciprocal duties, or combinations of these and other attributes. Some aspects are fairly common. For example, about one-half of the countries of the world expressly or impliedly recognize a constitutional right to a quality environment. About the same number impart a corresponding duty on individuals to protect the environment. Some provisions are quite specific, such as those that provide for rights of nature, or rights to potable water or other natural resources. Some are more ephemeral, recognizing trust responsibilities over natural resources or toward future generations, or addressing related subjects like sustainability or climate change. Some recognize environmental stewardship as a matter of national policy. While most constitutional provisions addressing environmental concerns are narrative, some incorporate numerical outcomes, such as maintaining a percentage of prescribed tree cover, including Bhutan (60 percent) and Kenya (10 percent).

Keywords: Environmental Law, Constutitional Law, Environmental Constitutionalism