Do we have a Human Right to a Clean Environment?

By: Catherine Fink

Introduction: Is the right to a clean environment a protected human right? According to the United Nations and a collection of youth plaintiffs in lawsuits across the U.S., the answer is yes. If so, then the door is opening to a new approach to climate justice litigation, based on pre-existing treaties and state constitutions, that could change the way environmental justice advocates approach their work. This spring and summer, several important cases will be tried that could set the precedent for whether or not this approach will work.

International backdrop: Three-quarters of the nations in the world have explicit references to environmental rights and responsibilities in their constitutions. In April 2022, the U.N. Human Rights Council declared "clean, healthy and sustainable environment" a human right in Resolution 48/13 and then the General Council passed a resolution on 28 June 2022, affirming the right to a clean environment. While these actions are not binding on member states, the UN High Commissioner for Human Rights has placed the “triple planetary crisis of nature loss, pollution and climate change at the top of the human rights challenges of our era,” citing the fact that one in six premature deaths are caused by pollution, tens of millions of people are displaced each year by climate change, and biodiversity loss threatens the collapse of entire ecosystems. The U.N. also created a Special Rapporteur for Human Rights and the environment, David Boyd, to help facilitate a “trickle-down effect, prompting countries to enshrine the right to a healthy environment in national constitutions and regional treaties, and encouraging states to implement those laws” and giving environmental justice advocates new approaches to legal action.

EU Cases: Several cases in the EU are doing just that. In the Netherlands, the Dutch Supreme Court ruled that the government breached its duty of care with respect to policy making under the UN Convention on Human Rights in not acting to lower greenhouse gas emissions fast enough. The court relied on the U.N. Framework Conventions on Climate Change (UNFCCC) and on the government’s legal duties to protect the life and well-being of citizens in the Netherlands, in line with the European Convention on Human Rights (ECHR), specifically Article 8. Also, in the Giacomelli case in Italy, the European Court of Human Rights found that the Italian government had failed to properly balance the benefits to the community of having a toxic waste treatment plant next to the plaintiff’s residence under Article 8. In addition, in the Marangopoulos Foundation for Human Rights case, the European Committee of Social Rights ruled that the Greek government violated Articles 2§4, 3§2 and 11§§1 to 3 of the European Social Charter, which protects fundamental social and economic rights when it failed to “adequately [prevent] the impact for the environment [of lignite mining] nor has developed an appropriate strategy in order to prevent and respond to the health hazards for the population.” Article 11 was especially implicated in this ruling. As this body of case law grows, existing human rights treaties and laws will likely be used more and more often to litigate environmental justice claims in the EU. There are three key cases coming to trial soon that stand to legally define the relationship between climate change and human rights in the EU: KlimaSeniorinnen v Switzerland; Careme v France; Duate Agostino v Portugal.

● Strengths: EU Court of Human Rights rulings cannot be appealed; finding the cases admissible is its own success, and a declaratory judgment showing a violation took place would be a huge win.

● Weaknesses: UN Court’s rulings are not binding; ECHR can only offer declaratory judgment; human rights challenges have traditionally focused on government action vs. INaction – harder to prove because you have to show “clear and undisputed” link between emissions and CC, parties are required to show they have “pursued solutions outside of the courts” and that “reasonable and convincing evidence that the likelihood of a harm will occur.”

US Cases: While the US is a signatory to only three of the nine “core” international human rights treaties, six states have a right to a clean environment in their constitutions (HI, IL, MA, MT, PA, RI) and several others have active “green amendment” campaigns (DE, ME, NM, NJ, WA) that would establish a clean environment as right states have an affirmative duty to protect. Following the Dobbs decision, “the Supreme Court was very clear [that] the rights you seek to protect must be explicitly stated with clear and plain language [and an] opinion that infers the existence of environmental rights through interpretation of vague constitutional language risks being overruled, just as the Roe decision was overruled in Dobbs.” In two US cases, youth plaintiffs are using exactly this explicit language to argue that states need to do more to protect the environment. In one of the earliest examples of this tactic, Juliana v. US, a non-profit called Our Children’s Trust sued Montana, arguing that: “(1) that the State of Montana holds the atmosphere in trust for the present and future citizens of the state of Montana, and (2) that the State of Montana has the affirmative duty to protect and preserve the atmospheric trust, including establishing and enforcing limitations on the levels of greenhouse gas (GHG) emissions as necessary to mitigate human caused climate change.” Filed originally in 2011, this case is still pending appeal in a district court in Oregon. However, another case brought by 16 youth plaintiffs represented by Our Children’s Trust, Held v MT, will go to trial in June 2023. The youth, aged 2-17 at the time of filing, argue that Montana’s status as a so-called “corporate [mining] colony” has already changed the state’s environment and hampered their ability to hunt, fish, gather, and breathe clean air, failing in its duty to to ensure future generations can “enjoy the land, air, and water held in public trust.” In Held, the plaintiffs are expected to testify. They are seeking declaratory relief, hoping the judge will “acknowledge that fossil fuels are causing pollution and warming the planet and declare the state’s support for the industry unconstitutional.” Such a ruling could tee up similar lawsuits in all states with a constitutional right to a clean environment.

● Strengths: This strategy has worked in other countries (see above); courts’ power of judicial review is important to democracy; and even granting the cases standing could establish case law stating the burning fossil fuels is warming the planet.

● Weaknesses: Ruling is limited to declaratory relief; the plaintiffs may not win because of prior rulings that said states had sovereign immunity (VA) or that climate change is a political question (AK) and cannot be resolved by the courts; also, subjecting children to pre-trial mental and physical health tests is invasive; and, constitutions can be modified to place more weight on economic concerns.

Conclusion: All eyes are on the courts this spring and summer, watching to see if EU and US courts will establish the precedent that people around the world have a protected right to a clean environment. As one of the youth plaintiffs said, "Climate change isn't just about temperatures and weather, it's about people. Our earth will be here for millennia, it's up to us to decide if humanity will be too."