A Step in the “Rights” Direction

Julia Redmond is a first year law student at McGill and an associate managing editor with the McGill International Journal of Sustainable Development Law. She holds a Bachelor of Arts and Science in interdisciplinary studies from McMaster University, with a focus in environmental science and policy.

Right Livelihood Award 2009-award ceremony

Right Livelihood Award 2009-award ceremony

Some days it really feels like a grim time to be living on Earth. Just as we get startling news about abnormally warm weather in the Arctic, we’re also subject to hearing a revived narrative of climate change denial in the US and its potential policy impacts. World climate leaders, who recently convened at COP22 in Marrakesh, are worried.

Discouraging as they may be, these circumstances have pushed people to find creative channels to ensure a healthy environment. Ensuring a clean environment as a basic human right is not a new idea, but it is one that’s gaining more mainstream attention.

Many countries around the world recognize a constitutional right to a clean environment. One notable holdout? Canada.

This month, Canada’s grandfather of environmental activism, David Suzuki, declared that the “last great fight” of his life would be to ensure constitutional status for environmental rights by including them in the Charter. Suzuki has criticized the Harper government’s willingness—and ability—to overturn progressive legislation that was designed to protect the environment. A Charter right, he believes, would have prevented this kind of action, and could ensure appropriate actions by governments in future.

He’s certainly not alone in this fight. Non-governmental organizations, like Ecojustice, are committed to improving the legal landscape for environmental rights in our country. Several provincial and territorial governments, including Ontario and Quebec, have already legislated to guarantee environmental rights.

But such a guarantee in the Charter would have a far broader impact. What would it mean for law and policy if the environment was understood in “life, liberty, and security of person”? This would undoubtedly be a great asset to aboriginal communities, for example, who are disproportionately affected by environmental damages and changes in the south and Canada’s North. It could radically change our energy and natural resource policies; one would expect a different discussion surrounding new oil or natural gas projects given this kind of legal guarantee.

There’s certainly hope that this could have an impact. Yet, even without a constitutional guarantee, the results of activism for environmental rights have begun to pan out in court around the world.

Museumplein in Amsterdam. “A 2014 Dutch court ruling forced the government to set a stricter target for emissions reduction.” Jos van Zetten, Flickr Commons

Museumplein in Amsterdam. “A 2014 Dutch court ruling forced the government to set a stricter target for emissions reduction.”
Jos van Zetten, Flickr Commons

Last year, the Netherlands became the first country with a successful climate liability suit. Under human rights and tort law, the NGO Urgenda got the court to order the Dutch government to cut its emissions by at least 25 percent in five years, a target well beyond what they had committed to.

The significance of this ruling is not just political, but legal; Urgenda v. The State of the Netherlands was the first successful tort case about climate change. While cases have been brought against private companies in the US for their climate harms, they were dismissed because managing climate and emissions was said to be a political problem. The particular focus here on the government knowingly exposing its citizens to foreseeable harm is one that can translate to other jurisdictions.

Meanwhile in the United States, young people have taken up the mission of fighting for their rights. A group of youth in Oregon recently won the right to sue the US federal government for their inaction on climate change.

The ruling in Juliana et al. v. United States came from U.S. District Judge Ann Aiken, who rejected the federal government’s calls to dismiss the case. The government argued that the case should be dropped on the grounds that the potential implications were too broad for a federal court, and that the doctrine of public trust applied only to states. Not only did they argue this duty to protect natural resources for future generations didn’t exist federally, they claimed the atmosphere was not a public asset.

Finally, the administration, like similar defendants around the world, asserted that a ruling couldn’t ensure the plaintiffs’ claims could be fulfilled because climate change is perpetuated by various factors.The plaintiffs, however, won on the claim that the administration had violated their rights to life, liberty, and property, as enshrined in the Constitution.

Another case in the Pacific Northwest has followed a similar path. In Seattle, a group of children are asking a judge to find Washington state in contempt for the harm it will cause by not acting enough to reduce emissions. They assert that the state’s clean air legislation is insufficient and fails to protect them and future generations. The judge has yet to rule, but the extent of press coverage is certainly a win in and of itself.

So maybe it’s not all doom and gloom. But there certainly is a lot of progress to be made in law before the right to a healthy environment is properly protected

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