The Right to a Clean and Healthy Environment

By: Carly Hopkins

In a historic move, the United Nations Human Rights Council passed a resolution recognizing the right to a clean, healthy, and sustainable environment as a human right on October 8, 2021.[1] The resolution, although nonbinding, may potentially shape global standards by acting as a foundational argument in cases involving environmental and human rights.[2] The UN’s action reflects an already broad international acceptance that people deserve a right to a clean and healthy environment. Constitutional recognition and protection of this right exist in more than 100 countries.[3] Reference to a ‘healthy’ environment occurs in about two-thirds of the countries, and the remaining incorporate similar language, including the right to a clean, safe, or ecologically balanced environment. [4]

Notably, the United States does not recognize the right to a clean and healthy environment in any terms in the federal constitution. The United States criticized the UN’s recognition of a clean environment as a human right.[5] However, several states (Pennsylvania, Montana, Illinois, Hawaii, Rhode Island, and Massachusetts) have the right to a clean and healthy environment in their respective state constitutions.[6] Modern-day environmentalists have now started pushing to incorporate this right into more state constitutions. The constitutional right to a clean and healthy environment is fittingly referred to as the “green amendment.”

Green Amendments For The Generations, an organization dedicated to establishing green amendments in states across the nation, asserts that the constitutional right to a clean and healthy environment can create legal safeguards to protect the environment and human health.[7] These safeguards can be seen in states where the green amendment has led to greater environmental and human health protections. For example, the Montana Supreme Court held that a statutory exemption of some waters from a nondegredation review by the Department of Environmental Quality (DEQ) was unconstitutional as it violated the environmental rights guaranteed in the state constitution.[8]  In this case, the Montana DEQ used the exemption to justify not performing water well and monitoring tests on a mixing zone from an open-pit gold mine.[9] In Pennsylvania, the green amendment was cited when striking down an amendment to the Pennsylvania Oil and Gas Act, which would have, among other things, created statewide land-use regulation of oil and gas operations – expanding fracking across the state.[10] If more states establish this right in their constitutions, environmental protection may be strengthened across the country, piece by piece.

New York is one of the handful of states proposing adopting a green amendment to the state constitution. This November, New York residents will vote on whether to add the green amendment to the constitution.[11] The amendment would state, “[e]ach person shall have a right to clean air and water, and a healthful environment.”[12]  State Senator Jackson, a sponsor of the bill, stated that he “hope[s] these rights will soon be constitutional rights for all New Yorkers and will safeguard our ability to sustain healthy lives and economies. New Yorkers will finally have the right to take legal action for a clean environment because it will be in the state constitution. And we will finally have safeguards requiring government to consider the environment and our relationship to Mother Earth and the decision making process.” [13]

Of course, the establishment of a right does not magically fix environmental problems. In regards to the newly recognized human right to a clean and healthy environment, David Boyd, UN Special Rapporteur on Human Rights and Environment, stated that the establishment of the right was an incredible accomplishment, but that “work remains to be done to take these beautiful words and translate them into changes that will make people’s lives better and make our society more sustainable.”[14]

These words mirror the work that still needs to be accomplished in the green amendment movement. The first step is establishing the rights, but the work remains to put those rights into effect. Although environmental rights existed in the 1970s, states like Montana and Pennsylvania did not see significant holdings until the late 1990s and early 2000s. This may be because it took some time for the courts to build a portfolio of environmental cases to test the extent of the new environmental rights.[15]  However, it is likely that the rights incorporated in the “green amendment” movement now will not face that same time gap, mostly due to much greater awareness and knowledge about environmental harms.

The current environmental movement can help push for the utilization of environmental rights to secure a more healthful environment and prevent environmental harm. The societal push for these rights will most certainly play a role in the state legislature and judiciary’s decisions on the extent of the green amendment right for state residents. For now, though, one thing is clear: the right to a clean and healthy environment will play an important role in the legal field, internationally and nationally, in the upcoming years.

Image from: Carly Hopkins

[1] United Nations, Access to a healthy environment, declared a human right by UN rights council, UN News (Oct. 8, 2021), https://news.un.org/en/story/2021/10/1102582.

[2] Emma Farge, UN declares access to a clean environment a human right, Reuters (Oct. 8, 2021), https://www.reuters.com/business/environment/un-passes-resolution-making-clean-environment-access-human-right-2021-10-08/.

[3] UNEP, What are your environmental rights, https://www.unep.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what-0.

[4] Id.

[5] Angela Dewan et al., UN says access to a ‘clean, healthy’ environment is a human right, CNN (Oct. 8, 2021), https://www.cnn.com/2021/10/08/world/un-clean-environment-human-right-climate-intl/index.html.

[6] HAW. CONST. art. XI, § 9; ILL. CONST. art. XI, §2; MASS. CONST. art. XCVII; MONT. CONST. art. II, § 3; PA. CONST. art. I, § 27; R.I. Const. art. I, § 17.

[7] Green Amendments for The Generations, What is a Green Amendment and Why Do We Need Them?, https://forthegenerations.org/wp-content/uploads/2020/04/FTG_WhatIsGreenAmendment-2020-04.pdf.

[8] Montana Env’t Info. Ctr. v. Dep’t of Env’t Quality, 988 P.2d 1236, 1249 (Mont. 1999).

[9] Id. at 1238.

[10] See Robinson Twp., Washington Cty. v. Com., 83 A.3d 901, 913, 970 (Pa. 2013).

[11] Corinne Bell and Joan Leary Matthews, New Yorkers—Vote Yes for Clean Air and Water!, NRDC (Sept. 16, 2021), https://www.nrdc.org/experts/corinne-bell/new-yorkers-vote-yes-clean-air-and-water.

[12] S.528, 244th Leg., Reg. Sess. (N.Y. 2021).

[13] NY Senate, New York State Senate Session – 01/12/21, Youtube (Jan. 12, 2021), https://www.youtube.com/watch?v=G2vtLuvIBaI.

[14] United Nations, The right to a clean and healthy environment: 6 things you need to know, UN News (Oct. 15, 2021) https://news.un.org/en/story/2021/10/1103082.

[15] See Sylvia Ewald, State Court Adjudication of Environmental Rights: Lessons from the Adjudication of the Right to Education and the Right to Welfare, 36 Colum. J. Envtl. L. 413, 458 (2011).

5 comments

  1. Nice article and very timely. Excited to see that Prop 2 passed in NY, so that New Yorkers now have right to clean water, clean air, and a healthful environment!

  2. Great article! This is a very interesting topic, and it is great that NY passed its green amendment. I find particularly interesting the notion that green amendments can lead to “greater environmental and human health protections.” I am curious to see how Proposal 2 will begin to influence environmental cases in New York.

  3. Amazing article, Carly. It’s so cool to see movement and recognition of rights to a healthful environment on the international level and on a state level. It will be interesting to see how things progress on all the different levels that these green amendments are being adopted.

  4. The trend towards adopting a norm of a human right to the healthy environment and the implications for other environmental protections is very good to see. Great read and looking forward to more info on environmental rights legal recourse.

  5. This is a great finding of where the United States is slightly misaligned with the United Nations, in a sense the US is behind the rest of the world in lacking a federal right to a clean and healthy environment. Luckily we have States adopting green amendments, but if you aren’t adopting a green amendment then it could be said that you are behind the rest of the world.

Leave a Reply

Your email address will not be published. Required fields are marked *