Should there be a constitutional right to environmental protection? Arguments for and against are aplenty, but there is no consensus on this issue. Drawing on the experience within the U.S. and Indian Constitutions, this article posits that the right to environmental protection has normative and practical significance, because a constitutional right attaches to an individual and, hence, can protect an individual from environmental harms, whereas environmental laws, that focus primarily on reducing adverse environmental impact on a general population, may not. It further argues that, to be effective, three constitutionally-embedded rights that are central to preserving the right to environmental protection should be reinforced. These three rights are: 1) the right to life, 2) the right to equal protection of the law, and 3) the right to judicial review. Yet, it is not always feasible to include the right to environmental protection in the Constitution of a state. In some states where constitutions date back several years before environmental protection became a distinct legal issue, constitutional amendments may be required. Constitutional amendments are complex, if not nearly impossible, in some countries. The alternative of including the right environmental protection through judicial interpretation may not be conceivable in several countries. States can nevertheless confer a right to environmental protection by ensuring that three integral rights are integrated in the legislative and decision-making process, be it by the judicial, legislative, or executive branch.
The “Right” Right to Environmental Protection: What we can Discern from the American and Indian Constitutional Experience,
43 Brook. J. Int'l L.
Available at: https://brooklynworks.brooklaw.edu/bjil/vol43/iss1/26