John H. Knox, the U.N. Special Rapporteur on Human Rights and the Environment, recently issued a final report to the U.N. Human Rights Council. The report, which contains 16 Framework Principles on Human Rights and the Environment, summarizes international environmental human rights obligations. These principles outline state obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment. Knox derived these principles from pertinent treaties, binding decisions from human rights tribunals, and non-binding interpretive statements from other human rights bodies—while acknowledging that some principles are still emerging. The overarching purpose of Knox’s report is to further the establishment of the Framework Principles at the individual state level and globally.
As Knox reports, there exists a global trend towards greater uniformity and legal formalization of the right to a healthy environment. At the international level, regional agreements, such as the Arab Charter on Human Rights—and a pact among Latin American and Caribbean states, signed just this year—explicitly recognize environmental rights. Also, the historic 2015 Paris Agreement references the link between climate change and human rights. Furthermore, over one hundred countries around the world formally recognize environmental rights at the national level.
Nevertheless, much is yet to be accomplished in furthering environmental rights. Aside from non-binding acknowledgements, no global instrument has formally recognized the right to a healthy environment. Thus, a central recommendation of the report—which Knox reaffirmed in a presentation to the Human Rights Counsel in Geneva—is that a global human rights agreement, such as a U.N. General Assembly resolution, should recognize the right to a healthy environment. As a potential precedent, in 2010, the General Assembly passed resolution 64/292, which recognizes “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” A resolution recognizing the right to a healthy environment could follow suit.
While such global trends are significant, U.S. environmental human rights progress is largely stymied. The U.S lacks a federal constitutional right to a healthy environment. Also, less than a dozen U.S. states recognize such rights, and those that have, such as Montana, Pennsylvania, and Hawaii, adopted such rights decades ago. Moreover, under the Trump Administration, U.S. environmental law and policy—already critically flawed due to long, neoliberal-steeped operationalization—has proven catastrophic, as evidenced by the U.S. withdrawal from the Paris Agreement and the administrative rollback of countless regulations. Thus, prospects for national-level recognition of environmental rights in the U.S. are historically dim—while the global ecological crisis only intensifies.
There has, however, been some movement on environmental rights at the U.S. state level. For instance, Pennsylvania constitutionally established an Environmental Rights Amendment in 1971, which traditionally has seen scant enforcement. But in a notable line of precedent commencing with the 2013 Robinson Township v. Commonwealth decision, the Pennsylvania Supreme Court reinvigorated this amendment and its accompanying public trust component. Likewise, in December 2017, the Hawai`i Supreme Court affirmed its state constitutional right to a clean environment. Such judicial developments have led some commentators to suggest that a state-level trend of environment rights furtherance has emerged.
While traditional pursuit of environmental rights has realized recent success at the U.S. state level, ultimately, a critically informed approach to environmental human rights is the best path forward—which the Framework Principles could help inform. Such an approach has been formulated most robustly through the community lawyering and radical cause lawyering models, through which attorneys “engage collaboratively with client groups in non-traditional legal fora to advance the clients’ objectives, such as organizing for political action”—and through which attorney “collaboration with grassroots organizations is ‘widely perceived as critical in securing sustainable social change.’”
More broadly, Kathryn McNeilly discusses this transformative potential of human rights in her recent book Human Rights and Radical Social Transformation. McNeilly argues that “the theory and practice of human rights may be re-engaged in a way that is more compatible with the political pursuit of radical social transformation,” and adds that such “re-engagement [can] offer much potential for radical thinkers, activists and groups and the aims they seek to advance.”
While the Framework Principles can help catalyze environmental human rights development in the U.S., a critical theory-informed approach to such rights is therefore an ideal mode for would-be reformers seeking rights expansions. Not only does the regressive Trump Administration—and the remarkable grassroots resistance it has engendered—speak to the efficacy of this reform mode, but so too does the global ecological crisis demand systemic reformations beyond mere incremental change. Consistent with radical cause lawyering precepts, then, attorneys should “join forces with the social movements and their transformative interests and values” in seeking truly far-reaching formulations of environmental human rights in the U.S.