Image description: Protesters with a banner saying ‘We are the people’s climate movement’.

In a long-awaited victory, the UN Human Rights Council recently recognised, for the first time, that having a healthy environment constitutes a human right. Council resolution 48/13 specifically identifies “the human right to a clean, healthy and sustainable environment.” Thereafter, the UN High Commissioner for Human Rights “called on States to take bold actions to give prompt and real effect to the right to a healthy environment.” This call, however, raises anew vital questions about potential transformative paths forward in the US, whose government has long been hostile to notions of environmental human rights—and whose officials indeed worked to forestall the Council’s landmark resolution.

That the US government has a history of opposition to environmental human rights is a tragic but unsurprising fact. The US has wrought colossal and disproportionate ecological devastation worldwide—i.e., particularly on its own marginalised populations and in the Global South—all ultimately in service of capital and neo-colonial aims. Robust legal furtherance of environmental human rights at home and abroad, then, directly conflicts with the end goals and practices of core hegemonic US actors. As one clear-eyed commentator noted on the US officials’ work to oppose the council resolution: “[a]t the national level, this right has been shown to empower people, particularly those most vulnerable to environmental damage or climate change, to drive change and hold governments to account,” and thus “[t]his might explain why some governments like the U.S., Russia and UK don’t like it.”

Outside the US, environmental human rights have achieved remarkable momentum in the prior half-century. In addition to tribunal decisions and regional instruments such as the 2018 Escazú Agreement, to date, well over 100 nations have adopted constitutional provisions that incorporate some variety of environmental rights precepts. Accordingly, commentators have observed that “no other human right has achieved such a broad level of constitutional recognition in such a short period of time.” The Council Resolution explicitly acknowledges this important historical momentum, and the UN General Assembly next will consider the matter—which may further bolster nations’ adoption of environmental rights.

However, are there indeed transformative paths forward within the US? Immediate national-level legal recognition of environmental rights remains as unlikely as ever, and a constitutional amendment is a near-impossibility (i.e., given the uniquely daunting procedures for US amendments). That said, environmental rights furtherance has occurred at the state level, such as the landmark 1970s-era Pennsylvania and Montana state constitutional provisions. Even more hearteningly, a fledgling state-level trend of environmental rights furtherance has emerged. More than a half dozen states, such as New Mexico and West Virginia, have proposed environmental amendments in recent legislative sessions. Moreover, in late 2021, New York successfully passed an environmental rights amendment vis-à-vis ballot measure, which proclaims that “[e]ach person shall have a right to clean air and water, and to a healthful environment”.

Significant litigation also has bolstered state-level US environmental rights. Notable examples include the 2020 Montana Supreme Court decision Park County Environmental Council v. Montana Department of Environmental Quality, the 2017 Hawai’i Supreme Court decision In Re: Application of Maui Electric Company, Ltd., and the 2017 Pennsylvania Supreme Court decision Environmental Defense Foundation v. Commonwealth. State constitutional provisions also have formed the basis for emerging climate change lawsuits, such as the ongoing case Held v. State of State of Montana. In this suit, youth plaintiffs assert that “by supporting a fossil fuel-driven energy system, which is contributing to the climate crisis, Montana is violating their constitutional rights to a clean and healthful environment”. Therefore, state-level actions constitute practical, concrete, and hopeful sites for change in the US.

Transformative-minded change advocates could adopt critical legal research-informed approaches to state-level environmental rights furtherance. Such critical efforts would help challenge and overcome broader US economic and political power structures (i.e., of the very sort that mobilised to forestall the UN Council Resolution). As a prime example, socio-legal advocates may re-frame environmental human rights as a “non-reformist reform” in the US, wherein “[r]eform is not the end goal; transformation is”, as non-reformist reforms specifically are crafted to “undermine the prevailing political, economic, social system from reproducing itself and make more possible a radically different” ecological political economy. In contrast to traditional legal reforms, non-reformist reforms are designed to catalyse “building the power of people to wage a long-term struggle of transformation”.

Re-framing environmental human rights as non-reformist reforms, then, would help transform such US state-level actions vis-à-vis broader and deeper terrains of radical grassroots struggle—as necessarily interlinked with broader national and international efforts (e.g., demands for Global South climate debt reparations). Ultimately, the keystone of such an approach is that environmental human rights simply cannot be secured under our unjust and unsustainable ecological political economy. Rather, more radical, emancipatory change is required.