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UN Environment Rights Bolster Case for Global Climate Litigation

Oct. 19, 2021, 10:00 AM

A United Nations panel’s recognition of a stable environment as a human right will galvanize advocates to drive global climate litigation and pressure lawmakers to lower emissions and protect natural resources, international climate law observers say.

Forty-three nations voted to pass the resolution on Oct. 8 during the Human Rights Council’s 48th session, affirming the human right to a clean, stable, and healthy environment. The provision eventually will go to the General Assembly, where all 193 member countries will weigh in.

“This recognition becomes one more tool in the toolbox that litigators have at hand to hold governments and corporations to account for insufficient action to address the environmental and climate crisis, as well as damages caused to the environment,” according to Joana Setzer, assistant professorial research fellow at the Grantham Research Institute on Climate Change and the Environment.

The resolution, while not legally binding on its own, eventually could be incorporated into legal systems with specific frameworks for addressing human rights, such as the European Court of Human Rights.

“It really brings environmental concerns to human rights law, so using the mechanisms of human rights law to eventually adjudicate environmental issues,” Maria Antonia Tigre, a global climate litigation fellow at Columbia’s Sabin Center, told Bloomberg Law.

Withholding Support

The U.S. was, notably, one of the few countries who withheld support for the resolution.

“The United States has consistently reiterated that there are no universally-recognized human rights specifically related to the environment, and we do not believe there is a basis in international law to recognize a ‘right to a clean, healthy, and sustainable environment,’ either as an independent right or a right derived from existing rights,” the U.S. wrote in its end-of-session statement from the meeting.

It was not a voting member of the Human Rights Council at the time of the vote, has no federal rights of environment, and is actively working against constitutional climate litigation in Juliana v. U.S.

“U.S. opposition to this right is absolutely inconsistent with the Biden administration’s emphasis on the importance of environmental justice,” Wake Forest University law professor John Knox told Bloomberg Law. “Human rights is the language the international community uses to talk about environmental justice.”

The administration’s stance on the issue comes a few weeks ahead of the United Nation’s COP26 summit in Glasgow, which Biden will attend with at least 12 cabinet members and agency officials.

Constitutional Rights

Recent legal battles in the U.S. have shone a spotlight on the lack of explicit language in the federal Constitution that gives citizens the right to a stable environment.

The 21 youth plaintiffs of landmark constitutional climate case Juliana v. U.S. insist that those rights are implied in the Constitution, though the U.S. Court of Appeals for the Ninth Circuit dismissed the case for lack of standing and jurisdiction issues. The youth are currently waiting to see if a district judge will reignite an amended complaint and send the case back on track for trial.

Though the environment isn’t explicitly written into federal rights, “rights of nature” initiatives have been cropping up in state constitutions for years, including in recent initiatives.

The board of Nederland, Colo. approved a resolution in July giving “fundamental and inalienable rights” to the 448-square-mile Boulder Creek watershed that surrounds the town. New York state voters will consider a proposed environmental rights ballot measure in November.

The U.S. “could eventually follow a similar process in terms of the states—the sub-national constitutions—adopting it, and eventually, getting to a point where politically it would make sense to recognize it at the federal level as well,” she said.

What spurred the eventual UN recognition was that more than 100 countries have enumerated rights to a healthy environment in their constitutions, Tigre noted.

More Paths to Court

The resolution likely will have a more immediate impact on courts in countries that partner with the U.S. on emissions reductions and climate action through more rights-based approaches to climate litigation, according to a recent article Tigre wrote on the resolution.

“It just puts this debate to rest that [environment] is a human right, and it should be part of human rights law, which is a legal framework that has more mechanisms for compliance than international environmental law,” Tigre added in an interview.

Climate litigation, unlike in the U.S., fares better in international courts, and plaintiffs in the Global South often lead the pack on innovative climate cases.

High courts in Pakistan, Columbia, and Nepal have all ruled that their respective governments infringed on citizen’s rights to a healthy environment through the lack of adequate climate action.

Those courts have been “increasingly willing” to rule that environmental harm flies against human rights, and this resolution pulls that trend into a single, overarching right recognized universally, said Knox, who served as the former UN Special Rapporteur on human rights and the environment from 2012 to 2018.

The recognition “is not going to directly change the legal obligations of any State, but it does change the way we think about the issue in a way that can then lead to legal change,” Knox said. “And that’s kind of how human rights have always worked.”

—With assistance from Tripp Baltz.

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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