Anita Boros, Gyula Koi (eds): Sustainability and Law
›
4. Constitutional and legal relations to sustainability: terms, environmental constitution(alism), constitutional environment (László Vértesy)
›
4.2. Environmental constitution(alism), constitutional environment
›
4.2.3. The Role of Constitutional Courts in Environmental Protection

4.2.3. The Role of Constitutional Courts in Environmental Protection

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In recent decades, the constitutional and supreme courts have become significant agents of change in the development of environmental protection and sustainability.1 As environmental degradation and climate change worsens, judiciaries in multiple jurisdictions have been increasingly willing to assume an activist role as a strategic actor in creating the institutional framework for constitutional environmentalism through expansive interpretations and enforcement of judicial environmentalism. This judicial environmentalism can be demonstrated in three ways: (i) expansive interpretation of rights; (ii) the enforcement of environmental responsibilities, or duties; and (iii) reducing and supporting climate litigation.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The constitutional courts have engaged in the expansive interpretation of constitutional rights to include environmental dimensions. Rights that have long been framed in their traditional terms – the right to life, the right to health, and the right to dignity of personhood – are now framed as having significance for both the quality of the natural environment and the health of the people. This central re-conceptualization has provided space for people and groups to consider, and frame, their concerns and grievances about the natural environment as a violation of a fundamental constitutional right. This has meant they could be recognised as having legal standing, and pursue recourse through courts. The 2018 Atrato River case in Colombia is a significant example of this new framing. In Atrato, the Constitutional Court of Colombia, held that the river had rights and legal subjecthood, and the analysis was conducted in the context of constitutional violation of life, health, water, food, and healthy environment. The Court also recognised the need to protect the river’s cultural and ecological integrity today and for future generations. While the U.S. Constitution does not explicitly provide a right to a healthy environmental home, U.S. courts, particularly at the state level, have generally disregarded entrenched common law doctrines and embraced expansive statutory and constitutional provisions which provide some form of environmental right. Especially in Juliana v. United States (2015), a federally apostle-backed student collective of litigants argued against national fossil fuel usage on the basis that it was unconstitutional because it violated constitutional rights to life, liberty, and property as well as with respect to the public trust doctrine.2 Although the federal courts ultimately dismissed the suit on procedural grounds, it was a significant attempt led by youth where consitutional rights were recognised and the frameworks of climate risk and intergenerational justice were applied in practice. UK courts have never recognised a free-standing constitutional right to a healthy environment. Nevertheless, more environmental claims have been brought under the Human Rights Act 1998, and especially Article 8 of the European Convention on Human Rights (the right to private and family life). In López Ostra v. Spain (1994) – which influenced UK case law – the European Court of Human Rights ruled that severe environmental pollution could, in principle, violate Article 8.3 Since then, British courts have come to accept that failing to regulate against environmental hazards, such as air pollution or noise, would eventually threaten human rights, which then, indirectly, lead to the expansion of environmental protections through a rights-based framework.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Constitutional courts are becoming more assertive in implementing environmental duties that constitutional texts may explicitly, or implicitly, impose. Courts have taken action when the government’s environmental duty is not honoured and held them accountable. Courts have ordered cleaning up polluted sites, directed government bodies to act, and provided standing for civil society organisations and citizen groups to litigate for environmental relief. Courts act in a role akin to an institutional guardian of ecological order assisting in the realisation of constitutional commitments to sustainability through governance. Given the power of judicial review, agencies owe constitutional obligations neither to do, nor fail to do, to the public interest in environmental protection. For example, in Massachusetts v. Environmental Protection Agency, 127 S.Ct. 1438 (2007),4 the U.S. Supreme Court found that the EPA had a legal obligation under the Clean Air Act to treat greenhouse gases as pollutants. These types of decisions create greater accountability in environmental governance and reinforce and strengthen the role of judicial review to hold government to account in administering legislative mandates on its executive branch. The decision affirmed that once the government creates statutory or regulatory obligations on itself within an environmental protection scheme that it administers, there is a requirement to actually protect the environment. In Friends of the Earth v. Secretary of State for Business, Energy and Industrial Strategy (2022),5 the UK High Court concluded in a judicial review that the government had failed to provide sufficient detail in its Net Zero Strategy to comply with its obligation under the Climate Change Act 2008. The judge ordered the UK government to amend the plan with details explaining how targets for emissions reductions would be reached. Similarly, the Supreme People’s Court of China has allowed local courts to accept environmental public interest lawsuits by citizens. Through statutory amendments after the 2015 Environmental Protection Law reform, the People’s Court even entertained a public interest suit by a Chinese NGO on behalf of the environment. In China the Friends of Nature environmental NGO successfully sued for environmental damage arising from illegal waste disposals by the company.6 The court ordered damages and restorative action by Yuheng Coal and Chemical Park. This case marks a watershed in the judiciary’s willingness to enforce the environmental obligations of both the state and corporate actors, and is consistent with the environmental aspect of the state’s overarching green governance agenda.
 
Figure 19. Annual growth in impact literature. Source: Peel, J., Palmer, A., & Markey-Towler, R. (2022). Review of literature on impacts of climate litigation. Children’s Investment Fund Foundation Report.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The burgeoning wave of climate litigation is predicted to continue as courts are confronted in unprecedented frequency, not merely regarding climate change and its impacts or the economic implications of that change, but rather about the adequacy of societal responses to climate risks.7 This aspect of judicial engagement (may be termed climate constitutionalism), engages legal claims which challenge the failures or negligence of governments with respect to climate risks. As Wentz et al. states, lawsuits related to climate change were then a rarity; only 11 cases were filed globally in 2004, 8 of them in the U.S. Since then, climate litigation has dramatically increased. Between 2016 and 2019, more than 120 cases worldwide were filed each year. A central goal of many lawsuits is to establish legal responsibility for contributions to climate change and corresponding obligations to reduce greenhouse gas (abbr. GHG) emissions and to provide remedies for losses and damage associated with climate change.8
 
Figure 20. Global climate litigation since 1986. Source: Wentz, J., Merner, D., Franta, B., Lehmen, A., & Frumhoff, P. C. (2023). Research priorities for climate litigation. Earth’s Future, 11(1), e2022EF002928.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Examples of such cases are numerous, but arguably the most influential one has been in the area of climate constitutionalism: the legal challenge known as the Urgenda cases in the Netherlands, where the Supreme Court upheld a Court of Appeals ruling obliging the Dutch government to reduce the country’s greenhouse gas emissions to protect the human rights of its citizens and the survival of their children. Together with the 2021 ruling of the German Constitutional Court, which found that the German federal government’s climate laws violated the rights of future generations, we can see judicial willingness to fundamentally reshape constitutional norms through climate risk and intergenerational justice. While Juliana v. United States invoked constitutional grounds, it did not set the same precedents, but there are several states which have adopted successful climate litigation.9 For example, Held v. Montana (2023), where a Montana court ruled that the state’s approval of fossil fuel projects violated the explicit rights enshrined in the Montana Contitution to a clean and healthful environment10 It was the first-ever U.S. court decision which stated that the government’s failure to consider climate change impacts in its energy policy violated rights under the constitution, and it sets a marker for future cases. UK courts have been more circumspect, however; but they are considering climate-based legal challenges. In Plan B Earth v. Secretary of State for Transport (2020), the Court of Appeal struck down the government’s plans to expand Heathrow Airport with a third runway because it had failed to appropriately consider its obligations under the Paris Agreement.11 Although this decision was later overturned, it did represent the increasing role of climate commitments to legal reasoning and strategic litigation. Climate litigation is still nascent in China, but more and more courts have paid heed to their carbon neutrality commitments and low-carbon development targets in their judgments. For example, in Procuratorate v. Shandong Shipyard (2021), the court enforced remediation for the environmentally unsustainable GHG-intensive ship dismantling practices of the shipyard by referencing national carbon reduction regimes.12 While not an outright constitutional case, it does demonstrate alignment from the judiciary with Jaimie Hicks Masterson’s climate mandates from the top-down; providing, in effect, a nascent form of the judiciary backing domestic climate ambitions.13

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In total, these rulings together represents an emerging global sustainability jurisprudence, with constitutional courts forming a critical part of the practical implementation of environmental values and enhanced climate resilience.14 With the incorporation of rights, the enforcement of obligations, and the facility for climate accountability, constitutional judiciaries are redefining their designation as not merely interpreters of the law but as potentially effective facilitators of the approach to a legally sustainable future.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Figure 21. Table of most relevant [legal] cases. Source: Peel, J., Palmer, A., & Markey-Towler, R. (2022). Review of literature on impacts of climate litigation. Children’s Investment Fund Foundation Report.
Case name
Jurisdiction
Court
Date
Massachusetts v EPA
United States
Supreme Court
2007
American Electric Power v Connecticut
United States
Supreme Court
2011
Leghari v Federation of Pakistan
Pakistan
Lahore High Court
2015
Urgenda Foundation v State of Netherlands
The Netherlands
Hague District Court
/ Court of Appeal
/ Supreme Court
2015
2018
2019
Juliana v United States
United States
U.S. District Court Oregon (standing subsequently denied by Ninth Circuit Court of Appeals)
2016
Future Generations v. Ministry of the Environment and Others [Demanda Generaciones Futuras] v. Minambiente] (Future Generations)
Colombia
Supreme Court
2018
Lliuya v. RWE AG (Lliuya)
Germany
Higher Regional Court of Hamm
2018
Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others [Verein KlimaSeniorinnen Schweiz v. Bundesrat]
Switzerland
Swiss Federal Administrative Court (Supreme Court appeal dismissed)
2018
ENvironnement JEUnesse v. Procureur General du Canada
Canada
Superior Court of Québec
2019
Family Farmers and Greenpeace Germany v Germany
Germany
Administrative Court Berlin
2019
Gloucester Resources Limited v Minister for Planning (Rocky Hill)
Australia
New South Wales Land and Environment Court
2019
Friends of the Irish Environment v Ireland
Ireland
High Court/Supreme Court
2019
2020
McVeigh v REST
Australia
Federal Court (settlement)
2020
Plan B Earth and Others v Secretary of State for Transport
United Kingdom
Court of Appeal (overturned by Supreme Court)
2020
La Rose v Canada
Canada
Federal Court
2020
Mathur v Ontario
Canada
Superior Court of Ontario
2020
Sharma et al. v Minister for the Environment
Australia
Federal Court (overturned by Full Federal Court in 2022)
2021
Neubeuer et al. v Germany
Germany
Federal Constitutional Court
2021
Milieudefensie et al. v Royal Dutch Shell plc. (Shell)
Netherlands
Hague District Court
2021
Notre Affaire à Tous and Others v France
France
Administrative Court of Paris
2021
 
1

May, J. R. (2023). Still Not at All: Environmental Sustainability in the Supreme Court. UMKC L. Rev., 92, 723.

De Groot, D. (2024). ‘The potential of climate change cases for a sustained and resilient judiciary: Conference on “Climate change as a Challenge for Constitutional Law and Constitutional Courts”, organised by the Federal Constitutional Court of Germany, 4-5 May 2024. Conference on “Climate change as a Challenge for Constitutional Law and Constitutional Courts’Human Rights Law Journal 43(10-12) 475-480.

Shylo, O. H., & Hlynska, N. V. (2020). The role of the Supreme Court in the mechanism of ensuring the sustainability and unity of judicial practice: some aspects. Науковий юридичний журнал Заснований[Scientific Legal Journal] , 27(3), 129.

2

Powers, M. (2018). Juliana v United States: the next frontier in US climate mitigation?. Review of European, Comparative & International Environmental Law, 27(2), 199-204.

Reed, A. (2020). Juliana v. United States. Public Land & Resources Law Review, (10), 11.

Pace, B. J. (2019). The Children's Climate Lawsuit: A Critique of the Substance and Science of the Preeminent Atmospheric Trust Litigation Case, Juliana v. United States. Idaho L. Rev., 55, 85.

3

López Ostra v. Spain. (1994). European Court of Human Rights [ECtHR], Application 16798/90. A/303-C,[1994] ECHR 46,(1995) 20 EHRR 277, IHRL 3079 (ECHR 1994),(9th December 1994).

Segura, d. S. M. (2023). Chapter fifteen - The latest episodes of the López Ostra doctrine in Spain. In: Aragão, A. (ed.). Transforming Spatial Data into Public Policies for Social Justice and Environmental Sustainability. (Cambridge:Cambridge Scholars) 271-292. Hardback ISBN: 1-5275-0925-7 (ISBN13) ISBN: 978-1-5275-0925-2(ISBN10) Paperback ISBN:978-1-0364-2335-3 (ISBN13) ISBN: 1-0364-2335-2 (ISBN10) eBook ISBN: 978-1-5275-0956-6(ISBN13) ISBN: 1-5275-0956-6(ISBN10).

4

Sugar, M. (2007). Massachusetts v. Environmental Protection Agency. Harv. Envtl. L. Rev., 31, 531.

Crocker, K. M. (2024). Not-So-Special Solicitude. Minn. L. Rev., 109, 815.

Lazarus, R. J. (2020). The rule of five: Making climate history at the supreme court. (Cambridge (MA):Belknap Press) 368. e-ISBN: 978-0-674-24517-4

5

R(oao Friends of the Earth) v. Secretary of State for Business Energy and Industrial Strategy

URL: https://climatecasechart.com/non-us-case/r-oao-friends-of-the-earth-v-secretary-of-state-for-business-energy-and-industrial-strategy/ (accessed: 29 October 2024)

Martin, S. (2021). Friends of the Earth: ‘government policy’, relevant considerations and human rights. Journal of Environmental Law, 33(2), 449-454.

6 Friends of Nature URL: https://www.fon.org.cn/en (accessed: 29 October 2024). and Illegal industrial discharge from coal chemical plant threatened villagers’ livelihood in Yulin, Shaanxi, China URL: https://www.sixthtone.com/news/1007147 (accessed: 29 October 2024).
7

Peel, J., & Osofsky, H. M. (2020). Climate change litigation. Annual Review of Law and Social Science, 16(1), 21-38.

Stuart-Smith, R. F., Otto, F. E., Saad, A. I., Lisi, G., Minnerop, P., Lauta, K. C., ... & Wetzer, T. (2021). Filling the evidentiary gap in climate litigation. Nature Climate Change, 11(8), 651-655.

8 Wentz, J., Merner, D., Franta, B., Lehmen, A., & Frumhoff, P. C. (2023). Research priorities for climate litigation. Earth's Future, 11(1), e2022EF002928.
9 Powers, M. (2018). Juliana v United States: the next frontier in US climate mitigation?. Review of European, Comparative & International Environmental Law, 27(2), 199-204.
10

Ferguson, E. C. (2024). Held v State of Montana: A Constitutional Rights Turn in Climate Change Litigation?. Journal of Environmental Law, 36(3), 453-460.

Smith, D. C. (2023). Held v Montana: the beginning of a climate change lawsuit trend in US state level courts or a one-shot wonder? Journal of Energy & Natural Resources Law, 41(4), 369-378.

Owsley, L. (2024). If Held Holds-Held v. Montana and the Future of Constitutional Environmental Litigation. SMU Sci. & Tech. L. Rev., 27, 377.

11

Gordhan, S. (2020). Plan B Earth v Secretary of State for Transport: Airport Expansion, the Paris Agreement and the Planning Act 2008. Journal of Environmental Law, 32(3), 559-575.

Mitchell, E. (2020). Climate change and nationally significant infrastructure projects: R (on the application of Plan B Earth) v Secretary of State for Transport. Environmental Law Review, 22(2), 125-132.

12

Zhai, T. (2024). An empirical study of marine environmental civil public-interest litigation in China: Based on 216 cases from 2015 through 2022. Ocean & Coastal Management, 253, 107164.

Yang, L. (2023). China's marine environmental public interest litigation: current situation, challenges, and improvement approach–analysis based on 339 cases. Frontiers in Marine Science, 10, 1302190.

13

Masterson, J. H. (2020). Integrated impact. In: Van Zandt, S., Masterson, J. H.,Meyer, M.A., Newman, G.D. Engaged Research for Community Resilience to Climate Change. (Amsterdam:Elsevier). 127-191. ISBN: 978-0-12-815575-2 DOI: https://doi.org/10.1016/C2017-0-03017-3

Masterson, J. H., Peacock, W. G., Van Zandt, S. S., Grover, H., Schwarz, L. F., Cooper, J. T., ... & Cooper, J. T. (2014). Striving for Consistency. In: Masterson, J. H., Peacock, W. G., Van Zandt, S. S., Grover, H., Schwarz, L. F., Cooper, J. T., ... & Cooper, J. T. et al. Planning for Community Resilience: A Handbook for Reducing Vulnerability to Disasters.(Washington, D.C.:Island Press) 167-182. eBook ISBN: 978-1-61091-586-1 DOI: https://doi.org/10.5822/978-1-61091-586-1

14

Baber, W. F., & Bartlett, R. V. (2009). Global democracy and sustainable jurisprudence: deliberative environmental law. (Cambridge (Mass.):MIT Press). 224. ISBN: 9780262512916 e-Book ISBN:  9780262258524

DOI: https://doi.org/10.7551/mitpress/8143.001.0001

chevron_left
chevron_right
Tartalomjegyzék navigate_next
Keresés a kiadványban navigate_next
A kereséshez, kérjük, lépj be!
Könyvjelzőim navigate_next
A könyvjelzők használatához
be kell jelentkezned.
Jegyzeteim navigate_next
Jegyzetek létrehozásához
be kell jelentkezned.
    Kiemeléseim navigate_next
    Mutasd a szövegben:
    Szűrés:
    Kiemelések létrehozásához
    MeRSZ+ előfizetés szükséges.
      Útmutató elindítása
      delete
      Kivonat
      fullscreenclose
      printsave