Three years ago, on October 8, 2021, the UN Human Rights Council adopted a historic resolution recognizing, for the first time at the global level, the human right to a clean, healthy, and sustainable environment. The General Assembly adopted a similar resolution, with overwhelming support, in 2022. These resolutions have catalyzed widespread interest in the content and consequences of the right to a healthy environment.
Although the UN recognition is recent, this is not a new human right—the right to a healthy environment and associated obligations have deep roots in many Indigenous legal systems. Further, governments in Portugal, Slovenia, and the United States began to enact the constitutional recognition of environmental rights at the national and subnational levels in the early 1970s. Today, this right enjoys legal protection in 164 nations through constitutions, legislation, regional treaties, and court decisions.
As with any human right, courts play a critical role in defining its parameters, scope, and application. To illustrate the power of judicial action, a new report launching on October 8th highlights 20 landmark decisions drawn from every region of the world. Court decisions on the right to a healthy environment from more than 70 nations were reviewed. A database of these cases, including analysis, is available at NYU Law’s R2HE Toolkit.
These cases were selected through a collaborative effort involving the former UN special rapporteur on the human right to a clean, healthy and sustainable environment and the Earth Rights Research & Action (TERRA) Program at the New York University School of Law. Cases were chosen to illustrate geographic breadth, innovative judicial reasoning, diverse environmental challenges, and the bold remedies ordered by courts. The landmark decisions come from Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Hungary, India, Kenya, Latvia, Mexico, Norway, Panama, Papua New Guinea, Peru, Philippines, Portugal, Seychelles, South Africa, and the United States.
Using the courts to uphold the right to a healthy environment
After decades of declining ecological health despite the rapid spread of international and domestic environmental laws, human rights have emerged in recent years as an important tool for achieving accountability. Governments have legally enforceable obligations, as opposed to options, to respect, protect, and fulfill human rights, including the right to a healthy environment. When they fail to comply with their obligations, environmental and human rights advocates can challenge these failures by approaching national human rights institutions, environmental tribunals, and courts.
What began as a trickle of cases based on the right to a healthy environment in the 1970s, 1980s, and 1990s has now become a river. Of the 20 court decisions highlighted in this report, two were decided before the year 2000, two between 2000 and 2009, four between 2010 and 2019, and twelve since 2020. Our report demonstrates that courts worldwide are making increasingly numerous, bold, and progressive decisions to safeguard the right to a healthy environment. In order to document this rapidly evolving case law, NYU TERRA’s R2HE website will continue to feature key cases and offer legal analyses on new trends.
The majority of these bold precedents were issued by supreme or constitutional courts at the apex of national legal systems, with one powerful recent decision from the Inter-American Court of Human Rights. While the majority of these court decisions reflect positive outcomes, the report also includes cautionary tales about implementation challenges and a deeply disappointing decision from the Supreme Court of Norway.
In polluted cities—from Jakarta, Indonesia, to Mpumalanga, South Africa, to Buenos Aires, Argentina—residents have successfully petitioned courts to enforce their right to a healthy environment by ordering governments to take accelerated and ambitious action to improve air quality. From Colombia, Costa Rica, Ecuador, and Mexico to Hungary and Portugal, courts have concluded that the right to a healthy environment compels governments to protect endangered species and ecosystems, from hammerhead sharks and wolves to cloud forests, mangrove wetlands, and rainforests. Court decisions in Argentina, Chile, Peru, and the Philippines demonstrate that this right harbors significant potential in addressing so-called sacrifice zones, where the unfettered pursuit of profits has created some of the most toxic living conditions on Earth. In fact, the right to a healthy environment has been crucial to the rise of a “rights turn” in biodiversity litigation and jurisprudence.
The right to a healthy environment is also being harnessed by litigants pursuing climate justice, accelerating the transition away from fossil fuels and halting deforestation, as demonstrated by cases in Brazil, Colombia, Kenya, Norway, and the United States. The world’s highest court, the International Court of Justice, and the Inter-American Court of Human Rights are engaged in ongoing processes to articulate the obligations of states to address the climate crisis. The advisory opinions issued by these highly respected judicial institutions should provide further clarification and impetus to the right to a healthy environment.
Decades of domestic and international practice illustrate that the right to a healthy environment comprises a range of procedural and substantive elements. Procedural elements include access to information, participation in decision-making, and access to justice with effective remedies. The substantive elements consist of clean air, safe and sufficient water, and adequate sanitation; healthy and sustainably produced food; non-toxic environments in which people can live, work, study, and play; healthy ecosystems and biodiversity; and a safe and livable climate. Courts have highlighted essential legal principles that are relevant to the right to a healthy environment, such as non-discrimination, prevention, precaution, non-regression, and polluter pays.
New trends in environmental regulation and rights-based decisions
Two surprising new trends have emerged. First, as governments strengthen climate and environmental regulations to address the planetary crisis, many rules are challenged in lawsuits filed by businesses in various industries. In defending their actions, governments are increasingly citing their obligation to protect the right to a healthy environment, an argument that courts have embraced. Examples include unsuccessful industry challenges to new plastic regulations in India, Kenya, and Mexico, a nature protection law in Argentina, used vehicle importation rules in Peru, and the denial of a permit for a biomass power plant in the United States.
A second unexpected development involves the conventional judicial practice of balancing competing rights, such as economic rights and environmental rights. Because of the widely acknowledged gravity of the global environmental crisis, courts are providing unprecedented priority to the right to a healthy environment. Given that the survival of humanity is at risk, the Court of Appeal in Seychelles wrote that the right to a healthy environment is “the most fundamental right of a human being” (emphasis in original) because “none of the myriad of other fundamental rights, including civil and political rights, can be meaningfully exercised by a human being in the absence of a clean and healthy environment which can sustain life.”
It can be controversial for courts to order the executive and legislative branches of government to carry out more ambitious climate and environmental action. For example, courts have ordered government agencies to carry out activities that cost billions of dollars, such as the clean-up and restoration of Manila Bay in the Philippines or the Riachuelo River in Argentina. Critics argue that courts have overstepped their role, violating the separation of powers doctrine. Yet, one of the fundamental roles of the judicial branch is to defend human rights and uphold the constitution.
Scientists have made it clear that time is running out to undertake the transformative changes needed to achieve a just and sustainable future. States must accelerate the human rights–based actions urgently required to transform the inspiring words of the UN Human Rights Council and General Assembly resolutions into reality so that everyone, everywhere, can fully enjoy their right to a safe, clean, healthy, and sustainable environment. Hundreds of millions of lives depend on it, as well as the future of both the human and the more-than-human worlds.