A Right to Clean Air?

Imagine that five people in your neighbourhood urgently need organ transplants. Without the transplants they may die. Just one healthy body would supply all the necessary parts: heart, lungs, liver and two kidneys. They nominate you to be their donor. Fortunately for you, your right to life does not depend upon an assessment of costs and benefits, and no official is empowered to sacrifice you for the greater good. Your life will be spared not because it is more valuable than the five you would save, but because you have a right not to be killed.

Conceptually, rights are pretty simple. They provide the ability to prevent others from intruding upon you. The right to bodily integrity prohibits people from touching without permission. Property rights provide the ability to exclude others from your stuff. Rights are not absolute, but limited by the rights of others. The freedom of expression allows the distribution of unpopular opinions, but not the right to defame. Even the right to life yields if you attack someone with lethal force and the victim kills you in self-defence. But to say that rights are limited by the rights of others is quite a different thing from saying that they depend on public interest. Your right to life prevents five other people from being saved. It neither serves the public good nor maximizes the amount of life. If the right to life were to yield when other people needed organs, it could not be said to really exist at all.

Some statutes eviscerate rights by authorizing officials to put public good first. Since public good, like beauty, depends upon the eye of the beholder, rights can be trampled by politically motivated policies. So far, the right to life has been spared, but others—rights to property and free expression, for example—get second billing in certain circumstances.

Environmental protection in Canada is an intensely political phenomenon, in part because it is not based upon rights. Environmental rights do exist in Canada but their application is limited. Causes of action in tort law, such as trespass, nuisance and negligence, protect against certain kinds of intrusions and exposures, toxic and otherwise. These traditional common law rights have proven to be inadequate on their own in stemming the tide of ecosystem decline, and they have been overtaken by regulatory regimes that give priority to public interest. Some provinces and territories have enacted statutes that purport to create environmental rights, but they are often merely procedural, entitling citizens to comment, object or otherwise notionally participate in environmental decision making tightly controlled by government officials.

As a result, environmental law is dominated by the imperative of defining public interest to fit the agenda of the day. Governments at all levels are significant sources of environmental harm as they pursue other priorities such as resource development. The appearance of environmental stewardship is more important than actually achieving it. The amount of regulation increases but not the quality of protection. Legislative and regulatory action is as likely to encourage steps that threaten ecosystem integrity as it is to restrict them, leaving some environmental interests at the back of the line rather than the front. Citizens fish downstream from mills that pollute with government approval, swim in lakes with municipal sewage overflow, live in houses next to government-mandated power plants, and eat foods with unknown pesticides and genetic modifications protected by regulations and patents. When environmental quality is cast as public good, government paradoxically becomes the sole source of protection and the leading source of trouble.

Environmental rights are not difficult to create. Any legislature with jurisdiction can enact them. A right to a healthy environment would enable individuals to bring legal action against anyone infringing the right, without the need to navigate political currents or to influence authorities to adopt a particular vision of the common good. Environmental rights of this kind are rare because they put environmental protection into individual hands. Governments do not like that idea, and, ironically, neither do many environmentalists. Governments prefer flexibility to pursue political aims; rights get in the way. Environmentalists are committed to characterizing environmental quality as a public good, and therefore tend to be reluctant to protect it by means of individual rights. Instead, they value the idea of constitutional provisions, not only because they bind legislatures, but also because they keep environmental protection in the public realm.

David Boyd is one of Canada’s leading environmental writers. One of his previous books, Unnatural Law: Rethinking Canadian Environmental Law and Policy, was a surgical diagnosis of the failures and shortcomings of Canadian environmental law and policy. In his new book, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment, Boyd assesses constitutional environmental rights from around the world. This impressive work is thick with information and analysis. Scholarly but eminently readable, the book should capture the attention of the specialist and the imagination of the layperson. Part 2 contains the raw material, where Boyd reviews in detail constitutional environmental provisions from countries on five continents. The most engaging discussions are in the bookends—Parts 1 and 3—that contain context, thesis and conclusions.

Boyd reports that of the 193 countries in the United Nations, 147 have constitutional provisions related to environmental protection. Canada is not among them, and is joined on the sidelines by most other countries with common law traditions, including the United Kingdom, United States, Australia and New Zealand. Boyd concludes that constitutional environmental provisions are effective and desirable, and leaves the impression that Canada and the other common law countries are environmentally backward and behind the times. Boyd does not investigate the enactment of statutory rights, but focuses exclusively on constitutional provisions, about which he is unabashedly enthusiastic. “Constitutional protection for the environment,” he writes, “has the legal and symbolic power to both change the rules of the game and alter our vision of the world, bringing us closer to the elusive goal of achieving sustainability.”

Boyd is a lawyer and he knows what rights are. He observes that “the constitutional right to a healthy environment should … [ensure] a minimum standard of environmental quality for all members of society.” The problem is that they rarely do so, and Boyd’s enthusiasm for constitutional environmental enactments is undeserved. Constitutional provisions do not create a right to be free from environmental encroachments, in the way that property rights allow the owner of land to exclude the rest of the world. Instead, they may be enforced, if at all, only by individuals against the state. Many of the constitutional “rights” that Boyd analyzes are not individual legal rights at all, but duties or mandates for governments to assume responsibility over environmental matters. He cites the constitution of Norway for an example of substantive environmental rights. Article 110(b) of Norway’s constitution states: “Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity is preserved.”

This provision does not create a robust individual legal right. It does not provide minimum environmental standards to which all are entitled. The additional paragraphs modify what at first appears to be a substantive right to environmental quality into a right to information and a directive to government to develop future policies.

Other enactments under Boyd’s microscope do not even pretend to create rights. Instead, they do the reverse: they make public good normatively prior to legal rights, thereby undermining rights rather than guaranteeing them. Consider, for example, article 2 of the constitution of Sweden: “The public institutions shall promote sustainable development leading to a good environment for present and future generations.”

Sustainable development is as slippery a term as public good, and may be interpreted to emphasize environmental, economic or social considerations in any combination. To “promote” means to encourage or aspire to, rather than to achieve. This provision creates a government duty, potentially unenforceable, to aspire to achieving whatever combination of ecological, economic and social objectives state institutions deem appropriate. It grants government almost complete discretion over environmental policy.

Boyd criticizes those who resist constitutionalizing environmental rights. Such detractors rely, he suggests, on the tired rationale that such rights are not justiciable and best left to democratically elected governments. He dismisses this argument as “steadily losing credibility as more and more nations enjoy successful experiences with the constitutional protection and enforcement of these rights.”

Countries that have shunned constitutional environmental provisions may be wiser than Boyd gives them credit for. Constitutional rights in common law countries tend to consist of basic civil and political guarantees that protect individuals from state intervention. For example, the Canadian Charter of Rights and Freedoms prevents the state from throwing people in jail without trial, searching homes without reasonable cause, restricting political expression, and so on. These rights are commonly called negative rights because they prohibit governments from interfering in the lives of citizens. Positive constitutional rights, on the other hand, create entitlements governments must actively provide. A positive right to water, food, housing or an adequate standard of living would require governments to make policies and take steps toward fulfilling these requirements. Positive rights guarantee social or economic benefits, and are more frequently seen in the constitutions of civil law countries—and not coincidentally, so are provisions about environmental protection. Governments have an unlimited capacity to provide negative rights, since they require merely that citizens be left alone, while positive rights require governments to take from some to give to others. Negative rights place limits on the state’s ability to interfere, while positive rights do the opposite. Positive rights constitutionalize the political philosophy that government has a permanent and unalterable obligation to provide material well-being to its citizens. They entrench the nanny state.

Yet he acknowledges that constitutional environmental provisions tend to create positive rights, and provide mandates for government regulation rather than individual rights. “The right to a healthy environment and other constitutional environmental provisions,” he writes, “impose positive obligations on the state and are thus pro-government rather than anti-government.”

He is not perturbed by the prospect of entrenching the public nature of environmental protection and therefore the primacy of political benefit over individual interests. Rather than helping to define the meaning of liberty in an age of environmental intrusions, constitutional provisions provide legal authority for the intervention and discretion of officials. They do not resolve the paradox of public environmental governance, in which the state is sole protector and the main threat.

But do they work? Boyd makes the case that they do. He is careful not to allege cause and effect, but lays out evidence that there is at least a correlation between national environmental indicators and the presence of environmental provisions in national constitutions. For example, he concludes that the average size of per capita ecological footprints among countries with constitutional provisions is smaller than those without.

The problem is that these indicators do not measure the effectiveness of environmental rights. Whether constitutional provisions promote the public interest is an interesting and open question, but it has little to do with assessing rights. Rights define the nature of individual liberty by identifying the legal space within which the common good may not intrude. The measure of a right to life is not whether it serves the public interest or saves more lives than it sacrifices, but whether it allows people to protect their lives from those who would take them. The measure of a right to a healthy environment is not whether it serves the public interest or improves national environmental indicators, but whether it allows people to protect their own environmental conditions from those who would foul them.

Most constitutional environmental “rights” do not do this. Thailand’s constitution includes environmental provisions; Canada’s does not. A family living in a slum of Bangkok has a significantly smaller ecological footprint than a family living in a suburb of Calgary, but the Calgary family lives in vastly superior environmental conditions. The family in Bangkok has no reasonable prospect of using the Thai constitution to demand conditions comparable to those enjoyed in Calgary. Smaller footprints may serve a theoretical global good (ignoring for the moment flaws in the concept of environmental footprints), but they do not save individuals from environmental harm.

Do individual, enforceable, environmental rights work? After all, unlike life and property, environmental resources such as air, water and ecological functions are transient and not held privately. Therefore, they would appear to require protection in the public interest. But this conclusion does not follow. Imagine an industrial facility that sends air pollution into an adjacent neighbourhood. An environmental right to clean air would enable any one (or more) of the residents to require the facility to stop polluting, thereby improving air quality for all.

The protection provided by public interest regulation is weaker because it includes discretion to balance conflicting interests. Air pollution is contrary to the public interest, but so is the accumulation of waste, which gathers in landfills and pollutes groundwater. In this scenario, officials might decide to authorize the facility to burn waste for energy, so as to reduce the accumulation of waste and the demand for other energy sources. If air pollution is seen to be the lesser evil, the local residents have no remedy.

The difference between environmental rights and environmental regulation is the interests that they protect: rights protect the holder of the rights. Regulation protects whatever interests regulators choose to protect in their quest for public good. In the name of climate change, regulations prohibit incandescent light bulbs because they use more energy than fluorescent bulbs. Environmental rights protect citizens from being required to use fluorescent bulbs that contain mercury, a toxin that may be released should the bulbs break.

Boyd purports to make an argument for environmental rights, but actually does the reverse. In effect, he equates rights with environmental protection, environmental protection with public interest and public interest with government action—and therefore characterizes provisions that mandate government intervention as provisions that create “rights.” According to this reasoning, environmental rights are desirable, but so are enactments that authorize governments to ignore individual rights in the name of the greater good. Boyd’s support for constitutional provisions is really an argument for entrenching the green nanny state. Let us hope Canada continues to hold out.