Tag Archives: anthropocentricism

Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights (J. J. Bruckerhoff)

Author(s)

Joshua J. Bruckerhoff

Keywords

nature, anthropocentricism, constitutional rights, environmental rights, environmental health, environmental protection, biodiversity, jurisprudence

Abstract

Is it possible to use constitutional rights to protect the intrinsic value of nature? This question should seem somewhat paradoxical. Constitutional rights are, by their very nature, anthropocentric-they confer a right to people and to people only.1 This Note argues, nonetheless, that it is possible to use constitutional environmental rights to defend nature from environmental harm. Many countries (and some U.S. states) purport to grant their citizens a constitutional “right” to a healthy environment.2 These constitutional environmental rights remain largely untested in the courts;3 however, when they have been invoked, most courts have construed the right very narrowly. The courts hold that the right to a healthy environment only restricts state action that is likely to cause environmental harm that creates a signiflcant threat to human health, such as pollution.4

This current understanding and enforcement of environmental rights is flawed because it is too anthropocentric.  A right to a healthy environment should actually guarantee a healthy environment, not just an environment that satisfies minimal health standards for humans. This Note argues why environmental rights should protect nature’s biodiversity and how this goal can be accomplished within a workable constitutional-rights framework.

Scientists warn that human activities are threatening the survival of the world’s plant and animal life.5 Moreover, mounting evidence illustrates the importance of protecting nature’s biological diversity, or biodiversity.6 This evidence shows that biodiversity is critical to both overall environmental health and human well-being. Incorporating biodiversity protection into constitutional environmental rights will ensure that the rights will actually guarantee a truly healthy environment for present and future generations.7

There are two principal avenues for incorporating biodiversity considerations into environmental rights jurisprudence. First, the constitutional provision should link the concept of environmental rights with a broader definition of environmental health. Some current constitutions already accomplish this goal by not just guaranteeing a “livable” or “healthy” environment but by granting “a right to an ecologically balanced environment”8 or, stated more profoundly, a right to “a balanced and healthful ecology in accord with the rhythm and harmony of nature.”9 second, and more importantly, courts should interpret and apply environmental rights more broadly. Because courts are unlikely to expand environmental rights on their own initiative, advocates of environmental rights should (1) highlight the scientific evidence that illustrates the interrelationship between biodiversity and human health and (2) emphasize the nexus between cultural values-specifically the rights of indigenous peoples-and overall environmental health.10 Ultimately, this Note aims to establish a workable constitutional framework for how citizens could rely on environmental rights to protect biodiversity.

This Note is divided into five parts. Part I emphasizes the importance of biodiversity law in environmental protection and explains the differences between anthropocentrism and biocentrism. Part II explains why a constitutional environmental right should be part of a comprehensive environmentalprotection regime. It also presents an argument for why environmental rights should be less anthropocentric. Subsequently, Parts III and IV discuss the two principal avenues for incorporating biodiversity considerations within environmental rights jurispmdence. Part III discusses how the constitutional text itself affects both the enforceability and application of environmental rights. It explains why most environmental rights provisions have not been enforced and notes that even when courts have enforced the right, they have limited its reach. Therefore, it outlines how an effective environmental right should be written to guarantee that it provides biodiversity protection while remaining individually enforceable. …

Citation

(2008) 86 Texas Law Review 615

Paper

Note, Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights

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A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers towards the Environment (S. Turner)

Author(s)

Stephen Turner

Keywords

environmental rights, legal obligations, environmental protection, international law, anthropocentricism, public participation, human rights

Abstract

Accute global awareness of environmental degradation seems at last to have created a consensus that environmental obligations should be imposed on decision-makers, whether state or non-state actors. However, although substantive environmental rights have been developed to a limited degree, there is as yet no international treaty or agreement that provides a globally accepted substantive human right to a good or clean and healthy environment.

This impressive book proposes such a right. In unprecedented depth, the author probes the legal obligations of decision-makers within states, companies, multilateral development banks and the World Trade Organization and develops a sound substantive human right that creates duties, both nationally and internationally, by which all decision-makers are legally bound to follow specific rules and procedures that would prevent or limit environmental degradation stemming from their decisions.

Among the major issues dealt with in the course of the presentation are the following:
determination of an equitable form of compensation where less environmentally-degrading alternatives are not viable;
anthropocentric approach vs. intrinsic rights for all ecosystems and natural systems; problems of fixing qualitative standards;
problems arising from the differing economic capacities of states;
the extent to which state constitutional provisions relating to the environment can direct and constrain legislators and policymakers;
effectiveness of responses to pressure upon multinational enterprises to take the environment into consideration in their decision-making processes; intergenerational equity;
protection of indigenous and vulnerable communities; and
public participation in the environmental impact assessment process.

The annex provides the author’s draft accord between states for the development and realization of a substantive environmental right.
This is the first book to formulate a full-fledged international legal right ensuring that all peoples could enjoy an environment, in which all ecosystems and natural systems are protected, and to demonstrate how such a right could be instituted and work in practice. As such it not only represents a major contribution to our knowledge and significantly enhances our understanding of the issues examined, but also brilliantly exposes the obstacles blocking environmental progress and powerfully clarifies the way ahead. It will be of immeasurable value to anyone committed to turning back the tide of environmental degradation.

Citation

Stephen Turner, A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers Towards the Environment (Wolters Kluwer, 2008)

Book

A Substantive Environmental Right: An Examination of the Legal Obligations of Decision-Makers Towards the Environment

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