Success in European Courts and Potential for Environmental Rights in the US

Friday, May 10, 2024

Following victories for environmental rights in Europe, many wonder what are the legal potentials within the American court system. YCELP’s Daniel C. Esty’s 2023 article SHOULD HUMANITY HAVE STANDING? SECURING ENVIRONMENTAL RIGHTS IN THE UNITED STATES is increasingly relevant within the context of globally successful movements. 

The following excerpt is from a New York Times Wednesday Briefing: 

A European court made a significant climate ruling

Europe’s top human-rights court said the Swiss government had violated its citizens’ rights by failing to meet its climate targets. Experts said it was the first instance in which an international court had used human rights law to determine that governments were legally obligated to meet their climate goals.

A group of women, all 64 or older, argued that their health was at risk during heat waves related to global warming, and that by not doing enough to mitigate warming, Switzerland’s government had violated their rights.

“This is a landmark ruling, and it could trigger a wave of similar lawsuits in European countries,” David Gelles, the managing correspondent of our Climate Forward newsletter, told us.

Implications: The women’s lawsuit was the latest in a series of attempts to force governments in court to act against global warming.

“The European ruling isn’t likely to affect rulings in the U.S.,” David said. “But there are several big cases making their way through the U.S. court system, including one that could appear before the Supreme Court later this year.”

SHOULD HUMANITY HAVE STANDING? SECURING ENVIRONMENTAL RIGHTS IN THE UNITED STATES. Southern California Law Review. 

95 S. Cal. L. Rev. 1345

Abstract: While courts around the world are increasingly recognizing rights of nature or the rights of individuals or communities to a safe and healthy environment, American courts have been much more skeptical of environmental rights claims. This Article examines this growing divergence and identifies trends in American law that might account for it, including explanations deeply rooted in U.S. constitutional history as well as recent doctrinal developments such as the major questions doctrine. More importantly, this Article offers a way forward for American law in the face of critical environmental challenges, most notably climate change. Specifically, it presents constitutional interpretive methods that might advance the interests of nature and individuals facing pollution impacts. It also explores the potential role for states and state constitutions in protecting the environment. But given the obstacles—both jurisprudential and political—to a more robust environmental rights framework in American courts, this Article concludes that the best path forward might be a theory of negative environmental rights—namely, the right to be free from harmful pollution. Such a narrowly constructed commitment to an end to uninternalized environmental externalities might offer a practical and politically feasibly way to move past the pervasive concerns of American courts about positive rights, separation of powers, the political question doctrine, and appropriate modes of judicial relief.