Environmental constitutionalism and legal framework

In many countries, nature’s relationship with men has been recognised as an essential bond that seeks preservation and reverence, not less than making it a part of constitutional law. In the UN Conference on the Human Environment in Stockholm in 1972, this link is described in the following words:

“Man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”

Nature and human beings are two sides of the same coin, with the only difference being that, unlike nature, humans depend on nature for sustainability. When nature is friendly or calm, it signifies harmony with humans. And when nature is harsh — like in the form of floods, earthquakes massive rainfalls or heatwaves — it leads to tension between the two. This relationship of love and hate has found a place in various nations’ constitutional law. For example, in Sri Lanka, the court referred “to the irrigation works of ancient Sri Lanka, the Philosophy of not permitting even a drop of water to flow into the sea without benefitting humankind.” The court further emphasised that sustainable development has been practised consciously in Sri Lanka for several millennia.

Somewhat similar sentiments resonated in the 2008 constitution of Ecuador. “It guarantees the rights of nature by recalling the values of the local indigenous civilisations, referring to nature as Pacha Mama, or Mother Earth, in the language of the Achuar people of the Amazon.

Environmental constitutionalism can help address environmental challenges beyond the purview of other legal constructs. It can be used to protect local concerns such as access to fresh food, water or air, or it may institutionalise climate change to benefit human rights and protect the environment. Environment constitutionalism is, in part, a way forward without other legal mechanisms and guarantees that environmental concerns shall be addressed one way or the other. It keeps the door open for environmental activists and stakeholders to hold the spoilers accountable.

The scope of environmental constitutionalism is pretty expanded. It is not concerned only with human-nature relations but is also watchful of non-human rights and their interaction with the environment. It spreads over both the environmental rights movements and human rights movements. Both these movements, as has been said, “house a hidden imperial ambition; both potentially touch upon all spheres of human activity and claim to override or trump other considerations.”

The Constitute Project has identified 11 jurisdictions that have included climate constitutional provisions or clauses in their constitutions. They are Algeria, Bolivia, Cote d’Ivoire, Cuba, Dominican Republic, Ecuador, Thailand, Tunisia, Venezuela, Vietnam and Zambia. Interestingly 45% of Latin American countries and 36% of African countries have climate clauses, whereas neither Europe nor North America has any. Most of these constitutional clauses are from recent history — 63% have been passed in the last 15 years.

Around 50 countries have passed climate change framework laws and every country approaches them differently. China, for instance, is taking its economy towards low-carbon by combining various policies such as a constitutional amendment in 2018 and the Five Year Plan. South Korea has recently added ‘Framework Act on Low Carbon, Green Growth 2010’ to its climate change policy. The law focuses less on emissions targets and more on changing socioeconomic practices through structural adjustments, particularly inducing businesses towards green growth. The boundaries of climate change litigations overlap with environmental litigations.

Countries’ effort to create awareness about climate change and its legal structure, to fulfil their commitment to the UNFCCC, and other multilateral treaties, has started bearing fruit. Across the world, people harmed by climate change are turning to courts. As a result, many landmark judgments have been given. It has redefined the boundaries of climate change and has brought under discussion the spillover effect of one pollutant on the climate spectrum.

Climate change litigation refers to a government’s legal system that holds the perpetrator accountable for their harmful actions leading to climate change. It also seeks the discontinuation of these activities through behavioural change.

A rise in climate change litigation does not mean people have gained control to remove harmful activities or replace them with better options. Fossil fuel has the world’s wealthiest and most influential people and organisations on its back. Beating them or pulling them from a lucrative opportunity is not easy. Plaintiffs face an uphill task facing them in court.

It does not either mean a complete loss. There is no doubt that a court victory leaves a powerful impression, but in a climate lawsuit, a defeat inside the courtroom does not necessarily translate into failure outside the court. Climate lawsuits are always accompanied by activism, and the negative energy activism created around the harmful substance outweighs the winning option inside the courtroom.

According to the United Nations Environment Program’s Global Climate Litigation Report: 2020 Status Review, climate litigation cases had risen from 884 in 2017 to 1,550. These cases were reported from 38 countries. There has been a parallel increase in awareness about climate change and its litigations. From 1986 to 2016, barely 800 cases were filed regarding climate change. However, from 2014 to 2022, more than 1,200 climate litigation cases were registered. Most of the cases are filed in the US.

A successful climate litigation trial potentially benefits low-income people more than any other population segment. The impact of climate change on people experiencing poverty is indeed pronounced. They not only have meagre resources, but their societal position does not give them the clout to confront their nemesis. However, when an issue is raised, and a corrective measure is taken, the first beneficiaries are people experiencing poverty.