Constitutional Environmental Rights

Having examined questions about how effectively constitutional environmental rights could be enforced, I turn now to the question of the legitimacy of trying to enforce them at all. This is a significant question because the point of constitutionalizing rights is to set them above the vicissitudes of everyday politics, and this is also effectively to raise them above the possibility of (routine) democratic revision. Because of this, political theorists have adduced various reasons to be cautious about, or even opposed to, the constitutionalizing of rights in general; and these reasons might be thought to apply particularly decisively to the newer rights proposals, such as those including environmental rights, which have not historically been linked with the conditions of legitimate government. The focus of this chapter is on one issue of principle that has been appealed to, both by politicians and by theorists, as a reason for not constitutionalizing environmental rights, namely, that to do so would be undemocratic.

This issue concerns both the environmental content of these rights and their constitutional form as rights. While virtually no constitution in the world that has been drafted or amended in the past ten years omits reference to principles of environmental protection, even if not in the form of a rights provision, such principles, it seems, cannot be directly justified by reference to principles of democracy. As Robert Goodin observes: '[t]o advocate democracy is to advocate procedures, to advocate environmentalism is to advocate substantive outcomes' (Goodin 1992 : 168);

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