Constitutional Environmental Rights

So far this book has addressed doubts about whether there is a normative justification for constitutionalizing a fundamental right to an adequate environment, about whether that right would be effective, and about whether it would be democratically desirable. The challenge for this chapter is to address the doubt about whether, after all, such a right is necessary. The arguments of preceding chapters have depended at crucial points on the assumption that the constitutional context in question is that of a modern democratic state that takes seriously a commitment both to human rights and to high levels of environmental protection; for without such commitments, the potential effectiveness of the right would be undermined. This leaves the question, though, of whether with such commitments there is really any need for the right. That is to say, if a state lives up to its human rights and environmental commitments, would it not, in doing so, meet the demands implied by the fundamental right to an adequate environment? For it is possible under certain circumstances for constitutional or legal environmental provisions to have rights-like effects without the need for an express constitutional right to underpin them; and it is also possible for non-environmental rights to have environmental applications.

In seeking to address the question of whether these possibilities hold, and in such a way as to render an express constitutional environmental right redundant, however, there are certain methodological issues that need to be considered. In particular,

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