Introduction
The effectiveness of environmental protection in the present climate emergency is a global problem and the need for a common action has been the ground of important negotiations and international agreements in the last fifty years. This awareness has often pushed the European legislators to recognise a healthy environment as the object of a fundamental right, and, even where it does not find an express recognition as such, the courts often give it such a value.
Recognising the fundamental human right to a healthy environment has relevant consequences on the widening of its protection, particularly in climate litigation, where it adopts an evolutionary interpretation of the substantive and procedural rules that hinder the full satisfaction of victims of climate change.
This trend, on one hand, is praised and considered a fundamental tool to overcome the inertia of the competent authorities in implementing the commitments undertaken at the international level. On the other hand, it has raised many questions among scholars on whether it befits the role of the judiciary in constitutional democracies to adjudicate on climate change: scholars have warned that the balance between the branches of democratic government will be threatened when judges interfere with the political issue of climate change.
This paper seeks to highlight how the path taken by the courts at both supranational and domestic levels represents the expression of the progressive recognition of the right to a healthy environment as an indispensable prerequisite for the existence of the human being and of his participation in political life and, therefore, for the very existence of a democratic society. This interpretation, when endorsed by the explicit constitutional recognition of the right to the environment as a fundamental human right, makes legitimate the courts’ assertive approach, especially in climate litigation.
I. The right to a healthy environment in the case law of the European Court of Human Rights
The word ‘environment’ is not mentioned in the provisions of the European Convention on Human Rights (ECHR), much less the concept of the right to a healthy environment.
The lack of express protection of the environment can be explained by the fact that the approval of the Convention dates back to the 1950s, when awareness of the need to protect human environmental rights had not yet emerged in the collective consciousness. This awareness matured over time and was later reflected in the work in progress at the Parliamentary Assembly of the Council of Europe, which, on 29th September 2021, presented a proposal for an additional protocol to the ECHR on the right to a ‘healthy, clean, safe and sustainable environment’, which provides, in Article 3, that ‘Everyone has the right to a safe, clean, healthy and sustainable environment’ 2. A proposal that comes at a time of unprecedented momentum towards international recognition of such a right. Most notably, in July 2022 also the UN General Assembly approved a historic resolution recognising the right to a clean, healthy, and sustainable environment as a universal human right 3.
The European Court of Human Rights played a key role in bringing about this awareness since the 1980s, when it started to progressively modulate the intensity and type of obligations arising from the violation of Conventional provisions, distinguishing the ‘classic’ negative content of fundamental freedoms, in terms of a duty of abstention on the part of the State from obligations with a positive content, having as their object not a prohibition but the protection and enjoyment of the right itself. This hermeneutic attitude, together with a necessarily evolutionary interpretation of conventional rights in relation to changes in the temporal context, extended the protection of certain rights provided by the Convention to other rights not directly protected by it 4, notably the right to a healthy environment. Despite the lack of an express provision, the Strasbourg Court found grounds of protection of the right to a healthy environment in other fundamental human rights, to the point that, in its case law, the environment became a ‘value’ of society, justifying limitations to other rights recognised by the Convention and requiring positive action by the State for its protection 5.
The Conventional provisions that the Court used to ensure environmental protection are Article 2 (right to life) and Article 8 (right to respect for private and family life) of the ECHR 6.
Regarding Article 2, in Öneryildiz vs. Turkey case 7, the Court recognised the impact of industrial activities that are intrinsically dangerous and ruled that the mere fact of exposing individuals to a danger is sufficient to consider their right to life threatened, without there necessarily having been an actual violation. The Court held that there is a positive obligation on States to protect life and also physical integrity that can have an echo in environmental matters through the obligation to prevent damage to the environment and to provide information about threats that may exist. If harm nevertheless occurs, it constitutes a breach of the State’s positive obligations only if it was caused by insufficient regulation or control, but not if the harm was caused by the negligent conduct of a person or by unfortunate events 8.
Hence, in protecting the right to life, the Strasbourg Court’s interpretation extends to the protection of individuals from environmental or industrial disasters that may endanger this right 9. In this context, the Court found it necessary for the contacting States to adopt preventive measures and appropriate procedures to protect human life. Whenever a State undertakes, organises, or authorises hazardous activities, it must ensure, through a system of standards and sufficient control, that the risk is reduced to a reasonable minimum 10.
In the context of hazardous activities, if it is not established that the risk to which a person was exposed was lethal, so that Article 2 does not apply, his or her situation may be examined under Article 8 when his or her private or family life is affected. The Court has held this to be the case when individuals had been exposed to asbestos but had not developed any pathology 11.
Relating to Article 8 ECHR, following some initial pronouncements in which the Court’s openness to consider the environment an integral aspect of the individual’s private and family life was glimpsed 12, in 1994 there was what can be considered the leading case, Lopez Ostra vs. Spain 13. It concerned the construction and installation, twelve meters from the applicant’s home, of a plant for the treatment of liquid and solid waste from tanneries and the consequent emission of noxious fumes and smells.
In that case, the Court, in addition to finding a violation of Article 8 ECHR, condemned the State to pay compensation on the basis that not only had the Spanish government violated Article 8 by allowing the plant to be located on that site, but above all it had not acted, at a later date, to stop the emissions and had even challenged the judgements of the courts that had suspended the plant’s activity. The Court emphasises that ‘serious environmental pollution can affect people’s wellbeing and prevent them from enjoying their homes in such a way as to affect their private life and adversely affect their family life, without, however, seriously endangering their health’. Strasbourg judges emphasise that it is not necessary to endanger the life or health of the subject, proof of disturbance to the enjoyment of one’s family life and home being sufficient, to hold a breach of Article 8 ECHR. Most importantly, the Court states that the Authorities must protect the individual’s right to a healthy environment, as an expression of the right to home and private life, with concrete actions; this protection must be directed also against indirect aggressions towards private life, that is, deriving from measures relating principally to other activities, such as, the authorisation to locate a waste treatment plant.
Although there have been some pronouncements to the contrary 14, the prevailing orientation of the Strasbourg Court seems to be along the same lines as the Lopez Ostra vs. Spain ruling 15. On several subsequent occasions 16, the Court has, in fact, recognised that while the Convention does not directly guarantee the right to the preservation of the natural environment as such, an actionable claim under Article 8 may arise when an environmental risk reaches a level of severity that results in a significant impairment of the applicant’s ability to enjoy his or her private or family life or home. This assumption was reaffirmed in the recent Cordella vs. Italy ruling 17, where the Italian State was condemned for violation of Article 8 ECHR for having failed to adopt appropriate measures to protect the environment from polluting emissions, in this case identifying private life as the ‘well-being’ of citizens residing in the areas adjacent to the Ilva steel plant.
II. The role of Constitutional Courts in recognising a fundamental right to the environment
If the environment has been protected, albeit indirectly, in the case law of the European Court of Human Rights, it should be therefore protected, in the light of the same guiding principles, by the Courts of the contracting States 18. Indeed, access to the ECtHR requires an interpretative adaptation of national Courts to the Strasbourg jurisprudence.
Thus, the Constitutional Courts of European countries often refer to the protection of the environment as a fundamental principle of the Constitutional context, sometimes developing a case law that plays a fundamental function for the introduction of the environment in the Constitutional text.
In Italy, for instance, the role of the Constitutional Court was decisive in allowing the constitutional revision process to succeed and, thus, to introduce the environmental protection in the part of the Italian Constitution dedicated to the fundamental principles, which never had been modified before 19. As early as the 1980s, the Italian Constitutional Court spoke of the environment as a fundamental right of the human being and as an interest of the community, sharing a unitary conception of the environment that includes all natural and cultural resources. This view was adopted in several subsequent pronouncements 20. Specifically, the protection of the ‘landscape’ constitutionally enshrined in Article 9 has been interpreted with an ‘expansive’ reading, as including the environment, which became a primary and systemic value. More specifically, the Italian Constitutional Court has implemented an ‘evolving process aimed at recognising a new relationship between the territorial community and its surrounding environment, within which has been consolidated the awareness of the soil as a non-renewable eco-systemic natural resource, essential for environmental balance, capable of expressing a social function and incorporating a plurality of collective interests and utilities, also of an intergenerational nature’ 21. In this perspective, the care of the landscape concerns the entire territory, even when degraded or apparently without value 22.
This interpretative evolution, from landscape to environmental protection, was also affected by the reform of Title V, modifying the second paragraph of Article 117 of the Constitution. There, in 2001, the provision of the ‘protection’ of the environment and of the ecosystem, reserved to the exclusive legislative power of the State was introduced. In its efforts to interpret the new structure of constitutional competences, the Court has had the opportunity to state again 23 how ‘legislative evolution and constitutional case law lead to excluding the identification of the protection of the environment as a ‘matter’ in the technical sense, since it is not a strictly circumscribed and delimited sphere of State competence, but, on the contrary, it is inextricably intertwined with other interests and competences’. Hence a configuration of the environment as a constitutionally protected ‘value’, which, as such, delineates a sort of ‘transversal’ subject matter.
The recent introduction of the express reference to environmental protection within the framework of the fundamental principles of the Constitution is clearly in line with the hermeneutic approaches of the Constitutional Court. The revised Article 9 of the Italian Constitution now also lists the concepts of environment, biodiversity and ecosystem 24, adopting the extensive vision of the environment which was already held by the Constitutional Court, since it demonstrated that the protection of the landscape had an environmental dimension and that the protection of the environment could not be reduced to a specific field but rather was a fundamental value of the Italian constitutional system. Specifically, in the new Article 9, the protection of the environment seems to be considered as a duty, linked to a right of individuals to have this protection effectively implemented by public authorities.
The introduction of such a duty in the constitutional context is of great importance, especially for future generations: Constitutions, thanks to the attribute of rigidity, are designed to last over time and to be beyond the reach of political majorities. Also, Constitutions affirm universal principles that are above the political debate and represent a prerequisite of democracy, since they have the capacity to offer protection to those subjects who, in the democratic arena, would not have a voice, granting them tools of protection – including judicial ones – to guarantee their constitutional rights 25.
On the other hand, where a solid case law on environmental protection is missing in the constitutional jurisprudence, we could see the failure of the proposals of revision of the constitutional text, as happened in France, where the Constitution still does not refer directly to the environment, but merely to the rights and duties enshrined in the 2004 Environmental Charter, which became a constitutional law in 2005 26. This text, nevertheless, does not have a legal force entirely comparable to the constitutional provisions, since all its provisions are not invocable in the context of a preliminary issue of constitutionality 27.
Indeed, it was only fifteen years after the adoption of the Charter of the Environment as a constitutional law that the French constitutional Judge gave unprecedented force to the objective of environmental protection. In a decision of 31 January 2020, it held that it is up to the legislator to ensure the reconciliation of the constitutional objectives of environmental protection and health protection with the exercise of entrepreneurial freedom and noted that ‘the protection of the environment, the common heritage of human beings, constitutes an objective of constitutional value’ which can justify ‘infringements of entrepreneurial freedom’ 28, whereas it had previously conferred on the protection of the environment the character of an objective of general interest. But this landmark decision was not enough to grant success to the constitutional revision process in France.
Three draft constitutional revisions have been prepared to introduce the environment in the constitutional text. The first draft of the constitutional revision ‘for a more representative, accountable and efficient democracy’ of 2018 was rather small in scale, since it was limited to the insertion into Article 34 of the Constitution an additional assertion under which it was also up to the legislator to determine the fundamental principles relating to ‘the preservation of the environment’ as well as those concerning ‘the fight against climate change’. The Council of State, in its opinion of 11 May 2018, pointed out the minimum effect of a reform which, in its view, ‘will probably have little impact on the respective competences of the legislator and the regulatory authority’. This is one of the reasons why the constitutional legislator decided to go straight to the point to complete Article 1 of the Constitution. The 2018 reform bill was, therefore, amended to incorporate elements of revision of Article 1 of the Constitution. This second constitutional revision bill was not included in the parliamentary agenda and was therefore abandoned. The third and most recent attempt came from a constitutional bill registered in the National Assembly on 20 January 2021. Its sole Article was intended to complete Article 1 of the Constitution to affirm, as in 2019, that ‘the Republic guarantees the preservation of the environment and biological diversity and fights against climate change’. Once again, due to a lack of agreement between the Chambers, the Prime Minister announced on 6 July 2021 that the constitutional revision would be abandoned 29.
III. The Widening of Environmental Protection Through Climate Litigation
The progressive awareness of the environmental problem and the need to guarantee effective protection for the victims of environmental damage also find expression in the extensive jurisprudential interpretation of certain crucial aspects of climate litigation, namely the disputes that are in some way connected to climate change resulting from global warming.
It is now ascertained by science with irrefutable evidence that human activity can modify the biophysical, geological, and ecological processes of the Earth system. Our epoch, the first that scientists have defined by man’s overwhelming impact on the Earth’s life systems—the Anthropocene 30—is significantly marked by phenomena such as climate change, extreme weather events, mass extinctions and deforestation, which have a devastating impact on the environment. Just think of the effect of climate change on biodiversity: the 2023 Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) 31 and a multitude of studies state that climate change is producing significant alterations to plant and animal biodiversity and ecosystems, by the rising of average temperatures, the changing of regional and local climate systems, the altered rainfall patterns, the increased intensity of cyclones, the torrential rains, the melting ice caps and Alpine glaciers, and the rising of sea levels.
In such awareness, increasingly often, Courts both in Europe and overseas 32 are filling the gaps in international and national legislature in providing binding and coercive measures to fight climate change and requiring States to reduce their overall national emissions 33.
The main expressions of this trend are traceable in the consolidation of an evolutionary interpretation of the substantive and procedural rules that hinder the full satisfaction of victims of environmental damage and climate change. More specifically, this is done through a flexible interpretation of the conditions for the recognition of environmental damage such as the causal link and legal standing.
The demonstration of the existence of a causal link in climate litigation is particularly complex. It is, first, difficult from a scientific point of view to isolate a given factor from others in the causation of the harm and, therefore, to identify the extent to which the polluting emissions produced by a State have contributed to the determination of the specific harm. Moreover, the injury suffered by the plaintiff because of climate change may also arise long after the polluting emissions have been produced, remaining hidden and inert for a considerable period, thus causing a time lag between its infliction and its perception by the injured party 34.
Such difficulties have often been, in the past, the main reason for the Court dismissal of cases in climate litigation. As in the well-known case of the Native Village of Kivalina vs. ExxonMobil Corp., when the California District Court ruled that the plaintiffs had failed to prove a ‘substantial likelihood’ that ExxonMobil’s activities caused the plaintiffs’ injuries 35.
Nevertheless, more recent decisions seem to avoid identifying the specific defendant’s share of responsibility in global warming and, thus, in the causation of the damage. For instance, in the well-known case Urgenda vs. Netherland 36, the Supreme Court of the Netherlands does not seek the quantitative evidence linking the defendants’ emissions to global warming and considers the commitment taken by the Netherlands enough to set the State responsible for not complying with settled targets, even though the environmental commitments are shared with other States.
Another topic on which there is a significant hermeneutical evolution is the legal standing. Traditionally, the intrinsic collective nature of the interest in environmental protection makes it possible for the case to be brought only by associations representing that interest. In the recent years, thus, Courts seem to admit a flexible interpretation of the legal standing in environmental and climatic litigation, which considerably widens the scope of admissibility of proceedings.
On the one hand, the jurisprudential recognition of the essential role of the environment in granting some fundamental rights such as the right to life, to health, to property, leads to admission of individual interest in bringing proceedings. On the other hand, the ongoing recognition of the right to a healthy environment as a fundamental human right, would allow the individual to take legal action to obtain its protection, even without the demonstration of the harming of other rights, such as property or health, which are affected by the defendant’s conduct. With reference to climate litigation, some courts seem to be recognizing the specific right to climate stability as a fundamental right, entailing the standing of the individual to bring an action. This is the case, for instance, in Juliana vs. United States 37, where the Oregon Court of Appeals rejected the defendants’ argument regarding the generalised nature of the harm, holding that ‘the fact that a harm is widely shared does not necessarily make it a generalised grievance’ and arguing that the US Constitution guarantees an unspoken fundamental right to ‘a climate system capable of sustaining human life’. The Juliana case inspired a plethora of proceedings around the world, which have invoked the existence of an individual fundamental right to climate stability 38.
The widening of environmental protection emerges not only in the jurisprudential trend to give a flexible interpretation of key points of environmental and climate litigation, but also in the use of procedural tools to compel public authorities to overcome their inaction towards global warming.
Indeed, one of the main problems in relation to the effectiveness of judgements condemning the State to act to reduce atmospheric emissions is the concrete possibility of enforcing them. As it has been noted, the judgement against the State often ends up representing a mere instrument to urge the government to act, according to the principles of the separation of powers 39.
However, the Courts have made use of enforcing measures capable of conditioning the exercise of public power, whilst respecting the division of competences between the powers of the State. This is the case, for instance, of the use of penalty payments, which aim to obtain the compliance of the convicted by a final judgement (even a Public Administration), by the threat of an injunction to pay a sum of money that increases for each day of delay in the execution of the judgement. The amount of the penalty is generally left to the discretion of the Court and is also related to the relevance that the Judge attaches to the enforcement of the judgement in the specific case.
Recently, for instance, the French Council of State issued a ten million Euro penalty payment against the French government for failing to comply with a previous ruling in which it was ordered to take the necessary measures to reduce air pollution and comply with the limits imposed by the 2008 European Air Quality Directive 40. The huge amount of the penalty demonstrates the importance given by the Court to the State engagement in reducing air pollution and it results in a particularly strong instrument of pressure in the fight against climate change.
IV. The Problem of the Separation of Powers
The interpretative framework provided by the Courts to favour the recognition of the fundamental right to a healthy environment, extending its protection to the point of ordering States to take appropriate measures, did not go without criticism. Many scholars have defined this trend as a real activism of the Courts, sometimes talking about ‘regulation through litigation’ and questioning its legitimacy 41. The problem arises principally in relation to climate litigation and in respect of the principle of separation of powers, the cornerstone of any democratic system based on the rule of law. Particularly, it arises from the question of the advisability of using judicial instruments to achieve objectives that elected political actors cannot or do not want to pursue.
In general terms, the task of defining policy objectives and translating them into legal rules is primarily assigned to the legislature, which provides democratic legitimacy to lawmaking, since the legislative process involves representative bodies that give a voice to and are accountable to those who will be governed by the rules coming out of this process. The judiciary, on the other hand, would not be able to rely on such legitimacy and, therefore, should not, in principle, enter into the making of new rules 42. Specifically, the protection of the environment and the adoption of policies to reduce global warming are issues that may conflict with other interests of fundamental importance in the socioeconomic context, such as economic development, competition, employment: the balancing of these interests is, then, left to the choices of the legislative powers, insofar as they represent the citizens.
These arguments sometimes brought the Courts to impose self-restraint in the face of the plaintiffs’ claims about the inadequacy of the measures taken by States in mitigating emissions, arguing that it is not possible to uphold the plaintiffs’ claims since governments had acted in the exercise of the discretionary powers conferred on them by law 43. Even in the Urgenda case, for instance, the Dutch Supreme Court notes that ‘decision-making on the reduction of greenhouse gas emissions is a power of the government and parliament. They have broad discretion to make the policy considerations that are necessary in this regard. It is for the courts to decide whether, in exercising this discretion, the government and parliament have remained within the bounds of the law by which they are bound.’ 44
Nevertheless, it is also typical of a democratic system that the judiciary and the legislature influence each other significantly. In theoretical models of a constitutional division of powers, Courts perform different functions. Courts are, in the first place, responsible for the interpretation and application of the law and in the second place, the judiciary may have an influence in processes of shaping new rules. Especially in times of social change, Courts assume a different type of legal-political role, which places them in a position to sometimes respond to the developments in a more effective manner than the legislature 45. Just think of the above clarified influence of the constitutional jurisprudence on the recognition and introduction of the right to a healthy environment into the Constitutional text.
On the other hand, we should recall that the principle of separation of powers is based on the attribution of specific competences to the three powers of the State, which is not necessarily declined in the same way in the various legal systems 46. Thus, if, in a country, the judiciary has a broader competence, allowing it to create, modify or even eliminate policies when solving issues in which social rights are at stake, then one cannot define the exercise of such a power as ‘activism’ 47. The separation of powers in a particular legal system is necessarily related to the values and specific understandings of the institutional setup of that system. Therefore, it is not possible to consider it as a universal principle in its practical implementation and give an unambiguous interpretation of jurisprudential activism in environmental matters.
But, most importantly, we need to consider that once a given right is recognised as a fundamental human right, its protection is essential for the protection of the entire democratic system, no matter how much it may move against the choices democratically made by Parliament. The choice to introduce a certain right into the text of the Constitutional Charter, as far as it may be favoured by jurisprudential interpretation, is always a choice that requires a vast majority, to guarantee a broad democratic consensus. Therefore, whenever a government decision is likely to invade the sphere of constitutionally (and internationally) guaranteed fundamental rights, it is an obligation of the decision-making body to carefully assess the potential impact on human rights of the measure to be adopted: when the requirements related to the protection of fundamental rights are not taken into account in any way by the deciding authority, the measures adopted by the latter will inevitably be open to challenge for violation of human rights.
In this sense, constitutionally established fundamental rights operate as limits or content constraints on the otherwise absolute will of majorities and their protection is the very prerequisite of democracy.
Indeed, the will of the electorate is only authentically expressed if it is free, and for it to be so, in addition to the right to vote, everyone must be guaranteed the exercise of fundamental freedoms: of thought, of the press, of information, of assembly and of association. These freedoms, on the other hand, are only effective if they are in turn supported by the guarantee of social rights to positive benefits, that is, to subsistence, health, education. Without the protection of these rights and the fulfilment of the public obligations corresponding to them, both political rights and fundamental freedoms would remain on paper: there is no participation in public life without a guarantee of the minimum subsistence, nor the formation of conscious wills without education and information 48. Therefore, the protection of fundamental human rights requires the judge to rule even if it conflicts with the specific law. Through this system, the democratically elected political majority cannot achieve the suppression or limitation of fundamental rights: in this essential balancing of State powers lies the very survival of democracy.
The fundamental human right to a healthy environment, which is now enshrined in many Constitutions, expressly recognised by the United Nations General Assembly (UNGA) and by the European Court of Human Rights, becomes the indispensable guarantee of the minimums necessary to be able to participate in public life. Climate change, pollution and loss of biodiversity impair or impede the attainment of people’s human rights, such as the right to life, health, food, water, or adequate housing. Therefore, they represent a direct threat to democracy 49 that requires the Courts to rule in its defence by the broad interpretation of the instruments provided by the law to ensure environmental protection and by ordering public authorities to take concrete action.
V. Conclusions
The trend that has been emerging for some decades now, both in supranational Courts and in the supreme Courts of European and non-European countries, is that of recognising in the environment an essential element for the wellbeing of the individual, a prerequisite for fully enjoying fundamental rights such as life, health and family life.
This progressive recognition, now also present in many Constitutions all over the world, has a crucial importance for future generations, insofar as constitutional principles have a universal value, are placed above political debate and have the capacity to offer protection to minorities, granting them judicial tools for protecting their fundamental rights. From this perspective, the constitutional right to a healthy environment has particularly important implications on the power that can and must be exercised by judges in protecting it and in requiring public authorities to take concrete action in its defense.
As we have seen, however, there is a great debate on the limits of judicial power in the protection of the environment vis-à-vis the other powers of the State. Many Authors define the attitude of the Courts, particularly in climate litigation, as a form of ‘activism’, inappropriate for a democratic system, where only the legislature has the power to choose the policy to balance opposing interests such as economic and employment development, competition and environment. The increasingly frequent convictions of governments for failing to take adequate measures to reduce polluting emissions and the flexible interpretation of crucial aspects of climate litigation, such as legal standing, causal link, and indirect coercive measures, have often been criticised.
Beyond the questionable generalisation of the concept of ‘jurisprudential activism’, where the principle of the separation of powers must be declined in relation to the country involved from time to time, the very qualification of a healthy environment as the object of a fundamental and constitutionally protected human right justifies and requires the ‘injunctive’ attitude of judges towards legislators. Indeed, if we consider the right to a healthy environment as an essential element for the wellbeing of the individual and we give it the same value as the right to life or the right to health, its protection becomes a fundamental requirement for the free exercise of all civil and political rights and, ultimately, for the protection of the entire democratic system. Therefore, judges have a duty to protect it.