James R. May, Esq. is Distinguished Professor of Law and Founder of the Global Environmental Rights Institute at Widener University Delaware Law School.
James R. May, Esq. is Distinguished Professor of Law and Founder of the Global Environmental Rights Institute at Widener University Delaware Law School, former Visiting Professor and Haub Visiting Scholar at the Elizabeth Haub School of Law at Pace University, and recipient of the American Bar Association’s Award for Distinguished Achievement in Environmental Law and Policy. His books include Environmental Human Rights and the Anthropocene, Encyclopedia of Human Rights and the Environment, Principles of Constitutional Environmental Law, and Global Environmental Constitutionalism. May is a Fellow of the American Bar Foundation and the American College of Environmental Lawyers.
This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II the authors explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, they provide examples of the extent to which courts have enforced these provisions. In Part IV, they examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V they suggest modalities for successful constitutional environmental litigation of constitutionally enshrined environmental rights.
The authors conclude that judicial receptivity to fundamental environmental rights provisions embedded in domestic constitutions seems to belie predictable patterns. They also conclude that no single explanation emerges for the relative dearth of cases giving force to these provisions. Although courts have not been as enthusiastic to embrace environmental rights as some activists would have liked, there is noticeable and steady progress toward their growing recognition in courts throughout the world. And as constitutional courts become more aware of what their peers are doing, this momentum is likely to increase. Moreover, even where courts have not accepted the constitutional environmental arguments, the mere fact that such arguments are being made and considered augments the attention that constitutional fundamental environmental rights receive in public discourse. And this, in itself, can meaningfully contribute to the success of environmental claims in the future. The result is that collectively the judiciary will continue to play a necessary if not sufficient role in the vindication of fundamental environmental rights worldwide.
Environmental citizen suits matter. In 1970, borne in a fulcrum of necessity due to inadequate resources and resolve, and borrowing a bit from common law qui tarn without the bounty, Congress experimented by providing citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce the Clean Air Act (CAA). And enforce they do. Despite ever more cascading burdens respecting notice, jurisdiction, preclusion, actions against EPA and third parties, remedies, SEPs, and attorney fees, there are more reported environmental citizen suits than ever. On average, citizens send more than one notice of intent to sue a day, and file more than one lawsuit a week. These efforts help advance the rule of law and keep agencies honest. But there are signs citizen suits are needed now more than ever. EPA is referring fewer cases to DOJ. Trend data shows EPA civil judicial settlement, the value of injunctive relief, judicial and administrative penalties, and SEP values are in overall decline. Even without these considerations, environmental enforcement is losing ground. This article concludes by explaining the need and worth of environmental citizen suits.
The idea that every human being has a right to a clean and healthy environment has caught the imagination of people across religious, cultural, constitutional, national, and continental divides. What, though, is the case for environmental human rights? This question incorporates many others, including whether there is or ought to be a human right to a healthy environment; where and how it should be recognized; how to implement it; and the extent to which it causes or correlates to improvements in outcomes. Simply, the case for environmental human rights is complicated and complex. There are normative, ethical, and moral justifications that both the planet and people living on it are better off in a world that recognizes a right to a healthy environment. Reflecting this, a majority of nations already do so, and the effort for international recognition is gaining momentum. Ultimately, however, while it is compelling, the case for environmental human rights has shortcomings that warrant consideration and further analytical interrogation.
Human rights and environmental protection are closely intertwined, and both are critically dependent on supportive legal opportunity structures. These legal structures consist of access to the courts; ʻlegal stockʼ or the set of available standards and precedents on which to base litigation; and institutional receptiveness to potential litigation. These elements all depend on a variety of social, political, and economic variables. This book critically analyses the complexities of uniting human rights advocacy and environmental protection. Bringing together international experts in the field, it documents the current state of our environmental human rights knowledge, strategically critical questions that remain unanswered, and the initiatives required to develop those answers. It is ideal for researchers in environmental governance and law, as well as interested practitioners and advanced students working in public policy, political science, and environmental studies.
Much has been written, discussed, advocated and litigated about human rights and the environment over the last two decades. This comprehensive volume of the Elgar Encyclopedia of Environmental Law offers fresh perspectives to the conversation by focusing on four subjects that shed new light on the subject of environmental human rights: the challenges of identifying the fundamental legal sources for the protection of human rights and the environment, the recognition of the indivisibility of human rights and environmental law, the centrality of the right to human dignity as the lodestar of human rights law, and the uniqueness of geographic particularities.
Principles of Constitutional Environmental Law offers a comprehensive account and analysis of the growingan—and increasingly important—intersection of constitutional and environmental law. Chapters are written with the goal of providing an accessible account of emerging constitutional issues valuable to academics and practitioners alike. Each chapter begins with a practice tip relevant to the material that follows, and ends with a case study that provides the story behind a case mentioned earlier in the chapter.
The book begins with the editor's introduction to the field of constitutional environmental law, illuminating the canon of case law that interprets the Constitution in innumerable environmental contexts. Chapter authors are drawn from private practice, academics, and government, providing an invaluable and balanced resource for virtually any constitutional question that may arise in environmental law.
This thought-provoking introduction provides an incisive overview of dignity law, a field of law emerging in every region of the globe that touches all significant aspects of the human experience. Through an examination of the burgeoning case law in this area, James R. May and Erin Daly reveal a strong overlapping consensus surrounding the meaning of human dignity as a legal right and a fundamental value of nations large and small, and how this global jurisprudence is redefining the relationship between individuals and the state.
Presentation in which Professor May discusses the fact that environmental outcomes and human dignity are inexorably linked. Adverse environmental conditions can adversely affect the realization of the spectrum of civil, political, and socioeconomic rights that advance human dignity. Lack of access to potable water, for example, diminishes the ability to work or learn, care for family, or participate in governance.
International law has danced with environmental dignity, but only episodically and perfunctorily without much benefit to either the environment or those adversely affected by it. Most progress at the junction of dignity and the environment has been jurisprudential. Instead of languishing somewhere offstage, Professor May argues that human dignity ought to play a prominent role in influencing environmental policy and outcomes internationally, regionally, and domestically.
Human dignity is the essence of what makes us human. Human dignity recognizes and reflects the equal worth of each and every member of the human family, regardless of gender, race, social or political status, talents, merit, or any other differentiator. It is an idea that has been around for millennia, but only in the last few decades has it come to be recognized as a legal right that can be claimed in court. In this webinar, professors of law and founders of the Dignity Rights Project, Erin Daly and James R. May, explore the significance of dignity law and how their casebook, Dignity Law: Global Recognitions, Cases, and Perspectives, can be adopted in law classrooms to encourage discussion of this newly emerging and increasingly important area of law.
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Constitutions provide a framework for social order. They also reflect a paradox. While constitutions are usually the product of a convulsive event of majoritarian democracy, most contain antimajoritarian features designed to protect so-called fundamental rights against the tyranny of the majority. Traditional fundamental rights, such as those found in the Bill of Rights to the Constitution of the United States, include protecting for its citizens free speech, religious exercise, and voting rights. Does a fundamental, enforceable, individual right to a clean and healthy environment belong in the pantheon of fundamental constitutional rights? This article discusses the extent to which nations worldwide have constituted such “fundamental environmental rights” (FERs).