1 Introduction
Environmental law and governance have taken many different forms in the Americas in response to climate change mitigation. This chapter describes recent developments in the United States (U.S.), Colombia, and Brazil, highlighting the divergent approaches to climate protection. Notwithstanding the rhetoric of rights in the popular imagination, rights-based approaches have never driven policy in the United States, either in the context of environmental and climate policy or otherwise. Nor has popular will often impelled government action. Nor for that matter has the U.S. tended to be swayed by international winds. Instead, the U.S. tends to rely on a combination of market-based approaches and administrative enforcement of broad legislative principles to advance well-being, in the belief that markets, rather than political or judicial elites, are more likely to be responsive to both existing conditions and popular will. The Inflation Reduction Act of 2022, which contains the most innovative and ambitious climate mitigation goals in the country’s history, exemplifies this approach.
Elsewhere in the Americas, however, rights-based approaches have held sway as constitutional courts have been especially responsive to individual and collective claims for environmental protection and climate change mitigation. This has taken the form of increasingly robust environmental constitutionalism. In particular, the courts of Colombia and Brazil have been global pioneers in the recognition of environmental and even climate rights to galvanize political action. Colombia’s Constitutional and Supreme Courts have for many years protected environmental rights as part of an integrated web of human rights including rights to food, water, shelter, health, education and dignity for indigenous and non-indigenous communities. Brazil’s judiciary has been equally committed to environmental protection. In the summer of 2022, the Brazilian Federal Supreme Tribunal held that the obligation to comply
2 Climate Accountability in the United States
In 1981, President Ronald Reagan announced his vision for his presidency in his first inaugural address by boldly declaring: “Government is not the solution to our problem; government is the problem.”1 This echoed another popular president, John F. Kennedy who, in his inaugural address twenty years earlier, invited his “fellow Americans” to “ask not what your country can do for you – ask what you can do for your country.”2 These phrases resonate in the American psyche and reinforce a particular relationship between people and the government, one that looks to private entrepreneurs rather than public servants to address problems that Americans face. Thus, the American government is mostly a negative one, designed to stay out of the way, more than to engage helpfully in the lives of citizens. And that view has remained largely static from the nation’s 19th century founding to today, even while the rest of the world has demanded more of their governments and bent the arc of sovereignty around the needs of human and ecological dignity.
2.1 Strong Constitutionalism across the Globe
It is perhaps easiest to see the basic structure of American constitutionalism in relief against the backdrop of constitutionalism in the modern world. For most of the world, including Europe, the Americas (outside the United States), Asia, and much of Africa, states are set up, according to their constitutions, to provide for some version of the good life for their citizens.
For present purposes, the extent and quality of the satisfaction of these promises is not as important as the fact that people expect governments to commit to them and may seek to hold them responsible if they fail to provide. In these countries, the state is looked not only to pass laws and execute them, not only to provide for national security, and to protect economic interests, but to do so in a way that promotes human dignity (mentioned in 161 constitutions4); indeed, some constitutions identify the promotion of dignity as the foundation of the constitutional order,5 or as the very purpose of the state: for example, the Peruvian Constitution asserts that “The defense of the human person and respect for his dignity are the supreme purpose of the society and the State,”6 and the Dominican Republic puts it this way: “The State bases itself on respect for the dignity of the person and organizes itself for the real and effective protection of the fundamental rights that are inherent to it. The
Insisting that states take responsibility for the dignity of people is also evident in Europe at the national and regional levels, where political and judicial bodies routinely use their authority to solve the problems of the day, whether they be economic, social, or political.8 Here, the very purpose of state sovereignty is to bring about the good life, as Pascal Lamy put it during the conference, both by protecting people from threats (whether they be environmental or anthropogenic or both) and by ensuring that every person is able to live with a modicum of dignity, or a minimum existence.9 In this view (as described by some of the participants in this conference), the government is not the barrier to international cooperation but its conduit, harnessing (differentiated) sovereign power to address (common) global and regional challenges.
Thus, for most nations on earth, given the varied situations in which people live and the pervasiveness of poverty and discrimination throughout the world, the line between the positive and negative obligations of the state are blurred. This understanding of constitutionalism can be transformative, as the very purpose of the constitutional state evolves over time, always in the direction of “social progress and better standards of life in larger freedom,” as the UN Charter proclaims.10
2.2 Thin Constitutionalism in the United States
This is not so in the United States, whose constitution is famously old and terse. It does not protect against discrimination (as the so-called “Jim Crow” era proved in mandating racial segregation and injustice from cradle to grave well into the post-war era); it includes no social, economic, cultural, or
This is all by design. Perhaps the U.S. is unique in having been established by people who did not believe in a strong central government, but rather by slave owners and mercantilists who believed that the less the government did, the more they would prosper. The United States government was designed precisely to keep the peace among the states while ensuring that men could profit financially without concern for the burden it would impose on any others in present and future generations. It was established not to respect human dignity but to allow commerce (including the slave trade) to thrive, to allow states to establish their own rules of conduct (including allowing the establishment of churches, the genocide of native populations, and again the ownership, rape and abuse of other human beings). If there were problems to be solved, the drafters of the national constitution left them to the states to address. The entirety of the national legislative power in the original constitution is contained in 429 words
One might think that under such circumstances, the courts charged with constitutional application and implementation would ensure that the constitution was relevant to the conditions and needs of the times by interpreting it as a “living instrument,” as Colombia and the European Court of Human Rights (ECtHR) do,18 or as a “living tree” in the Canadian sense.19 But for most of its history, the United States Supreme Court has taken the opposite view. Rather, it has held tight to the view of the Constitution that many of its framers had: that the limits of federal authority must be strictly adhered to, to ensure maximal opportunity for capitalist enterprise. In the last 10 years alone, as the world has witnessed with increasing alarm the devastation that climate change produces, the U.S. Supreme Court has consistently withheld authority from the federal government to protect the environment, in favor of private interests.20
Thus, the Supreme Court has usually adhered to a historic view of constitutional application, thereby closing avenues to demand more of government than a few elite men from over 200 years ago would have wanted. Procedurally as well, the Supreme Court has more often closed the doors to the courthouse than opened them: it has developed extraordinarily high barriers to establish standing, for instance, and has never developed the kinds of procedures accepted in other countries to hold government accountable, such as Brazil’s claim for noncompliance, or Colombia’s tutela action, discussed below. Furthermore, among the 20th and 21st century innovations that the Supreme Court has rejected is the integration of international, and especially international human rights, law into its domestic constitutionalism. While some
The United States’ deeply rooted commitment to a limited national government is not necessarily a rejection of popular will. Rather, it could be seen as a choice to understand popular will as reflected in market choices rather than as the product of electoral decisions. Through its spending power, the Congress can advance a social policy not by compelling behavior (with all the bureaucracy and consistency and expense of enforcement that regulation requires in order to be effective) but by providing additional choices to people about how, when, and how much to comply and by incentivizing, rather than compelling, policy choices. Using its spending power, Congress can offer financial benefits to those who choose a certain course of conduct over another – essentially offering carrots to those who change their behavior rather than using stick against those who do not. For instance, in the last few years, the Congress has used not its regulatory authority but its spending power to accomplish systemic health care reform,24 respond to the economic crisis resulting from the covid crisis,25 and improve infrastructure.26 In a certain sense, this too advances dignity by enhancing opportunities for agency and reasoned decision-making and limiting regulatory compulsion. It is too early to tell if this approach is
2.3 A Market-Based Approach to Climate Change: the Inflation Reduction Act of 2022
In 2022, the United States Congress adopted landmark legislation designed to mitigate and adapt to the impacts of climate change in a way that is aligned with American (U.S.) sensibilities about the role of the federal government in responding to major social issues and adhering to faith in the markets over faith in government regulation to solve social problems.
Many things about the legislation have garnered attention. First, the spending commitment is enormous: most estimates put it at $369 billion,27 but some estimate that the overall impact could be as much as $800 billion.28 Second, it is the private sector, rather than government, that is expected to do the work of mitigation29 (just as Presidents Kennedy and Reagan suggested it should
It will not be known for some time whether the promises of the legislation will be fulfilled. But it is quite likely to be more effective in moving the American economy in a more environmentally sensitive direction than would
3 The Right to a Healthy Environment in Brazil: the Decision in psb et al. v. Brazil (on Climate Fund)
In Brazil, the scenario is quite different. Brazil has adopted in 1988 – after the end of the military dictatorship – a carefully crafted constitutional right to a healthy environment with an individual and collective dimension, as well as related responsibilities of governments (national and sub-national). This responsibility has evolved through decades of environmental litigation, and, more recently, through a growing trend of expanding climate litigation.
3.1 Brazil’s Environmental Constitutionalism
Among the fundamental rights enshrined in Brazil’s 1988 constitution is the protection of an ecologically balanced environment, which is essential to the quality of life and belongs to present and future generations.
Relatedly, the right to a healthy environment sets a positive duty of the government and other stakeholders to defend and protect the environment for present and future generations. As a fundamental right, and therefore different from ordinary duties arising from the relationship with the respective rights and those directly set by the legal text, the right to a healthy environment requires effective implementation through infra-constitutional regulation. Minister Herman Benjamin, a judge at Brazil’s superior tribunal, clarifies that one of the characteristics of environmental law in Brazil is that the right and correlated duty have an ‘aversion for empty discourse.’ Environmental law is, therefore, ‘a legal discipline of result, that is only justified by what it reaches, definitely, in the social framework of degrading interventions’.38
3.2 Political Backsliding and Judicial Engagement
This positive duty became even more pressing during the recent widespread backsliding of environmental and climate laws and policies during Jair Bolsonaro’s administration. Bolsonaro, who served as Brazil’s president from 2019 to 2022, was criticized for his stance on the environment and his efforts to roll back protections for the Amazon rainforest and other critical ecosystems.39 One of Bolsonaro’s main priorities was to boost economic growth and development, and he took a series of steps to relax environmental regulations and open protected areas for exploitation. This included weakening enforcement of environmental laws, emptying capacities of environmental bodies, reducing the size of protected areas, excluding civil society organizations from participation in environmental policy, reducing the resources available to environmental agencies, and weakening Brazil’s environmental and climate
The environmental rollbacks by the federal government resulted in a significant increase in ghg emissions.42 Placed within the wider context of deregulation of environmental laws, this has led certain political parties to bring a series of constitutional actions to the Brazilian Constitutional Court challenging state responsibility for the climate crisis. These cases, analyzed here, are part of a broader movement by civil society organizations that brought a series of climate litigation cases in Brazil, demanding compliance with the obligations established in national legislation and international law, and implementation of public policies to protect the environment, including concerning the climate crisis.43 During the period 2022–2023, the Constitutional Court analyzed environmental and climate cases (the “Green Agenda”), marking a historical moment that established the court as a climate action actor.44 The cases bring an abstract review of constitutional law before the Supreme Court in light of an apparent conflict between federal law, state law, or other normative acts and the federal constitution. These types of concentrated control cases, or abstract cases, are characterized by “abstraction, generality, and
3.3 The Incorporation of Climate Treaties into Domestic Law: the Supranational Obligation to Mitigate Climate Impacts
The case analyzed here was brought in 2020 using a constitutional mechanism called Claim for Noncompliance with a Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental – adpf). In 2019, political parties filed adpf 708, requiring the Brazilian government to combat climate change as part of their constitutional right to a healthy environment. In particular, plaintiffs claimed that Climate Fund payments had not been disbursed. Brazil’s Climate Fund was created in 2009 as a financial instrument of its National Policy on Climate Change.46 Its annual budget is to be allocated to projects and studies aimed at mitigating and adapting to climate change. However, in 2019 and 2020, the Bolsonaro administration failed to allocate the available resources. Therefore, the plaintiffs sought a declaration of ‘unconstitutional omission’ against the paralysis of the Fund’s operations and governance and an injunction compelling the government to reactivate the Fund.
Grounded in the right to a healthy environment, the case specifically challenges the procedural duties of the state as it pertains to its political accountability in the context of climate change (i.e., providing reliable scientific information on climate change, transparency of policies and allocation of funds, and participation of communities in climate policies).47 The plaintiffs argued that the government’s failure to fulfill its obligations to reduce greenhouse gas emissions and protect the environment resulted in negative impacts on the health and well-being of the Brazilian people and jeopardized ecosystems and essential ecological processes. In July 2022, the Supreme Court found, in an unprecedented decision, that the Paris Agreement is a human rights treaty and that, as such, has supra-national status that binds the political
When the Paris Agreement was negotiated, there was much disagreement about the extent of its commitment to human rights. In the end, human rights were relegated to a passing reference in the preamble, which notes that ‘climate change is a common concern of humankind’ and ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’.49 While the former UN special rapporteur on human rights and the environment, John Knox, has previously argued that the Paris Agreement is a human rights treaty,50 the Brazilian court is the first to recognize it as such formally.
Furthermore, the Supreme Court clarified that environmental law treaties constitute a particular type of human rights treaty, which enjoy ‘supranational’ status. This ‘supralegality’ of human rights treaties means that they are above ‘ordinary’ laws in the legal hierarchy.52 Thus, according to the decision, there is no legally valid option to simply not act in the fight against climate change.53 If a law passed by Congress conflicts with a provision of a human rights treaty, the human rights treaty (and based on this ruling, environmental and climate treaties) prevails. In practice, the law in question is overridden by the treaty. Accordingly, any Brazilian law or decree that contradicts the Paris Agreement, including the Nationally Determined Contributions, may be invalidated. Any action or omission contrary to this protection directly violates the constitution
The government had contended that the Climate Fund, deriving from Brazil’s international commitments within the scope of multilateral treaties on climate change, does not bind the government to its mandatory compliance since it is not a Brazilian law. However, the majority ruled that climate protection is a constitutional value. As such, the government’s constitutional environmental protection mandate is not a discretionary political decision but a mandatory obligation.
Justice Barroso, writing for the majority, also emphasized the role of the Court in preventing setbacks to the protection of fundamental rights.58 This, too, is a binding obligation and not a matter of ‘free political choice’. The court determined that the executive must allocate resources to operate the Climate Fund, curing its intentional and wrongful omissions in violation of Articles 225 and 5, § 2, of the Federal Constitution.59
3.4
De Azevedo et al. argue that the adpf 708 case mandates the duty to efficiently allocate the Fund’s resources to preserve its original function.60 This advancement can avoid the mismanagement of funds intended for mitigation and adaptation. Furthermore, the decision contributes to unravelling the much-needed climate finance to a net zero transition in Brazil’s economy.61 The resources from the Climate Fund (estimated to be around R$ 1.1 billion) are, therefore, essential in ensuring the implementation of policies to increase Brazil’s ambition.
This case and others like it have advanced the argument that the climate system should be understood as an integral part of an ecologically balanced environment.62 Plaintiffs have increasingly argued that the effectiveness of the fundamental human right to a healthy environment depends, at least in part, on climatic conditions that enable a dignified life.63 The diversity of constitutional human rights cited in climate disputes demonstrates the essential interdependence between the right to an ecologically balanced environment and other fundamental rights.64 There is a close correlation between Article 225 and several other fundamental rights in Brazilian climate cases: the rights to life (Article 5), health (Articles 6 and 196), and free enterprise (Article 170) – the latter lists environmental defense as one of its guiding principles (Article 170, item vi) – as well as the rights of indigenous peoples (Article 231), children and adolescents (Article 227). The rights of indigenous populations are invoked mainly in cases seeking to combat the advance of deforestation in Brazil. The violation of native communities’ rights also draws attention to the unequal impact of climate change on indigenous peoples due to their close relationship with and dependency on the natural environment. In line with the terms of Advisory Opinion 23/2017 of the IACtHR, the right
The decision in the adpf 708 case has been widely recognized as the most important judgment on climate litigation in Brazil to date.66 Environmental advocates have hailed it as a significant victory, underscoring the importance of using the courts to address the pressing issue of climate change. The case has been commended for its role in addressing the urgent problem of climate change and is considered a landmark in the field of environmental law, setting a precedent for similar cases worldwide. Its significance lies in its contribution to Brazil’s efforts to combat climate change and its impact on the constitutional interpretation of the right to a healthy environment.
Specifically, the adpf 708 case provides practical implementation of the right to a healthy environment by clarifying its scope and meaning in relation to climate change and the mismanagement of funds essential to tackling the climate crisis. It is therefore an important development in the constitutional interpretation of the right to a healthy environment. Procedurally, the case has enabled direct engagement with the constitutional court, providing a more effective way to promote access to justice and ensure that the matter is dealt with rapidly. This is in contrast to an ordinary action, which would likely take years to reach the constitutional court. Subsequent actions that rely on the Paris Agreement and seek to ensure its implementation can now draw on the constitutional interpretation of the right to the environment provided by the Court, which is more favorable to pro-climate plaintiffs.
4
Colombia’s 1991 Constitution was groundbreaking in the country’s civil law tradition.
The Constitution also established the Constitutional Court (cc) as the court of final review of all constitutional law issues73 and created an expedited judicial mechanism specifically designed and exclusively applied to the protection against the violation or threat of violation of fundamental individual rights.
A second device to assert constitutional rights is the acción popular.80 This device was intended to allow any person, regardless of standing or particular interest in the matter, to bring action to protect collective rights and interests, including the right to a healthy environment.81 Notably, unlike the tutela, the acción popular does not convey the same preferential treatment. It must comply with standard rules of procedure and is not subject to judicial review by the Constitutional Court. As a result, many claims regarding the protection of the environment are often delayed in time. However, if a fundamental right of individual nature is being threatened or violated in tandem with the right to a healthy environment, the case will acquire priority due to related actions criterion (conexidad) and can be heard via the tutela.82 Due to the increasing recognition of the link and interdependence between the right to a healthy
Hence, the entirety of the judicial branch in Colombia hears fundamental rights cases, resulting in diverse and progressive decisions throughout the country. Sometimes these decisions coincide in their overall interpretation of the situation, whereas other times contradictory decisions have been made, which has occasionally led to turmoil and unrest. In any case, judges across the country have started to put forth innovative theories resulting in what can be called rights expansionism. The following subsection will dive deeper on what rights expansionism looks like in Colombia regarding environmental rights.
4.1 Rights Expansionism through Stakeholders’ Recognition
Colombia’s judiciary, remarkably the cc, is transformative and progressive, despite its civil law tradition.83 Colombian judges have shown openness towards expanding dominant visions of democratic constitutionalism and rights’ creation and interpretation to extend their benefits to historically marginalized groups.84 Rights expansionism in Colombia has taken many forms, one of which is the increasing recognition of subjects of rights outside the dominant standard. Colombia’s constitution is considered a living instrument and as such its judicial interpretation allows broadening its initial scope, albeit not without restriction.85 Furthermore, Colombia follows a monist tradition where international agreements and treaties ratified by the country acquire a constitutional status in the country’s normative hierarchy, in addition to the comprehensive bill of fundamental rights.86 In particular, international human rights law has acquired a privileged position in Colombia’s legal framework, where human rights have precedence over domestic norms and human rights treaties should act as interpretative guides for the realization of all constitutional rights and duties.87 This is predominantly relevant to environmental rights since Colombia is signatory and has ratified most of the international and regional commitments on environmental protection and climate action.
Since its inception, the cc has used progressive approaches to constitutional law. In one of its first decisions, the court asserted its competence to determine
4.1.1 Rights of Nature: Rivers, the Amazon and Ecosystems
In Colombia, courts have granted legal rights to specific ecosystems, such as the Atrato River,
Significantly, the cc went beyond the customary recognition of human rights violation of plaintiffs and expanded this protection to the Atrato River. The cc ordered the recognition of the river as a subject of rights invoking the ecological nature of the Colombian Constitution.91 The cc concluded that the superior interest of nature could be explained through an ecocentric perspective, where nature is considered a right-bearing entity and where plural worldviews take center stage.92 The cc supported this decision
Following this recognition of the rights of nature and relying almost entirely on this decision, the Supreme Court also recognized the Amazon rainforest as a subject of rights in the Future Generations case studied in the following section. This judicial reasoning has been echoed by other domestic judges who have furthered the rights of nature paradigm to accord rights to different ecosystems and features of nature throughout the country, including moors, national parks and other rivers.
4.1.2 Children, Youth and Future Generations
Usually, the judicial apparatus is set into motion by adults. Children and youth are often regarded as mere victims, whose rights need to be protected by adults who file actions on their behalf. However, in recent years children and youth have started to take matter into their own hands appearing before the courts and international negotiation bodies to demand protection of their rights.96 They have also brought up the need to protect the rights of generations yet to come, especially as it relates to the enjoyment of a healthy environment as a precondition to the enjoyment of other human rights.97
One of the first decisions adopted in favor of children, youth and future generations’ rights is the 2018 Colombia’s Supreme Court decision known
The Supreme Court’s rationale is supported on the recognition of the ‘Other’ as a rights-bearing entity that extends not only to every other person, animal or plant species on the planet, but also to future generations.101 The Supreme Court emphasized that the rights of future generations to access natural resources should be protected from violation.102 In doing so, the Supreme Court developed a dual reading of environmental intergenerational equity: one the one hand, it is based on the ethical duty of solidarity, and on the other on nature’s intrinsic value,103 particularly the Amazon basin deemed the ‘world’s lung’.104 Hence, the Supreme Court recognized the Amazon basin as a subject of rights that is a vital ecosystem of global importance. The Supreme Court then concluded that the Colombian state’s failure to curb deforestation violated human rights and international climate commitments, such as the Paris Agreement, of present and future generations.105
4.2 Coherent Constitutionalism: the Opportunities and Pitfalls of Colombia’s Environmental Constitutional Expansionism
Colombia’s rights expansionism is constantly evolving. Every year, new tutelas are filed, creating new opportunities for judicial transformative activism. But despite its many promises, constitutional rights expansionism also confronts some hurdles. This section will provide an overview of both benefits and challenges of constitutional expansionism as it relates to environmental rights protection from a Colombian perspective. This overview is not exhaustive but aims to outline the current state of Colombia’s constitutionalism as an avenue for future research.
As Colombia deals with socio-economic development in the midst of the triple planetary crisis, environmental issues are at the core of the country’s social conflicts.107 Environmental issues are among the most salient root causes of the internal armed conflict, which has lasted more than five decades.108 Unequitable access to land and natural resources fueled the conflict, and the climate and environmental crises exacerbate these precarious conditions.109 Furthermore, historically marginalized communities remained excluded from decision-making spaces while suffering the hardest consequences of
Perhaps as a result, environmental constitutional expansionism appears as a way to coherently address the conflation of these complex problems. Particularly, in the aftermath of the recognition of the Atrato river as a subject of rights, and despite some implementation issues, the river’s legal guardians have noticed a significant improvement in policymaking. The cc’s ruling acknowledged the multiple forms of life expressed through cultural diversity and sought to integrate them to the ecosystem and territories’ diversity.112 Protection of one (biodiversity) would undoubtedly imply protection of the other (cultural diversity). Thus, environmental governance in Colombia is experiencing changes that move towards a more inclusive governance model where environmental protection is deeply intertwined with cultural protection.113 Formerly marginalized communities are taking center stage in the collective construction of the plans to restore the Atrato river’s ecosystem.114 Likewise, the intergenerational plan envisioned by the Supreme Court to protect the Amazon basin from deforestation is expected to conflate different voices, especially from those most affected and historically neglected.
Moreover, Colombia’s environmental constitutional expansionism seems to aim towards protection of the environment in and of itself, but also in relation to its importance to the enjoyment and realization of other human rights. This expansionism aims to tackle intra-and intergenerational justice, seeking to guarantee the rights of present and future generations in the context of the climate crisis and social conflict. Protecting the rights of subjects previously outside of the dominant gaze (nature, children, future generations, armed conflict actors, etc.) could prevent fueling new and old conflicts, while achieving climate-related goals. Nonetheless, further research and discussion is needed to fully understand the effects of granting rights to nature on the existing fundamental and human rights, particularly those of marginalized communities.
Some critics argue that this openness should have limits, otherwise we may risk denaturation and weakening of the concept of fundamental rights.116 Scholars state that an unrestricted proliferation of rights could diminish human dignity by affecting the separation of powers or states’ capacity to guarantee fundamental rights.117 Openness implies an active judiciary role, which could overstep other government branches affecting the overall constitutional fiber. Scholars have warned against judicial activism that oversteps other branches of the government threatening democratic institutions.118 Additionally, new rights impose burdens and demands on the state powers that if unmet, may hinder the protection of rights as a whole.119 New rights could also threaten other fundamental rights by diluting their significance.120 Nonetheless, these challenges do not imply that rights should be static or reduced (as they are in the United States). Rights are, and should be, open and dynamic. An active and progressive judicial approach is beneficial, especially if done within the framework of constitutionalism. These concerns may be overcome by approaching openness with caution and allowing it to evolve progressively and in alignment with other rights obligations. Future research could develop criteria to test emerging constitutional rights and how they interplay with existing rights in a way that is coherent.
5
The creativity and forcefulness of the Brazilian and Colombian judiciaries, in the service of climate protection, is a model of human and environmental rights protection, though not one that the United States courts are likely to adopt any time soon. The Brazilian court imagined new legal relationships between the different levels of government necessary to commit to the environmental rule of law, holding that an environmental treaty aimed ultimately at protecting human rights globally, was binding on the national sovereign authorities; it integrated the commitments made internationally into a holistic and comprehensive vision of the nation’s constitutional commitments to its own people and to the world. For their part, the Colombian courts have reimagined how different stakeholders, including human and non-human rightsholders, could all be integrated so that a multiplicity of interests and perspectives converge in the service of environmental protection for present and future generations. The United States, meanwhile, holds fast to its antiquarian view of what people can expect of their government but may, in the end, find its own way to mitigate the impacts of climate change by incentivising changes in behavior from the ground up and through the entire social economy.
President Ronald Reagan, Inaugural Address (January 20, 1981) available at
President John F. Kennedy’s Inaugural Address (National Archives, 1961) <
Constitute Project, <
Constitute Project, <
Latvia (1922) was the first to do so: “Latvia as democratic, socially responsible and national state is based on the rule of law and on respect for human dignity and freedom; it recognises and protects fundamental human rights and respects ethnic minorities.” (Preamble) and “The State shall protect human honour and dignity.” (Art. 95). Latvia Constitution of 1992, reinstated in 1991 with Amendments through 2016 (1992), <
Constitución Política del Perú (1993), Art. 1. <
Constitución Política de la República Dominicana (2010) Title ii Chapter i Section i Art. 38 Human Dignity, <
As the democratically elected European Parliament explains: Members of the European parliament “fight against new and old attacks on essential liberties. … Some of these freedoms are as old as Europe: life and liberty, thought and expression. But others have had to be redefined to keep pace with the times. Protecting personal data or prohibiting human cloning were far from the minds of the first elected meps, some four decades ago.” European Parliament, <
For the German concept, see I. Leijten, ‘The German Right to an Existenzminimum, Human Dignity, and the Possibility of Minimum Core Socioeconomic Rights Protection’ (2015) 16(1) German Law Journal 23–48. doi:
United Nations Charter (1945) Preamble, <
The equality right simply prohibits a state from denying “equal protection of the laws,” (Amends. v and xiv) but it has been interpreted to prohibit only intentional discrimination (Washington v Davis, 426 U.S. 229 (1976)) and only where the government cannot justify the discrimination, and only on the basis of race and a very few other characteristics. There is no right to privacy, Dobbs v Jackson, and there is no right to vote in federal elections, but simply a prohibition of discrimination in the right to vote on the basis of race (Amend xv), sex (xix), wealth (xxiv), or age over 18 (xxvi).
United States Constitution, Art. i, s. 8, <
The Affordable Care Act was invalidated as an exercise of the interstate commerce power and upheld only as an exercise of the federal power to spend. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
As the Supreme Court explained in striking down a law that would have prevented people from bringing guns to school zones: “We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. i, § 8. As James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292–293 (C. Rossiter ed. 1961). … The Constitution … withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation. See Art. i, § 8.” United States v. Lopez, 514 U.S. 549, 552, 567 (1995).
None of these guarantees a right to vote; rather, they all prohibit the denial of the franchise on account of sex (Amend. xix), poverty (Amend. xxiv), and age for people over 18 (Amend. xxvi).
United States Constitution (n 12), Amend. xxvi (prohibiting denial or abridgment of the right to vote of 18-, 19-, and 20-year olds on account of their age).
Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) 26 (1978) at para. 31: “The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review.”
Reference Re Same Sex Marriage, 2004 scc 79 (CanLII), para. 22: “[O]ur Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
See Los Angeles County Flood Control Dist. v. nrdc, 568 U.S. 78 (2013) (limiting epa’s authority under the Clean Water Act); Utility Air Regulatory Group v. epa, 573 U.S. 302 (2014) (limiting epa’s authority under the Clean Air Act to treat greenhouse gases as a pollutant for certain purposes); Michigan v. Envtl. Prot. Agency, 576 U.S. ___ (2015) (requiring epa to consider corporate costs in the decision whether to regulate power plants); West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (limiting epa authority to regulate power plants).
Earthjustice, “Supreme Court Catastrophically Undermines Clean Water Protections,”
nrdc, “What the Supreme Court’s Sackett v. epa Ruling Means for Wetlands and Other Waterways: How the twisting of words in the Clean Water Act spells disaster,” quoting the epa, at
See, e.g. South Africa Constitution, Art. 39.1: “39. Interpretation of Bill of Rights: When interpreting the Bill of Rights, a court, tribunal or forum a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b. must consider international law; and c. may consider foreign law.” The Constitution of the Republic of South Africa (1996) <
Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111–148, 124 Stat. 119 (2010).
h.r.1319 – 117th Congress (2021–2022): American Rescue Plan Act of 2021, h.r.1319, 117th Cong. (2021), <
h.r.3684 – 117th Congress (2021–2022): Infrastructure Investment and Jobs Act, h.r.3684, 117th Cong. (2021), <
According to the Secretary of the Treasury, “The Inflation Reduction Act is the single most significant legislation to combat climate change in our nation’s history, investing a total of $369 billion to help build a clean energy economy. Nearly three-quarters of that climate change investment – an estimated $270 billion – is delivered through tax incentives, putting Treasury at the forefront of this landmark legislation.” ‘Treasury Announces Guideline on Inflation Reduction Act’s Strong Labor Protections,’ (US Department of the Treasury, 29 November 2022) <
“In fact, Credit Suisse estimates total federal spending at double the headline figure – to over usd 800 billion – sending the total public and private spending mobilized by the ira to nearly usd 1.7 trillion over the next ten years.” ‘US Inflation Reduction Act: A catalyst for climate action’ (Credit Suisse, November 2022) <
See ibid: “The public spending will likely trigger private sector investment (i.e. the “leverage effect”). The multiplier generally ranges from 1.1x to 1.6x2, meaning for every dollar of public spending, at least 1.1 dollar would be spent by the private sector. Subsidized lending from the Department of Energy’s loan program and Greenhouse Gas Reduction Fund (i.e. green banks) will supercharge green financing.”
“Multiple independent analyses show the bill will reduce U.S. greenhouse gas emissions some 40% below 2005 levels by 2030, a big step toward President Biden’s goal of cutting them in half by 2030.” Fred Krupp, ‘The biggest thing Congress has ever done to address climate change’ (Environmental Defense Fund, August 2022), <
erm, ‘Issue Briefing: “Inflation Reduction Act of 2022: Climate and Energy Provisions”’ (erm, October 2022), <
“Under a business-as-usual scenario (without the ira), the U.S. would be expected to reduce greenhouse gas (ghg) emissions by between 24% and 35% by 2030 compared to 2005 levels. This reduction is a far cry from the 50–52% reduction target set in the latest U.S. nationally determined contribution (ndc). With the passage of the ira, ghg reductions are expected to reach 31% to 44% by 2030. When combined with renewed ambition from executive agencies like the epa and Department of Agriculture, as well as states and cities, the Rhodium Group’s modeling suggests that the U.S. can meet its ndc commitment.” Melissa Barbanell, ‘A Brief Summary of the Climate and Energy Provisions of the Inflation Reduction Act of 2022,’ (World Resources Institute, October 2022) <
Michael Stavish, Gabe Rubio & Lisa Kieth, ‘esg and the Inflation Reduction Act of 2022,’ (bdo USA, October 2022), <
Ibid.
Constituição da República Federativa do Brasil (1988) art. 225, <
See, e.g.: (1) Case Antonio de Andrade Ribeiro Junqueira, Supreme Court, Writ of Mandamus [Mandado de Segurança – ms 22164/sp], Merits. Judgment 30.10.1995. 1155–1190; (2) Case Partido Progressista – pp, Supreme Court, Declaratory Action of Constitutionality [Ação Declaratória de Constitucionalidade – adc 42/df], Merits. Judgment 28.02.2018; (3) Case Associação Nacional dos Procuradores do Trabalho – anpt, Supreme Court, Direct Action of Unconstitutionality [Ação Direta de Inconstitucionalidade – adi 4066/df], Merits. Judgment 24.08.2017; (4) Case Presidente da República, Supreme Court, Claim for Noncompliance with a Fundamental Precept [Arguição de Descumprimento de Preceito Fundamental – adpf 101/df], Merits. Judgment 24.06.2009; and (5) Case Procurador Geral da República, Supreme Court, Direct Action of Unconstitutionality [Ação Direta de Inconstitucionalidade – adi 3540/df], Court judgment on injunction (medida cautelar). Judgment 01.09.2005. 408–475.
See ibid Case Antonio de Andrade Ribeiro Junqueira.
Antônio Herman Benjamin, Direito Constitucional Ambiental Brasileiro (Saraiva, 2010).
Barnabé Lucas de Oliveira Neto, ‘Da lama ao caos: o retrocesso da política e liderança ambiental do Brasil sob o governo Bolsonaro’ (2022) 25(2) Novos Cadernos naea 59.
isa, ‘A anatomia do desmonte das políticas socioambientais’ (Instituto Socioambiental, January 2019), <
gaier, ‘R. V. Bolsonaro diz que pode retirar Brasil do Acordo de Paris se for eleito’ (uol, September 2018), <
Joana Setzer, Guilherme JS Leal, & Caio Borges, ‘Climate Change Litigation in Brazil: Will Green Courts Become Greener’ in Ivano Alogna, Christine Bakker & Jean-Pierre Gauci (eds), Climate Change Litigation: Global Perspectives (Leiden, Boston: Brill Nijhoff, 2021) 143–172. isbn: 978-90-04-44761-5 (e-book).
Julia M. Neiva & Gabriel AS Mantelli, ‘¿Existe un enfoque brasileño para los litigios climáticos? La crisis climática, la inestabilidad política y las posibilidades de litigio en Brasil’ in C. G. Rodríguez (ed) Litigar la emergencia climática, (Ciudad Autónoma de Buenos Aires: Siglo xxi Editores Argentina, 2022) 393; 403; Alessandra Lehmen, ‘Advancing Strategic Climate Litigation in Brazil’ (2021) 22(3) German Law Journal 1471; 1472.
Política Por Inteiro, ‘Pauta verde no stf abre caminho para retomar a política climática brasileira’ (Política por Inteiro, March 2021) <
The heads of the executive power at the federal and state levels, legislative powers at the federal and state levels, the Attorney General of the Republic, the Brazilian Bar Association, political parties, and trade union confederation or class entities. Art. 103, Brazilian Constitution n 34.
Maria A. Tigre, ‘Brazil’s First Climate Case to Reach the Supreme Court’ (OpinioJuris, October 2020). <
Gabrielle Albuquerque, Gabrielle Tabares Fagundez, & Roger Fabre, ‘Emergência Climática e Direitos Humanos: o caso do Fundo Clima no Brasil e as obrigações de Direito Internacional’ (2022) 19(1) Brazilian Journal of International Law 126.
psb et al. v. Brazil (on Climate Fund) (adpf 708) <
Conference of the Parties, Adoption of the Paris Agreement, Dec. 12, 2015, U.N. Doc. fccc/cp/2015/L.9/Rev/1 (Dec. 12, 2015), Preamble. <
John Knox, ‘The Paris Agreement as a Human Rights Treaty’, in Dapo Akande and others (eds), Human Rights and 21st Century Challenges: Poverty, Conflict, and the Environment (Oxford, 2020).
Maria A. Tigre, ‘Advancements in Climate Rights in Courts Around the World’ (Climate Law Blog, 2022) <
Antonio M. Maués, ‘Supra-Legality of International Human Rights Treaties and Constitutional Interpretation’ (2013) 10(18) International journal on human rights Sur, [English edition]: 205–223. <
Moreira, D.A. et al., Rights-based climate litigation in Brazil: An assessment of constitutional cases before the Brazilian Supreme Court, Journal of Human Rights Practice (forthcoming, 2023).
De Azevedo et al., ‘O Fundo Clima e as lições do Ministro Barroso’ (Migalhas, June 2022) <
Ibid.
adpf Nº 708, Supremo Tribunal Federal, 01.07.2022, 8 <
Id., at 2.
Caio Borges, ‘stf reconhece Acordo de Paris como tratado de direitos humanos (e por que isso importa)’ (re/set, July 2022) <
Danielle de Andrade Moreira, Litigância climática no Brasil: argumentos jurídicos para a inserção da variável climática no licenciamento ambiental. (Coleção Interseções. Série Estudos, Rio de Janeiro: Editora puc-Rio, 2021) isbn: 978-65-88831-32-8 (e-book). <
The UN Special Rapporteur on Human Rights and the Environment has already recognized the interdependence and the impact of the climate crisis in the enjoyment of human rights (UN General Assembly 2019: 18–24).
Maria A. Tigre & Natalia Urzola, ‘The 2017 Inter-American Court’s Advisory Opinion: Changing the Paradigm for International Environmental Law in the Anthropocene’ (2021) 12(1) Journal of Human Rights and the Environment 24–50.
Isabella Kaminski, ‘Brazilian court world’s first to recognise Paris Agreement as human rights treaty’ (Clima Home News, 2022) <
Luz Estella Nagle, ‘Evolution of the Colombian Judiciary and the Constitutional Court’ (1995) 6(1) Indiana International and Comparative Law Review 59–90; 60.
“[A] social state under the rule of law, organized in the form of a unitary republic, decentralized, with autonomy of its territorial units, democratic, participatory, and pluralistic, based on the respect of human dignity, the work and solidarity of the individuals who belong to it, and the prevalence of the general interest”. Elizabeth Macpherson, et al., ‘Where ordinary laws fall short: ‘riverine rights’ and constitutionalism’ (2021) 30(3) Griffith Law Review 438–473, 448 doi: 10.1080/10383441.2021.1982119
Chris Thornhill & Carina Rodrigues de Araújo Calabria, ‘Global Constitutionalism and Democracy: The case of Colombia’ (2020) 2 Jus Cogens 155–183; 161.
Constitution Política de Colombia (1991), art. 4 and 5, and Title ii. <
Ibid., art. 79, 80 and 81. Also included in arts. 1, 2, 8, 49, 86, 88, 95, 333, 366.
Colombian Constitution n 69, art. 86. See also Decree 2591 of 1991 for further rules of procedure. <
Ibid.
Ibid., art. 33.
Ibid.
Ibid., art. 88. See also Law 472 of 1998 for further rules of procedure. <
See, e.g., Constitutional Court Decision T-341/16 (2016), <
Ibid.
Colombian Constitution n 69, arts. 11–15, 93. See also Rodrigo Uprimny, ‘The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges’ (2011) 89 Texas Law Review 1587–1609; 1591.
Ibid. at 165.
Constitutional Court of Colombia, Judgment T-622/16, 10 November 2016 (Atrato River Case unofficial translation) <
Paola Andrea Acosta Alvarado & Daniel Rivas-Ramírez, ‘A Milestone in Environmental and Future Generations’ Rights Protection: Recent Legal Developments before the Colombian Supreme Court’ (2018) 30(3) Journal of Environmental Law 519–526; Paola Villavicencio Calzadilla,. ‘A Paradigm Shift in Courts’ Views on Nature: The Atrato River and Amazon Basin Cases in Colombia’ (2019) 15 Law, Environment and Development Journal 1–11 <
Ibid., para 9.30.
Ibid., para 6.9 and 6.10. See also Phillip Wesche, ‘Rights of Nature in Practice: A Case Study on the Impacts of the Colombian Atrato River Decision’ (2021) 33(3) Journal of Environmental Law 531–555; 539,
Luisa Gómez-Betancur, Sandra Vilardy & David Torres, ‘Ecosystem Services as a Promising Paradigm to Protect Environmental Rights of Indigenous Peoples in Latin America: the Constitutional Court Landmark Decision to Protect Arroyo Bruno in Colombia’ (2022) 69 Environmental Management 768–780; 769 <
Luisa Gómez-Betancur, ‘The Rights of Nature in the Colombian Amazon: Examining Challenges and Opportunities in a Transitional Justice Setting’ (2020) 25(1) ucla Journal of International Law and Foreign Affairs <
June Flora & Connie Roser-Renouf, ‘Climate Change activism and youth’, in Patrizia Faustini (ed). The Challenges of Climate Change: Children on the front line (Innocenti Insights unicef, 2014) <
ohchr, ‘Children at the forefront of climate action urge focus on child rights’ (ohchr, March 2017) <
Joana Setzer & Lisa Benjamin, ‘Climate Litigation in the Global South: Constraints and Innovations’ (2020) 9(1) Transnational Environmental Law 77, 87.
Corte Suprema de Colombia, Andrea Lozano Barragán y otros v. Minambiente y otros, 11001-2203-000-2018-00319-01, 5 April 2018 <
Ibid 49.
Ibid 19.
Ibid 20.
Ibid 19.
Ibid 30.
Ibid 37, 39–41.
Ibid.
Natalia Urzola & Maria P. González, ‘When two crises collide: the effects of climate change in the Colombian environmental peacebuilding process’ (Agency for Peacebuilding, June 2021),<
This is evidenced in the commitments reached by the 2016 Peace Agreement signed between the Colombian government and the guerrilla farc-ep. Furthermore, other conflicts are still ongoing in Colombia with other actors. See, generally, Natalia Urzola, ‘Derechos de la Naturaleza: un camino hacia la construcción de paz ambiental en Colombia’ in Jurisdicción Especial para la Paz, Conflicto armado, medio ambiente y territorio: Reflexiones sobre el enfoque territorial y ambiental en la Jurisdicción Especial para la Paz (Bogotá D.C., 2022) 49–85 <
Ibid.
Natalia Urzola & Maria P. González, ‘Gender-based Environmental Violence in Colombia: problematizing dominant notions of gender-based violence during peacebuilding’ (2022) 48(2) Australian Feminist Law Journal 5, <
Ibid., at 540, 544.
Ibid., at 547.
Luisa Netto, ‘Criteria to Scrutinize New Rights: Protecting Rights against Artificial Proliferation’ (2020) 8(1) Journal of Constitutional Research 11–75; 12 doi:
Ibid., at 34.
Ibid.
Laura Burgers, ‘Should Judges Make Climate Change Law?’ (2020) 9(1) Transnational Environmental Law: 55–75; 58. doi:
Ibid., at 37.
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