Environmental Rights

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 46-60

46

CHAPTER 3

ENVIRONMENTAL

RIGHTS

A. THE CONSTITUTIONAL STATUS OF

ENVIRONMENTAL QUALITY

The issue of whether constitutional protection in the form of environ-

mental rights (or for some level of environmental quality for human or

possibly even non-human populations) does or can exist raises legal

analysis to a high plane of abstraction. The attraction of rights or con-

stitutional safeguards for environmental interests lies in the improved

position of environment in the legal hierarchy in both practical and

symbolic ways. Proponents envisage environmental rights as a philo-

sophical and practical advance that would not only acknowledge the

fundamental importance of environmental preservation as a public

value, but also facilitate enforceability by helping to overcome existing

obstacles to environmental protection. These obstacles include con-

straints on opportunities for participation in judicial and administra-

tive decision making, broad delegations of discretion to government

officials, and the significant weight or priority accorded to property

interests in cases of conflict with other values of the community.

Subcategories of environmental rights are sometimes recognized

on the basis of a distinction between procedural and substantive rights,

with the former being confined to safeguards for the participation of

environmental advocates and the latter implying some actual change in

priorities and therefore in the expected outcome of environmentally