Editor's Note: Call and Response Between Science and The Law of Rights

The law changes very slowly, often in response to crises. As you can imagine, this often means two things. The first is that the law does change. The second is that the slow rate of legal change means that justice delayed is justice denied.  In this issue of the Networker, we will tell stories of crises, legal changes, justice denied and justice finally given.

Those crises that instigate legal change? They forever change the future, particularly when law and policy recognize that the crisis must never happen again. 

The international community addressed the atrocities committed during WWII by adopting the U.N.’s Universal Declaration of Human Rights. We are now seeing a rapid evolution of environmental rights because of crises ranging from climate change and biodiversity loss to toxic chemicals. Lawmakers are heeding scientists’ warnings and responding to enormous public pressure.

Fifty years ago, after Rachel Carson warned about the dangers of pesticides in her book Silent Spring, several states in the U.S. adopted constitutional amendments that recognized the right to a clean and healthy environment. In those states, that right stands alongside other well-known rights such as freedom of speech or the right to assemble. 

Only six states have adopted the right to a clean environment although several states are considering adding it to their constitutions. Notably, on Nov. 2nd New Yorkers will vote on becoming the seventh state to assert the right to a clean environment as a constitutional matter.  “If approved by voters, the amendment will add a new section (19) to the state constitution in the Bill of Rights (Article I) that reads:  § 19. Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.”

If you think this is legal piecemeal and wonder why, if you are an Iowan, you don’t have the same rights as an Illinoisan or a Pennsylvanian, then you will welcome a landmark U.N. resolution passed in October 2021. This resolution recognizes the right to a “clean, healthy and sustainable environment” as a universal human right. While a U.N. resolution does not carry legal force, it does carry moral force.  It sets the standard for nation states’ law and policy. 

One of the most striking things about the U.N. resolution is that doesn’t just add the right to a clean environment to a list of separate rights, it asserts that this right is essential for all other human rights. It isn’t isolated and discrete. It isn’t one more right added to a list. It is the ground for all other human rights. Here’s the exact language: “Acknowledging the importance of a safe, clean, healthy and sustainable environment as critical to the enjoyment of all human rights…” 

The U.N. right is coupled with a responsibility on the part of government to guarantee a clean environment. Some states like Hawaii, have paired the right to a clean environment with the responsibility of the state to serve as a trustee of natural resources. Interestingly enough, the Hawaii Supreme Court required the use of the precautionary principle as a key mechanism to enforce the twinned constitutional right to a clean environment and the responsibility of the state to be a steward of the environment.

The U.N. resolution extends the right of a clean environment to future generations. “Recognizing that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights, including the right to life…”

In this issue of the Networker, we tell three inter-related stories as a call and response between science and the law of rights.

In our first story, SEHN’s senior scientist, Sandra Steingraber writes about the powerful open letter she sent with over 300 scientists to President Biden, sounding an alarm about climate change. Does it matter if scientists convey their alarm to presidents? At what point does law adapt to a crisis? 

Carmi Orenstein, SEHN program director, tells the second story. Reporting on a 1959 partial nuclear meltdown at the Santa Susana Field Lab (SSFL) in the Simi Hills outside of Los Angeles that was never comprehensively cleaned up, and a new study documenting spread of its radioactive contamination, Carmi provides an “object lesson in what happens when the right to a safe environment is not universally acknowledged and when secretive, long-forgotten toxic legacies of the Cold War meet the unpredictable chaos of the current climate crisis.” What rights does the community have and what duty do corporations and government owe to communities that have been denied a clean and healthy environment?

Finally, we invite you to tune in to a legal case brought by the Global Alliance for the Rights of Nature (GARN) in an international tribunal. I will be serving as a judge determining whether the rights of nature and of future generations are being violated by the lack of action on climate change. The tribunal will be held in conjunction with the world forum on climate change known as COP26.

The tribunal on the rights of nature points to the future of law and policy by recognizing that humans are not the only entities that should have rights. Visionary activists and scholars have claimed legal rights for rivers, wild rice, and forests. 

GARN says this about the rights of nature: “It is the holistic recognition that all life, all ecosystems on our planet are deeply intertwined.

Rather than treating nature as property under the law, rights of nature acknowledges that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles.

And we – the people – have the legal authority and responsibility to enforce these rights on behalf of ecosystems. The ecosystem itself can be named as the injured party, with its own legal standing rights, in cases alleging rights violations.”

Fifty years ago we began an odyssey of legal reformation in response to Rachel Carson’s clarion call about the threats to the natural world. The threats to the Earth’s systems are grave. The toxic legacy of chemicals and radioactive materials, climate change and the loss of biodiversity demands that we change our legal systems. Science and every code of ethics has given us a mandate to protect the rights of future generations, communities and the Earth itself. The law must follow.

By Carolyn Raffensperger,
Executive Director