From Environmental Rights to Environmental Rule of Law: A Proposal for Better Environmental Outcomes
Authors: Scott Jessica 
Published: February 2022

With the recent lead contamination crisis in Flint, Michigan, the unfavorable United States country report of the former United Nations Special Rapporteur on the human right to safe drinking water and sanitation seems prescient. The Special Rapporteur’s report highlighted the problem of drinking water contaminated from lead pipes and the disproportionate burdens Black Americans face in accessing safe drinking water. The report argues that the U.S. should address these issues by explicitly recognizing a human right to safe drinking water and sanitation under U.S. law.

Like the Special Rapporteur, much of the literature and some environmental advocates call for environmental rights as a critical approach to improving environmental outcomes. Existing literature indicates that constitutional recognition of environmental rights is indeed correlated with superior environmental performance at the national level. However, there are numerous examples of countries with constitutional environmental provisions that have poor environmental performance, and there are notable examples of countries without environmental rights, like the United States, that have relatively strong environmental performance. With certain tragic exceptions like Flint, Americans enjoy near-universal access to safe and reliable drinking water and sanitation services (by the Special Rapporteur’s own admission). On the other hand, countries like Egypt, Bangladesh, and Senegal have constitutionally recognized environmental rights, but have inferior environmental performance.

Why does a country like the U.S. have relatively good environmental outcomes, despite its failure to recognize a right to a clean environment? And to improve a country’s environmental performance, should environmental advocates focus on recognition of environmental rights, or on something else? This Article argues that rule of law is the answer to both of these questions. Rule of law is a broad concept that includes the accountability of the government under the law; the clarity, stability, fairness, and public nature of laws; the accessibility, fairness, and efficiency of the process by which laws are enacted, administered and enforced; and the competence, independence, and ethics of adjudicators, attorneys, and judicial officers.

This Article presents an empirical analysis demonstrating that there is a correlation between countries with strong rule of law and superior environmental performance. This correlation is in fact a stronger correlation than that between environmental protection provisions in constitutions and environmental performance. This Article argues that these results can be explained by a variety of considerations, including that: 1) rights are meaningless without the ability to exercise them; 2) rule of law ensures that civil society can get the most out of whatever environmental laws and rights exist in any given legal system; and 3) rule of law measurements capture more information than a simple assessment of whether a right is on the books. This Article concludes by suggesting that environmental advocates should shift their focus from working towards greater recognition of environmental rights to strengthening rule of law.