From Environmental Rights to Environmental Rule of Law: A Proposal for Better Environmental Outcomes
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FROM ENVIRONMENTAL RIGHTS TO
ENVIRONMENTAL RULE OF LAW:
A PROPOSAL FOR BETTER
ENVIRONMENTAL OUTCOMES
Jessica Scott*
[L]egal recognition of a right is useless if it cannot be translated into a
victory in the field.'
ABsRACT
With the recent lead contamination crisis in Flint, Michigan, the unfavora-
ble 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 contami-
nated 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 envi-
ronmental outcomes. Existing literature indicates that constitutional recognition
of environmental rights is indeed correlated with superior environmental per-
formance at the national level. However, there are numerous examples of coun-
tries 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 perform-
ance. 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, Ban-
gladesh, and Senegal have constitutionally recognized environmental rights, but
have inferior environmental performance.
* Assistant Professor, Vermont Law School. The author would like to thank Robin
Kundis Craig, Patrick Parenteau, and Michael Dworkin, as well as the participants at
Vermont Law School's Colloquium on Environmental Scholarship, for their comments on
early drafts of this article. She thanks Noura Eltabbakh and Renee Valerie Fajardo for their
excellent research assistance. She is also grateful to Tseming Yang, Timothy Epp, Stephanie
Farrior, and Christine Cimini for insightful and informative conversations. Any errors are
the author's own. Finally, she thanks her husband, Abel Russ, for his support and
encouragement.
1. Antonio G. M. La Vifia, Right to a Balanced and Healthful Ecology: The Odyssey of a
Constitutional Policy, 69 PHD.. L.J. 127, 156 (1994).
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From Environmental Rights to Environmental Rule of Law: A Proposal for Better Environmental Outcomes
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