Pitfalls in Promoting Environmental Rights

Environmental rights are frequently proposed as a means towards enhancing environmental protection. In the absence of the status conferred by recognition as rights, environmental interests are seen as inferior to other interests. Indeed, initiatives designed to achieve environmental benefits can be obstructed by competing interests which hold the ‘trump card’ of legal rights, both substantive (for example, the need to respect property rights) and procedural (for example, the need to provide time-consuming due process before legal rights are interfered with). The recognition of environmental rights seems a step forward, enabling environmental interests to compete equally with others as opposed to being a secondary consideration. The thrust of this deliberately contrarian paper is that there are dangers in trying to respond by ‘levelling the playing field’ in this way. The nature of environmental concerns is such that that they are not conducive to a rights-based approach and engaging in a battle of rights will not secure the priority and respect needed to avoid continuing environmental degradation.