Fundamental rights to breathe clean air, drink clean water, and eat safe food

The ConversationDo we have a fundamental right to breathe clean air, drink clean water, and eat safe food? The idea of environmental human rights is receiving growing attention worldwide, driven by our global ecological crisis. But the United States has lagged behind in codifying these rights into laws and in successfully furthering them.

While this may seem like an issue for legal scholars, it has very real importance for regions like Appalachia, where I work. Coal mining has caused widespread ecological and health damage here for more than a century, alongside other industries such as chemical manufacturing and, recently, natural gas production.

Many Americans elsewhere view Appalachia’s environmental health conditions with ambivalence or outright classist indifference, and some have written us off as a “national sacrifice zone.” But our environmental struggles echo conflicts over the Dakota Access pipeline, the Niger River Delta oil fields, and other places that are trying to limit harms from extractive industries.

In my work and in a recent Oxford Human Rights Hub podcast, I have proposed reframing Appalachia’s concerns as a struggle for “environmental human rights”—the idea that all people are entitled to a healthy environment. Characterizing these problems as violations of environmental human rights can open up new and more robust legal remedies. It also means that environmental harms will be viewed more vigorously as moral issues. We view them that way at West Virginia University College of Law’s new Appalachian Justice Initiative, which is working to secure a better future for our region.

A new legal frontier

The idea of environmental human rights dates back to the environmental movement of the 1960s and 1970s. It follows other, more established conceptions of human rights, such as civil and political rights andeconomic, social, and cultural rights, and often is classified as part of a so-called third generation of “newer” human rights.

Few international agreements explicitly refer to environmental human rights. At the national level, however, more than 100 countries around the world have constitutions that enshrine environmental rights to some degree, including Brazil and Kenya.

Only some U.S. states, including Pennsylvania and Hawaii, have constitutions that explicitly incorporate environmental rights. What is more, these provisions were largely established decades ago and have haduneven success in their enforcement.

Appalachia’s environmental challenges

Appalachia is a classic exemplar of the natural resource curse”—a theory developed by social scientists to explain why some places that are rich in extractable resources fail to develop. According to this view, outside capital interests that control these resources—in Appalachia, Big Coal—wield vast power, and often “capture,” or co-opt, regulatory agencies.

The coal industry has profoundly exploited our citizens and damaged our environment. The most extreme example is mountaintop removal mining—blasting off mountaintops to reach coal seams, and then dumping refuse materials into valleys. Across Central Appalachia, mountaintop removal has obliterated more than 500 mountains and 2,000 miles of ecologically crucial headwater streams.

Mountaintop removal produces numerous pollutants, including selenium, arsenic, and airborne pollutants released during coal extraction and processing. Studies have associated it with serious environmental health risks, including higher rates of birth defectscancercardiovascular disease,  and respiratory disease.

Coal mining is not the only challenge. Hydraulic fracturing for natural gas in the Marcellus Shale has been linked with negative health impacts. The 2014 Elk River chemical spill, which left 300,000 Appalachian citizens without potable water for up to nine days, spotlighted our aging industrial infrastructure and weak state regulation of industry.

Climate change also threatens our region. Many observers believe it played a role in historic West Virginia floods and Tennessee wildfires in 2016. It also may be contributing to the spread of infectious diseases such as Lyme disease.

Human rights and the environment in Appalachia

There are two categories of rights: substantive—things we are entitled to have—and procedural—things we are entitled to do. The core idea of environmental human rights is that people are entitled to live in a healthy, clean, and safe environment. Typically, societies honor these rights by passing laws that protect air, water, soil, and food. We also expect, particularly in democracies, that people should be able to obtain information, participate in decision-making, and seek legal remedies for environmental harms such as toxic waste spills.

Of course, laws and regulations are of little use if they are not robustly enforced. Pennsylvania adopted an amendment to its constitution in 1971 stating that “the people have a right to clean air” and “pure water.” It also requires the state to act as trustee of public natural resources “for the benefit of all the people.” For years Pennsylvania courts gave relatively light weight to this provision.

But in June, the Pennsylvania Supreme Court established a broader interpretation of the environmental amendment in an oil- and gas-related matter. This decision in a case that challenged the lucrative business of fracking was a heartening precedent, and shows the value of advocating for the people’s right to a healthy environment.

Seeds of resistance

Much media coverage of Appalachia is classist and one-dimensional. For example, during the 2016 presidential campaign the region was portrayed as a unified bloc of “Trump country,” although it actually is much moresocially and politically complex.

In fact, dense network of grassroots activists and ordinary Appalachian citizens has long contested environmental injustices, exemplified by the long and bitter fight against Big Coal. But these efforts seldom are acknowledged in the national media or leveraged into real and lasting legal reform.

Appalachia is not some “other America”: we are fundamentally interlinked with the United States.

However, local campaigns have won some important victories. Vigorous activism in the 1960s and 1970s directly contributed to passage of the Surface Mining Control and Reclamation Act of 1977—the first major federal law regulating the environmental impacts of coal mining. More recently, an array of state and regional organizationshave fought to secure at least partial federal court enforcement of environmental laws against mountaintop removal operations.

Appalachia is well-suited for a bottom-up, critically informed approach that focuses on human rights at the grassroots level. Discussing rights at the local level will give people opportunity to describe specific harms they have experienced from activities such as mountaintop removal and fracking. It also will help to promote participatory democracy for citizens who have long been denied real self-determination.

Environmental justice should be a central theme of this effort. As scholars have shown, environmental harms are not distributed evenly in society. Instead, marginalized groups typically suffer more heavily. In Appalachia and across the United States, environmental harms disproportionately affect low-income communitieswomenminorities, and older people.

Working together

The Appalachian Justice Initiative at West Virginia University will produce scholarship, conduct policy advocacy, and offer direct legal services and outreach to Appalachian communities. Our goal is to help people in our region call for laws and actions that actually guarantee the right to a healthy Appalachian environment.

Pursuing environmental human rights in Appalachia challenges counterproductive stereotypes about our region’s supposed isolation. Appalachia is not some “other America”: we are fundamentally interlinked with the United States and the wider world ecologically, economically, and socially.

Our challenges reflect the profound ills of a global economic regime that values perpetual growth over environmental and social justice. Advocating for environmental human rights in Appalachia can help reveal this essential truth and build a more just and healthy future.

This article was originally published by The Conversation. It has been edited for YES! Magazine. 

The Morality of Human Rights

50 San Diego Law Review 775 (2013) 

39 Pages Posted: 9 Jun 2013 Last revised: 22 Jun 2015 Michael J. Perry 

Emory University School of Law

[For a later version of material in this paper, see these two papers: “Human Rights Theory, 1: What Are ‘Human Rights’? Against the ‘Orthodox’ View” (2015), http://ssrn.com/abstract=2597403; “Human Rights Theory, 2: What Reason Do We Have, if Any, to Take Human Rights Seriously? Beyond ‘Human Dignity'” (2015), http://ssrn.com/abstract=2597404.]

In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality. That morality — which I call “the morality of human rights” — consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights.

I begin, in the first section of this essay, by explaining what the term “human right” means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, in some legal systems, “legal” rights and the sense in which all human rights are “moral” rights.

Then, in the longer second section, I turn to the inquiry that is my principal concern in this essay: Why should one take seriously the imperative that serves, in the morality of human rights, as the normative ground of human rights? That is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”?

This essay, the final draft of which will be published in a symposium issue of the San Diego Law Review, was my contribution to the conference on “The Status of International Law and International Human Rights” that was held at the University of San Diego School of Law on May 3-4, 2013, under the auspices of the School’s Institute of Law and Philosophy. Some of the material in this essay is drawn from my new book, Human Rights in the Constitutional Law of the United States (2013). Most of the material here that is not drawn from my book was first presented in a lecture I was honored to deliver at Santa Clara University in March 2013, under the auspices of the Bannon Institute of the Ignatian Center for Jesuit Education.

Perry, Michael J., The Morality of Human Rights (June 4, 2013). 50 San Diego Law Review 775 (2013); Emory Legal Studies Research Paper No. 13-240. Available at SSRN: https://ssrn.com/abstract=2274381 or http://dx.doi.org/10.2139/ssrn.2274381

The Appalachian Justice Initiative at the West Virginia University College of Law is a consortium of faculty and legal scholars dedicated to addressing economic disenfranchisement in Appalachia through legal scholarship, policy advocacy, legal services, and outreach.

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