A Healthy Environment Is a Duty, Not a Right

FROM A LEGAL POINT OF VIEW, WE CAN GUARANTEE SUSTAINABLE DEVELOPMENT ONLY BY POSITING THAT THE CURRENT GENERATION HAS AN OBLIGATION TO DELIVER A VIABLE PLANET TO FUTURE GENERATIONS

by Fabrizio Fracchia, Bocconi Department of Legal Studies
Translated by Alex Foti

The environment is at the top of the political agenda and at the center of media attention and people’s concerns today. Global warming and a circular economy, the Paris Agreement, the Pope's Encyclical Laudato si', the Urgenda lawsuit: due to pressures from the media and groups who directly experience the effects of climate change, nobody can afford to stay out of the climate conversation.

Everybody has a claim to a healthy environment, and the law, in its various forms, also strives to warrant such a legal situation, so that it can be petitioned in courts. But can we really claim rights vis-à-vis nature? Events such as major natural disasters (whose frequency is increasing) show that it is an illusion to have a legal right to a salubrious environment. One cannot legally contend he or she has a right to unspoiled environmental surroundings. And what happens when the environment is not "healthy" (think of dangerous animals) for human beings? The subjective perspective of law appears to be insufficient, nor can this deficiency be compensated by the hypocrisy of animal rights, for rights are human cultural constructs and man is the only bearer of such right (a tree can’t act in court, can it? And if it could, who would legally represent it?).

From a strictly legal point of view, we cannot abandon anthropocentrism. However, the problem stems from the fact the right to a healthy environment cannot be met in anthropocentric terms: it risks being a somewhat hypocritical tool, either incapable of attacking real problems or too powerful in the hands of a select few. On a more general level, then, it reflects the idea of a man as master of creation who claims the right to exploit nature and ends up devaluing everything that is not instrumental to the welfare of asset owners.

In fact, the truth is much simpler. For humans, the environment, even legally, entails not a right, but of a duty of protection, in the perspective of social responsibility. A cursory glance at the principles of ecology suffices to make one realize that they express the need of human duty towards the environment. Even animal protection is better ensured by enlarging our responsibilities, rather than invoking empty legal claims that nobody can ever exercise.

The discipline of the environment is thus literally of duties. The basic environmental principle behind all others is sustainable development, something which confirms the correctness of the perspective centered around duties for legal regulation of the environment: the legal framework must protect humankind; the current generation has the obligation to hand to future generations a global environment which isn’t worse than the one it inherited.
 
We need to move from the anthropocentrism of rights to the anthropocentrism of duties.
This is above all a cultural gap: we need to highlight our responsibilities as victims or aggressors. Faced with scientific uncertainty and the extraordinary complexity of the problem, this attitude requires people to act wisely and with extreme caution, each in their own specific field of action: environmental issues cannot be solved by the economy alone, nor by science, law or ethics; they require a joint societal effort on all fronts.

Speaking of respect for future generations, the prospect of indicating some of its members as the privileged spokespersons of the environment is not convincing. The Earth does not need representatives, but respect for its sufferings (any reference to the case of Greta Thunberg case is intentional).