By Florence Humblet, 2020 LL.M
During the fall term, I attended the seminar “Food Systems and US Environmental Law” taught by Professor Peter Lehner. For many years, I had been interested in food policy, notably due to some personal health problems. This interest had however been oriented towards public health rather than the environment, but did you know that global livestock production is responsible for about one-fifth of all greenhouse gases – more than transportation? According to Professor Lehner, the Food System, from agricultural production and distribution to consumption and waste, shapes our environment, climate, and public health. Never before had I realized these issues intersected so exquisitely. This was a signal moment for me. In the context of the current climate change crisis, I wanted to learn more about the Food System’s impact.
As part of this seminar, I wrote a paper on “subnational environmental constitutionalism in the agricultural sector.” In other words, I examined the extent to which the right to a healthy environment, enshrined in US states’ constitutions, can impact the agricultural sector. I found the relationship between the environment and human rights to be a fascinating topic.
What was even more incredible was the way the constitutions of Pennsylvania and Montana particularly stood out in my research. Is the US not seen internationally as “skeptical” about protecting the environment? Have they not announced their official withdrawal from the Paris Climate Agreement? Yet, the constitutions of these two states guarantee a “real right” to a healthy environment, defined as an inherent personal freedom, imprescriptible and inalienable, which implies the responsibility of the public authorities and also that of each citizen who contributes to the environment by his/her/its behavior. Why not adopt this view in my home country, Belgium?
Yes, Belgium has a constitutional right to a healthy environment in its constitution (Article 23). However, its application remains in practice subject to the legislature’s goodwill. Without direct effect, citizens cannot take legal action to defend the environment itself. The current Climate case, namely the legal action brought by the NGO Klimaatzaak against the Belgian authorities, is a good example. The environmental defense is only invoked on an ancillary basis to protect the right for private and family life, and does not therefore stand on its own.
Following this eye-opening discovery, I wrote a note in the Belgian newspaper, La Libre, to share my research and to propose amending the Belgian Constitution to include such an enforceable right to a healthy environment. As an additional tool for citizens, this would also have a favourable impact on climate policies. The Achilles heel of environmental law remains its lack of effectiveness. Citizens are therefore naturally called to play an active role in the defence of the environment. The judge is also at the service of the effective scope of this constitutional change. In Belgium, an increase in his/her powers is not considered to be “a threat to the separation of powers.” Citizens’ suit encourages citizen participation in political debates for the benefit of all and enhances climate justice. So, let’s give them the tool to act now.
The Pennsylvania and Montana jurisprudential experience has indeed shown the importance of this legal tool for further protecting the environment. Lawyer Maya Van Rossum, who brought the environmental cases in Pennsylvania, strongly supports it. In 2017, she launched the “Green Amendment Movement” dedicated to encouraging each American community to mobilize for a constitutional change. Ultimately, this research demonstrates the beauty of comparative law and the great opportunity of studying law abroad, such as an LL.M at Columbia Law School.
Florence is a student from Belgium. She is a Research Assistant to Professor G. Bermann, Staffer of the Columbia Journal of European Law, Board Member of the Columbia International Arbitration Association, Officer of the Columbia Arbitration Day and Member of the 2020 Columbia Capstone Team. Next academic year, she will start a PhD on the Relationship between Ecological Sustainability and Human Rights, Climate Change Adaptation and the Role of EU Environmental Standards in the EU External Action.