Environmental Justice and Constitutional Morality

Written by: SIDRA KHAN, B.A.LL.B (2nd Year), Aligarh Muslim University 

Environmental justice demands fair treatment and participation of all people—particularly marginalised communities—in environmental law and policy. Its roots lie in movements like the 1982 Warren County PCB protests, where primarily Black residents resisted toxic waste dumping as a matter of social inequity and environmental harm. Constitutional morality speaks to the deeper ideals embedded in a constitution—justice, dignity, equity, and inclusion—and how they ought to guide both law and public discourse. Merging environmental justice with constitutional morality frames ecological issues not merely as bureaucratic or technical, but as fundamental matters of rights, fairness, and democratic values.

Constitutional environmentalism—where constitutions directly or indirectly guarantee environmental protections—has been used in India, South Africa, Ecuador, Germany, and parts of the U.S. In India, the Supreme Court developed a robust environmental rights jurisprudence under Article 21 (right to life), incorporating the precautionary principle, the public trust doctrine, and the polluter‑pays rule. South Africa’s constitutional courts have embraced transformative environmental constitutionalism, linking social justice, environmental protection, and vulnerable communities in a unified systemic vision. Ecuador went further: its 2008 Constitution recognised Rights of Nature, granting ecosystems the right to exist, regenerate, and flourish—enforceable justiciable rights aligned with indigenous concepts like buen vivir 

Recent cases echo these themes. Germany’s constitutional court ruled the national climate law insufficient in protecting future generations’ rights, requiring stronger emissions limits to uphold justice across time. In the U.S., Montana’s Supreme Court affirmed that the state violated constitutional rights by permitting fossil fuel projects without considering their climate impacts

Environmental justice demands that historically marginalised communities—often indigenous, low‑income, or racial minorities—receive equitable protection from environmental harm and meaningful participation in related decisions. It rejects the notion that toxic facilities, air pollution, or climate burdens are tolerable so long as they are directed toward those with less political or economic power.

 Constitutional Morality: Guiding Principles of Equity

Constitutional morality is the normative framework that reads constitutions (written or unwritten) not merely as texts but as living commitments to justice, dignity, equality, and democratic inclusion. It shapes how courts, lawmakers, civil society and citizens uphold constitutional ideals—especially when formal law is silent or limited.

When environmental justice is anchored in constitutional morality, ecological issues transform from technical policy problems into fundamental questions of rights, fairness, and participatory democracy.

Landmark Jurisprudence Around the World

India: Article 21 & Emerging Climate Rights

India’s constitutional courts have long recognised that the right to life under Article 21 includes the right to a safe, healthy, pollution‑free environment.

Examples include:

• Rural Litigation & Entitlement Kendra v. UP (Dehradun Quarrying): Held that environmental degradation violates life rights, closing hazardous quarries. The judgment applied precautionary and public trust doctrines under Article 21

• Vellore Citizens Welfare Forum: Introduced the precautionary and polluter‑pays principles as essential safeguards under Article 21, particularly in the context of tannery pollution in Tamil Nadu

• M. C. Mehta v. Kamal Nath (1996): Enforced public trust doctrine, quashed government‑enabled forest encroachments, and restored ecological balance along the Beas River M.C. Mehta v. Union of India (Taj Trapezium Zone): Banned coal‑based industrial activity near the Taj Mahal, applying precautionary, polluter‑pays and sustainable development principles under Article 21, 48A and 51A(g)

• M.K. Ranjitsinh v. Union of India (2021): India’s Supreme Court recognised a distinct fundamental right to be free from the adverse effects of climate change, drawing from Articles 48A and 51A(g) and integrating concerns about interdependence, species protection (Great Indian Bustard), equality under Article 14, and climate impacts on vulnerable populations.

This trajectory illustrates how constitutional morality reinterprets existing provisions to reflect evolving environmental realities.

South Africa: Transformative Environmental Constitutionalism

South Africa’s Constitution explicitly guarantees a right to a clean, healthy environment (Section 24) and prioritises values of transformative equality in rights delivery. Legal scholars and courts have advanced the doctrine of transformative environmental constitutionalism, linking environmental protection, socio‑economic justice, public participation and inherent dignity of life, even extending to ecocentric values

Illustrative cases:

• Company Secretary of Arcelormittal SA v. Vaal Environmental Justice Alliance: Courts enforced rights against private actors, underscoring transparency, access to information, and corporate accountability under constitutional values

• Thabametsi Coal Power Case: High Court struck down government approval of a coal power plant for failing to include climate‑impact assessments, relying on both constitutional environmental rights and the Paris Agreement—even without express statutory mandates

• Sustaining the Wild Coast I: Communities challenged offshore seismic survey licensing. The court recognised intersecting rights—environmental, cultural, procedural justice, indigenous identity—and ruled that flawed consultation violated constitutional process and environmental rights

These decisions embody constitutional morality by ensuring environmental governance does not entrench social inequities or exclude marginalised voices.

United States: Youth‑Led Constitutional Climate Litigation

In the U.S., several states explicitly guarantee environmental quality in their constitutions:

• Montana, under its constitution’s provision to “maintain and improve” a clean and healthful environment, became the first state in which youth plaintiffs argued that pro-fossil-fuel policies violated their constitutional rights. In the district court, Judge Kathy Seeley ruled in favour, and Montana’s Supreme Court upheld the decision that state laws barring climate impact consideration are unconstitutional. This landmark jurisprudence was celebrated as a possible precedent for other states and globally

These rulings highlight how constitutional morality frames climate stability as a generational rights issue, not merely policy.

 Why Merging These Ideas Matters

A. Rights Beyond Text

Constitutional morality empowers courts to read broad values—justice, dignity, equality—into provisions beyond their literal wording. It bridges gaps between written rights and lived realities, particularly in fast‑evolving domains like climate change.

B. Including Marginalised Voices

Environmental justice demands meaningful participation. Constitutional morality reinforces procedural fairness—public consultations, accessible information, culturally relevant engagement—to rebalance power in governance.

C. Equity & Interconnected Rights

Transformative environmental constitutionalism understands that environmental harms intersect with poverty, discrimination, and historical disadvantage. For example, climate effects disproportionately harm rural, indigenous, or economically marginalised communities.

D. Flexibility for Emerging Challenges

Strict legal text may be silent on issues like GHG emissions or species extinction. Constitutional morality gives courts the conceptual tools to interpret constitutions meaningfully amid new crises—like India’s Ranjitsinh case or South Africa’s Thabametsi ruling.

Toward Thoughtful & Inclusive Discourse

To foster a broader, inclusive debate around these issues, consider these principles:

1. Use Clear, Accessible Language. Explain legal doctrines (e.g. public trust, polluter‑pays) in common terms. Avoid jargon-heavy explanations—people should grasp that constitutional morality means applying deeper ethical commitments embedded in constitutional texts.

2. Center Lived Stories. Highlight how marginalised communities—farmers, coastal fishers, indigenous or rural women— experience environmental harm, and how that links to constitutional rights violations.

3. Encourage Participatory Platforms. Write about public hearings, community consultations, climate litigation by youth or indigenous activists as models of inclusive practice.

4. Connect Comparative Perspectives. Use examples from India, South Africa, Montana and beyond to show how universal constitutional values adapt across contexts and legal cultures.

5. Invite Diverse Voices. Include indigenous conceptual frameworks (e.g. buen vivir, ecological stewardship), feminist environmentalism, youth voices, and legal grassroots movements as integral to environmental justice and constitutional morality.

UNEP GUIDELINES ON CLIMATE JUSTICE

BALI GUIDELINES:

In 2023, the UNEP Governing Council, International Council of Environmental Law, and the Government of the Republic of Indonesia set out to support the implementation of the Bali Guidelines by developing a practical Guide to the Guidelines. In this endeavour, the UNEP Regional Office for Asia and the Pacific collaborates with the Government of the Republic of Indonesia, the Regional Capacity Building Project of the South East Asia Network and the Asia Pacific Centre for Environmental Law. The Guide to the Guidelines’ purpose is to support the discourse under the Bali Guidelines by developing the knowledge and capacity of the key stakeholders needed to implement the principles articulated in the Bali Guidelines, while also addressing their operational limitations. The Guide is meant to support the stakeholders in implementing the principles in a pragmatic and innovative manner and, in doing so, expand the discourse and practice of implementing the principles under the Bali Guidelines. Through the implementation of the principles under the Bali Guidelines, stakeholders will understand the principles’ pragmatic applications and operational value in addressing environmental issues.