Review By Benjamin J. Richardson

November 4, 2013

BC Studies no. 179 Autumn 2013  | p. 241-243

While Canada has lapsed from being among global leaders to an embarrassing laggard of environmental law reform in the past decade despite an intensifying ecological crisis — the work of its environmental law intellectuals is as feisty and insightful as ever. David Boyd’s twin books, The Right to a Healthy Environment, and The Environmental Rights Revolution, exemplify some of the finest environmental law scholarship available today. Boyd, who is inter alia an Adjunct Professor in the School of Resource and Environmental Management at Simon Fraser University, explores in these interrelated volumes the role of environmental rights and their constitutionalization in empowering change. His overarching research question is whether environmental provisions in national constitutions, and in particular the right to live in a healthy environment, matters.  Whereas The Right to a Healthy Environment mainly addresses the Canadian context to this challenge, The Environmental Rights Revolution illuminates the lessons of other countries such as Costa Rica and Ecuador, where some have made great strides in enshrining fundamental rights to a healthy environment as a means of leveraging wider reforms and changes in social values to promote sustainable development. In advancing his thesis, Boyd masterfully combines a savvy understanding of the theoretical underpinnings of environmental rights with a nuanced analysis of their application in practice.

These books sit within a wider renaissance of scholarly interest in the capacity of human rights to reinvigorate environmental governance, which in recent decades had lost some of the momentum established by the pioneers Professors Christopher Stone and Joseph Sax who wowed us in the 1970s with such unsettling questions as “should trees have standing” in our courts? Faith in a rights-based approach to environmental law reform dissipated in many jurisdictions when inclusion of environmental protection provisions in constitutions (e.g., Soviet Union and China) at best tended to be merely symbolic and, at worst, to disingenuously deflect attention away from appalling environmental management.

Boyd invites us again to be confident that entrenchment of environmental rights in constitutions and other peremptory laws can yield practical benefits. His research is infused with a wealth of data about the correlations between the existence of such rights and improved national environmental performance. In particular, his books help verify whether and how environmental rights facilitate more robust environmental legislation, strengthen its implementation and enforcement, facilitate environmental justice through greater public involvement and accountability, and level the playing field with potentially competing socio-economic rights.

Boyd’s message for Canadians is particularly poignant. Canada has been ranked by various surveys, from those of the OECD to the David Suzuki Foundation, as having among the least favourable performance on various environmental indicators. In The Right to a Healthy Environment, Boyd includes a draft Canadian Charter of Environmental Rights and Responsibilities that distils his thinking about the constituent elements of the necessary reforms needed at home. But, then again, even the world’s most seemingly progressive environmental societies, such as reputedly among some of the Scandinavian countries, are probably not on a truly ecologically sustainable path – they just appear to be relatively better. Better environmental rights likely are not enough.

The challenges in overcoming unsustainability arguably go well beyond the empire of environmental law. Humankind’s environmentally bleak prognosis was etched thousands of years ago, as documented by environmental historians such as Jared Diamond, Tim Flannery, and John NcNeil. Its precise causes are hard to fathom, but evolutionary psychologists are helping to pinpoint some explanations in factors such as humankind’s modest capacity for cooperation and altruism beyond our immediate familial and tribal affinities, as well as our cognitive biases against acting for the long-term.

Boyd’s brilliant scholarship gives us ideas that could help us turn things around, but salvation will surely also require more comprehensive and systemic changes in many other areas of human endeavour from the market to the forces of globalization. If we consider examples where profound changes in human values has occurred — notably the animal welfare movement, the improving status of women, abolition of slavery and the rise of the democratic ideal — in each case law gave impetus to reform, but many other factors were also influential.

Overall, Boyd’s writings should appeal not only to enthusiasts of environmental law but also a wider audience interested in environmental decision-making and sustainable development in Canada and abroad. More than any other Canadian legal scholar, Boyd has helped highlight through these books the special allure and enduring importance of environmental rights and evidence of their shift from mere lofty goals to tools for leveraging meaningful improvements in our environmental well-being. Boyd is to be admired for going beyond the somewhat tiring rendition of theory, found in some scholarly writing in this area, to an empirical approach that documents the legal and extra-legal effects of constitutional environmental rights. He gives us more hope.

The Right to a Healthy Environment: Revitalizing Canada’s Constitution
By David R. Boyd 
Vancouver: UBC Press, 2012. 336 pp. $29.95 paper

The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment
By David R. Boyd 
Vancouver: UBC Press, 2012. 468 pp. $34.95 paper