The Inter-American Court of Human Rights issued an advisory opinion finding that the right to a healthy environment is a human right. The opinion noted that the adverse effects of environmental degradation and climate change both affect human rights. This finding suggests that the right to a healthy environment may serve as a pathway for lawsuits brought in regard to climate change-related harms. The opinion further discussed the responsibility of governments for significant environmental damage that they cause within and beyond their borders.
The Court’s advisory opinion enables all States who recognize the jurisdiction of the Court—and the citizens of those countries—to file claims regarding environmental harms that impact their human rights. In such a case, the Court would assess whether the respondent State met three types of obligations:
1. Obligations to Prevent Environmental Damages:
States must: A) issue regulations to prevent damages, B) establish contingency plans to minimize the possibility of major environmental accidents, C) mitigate significant damage that has already occurred, and D) carry out environmental impact studies under the conditions indicated by the Court. The Court requires environmental impact studies to address cumulative impacts, allow the participation of interested persons, and respect the traditions and culture of indigenous peoples. These studies must also be conducted by independent entities and occur prior to the activities that they evaluate.
2. Obligations to Cooperate:
States must: A) cooperate in good faith with States and individuals potentially affected by environmental damage, B) notify potentially affected States that a planned activity under their jurisdiction could generate a risk of significant transboundary damages and of environmental emergencies, and C) negotiate in good faith with States potentially affected by significant transboundary harm.
3. Obligations to Provide Information, Justice, and Public Participation:
States must: A) access to information related to possible effects on the environment, B) the opportunity for citizens to publicly participate in making decisions and policies that may affect the environment, and C) access to justice through national courts in regard to their environmental obligations. The Court clarified that persons potentially affected by transboundary damages must have access to justice without discrimination based on their nationality, residence, or the location of the environmental damage.