Do not backtrack: Non-regression in environmental law

By Yves Faguy Web Only


When progressive political leaders remind us that “the arc of the moral universe is long, but it bends towards justice,” the statement includes a caveat – that the arc does not travel in a straight line and that there will be setbacks.

But for climate activists, for whom time is of the essence, setbacks are to be avoided at all cost. “Do not backtrack” has become something of a rallying cry against regressive government action (or inaction).

In legal terms, that has led to calls for the recognition of the principle of non-regression in environmental law and policy, even as a fundamental human right. As University of Ottawa law professor Lynda Collins explains in the video above (around the 3:20 minute mark), non-regression means that part of one’s right to a healthy environment is to “have today’s level of environmental protection preserved.”

As a legal concept, the principle really emerged in 2011 in proposals leading up to the Rio+20 Conference, even though the earth summit’s outcome document shied away from any explicit reference to a non-regression principle (“it is critical that we do not backtrack from our commitment”, the document reads).

Further progress was made during the 2015 climate talks in Paris. Under the Paris Agreement, countries get to set their own national contributions to the global response to climate change and update them at least every five years.  But each successive update must “represent a progression beyond the Party's then current nationally determined contribution and reflect its highest possible ambition”  (Article 3(4)).

The hope is that, over time, a major new principle of international and domestic environmental law – never below the target, always above – will gain currency in the courts.  But in Canada that would require first recognizing a constitutional right to a healthy environment.






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