We live in a new and increasingly unstable climate reality. How should we respond?
Traditional environmental law and policy has failed to elevate environmental protection above economic priorities, and existing constitutional rights are limited to impacts on human health and protected Aboriginal rights. The time has come, some prominent environmental lawyers and activists argue, to green the Charter by including an explicit, stand-alone right to a healthy environment to better protect non-human environmental values along with the rights of future generations.
Given the exigencies of climate change and the maturity of the Charter, surely this is an open-and-shut case? Not really. The argument in favour of constitutionalizing the right to a healthy environment suffers from three difficulties.