기후위기 시대에 기본적 권리로서의 환경권- 미국의 판례를 중심으로 -

Abstract

Although a global cooperation system has been established to protect environmental rights in the era of climate crisis, in order to actually guarantee environmental rights, every country’s will to protect environmental rights must be expressed through legislation and policies. There must be effective legislation, active administration, and judicial oversight as a means of checking them. In the United States, various laws regarding environmental rights were enacted early on, and the Constitution was enacted about environmental rights in some state, but the federal Constitution does not provide for environmental rights. However, there is debate as to whether environmental rights can be recognized as a fundamental right under the Constitution. Therefore, the possibility of environmental rights being recognized under the U.S. Federal Constitution is being raised. In the United States, fundamental rights are recognized by the courts, and the due process principles of the 5th and 14th Amendments to the Constitution are invoked as the main basis for this. Therefore, environmental rights can be recognized as a fundamental right based on substantive due process. If environmental rights are recognized as fundamental rights, the principle of strict scrutiny is likely to be applied, making it possible to demand effective policies from governments that are not responding to climate change. Among the precedents on whether environmental rights are recognized as a fundamental right, I analyze the precedents in which environmental rights were recognized as a fundamental human right under state constitutions, and examine the federal district court’s judgment on whether environmental rights can be recognized as a fundamental right under the federal Constitution. I would like to examine the possibility of recognizing environmental rights as a fundamental right. Meanwhile, the Constitution of Korean stipulates environmental rights, this constitutional environmental rights must be recognized as both a comprehensive right and a specific right that has the characteristics of both freedom rights and social rights. The state’s obligation to protect basic rights is recognized against violations of environmental rights by third parties. Once the state’s obligation to protect fundamental rights is recognized, it is determined whether the obligation to protect fundamental rights has been violated. In this case, the principle of no underprotection applies. However, since it is difficult to recognize violations of basic rights by environmental rights when applying the principle of no undermining, strict standards need to be applied for actual protection of environmental rights. Therefore, assuming that the principle of prohibition of under-protection is applied, the words expressing the content must be organized, moving from clarity control to efficiency control, and review standards that take into account the characteristics of environmental rights must be applied.