4.5 Environmental rule of law as a means to achieving the outcomes of
4.5.2 ESD as a means to realising environmental justice
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would" only expand the road's transportation capacity by 5 percent, then the "adverse effect may be found excessive in relation to the objective".
It therefore appears that the main purpose of the aforementioned tests is preserving and maintaining the earth's ecological integrity. This speaks to the purpose of ESD which is also to ensure that any developmental process promotes ecological sustainability, through mechanisms that preserve and protect the continued existence and integrity of the earth's ecological systems. Hence, by applying ESD as a constitutional value through the environmental rule of law, courts stand in a better position to adequately protect the environment through outcomes such as ecological integrity. Accordingly, by applying ESD as a constitutional value through the environmental rule of law, courts engage in adjudication that is grounded in reasoned argument and justification; as well as adjudication that is structured by values and principles. Such style of adjudication conforms to post-liberal constitutionalism which makes it imperative for judges to engage in interpretation and legal reasoning that espouses transformative constitutionalism as a foundation for a substantive model of adjudication. Thus, courts could achieve ecological integrity by engaging in substantive adjudication through the application of ESD through the environmental rule of law processes such as ecological proportionality. It should be noted however that the environmental rule of law not only promotes ecological integrity, but also advances a number of principles that help facilitate environmental justice.187
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the environment through respecting the earth's finite natural resources. Of importance is that environmental justice is defined as the equal treatment and meaningful involvement of all persons in the "development, implementation and enforcement of environmental laws, regulations, and policies" regardless of colour, race, national origin, or income.188 Environmental justice bridges the gaps between ecological and social justice issues by prioritising the rights and needs of "the poor, the excluded and the marginalised".189 In other words, environmental justice ensures that the poor and marginalised receive a fair and equitable share of the benefits of nature.
Of importance is that environmental justice as an outcome of ESD can only be achieved through the environmental rule of law. The 2016 IUCN states that the environmental rule of law is the legal foundation for environmental justice.190 This means that it is impossible to achieve environmental justice without a legal framework of substantive and procedural laws that promote ESD. The 2016 IUCN also provides for substantive principles that can be used to promote "environmental justice through the environmental rule of law".191 These principles include rights which have been extended to everyone so as to ensure that there is an equal sharing of the benefits and burdens of the environment.
For instance, principle 1 places an obligation on everyone to promote and care for the well-being of the environment. Conversely, principle 2 affords everyone the right to have the health and integrity of the ecosystem protected, preserved and restored. Principle 3 further affords the present and future generations the right to a clean, safe, sustainable, and healthy environment. In addition, principle 10 and 11 affords vulnerable and minority groups as well as indigenous and tribal people the right to participate in decisions that have an environmental impact on their lands. All these principles reflect the importance
188 Schlosberg Defining Environmental Justice: Theories, Movements, and Nature 3-10; Beretta 2012 E- cadernos CES 140; London et al 2019 Encyclopedia of Environmental Health 553.
189 Martinez-Alier The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation 10;
Martinez-Alier 2014 Geoforum 239-241.
190 Iucn World Declaration on the Environmental Rule of Law 2016 1, 2.
191 Iucn World Declaration on the Environmental Rule of Law 2016 3.
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the environmental rule of law places on promoting environmental justice as an intra- generational aspect of ESD. As principle 7 provides; the environmental rule of law must ensure that a legal system promotes a "fair and equitable sharing" of burdens, efforts, and the benefits of nature, "including appropriate access to ecosystem services".192 The equitable and fair sharing of burdens and benefits of nature not only speaks to the environmental rule of law, but also includes aspects pertaining to a post-liberal democracy which seeks to promote equality in living conditions, education etc. Overall, principle 7 requires that natural resources be "used and managed in an ecologically sustainable manner".
The aforementioned principles show that the environmental rule of law is a fundamental arsenal to the achievement of environmental justice. In turn, environmental justice promotes sustainability by requiring economic growth to be compatible with ecological sustainability.193 In other words, environmental justice promotes ESD by requiring states and private entities to prioritise environmental protection before development. In turn, prioritising environmental protection before development ensures that the present generation's developmental activities do not prejudice or impoverish the poor. Therefore, if economic growth activities are pursued in line with ecological integrity, ESD is preserved and environmental justice is addressed since ESD is also concerned with improving and maintaining a clean and sustainable environment for all, especially for people who have been exposed to and experienced the burdens of humanity's unstainable developmental activities. The discussion above recognises that the environmental rule of law bolsters the relationship between environmental conservation and achieving environmental justice.194 However, this is not the only relationship that the environmental rule of law seeks to strengthen. In this light, the 2016 IUCN states that the environmental rule of law recognises the importance of preserving the environment as a means of ending
192 Iucn World Declaration on the Environmental Rule of Law 2016 3.
193 Martinez-Alier The Environmentalism of the Poor: A Study of Ecological Conflicts and Valuation 10.
194 Iucn World Declaration on the Environmental Rule of Law 2016 1.
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poverty.195 The following section discusses how ESD could help promote poverty reduction.