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ABSTRACT
While few would deny that present generations have a moral obligation to preserve the environment for future generations, some theorists reject the existence of a legal duty in this regard. This article takes the opposite view. It argues that ample juridical as well as ethical social justice theory-contractarian distributive and reciprocity-based theories prominent among them-establishes that future generations have a legal right to a clean and healthy environment. But most helpful in ensuring intergenerational ecological justice, the author contends, is a respect-based theory of social justice which at its core honors the values that underwrite human rights law and policy inclusively conceived and embraced.
I. Introduction
It is increasingly popular for environmental and human rights advocates to champion the ecological rights of future generations. This is due in no small measure to the pioneering work of environmental law scholar Edith Brown Weiss and her now famous study, In Fairness to Future Generations, first published in 1988.1 But the mounting threats of irreversible climate change, rapidly dwindling biodiversity, and the exhaustion of vital resources, exacerbated by accelerating population growth, also have played a role, provoking "discomfiting images of a non-future."2 Somewhere deep inside, we know that this state of affairs cannot continue if the next and succeeding generations are to enjoy a global environment comparable to what we inherited from our predecessors;3 that life is a temporary gift we share with a long chain of past, present, and future humanity; that, whatever our ancestors' failings, we therefore are bound to ensure, with fairness, that the Earth will sustain today's children and those of the future. A claim on behalf of future generations might wrest from a neoliberal world order, responsible for much of our planet's ecological damage, at least some respite from environmental degradation where others have failed. True, not everyone is moved to action by the ecological plight of others, least of all unborn others. But it is the rare parent, grandparent, or great-grandparent who denies this intergenerational obligation in principle; and it is the rare child, grandchild, or great-grandchild who will not feel resentful if this obligation is not met. It is a morality that speaks truth to power.
Yet when asked if future generations have a legal right to protection from...