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Regulatory environmental statutes have had some real success, but they’re far from complete

Since the rise of the modern environmental movement in the 1960s, environmental law has been primarily based on regulatory statutes. The National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, among others, created an extensive regulatory regime in the 1970s that continues to this day.

That regime has had some real successes. Emissions of the most common air pollutants, including sulfur dioxide and fine particulates, have fallen by more than three-quarters since 1970. Average levels of lead in the bloodstream fell precipitously after lead-based gasoline was phased out. Hundreds of toxic waste sites have been cleaned up.

However, those successes are far from complete. Tens of millions of Americans still live in metropolitan areas that do not meet national air quality standards. Many rivers and lakes throughout the country still do not meet basic requirements for swimming and fishing. The United States and other countries are still failing to make effective progress to reduce carbon dioxide emissions that cause rising global temperatures.

Increasingly, attention is being paid to the ways that environmental harm is often discriminatory: that is, it often disproportionately affects members of racial and ethnic minorities and those living in poverty. This disparity, which is sometimes called environmental racism or environmental injustice, can take many forms. Chemical plants, oil refineries, hazardous waste facilities, and other locally undesirable land uses are more likely to be located in communities that are already marginalized for other reasons. Studies show that people of color are more likely to be exposed to air pollution. The poorest people in the world contribute least to the ongoing climate breakdown, but will be the most quickly and severely affected by it.

At the international level, advocates are increasingly making the case that governments’ failure to protect against environmental harm can violate their obligations under international human rights treaties. For example, if a government fails to effectively enforce its environmental laws, the result may be higher levels of pollution that foreseeably harm the lives and health of people within its jurisdiction. Because human rights law requires countries to take effective steps to protect people from these kinds of foreseeable harms, their failure to do so has been found to violate their obligations.

Human rights and environmental activists are also drawing more attention to the threats faced by environmental defenders. In many places around the world, those who stand up against illegal and unsustainable logging, poaching, and land-grabbing are harassed, threatened, unlawfully detained, and even killed. At least 200 environmental defenders are killed every year — an average of four every week. Often their killers are never brought to justice, which creates an atmosphere of impunity that places all such defenders at a heightened risk. Even in countries like the U.S., which rarely sees outright killings, there has been a crackdown on peaceful environmental protests. Protestors against the Dakota Access Pipeline, for example, were sprayed with fire hoses in the middle of winter. In the last five years, more than a dozen U.S. states have enacted laws that increase criminal penalties for trespassing on sites with oil refineries and pipelines.

Between 2012 and 2018, I saw these issues firsthand. As the first United Nations Independent Expert (and later Special Rapporteur) on human rights and the environment, I spoke to members of civil society, academics, government representatives, and many others about the challenges they faced in defending human rights and the environment, and issued reports calling on governments to do more to protect the environment and those who defend it. The courage and commitment of these environmental defenders is not only inspiring; it also benefits the entire world by demanding a cleaner, healthier world for us all.

In the coming years, rights-based approaches to environmental protection will only increase. Individuals will argue ever more strongly they have a right not to be discriminated against in relation to the environment, that they can exercise freedom of expression and peaceful assembly in opposing harmful environmental actions, and that governments have obligations to protect them from harassment and violence for trying to defend the environment.

Rights-based approaches are already having some success with respect to the largest environmental challenge of them all: climate change. In the last several years, courts in Germany, the Netherlands, and Pakistan, among others, have all issued decisions aimed at improving their governments’ response to climate change to protect their people’s human rights. In the U.S., the Biden administration has created an Environmental Justice Interagency Council, and directed the Environmental Protection Agency to strengthen enforcement of environmental violations that have a disproportionate impact on underserved communities.

The simplest way to recognize the relationship of human rights and the environment is to adopt the right to a healthy environment into law. More than 150 countries around the world have already done so. While the U.S. is not among them, some states have written it into their constitutions. This November, for example, New York citizens will vote on whether to add a right to clean water, clean air, and a healthful environment to the New York Constitution’s Bill of Rights. And perhaps as soon as this fall, the United Nations will recognize for the first time the human right to a healthy environment. While such recognition would not in itself be legally binding, it would be a powerful symbol of the fundamental importance of environmental protection to human well-being.

This story originally appeared in the 2021 issue of the Wake Forest Jurist.

Professor John Knox is an internationally recognized expert on human rights law and international environmental law. He joined the Wake Forest Law faculty in 2006 and teaches international, environmental, and human rights law. From 2012 to 2015, he served as the first United Nations Independent Expert, and from 2015 to 2018, as its first Special Rapporteur, on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment.

In testimony before members of the U.S. House Committee on Natural Resources, Wake Forest Law Professor John Knox discussed the key role that Indigenous peoples and local communities play in the conservation of natural ecosystems, and recommended steps the United States should take to protect against human rights abuses of these groups by governments and conservation organizations.

“It is now well understood that the world is facing a global biodiversity crisis, which threatens one-quarter of all species with extinction,” said Knox in written testimony submitted to the committee. “But it is far less well understood that the biodiversity crisis is also a human rights crisis. The best way to conserve the natural environment is to protect the human rights of those who live in nature: the Indigenous peoples and local communities who directly depend on forests and rivers for their material and spiritual well-being.”

During the Oct. 26 hearing of the Subcommittee on Water, Oceans, and Wildlife, Knox also described the findings of an independent expert panel on which he served that conducted an in-depth investigation of the World Wildlife Fund’s involvement in alleged human rights abuses in protected areas in Africa and Asia — findings which he said WWF had taken out of context and given a false impression of in its statement to the subcommittee.

“The panel found that WWF knew, often for many years, about alleged human rights abuses in the parks in protected areas that it supports in each of these countries,” Knox testified. “WWF nevertheless continued to provide financial and material support, and most importantly, WWF often failed to take effective steps to prevent or respond to the abuses.”

Before beginning to question the witnesses, Subcommittee Chair Rep. Jared Huffman of California noted that he associated himself with Knox’s comments and said that “WWF still doesn’t seem to get it . . . in response to this panel’s investigation, WWF continues to portray this as largely exculpatory, something that exonerates them from accountability.”

Knox, who also served as the first United Nations independent expert and special rapporteur on human rights in the environment, noted that WWF’s problems with implementing human rights commitments are not unique, but just one example of a larger issue that runs throughout the world of international conservation. Such behavior, he argued, will not change until the U.S. and other donor states withhold funding for international conservation unless a protected area or conservation initiative can demonstrate it is respecting the rights of Indigenous peoples and local communities; providing effective protections against human rights abuses by park rangers; complying with human rights responsibilities; ensuring independence grievance mechanisms to hear and provide appropriate relief for complaints; and engaging in transparent practices.

“I would encourage you to consider and propose legislation that would ensure that funds to WWF and other conservation organizations include basic human rights protections,” said Knox in his written testimony. “The U.S. government, like other donors, has a responsibility to ensure that the funds they provide for international conservation are used consistently with its own human rights commitments.”

In addition to Knox, the subcommittee also heard testimony from Joan Carling, global director of Indigenous Peoples Rights International; Ginette Hemley, senior vice president of wildlife conservation at World Wildlife Fund – US; and Kaddu Sebunya, CEO of the African Wildlife Foundation.

Read Professor Knox’s complete written testimony. Watch a recording of the hearing, “Protecting Human Rights in International Conservation.”

The mission of Wake Forest Law is to advance the cause of justice by creating knowledge and educating students to meet the legal needs of the world with confidence, character, and creativity. We instill in students a respect for the law, a devotion to the ideal of service, and a commitment to professional values. We educate students from around the world in a richly diverse, equitable, and inclusive community. Learn more at law.wfu.edu, and stay up to date on what’s happening in the Wake Forest Law community by following us on Twitter, Instagram, and Facebook.

From an early age, Stephen Hawthornthwaite (JD ’96) was sure of three things: he wanted to start a successful company, do the right thing, and give back to society. What he didn’t anticipate however was that at the age of 41, he’d embark on a multi-year journey to launch what Forbes has called one of the next billion-dollar-startups — which is not only profitable, but is also actively shaping the future of sustainability in the fashion industry.

Hawthornthwaite, a Wake Forest Law alumnus, is the co-founder, CEO, and chairman of Rothy’s, a sustainable lifestyle brand transforming recycled materials into timeless shoes, handbags, and accessories with nearly no waste. Since launching in 2016, Rothy’s has diverted millions of plastic water bottles from landfills and over 200,000 pounds of marine plastic from oceans — 3D knitting recycled plastics into comfortable, stylish essentials.

The idea for Rothy’s — the name of which is a combination of Hawthornthwaite’s nickname, “Hawthy,” and the name of his co-founder, Roth Martin — was borne out of the co-founders’ desire to start a company that would solve a complex problem and their recognition that the increasing “casualization” of fashion was a trend that was here to stay.

“We had a shared vision around a great product that could be for everybody,” said Hawthornthwaite. “The original concept was to create a front-of-the-closet shoe that was an easy choice that a woman could wear first thing in the morning, into the evening, and carry her throughout her day.”

But the pair also knew they had to innovate.

“We didn’t want to be just the thousandth manufacturer of women’s flats,” he said.

And innovate they did, though in the face of one major challenge: neither co-founder had any experience in the footwear industry. But that, Hawthornthwaite says, is one area where his experiences at Wake Forest Law helped him find solutions.

Learning to distill and synthesize volumes of information into a simple, compelling argument prepared him for the work he would do to understand the landscape in both the footwear and knitting industries, and to chart a clear path forward for Rothy’s.

“There’s not a day that goes by in my current role that I’m not thankful to have a law degree,” he said. “I’m right where I wanted to be, which is I know the right questions to ask, and I know when to get an attorney involved.”

As he learned more about the footwear industry, Hawthornthwaite was struck by how much waste was produced in the typical manufacturing process, where material is traditionally die-cut into pieces that are then stitched together, resulting in excess material that isn’t put to use.

The 3D-knitting technology that Rothy’s developed and uses in its factories allows the company to seamlessly knit the upper portion of each of its shoes as a single piece, eliminating much of the waste created in a more typical footwear production process.

Hawthornthwaite had also observed that sustainable products of the past were often lower-quality or less fashionable. With that in mind, he believed that solving for those two drawbacks alone would engage more people in making sustainable purchases, whether that was their primary intent or not.

“If we make a great product that’s beautiful and comfortable, there are going to be people who really don’t care about sustainability, but they’re going to buy it because it’s beautiful and comfortable,” said Hawthornthwaite. “If you can deliver a great product that’s compelling without asking the customer to really sacrifice something in the process, then you’re driving change.”

Part of the company’s ability to produce such a product in a way that also aligned with its environmentally conscious mission hinged on Rothy’s having its own factory in Dongguan, China.

“To really execute on sustainability, to really be sustainable through and through, by definition you have to own your factory,” Hawthornthwaite said. “We built from the ground up with that in mind, and when you own your own factory, you’re really controlling the process. You’re controlling the waste. We know how our people are treated.”

Navigating the challenges of establishing the Rothy’s factory, and the company more broadly, was another area where Hawthornthwaite points to his legal education as particularly influential — especially what he learned in courses like tax law, corporate law, and real estate law.

“To anyone who is thinking about doing something else with their law school career, absolutely consider it,” said Hawthornthwaite. “A law degree is invaluable in any number of industries.”

What began as a women’s footwear company has now evolved into a brand that also produces handbags, accessories, and most recently, a line of men’s footwear launched in May 2021. As it has grown, Rothy’s has made great strides in sustainability, and the company’s mission to continuously do better for people and the planet has led it to set its sights on something even more ambitious: closing its loop through circular production, which it hopes to achieve by 2023.

“So many of the products that are produced don’t really have an end-of-life strategy. Because we own our factory, we can design for end-of-life. Our most complex shoe probably has seven [materials] total, and that enables us to start to recycle shoes, and then reuse that material in the production of new shoes and be fully circular,” said Hawthornthwaite.

It’s a vision that aligns with Hawthornthwaite’s fundamental belief “that people are good and that they want to do good things for society” — a belief that’s reflective of the pro humanitate spirit of Wake Forest Law graduates.

Listen to Wake Forest Law’s conversation with Stephen Hawthornthwaite on The Legal Deac podcast, where he talks further with Professor John Knox and Executive Director of Marketing Jorge Reyna.

The mission of Wake Forest Law is to advance the cause of justice by creating knowledge and educating students to meet the legal needs of the world with confidence, character, and creativity. We instill in students a respect for the law, a devotion to the ideal of service, and a commitment to professional values. We educate students from around the world in a richly diverse, equitable, and inclusive community. Learn more at law.wfu.edu, and stay up to date on what’s happening in the Wake Forest Law community by following us on Twitter, Instagram, and Facebook.