2019 Vermont Law Top 10 Environmental Watch List

Rights of Nature: Seeing the Forests and Trees

Disappointed in the results of environmental litigation that has focused mostly on property rights and human interests, some in the legal field have begun employing a “rights of nature” approach. This shift is rooted in the idea, familiar in many indigenous and ancient cultures, that nonhuman nature has value, and rights in itself, apart from its material benefits to humanity. Beyond the United States, the idea has emerged in several constitutions, statutes, and declarations internationally. Ecuador was first to integrate rights of nature, Pachamama, into its constitution in 2008. Soon Bolivia followed, integrating similar rights into its constitutive law.

10_RightsofNatureAll of these advances have emerged under various theoretical names such as Rights of Nature, Earth Jurisprudence and Earth Law, Ecological Jurisprudence, and Wild Law. Proponents acknowledge a common debt to Thomas Berry, a cultural historian and Catholic priest who argued that the separation of humans from the rest of nature, and the correlated notion that humans are superior in their intelligence and moral capacities, is anti-scientific and morally deficient. Father Berry emphasized the relationship of all things in the universe, no matter how diverse.

The U.S. has had its own limited success at the state and local level in recognizing the rights of nature. The modern movement in the United States began when residents of towns in Pennsylvania passed ordinances banning extractive activities harming water supplies and the natural environment. In 2006, Tamaqua Borough of Pennsylvania passed local law preventing a waste company from depositing toxic sewage. Pittsburgh followed in 2010, declaring that corporations conducting hydraulic fracturing (“fracking”) could not exploit the local natural heritage to its significant detriment. Some ordinances have met successful constitutional challenges, and legal work continues to fortify such local efforts. Concerned about local governmental decisions that encourage corporate exploitation of the environment, residents of cities and towns have begun to insist on meaningful local environmental protection under the leadership of nongovernmental organizations (NGOs) like the Community Environmental Legal Defense Fund (CELDF).

Most recently, CELDF has aided concerned residents of Toledo, Ohio, in crafting a Bill of Rights for Lake Erie. One of the Great Lakes, Lake Erie provides drinking water to more than 11 million people. But in 2014, nearly 500,000 Toledo residents were placed under a tap water ban due to toxins in the water. The contamination was thought to be caused by an algal bloom in Lake Erie. Residents created the Toledans for Safe Water group to address their health and safety concerns related to the water quality of Lake Erie. In August 2018, the group began collecting signatures for a petition to place the Lake Erie Bill of Rights on the ballot for a February 2019 vote. The Lake Erie Bill of Rights seeks to both recognize the rights of the lake itself to thrive and to protect the rights of citizens to clean, safe drinking water. If the measure is passed, it would offer the residents of Toledo an alternative means of combatting pollution in Lake Erie, one that is based on a rights-of-nature understanding. Such an achievement would suggest that the U.S. is moving closer to accepting a rights of nature framework for combatting environmental concerns. Yet significant hurdles remain for some attempting to obtain legal recognition for the rights nature.

One notable venture in securing rights of nature claimed legal standing for the Colorado River with the goal of denying corporate and individual water rights for the sake of preserving the watershed. Yet the Denver lawyer who dared to initiate this action, Jason Flores-Williams, ultimately agreed to dismiss his own case upon the court’s threat of sanctions for bringing a frivolous legal action. Flores-Williams may have taken the judge’s warning seriously based on similar findings of frivolousness in other rights of nature cases, such as in a 2017 case seeking habeas corpus relief for captive elephants. Although procedural and ethical rules protect lawyers in making good faith arguments for extensions and changes in the law, some courts have viewed the extension of standing to a watershed or nonhuman animal as outside of that realm. However, other courts have shown that they are willing to expand their understanding of legal rights to the natural world. One New York court has just provisionally granted habeas corpus rights to an elephant named Happy, ordering the Bronx Zoo to show cause why Happy should not be released to a sanctuary.

Happy is a 47-year-old, wild-born Asian elephant living in captivity at the Bronx Zoo. The Nonhuman Rights Project filed a petition for a writ of habeas corpus in October 2018 in Orleans County, New York. The petition requests Happy’s transfer from her unlawful imprisonment at Bronx Zoo to an elephant sanctuary, based on her right to bodily autonomy. On November 16, Justice Tracey A. Bannister of the Orleans County Supreme Court issued an Order to Show Cause, the first in the U.S. to be issued on behalf of an elephant, and the second to be issued on behalf of a nonhuman animal. The parties appeared before Justice Bannister on December 14, where she ultimately granted the defendant’s motion to have the case heard in Bronx County instead. But Happy’s tale is far from over and deserves continued attention. If Happy is able to receive a writ of habeas corpus, she would help the rights of nature discourse take a giant step forward. If Happy’s case is successful, it would suggest that a rights of nature framework can be used to obtain the desired results in environmental litigation regarding animal rights and welfare.

Internationally, the rights of nature framework has been more successful. New Zealand has succeeded in protecting a watershed in its own right. A 2017 compact between the Commonwealth and a Maori tribe, The Whanganui River Claims Settlement Act, renders the Whanganui River a legal subject with rights. The act also authorizes a two-person council consisting of a government representative and a Maori tribe representative to make decisions on behalf of the river itself, according to established guidelines. Analogously, the highest court of the state of Uttarakand in Northern India has granted legal personhood status to the Ganges and Yamuna Rivers as living entities. In Ecuador, a lawsuit succeeded in protecting the natural flow of the Vilcabamba River, invoking the country’s constitutional rights of nature. The Earth Law Center is especially active internationally in securing the rights of nature. Their work should be followed closely in the coming years as domestic and international acceptance of a rights of nature framework expands.

Notably, Earth law logically extends beyond Earth itself. The United States Congress passed legislation known as the Space Act of 2015 to allow extractive property rights in asteroids and other space bodies. Even though treaty obligations prohibit ownership of a celestial body itself, the individuals (corporations) who first arrive and extract water or valuable platinum group minerals are protected from “harmful interference” in their endeavors. Lest this appear to be the stuff of science fiction, two companies are close to mining asteroids. Outer space presents an opportunity to develop law that recognizes directly the integrity and inviolability of the least familiar realm of nonhuman nature. Space offers a relatively unhampered legal domain in which to explore a nonhuman rights approach and could provide lessons to assist in work at “home.”

Although a rights of nature legal framework faces significant obstacles, this demanding approach would profoundly shift the orientation of environmental law. Such a shift would grant nature itself the power to make legal claims through representatives, and the remedies for harm would accrue to nature itself through remediation or restoration. We’ll be watching to see how this new area of law evolves in 2019, as environmental advocates look for new opportunities to protect the natural world.