Nature and the Law

[Cromag]

Nature and the Law

A new movement is working to protect our environment through the recognition of its fundamental rights. It’s an idea whose time has come.

By Mari Margil from December 20, 2016, 4:39 pm – 8 MIN READ

Photo by Delta Whiskey via CC 2.0

The election of Donald Trump as the forty-fifth President of the United States sent a shiver down the spines of millions of Americans who care about the environment.

Trump has called global warming “bullshit” and a “hoax,” while saying very little, if anything, on the environment itself. Of course, climate change is occurring and accelerating at a rate far faster than scientific models predicted, with temperatures in the Arctic 20 degrees Celsius above normal and sea ice at a record low. Further, species are going extinct 1,000 to 10,000 times faster than natural background rates, and ecosystems, such as coral reefs, are collapsing.

All of this is happening pre-President Trump.

With his cabinet picks including climate change denier Oklahoma Attorney General Scott Pruitt, nominated to head up the Environmental Protection Agency, and climate change skeptic, former Texas Governor Rick Perry, to head up the Energy Department, there is little reason to believe a President Trump will take action to slow the course of global warming or protect nature.

Indeed, Trump promised to roll back President Obama’s Clean Power Plan, which requires power plants to reduce greenhouse gas emissions. He also promised to revive coal mining. However, the existential threat posed to the environment would necessarily continue regardless of who occupies the White House, unless a fundamental change in humankind’s relationship with the natural world takes place.

So, the question remains, what’s to be done?

Unfortunately, today, legal systems in the United States and around the world are simply not designed to protect nature. Rather, laws and governments are largely focused on how to use nature as fast as possible.

Things are no better at the international level, where trade agreements empower corporations to sue governments in order to overturn or restrict the reach of environmental laws. Meanwhile, international agreements to protect the climate—such as the recent Paris Agreement—remain largely non-binding and unenforceable.

To realize the change we need will require a massive mobilization of people. And this has been, at no point, truer than it is right now. But, as past people’s movements have demonstrated, this kind of fundamental social change is only possible when a broad spectrum of people come together to demand it.

Fortunately, a new people-powered movement is indeed building to advance that change and to establish the highest protection for nature through the recognition of its fundamental rights. From Ecuador to the United States, to Nepal, the United Kingdom, Bolivia, to tribal nations and political parties, to activists, communities, indigenous peoples, and governments, initiatives on the rights of nature are being advanced around the world.

Recognizing the Rights of Nature

In 2008, Ecuador became the first country in the world to recognize the rights of nature in its national constitution. Courts there have issued decisions in a number of cases upholding and affirming the constitutional rights of nature, and prohibiting and stopping activities that violate those rights. This includes the first successful constitutional case, brought on behalf of the Vilcabamba River. The Provincial Court of Loja found that the rights of the river were being infringed by road construction that was impacting the river’s flow. In a case in the Galapagos, Judge Pineda Cordero cited the rights of nature constitutional provisions in ruling that road construction must stop until a government review was conducted that guaranteed the protection of iguana and other species’ habitats.

Efforts are now underway in other countries as well—including India, Australia, and the United Kingdom, among others—to advance rights of nature laws at the local and national level. This includes, for example, the adoption of a national policy platform on the rights of nature by the Green Party of England and Wales in February 2016.

In the United States, more than three dozen communities have now passed local laws which transform nature from property to rights-bearing ecosystems and natural communities. These laws are the first in the nation to recognize legally enforceable rights of nature, and there are now efforts to advance rights-based laws at the state level as well. Unsurprisingly, industry is stepping in to try to block these efforts.

In September 2016, the General Council of the Ho-Chunk Nation, based in Wisconsin, advanced an amendment to their tribal constitution to recognize the rights of nature. If passed by a vote of the full membership in 2017, the Ho-Chunk would become the first tribal nation to enshrine the rights of nature in its constitution.

As in Ecuador, cases are now being litigated in the United States, with ecosystems seeking to defend their right to exist and flourish. This includes a case in Highland Township, Pennsylvania, which first passed a local law recognizing the rights of nature in 2013. The law prohibited frack wastewater injection wells, recognizing that the wells would violate the rights of people and ecosystems. Under pressure from Seneca Resources, an oil and gas corporation which sued the community to overturn its ordinance, the Township Supervisors repealed the ordinance in 2016. Community members voted in November 2016 to reinstate the prohibition on injection wells, as well as to re-codify the rights of nature into law, through the approval of a Home Rule Charter for the Township. Within weeks, the corporation sued Highland Township a second time. As of this writing, the Third Circuit Court of Appeals is considering an appeal from the Crystal Spring watershed in Highland, to intervene in the initial case to defend its rights against the corporation’s “rights” to inject frack waste.

Rights of nature laws differ significantly from conventional environmental laws. First, they recognize nature as possessing legally enforceable rights. This includes rights to exist, flourish, and regenerate, as well as to be restored. Through such laws, nature is empowered to defend and enforce its own rights, and people and governments are authorized to do the same. If the rights of an ecosystem are found to be violated, damages are to be awarded in the amount it would take to fully restore the ecosystem, and such funds are to be used solely for that restoration.

Today, traditional environmental laws are designed to authorize activities (fracking, mining, drilling, etc.) which intentionally harm the environment, while placing certain conditions on how those activities are conducted. Permits are issued by governments to corporations to carry out these activities, such that corporations are issued legal permits to dump frack waste, for example.

Under rights of nature laws, proposed activities such as frack wastewater injection wells must be evaluated as to whether their operation would violate the rights of natural systems. Essentially, an injection well would need to be considered in light of whether it would infringe on the right of ecosystems to health and well-being. In so doing, such laws are intended to stop harm before it happens. Under oil and gas laws, on the other hand, harm is legally authorized and damage that occurs is considered after the fact.

For environmental laws that do provide for citizens to bring suit against a corporation for environmental harm, the courts require citizens to demonstrate they have “standing” to bring such a suit. Thus, a person needs to show that they’ve suffered “injury in fact” by the company’s action. That is, they need to show some personal injury from that which was inflicted upon the environment. Harm to an ecosystem is considered secondarily.

Rights of nature laws, on the other hand, provide what some have called “automatic standing” for a person to bring a case to defend and enforce these rights. Thus, a person does not have to demonstrate that they experienced harm as a result of harm to an ecosystem. The concern is the ecosystem itself. Further, the laws are written such that not only does a person have the authority to bring a case to defend and enforce nature’s rights, but the ecosystem “as the real party in interest” has the authority to bring suit on its own behalf. These laws would finally move us away from the human-centric premise that willfully disregards actual harm to the environment.

Although these laws may be relatively new, the ideas behind them are not. More than a century ago environmentalist John Muir wrote that we must respect “the rights of all the rest of creation.” In 1972, Professor Christopher D. Stone explained, in his seminal law review article “Should Trees Have Standing?”, “Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable. We are inclined to suppose the rightlessness of rightless “things” to be a decree of Nature, not a legal convention acting in support of the status quo.” More recently, in 2015, Pope Francis, in calling for a new era of environmental protection, declared, in a speech before the United Nations, that “[a] true ‘right of the environment’ does exist…”

As past movements have demonstrated, recognizing rights of the rightless is difficult, generations-long work. In making the fundamental shift that is necessary to protect nature, we must confront not only the law, but ourselves.

The rights of nature movement is building, with both cultural shifts and legal shifts now taking shape. And with the very fabric of life at stake, now more than ever, it is an idea and a movement whose time has come.

Mari Margil is the Associate Director of the Community Environmental Legal Defense Fund. She leads the organization’s International Center for the Rights of Nature.