Does nature have rights?

By Lisa

Since the 1970’s legal scholars have been debating how to address the rights of nature in the law, because under most “western” legal systems only people have rights (and in some places corporations– gag). The idea being that if nature itself or various aspects had “rights” then those could be protected and championed in attempts to protect natural systems and the plants and animals that depend on them.  In other cultures, particularly most indigenous societies, respect for nature and its intrinsic value for itself is embedded in their world view. But it would be a radical shift in “western” legal systems. Under the current US laws people have to “stand in” for nature if we want to protect it—you need to show that polluting the water in the river or killing grizzly bears affects a particular person in a particular way.  These limitations often mean the courts can’t do much to actually protect the environment—they mostly rule on whether an agency made its decision the right way or not. The fundamental underlying issues are not dealt with. Issues like keeping water in the river for fish, keeping plastic out of the ocean, and complex ecosystem interactions like fossil fuel burning causing sea level rise and other climate change effects are at best sent back to the agencies to make new decisions or reanalyze.  And sometimes the courts won’t even go that far.

It may seem useful to rely on agencies when “our side” is winning – indeed, here we are in 2021 with a new administration putting climate change at the top of its list.  The newly confirmed head of the Environmental Protection Agency, Michael S. Regan (the first black man to be confirmed in this role –Lisa Jackson was the first black woman administrator in Obama’s first-term), said: “We will move with a sense of urgency on climate change. And we will stand up for environmental justice, guided by our conviction that all people have the right to breathe clean air, drink clean water, and lead a healthy life — regardless of the money in their pockets, color of their skin, or community they live in.” This is an awesome sentiment but it still focuses on the rights of people and impacts to people. And more concerning, if the pendulum swings back again in 4 or 8 or 12 years then what? This yo-yo politics is exhausting and even though we may seem to move forward overall it is slow, lurching “progress” during which natural ecosystems, wildlife, and plants continue to be destroyed, degraded and extinguished.

graphic

Some of you may have been following the “youth” climate lawsuit, Juliana v. United States, claiming that the government violated their constitutional right to a “climate system capable of sustaining human life” by supporting a fossil fuel industry that causes climate change, even though the government knew about the threat of climate change for decades.  This case has been bouncing around the courts since 2015 but has never ruled on the merits of the claims. Although eventually one court found that the individual people involved had shown that they would each personally suffer from impacts of climate change and that those impacts are due (at least in part) to the government policies, ultimately the courts never reached the merits because the courts decided they couldn’t do anything about it—pointing the “youth” back to the political system the administrative agencies and Congress for a remedy in the future. And that case is now being pushed up to the very conservative supreme court—a move some call reckless because it could give the conservative court an opportunity to further clamp down on lawsuits to protect the environment, others say it’s worth the gamble.

So we come back to the rights of nature. What if the lawsuits about climate change 15 or 20 years ago could have stopped some of the government support for fossil fuels and instead of Biden taking small incremental steps we could already have ended gas and oil drilling and fracking on public lands and subsidies to coal, oil and gas companies?  Would that have made a significant difference in the global emissions and slowed down climate change—possibly, but we will never know. Going forward one way to get better results might be to change the laws and recognize that nature itself has a right to be itself –whether it is called personhood or something else, it could provide another framework for getting legal protections for nature from the courts even when administration and congress are not on board—protections that are broader than would be possible under the current system.

There is a movement to do just that, which has gained momentum over the past few decades.  In 2008, Ecuador became the first country to enshrine the legal rights of nature in its constitution. “Nature … has the right to exist, persist, maintain itself and regenerate….” -Ecuador Constitution, Art. 71. Bolivia adopted similar rights for nature in 2011 and Uganda in 2019.  In 2019, Bangladesh became the first country to grant all of its rivers the same legal status as humans. That same year, the city of Toledo, Ohio, adopted the Lake Erie Bill of Rights to protect its shores. Some towns have adopted ordinances for specific local ecologies or wildlife and others have supported the overarching concept of the rights of nature. For a lot of great info and an interactive map check out https://therightsofnature.org/map-of-rights-of-nature/  and these efforts in the EU to establish the rights of nature https://www.eesc.europa.eu/en/our-work/publications-other-work/publications/towards-eu-charter-fundamental-rights-nature

There is a 2021 ongoing tribunal and past ones you can access online that present cases of how the rights of nature are being pursued to a panel of international judges– https://www.rightsofnaturetribunal.org/  And a new book on the theory and practice from 2020 https://www.internationalrivers.org/news/press-release-rights-of-nature-book-launch/

For some it may be easier to imagine whales having rights, or maybe a grove of old growth redwoods? What would our world look like if the Mississippi, the Nile and the Narmada rivers had the right to run free and to flood, or if the Sacramento River had the right to be full of salmon returning to spawn, if the Colorado River had the right to reach the Gulf of California full of life-giving silt —would dams and levees have been built? (Or does this just sound like a great premise for a utopian eco-novel?)

Author: lagai

LAGAI-Queer Insurrection is one of the oldest radical queer liberation groups in the U.S. We publish UltraViolet, a more or less bimonthly newspaper, which is mailed free of charge to over 1500 people, including over 800 prisoners. Our website is www.lagai.org.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: