US: Sued by the forest

Publisher Name: 
The Boston Globe

Should nature be able to take you to court?

(Boston Globe / Steve Wacksman)

Last February, the town of
Shapleigh, Maine, population 2,326, passed an unusual ordinance. Like
nearby towns, Shapleigh sought to protect its aquifers from the Nestle
Corporation, which draws heavily on the region for its Poland Spring
bottled water. Some Maine towns had acquiesced, others had protested,
and one was locked in a protracted legal battle.

Shapleigh tried something new - a move at once humble in its method and audacious
in its ambition. At a town meeting, residents voted, 114-66, to endow
all of the town's natural assets with legal rights: "Natural
communities and ecosystems possess inalienable and fundamental rights
to exist, flourish and naturally evolve within the Town of Shapleigh."
It further decreed that any town resident had "standing" to seek relief
for damages caused to nature - permitting, for example, a lawsuit on
behalf of a stream.

Shapleigh
is one of about a dozen US municipalities to have passed measures
declaring that nature itself has rights under the law. And in 2008,
when Ecuador adopted a new constitution, it recognized nature's "right
to exist, persist, maintain itself and regenerate its own vital cycles,
structure, functions and its evolutionary processes." A campaign is
also underway in Europe for a UN Universal Declaration of Planetary
Rights, which would attempt to enshrine such principles in
international law, following the model of the Universal Declaration of
Human Rights.

These
developments are part of a small but growing movement that aims to
reorient the relationship between the earth and the law. Advocates
argue that natural objects should not be treated as mere property,
vulnerable to exploitation or destruction as owners see fit, but as
rights-bearing entities with intrinsic value. The Community
Environmental Legal Defense Fund (CELDF), a Pennsylvania-based
nonprofit, works with communities such as Shapleigh to protect local
ecosystems, and more towns are considering ordinances in the same vein.
The Center for Earth Jurisprudence, established in 2006, works with two
Florida law schools, developing a legal philosophy based on respect for
the planet, and seeking avenues in current law to advance that goal.

"Someone
needs to be able to represent the rivers," says Patricia Siemen,
director of the Center for Earth Jurisprudence. "Someone needs to be
able to represent the forests."

Of
course, the notion will strike skeptics as preposterous. Would we need
to worry about offending litigious shrubs? With a boulder, or a swamp,
as a witness in the proceedings? Critics dismiss the idea as
grandstanding that could clog the courts with frivolous cases.

But
proponents see it as part of an ongoing progression, an expansion of
rights that slowly brings about an increasingly just society. After
all, not so long ago, slaves and women were in some legal regimes
deemed property, just as nature is today. Now we all accept universal
human rights. The concept of animal rights has also become familiar, if
much more contested. Advocates of this agenda see the extension of
rights to ecosystems as the natural next step. And they believe it
could spark a profound shift in our relations with nature, leading to
more effective environmental protections.

"The language of
rights has a great deal of currency. It's the most powerful of our
ethical terms," says John Baird Callicott, a philosophy professor at
the University of North Texas. "Rights shift the burden of proof from
those who are defending nature to those who want to exploit it."

In
the view of proponents, the idea is less outlandish than it may seem.
Other nonhuman entities have long enjoyed certain rights under our
legal system: ships and corporations are two examples of entities
entitled to "personhood," meaning they can bring lawsuits to court.
What's more, proponents say, the extension of rights invariably seems
absurd before it happens. When the economy depended on slave labor,
emancipation was unfathomable even to many who abhorred slavery. In
retrospect, though, it seems morally imperative and historically
inevitable.

Yet bestowing
rights on nature poses considerable practical and philosophical
challenges. In the case of the declarations in towns like Shapleigh, it
isn't always clear how they will be enforced. (So far, Nestle has not
attempted to set up operations in Shapleigh, but it's hard to say
whether that is a result of the ordinance.) Granting standing - the
ability to sue in the name of a natural object - is a more modest,
specific goal, but stipulating "inalienable rights" strikes some legal
experts as both vague and infeasible. Critics also argue that because
the language of rights is indeed potent, we ought to be wary of
diluting that force by spreading rights too thin. And they question
whether the concept of rights and interests can be applied to nature in
any meaningful way.

"All
the interests in nature conflict. Trees fight each other for sun and
water," says Mark Sagoff, an environmental philosopher at the
University of Maryland. "Granting rights to nature would just be a
distraction from the policy progress we've made."

The
debate ultimately centers on the basis of legal rights. Historically,
they have been strongly associated with human beings. All of the
formerly rightless entities who now seem so clearly deserving of rights
- infants, for example, or women, or African-Americans - share one
conspicuous trait: they're people. (Corporations and ships, it could be
argued, represent conglomerations of people.) When extended to animals,
rights have often been based on affinities with humans: sentience, the
ability to suffer. The question is how starkly we distinguish between
human and nonhuman life. Is membership in the biosphere alone enough to
merit rights?

The notion of
nature's rights has long been cherished in environmentalist circles;
the idea cropped up in the writings of Sierra Club founder John Muir in
the late 19th century and the influential ecologist Aldo Leopold in the
mid-20th century. But the first sustained legal argument is usually
attributed to Christopher Stone, a law professor at the University of
Southern California. In 1972, Stone wrote an article entitled "Should
Trees Have Standing?", which laid out the case for expanding rights
that is now commonly cited. (The essay, originally published in the
Southern California Law Review, will be reissued by Oxford University
Press in 2010.)

Stone lamented that
although one could sue to protect nonhuman life, one had to prove
"injury" to humans. Damages, when awarded, went to compensate the human
plaintiff, not to restore the natural object. He argued that natural
objects themselves should be eligible to be plaintiffs (represented, of
course, by human trustees or guardians). Furthermore, the natural
objects should benefit directly from a favorable judgment - funds
should go to restoring the damage wrought. Stone drew an analogy to the
legal status of "incompetents," such as children or senile elders, who
may not be able to articulate their interests: guardians can make
informed judgments about those interests and represent them in court.

As
it happened, a highly pertinent case was before the Supreme Court at
the time. In Sierra Club v. Morton, argued in 1971, the Sierra Club
tried to stop Walt Disney Enterprises from building a ski resort in a
pristine California valley called Mineral King. The Court decided that
the Sierra Club itself lacked standing, although it could sue on behalf
of its members, who could claim they suffered recreational or aesthetic
injuries (for example, from the lost opportunity to hike in the area).

Serendipitously,
Justice William O. Douglas had been slated to write the preface for an
issue of the Southern California Law Review, and Stone had rushed his
article into that issue, hoping that the justice would read it. The
strategy worked: Douglas dissented, echoing Stone's thesis.
"Contemporary public concern for protecting nature's ecological
equilibrium should lead to the conferral of standing upon environmental
objects to sue for their own preservation," he wrote. "This suit would
therefore be more properly labeled as Mineral King v. Morton."

For
a time, the idea appeared to gain some currency. In 1973, the
Endangered Species Act became law, including a provision for "citizen
suits" on behalf of listed species. The provision, Professor Callicott
has argued, grants de facto standing to the endangered wildlife
(although this view is controversial). In any case, the law implicitly
recognized the worth of life that has no instrumental use for people.

In
1974, Laurence Tribe, the prominent Harvard law professor, elaborated
on Stone's reasoning in an article for the Yale Law Journal. He wrote
that the legal system's focus on human injuries reinforced
anthropocentric values, creating a vicious circle that could further
increase callousness to other life forms: "What the environmentalist
may not perceive is that, by couching his claim in terms of human
self-interest - by articulating environmental goals wholly in terms of
human needs and preferences - he may be helping to legitimate a system
of discourse which so structures human thought and feeling as to erode,
over the long run, the very sense of obligation which provided the
initial impetus for his own protective efforts."

In 2008, Francisco
Benzoni, then a business professor at Duke, published an article in the
Duke Environmental Law and Policy Forum, citing Tribe's paper and
reviving the point. "The current jurisprudence on standing embeds a
value theory without any articulation or discussion about whether
that's the value theory we should adopt," says Benzoni.

In
the intervening years, a number of lawsuits have named nonhumans,
usually animals, as plaintiffs. The rulings have been inconsistent. In
one oft-cited case, Palila v. Hawaii, in 1988, the Ninth Circuit Court
of Appeals explicitly endorsed the standing of a bird, writing that it
"has legal status and wings its way into federal court as a plaintiff
in its own right." In 2004, however, the same court (but different
judges) dismissed that statement as nonbinding "rhetorical flourishes."

The
need to frame arguments in terms of their human effects has led to some
almost comically contorted claims. In Animal Welfare Institute v.
Kreps, in 1977, several environmentalist groups sued to stop US firms
from importing baby sealskins from South Africa, asserting that their
members suffered aesthetic, recreational, and educational losses from
the brutal deaths of the seals. One of the members announced a plan to
visit South Africa. Remarkably, the groups won the case on appeal. But
some who applaud the outcome question the method.

"Oh,
for Pete's sake, just sue in the name of the seals," says Stone, the
author of the seminal paper on rights for nature. "The seals are being
bludgeoned to death and somebody's saying, 'I want to be seeing seals.'
That's not what it's about. It's a very backwards way of getting the
case into court."

Some
champions of nature's rights see a glimmer of promise in a recent
ruling. In the 2004 case Cetacean Community v. Bush, about the effect
of the Navy's use of sonar on whales and dolphins, the Ninth Circuit,
which is one level below the Supreme Court, denied standing to the
creatures. However, the opinion left an opening, noting that "nothing
in the text of Article III [of the US Constitution] explicitly limits
the ability to bring a claim in federal court to humans." It would be
up to Congress, the judge suggested, to stipulate that the nonhuman
life under a law's protection has standing to sue. Some
environmentalists, such as the staff at the Center for Earth
Jurisprudence, now hope Congress can be persuaded to do just that - and
their ideal legislation would not be limited to animals, either.

Among
scholars with environmentalist sympathies, there is vigorous debate
over whether standing for natural objects is the most sensible approach
to defending ecosystems. After all, it's possible to enlarge the scope
of our concern and protection without granting legal rights per se.
Rights advocates contend that presenting legal cases in terms of human
impacts is too anthropocentric, but critics invert that logic. They say
we are projecting onto nature our assumptions about its interests.
Ultimately, in their view, even the most radical environmentalist
embodies human values, and we should just say so.

Richard
Stewart, a law professor at New York University, believes that
inanimate objects such as trees and rivers do not have interests or
values. Rather, he says, the argument really concerns "human ideas
about what's good for nature."

The
distinction can be subtle. It doesn't mean we must diminish the worth
we assign to nature; it just means acknowledging that we as a society
are assigning the value. We could, for example, liberalize standing for
humans - make it easy for people to sue to protect nature, without
granting official standing to the natural objects. If we could sue to
preserve a valley because developing it offends our moral
sensibilities, this would indicate that nature matters beyond its
strictly instrumental uses. But, according to this perspective, it
matters to us humans, not in some transcendent way that is independent
of our judgments.

Indeed,
some critics ask, how do we know what nature prefers? Perhaps Mineral
King wanted to host a ski resort, Mark Sagoff has suggested; perhaps a
beach wants to welcome tourists, or a river wants to make electricity.
As Sagoff puts it, "Old Man River might want to do something for a
change, other than just rolling along."

AMP Section Name:Natural Resources
  • 183 Environment
  • 187 Privatization