95. recognize the rights of nature
“SO WHAT WOULD A RADICALLY DIFFERENT law-driven consciousness look like?” The question was posed over three decades ago by a University of Southern California law professor as his lecture drew to a close. “One in which Nature had rights,” he continued. “Yes, rivers, lakes, trees. . . . How could such a posture in law affect a community’s view of itself?” Professor Christopher Stone may as well have announced that he was an alien life form. Rivers and trees are objects, not subjects, in the eyes of the law and are by definition incapable of holding rights. His speculations created an uproar.
Stone stepped away from that lecture a little dazed by the response from the class but determined to back up his argument. He realized that for nature to have rights the law would have to be changed so that, first, a suit could be brought in the name of an aspect of nature, such as a river; second, a polluter could be held liable for harming a river; and third, judgments could be made that would benefit a river. Stone quickly identified a pending appeal to the United States Supreme Court against a decision of the Ninth Circuit that raised these issues. The Ninth Circuit Court of Appeals had found that the Sierra Club Legal Defense Fund was not “aggrieved” or “adversely affected” by the proposed development of the Mineral King Valley in the Sierra Nevada Mountains by Walt Disney Enterprises, Inc. This decision meant that the Sierra Club did not have “standing” so the court didn’t need to consider the merits of the matter. Clearly, if the Mineral King Valley itself had been recognized as having rights, it would have been an adversely affected party and would have had the necessary standing.
Fortuitously, Supreme Court Justice William O. Douglas was writing a preface to the next edition of the Southern California Law Review. Stone’s seminal “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (“Trees”) was hurriedly squeezed into the journal and read by Justice Douglas before the Court issued its judgment. In “Trees,” Stone argued that courts should grant legal standing to guardians to represent the rights of nature, in much the same way as guardians are appointed to represent the rights of infants. In order to do so, the law would have to recognize that nature was not just a conglomeration of objects that could be owned, but was a subject that itself had legal rights and the standing to be represented in the courts to enforce those rights. The article eventually formed the basis for a famous dissenting judgment by Justice Douglas in the 1972 case of Sierra Club v. Morton in which he expressed the opinion that “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.”
The Community Environmental Defense Fund has written a sample local law that would guarantee the rights of nature:
- “Ecuador Adopts New Constitution: Voters Approve Rights of Nature”
- “Tamaqua Law is First in Nation to Recognize Rights of Nature”
- “The Emancipated Earth: Ecuador’s Constitution Grants Rights to Nature, It’s Time for the Rest of the World to Follow Suit.”