Rights of Nature

Activists call for a legal transformation

By Mike Ludwig

The mighty Colorado River and its watersheds are a crucial source of life in the arid Southwest, supplying water to vast ecosystems and millions of people across seven states and northern Mexico. With so much depending on its existence, the Colorado River filed a groundbreaking lawsuit against the state of Colorado last month, demanding that its right to evolve, flourish and be restored in the wake of human interference be recognized in the court of law.

Well, sort of. An activist lawyer filed the legal complaint at a federal district court in Denver, naming the river itself as a plaintiff and calling on the court to recognize its ecosystems as a “person” under the law. Still, Colorado River v. Colorado is fairly unprecedented, at least in the United States.

Bodies of water can’t defend themselves in court, but they do not go untouched by the law. All the organisms—including humans—that depend on a river to survive can be affected when existing environmental laws fail to prevent water pollution, or when a government or corporation wins the legal right to guzzle up its life-giving resources.

Western states have fought over the Colorado River’s water resources for decades, damming and diverting more than 70 percent of its water to vast cities and cropland. In 2015, two tributaries of the Colorado River suffered an environmental disaster when federal remediation workers accidently allowed 880,000 gallons of wastewater contaminated with heavy metals to spill from the defunct Gold King Mine in Silverton, Colorado.

“Water is life,” declared the Native Water Protectors and allied activists at Standing Rock. Without clean water, clean air and a stable climate, the future of all life on Earth is in peril, including our own. This raises important questions: Is a river like the Colorado simply a collection of resources to be bought, sold and haggled over in courts and legislatures? Or do rivers and all ecosystems actually rise above monetary value?

The answer to this question is central to a growing global movement of activists and attorneys who are forging a new kind of environmental law by proclaiming the legal “rights of nature.” Since nature can’t directly assert legal rights itself (although the Earth may punish us for disrupting the climate and other follies), these advocates also fight for the right of local communities to protect the natural systems around them from destruction and exploitation.

That nature and its entities have the same “right” to exist and flourish as people do is not a new concept—many Indigenous people have embraced such ideas for millennia. However, the lawsuit filed on behalf of the Colorado River is attempting to inject this thinking into the contemporary legal system, challenging Western capitalist notions such as “corporate personhood” in the process. 

“The rights of nature is all of us sitting here, because there is no separation,” said Casey Camp-Horinek, a water protector, grandmother and activist from the Ponca Tribe of Oklahoma, at a recent symposium on the rights of nature at Tulane University in New Orleans. “When we say ‘rights of nature,’ are we so ego-bound that we think it is separate from human beings?”

Does nature have legal rights?

Colorado River v. Colorado outlines the basic ideas driving the “rights of nature” movement. The current system of law has failed to adequately protect the environment and the natural and human communities that depend on it, as evidenced by climate disruption and rampant pollution. Current laws fail because they treat the natural world as private property, with existing protections only regulating the rate at which it is exploited and destroyed in the name of profit.

The lawsuit traces its legal roots back to a 1971 dissent written by liberal Supreme Court Justice William O. Douglas, who argued that “inanimate objects” are unable to represent themselves in court but are parties to lawsuits all the time. For example, a cargo ship has a legal personality for the purpose of maritime law. “Contemporary public concern for protecting nature’s ecological equilibrium,” Douglas wrote, is reason to give “environmental objects” standing to sue for their own preservation.

After all, if a corporation can claim the same legal rights as persons, as the Supreme Court famously held in Citizens United v. Federal Elections Commission and other cases, then why not a river ecosystem that has sustained human civilization in the Southwest for many thousands of years, and life for millions more? Still, the lawsuit faces a tough road ahead.

An initial hearing on the case was set for November 14, and Colorado’s attorney general has already called for it to be thrown out. [Update: On December 4, 2017, a federal court dismissed the lawsuit.1] The lawsuit asks the court to recognize members of the radical environmental group Deep Green Resistance as “next friends” of the Colorado River who may defend its rights in court, a request that could raise eyebrows because the group has promoted Earth-defense tactics such as sabotage that are technically illegal.

The case is not without precedent, however, at least internationally. Earlier this year, the high court in India’s northern state of Uttarakhand issued a ruling recognizing the Ganga and Yamuna Rivers as legal persons with certain rights in order to “preserve and conserve” water resources. The ruling came after the same court found that the rivers and glaciers that feed them are “central” to the well-being of half the Indian population, but still they suffer from pollution that threatens their very existence.

Similar rulings have come out of a number of other countries in recent years. A river in New Zealand now enjoys the same rights as a person under a law that Indigenous people spent decades fighting for. In 2010, Bolivia’s legislature passed a law affirming the “rights of Mother Earth.” In 2008, Ecuador enshrined the rights of nature or “pachamama” into its constitution, and legal rulings there have since recognized that rivers have rights that can be violated by human activity.

While these victories are milestones for the rights of nature movement, they have not put a total halt to pollution and resource extraction in their respective jurisdictions.

Ecuador’s constitutional amendment was a “top down” initiative won by NGOs and friendly lawmakers rather than a bottom-up grassroots effort, according to Natalia Green of Ecuador’s Pachamama Alliance, which pushed for the constitutional amendment and also works with Indigenous groups on the ground. Empowering local communities to defend the rights of the natural systems around them is often a different story, and it’s how the movement is making the most immediate impact in the U.S.

“We need to have everyone in the country believing that nature has rights, and that’s why we start at the local level,” said Ben Price, an organizer with the Community Environmental Legal Defense Fund (CELDF), during a symposium in New Orleans.

CELDF worked on the constitutional amendment in Ecuador and is at the forefront of the rights of nature movement in the U.S., where it’s a major backer of the Colorado River lawsuit. It’s also a driving force behind the “community rights movement,” which has taken hold in town halls across the U.S. as local communities take a stand against invading polluters.

A tiny town takes on
the fracking industry

In 2013, Pennsylvania General Energy (PGE) proposed a fracking wastewater injection well in Grant Township, Pennsylvania, a rural community of about 700 people. Wastewater from fracking can contain dangerous chemicals and radioactive material, and injection wells have been linked to water pollution and earthquakes.

Residents weren’t happy about the proposal, which would bring 152 million gallons of fracking waste into Grant Township to be dumped down the well over the next decade, according to CELDF. About 50 people showed up in opposition to the injection well at an initial public hearing held by the Environmental Protection Agency, but months later they learned that a permit would be issued anyway.

So, in 2014, the township adopted a “community bills of rights” ordinance that banned injection wells and asserted the community’s right to self-governance, with help from CELDF.

PGE then sued the township, arguing the ordinance violated its corporate constitutional “right” to build the injection well. In response, CELDF filed a motion to intervene on behalf of residents and the local watershed, which is home to the hellbender salamander, the largest aquatic salamander in North America. CELDF’s assertion of the rights of nature alarmed the oil and gas industry, which feared that the move could set a dangerous precedent.

In 2015, a federal district court threw out the motion to intervene and ruled that state law preempted the local ordinance banning injection wells. The ruling put the well back on track, so local activists and township commissioners went to work knocking on doors and building opposition among their neighbors.

Within weeks, the township adopted the country’s first municipal charter establishing a local “bill of rights,” including the right to prohibit injection wells. Highland Township, another rural community in Pennsylvania facing a proposed injection well, worked with CELDF and passed a similar charter. The charters define local government structure and establish “home rule” in order to trump state laws seen as favorable to industry.

“What if your community could just say ‘no’ instead of using loopholes like industrial zoning [to stop polluters]?” said Grant Township Supervisor Stacy Long at the symposium in New Orleans.

The charters effectively stalled the state permits for the injection wells, but eventually the state relented. In March, the Pennsylvania Department of Environmental Protection, which was mired in controversy for working too closely with the industry during the state’s fracking boom, finally issued permits for the injection wells. Regulators then sued both townships, arguing that the charters unlawfully interfered with state oil and gas policies.

For rights of nature activists, legal battles like this one are proof of the absurdity that plagues current environmental laws and regulations, which favor the rights of big business over ecosystems and fail to protect the people living in harm’s way.

“Our community wrote a new constitution, with wide community support and input, to protect our rights and our environment,” Long said in a statement at the time. “And now we’ve been sued, not only by a corporation that wants to profit by dumping toxic waste in our community, but also by our own state ‘environmental protection’ agency.”

PGE, perhaps wary of the community rights activism that boiled up in response to its injection well proposal, asked a federal court in July to order CELDF to pay $560,000 in compensation for the attorney fees it accrued while fighting Grant Township in court over the past three years. CELDF is a relatively small organization that provides pro bono and low-cost legal assistance, and the fees would suck up more than half of its annual budget.

However, both cases are still winding through the courts, effectively blocking the injection wells in both townships to date. Last year, Grant Township passed another ordinance recognizing the rights of local residents to engage in nonviolent civil disobedience if PGE wins the legal right to finally install the injection well. 

“This work is really about conducting civil disobedience through municipal lawmaking, challenging the system by using the system,” CELDF Associate Director Mari Margil told Truthout in an interview.

If the goal is to block unwanted industrial activity, the rights of nature movement has had a number of successes. Margil said small towns in the Northeast have used community rights ordinances to ward off Nestle and other private water companies. About 200 communities across the country have now passed local ordinances declaring their rights to ban fracking, wastewater injection, sludge dumping, factory farming and other sources of industrial pollution.

“For the most part, those laws are in place and prohibiting the activity that has been banned,” Margil said.

In Ohio, Washington and other states where community rights initiatives have been challenged by powerful corporations and preempted by state law, networks of community activists are pushing legislation and ballot initiatives that would enshrine that right to local self-governance into state law. In Wisconsin, the Ho-Chunk Nation is considering a rights of nature amendment to its tribal constitution. A final vote is expected next year.

CELDF admits that its efforts cannot always succeed under the current legal system. However, activists say, inspiring people to challenge that system is a success all its own.

“Suddenly, people are willing to fight like hell when they didn’t used to be,” Price said. “For me right now, the success is that people are engaging in ways that they never have before.”

Just a decade ago, the rights of nature movement occupied an odd corner on the fringe of environmentalism. Since then, its influence has grown both globally and at home, operating at the intersection of traditional legal tactics and radical environmental ideas rooted in Indigenous wisdom that have called activists to direct action for decades. Whether the rights of nature will be accepted into the broader legal system remains to be seen, but in a time of mounting ecological crises, recognizing nature’s right to flourish may just be what preserves our own.

Mike Ludwig is a staff reporter at Truthout and a contributor to the Truthout anthology, Who Do You Serve, Who Do You Protect? In 2014 and 2017, Project Censored featured Ludwig’s reporting on its annual list of the top 25 independent news stories that the corporate media ignored.

—Truthout, November 10, 2017

http://www.truth-out.org/news/item/42565-nature-has-rights-activists-call-for-a-legal-transformation

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1 “Colorado vs. Colorado Lawsuit Dismissed,” December 4, 2017

http://news.kgnu.org/2017/12/colorado-river-vs-colorado-lawsuit-dismissed/