In 1972, Christopher Stone, a Harvard law professor, proposed the thoughtful rationale “Should Trees Have Standing?” to explore the topic of potential rights of nature from a legal perspective. He opined that rivers and trees and other “objects” of nature have rights and that these should be protected by granting legal standing to guardians of these objects. This argument resonated with then-U.S. Supreme Court Justice William O. Douglas, who argued in a dissent in the case of Sierra Club v. Mortonthat standing should be given to natural entities so that successful legal claims might be made for their preservation.

While the idea of the rights of nature is not new, it has only recently begun gaining momentum, spurred by Ecuador’s addition of provisions to ensure the rights of nature to its constitution in 2008.  The concept is generally defined as the recognition and respect for the idea that natural ecosystems (including trees, oceans, animals, mountains, and other living or non-living entities in nature) have legal rights – specifically, to exist, persist, regenerate, and maintain their vital cycles.  Accompanying this right is the legal authority and duty of humans to enforce these rights on behalf of nature.

The Concept of Rights of Nature Gains Traction 

Ecuador was the first sovereign nation to give legal recognition to rights of nature in response to proposed oil and mineral development in its rainforest areas.  In 2008, provisions to protect the rights of nature were added to the country’s constitution, and validated a few years later when the rights of the Vilcabamba River were subsequently recognized in Ecuador’s courts. The efforts in Ecuador to secure rights for ecosystems and other parts of nature are closely related to indigenous people’s struggles for recognition of their rights and attempts to protect their traditional lands and ways of life.

Bolivia has also enacted laws that provide nature and its features with rights.  Law 071, The Law of the Rights of Mother Earth, was spearheaded by indigenous and campesino (small-scale farmer) grassroots movements and has at its heart the directive that the state and any individual or collective person must respect, protect, and guarantee the rights of Mother Earth for the well-being of current and future generations.

Adoption in the U.S.

In the United States, environmental and rights-of-nature provisions have been increasingly adopted by local communities, often spurred by the desire to prevent certain activities and land uses with potentially high environmental impacts such as hydraulic fracturing oil and gas well development.

After many of these local provisions have been struck down for being inconsistent with or overridden by state statutes, proponents for rights of nature have sought to have these principles enacted into state laws.  Pennsylvania amended its constitution to recognize environmental rights, and in Colorado, the state Supreme Court has approved a ballot petition that, if passed, would authorize municipalities to pass laws establishing the rights of nature.

A Question of Standing

Regardless of the extent of rights granted to nature, it must rely on human representation to assert and defend these rights in a court of law.  Accordingly, the initial threshold issue to be resolved is, who has standing to bring a legal action on behalf of nature?

In the United States, various interest groups have attempted to bring legal actions as guardians of the environment. Often, these efforts have been thwarted at the outset for lack of standing to bring the lawsuit.  This is because the threshold for standing has been injury to the plaintiff bringing the legal action, not the injuries to nature and natural objects that the plaintiff is trying to prevent. The connection from personal harm to environmental harm that is sought to be prevented or remedied is often difficult to establish.

Additionally, standing requires the plaintiff to demonstrate a personal stake in the outcome.  Personal stake often has little or no connection to the actual harm suffered by the environmental interest protected by the law.

The movement toward establishing rights of nature attempts to solve the challenges of legal standing. In Pennsylvania, the state Supreme Court found that the state’s constitutional environmental rights amendment gives municipal governments a duty to protect the public trust.

In New Zealand, where the Whanganui River has been granted legal rights (personhood, with ownership of its river bed), both the government and the Maori have been designated guardians to ensure that the river’s rights are protected. Ecuador’s constitutional rights of nature are so broad that two foreign residents were able to successfully bring the Vilcabamba River lawsuit.

Pandora’s Box?

If the rights of nature, as granted in law in countries like Ecuador and Bolivia, were enforced as envisioned, what real impact would this have on environmental protection?  It is possible that, if the issue of standing were removed for environmental nonprofit “guardian” groups, courts could be overwhelmed with cases being brought by such organizations on behalf of various areas of nature.  Court victories by guardian groups under these provisions could be seen as giving de facto protection (through judicial precedent) to resources not protected by law specifically, but widely recognized by guardian groups and others as ecologically valuable.

The lack of specific rights of nature court cases from which to draw an opinion leads to other questions – would every creek, river, forest, and other resource then be protected via enforcement of its rights, or would this in reality only apply to natural objects that are extraordinary? The answers to these and other questions will continue to unfold as the idea of the rights of nature progresses.

By Dusty Miller, Black & Veatch

Published originally on Black & Veatch Solutions.