It’s Time for an Earth Law Textbook

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By Darlene Lee

Earth Law Center (ELC) is creating the first-ever law textbook on the legal movement to establish rights for nature. While targeted to law schools, the textbook will also be available for university courses and elsewhere. The goal is to train the next generation of rights of nature experts.

Background: A movement to Establish Equal Rights for Nature

Will Falk, lawyer and environmental activist asks, “Which corporation provides drinking water to 40 million Americans?” The answer is not a brand name, it’s the Colorado River – since no corporation provides drinking water to 40 million Americans. Yet despite no corporation being able to equal the life-giving activities of ecosystems, corporations under American law are considered “persons” and ecosystems are not. For the past decade, a growing movement committed to achieving legal rights for nature has sought to change this peculiarity.[i]

So What Exactly is Rights of Nature?

Rights of nature (and related movements) is also referred to as Earth Law, Earth Jurisprudence, and Wild Law.

Environmental attorney and author Cormac Cullinan coined the term Wild Law. In his book, Wild Law: A Manifesto for Earth Justice, he explains the rights of nature ethos:

Within the Earth system, the well-being of the planet as a whole is paramount. None of the components of the Earth’s biosphere can survive except within the Earth ecosystem. This means that the well-being of each member of the Earth Community is derived from, and cannot take precedence over, the well-being of Earth as a whole. Accordingly, the first principle of Earth jurisprudence must be to give precedence to the survival, health and prospering of the whole Community over the interests of any individual or human society. Giving effect to this principle is actually also the best way of securing the long-term interests of humans. It is only our failure to appreciate that we are part of the Earth Community has led us to believe and act as if the reverse were true.

Earth Law Center is working with partners to apply rights of nature principles to North American waterways. Some have dubbed this “human rights for rivers,” but rights of persons is a better term. The reason why is explained by David Boyd, author of The Rights of Nature: A Legal Revolution That Could Save the World. In conversation on the show Living on Earth, Boyd noted:

And in our western legal systems we’ve recognized the legal rights of non-human persons for many, many years. So, examples include municipalities and corporations that we designate as legal persons, and then through the law we articulate what are the rights of a corporation, for example. So now what’s emerging around the world in terms of the rights of nature are, what are the rights of a river? What are the rights of a chimpanzee? What are the rights of an ecosystem? So, we have to be quite clear in distinguishing human rights, which we’re not talking about, from the rights of legal persons, which we are talking about.[ii]

How Sierra Club v. Morton Paved the Way for Earth Law

The Mineral King Valley, an undeveloped part of the Sequoia National Forest used primarily for mining, attracted the interest of developers in the 1940s. Walt Disney Enterprises won a bid to start surveying the valley in the hopes of developing an 80-acre ski resort. The size of the proposed resort would require the construction of a new highway and massive high voltage power lines that would run through the Sequoia National Forest.

The Sierra Club filed preliminary and permanent injunctions against federal officials to prevent them from granting permits for the development of the Mineral King Valley. Although the district court granted these injunctions, the U.S. Court of Appeals for the Ninth Circuit overturned the injunctions on the grounds that the Sierra Club did not show that it would be directly affected by the actions of the defendants and therefore did not have standing to sue under the Administrative Procedure Act.

At the Supreme Court in Sierra Club v. Morton, Justice William O. Douglas wrote a dissenting opinion in which he argued that the standing doctrine should allow environmental organizations such as the Sierra Club to sue on behalf of inanimate objects such as land. There is precedent for inanimate objects to have legal personality for the purpose of lawsuits, and “[t]hose who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.” So despite having failed, the case created an important legal distinction. After years of legal battles, the Mineral King Valley was annexed into Sequoia National Park in 1978 and remains undeveloped to this day.

What are the Milestones in the Rights of Nature Movement?

We can gain a greater understanding of rights of nature by looking at its history and how it began. A textbook on rights of nature will be a resource for the understanding of the movement’s development.

The rights of nature movement (in the context of western legal systems) emerged in the 20th century, drawing on the shared worldviews of indigenous peoples around the world.  In addition to the impassioned dissent in Sierra Club v. Morton discussed above, there are several important rights of nature milestones in recent years:

  • In the 1920s and 1930s, scientist and ecologist Aldo Leopold developed his ethics of nature and wildlife preservation. Leopold’s work had a profound impact on the environmental movement. With ecocentric or holistic ethics regarding land, he emphasized biodiversity and ecology.[iii]
  • Starting in the 1970s, theologian and philosopher Thomas Berry called for the restitution of habitat for biodiversity, not simply as a conservation measure but in recognition of the intrinsic value of nature.[iv]
  • In her 1962 book Silent Spring, Rachel Carson asked the hard questions about whether and why humans have the right to control nature; to decide who lives or dies, to poison or to destroy nonhuman life. In showing that all biological systems are dynamic and by urging the public to question authority, Carson initiated the contemporary environmental movement.[v]
  • In 1972, Christopher Stone’s seminal article “Should trees have standing – toward legal rights for natural objects” mapped out the first legal argument for rights of nature.[vi] It was published in the Southern California Law Review.
  • In 1982, over 100 member states of the United Nations General Assembly adopted a “World Charter for Nature”. The Charter formulates general principles and obligations to guide human conduct, laws and practices towards protecting nature. Recognizing the intrinsic value of nature and that humans are part of nature, the Charter calls for humans to be guided by a moral code of conduct that does not compromise the “integrity of those other ecosystems or species with which they coexist.”
  • In 1989, Professor Roderick Nash published The Rights of Nature: A History of Environmental Ethics. It was the first comprehensive history of the concept that nature has rights and that American liberalism has, in effect, been extended to the nonhuman world.[vii]
  • In 2003, South African attorney Cormac Cullinan published Wild Law: A Manifesto for Earth Justice. His book shows that the survival of the community of life on Earth (including humans) requires us to go beyond merely changing individual laws. Cullinan argues that we should fundamentally alter our understanding of the nature and purpose of law.”[viii]
  • In 2008, driven by popular vote, Ecuador became the first country in the world to recognize the rights of nature in its national constitution.[ix]
  • In 2009, the first UN General Assembly adopted a “Resolution on Harmony with Nature,” launching a dedicated focus on rights of nature within the UN.[x]
  • In 2011, the Provincial Court of Justice of Loja decided in favor of the plaintiff, the Vilcabamba River, which successfully defended its rights to “exist” and “maintain itself.”[xi]
  • In 2012, Bolivia's Plurinational Legislative Assembly passed the “Law Under the Mother Earth” which recognizes the rights of Mother Earth in statutory law.[xii]
  • In 2012, New Zealand’s national government recognized the Whanganui River as a legal person.[xiii]
  • By 2013, Santa Monica passed a biodiversity ordinance that includes rights of nature. This arose from collaboration with Earth Law Center and other partners.[xiv] Santa Monica became the first West Coast city with a rights of nature law, joining dozens of other municipalities that recognized nature’s rights due to the work of the Community Environmental Legal Defense Fund and others.[xv]
  • In 2016, Colombia’s Constitutional Court recognized the Atrato River basin as having rights to “protection, conservation, maintenance and restoration.”[xvi]
  • In the same year, Te Urewera – a national park on New Zealand’s North Island - became a legal entity with “all the rights, powers, duties and liabilities of a legal person.”[xvii]
  • In 2017, Mount Taranaki on the west coast of North Island gained legal rights in New Zealand.[xviii]
  • Also in 2017, the new Constitution of Mexico City included rights of nature.[xix]
  • In 2018, Mexico City passed new legislation granting rights of rivers.

Now is the Time for an Earth Law Legal Textbook

The rights of nature movement has greatly advanced and there are now precedents in its application around the world. A new generation of judges and lawyers in training needs a deeper understanding of rights of nature because the movement is a legal reality in the courtroom.

Earth Law Center aims to create the first ever Earth Law textbook for use in law schools and universities across the United States. The textbook will build on Earth Law Center's years of teaching Earth Law at Vermont Law and other schools.

The team will start by delving into centuries of U.S. case law and other important legal precedents to create a narrative of the legal movement to establish rights for nature.

ELC is currently reaching out to potential publishers and plans to complete the book for Fall 2018.

What Will the Earth Law Legal Textbook Contain?

While still in the early stages of development, the current draft outline includes the following chapters:

A.  Standing Background

  1. Baker v. Carr, 369 U.S. 186 (1962) (standing to require “such a personal stake ... to assure ... concrete adverseness)
  2. Should Trees Have Standing? (Christopher Stone)
  3. Sierra Club v Morton, 405 U.S. 727 (1972) (Douglas dissent on ecosystem standing)
  4. Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990)
  5. Recent developments

B.  Shortcomings of Modern Environmental Laws:

  1. Endangered Species Act – protecting species only on the brink of extinction (case law examples)
  2. Clean Water Act – the “right to pollute” and other limitations (case law examples)
  3. Other examples

C.  Precedent of Rights for Nonhumans

Corporate Rights

  1. Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394, 394 [headnote] (1886)
  2. Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 87 (1938) (Black, J. dissenting: "Corporations have neither race nor color")
  3. Citizens United v. Fed. Election Comm’n, 558 U.S. ___, 130 S. Ct. 876, 913 (2010) (lifting restrictions on corporations’ independent expenditures on political speech.

Animal Rights

  1. Tilikum v. Sea World Parks & Entertainment, Inc., 842 F. Supp. 2d 1259 (2012)
  2. Nonhuman Rights Project trilogy (v. Lavery, Presti, & Stanley)

Other

  1. Ships (United States v. Cargo of the Brig Malek Adhel 42 U.S. 210 (1844)

D.  Precedents in Decisions About Human Guardianship

  1. Children
  2. Mentally incapacitated
  3. Embryo/unborn child

E.  Rights of Specific Ecosystems

Rivers

  1. Holmes, J. in New Jersey v. New York, 283 U.S. 336, 342 (1931): "A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it."

Other Ecosystems

F.  American Indian Law & Customary Law

G.  International / Foreign Rights of Nature Governance

Ecuador

  1. Vilcabamba River case
  2. Other cases (e.g., Galapagos)

Bolivia
New Zealand
Elsewhere (India, Colombia, Mexico, etc.)
United Nations

H.  Related Movements

  1. Ecocide
  2. Animal Rights
  3. Rights for Future Generations

 I.  The Future of Earth Law

 

How You Can Help

Join the movement and support this crucial initiative!

To volunteer with the textbook project, please click here

To support the legal textbook, donate here.

If you know of a law school that would like ELC to guest lecture, please email dlee@earthlaw.org.

Click here for more details about our educational programs.

To find out more about ELC, sign up for our newsletter here.


[i] http://willfalk.org/finally-an-american-rights-of-nature-movement/

[ii] http://www.loe.org/shows/segments.html?programID=17-P13-00046&segmentID=5

[iii] https://en.wikipedia.org/wiki/Aldo_Leopold

[iv] http://thomasberry.org/life-and-thought/about-thomas-berry/introduction

[v] http://www.rachelcarson.org/

[vi] https://www.amazon.com/Should-Trees-Have-Standing-Environment/dp/0199736073

[vii] https://uwpress.wisc.edu/books/0456.htm

[viii] https://www.amazon.com/Wild-Law-Manifesto-Earth-Justice/dp/1603583777

[ix] https://dotearth.blogs.nytimes.com/2008/09/29/ecuador-constitution-grants-nature-rights/

[x] http://www.harmonywithnatureun.org/chronology.html

[xi] https://therightsofnature.org/first-ron-case-ecuador/

[xii] https://en.wikipedia.org/wiki/Law_of_the_Rights_of_Mother_Earth

[xiii] https://www.parliament.nz/en/get-involved/features/innovative-bill-protects-whanganui-river-with-legal-personhood/

[xiv] https://globalexchange.org/2013/04/11/legalizing-sustainability-santa-monica-recognizes-rights-of-nature/

[xv] https://celdf.org/community-rights/

[xvi] https://www.internationalrivers.org/blogs/433/colombian-river-gains-legal-rights

[xvii] http://www.legislation.govt.nz/act/public/2014/0051/latest/DLM6183601.html

[xviii] https://www.theguardian.com/world/2017/dec/22/new-zealand-gives-mount-taranaki-same-legal-rights-as-a-person

[xix] http://www.harmonywithnatureun.org/rightsofnature.html