Earth Law for the Nelson Mandela Community Garden

Figure 1. Wildflowers Photo by Eva Waardenburg on Unsplash

Figure 1. Wildflowers Photo by Eva Waardenburg on Unsplash

By Blake Crow

Earth Law Center has submitted an Amicus Brief to the Supreme Court of New York on behalf of the Nelson Mandela Community Garden in New York City, the first Amicus Brief in the state to support rights of nature.

About the Nelson Mandela Garden

The Nelson Mandela Community Garden is a 0.15 acre community green space located in Harlem, a large neighborhood in the northwest of Manhattan borough in New York City, New York. After 30 years of sitting vacant, community members transformed the lot into the present-day garden that hosts the only wildflower meadow in New York City. A citizen group hosts the garden and through it promotes the human benefits of green space. Since 2015, however, the City has targeted garden lots for future development, including the Mandela Garden. 

Benefits of Urban Gardens

People who view or interact with nature are known to be happier and healthier. Community gardens offer place for people to participate in hobbies (gardening, bee keeping); relax in a safe space; interact with neighbors; grow natural foods; and so much more. Residents who live near gardens are likely to take additional pride in their neighborhood and protect its well-being.

Not only will replacements of the garden extract a community meeting place, a sanctuary for mental health, and a visual enhancement, it will also limit nature’s ability to grow, propagate, and cleanse the environment. Native plant species can thrive when allowed to mature and even assist with mitigation, such as trees absorbing excess water after a heavy rain event. Above and beneath the surface they are also working to absorb and conduct evapotranspiration of rainwater and even filter out pollutants carried by runoff. With the proper selection of flora species, even a small lot can produce improvements to air and water qualities, in addition to reducing the heat island effect.

What is Earth Law?

Earth Law recognizes the rights of Earth and considers Earth as its own law entity. Earth Law should not be confused with environmental laws, which regulate the impacts of human impacts on earth for the benefit of citizens, not necessarily for the benefit of earth itself. Earth Law, or Wild Law, is in alliance with rights of nature, ecocide, and the rights of future generations movement.

Earth Law Center (ELC) is expanding the realm of Earth Law by developing and promoting nature’s rights through new laws, management plans, and in-court support.

One recent example from July 2018 involves ELC and partners assisting the town of Crestone, Colorado in establishing and passing a resolution to recognize rights of nature. Other areas that provide legal defense for nature include the countries of Ecuador and Bolivia and localities in India and New Zealand. 

Between 2016 and 2017 the New Zealand government granted legal personhood to the Te Urewera National Park and Whanganui River and its tributaries. Defense of these natural areas included ensuring the park’s “intrinsic worth” and the river’s deep Maori cultural value. The process involved passing the Te Uewera Act for protection of the park and establishing a board to enforce it, resulting in its release from government ownership. Under the Tutohu Whakatupa Treaty, the government also recognizes the Whanganui River as a legal person known as Te Awa Tupua, which two official guardians now protect and manage.

Legal Rights

Regarding the mentioned gardens in New York, the City does not recognize any of these transformed green spaces (that are proven to be cared for by the community) as parklands. If they were considered to be a NYC park, garden, or open space, removal of these natural environments would be in direct opposition to the public trust doctrine, which requires state legislature approval for the removal of parkland. This doctrine is a necessary step in defending nature’s place in the developed world.

Figure 2. Wildflowers Photo by Erda Estremera on Unsplash

Figure 2. Wildflowers Photo by Erda Estremera on Unsplash

Protection for the Nelson Mandela Garden is being fought in court under an Article 78 lawsuit that claims the City violated procedural due process during site selection. In November 2018 numerous community members and politicians including Councilman Raphael Espinal arrived at the courthouse to defend the garden. During its proceedings, the Earth Law Center’s Amicus Brief was accepted by the Court. The case is ongoing and will continue in Supreme Court.

Friends of the Elizabeth Street Garden, under attorney Norman Siegel, filed a lawsuit to protect the garden. In a December 2018 interview Siegel explained, “The garden is an oasis, we also think they have to provide an environmental impact statement which they haven’t done and we basically said there are serious and substantial legal problems with this plan.” Its legal defense fund received support from The New York Community Trust to the sum of $20,000. The Friends’ petition to the City includes the significance of green space in a densely-populated area and the community's strong connection to the park that with its loss would cause irreparable harm.

Other Threatened NYC Gardens

Development is threatening other NYC gardens, including the Pleasant Village Community Garden and the Elizabeth Street Garden. Pleasant Village is a 0.11 acre community garden in East Harlem that hosts pollinators and chickens, as well as a highly-used compost bin. The City views the lot as vacant and included the lot in its 2016 RFP for affordable housing development, which includes 143 other lots.

Elizabeth Street Garden is a 0.46 acre community green space in Little Italy. The garden has been managed by community members since 2013 and its Friends Of supporting network includes hundreds of volunteers. However, what is now green space will soon be paved over for the City to allow developers to construct a seven-story housing development project. In December 2017, 100 community members protested at City Hall to save the garden, nevertheless, plans moved forward.

Actions

Actions that supporters of the Mandela Garden and other threatened nature locations can pursue include identifying alternative locations for development, such as currently paved, vacant sites, submitting amicus briefs, and contacting local representatives to share concern for nature rights.

Advocates should reference additional resources to expand their awareness of local nature rights. The Elizabeth Street Garden Annual Report includes a list of NYC models for conservation including Mapped NYC Park Land, Green Thumb Garden, and the Conservation Land Trust.

Amicus Brief

Amicus briefs are legal documents filed in court cases by non-litigants (called "amici curiae," or friends of the court) with a strong interest in the subject matter. The briefs provide additional information for the court to consider, such as advising of unintentional ramifications. By submitting the briefs, ELC generates the court’s awareness of broader impacts and speaks on behalf of nature which cannot represent itself in court.

The amicus brief submitted in the Mandela Garden case included multiple arguments:

  1. All of nature, including green spaces within New York City, possesses inherent rights which the government is obligated to protect.

  2. The City of New York is required to consider nature’s rights before destroying green spaces, such as community gardens.

  3. The Mandela Community Garden, including the species and ecosystems it supports, should have standing to defend its rights in court.

The amicus brief also covers the history of rights of nature in the United States and makes a compelling argument for why nature’s rights must be recognized by the courts, citing both U.S. and international precedent.

“Earth Law Center has asked the City of New York to at least consider the rights of nature before destroying green spaces, including community gardens that support crucial urban biodiversity," said Grant Wilson, Directing Attorney Earth Law Center. “If we are to overcome the global environmental crisis, nature’s inherent rights must be a focal point of all governmental decision-making, regardless of whether it impacts a remote wilderness area or America’s biggest city.” 

Write to your NYC Representatives today to defend your right to a healthy environment:

●      Mayor Bill de Blasio

●      Nelson Mandela: Council District 9, Community District Manhattan 10

●      Pleasant Village: Council District 8, Community District Manhattan 11

●      Elizabeth Street: Council District 1, Community District Manhattan 2

When advocates see themselves as rights defenders rather than responsible stewards of nature for human ends, the stakes are raised, and the relationships between people and the environment is transformed. ELC connects these emerging local advocates to build regional movements, with the ultimate aim of creating national and international momentum for a radical change in how we view and interact with the natural world.

Get involved today