Earth Law Center Partners with Earth Thrive for Rights of Nature Campaign in Serbia

Bela Palanka, Pirot, Serbia by Milos Golubovic via Flickr Creative Commons

By Hannah Fitzpatrick

Earth Law Center and Earth Thrive have launched a campaign to establish legal rights for nature in the Republic of Serbia in the Balkans region of Europe.

Brief Introduction to Serbia

Serbia is located about 400 miles west of Italy as part of the West Balkans.

Serbia Map by Wikimedia Commons

The Ottoman and Austro-Hungarian empires once governed the territory. Later it became part of Yugoslavia, along with Montenegro, Slovenia, Croatia, Bosnia-Herzegovina and Macedonia.

In 2006, modern Serbia emerged when Montenegro voted for independence from the Union of Serbia and Montenegro. As of 2016, Serbia had a population of about 7 million [1]. 

Serbia’s Incredible Biodiversity

Eurasian Otter by Wikimedia Commons

Although Serbia and neighboring Montenegro cover less than 2% of European territory, over half of Europe’s fish species and over two-thirds of European bird and mammal species can be spotted here [2]. Nature lovers may even see some of Europe's many endangered species living in the area, such as the white-tailed eagle, Eurasian Otter, pelicans and falcons [3].

One mammal well known in the Balkans region is the European ground squirrel. Unfortunately, due to the conversion of its natural steppe-grassland and pasture habitat, this species has already vanished from parts of its Central/Eastern European territory [4]. The International Union for Conservation of Nature lists the species as vulnerable, meaning it faces a high risk of extinction. Serbia also provides a resting place and breeding ground for many migratory species of birds and bats on their journey south in the spring [5].

The amazing biodiversity of Serbia must be protected permanently, both for its own sake and for future generations of people to enjoy.

Threats to Balkan Waterways

A flurry of planned hydroelectric dam projects threatens to impede many of Europe’s last free-flowing rivers, imperiling aquatic species and inundating ecosystems along the way. Out of 2,800 planned dams in the Balkans, around 800 are planned in Serbia alone! Most of those projects call for the 'biological minimum' rather than the 'biological maximum' to be taken into account with these developments [6]. “The Balkan rivers are of outstanding value within Europe. The dam tsunami is threatening biodiversity and local communities,” said Ulrich Eichelmann of Riverwatch [7].

Austria’s Erste & Steiermaerkische Bank has financed a cluster of seven hydroelectric plants on Bosnia’s borders with Serbia’s Kopaonik National Park. These, together with another eight plants in the area financed from other sources, have left large stretches of the local streams with little or no water for much of the year. Another large dam is planned for the Drina River – a "wild emerald beauty" that forms part of Serbia’s border with Bosnia and Herzegovina [8].

A Crisis of Pesticide Overuse

Serbia’s ecosystems and communities are also being poisoned by the excessive use of harmful pesticides. With 57% of Serbian land dedicated to agricultural production, the oversaturation of the land with chemical pesticides has a broad and severe impact on ecosystems and human communities [9].

The government passed much-needed legislation to regulate the use of pesticides in Serbia. For example, in May 2009 the Serbian government adopted two new laws related to pesticides [10]. The first (“Law on Biocidal Products”) regulates the use of “biocidal” products, including through labeling, marketing restrictions, and safety mechanisms. The second (“Law on Plant Protection Products”) pertains to the registration, control, circulation, import, and application of “plant production products” such as pesticides [11].

But these measures have not gone far enough. The use of pesticides on average in Serbia, and across Europe in general, has not decreased in recent years, despite low dosage pesticides being introduced into the European agricultural market. To the contrary, pesticide use has increased as organisms adapt to become more resistant [12]. We need a different approach.

Pesticides Also Kill Endangered Wildlife

White-Tailed Eagle by Wikimedia Commons

The border region between Serbia, Croatia, and Hungary is among the most important areas for white-tailed eagles in Europe [13]. In 2014, World Wildlife Fund (WWF) registered only 22 breeding pairs in and around Serbia’s Gornje Podunavlje Special Nature Reserve. This same year, 11 dead birds were found in the reserve’s vicinity, with 8 of them having died of poisoning by carbofuran – one of the most toxic pesticides on the market [14].

The EPA in the US has banned Carbofuran. Carbofuran poisons wildlife including coyotes, kites, golden eagles and buzzards but is particularly toxic to birds. In its granular form, a single grain will kill a bird. Birds often eat numerous grains of the pesticide, mistaking them for seeds, and then die shortly thereafter [15]. Only five White-Tailed Eagles reach sexual maturity a year and they reproduce in monogamous couples. So losing even one bird is a big loss. Yet since 2009, 33 White-tailed Eagle carcasses have been found in Serbia. The culprit? In a majority of the cases: pesticide poisoning [16].

Because Carbofuran may affect the nervous system [17], it also affects humans and large carnivores [18] like the protected species in Serbia including Eurasian brown bears and Eurasian lynx [19].

Pesticides Harm Human Health Too

Pesticides linger on fruits and vegetables which humans then consume. In a 2013 study, 27% of all fruit and vegetables sold on European markets contained residue from multiple types of pesticides. And it’s not just one pesticide – it’s multiple types. An average of 42 different pesticides are used to grow an onion in the Netherlands! This is despite the existence of regulations meant to restrict the use of these harmful chemicals [20].

Figure 1

A 2009 study published in the U.S. National Library of Medicine found that the use of pesticides could contaminate soil, surface and ground water, and vegetation [21]. Heavy treatment of soil with pesticides can also affect soil fertility by causing populations of beneficial soil microorganisms to decline.

Additionally, long-term exposure to pesticides can have serious health impact on humans [22], including development of serious health problems such as Parkinson’s disease, asthma, leukemia, and non-Hodgkin lymphoma [23].

Proven Alternatives to Pesticides Already Exist

Organic farming can reduce these problems, grow enough food for the world and provide robust economic returns. There are already millions of small and midsize organic farms world-wide. Sales of organic food and beverages grew five-fold between 1999 and 2013, according to the Swiss-based Research Institute of Organic Agriculture FiBL [24].

Organic farming rejects synthetic biocides and fertilizers. It uses plant diversity and natural ingredients to fight pests, replenish nutrients in the soil and suppress weeds. Organically grown crops require less fossil fuel than industrially grown crops. They also can remove carbon from the atmosphere at higher rates than conventionally grown crops and return it to the soil, where it promotes crop growth [25].

Serbia’s Legal System

Serbia has taken some notable steps to protect biodiversity [26]. For instance, the Serbian government has established a lot of protected parks in recent years [27]. Currently, about 5 percent of Serbia's land is protected, which includes 4 national parks (with a fifth national park in the works), 22 nature reserves, and about 300 geographical landmarks. The Serbian government has also passed several environmental laws, including the Law on Environmental Protection, which recognizes the human right to live and develop in a healthy environment [28].

Earth Thrive, which works on the prevention of ecocide in the Balkans and for establishment of nature rights, recognized ELC as a leading rights of nature organization in the world and approached ELC to partner on the Serbian Initiative.

Together, we aim to recognize nature's rights and evolve current protections of the beautiful and richly biodiverse yet also highly endangered nature in the Balkans. Earth Thrive is a non-governmental organization that takes a holistic approach to prevent and remediate ecocides and establish rights of nature in the SE Europe/Balkans and Mediterranean region. "Stop Ecocide in Serbia" is one of their primary campaigns, which raises awareness on dam and pesticide impacts as well as animal welfare and other issues.

ELC and Earth Thrive have launched the first rights of nature initiative in the Balkans, beginning with Serbia, through two campaigns:

(1)   Establishing legal rights of ecosystems in the Balkans to be free from toxic pollution from pesticides. By recognizing ecosystems in the Balkans as legal entities possessing rights, we can ensure that they are restored to health as a legal right. This campaign will also include defining and establishing a legal right to native, thriving biodiversity for Balkan ecosystems. Practically speaking, this will mean an end to the vastly excessive use of toxic pesticides in this region.

(2)   Establishing legal rights for rivers within the Balkans, including a right to flow – a right that may be violated through the development of destructive dam projects. According to the Universal Declaration of the Rights of Rivers, which describes the rights to which all rivers are entitled, “…new dam construction shall only occur when necessary to achieve clean water for … compelling purposes, with such dams only built upon securing the full free, prior, and informed consent of indigenous and other impacted communities….”

This campaign will build from rights of nature victories across the world – including in Ecuador, Bolivia, New Zealand, Colombia, and the United States. It is our sincere desire that by establishing legal rights for nature in Serbia, we can permanently protect nature within its invaluable ecosystems, including within the Balkans.

When our campaign succeeds, it will plant the seed of an innovative solution for humans and nature to truly live together in harmony. Won’t you consider joining us?

Help Us Protect the Planet and Get Involved Today

To help with our efforts in our partnership with Earth Thrive or in general, consider the following options here:

• Donate to ELC
• Donate, volunteer or contact Earth Thrive here
• Sign up to volunteer at ELC here
• Stay informed by signing up for ELC’s newsletter
• Connect With Earth Thrive on social media:
  • https://www.facebook.com/EarthThrive/
  • https://twitter.com/Earth_Thrive

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[1] https://en.wikipedia.org/wiki/Serbia

[2] http://earthsendangered.com/search-regions3.asp

[3] https://en.m.wikipedia.org/wiki/List_of_mammals_of_Serbia

[4] https://www.cbd.int/doc/world/rs/rs-nr-05-en.pdf

[5] https://www.cbd.int/doc/world/cs/cs-nr-01-en.pdf

[6] https://www.theguardian.com/environment/2017/nov/27/balkan-hydropower-projects-soar-by-300-putting-wildlife-at-risk-research-shows

[7] http://balkanrivers.net/en/news/international-banks-fuelling-hydropower-tsunami-study

[8] http://balkanrivers.net/en/news/international-banks-fuelling-hydropower-tsunami-study

[9] http://mediterranean.panda.org/?243810/Poisonings-of-rare-and-protected-species-on-the-rise-in-Serbia

[10] https://www.ecolex.org/details/legislation/environmental-protection-law-lex-faoc104942/

[11] https://www.ecolex.org/details/legislation/law-on-biocidal-products-lex-faoc142337/

[12] http://www.wipo.int/wipolex/en/text.jsp?file_id=191283

[13] http://www.asser.nl/media/2271/cms_eel_id109_1_neap-eng.pdf

[14] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2984095/

[15] https://en.wikipedia.org/wiki/Carbofuran

[16] http://www.birdlife.org/europe-and-central-asia/news/pesticides-poisoning-birds-balkans

[17] http://nj.gov/health/eoh/rtkweb/documents/fs/0341.pdf

[18] https://www.wiley.com/en-us/Carbofuran+and+Wildlife+Poisoning%3A+Global+Perspectives+and+Forensic+Approaches-p-9780470745236

[19] http://www.ochranaprirody.cz/res/archive/326/040050.pdf?seek=1477481496

[20] http://www.wipo.int/wipolex/en/text.jsp?file_id=191283

[21] http://www.pan-uk.org/health-effects-of-pesticides/

[22] http://www.pan-uk.org/health-effects-of-pesticides/

[23] http://siteresources.worldbank.org/INTSERBIA/Resources/SerbiaEnvironmentOct2007.pdf

[24] https://www.wsj.com/articles/can-organic-food-feed-the-world-1436757046

[25] https://www.wsj.com/articles/can-organic-food-feed-the-world-1436757046

[26] https://www.pan-europe.info/issues/pesticide-use-europe

[27] https://www.ecolex.org/details/legislation/law-on-integrated-prevention-and-control-of-environmental-pollution-lex-faoc104645/

[28] http://www.putevi-srbije.rs/images/pdf/strategija/zproczseng.pdf

Is Earth Law a Solution to Light Pollution?

Photo by Rachel Tang

By Rachel Tang

Background and Introduction

When people talk about the city of Hong Kong, what do you think of? It might be the food, or perhaps the city’s dazzling lights shining out across the Victoria Harbour at night. 

Research conducted by the University of Hong Kong’s “HK Night Sky Brightness Monitoring Network” showed that Tsim Sha Tsui, a busy shopping district next to the Victoria Harbour, shines 1200 times brighter than the International Astronomical Union standard from 8:30pm to 11pm [1]. Compare this to European cities where readings are normally below 100 times the standard, one tenth of Hong Kong’s wattage [2]. People living near intensely light polluted areas have reported that they were sleep deprived, suffered from insomnia or that they experienced a reduction in sleep quality [3].

You might think that this only happens in Hong Kong’s business and tourism district, but statistics say otherwise. Even rural night skies are too bright. Wetland Park lights in Tin Shui Wai measured 130 times the standard [4]. At the Astropark stargazing facility near High Island Reservoir, where it is supposed to be the darkest, the brightness exceeded the standard by 20 times [5]. This bleed of light pollution into rural areas also happens on a global level in most large cities such as London and New York.

How does light pollution affect wildlife?

Earth’s animal and plant community evolved under an unpolluted night sky and uses the rhythms of moonlight to regulate many of its systems. Ecologists face difficulties in accurately measuring light and observing how it causes change in different species, but initial results have shown how night lights exert stress on the ecosystem.

Steve Long, a plant biologist at the University of Illinois at Urbana stated, “We know a great deal now about the impacts of rising CO₂, but how extensive are the impacts of light pollution? We’re gambling with our future in what we’re doing to the environment" [6]. Humankind’s artificial lights disturb the environments animals and plants have evolved to live in. Here are some telling examples of the ecological effects of light pollution:

Short-tailed fruit bat. Photo by Andy Morffew

• Short-tailed fruit bats are forced to limit activity to less-illuminated regions. Pepper plants rely on bats to disperse pepper seeds to other parts of the forest. This allows the plants to minimize the competition for nutrients within their species. However, this natural process is deterred by the artificial lights [7]. In addition, less bats also means a reduction in the pollination of flowers of tropical and subtropical plants. A reduction in fruit bat activity limits forest regeneration and timber production [8].

• Birds are often distracted by commercial lights, resulting in fatal collisions with windows. Birds that migrate at night often become confused by the lights and separate from their flock, lowering their survival chances, says Dr Pun Chun-shing Jason, a research scientist at HKU [9]. With fewer birds, it impacts the food chain: more insects and fruits survive as less of them are consumed by birds. There might also be a reduction in the number of owls, eagles and other predators that eat birds as a primary food source, upsetting the balance of nature. Songbirds are also disrupted. Songbirds rely on their singing to attract mating partners. Research shows that artificial night light contributes greatly to a change in birdsong behavior, leading to birds starting their dawn singing earlier [10].

• Fireflies are also affected by artificial lights. Rural areas like Wetland Park receive intense light disruption, causing the insects to confuse artificial lights with the moon which can prevent fireflies from navigating their environment effectively. The lights may also impact fireflies' breeding as they rely on light signals for mating, says Yiu Vor, Chairman of the Hong Kong Entomological Society [11]. As fireflies consume the larvae of snails and slugs, a decrease in fireflies will result in increased populations of these creatures. It may also reduce the population of firefly predators such as frogs, toads, bats and mice.

What can we do? What can wild creatures do?

Night sky in Yosemite, California. Photo by Casey Horner

Human residents can voice concerns about the way light pollution affects their natural rhythms. Residents may file complaints against the responsible company or bring it to the courts through litigation, for instance suing for damages suffered in terms of health due to the light pollution. They may also file complaints to the Environmental Protection Department, which received “337 complaints about light pollution, mainly about lighting from shops and signboards – up from 256 in 2015, and 229 in 2014” [12]. 

Humans have their rights and this should be respected. But humans are not the only species suffering. What about the wildlife which are suffering from the unnecessarily excessive lights? How can they fight back against the injustice?

Earth Law grants nature the right to enforce her inherent right and status in court (learn more about Earth Law here). This legal principle also enable citizens to enforce that right when they witness such an injustice. Therefore if rights of nature is allowed, the law can effectively permit the planet to have a “voice” in court and fight against her suffering. 

Causes of Resistance to Change in Hong Kong

Why is the problem so severe in Hong Kong? Unlike in other major cities, there is no legislation regulating external lighting in the city. The only regulation in Hong Kong is the Guidelines on Industry Best Practices for External Lighting Installations, a voluntary charter inviting businesses to switch off outdoor lighting from 11pm to 7am. The charter does not apply to security and decorations during festive seasons like Christmas or Chinese New Year, minimizing its effectiveness. Roy Tam Hoi-pong, chief of Green Sense commented that “the pledge is not strict enough”, and that the government is not prioritizing the issue. Green Sense and other groups have “asked for legislation for 10 years” with no relevant governmental actions yet in place [13]. 

Therefore, in a global financial centre like Hong Kong, businesses make the best use of signage, billboards and external lighting for advertisement purposes under no strict legal enforcement. Last October, a massive full-HD LED screen was unveiled on the external wall of Sogo Department Store, Causeway Bay [14]. The screen is the size of five tennis courts, totaling 19 x 72 meters and claiming a throne as one of the largest LED billboards in the Asia-Pacific region [15]. Tanya Chan, a Civic Party lawmaker, stated that large LED billboards will increase the surrounding temperature and impact the environment [16].

As an eminent tourist city, Hong Kong relies on its signature nighttime views to generate and facilitate the tourism industry. The glamorous night view of the Victoria Harbour and Victoria Peak would be like any other riverside and mountain top without the lights radiating from the skyscrapers. As a city known for its nighttime cityscape, it will notably damage the tourism industry if the city implemented laws to restrict external light emission. This is particularly true during festivals like Christmas or Lunar New Year, where at least “50 per cent of public and commercial buildings in Tsim Sha Tsui have Christmas lights on their exteriors." Light festivals such as A Symphony of Lights feature installations and new LED boards which consume less energy, attracting tourists and local visitors. However, despite conserving energy, which may reduce the environmental damage, the light itself still impacts the wildlife and the sky [17].

Perhaps, a difficulty for the government is the strong commercial pressure against the imposition of light pollution restrictions. As both the tourism and business industries comprise major sectors of Hong Kong’s economy, the government may give them preferential treatment. The government showed itself unwilling to act in response to a question raised by Hon Priscilla Leung in the Legislative Council; the government wanted to resort to a looser regulation on light pollution, most possibly to steer clear of conflicts with the commercial sector [18].

Another restraint may be due to the city’s landscape mapping. As Hong Kong has merged zones of commercial and residential areas in most districts, it is difficult to enforce laws which apply different levels of regulation to different types of land use [19].

Learning from other cities

Hong Kong is in reality an outlier from other major cities in terms of legislation governing the control of external lights. Although some work has been already been done in Hong Kong, such as implementing the voluntary charter and guidelines, but tougher measures are necessary to effectively curb light pollution.

Similar to Hong Kong, Shanghai in China is also well-known for its vibrant night view at the Bund, the western bank of Huangpu River. But recent legislation sets out that night lights should not affect the “normal living of nearby residents” carrying a legal consequence of 1000-yuan-fine (equivalent to USD160), making Shanghai one of the cities with the most anti-light pollution laws in Asia [20].

Guo Hua, Director of the Bureau's Lights and Advertisements Administration Department, Shanghai local government, said that with the new policy, “the brightness of lights in the downtown commercial district will be reduced and the frequency of lights flashing will also be reduced” [21].

Businesses are therefore limited by the legal enforcement and people have become more aware of the issue’s severity. However, most of Shanghai’s emphasis is to provide an improved environment for the sake of human health; more attention should be placed by the government on the consequences imposed on the wildlife. Similar legal fines and punishments have been put in place in the recent decades across the globe, including in Paris and Sydney.

Artificial lights as seen by NASA satellites

Conclusion

Efforts should be taken by the government to implement suitable policies with legal enforcements to ensure their efficiency. The government should not fear commercial pressure, and should not sacrifice wildlife and nature to fulfill commercial industry’s preferences. 

Other legislation should be considered in addition to legal punishments limiting illumination during certain periods of the day. For instance, long wavelength (red light) outdoor lights may reduce the number of sea turtle hatchlings mistaking lights for the moon’s reflection on the sea. The law can be designed to limit short-wavelength-lights near coastal areas to protect the rights of the hatchlings [22].

You may be questioning the government’s willingness to take action. But, instead of merely waiting for a governmental move, you can take part to make a change. Social pressure often works as effectively and even more effectively. By making individual requests to large businesses to change their external lighting practices we can make them understand that they risk boycotts from consumers if they do not make changes to their harmful practices and improve. 

Hong Kong can also take inspiration from the cities with laws governing light pollution. However, much of the governmental concern in these cities, hence their policies, are aimed at protecting neighbouring residents’ health and the conservation of energy. Not much attention has been directed at the wildlife and nature that should enjoy its rights as much as humans do. Introducing Earth law to Hong Kong, new to the jurisdiction, may be a solution to solve such problems in the long run. 

As briefly mentioned above, Earth law grants nature the right to enforce her rights in court and for citizens to enforce on behalf of nature. Earth law puts ecosystem rights at the front of the conversation. It enables the public’s direct action and puts legal pressure on the government and the public to face up to the severe environmental issues in Hong Kong and around the world right now. Rights of nature should be granted as the most effective way to return the power over light and darkness to nature.

What you can do to help

• Minimize use of lights, especially during day time (utilize natural light!)

• Use glare-free (coloured) lights — yellow, red or amber lights

• Use bright-sensor or motion-sensor lights

• Use covered bulbs and place them facing downwards, avoiding excessive light reflections in the sky [23]

Take action now!

• Read more and subscribe to our newsletter get yourself informed about earth law

• Volunteer now

• Donate

• Speak for nature and start an initiative!

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1. http://www.scmp.com/news/hong-kong/article/1194996/light-pollution-hong-kong-worst-planet

2. http://www.scmp.com/news/hong-kong/article/1194996/light-pollution-hong-kong-worst-planet

3. http://www.sciencedirect.com/science/article/pii/S0048969714018051

4. https://www4.hku.hk/pubunit/Bulletin/ebook_2013Jun(14.3)/files/assets/basic-html/page13.html 

5. http://www.scmp.com/news/hong-kong/article/1194996/light-pollution-hong-kong-worst-planet

6.  http://insaf.net/pipermail/sacw_insaf.net/2018/003009.html 

7.  http://onlinelibrary.wiley.com/doi/10.1111/1365-2664.12206/full

8.  https://www.sciencedirect.com/science/article/pii/B9780123942883000071 

9. http://www.scmp.com/news/hong-kong/community/article/2125435/blight-light-why-hong-kongs-neon-haze-isnt-going-away-soon

10. http://www.frontiersinzoology.com/content/10/1/60

11. http://www.scmp.com/news/hong-kong/article/1194996/light-pollution-hong-kong-worst-planet

12. http://www.scmp.com/news/hong-kong/community/article/2125435/blight-light-why-hong-kongs-neon-haze-isnt-going-away-soon

13. http://www.scmp.com/news/hong-kong/health-environment/article/2117352/heavy-light-hong-kong-led-screen-size-five-tennis

14. http://www.marketing-interactive.com/let-it-shine-hks-largest-led-billboard-raises-light-pollution-concern/

15. http://www.scmp.com/news/hong-kong/health-environment/article/2117352/heavy-light-hong-kong-led-screen-size-five-tennis

16. http://www.scmp.com/news/hong-kong/health-environment/article/2117352/heavy-light-hong-kong-led-screen-size-five-tennis

17. http://www.scmp.com/news/hong-kong/community/article/2125435/blight-light-why-hong-kongs-neon-haze-isnt-going-away-soon

18. http://www.info.gov.hk/gia/general/201707/05/P2017070500421.htm

19. http://www.scmp.com/news/hong-kong/article/1194996/light-pollution-hong-kong-worst-planet

20. http://www.scmp.com/news/hong-kong/community/article/2125435/blight-light-why-hong-kongs-neon-haze-isnt-going-away-soon

21. http://www.chinadaily.com.cn/english/doc/2004-04/12/content_322547.htm

22. http://onlinelibrary.wiley.com/doi/10.1111/j.1469-1795.2012.00547.x/full

23. https://www.conserve-energy-future.com/impressive-ways-reduce-light-pollution.php

Earth Law: A New Voice for America’s Southern Borderlands

Santa Rita Mountains, Southern Arizona Photo by J. Brun

By Janay Brun

Rain mists down upon the symphony of languages: silent whispers of butterfly wings, chirps, screams, whistles, and beeps of the feathered flock, a meow from the puma, the cough of a jaguar, snorting from a white-tailed deer, and the persistent buzz of a black tailed rattlesnake. The moisture feeds the hibernating seeds of penstemon, columbine, poppies, and owl clover. 

Afterwards, the people of this community emerge from their homes to breathe in the pungent resinous scent of the creosote − only released in strength after rain. The inhabitants of this land depend on an individual that has a complex body. A body created from fire and water, intertwined with vessels and molecules under and above the desert floor, combined with cells in the tree canopy, and the respiration of the atmosphere. This is the Sonoran Desert.

Southern Borderlands

The Sonoran Desert is an individual in a community referred to as the borderlands. The borderlands comprise the 1,954 mile length of the international border between the United States and Mexico. The U.S. – Mexico border includes: six national parks, 700 species of vertebrates, 500 species of birds, 25,000,000 acres of protected public lands, three mountain chains and the two largest deserts in North America. [1]

Currently, this community is under siege. The Trump Administration is continuing the tradition of the past two U.S. Presidents in fortifying the southern border with more Border Patrol agents, surveillance towers, underground sensors, and the most destructive of all – border walls and fencing. 

Border Wall dividing Sasabe, Arizona, U.S. from El Sásabe, Sonora, Mexico. Photo by J. Brun

Threats to the Borderlands

From the Pacific Ocean to the Gulf of Mexico, the borderland community is already divided in some areas with 700 miles of border infrastructure that includes vehicle barriers, pedestrian fencing, and walls.

Animals living in the Texas gulf, California coasts, and the “sky island” Madrean archipelago habitat in southeastern Arizona are most vulnerable to the expansion of border infrastructure. [2] Loss of mobility and genetic diversity plus habitat fragmentation could have devastating impacts on the future viability of these biologically diverse areas. A United States Fish and Wildlife report estimates that a border wall could negatively affect 111 endangered species, 108 migratory birds, four wildlife refuges and fish hatcheries, and an unknown number of protected wetlands. [3]

Endangered mammals such as the ocelot, jaguar, Peninsular bighorn sheep, and pronghorn antelope live along the line between the two nations. Coues white-tail deer, black bear, Mearn’s quail, the vine snake, arroyo toad, and the low flying cactus ferruginous pygmy owl call portions of the borderlands home. More species such as the endangered Quino checkerspot butterfly, West Indian manatees, and the bald eagle could feel negative impacts from the wall as well. 

A lone, endangered Mexican gray wolf released by biologists in Chihuahua, Mexico traveled north across the border traveling west of Las Cruces, New Mexico, then followed the Rio Grande back into Mexico. Buffalo, also from Chihuahua, have crossed into New Mexico. [4] 

There are six cross-border communities in the borderlands. There are burial grounds, and sacred grounds. There are private lands, farm and ranch lands, ancestral lands, and deeded lands that date back to before there was a Mexico and a United States. There are various cultures and millions of families. There are indigenous nations and multi-cultural cities. There is diversity in plant life, microbial life, bug life, rock types, and various bodies of water. Everything under the sky in the borderlands region is diverse, interwoven, and dependent on each other. There is no place for a wall here and in the Tohono O’odham language that word doesn’t even exist. Nonetheless, more wall is coming.

On March 23, 2018 President Trump signed into law a congressional spending bill that allotted 1.6 billion dollars for border spending that includes funding for border wall repair and construction. That figure falls short of Trump’s demand for over 20 billion and now there are reports that he wants the military to make up for that spending deficit. [5] The Rio Grande Valley in Texas is Trump’s choice for ground zero in his bid to fulfill a campaign promise for a border wall.

The Rio Grande Valley is home to the endangered ocelot. It is also a birder’s mecca where 500 species of birds have been documented as it is part of the migration corridor. Rare species that are seen nowhere else draw hundreds of thousands of tourists from all walks of life each year for a chance to view the likes of the green jay, buff-bellied hummingbird, and great kiskadee. At the National Butterfly Center 236 species of butterflies have been documented. [6]

And then there is the water of the mighty Rio Grande. A life force for all that migrate through and live in the area but also a potential deadly force when it comes to flooding. And floods will happen as water gets trapped by the walls and levees that Trump will build. How can so much destruction go unanswered?

Defending the Borderlands

A recent court case was brought before the Southern California District Court challenging the validity of waiving numerous laws to build the border wall prototypes and replace portions of the Calexico and San Diego walls. Unfortunately, in this case, Judge Curiel reaffirmed the authority of the Secretary of Homeland Security to:

"...take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States." [7]

The ruling also stated that the Secretary’s authority includes the discretion to waive numerous federal laws including environmental ones which protect our air, water, ecosystems, and endangered species. But the fight isn’t over. This decision is being appealed.

The Center for Biological Diversity, Southwestern Environmental Center, Animal League Defense Fund, and Defenders of Wildlife have brought a similar suit in New Mexico challenging the validity of waiving the laws. At issue is that the waivers were established back in 2005-06 to complete the portions of the border wall that the Bush Administration wanted. That mandated construction is now over, so shouldn’t the waivers have expired? The groups are fighting to keep 25 laws intact to stop the construction of 20 miles of border wall west of El Paso, Texas at the Santa Teresa port of entry. [8]

There was a favorable result in the Rio Grande Valley for the “jewel” of the federal wildlife refuge system. The Santa Ana National Wildlife Refuge was granted a temporary stay from Trump’s border construction demand. Temporary because funding for the wall will be brought up every time the nation’s budget needs to be passed by Congress. But for now, thanks to the lobbying and organization by the Rio Grande Valley community, the Sierra Club, and Rachel’s Network, among others, the Refuge is safe from border wall construction. Unfortunately, the lands outside the Refuge’s borders were not afforded the same protection and some form of border wall or levee construction is planned for the Refuge’s neighbors. As a result, the Refuge will ultimately be affected as well.

But cities and counties are starting to take action thanks to a campaign launched by the Center of Biological Diversity. Their campaign encourages cities, states, and counties to pass “No Border Wall” resolutions. So far, thirty-two have been passed across the southern borderlands. [9] 

Looking into Sonora, Mexico from southern Arizona. Photo by J.Brun

Earth Law for the Southern Borderlands

So how can Earth law help? First, what exactly is it?

Earth law is not a new concept, though it seems radical to western minds. Indigenous nations have always respected and lived the belief that we are interconnected with the air we breathe, the ground we stand upon, the animals and plants we co-exist with, and the water that sustains us all. What happens to one, happens to all. Dr. Gregory Cajete from New Mexico University calls it “natural democracy.” That is, in the relationships between humans, water, stars, land, animals, and plants we all have rights. [10]

And Earth law is about having those rights represented in a court of law. So, what if the Sonoran and Chihuahuan deserts, the Rio Grande and Colorado rivers, the monarch butterflies, and the ocelots of southern Texas and Arizona could have a say in a court of law about their destruction or preservation? What if they had a chance for their rights to be heard?

Earth or Wild law gives them that chance. Just as a city or corporation has standing in a court of law, so too, can a river, watershed, or mountain range. Such a right was recognized in Sierra Club v. Morton [11] in the dissenting opinion by Justice William O. Douglas. He wrote:

"Environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court − the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community…"

Those that breathe in the dust of the southern deserts or turn on a tap to drink from the Colorado or Rio Grande rivers, or have their crops pollinated by migratory butterflies, or look out their window to stare mesmerized at the zig-zag dance of a hummingbird have an opportunity to speak for this community − to defend this community that we all belong to. And this community, made up of so many rare and endangered species, is in peril.

Earth Law is an opportunity for a new version of the borderland voice to be heard in a court of law. A voice that speaks not as property but as an individual entity with rights. It is a version where a whole ecosystem or watershed (which may cross international boundaries) is represented by a human guardian(s). And there has been success.

The Paris Agreement signed by just about every country in the world recognizes the right of Earth to be protected from climate change by vowing to be a part of the solution to lower Earth’s temperature. Waterways in India, Colombia, and New Zealand have been granted legal status for possessing rights. Three dozen cities and towns across the U.S. have passed ordinances recognizing nature’s rights. For example, Earth Law Center worked with the city council of Santa Monica to pass an ordinance that recognizes “natural communities and ecosystems possess fundamental and inalienable rights to exist and flourish in the city of Santa Monica.” Bolivia, Ecuador and Mexico City have passed rights of nature laws. And since everything and everyone is connected, whatever rights Earth may be granted in a court of law, also benefits the human community. [12]

In the borderlands, what if the Department of Homeland Security had to argue against the Rio Grande’s right to exist, flow, survive, and supply life unto itself as well as to the animal and human communities in which it is intertwined? Could all those rights be waived by the Department of Homeland Security? Even more interesting, what if the Natural Resource Committees of Congress were successfully lobbied to write policy establishing the rights of nature in the borderlands? Or, what if local borderland communities passed ordinances protecting the rights of their environment? It has been done elsewhere, why not for the borderlands? 

How can we get involved?

The Earth Law Center is eager to collaborate with others on working toward the rights of the borderlands to “exist, thrive, and survive” into the future. If we can help in your efforts to protect the borderlands or if you are interested in more information on Earth law please contact us here.

About Earth Law Center:

• To stay informed, subscribe to our newsletter here.
• Want to volunteer, apply here.
• Consider donating to the cause here.

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References:

[1] Border Wall Issue Toolkit. #No Wall Coalition

[2] “Border Fences Pose Threats to Wildlife on U.S. – Mexico Border, Study Shows,” UT News, July 12, 2011.

[3] Trump Wall: IPaC Trust Resources Report. U.S. Fish & Wildlife Service, May 3, 2016.

[4] “Border wall plan would endanger New Mexico’s wildlife,” Bryan Bird. Albuquerque Journal, March 23, 2018.

[5] “Trump privately presses for military to pay for border wall,” Josh Dawsey and Mike DeBonis. The Washington Post, March 27, 2018.

[6] National Butterfly Center

[7] Center for Biological Diversity v. U.S. Department of Homeland Security, No.17-cv-1215-GPC (WVG)*1-6 (S.D. Cal February 27, 2018).

[8] “Lawsuit Challenges Trump Administration’s New Mexico Border Wall Waiver: Wildlife migration, air, water at risk to speed wall construction, Center for Biological Diversity, March 22, 2018.

[9] No Border Wall Resolution

[10] NPR interview with Dr. Gregory Cajete, March 22, 2018.

[11] Sierra Club v. Morton, 405 U.S.727,752 (1972).

[12] Legal Initiatives, Earth law Center.

ELC Reflects on the Contributions of Rachel Carson

Wild horses of Carrot Island in the Rachel Carson Reserve, North Carolina

By Maura Condon

“Thank God, they cannot cut down the clouds!”

-Henry David Thoreau

Earth Law supports establishing fundamental rights for nature and acknowledges the inherent values of ecosystems and their rights to exist. Earth Law argues for a balanced approach of legal initiatives and awareness can pave the way for the future where humans and nature can live harmoniously.

Environmental ethics have existed since the beginning of culture. Our present ethics have been shaped and evolved over generations of people interacting with their known world. For some, nature is seen as resource that must be protected and preserved, but to others, nature is something to harness. As we navigate the future we should consider the power of technology and knowledge in moderating our relationship with the Earth and use historical examples to shape our actions towards current issues.

A BRIEF HISTORY OF ENVIRONMENTAL ETHICS

Arriving at modern thinking about the rights of nature has been an ethical movement. In the United States, classic nature writers like Henry David Thoreau and John Muir excited readers about the beauty of the country and the wholesome power of nature. Thoreau believed simple lifestyles could best experience nature. Muir, founder of the Sierra Club, was a preservationist who thought that if people could experience the natural world and its beauty then they could respect it, ultimately protecting it. 

In the early 20th century, forester and politician, Gifford Pinchot, forged the conservation ethic where he regarded nature as controllable natural resources. Pinchot’s conservation involved the planned use and renewal of resources, often forests, to balance profitability and benefit. Pinchot’s ethics are linked to those of modern day sustainability.

Aldo Leopold, an environmental professor and to many the founder of wildlife ecology, supported wildlife management and his ethics involved understanding our life as part of the biotic community. To Leopold, people will value nature if they extend themselves to it and understand the interconnectedness of life. 

MODERN ENVIRONMENTAL ETHICS

Environmental ethics became a philosophical discipline in the 1970s as concerns grew about the effects of technology and industry on the environment. Popular writers during the 1960s were able to disseminate scientific information to the public by raising awareness about toxic chemicals, natural resource depletion, and destruction of wildlife. Rachel Carson was one such writer, as detailed below, she informed readers of toxic pollution that directly affected humans. 

We owe these writers and other naturalists for shaping our ethical understanding of nature today. Advances in technology means reading and sharing information about Earth Law, rights of nature, and environmental ethics is more accessible than ever before. As we advocate for Earth Law we should ask ourselves: what responsibilities we have as humans towards nature, and why it is important to us.

RACHEL CARSON: RAISING PUBLIC AWARENESS

Environmental thinkers like Rachel Carson are role models we can reflect on today as we face increasing environmental challenges. Born in 1907, Carson was an avid young writer, eventually working as a science editor with the Fish and Wildlife Service for fifteen years. During her time with the Fish and Wildlife Service, Carson became aware of many issues which later shaped her environmental writing and values about nature. 

Rachel Carson, writer and conservationist

In the early 1950’s her naturalist and writing background helped her find success as a popular nature writer. Carson’s first two books about ocean formation and ecology drew great reviews from the scientific and public spheres. As the decade wore on she turned her eye to the detrimental use of chemical pesticides, specifically DDT. 

Silent Spring was one of the most controversial books in the early 1960’s because of it documentation of environmental damage caused by highly toxic compounds. Carson reveals how synthetic pesticides, like DDT, can go beyond killing pests, the compounds may bioaccumulate in other organisms like birds and fish. Carson further argues that these poisons can move through the food chain, threatening animal populations and potentially harming people, linking it to health issues such as cancer. 

Chemical companies staunchly opposed Carson’s research and supported the soundness of new technology. But it was too late, the scientific community backed the research and now it was in the public domain. President John F. Kennedy acknowledged the national concern, and in 1963 Carson appeared before the President’s Science Advisory Committee and a Senate subcommittee investigating pesticides. 

RACHEL CARSON’S TIMELESS ENVIRONMENTAL ETHICS

Today Silent Spring stands as testimony that without environmental advocacy, the chemical companies of the mid-century may have carried on using DDT and other toxic chemicals to the devastation of many ecosystems. By 1975 most of the toxic chemicals Carson wrote about became banned or heavily regulated in the United States. 

Rachel Carson poses her Silent Spring readers with a moral dilemma: to act upon the knowledge she shares about toxic chemicals or accept the chemical industry's solution to deal with pests. Illuminating her book with case studies readers can relate to, Carson illustrates a common community and the dangers of passiveness. Carson’s work urged for precautions in our relationships with ecosystems and to understand the interconnectedness of nature. 

Rachel Carson’s environmental ethic is driven by awareness and sharing knowledge, so that we can live harmoniously with nature. Carson teaches us to not blindly accept assurances for safety when it comes to applying chemicals like pesticides and the importance of regulations and enforcement measures. Silent Spring challenges the thinking that nature is to serve people and is to be controlled, and implies our moral responsibility to nature, that we must not cause unnecessary loss of non-human or natural life and reminds us we share the same environment. 

ELC IS SHAPING AN ETHICAL EARTH

The legacy of Rachel Carson and Silent Spring is remembered in the modern environmental movement. Carson had a gift of translating scientific material to general readers, arming concerned citizens with knowledge which empowered people around the world to ask questions and strive for better environmental protections. This same movement inspires Earth Law Center to fight for rights of nature. 

El Capitan, Yosemite National Park, U.S.

Natural resource depletion, climate change, waste disposal, loss of biodiversity, ocean acidification, deforestation and many other environmental crises are all cultural crises. These issues are all contentious and complex, but there is no hiding the indications that our shared Earth is facing an ecological crisis that only humans can resolve. To create an ethical earth we must engage in dialogue and actions that provide rights for natural systems such as rivers, forests, oceans, lakes, and land ecosystems. The Earth Law Center and its partners are shaping an ethical future with a mission of advocacy for “nature’s rights at local and international levels.” 

HOW TO GET INVOLVED

Stay informed by signing up to ELC’s monthly newsletter here

Want to apply your skills and experience? Apply to volunteer here

Want to support us but don’t have time? Consider donating here

Earth Jurisprudence and its Consideration of Animals

By Janice Cox from World Animal Net

World Animal Net (WAN) is an animal protection organization with its roots and mission firmly embedded in the desire to build a more just and compassionate world for animals; one where they no longer suffer and die – often needlessly and excruciatingly painfully – at the hands of humans. This quest has taken us on a long and deep journey into the international policy realm, where we have worked on advocacy with many international/inter-governmental organizations, including the United Nations (UN). Through this advocacy we have delved into the root causes of animal exploitation and abuse and have come to realize that the major drivers of these are the self-same drivers responsible for the exploitation and degradation of nature. 

These drivers form a complex, interlinked web, but they all stem from humankind’s values and priorities – fueled by an increasing focus on economic growth and wealth creation at the expense of social equity and environmental protection.

Economic Growth and Exploitation of Nature

The adoption of economic growth as the primary development paradigm has led humankind into a destructive mindset that treats nature as a commodity and animals as “productive assets” to be exploited in search of profit. Yet, continuous growth is impossible in a world with rising populations, limited natural resources and massive human-driven environmental destruction. 

The exploitation of nature and animals is now becoming ingrained in values and policy. Even the concept of “sustainable development” (particularly “sustainable use”) is being exploited by those favoring consumptive use.  This is part of a bigger picture where natural resource and energy demand has increased over time, with more animal use, land use, extraction, degradation and pollution than ever before. The rising resource demand from industrialized countries and emerging economies depends on resources located in the Global South. Driven by the economic growth paradigm, many governments in the Global South now advocate for natural resource exploitation as a path to greater socio-economic development.

We need greater recognition that development is not just economic. It is qualitative as well as quantitative. Most importantly, it should be about well-being and quality of life – about flourishing: for nature, people and animals. 

Earth Jurisprudence

The concept of sustainability is often presented with reference to its three pillars – economic, social and environmental. Policymakers often act as though the economy is at the base of everything. However, these are both flawed models. In reality, the environment – land, water, atmosphere, and the lifeforms surviving as interconnected parts of this natural world – are at the core of everything and central to our survival. 

This is why WAN is fully supportive of a shift towards Earth Jurisprudence, prioritizing and protecting the natural world. It is time for a new ethical approach which recognizes and addresses our current skewed values.  Indeed, the survival of our planet, and thus human- and animal-kind’s survival, depend on this. 

Animals and Earth Jurisprudence

There have been some interesting – largely philosophical – debates about the rights accorded to animals under Earth Jurisprudence. In a comparative analysis of the status of animals in Animal Law and Earth Jurisprudence, Glen Wright states that animals are not accorded any rights in Earth Jurisprudence over and above those granted to all other components of the Earth system. Rather, all natural subjects hold the same basic ‘rights’. In his book Wild Law which outlines the legal approach of Earth Jurisprudence, Cormac Cullinan simply notes that “the starting point for humans is the principle that each member of the Earth Community should be at liberty to fulfil its role within the Earth Community”. However, this does not deal with the complex matter of differing and often competing needs and interests of various components of the earth system. When asked whether Earth Jurisprudence would entitle a human hunter to shoot a zebra, Cullinan responded that this would depend on the circumstances - “different communities will have different versions of Earth Jurisprudence”, based on the ecological characteristics of the locality, their local customs, and their relationship with nature.

Melissa Hamblin notes that at present, the regulation of animal industries is guided by human interests, with profitability enshrined as the core value. Modern animal agriculture, facilitated by these regulatory regimes, has led to a well-documented decrease in animal welfare and negative impacts on the environment. She argues that an Earth Jurisprudence approach to animal industries would reframe regulation so that the core concern would be improving humans’ relationships with other members of the Earth Community. In particular, an Earth Jurisprudence approach to animal agriculture would require smaller operations, improved welfare standards, a strong focus on the environmental impacts of the entire system and better consumer education.

Animal Sentience

An important consideration in any reflection on the role of animals in Earth Jurisprudence is that animals have an intrinsic value and status beyond their role as part of an ecosystem. They are “sentient beings who share with us consciousness, feelings, perceptions – and the ability to experience pain, suffering and states of wellbeing.”

Animal sentience is now widely supported by the fields of animal behavior, neuroscience and ethology. It was explicitly recognized in the Cambridge “Declaration on Consciousness”, signed by a prominent international group of cognitive neuroscientists, neuropharmacologists, neurophysiologists, neuroanatomists and computational neuroscientists. Further, the European Union has officially recognized animals as sentient beings in the Lisbon Treaty and requires Member States to “pay full regard to the welfare of animals”. 

Animal Law and Earth Jurisprudence: A reconciliation?

Wright suggests that Animal Law and Earth Jurisprudence could be appropriate vehicles to “reconcile Animal Rights and Environmentalism”. We agree there is scope here, and recognize the importance of tackling the “common enemy” in the Western concept of property and the fact that current policy is guided by human interests. We also appreciate his view that both areas of law need to be developed significantly and in ways which respect and advance the other. 

John Knox, the UN Special Rapporteur on Human Rights and the Environment states: “Human rights and environmental protection are interdependent. A safe, clean, healthy and sustainable environment is necessary for the full enjoyment of human rights, including the rights to life, to the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to safe drinking water and sanitation, to housing, to participation in cultural life and to development, as well as the right to a healthy environment itself ...”

Exactly the same is true for animal rights: Animal rights and environmental protection are also interdependent. 

While animal law has not yet reached the level of development of human rights law, it is evolving. The World Organisation for Animal Health (OIE), an international organization with 181 Member Countries, has agreed a number of international standards on animal welfare based on sound, internationally-accepted science and which references the “ethical responsibility to ensure the welfare of such animals to the greatest extent practicable”. The OIE’s work is supported by Regional Animal Welfare Strategies, which have been validated for every geographical region of the world and aim for the implementation of the OIE’s international standards and the progressive development of animal welfare. 

WAN has developed a “Model Animal Welfare Act” (the MAWA) to provide “best practice” for animal law, based on current realities. This may be a useful starting point to consider legal protections of animals which need to be reconciled with environmentalism. As we say within the MAWA: “The main reasons for introducing animal welfare legislation should be grounded on this ethical approach, recognizing and appreciating the need for reverence for life, and comprehensive practical care and protection.”

The lives of humans affect those of our fellow animals – both directly and indirectly – in many ways. We know that animals experience pain and suffering and have the potential to experience states of well-being. We also know that they have needs, interests and emotions that are important to them. Our actions can influence an animal’s physical and psychological well-being, freedom and even its life. Thus, humans have a clear moral duty to protect the welfare, and the lives of, other animals. In time, the fundamental protections of animals should be enshrined into rights. But in the meantime, they remain couched in less absolute terms.

For example, the “Fundamental Principles” in the MAWA include the internationally-accepted ‘Five Freedoms’:

1. Freedom from Hunger and Thirst and Malnutrition
2. Freedom from Physical and Thermal Discomfort
3. Freedom from Pain, Injury and Disease 
4. Freedom to Express Normal Patterns of Behavior 
5. Freedom from Fear and Distress

Do these not seem to echo the very sentiments expressed by Knox about human rights, but in relation to animals?

As Glen Wright said, both Animal Law and Earth Jurisprudence are very much works in progress. Given that both aim for similar legal reform and face similar challenges in achieving this, we should ensure that an advancement of Animal Law or Earth Jurisprudence leads to an advancement of the other. WAN will follow and champion the call for Earth Jurisprudence. We call upon Earth Jurisprudence to take into its scope the full and ethical protection of animals.

In the words of Henry Beston (from the Outermost House):

“We need another and a wiser and perhaps a more mystical concept of animals. Remote from universal nature and living by complicated artifice, man in civilization surveys the creature through the glass of his knowledge and sees thereby a feather magnified and the whole image in distortion. We patronize them for their incompleteness, for their tragic fate for having taken form so far below ourselves. And therein do we err. For the animal shall not be measured by man. In a world older and more complete than ours, they move finished and complete, gifted with the extension of the senses we have lost or never attained, living by voices we shall never hear. They are not brethren, they are not underlings: they are other nations, caught with ourselves in the net of life and time, fellow prisoners of the splendor and travail of the earth.” 

Earth Jurisprudence should be developed in a way that provides the rights needed to ensure flourishing –  for ecosystems and the individual parts of the greater whole, including people and animals. A deep and intuitive understanding of the value and interconnectedness of all of life on earth requires no less than this. If this can be achieved our ethics will continue to develop towards a universal harmony with nature. 

Then we will find that Environmental Rights are Human Rights are Animal Rights.

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[1] Potsdam Institute for Climate Impact Research. Four of nine planetary boundaries now crossed. https://www.pik-potsdam.de/news/press-releases/four-of-nine-planetary-boundaries-now-crossed

[2] Heinrich Böll Foundation, European Center for Institutional and Human Rights. Tricky Business: Space for Civil Society in Natural Resource Struggles. 8. Dec. 2017. https://www.boell.de/en/2017/12/07/tricky-business?dimension1=division_demo 

[3] World Animal Net. Structural and Systemic Barriers to Sustainable Development.  http://worldanimal.net/world-animal-net-blog/item/446-structural-and-systemic-barriers-to-sustainable-development 

[4] Sustainability Advantage. 3 Sustainability Models. http://sustainabilityadvantage.com/2010/07/20/3-sustainability-models/ 

[5] Wright, Glen. Animal Law and Earth Jurisprudence A Comparative Analysis of the Status of Animals in two Emerging Critical Legal Theories. http://www.glenwright.net/files/Animal%20Law%20and%20Earth%20Jurisprudence.pdf

[6] Cullinan, C., Wild Law: A Manifesto for Earth Justice (Green Books, Totnes 2003) at 78.

[7] Hamblin, M., ‘Wild Law and Domesticated Animals: a wild law approach to the regulation of farming industries in Australia’ (Wild Law Conference, Griffith University 16-18 September 2011).

[8] World Animal Net. Model Animal Welfare Act. http://worldanimal.net/proposal-for-the-wording 

[9] The Cambridge Declaration on Consciousness. 7 July 2012. http://fcmconference.org/img/CambridgeDeclarationOnConsciousness.pdf

[10] Wright, Glen. Animal Law and Earth Jurisprudence A Comparative Analysis of the Status of Animals in two Emerging Critical Legal Theories.

[11] Knox, John H.  UN Special Rapporteur on Human Rights and the Environment. United Nations Human Rights Special Procedures. Framework Principles on Human Rights and the Environment. 2018. http://www.ohchr.org/Documents/Issues/Environment/SREnvironment/FrameworkPrinciplesUserFriendlyVersion.pdf?platform=hootsuite

[12] Cox, Janice H, MBA, and Lennkh, Dr. iur. Sabine. World Animal Net. Model Animal Welfare Act. A Comprehensive Framework Law. http://worldanimal.net/our-programs/model-law-project

[13] Earthlings - Animals Are Other Nations https://www.youtube.com/watch?v=Qf2j9w8HMhA&app=desktop

ELC to Attend Puebla’s Living Rivers Forum and Festival

Puebla, Mexico. Photo (unedited) by Russ Bowling; available at: https://www.flickr.com/photos/robphoto/2606385574

By Helen Louise George

Rios Vivos

Rios Vivos has two parts: a conference of speakers (called the Forum) and a multi-day display of arts and music (called the Festival). The first will emphasize education and collaboration, while the second will be a celebration of the local Atoyac River and other waterways.

The Forum (March 19-20): This event will feature prominent voices, from Mexico and abroad, speaking on new approaches to restoring rivers to health. One of these approaches is establishing legal rights for rivers. Featured speakers include former Minister of the Environment of Mexico City Martha Delgado, seasoned Pueblan rivers defender Veronica Mastretta, and the Governor of the State of Puebla, José Antonio Gali Fayad (Tony Gali), amongst many others. ELC’s close partner Cuatro al Cubo will speak on their initiatives, including  the plan to bring back to life those “invisible rivers” that have been built over by the megalopolis of Mexico City.

There will be international speakers, too. The incredible Tierra Digna – who won legal rights for Colombia’s Atrato River in the country’s Constitutional Court – will speak about their own experiences of protecting rivers. And the lead negotiator on behalf of securing legal rights for the Whanganui River in New Zealand, Gerrard Albert, will have a prerecorded speech, as well.

Last but not least, Directing Attorney Grant Wilson will also speak (in Spanish!) at the event to discuss ELC’s work on the Universal Declaration of the Rights of Rivers – an effort to define the rights to which all rivers are entitled. The goal of this initiative is to establish robust legal rights for every major river in the world within 20 years. Mr. Wilson will also update attendees on ELC’s collaboration with groups in Mexico working to establish legal rights for its waterways, as well as our rights of rivers projects in Nigeria, Brazil, the United States, and many other locations.

Great Pyramid of Cholula, outside of the City of Puebla. Photo (unedited) by André Vasconcelos; available at: https://www.flickr.com/photos/andrellv/4152386111

The Festival (March 17-22): The Festival will celebrate the sacred Atoyac River and also pay tribute to the environmental movement that seeks to protect and restore nature in Mexico. Activities include water singing on the banks of the Atoyac River (during World Water Day on March 22), dance, music, art, ceremony, sound healing, and more. The event will feature prominent artists and spiritual leaders from Mexico and worldwide – including ELC’s partner Danielea Castell of Water Harmony, who will travel from Canada. “Guardians of the water” will also lead ceremonies honoring the Atoyac and other precious rivers.

From left to right: Abuela Tonalmitl, Ehekamitl, Coyote Alberto Ruz.

From left to right: Alyosha Barreiro, Beleni Kumara, Cynthia Valenzuela, Grace Terry

Protecting the Atoyac

The Atoyac is one of the most polluted rivers in Mexico. Some have declared the river to be dead – although its supporters believe it can thrive once again. The Atoyac flows through the states of Puebla and Tlaxcala. Every day, almost 150 tonnes (over 32,1875 pounds) of organic waste is dumped into the river. It is also polluted by over 50 pollutants – including suspended solids, heavy metals, volatile organic compounds, and other contaminants from petrochemical, textile, and other industries.

Not only are its aquatic ecosystems devastated, the contaminated river raises health concerns for many of the 2.3 million people in the surrounding area. Serious disease risks include hemolytic anemia, kidney failure, and many others. And despite the severe pollution, farms rely upon the Atoyac to grow food for local communities.

However, local and national groups in Mexico are determined to restore the Atoyac to health. A diverse group of environmental leaders, local communities, governmental officials, businesses, and others are uniting to achieve this shared goal. Many of them will participate at the Living Rivers Forum and Festival.

In particular, ELC and our partners believe that securing fundamental legal rights for the Atoyac is a necessary step towards its recovery. What would this mean in practice? It would mean that the Atoyac has a legal right to, at minimum, enough flows to meet its basic ecological needs. It would mean that the government, local companies, and communities would create enforceable plans to stop polluting the Atoyac – and to clean up the pollution that has already occurred.  And it would mean that the Atoyac would have a seat at the table for any decisions affecting its well being, and be represented by one or more legal guardians. These are only a few examples of many.

The Atoyac River. Photo by Arnold Ricalde.

Protecting the Magdalena and Other Rivers in Mexico

During its trip to Mexico, ELC will also meet with environmental leaders, politicians, and stakeholders in Mexico City to advance the local rights of rivers movement. Recently, Cuatro al Cubo, with legal support from ELC, led an effort to secure legal rights for waterways in Mexico City. As a result of this joint effort, the Legislative Assembly of the Federal District (Asamblea Legislativa del Distrito Federal) included the rights of waterways within the recently approved Water Sustainability Law of Mexico City (Ley de Sustentabilidad Hídrica de la Ciudad de México).

While the law is still pending final publication, once implemented, it will be a landmark victory for waterways in Mexico City. This law can help restore to health the Magdalena River, which is the city’s last free-flowing river, as some 45 others are constrained in underground pipes and buried under layers of concrete.

Eventually, our partners believe, the rights of rivers can be recognized nationwide, such as through recognition in the General Water Law in Mexico (Ley General de Aguas en México). By doing so, Mexico can be a global leader in the movement to establish legal rights for rivers, creating a model for all other countries to follow. Having worked with many of the amazing environmental defenders in Mexico, I am confident that this dream will come true.

Horses by the Magdalena River. Photo by Luc Forsyth.

Next Steps

As we continue to fight for the rights of rivers across the globe, we must look to evolve our legal system into something better. We created our laws, and we can change them, too.  We should not feel restricted by what we have done, but rather empowered by what we can do. And giving legal rights to rivers – including the Atoyac, Magdalena, and others in Mexico – is the blueprint for restoring these precious waterways to health. We look forward to continuing this work with our partners in Mexico.

An Earth Law Solution to Ocean Plastic Pollution

By Michelle Bender

Photo by Michelle Bender

Plastic pollution is emerging as a top threat to ocean ecosystems. By 2025, there could be 1 ton of plastic for every 3 tons of fish in the ocean. Plastic debris affects nearly 700 species worldwide through entanglement and ingestion, alters natural biological and chemical processes, provides a means for the introduction of toxins into the food web, and costs the U.S. economy millions of dollars annually. The majority of this debris comes from land-based sources (e.g., plastic manufacturers, processors, landfills, sewage overflows, litter). With only 14% of plastic packaging and containers recycled in the U.S., 75% of leakage is due to uncollected waste.

Past efforts to address plastic pollution have failed in stemming the flow from land to sea. As the only high income country listed in the top 20 contributors to ocean plastic pollution, the U.S. plays a critical role in managing the waste stream of plastics. The absence of a comprehensive plastic pollution law and policy framework provides an opportunity for federal agencies to explore how and whether existing law and policy mechanisms can be used to address the threat of plastic pollution. This report provides an example by analyzing the Clean Water Act and relevant provisions.

The inability of environmental law to address growing threats, such as plastic pollution, represents the need for a paradigm shift. The environmental laws of the 1970s have yet to fulfill their goals and purposes. The Clean Water act has yet to prohibit discharges and produce clean water because it allows pollution under permitting systems.

As a result, this report attempts to challenge our assumptions behind current environmental law by introducing Earth Law, a system of law that recognizes nature’s inherent rights to exist, thrive and evolve. An Earth Law approach would prohibit the discharge of plastic into our nation’s waterways by considering the health of all Earth members. Therefore, this report proposes that the threat of plastic pollution will only be controlled if humans govern themselves in a way that recognizes their relationship with nature.

I. Introduction

a. The problem

Scientific studies indicate that an emerging threat faces our freshwater and marine ecosystems: plastic pollution.[i] Since plastics are cheap, versatile and strong,[ii] and deliver significant societal benefits (e.g., energy savings, consumer protection, healthcare innovations),[iii] it comes as no surprise that plastic production has increased exponentially since the 1960’s.[iv] If current practices continue as usual, by 2025 there could be 1 ton of plastic for every 3 tons of fish in the ocean.[v] With the ability to persist for up to 4 centuries,[vi] plastic products are harming freshwater and marine ecosystems.[vii]

b. Types of plastic

Plastics consist of a variety of synthetic organic polymers and additives, giving each plastic product its unique properties.[viii] Plastic is generally split into two categories: micro- and macro-plastics. Microplastics (e.g., pellets, granules) are smaller than 5 mm, found throughout the water column, and compose 95% of the plastics in the ocean.[ix] Not readily seen, they receive less attention than macroplastics, which are visible pieces of debris, larger than 5 mm, and usually found on surface water or coastal beaches.[x]

c. Impacts of plastic

Plastics pose a significant threat to ocean and freshwater ecosystems and the benefits humans receive from them.[xi] The amount of plastic debris discarded by the commercial fishing industry has doubled over the last 50 years (from 340,000 tons in 1975[xii] to 640,000 tons annually[xiii]).

First, plastics threaten the survival of many species of wildlife, negatively impacting nearly 700 species worldwide.[xiv]

• Larger items, such as fishing nets, entangle and kill wildlife.[xv]

• Smaller items ingested by wildlife lower fitness by decreasing fertility.[xvi]

• As plastic breaks down, it becomes less buoyant and sinks to the ocean floor.[xvii] This can lead to hypoxia (oxygen deficiency), dead zones, and a shift in sediment properties necessary for sex- determination in animal eggs.[xviii]

• Plastics transport invasive species.[xix] As a medium for long distance dispersion, plastics carry species to uninhabited areas where they compete with native species. For example, a study in the Western Atlantic showed insect eggs on 24% of the plastic pellets sampled.[xx]

Second, plastic products serve as a conduit for the release and travel of toxins into and through freshwater and marine food chains, posing a threat to wildlife, public health, and the fishing industry.

• Plastic, mistaken as food, is ingested at all levels of the food web and travels through the food web via a process known as bioaccumulation (i.e., the accumulation of a substance in an organism’s tissue due to a greater intake rate than excretion or metabolic rate).[xxi]

• Plastics cause two chemical impacts: the release of additives (e.g., BPA), and the attraction and subsequent release of toxins (e.g., DDT, PCBs).[xxii]

• Plastic fragments can transport contaminants, increase their environmental persistence, and concentrate organic pollutants up to 106 times that of surrounding seawater.[xxiii] The chemicals present in plastic pollution, such as PCBs, lead to reproductive disorders or death, increase the risk of diseases and alter hormone levels.[xxiv]

Third, plastic pollution is costly.

• Beach cleanups cost coastal communities millions of dollars each year.[xxv] For example, Texas spends approximately $14 million a year cleaning beaches; and San Francisco spends approximately $6 million per year picking up cigarette butts.[xxvi]

• Plastics on beaches lower aesthetic value and therefore revenue for coastal communities and the tourism industry.[xxvii]

• Losses to the fishing industry occur through vessel damage, decreased fertility and ghost fishing (i.e., the continued trapping and killing of marine life by discarded fishing net). In the U.S., an estimated $250 million worth of lobster is lost to ghost fishing annually and four to ten million blue crabs are trapped in ghost fishing gear each year in Louisiana.[xxviii]

• Plastic litter fouls propellers and clogs the water intake of vessels.[xxix] This reduces fishing opportunities, and increases accidental death. In the U.S. alone, cleanup and boat repairs due to marine debris costs over $1 billion a year.[xxx]

d. The sources of plastic pollution

Rivers are highly polluted with plastic products from storm water runoff, wastewater and industrial effluent.[xxxi] As much as 80% of marine debris comes from land-based sources (e.g., plastic manufacturers, processors, landfills, sewage overflows, litter)[xxxii] and 60- 80% of all marine debris is plastic.[xxxiii]

Of the leakage that comes from land- based sources, 75% comes from uncollected wastes and 25% escape from within the waste management system.[xxxiv] Unfortunately, 80% of plastic waste is too low in value to incentivize recovery and recycling.[xxxv] As a result, an estimated 4.8 to 12.7 million metric tons of plastic waste entered the ocean in 2010 and today there is an estimated 580,000 plastic pieces per square kilometer.[xxxvi]

II. Addressing plastic pollution through environmental law and policy

As the only high income country listed in the top 20 contributors to ocean plastic pollution, the U.S. plays a critical role in managing the waste stream of plastics.[xxxvii]

a. National Pollutant Discharge Elimination System

The Environmental Protection Agency (EPA) regulates the discharge of pollutants into our nation’s waters.[xxxviii] Despite a final rule in 1987 controlling the amount of resin released from plastic manufacturing facilities,[xxxix] data suggests that “pre-production plastic resin pellets accidentally released from plastic processors contribute approximately 10% by count to the plastic debris problem.”[xl]

So, water-quality-based effluent limits (WQBELs) can significantly reduce the discharge of plastic waste. This next line of defense is based on “the amount of pollutants in the water without regard to the cost or technology availability.”[xli]

b. Water Quality Standards

The EPA creates national water quality criteria standards—standards upon which States may choose to build in more stringent measures at the state level[xlii]— based upon the latest scientific knowledge on the effects of the presence of pollutants.[xliii]

Mounting scientific evidence indicates that plastic poses a threat to our nation’s drinkable, fishable, and swimmable waterways. This scientific information indicates that the water quality criteria should be reviewed to determine whether plastic should be considered a criteria pollutant.

The EPA already recognizes that most trash that ends up in the ocean comes from land. The agency has developed the Trash Free Waters initiative “to reduce the amount of trash and litter that enters streams and rivers, lakes and bays, beaches and coastlines, and ultimately the world’s oceans”[xliv] and the National Marine Debris Monitoring Program, to monitor the sources and end-life of trash.[xlv] These programs include outreach, education, research and partnerships,[xlvi] but fail to enforce change (e.g., regulations and initiatives) through their existing statutory authority.

c. Total Maximum Daily Loads

Next, States are required to identify impaired waters,[xlvii] those that do not meet water quality standards, and establish limits on pollutants causing the impairment.[xlviii]

Establishing nationwide limits on the amount of plastic allowed in watersheds can significantly reduce the flow from land to sea. Current impairment and allowable limits do not take into account microplastics because this form of trash (i.e., anthropogenic debris that can be trapped by a 5 mm mesh screen) is smaller than 5mm.[xlix]

For example, in the Los Angeles watershed, 90% of the plastic debris by count and 13% by weight is micro-plastic smaller than 5 mm, and goes unregulated and uncaptured.[l] In California and the North Pacific Gyre, densities of microplastics have tripled during the last decade.[li] The definition, then, fails to address the issue of plastic pollution, threatening the coastal waters of California.[lii]

This presents an opportunity for the EPA to adopt a definition of Trash that includes micro-sized debris and therefore address the vast majority of plastic debris. Similarly, the EPA can initiate rulemaking for the implementation of Trash TMDL’s on all waterways,[liii] ensuring limits address trash of all sizes.

d. Multi-Sector General Permits

Under Section 205 of the Water Quality Act, which amended the Clean Water Act in 1987, the EPA created requirements for “storm water discharges associated with industrial activity”.[liv]

Therefore, more stringent requirements can be placed on plastic manufacturing facilities located on the coast to prevent the loss of pre- production plastic to storm water. The EPA can ensure the strongest control measures are attached to the permits in order to prevent the leakage of plastic from land to water. The EPA already requires that “facilities that handle pre-production plastic must implement best management practices (BMPs) to eliminate discharges of plastic in storm water.”[lv]

To promote further clarity and compliance, the EPA can codify required practices for implementation by pre-productions plastic facilities rather than leave it to be determined on a facility-by-facility basis as is the current practice. Evidence suggests “pre-production resin pellets accidentally released from plastic processors contribute approximately 10% by count to the plastic debris problem.”[lvi] Yet, California is the only state to regulate pre-production plastic[lvii] under state implementation of the CWA.

Regulation and 1 mm mesh screens downstream could significantly reduce the flow of plastic pollution.

Under the Porter-Cologne Water Quality Control Act, the Preproduction Plastic Debris Program controls the leakage of preproduction plastics[lviii] by requiring plastic manufacturing, handling, and transportation facilities to implement[lix] minimum BMPs to control discharge.[lx] As part of the permits, a 1mm mesh screen must be installed downstream from all preproduction plastic locations.[lxi]

If this program were implemented nationwide, the amount of pre-production plastic found in our waterways could be greatly decreased. Additionally, if MSGP permits included minimum BMPs and the requirement of 1 mm mesh screens downstream from facilities; General Permits would help reduce the flow of plastic pollution.

III. An opportunity for Earth Law to address plastic pollution

Earth Law (i.e., Jurisprudence) is an emerging field seeking to address the fundamental flaws of current environmental law and policy. This form of law explicitly recognizes “the interdependence among humans and the environment” and respects ecosystem relationships.

With an overarching purpose to support “a mutually beneficial relationship between humanity and the community of life on Earth,” humans govern themselves in ways, which benefit all beings and ecosystems.[lxii]

Earth Law governs humans as co-equal parts with other Earth members due to the assumption that all beings have the same fundamental rights.

Earth Law governs humans as co-equal parts with other Earth members due to the assumption that all beings have the same fundamental rights.[lxiii] This idea stems from a basic flow of logic: “Rights originate where existence originates. That which determines existence determines rights,” and all members come from the same place of existence, Mother Earth.[lxiv] Just as humans have rights based on our existence and being, so too does nature.

Thomas Berry defines rights as the freedom for all beings to fulfill their duties and responsibilities in the Earth community. In particular, there are three rights for every member: the right to be, the right to habitat and the right to fulfill its role in the ever-renewing processes of the Earth community.[lxv] As co-equal members, humans “have no right to prevent other components of the Earth community from fulfilling their evolutionary role.”[lxvi] Therefore, Earth Law establishes nature’s inherent rights to exist, thrive and evolve in environmental law and policy.

a. Earth Law as a rights-based movement (the necessity of conferring rights onto nature)

An Earth-rights movement is not merely an attempt to create new laws or change existing laws, it seeks to change our worldview and values.

As Christopher Stone writes, a rights-based movement is one that seeks to give rights to a new entity, those traditionally not seen to have any.[lxvii] Only when we confer rights onto a new member of the Earth community, human or non-human, can we guarantee it equal status as other right bearing entities.[lxviii]

Consider the Endangered Species Act.[lxix] Its goals and purposes make it seem like we have given species the right to life (i.e., not go extinct). However, when citizens bring suit for violations, they can only show “standing”[lxx] if they themselves have been injured and their injury can be redressed, with nothing to do with the injury to the species.

If animals and plants are given rights then they themselves will have standing, allowing citizens to speak on their behalf to ensure their rights are not violated. This may seem absurd or unthinkable, but throughout history, the extension of rights to a new entity has always seemed crazy to some (e.g., people of color, women and the LGBT community).[lxxi]

There will always be resistance to considering a historically viewed “object” as a co-equal part the Earth community.[lxxii] Therefore, the emerging Earth-rights movement seeks to illustrate nature as valued for itself, no longer viewed as an object or property, but as a subject with rights.[lxxiii]

b. Addressing the economic system

Another essential component of Earth Law is the qualitative, not quantitative, difference in rights. All rights are species specific (i.e., rivers have river rights, insects have insect rights and humans have human rights), but one is not superior to another. As a result, economic considerations (e.g., cost-benefit analysis) are left out of policy discussions. Unrestrained economic growth can be attributed to the present decline in our natural systems.[lxxiv]

Particularly, the use of cost-benefit analysis (CBA) reinforces our assumptions that nature is a resource to be controlled. CBA requires that we convert the benefits of nature (e.g., clean water, biodiversity) into dollars. It does not allow nature to be valued for itself. Earth law addresses this fundamental flaw by advancing economics in a way that improves relationships (i.e., ecological economics).

By changing the language of “natural capital” and “ecosystem services” to “natural worth” and “ecosystem integrity,” economics stops reinforcing nature as a resource and property. As a result, the economic system serves the law, not the other way around.

c. Earth Law Center Ocean Initiative: Earth Law in practice

The first step in applying the holistic principles of Earth Law to ocean health would be to create an Earth Law framework. Earth Law Center will be launching the final version at EarthX in April 2018, see here for the draft version.

An Earth Law approach aims to benefit the whole Earth community (i.e., humans, fish, water, birds): To ensure all waters are healthy and thriving; meaning water quality is such that:

a) All Earth members’ rights of water as a source of life is not violated;

b) Waters remain free of contamination, pollution and toxic or radioactive waste;

c) Biological, physical, chemical and ecological processes which rely on water continue without human disruption and;

d) Future generations are ensured the same inherent rights.[cvii]                               

States could include an Earth Law approach when revising or adopting water quality standards.[i] New standards are to be “based upon their uses” and “shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act.”[ii] Water quality standards are based upon our use of water, underscoring the assumption that nature is an object.

Additionally, the use of “enhance” signifies that the water quality is already degraded and needs to be improved, and that pollution has already occurred. From an Earth Law perspective, such language is unnecessary because discharge would not occur at levels that would require enhancement (if discharge is allowed at all). This is because an Earth Law-based approach would create water quality standards based on the best and most recent science determining what keeps water and species healthy:

E.g., Water quality standards shall be based upon levels necessary to maintain a healthy and thriving body of water and to not only protect the health of the water, but the health of all Earth members whom depend on the water as their source of life.

Earth-based language in the Clean Water Act would ensure the rights of water, humans, wildlife, plants, and vital systems that rely on healthy water. Water has the right to be water; just like humans have the right to be human. Also, water has the right to continue its vital cycles and processes free from human disruptions; humans have the right to drink uncontaminated water and eat toxin-fee fish; fish have the right to reproduce and be healthy.

By incorporating nature’s rights into the Clean Water Act, discharge would be managed based on what allows the water and all organisms whom depend on the water to be healthy. Arguably, this would mean not allowing plastic discharges into waterways and would surely require the regulation of microplastic pollutants.

IV. Conclusion

The CWA set the goal of attaining water quality standards by 1983. This date is over 30 years past due.

Between 4.8 and 12.7 million metric tons of plastic waste entered the ocean in 2010.[i] As a result, plastic pollution is degrading water quality, affecting biodiversity[ii] and posing potential human health impacts.

The CWA set the goal of attaining water quality standards by 1983. This date is over 30 years past due. Of the water bodies assessed, 54.9% of rivers and streams, 69% of lakes, 78.4% of bays and estuaries and 88.9% of the coastal shoreline are listed as impaired nationally.[iii] The assumption that certain levels of pollution are acceptable as long as it is “permitted,” underscores the flaws of our current governance system.

By establishing legal systems that recognize that the health and welfare of humans is dependent on our interconnected relationships within the Earth community, systemic problems, such as plastic pollution will be addressed. It’s time to further evolve the protection of the ocean. Our lives, health and well-being depend on the health of the environment.

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[i] George Leonard & Andreas Merkl, Confronting Ocean Plastic Pollution at the Global Scale: New Insights and Strategic Opportunities, 1 (2015) (internal document).

[ii] Id. at 3.

[iii] The Declaration of The Global Plastics Associations for Solutions on Marine Litter, available at http://www.marinedebrissolutions.com/Declaration.

[iv] Jenna R. Jambeck et al., Plastic Waste Inputs from Land into the Ocean, 347 Science 768, 768 (2015) (Global plastic resin production increased by 620% from 1975 to 2012); Ocean Conservancy, Stemming the Tide: Land- based Strategies for a Plastic- Free Ocean, 4 (2015), available at http://www.oceanconservancy.org/our-work/marine-debris/mckinsey-report-files/full-report-stemming-the.pdf (With current production at 250 million tons this trend is expected to continue to 380 million tons produced by 2025).

[v] Leonard, supra at 3.

[vi] Ocean Conservancy, supra at 3 (2015).

[vii] For more information on the plastic products found in freshwater ecosystems see Martine Wagner et al., Microplastics in Freshwater Ecosystems: What We Know and What We Need to Know, 26 Environmental Sciences Europe 12, (2014).; Jessica Midbust et al., Reducing Plastic Debris in the Los Angeles and San Gabriel River Watersheds, Algalita Marine Research Institute (2014), available at http://www.bren.ucsb.edu/research/2014Group_Projects/documents/Bren-Group-Project-Thesis-Reducing-Plastic-Debris-in-the-Los-Angeles-and-San-Gabriel-River-W.pdf.; For more information on plastic products found in marine ecosystems see Chris Wilcox et al., Threat of Plastic Pollution to Seabirds is Global, Pervasive, and Increasing, PNAS Early Edition 1, (2015). Ocean Conservancy, supra.; Donald C. Baur & Suzanna Iudicello, Stemming the Tide of Marine Debris Pollution: Putting Domestic and International Control Authorities to Work, 17 Ecology L.Q. 71, (1990).; Jambeck, supra at 768.

[viii]José G.B. Derraik, The Pollution of the Marine Environment by Plastic Debris: A Review, 44 Mar. Pol. Bol. 842, 842 (2002).

[ix]Juliana A. Ivar do Sul & Monica F. Costa, The Present and Future of Microplastic Pollution in the Marine Environment, 185 Mar. Pol. Bul. 352, 352 (2014).; Ocean Conservancy, supra at 11.

[x] Matthew Cole et al., Microplastic as Contaminants in the Marine Environment: A Review, 62 Mar. Pol. Bul. 2588, 2589 (2011).

[xi] Ocean Conservancy, supra at 6.

[xii] F, S.C Gall & R.C. Thompson, The Impact of Debris on Marine Life, 92 Mar. Pol. Bul. 170, 170 (2015).

[xiii] Baur, supra at 82. (An estimated 50,000 fur seals from the Pribilof Islands population in the North Pacific Ocean die each year from entanglement). 

[xiv] Peter Kershaw et al., Plastic Debris in the Ocean, UNEP Year Book. 21, 26-28 (2011) (Studies link plastics to physiological stress, liver cancer, and endocrine dysfunction (female fertility and male reproductive tissues growth) in fish that ingest the plastic).

[xv] Murray R. Gregory, Environmental Implications of Plastic Debris in Marine Settings- Entanglement, Ingestion, Smothering, Hangers- on, Hitch- Hiking and Alien Invasions (2009), available at http://rstb.royalsocietypublishing.org/content/364/1526/2013.; Derraik, supra at 844.

(Plastic on the seafloor provides a barrier that inhibits gas exchange processes between the water and seafloor which leads to hypoxia (oxygen deficiency) and dead zones).

[xvi] Gregory, supra..; Derraik, supra at 844

(Plastic on the seafloor provides a barrier that inhibits gas exchange processes between the water and seafloor which leads to hypoxia (oxygen deficiency) and dead zones).; Cole, supra at 2592 (2011) (Plastics significantly alter the composition and properties of the seabed by increasing the permeability of sediment while decreasing its heat absorbance. Therefore sediment with plastics reaches lower maximal temperatures. This temperature difference may affect sex- determination in animal eggs, such as turtles).

[xvii] Ivar do Sul & Monica F. Costa, supra at 353.

[xviii] Id. at 353.

[xix] Cole, supra at 2589.

[xx] Kershaw, supra at 25-27.

[xxi] Ivar do Sul, supra at 353.; Chris Wilcox et al., Threat of Plastic Pollution to Seabirds is Global, Pervasive, and Increasing, PNAS Early Edition 1, 4 (2015).

[xxii] Derraik, supra at 846.

[xxiii] Charles James Moore, Synthetic Polymers in the Marine Environment: A Rapidly Increasing, Long- Term Threat, 108 Env. Res. 131, 133 (2008).

[xxiv] Baur, supra at 81.; UNEP & NOAA, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris, 9 (2011), available at http://www.unep.org/esm/Portals/50159/Honolulu%20Strategy%20Final.pdf.

[xxv] Moore, supra at 133..; Kershaw, supra at 28.

[xxvi] Baur, supra at 78.

[xxvii] United Nations, Resumed Review Conference on the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 3 (2010), available at http://www.un.org/Depts/los/convention_agreements/reviewconf/FishStocks_EN_A.pdf.

[xxviii] Derraik, supra.

[xxix] UNEP & NOAA, supra at 8.

[xxx] Kershaw, supra at 28.

[xxxi] Ocean Conservancy, Trash Travels: From our Hands to the Sea, Around the Globe, and Through Time 2010, at 17, http://act.oceanconservancy.org/images/2010ICCReportRelease_pressPhotos/2010_ICC_Report.pdf.

[xxxii] Algalita, Credible Information and Statistics: The Magnitude of Plastic Debris (Dec. 1, 2015, 11:11 AM), http://www.algalita.org/credible-information-and-statistics/.

[xxxiii] Cole, supra at 2590.

[xxxiv] Baur, supra at 78..; Leonard, supra at 2.

[xxxv] Derraik, supra at 843.

[xxxvi] Ocean Conservancy, supra at 13.

[xxxvii] Id.

[xxxviii] Id. at 8.

[xxxix] Jambeck, supra at 770; Wilcox, supra at 1.

[xl] Jambeck, supra at 770.

[xli] Id. at 769.

[xlii] Baur, supra at 84.

[xliii] Earth law is an emerging body of law which establishes nature’s right to exist, thrive and evolve.

[xliv] Massachusetts v. EPA, 549 U.S. 497, 534, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (“EPA [cannot] avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time.”).

[xlv] 33 U.S.C. § 1311.; 40 CFR § 414.11.

[xlvi] § 1311(b, e); § 1314(b); § 1311(b)(2)(A).

[xlvii] § 1312(b)(2)(A); Natural Resources Defense Council v. U.S. EPA, 804 F.3d 149, 151 (2d Cir. R. 2015).

[xlviii] Organic Chemicals and Plastics and Synthetic Fibers Category Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards, 52 FR 42522-01 (1987), WL 40 CFR 414 and 416.

[xlix] Moore, supra at 137.

[l] § 1311, 1342.

[li] U.S. Environmental Protection Agency, National Recommended Water Quality Criteria- Aquatic Life Criteria Table (Dec. 1, 2015, 3:36 PM), http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm.

[lii] § 1313(c).

[liii] § 1313.

[liv] § 1313(c).

[lv] Center for Biological Diversity, Petition for Water Quality Criteria for Plastic Pollution Under the Clean Water Act, 33 U.S.C. § 1314 (2012), available at http://www.biologicaldiversity.org/campaigns/ocean_plastics/pdfs/Petition_Plastic_WQC_08-22-2012.pdf.; U.S. Environmental Protection Agency, National Recommended Water Quality Criteria- Aquatic Life Criteria Table (Dec. 1, 2015, 3:36 PM), http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm. 

[lvi] § 1314(a)(1).

[lvii] U.S. Environmental Protection Agency, Marine Debris (Nov. 10, 2015, 3:30 PM), http://water.epa.gov/type/oceb/marinedebris/.

[lviii] U.S. Environmental Protection Agency, Marine Debris Laws and Regulations (Nov. 30, 2015, 2:49 PM), http://water.epa.gov/type/oceb/marinedebris/lawsregs.cfm.

[lix] U.S. Environmental Protection Agency, Marine Debris (Nov. 10, 2015, 3:30 PM), http://water.epa.gov/type/oceb/marinedebris/.

[lx] Known as section 303(d) listed waters.

[lxi] § 1313(d).

[lxii] § 1313(d).

[lxiii] Angela George and Linda L. Miller, Compliance with Trash TMDLs: Ten Years of Experience from Los Angeles County Unincorporated Areas, Department of Public Works (2014), available at https://www.casqa.org/sites/default/files/downloads/2-county_of_la_presentation-casqa_trash_webinar_7-29-14.pdf (Trash TMDL compliance in California generally involves the implementation of full capture or partial capture systems (combination of full capture and institutional measures), with 5 mm mesh screens. To date, California has spent approximately $7 million in installing these devices).

[lxiv] Moore, supra at 136 (according to the CA Regional Water Quality Control Board, Los Angeles Region).

[lxv] Id.

[lxvi] Resolution of the California Ocean Protection Council on Reducing and Preventing Marine Debris (2007), available at http://www.opc.ca.gov/webmaster/ftp/pdf/docs/Documents_Page/Resolutions/MarineDebris_Resolution.pdf.

[lxvii] Shavonne K. Stanek et al., Microplastic Contamination in San Francisco Bay (Nov. 30, 2015, 2:52 PM), http://www.sfei.org/sites/default/files/biblio_files/RMP15%20SOE%20Micoplastic%20Sutton%20FINAL%209-15%20%281%29.pdf.

[lxviii] U.S. Environmental Protection Agency, California Water Quality Assessment Report (Dec. 2, 2015, 9:24 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA, (California causes of impairment for 303(d) listed waters: 46 have been reported due to trash).

[lxix] U.S. Environmental Protection Agency, California Causes of Impairment for Reporting Year 2012 (Dec. 2, 2015, (9:25 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA#causes.

[lxx] U.S. Environmental Protection Agency, California Causes of Impairment for Reporting Year 2012 (Dec. 2, 2015, (9:25 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA#causes.

[lxxi] Wagner, supra at 12.; Kershaw, supra at 25-28.

[lxxii] Ivar do Sul & Monica F. Costa, supra at 359.

[lxxiii] Kershaw, supra at 25-28.

[lxxiv] 40 CFR § 401.15.

[lxxv] Wagner, supra at 17.

[lxxvi] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 4 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxvii] Id.

[lxxviii] Id. at 7.

[lxxix] Id. at 4.

[lxxx] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 5 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxxi] U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES) Multi- Sector general Permit for Stromwater Discharges Associated with Industrial Activity (MSGP), 4 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_finalpermit.pdf (Endangered and Threatened Species and Critical Habitat Protection. Coverage under this permit is available only if your stormwater discharges, allowable non-stormwater discharges, and stormwater discharge-related activities were the subject of an Endangered Species Act (ESA) consultation or an ESA section 10 permit, or if your stormwater discharges, allowable non-stormwater discharges, and stormwater discharge-related activities are not likely to adversely affect any species that are federally listed as endangered or threatened (“listed”) and are not likely to adversely affect habitat that is designated as “critical habitat” under the ESA. You must meet one of the criteria below, following the procedures in Appendix E).; For appendix E see: U.S. Environmental Protection Agency, Appendix E- Procedures Relating to Endangered Species Protection, (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_appendixe-2.pdf.

[lxxxii] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 5 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxxiii] U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES) Multi- Sector general Permit for Stormwater Discharges Associated with Industrial Activity (MSGP), 15-16 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_parts1-7.pdf.

[lxxxiv] Id (Section 2.1.2.2).

[lxxxv] Id (Section 2.1.2).

[lxxxvi] Moore, supra at 137.

[lxxxvii] J. M. Organ, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems, 54 Md. L. Rev. 1373, 1374 (1995),

available at http://digitalcommons.law.umaryland.edu/mlr/vol54/iss4/9 (Federal Water Pollution Control Act 33 U.S.C. § 1370 (1972) (Authorizes States to adopt or enforce standards or limitations that are more, but not less, stringent than any effluent limitation, effluent standard, prohibition, pretreatment standard, or standard of performance in effect under the Clean Water Act).

[lxxxviii] § 13367 (a) (Preproduction plastic includes plastic resin pellets and powdered coloring for plastics).

[lxxxix] § 13367 (c).

[xc] § 13367.

[xci] § 13367 (d)(1).

[xcii] Id.; Earth Day Revisited, supra.

[xciii] Cormac Cullinan, Wild Law: A Manifesto for Earth Justice 44 (2 ed. 2011).

[xciv] Cormac Cullinan, Wild Law: A Manifesto for Earth Justice 44 (2 ed. 2011).

[xcv] Id. at 103.

[xcvi] Id. at 101.

[xcvii] Id. at 102.

[xcviii] Christopher D. Stone, Should Trees Have Standing?- Toward Legal Rights For Natural Objects, 450 Southern California Law Review 45, 455 1972).

[xcix] Cynthia Giagnocavo & Howard Goldstein, Law Reform or World Re-form: The Problem of Environmental Rights, 345 McGill Law Journal 35, 345 (1989-1990).

[c] Endangered Species Act, 16 U.S.C § 1531 (1973).

[ci] Sierra Club V. Morton, 405 U.S. 727 (1972) (dissenting opinion).

[cii] Stone, supra at 453.

[ciii] For examples see Stone, supra at 453- 454.

[civ] Stone, supra at 456.

[cv] Koons, supra at 357.

[cvi] 33 U.S.C. § 1251(a)(2).

[cvii] Paul Emond, Co-operation in Nature: A New Foundation for Environmental Law, 342 Osgoode Hall Law Journal 22, No.2, 347 (1984).

[cviii] § 1313.

[cix] § 1313(c)(2)(A).

[cx] § 1311(b, e); § 1314(b); § 1311(b)(2)(A).

[cxi] Jambeck, supra at 770.

[cxii] UNEP & NOAA, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris, 5 (2011), available at http://www.unep.org/esm/Portals/50159/Honolulu%20Strategy%20Final.pdf.   

[cxiii] U.S. Environmental Protection Agency, National Summary of State Information (Dec. 1, 2015, 3:34 PM), http://iaspub.epa.gov/tmdl_waters10/attains_nation_cy.control

 [HG1]Majorie? Marjorie?

 [HG2]Highlight with a pull out quote

Rights for the River Ethiope, Nigeria

By Timothy W. Collins

I.  Introduction

Earth Law Center recently partnered with the River Ethiope Trust Foundation (“RETFON”) to secure rights recognition for the River Ethiope in Nigeria, to assist with RETFON’s current efforts and to work towards establishing the River as a legal entity possessing rights. As a result, the River would have a broad suite of recognized legal rights that would set it on a path to permanent restoration. It would also have standing to utilize the court system as a plaintiff in search of injunctive relief or damages, as necessary.[1] The River Ethiope would be the first waterway in Africa to possess legal rights.  

II.  The River Ethiope

The River Ethiope is located in the Delta State of Nigeria (“DSN”). The DSN is a geographic component of the South-South geo-political zone, and yields oil and agriculture. The River runs from the Umuaja community in the Ukwuani Local Government Area (“LGA”) and meets the sea at the Sapele LGA. The River flows for approximately 70km through four LGAs: Ukwuani, Ethiope East, Okpe and Sapele. These LGAs combine for an estimated population of 1.7 million people as of 2013.[2]

The River is a place of worship for adherents to the traditional Olokun and Igbe religions. It famously originates at the base of a giant cottonwood tree.[3] The area surrounding the source is a specific concern; human visitation over time has destroyed precious root systems that filter groundwater and prevent erosion. A concentration of vehicular traffic creates high levels of airborne pollutants as well. In the now familiar environmental irony human interest and appreciation endangers the object(s) humanity seeks to see and appreciate.

Nigeria is the third most biologically diverse country in Africa with regards to flora and fauna, a ranking that is currently endangered due to largely unregulated deforestation, farming, spreading urban communities and industrialization.[4]

III. The River Ethiope Trust Foundation

RETFON’s mission is to protect the River Ethiope and to defend the rights of the communities that depend on it. RETFON opposes development projects that degrade water quality, and encourages sustainable innovation to meet needs for water, energy, and protection from destructive floods and coastal erosions. To achieve this mission, RETFON collaborates with local, regional, national and international network of grassroots movements, communities, individuals, social clubs, Non-Governmental Organizations and corporate partners. Through research, education, advocacy and legal action RETFON works to halt destructive activities, to address the legacies of sustainable activities, to improve development policies and practices of government and to promote water and energy solutions for a just and amicable society. RETFON’s activities are planned to serve as a model for all rivers in Nigeria.[5]

IV. Threats to the River

Nigeria has one of the worst river degradation conditions of any country in the world. To date, dedicated deliberate efforts to reverse this growing problem have proven inadequate, for reasons addressed below.  Climate change, uninhibited industrial/urban development combine to measurably worsen the condition as time passes.[6]

Historically, the River Ethiope has been used extensively for occupational and recreational activities: fishing, swimming, clothes washing and bathing. These activities have no measurable environmental impact on their own merits. The River has been used as a source of disposal for industrial waste and consumer products, as well, and is subject to further contamination during the rainy season when it typically overflows its banks.[7] When the floodwaters recede they carry runoff in the form of additional domestic waste and agricultural by-products like chemical fertilizers and pesticides. As noted, tourism and religious activities pose additional threats due to the significant amount of visitors in sensitive areas.

River Ethiope currently fails to meet the water quality standard set by the World Health Organization (“WHO”), a failing that is shared by every river in Nigeria.[8] This failure to meet WHO standards renders the waters of the River at best useless and at worst dangerous for human interaction. The pollution and continued degradation also pose a threat to entire inland ecosystems and ultimately to coastal regions of the Atlantic Ocean.

V.  RETFON’S Approach

RETFON has displayed uncommon patience and determination over the past twenty-six years. President and Founder Irekefe V. Dafe identifies partnership building, resource mobilization, flexibility and leadership as key components of the learning process. Mr. Dafe describes RETFON’s approach as focusing on (1) partnership and collaboration, (2) community mobilization, (3) holistic emphasis, (4) planning, evaluation and monitoring, and (5) long-term sustainability, all practiced under the principles of Eco-hydrology and Integrated Water Resource Management (“IWRM”). RETFON plans to proceed towards its goals of full implementation of IWRM principles, developing and maintaining proper legal and institutional frameworks and the establishment of either an Inter-Local Government Commission for the preservation of the River or a River Ethiope Watershed Development Authority by the four above-referenced LGAs. To achieve these goals RETFON must overcome funding challenges to remedy a lack of scientific data, poverty and ignorance, the lack of an institutional framework, and inadequate government policies and programs, and the failure to enforce existing laws and regulations.  

VI.  Timeline: A Condensed History of RETFON’s Activities to Date

Since 1992, RETFON has worked to protect the River Ethiope by building relationships with both local civilians and businesses (“stakeholders”) and DSN and Federal governments, reaching out in both directions simultaneously. Governmental recognition and assistance legitimizes the Trust in the eyes the stakeholders; stakeholder perception creates reciprocal awareness by the governments. This symbiosis extrapolates to a model of an as yet aspirational relationship between the community and the River, i.e., two concerned parties acting in concert for mutual benefit.            

RETFON recent activities to protect the River Ethiope include the following:

• In February of 1999, RETFON organized the first official joint inspection of the River by DSN and Federal Government of Nigeria (“FGN”) officials. The result was the immediate closure of several industrial facilities whose practices were identified as harmful to the River. In one instance the inspection discovered a rubber processing plant directly discharging untreated rubber waste into the River, not far upstream from communities who routinely use the River for bathing and as a source of drinking water. These closures significantly disrupted what had been a steady source of pollution and acted as a deterrent for future violators who chose to operate without an approved Environmental Impact Assessment (“EIA”).
• Building on this momentum, RETFON petitioned the Federal Government through FEPA to intervene in the development of a tourism facility by the hospitality company Hotel and Catering Services Ltd. in April of 1999. The company was engaged in a development effort on the banks of the River without the required EIA, seemingly oblivious to the idea that their actions were harming the source of their potential commercial success. FEPA issued a directive to halt further development until the EIA had been made and approved. When village leaders questioned why RETFON would oppose local development, RETFON highlighted its commitment to preserving and restoring the environment, which benefits both ecosystems and local communities that rely upon healthy waterways.
• RETFON organized a second joint inspection inspection of the River in February 2001. The inspection team was made up of DSN government executives and members of the DSN House of Assembly, led by a member of the DSN Commission for Special Duties the group focused on gully erosion near the heavily trafficked source of the River. The inspection efforts yielded the immediate award of a contract for the control of gully erosion in the Ebede community, approximately five kilometers from the River source. Controlling gully erosion is crucial to reducing the amount of contaminated storm water runoff. This type of husbandry further demonstrates RETFON’s approach of simultaneously solving a pressing issue while building public interest and support—in this case stakeholders were inspired by the idea of two arms of their state government working together to perform actions popularly viewed as restrictive towards industry and commerce.
• In June 2012 RETFON was awarded a United Nations Development Plan-Global Environment Facility grant (UNDP-GEF).[9] The UNDP-GEF grant supported a project to restore and conserve the source of the River. The tangible efforts were afforestation and the development of a plant nursery. Less visible but equally important results were leading by example, the fostering of environmental awareness, policy reform advocacy, emphasis on environmental monitoring and evaluation, and the opportunity for the DSN government and stakeholders to work together towards a mutually beneficial cause.

RETFON has continued to work with local stakeholders and government to defend the health of the River Ethiope and surrounding communities. RETFON offers workshops and educational opportunities, including outreach to University students. Student involvement is understated in its importance; RETFON offers students what is often their first application of theory to practice. Furthermore, the introduction of students to environmental awareness helps to create a generation that considers such awareness normal as opposed to radical.

VII.  The Rights of Nature Approach

Earth Law Center (ELC) is proud to support RETFON on a new campaign to seek legal rights for the River Ethiope. To date, RETFON and other leaders have made remarkable progress in protecting the River Ethiope by working with local stakeholders, enforcing current environmental laws and calling for policy change where necessary. However, RETFON recognizes that the only permanent method to restore this river to health is to give it legal rights that are equivalent to those enjoyed by humans and other entities. And considering the immense ecological, religious and cultural significance of the river, it is a prime candidate to be the first river in Africa to have its inherent rights recognized.

Although achieving a substantial paradigm shift like legal rights of rivers is always difficult, RETFON enjoys support from community leaders, governmental departments, and national and international actors. In particular, the younger generation is deeply inspired to protect the environment in Nigeria. Therefore we are confident that the campaign will be a success.

What are the rights to which the River Ethiope might be entitled? Earth Law Center (“ELC”) enumerated the basic rights to which all rivers are entitled in the Universal Declaration of the Rights of Rivers. At baseline, they consist of (1) the right to flow, (2) the rights to perform essential functions within its ecosystem, (3) the right to be free from pollution, (4) the right to be fed from sustainable aquifers, (5) the rights to biodiversity and (6) the right to restoration.[10]

These rights are intentionally drafted broadly to give stakeholders and government the opportunity to adapt them to local needs. Under RETFON’s leadership, and considering the wisdom and input of local communities, ELC’s legal experts will provide counsel on how to define and implement the rights of the River Ethiope. And in the meanwhile, RETFON’s bilateral efforts will continue to build precedent until a valid argument can be made that the River Ethiope is exercising its legal rights in every capacity, and all that remains is formal recognition.

VIII.  Next Steps

ELC has partnered with RETFON in our shared goal of establishing rights of nature, including rights of waterways. The next step is for ELC to develop a full awareness and understanding of DSN and FNG structures and procedures to plan and communicate intelligently. We will then begin discussions with RETFON on how to best provide legal rights for the River Ethiope, drawing from ELC’s international experience and RETFON’s decades of local success. RETFON will then work with local communities to ensure that rights for the River maximize human and environmental well-being. We are extremely excited for the months to come.

IX.  How to Help

To assist our efforts either with this specific partnership or in general please look at the following options:

1.  Donate to ELC

2.  Volunteer with ELC

3.  Contact ELC if you want to work on your own river rights campaign

4.  Have your organization sign the Declaration of River Rights document

5.  Connect with us on social media and sign up for our newsletter

X.  Conclusion

RETFON’s efforts have gone a long way at the “ground level” by securing and performing manual project designed for immediate impact. They can be viewed as individual bricks in a foundation upon which to construct RETFON’s long-term goals of legitimacy and awareness, both by stakeholders and the State and Federal governments. And while these victories are necessary and inspiring, they can only be made permanent by establishing legal rights for rivers.

Ideally this one instance will be the first domino to fall in the extended effort to address and reverse the degradation of all Nigerian rivers. While at present difficult to fathom, it is important to remember that sweeping changes of this kind are preceded by the suffragette and Civil Rights movements in the United States, and were met by a range of oppositional tactic while the voting public struggled with the introduction of groundbreaking departures from tradition.[11] By establishing legal rights for the River Ethiope, we hope to create a replicable model for all – to usher in a new era of living in harmony with the waterways upon which we rely.

XI. Afterword

My thanks go to Mr. Irekefe V. Dafe, President and Founder of the River Ethiope Trust Foundation for his valuable assistance in providing background material and educating ELC on RETFON’s impressive efforts and history. It is safe to assume that any missing citations are the problem children of unpublished documents sent to ELC by Mr. Dafe, and equally safe to assume that, as such, the facts are trustworthy. Although I have done my best to paraphrase rather than simply copying and pasting there is a fine line between the two results, made finer by my fear of distorting the meaning and emphasis. Please forgive me if such a misrepresentation has occurred, and I look forward to assisting in the development of this partnership.

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[1] Author’s note: as yet unexplored and without precedent, that same standard exposes the river to liability as a defendant; it is difficult to imagine a set of circumstances giving rise to litigation of this kind, and the issue is academic at the moment and of course dependent on future events.

[2] https://www.internationalrivers.org/resources/irikkefe-v-dafe-river-ethiope-7850

[3] https:en.wikipedia.org/wiki/Delta_State

[4] F.O. Arimoro, E.A. Kaine, B.O. Krumale, & S. Obiegba, "Ecological Observations, Preliminary Checklist and Conservation of Mammals Occurring Within the Eastern Boundaries of Ethiope River, Niger Delta Area of Nigeria," J Biodivers Biopros Dev 1: 104 (2014) at: https://www.omicsonline.org/open-access/ecological-observations-preliminary-checklist-and-conservation-of-mammals-occurring-within-the-eastern-boundaries-of-ethiope-river-niger-2376- 0214.1000104.php?aid=26278

[5] https://www.facebook.com/retfon/

[6] Dafe V. Irikefe and Irwin A. Akpoborie, "Implementing IWRM in the Ethiope River Watershed: The Role of Advocacy," Kaduna NIGERIA Workshop Paperat: http://mucp-mfit.org/wp-content/uploads/Dafe-and-Akpoborie-_-IWRM-at-ERC-Compatibility-Mode.pdf

[7] S.A. Osakwe and B.O. Peretiemo-Clarke, "Evaluation of Heavy Metals in Sediments of River Ethiope, Delta State, Nigeria," 31st CSN Conference paper 611-613 (2008) at: https://pdfs.semanticscholar.org/a2b1/5047a38c416e5b5b798ddb1b55d2e8a7c81c.pdf

[8] http://www.environewsnigeria.com/wrd-nigeria- rivers-fall- standards/

[9] http://www.undp.org/content/undp/en/home/funding/funding-channels.html

[10] https://www.earthlawcenter.org/river-rights/

[11] Pecharroman, Lidia Cano, Rights of Nature: Rivers That Can Stand in Court.  AC4, Columbia University 2018, 2; citing Stone, C.D. Should Trees Have Standing?⎯Towards Legal Rights for Natural Objects.  South. Calif. Law Rev. 1972, 45, 450-501.

Co-Violations: Where Both Human and Ocean Rights Violations Occur

By Michelle Bender

What are co-violations?

Human rights violations often accompany violations of nature. Earth Law Center’s 2016 updated report analyzed 200 case studies of these “co-violations.”

The information we collected showed that co-violations of nature’s rights and human rights are expanding everywhere, with the global south proportionately more affected. Thirty percent of the cases examined involved harm to indigenous peoples’ rights, despite indigenous people comprising only five percent of the population.[1]

Since then, a wave of new, increasingly violent cases of rights co-violations has swept across the globe. Many involve arrests and murders intended to silence frontline environmental defenders. These acts are rarely punished. Human victims are branded as enemies of “progress,” and environmental victims are viewed as commodities rather than as living beings.

Human trafficking, corruption, exploitation, and other illegal violations, combined with a lack of policing and proper enforcement of international laws, also represents the deplorable reality of much ocean activity.

The ever-growing presence of human rights violations at sea and the direct and indirect mistreatment of the ocean go hand in hand. Whether in the form of illegal fishing or the forced evacuation of low lying atoll nations affected by climate change, the seas and oceans overflow with crime.[2]

At Earth Law Center we know that legal rights for marine protected areas will help protect both nature and humans from co-violations of their rights at sea. A legal framework is urgently needed because marine communities face problems of such severity.

Disappearing fish means vanishing livelihoods and disrupted ecosystems

A legal framework for marine protected areas will help to protect fisheries from further damage. Fisheries contribute over $100 billion to the global economy[3] with an estimated $375 million coming from coral reefs.[4]

However, the Food and Agriculture Organization (FAO) has named over 70 percent of the world’s fish species as either fully exploited or depleted[5], and therefore unlikely to rebound to healthy populations.

Marine scientists found that 10 percent of large predatory fish, such as tuna, swordfish and marlin remain,[6] and 30 percent of shark species are threatened with extinction due to ‘finning’ for shark fin soup.[7] The decline is not only due to direct fishing pressures, but to human activities and exploitative pressures. The already decimated Atlantic Bluefin Tuna population is further struggling to rebuild due to the impacts of the 2010 BP oil spill.[8]

Dolphins and whales are also declining due to fishing bycatch, direct hunting, and bioaccumulation of toxic pollution such as the ubiquitous microplastics. Many whale species face imminent extinction. These include the North Atlantic right whale, with only about 300 individuals left, and the Western Pacific gray whale, estimated to have fewer than 100 individuals left.[9]

Similarly, about 27 percent of coral reefs (including half the Great Barrier Reef) have already been lost to ocean acidification and other climate factors such as warmer sea temperatures and sea level rise.[10]

Humans are at “high risk of causing . . . the next globally significant extinction event in the ocean” — and soon.[11] A legal framework for marine protected areas is needed now.

Slave labor and the seafood industry

A new scientific paper by Conservation International, the University of Washington and other partners calls on governments, businesses and the scientific community to take measurable steps to ensure seafood is sourced without harm to the environment or to people that work in the seafood industry.[12]

The paper, presented at the United Nations first Oceans Conference in New York in 2017 offers the first integrated approach to taking account of social issues and human rights violations in the seafood industry. The work responds to investigative reports by the Associated Press, the Guardian, The New York Times and other media outlets that uncovered human rights violations on fishing vessels.

The investigations tracked the widespread use of slave labor in Southeast Asia to produce seafood products, and chronicled the plight of fishermen tricked and trapped into working 22-hour days, often without pay, while enduring abuse. Subsequent investigations have documented the global extent of these abuses. [13]

Earth Law for marine protected areas will mean improved supervision of the seafood industry, making it more difficult for slave labor operators to evade detection.

Earth Law as an innovative supporter of human rights and nature’s rights at sea

Earth Law aims to shift our economic worldview toward one that respects rather than ignores the rights of nature and humans.

Recommendations made by Earth Law Center include, among others:

• Recognize in law and implement the fundamental rights of nature, including through U.N. General Assembly adoption of the Universal Declaration of the Rights of Mother Earth
• Prioritize cases before the International Criminal Court that involve co-violations of human rights and nature’s rights
• Formulate an international treaty to prevent and address human rights and nature’s rights violations by transnational and national business enterprises
• Provide emergency protection to environmental defenders at risk
• Adopt a system for receiving information and reporting on violations of the rights of nature and of environmental human rights defenders

Recent efforts in addressing co-violations of human rights and nature’s rights at sea

Local, national and international efforts and partnerships are working to address the growing number of co-violations of ocean and human rights. An Earth Law framework for marine protected areas will build on this momentum.

At the local level, communities are standing up for their right to a healthy environment and to defend the ocean. Communities and states are doing their part to address the flow of plastics into the ocean, with actions such as banning plastic bags, polystyrene and micro-beads.

California passed a law in 2013, and Washington in 2011, prohibiting the possession and sale of shark fins within the state.[14] And most recently, communities across the United States have passed resolutions banning oil drilling off their shores, including 33 communities on the Pacific Coast.[15]

At the national level, countries are increasing ocean conservation efforts, through laws designed to manage fisheries, address land-based pollution and protect large areas of jurisdictional waters through marine protected areas.

Iceland, recipient in 2010 of an award for responsible fishery practices, regulates the amount of fish that each fisherman can catch. Scientists re-evaluate these quotas after testing the biomass twice a year, and shut down fisheries if stocks fall.[16]

Countries are using marine protected areas as a tool to address the decline in marine biodiversity and loss of livelihoods. In late 2017, Mexico announced the expansion of Revillagigedo Archipelago National Park, the largest marine protected area in North America, protecting an area of ocean nearly four times the size of Switzerland.[17] Given the strictest level of protection in the country, the status prohibits fishing activities, mining, and oil extraction, and strictly regulates marine tourism activities.[18] 

At the international level, the United Nations attempted to prevent such violations through the Convention on the Law of The Sea (UNCLOS 1982), also known as the Law of the Sea Treaty (LOST). UNCLOS is the primary international agreement that regulates the rights and responsibilities of nations regarding their use and treatment of the world’s oceans.  The treaty that resulted from the convention attempts to create guidelines for all aspects of international waters, including business, diplomacy, mineral rights, pollution control, and fishing rights. However, this treaty, not ratified by the United States, is not in its essence an environmental treaty, but rather a constitution for how all activities should be carried out on the High Seas.

In 2015, the United Nations General Assembly unanimously agreed to launch a series of negotiations to develop an international treaty to protect marine biodiversity on the High Seas (areas beyond national jurisdiction- beyond 200 nautical miles from land). The fourth and final Preparatory meeting was held in 2017, with formal negotiations to begin in fall 2018.[19]

The draft primary objective of the new treaty is to “ensure the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.” The treaty is expected to provide guidelines for cooperation to create regulations to protect marine biodiversity, including designating and implementing marine protected areas on the high seas.

A new approach for human and ocean rights management is needed

Despite the great steps taken to address the co-violations of human and ocean rights, ocean health continues to decline. To correct the destruction being caused, we must challenge the overarching legal and economic systems that reward environmental harm, and advance governance systems that maximize social and ecological well-being.

Earth Law Center proposes evolving the legal framework guiding our activities to include legal rights for the ocean. We have drafted the Earth Law Framework for Marine Protected Areas to serve as a tool for adopting a holistic and rights-based approach to ocean governance. The framework is currently being finalized with a working group under the International Union for the Conservation of Nature.

Experts, governments and organizations worldwide agree that such a shift to holism and alternative forms of management is needed.

For example:

• In 1982, the United Nations adopted the World Charter for Nature (111 votes for, 1 vote against, 18 abstentions).[20] The Charter adopts principles of conservation guiding human conduct to be reflected in the laws of each State.[21] It acknowledges that “mankind is a part of nature” and that “living in harmony with nature gives man the best opportunities” for living well. Noting that “every life form … warrant[s] respect regardless of its worth to man,” the charter declares, “Nature shall be respected and its essential processes shall not be impaired.” The Charter calls upon a moral code of conduct to guide human action in a way that treats other organisms with respect. Additionally, a primary function of the agreement is to recognize that man’s needs can only be met “by ensuring the proper functioning of natural systems.”

• The National Oceanic and Atmospheric Association (NOAA) calls upon the recognition of ecological interconnectedness and complexity as crucial to managing marine ecosystems.[22] Also found to be crucial to sustainable management, the need for holism is highlighted throughout NOAA’s work. In multiple reports, NOAA noted that a holistic approach is distinct from current approaches,[23] and to achieve the needed holism, we must reject and replace “many (but not all) of the processes upon which conventional management depends.”[24]

• In providing technical guidelines for responsible fisheries, the international Food and Agriculture Organization recognizes the need to improve current fisheries management,[25] highlighting the use of marine protected areas and a holistic approach to do so.[26] However, FAO notes that marine protected areas must merge two converging paradigms —ecosystem management and fisheries management.[27] Sustainable development can be achieved if the two “converge towards a more holistic approach that balances both human well-being and ecological well-being.”[28]

Accordingly, the Earth Law Framework for Marine Protected Areas, serves as not only as a guideline for adopting holistic and rights-based governance towards protected areas, but also ocean law and policy in general. At its foundation is the recognition and respect for the rights and values of the ocean. By acknowledging certain rights the ocean is entitled to, human decisions are then required to balance human rights and needs with those of the ocean, addressing co-violations of human and ocean rights.

After months of research and writing in 2017, the framework underwent an open call for inputs to gain recommendations from experts internationally. The final version of the framework is due to launch this Earth Day, April 22nd. ELC will also be creating a working group within the International Union for the Conservation of Nature, the largest conservation organization in the world, to receive final revisions necessary for IUCN endorsement and dissemination.

What you can do to help

At this critical juncture in our planet’s future, we have the opportunity to change the way we treat the ocean.

• We can ensure national ocean policies recognize the ocean’s rights to life, well-being, biodiversity and restoration. Read the framework here.
• We can pass local ordinances establishing the rights of coastal communities to a healthy environment and to defend nature. Launch an initiative here.
• We can ensure fishery management is done on a systems and precautionary basis. Volunteer with ELC here.
• And we can encourage our representatives to promote rights of nature in the UN International Treaty for Biodiversity on the High Seas. Donate here.

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[1] https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/586d58b8725e2585df6a935a/1483561276729/ELC+Co-Violations+Report+-+2016+Update+%28Print%29.pdf

[2] https://www.oceanfdn.org/resources/human-rights-and-ocean

[3]    http://www.un.org/events/tenstories/06/story.asp?storyID=800 

[4]    Sea Technology

[5]    http://www.un.org/events/tenstories/06/story.asp?storyID=800

[6] Ransom A. Myers & Boris Worm, “Rapid Worldwide Depletion of Predatory Fish Communities,” 423 Nature 280-283 (May 15, 2003), at: www.nature.com/nature/journal/v423/n6937/abs/nature01610.html.

[7] http://content.time.com/time/magazine/article/0,9171,2021071,00.html 

[8] https://scpnt.stanford.edu/bp-oil-spill-bluefin-tuna

[9] Russell McLendon, “10 of the Most Endangered Whales on Earth,” Mother Nature Network (June 23, 2010), at: www.mnn.com/earth-matters/animals/stories/10-of-the-most-endangered-whales-on-earth.

[10] World Wildlife Fund, “Fast Facts: Why Coral Reefs are Important to People,” at: www.wwf.panda.org/about_ our_earth/blue_planet/coasts/coral_reefs/coral_facts.

[11] A.D. Rogers, & D.d’A Laffoley, International Earth System Expert Workshop on Ocean Stresses and Impacts, Summary Report, p. 7 (IPSO Oxford 2011), at: http://www.stateoftheocean.org/wp-content/uploads/2015/10/2011-Summary-report_workshop-on-stresses-and-impacts.pdf. See also International Programme on the State of the Ocean, Combined Research Papers, at: http://www.stateoftheocean.org/ wp-content/uploads/2015/10/2011-Summary-report_workshop-on-stresses-and-impacts.pdf.

[12] https://www.seafoodsource.com/news/environment-sustainability/social-and-human-rights-abuses-on-agenda-at-seaweb-un-oceans-conference

[13] https://www.seafoodsource.com/news/environment-sustainability/social-and-human-rights-abuses-on-agenda-at-seaweb-un-oceans-conference

[14] http://www.laweekly.com/news/shark-fin-soup-could-be-banned-in-the-us-through-proposed-legislation-8248185

[15] http://www.biologicaldiversity.org/campaigns/stopping_trumps_assault_on_ca_coast/#list

[16] http://oceaneos.org/sustainable-fishery/countries-where-the-fisheries-are-sustainable/

[17] https://www.virgin.com/richard-branson/mexico-creates-largest-marine-protected-area-north-america

[18] https://mpanews.openchannels.org/news/mpa-news/mexico-creates-north-americas-largest-fully-protected-mpa

[19] http://www.pewtrusts.org/~/media/assets/2017/03/road-to-high-seas-conservation.pdf

[20] Tim Boucher, Plants & Privacy, Medium, Feb. 4, 2016, available at: https://medium.com/@timboucher/world-charter-for-nature-1982-93cc3d41ff79.

[21] World Charter for Nature, U.N. Doc. A/37/51 (1982), available at: http://www.un.org/documents/ga/res/37/a37r007.htm (World Charter). 

[22] Id. at 2.

[23] Charles W. Fowler, Andrea Belgrano, and Michele Casini, Holistic Fisheries Management: Combining Macroecology, Ecology, and Evolutionary Biology, Marine Fisheries Review (Scientific Publications Office, National Marine Fisheries Service, NOAA), 75 (1–2), 2013, p. 1, available at: http://aquaticcommons.org/14550/1/mfr751-21.pdf.

[24] Fowler, C. W., R. D. Redekopp, V. Vissar, and J. Oppenheimer, Pattern-based control rules for fisheries management. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-AFSC-268, 2014, p. 2, available at:https://www.afsc.noaa.gov/publications/afsc-tm/noaa-tm-afsc-268.pdf. 

[25] Fisheries Management-2. The Ecosystem Approach to Fisheries, Food and Agriculture Organization of the United Nations, 2003, available at: http://www.fao.org/3/a-y4470e.html.

[26] Fisheries management. 4. Marine protected areas and fisheries. FAO Technical Guidelines for Responsible Fisheries. No. 4, Suppl. 4. Rome, FAO, 2011, available at: http://www.fao.org/docrep/015/i2090e/i2090e00.htm.

[27] Fisheries Management-2. The Ecosystem Approach to Fisheries, Food and Agriculture Organization of the United Nations, 2003, available at: http://www.fao.org/3/a-y4470e.html.

[28] Id.

The Amazon River Needs Rights Recognition Now

Photo credit: Yann Arthus Bertrand

By Raquel Hiebra

The River

The Amazon River, with an average flow rate of 215 million liters per second, wins the title of world’s largest river in terms of water volume.[1] In one single day, the Amazon discharges more water into the ocean than the Thames River does during the whole year.[2] This volume of water is equivalent to 20% of the world's river waters.[3] Moreover, at 6,868 km. (4,267.5773 mi.),[4] the Amazon competes with the Nile for the title of world’s biggest river in terms of surface area.[5]

The Amazon starts in Peru, at the Andes Mountains, and flows through Brazil before meeting the Atlantic Ocean. In Brazil, the river arrives as the Solimões and becomes the Amazon when it meets with the Negro River.[6] At this meeting, Solimões’ clear waters do not mix with the Negro’s dark waters, the result is a beautiful natural phenomenon.[7] Pororoca is another unique natural phenomenon which is best observed in September and March, during the biannual equinoxes. On higher ocean tides (new and full moons), water flows in from the Atlantic to the river, causing a reverse flow in which waters run upstream with great force, forming a tidal bore with an audible noise.[8]

The Amazon river basin covers an area of more than 7,000,000 square kilometers (2,702,715 square miles), and has more than 1,000 tributaries.[9] It is the largest basin in the world and runs through Peru, Colombia, Ecuador, Venezuela, Guyana, Bolivia and Brazil.[10]

Francisco de Orellana was the first European to travel from the source to the mouth of the Amazon, and he was the one that named the river as Amazon, because female warriors holding bows and arrows constantly attacked his expedition, reminding Orellana of the Amazon warriors from Greek myth.[11]

Archaeologists estimate that more than 3 million indigenous people lived in the Amazonian basin in the pre-Columbian period. These civilizations were highly developed due to selective cultivation, and use of fire to grow crops in a more fertile land.[12] Reports from the first Europeans to explore the basin, during the 16th and 17th centuries, mention the abundance of food, and the high population density of numerous "nations" that inhabited the region.[13]

However, rapid depopulation occurred during the colonization period due to war, slavery, and the spread of new viruses. Furthermore, the Catholic Church, responsible for converting indigenous peoples to Christianity, did not contribute to keeping their culture and values alive. Between 1750 and 1850, the indigenous Amazon population became the minority in the region.[14]

Regardless of all threats, the Amazon’s indigenous population managed to survive. In Brazil, there are around 180 Tribes with almost 208,000 people living in the Amazon region.[15] Currently, most of the Tribes do not rely entirely on their traditions to survive, however, growing of crops, hunting, and fishing are still crucial to them.[16]

There are also a lot of small communities that live across the Amazonian basin. In Amazonas, a Brazilian state crossed by the Amazon River, there are around 350 small communities that live on the river’s banks with approximately 37,000 people. Most of the communities were formed at the end of the 19th century due to rubber exploitation. Although the rubber cycle has declined, small groups remained in the region, forming small communities.[17]

The population of the riverbank communities faces the lack of crucial public services such as basic sanitation. Most of them do not have any medical support, and it may take two hours for a student to commute to the nearest school.[18] In practice, the Amazon supports the basic needs of such communities by providing water, fish, and transportation. Moreover, besides governmental support, any fish surplus is the main source of their low income[19].

Regarding its biodiversity, the Amazon’s basin encompasses a variety of landscapes and ecosystems, including the biggest rainforest on the planet, other rainforests, floodplain forests, and savannas[20]. It has the world’s greatest diversity of fish, with more than 3,000 species.[21] Moreover, its forest possesses a huge amount of stored carbon (90-140 billion metric tons of carbon), which has the potential to accelerate global warming if not stewarded properly.[22]

This description of the Amazon River’s characteristics helps to show the river’s importance, not only for the local people, but also for the planet’s entire ecosystem.

Threats to the Amazon River

Considering its great importance, it is natural to think that such a river should be protected and not jeopardized in any way, correct? However, unfortunately it is not a reality. The Amazon has to fight daily threats in order to follow its flow.

The Amazon rainforest is being cut down to free land for raising crops and cattle farming, affecting the river, which in some areas is presenting a higher level of pollutants such as phosphorus, carbon, and nitrogen. Studies from 2002 performed at Ji-Paraná River, an Amazonian basin river, revealed that in deforested areas elements such as carbon, phosphorus and nitrogen that would normally be absorbed by the forest and its soil are being carried into the rivers due to rains and the erosion of the rivers’ banks. The electric conductivity[23] found on tributaries of Ji-Paraná (Rolim de Moura, Urupá, and Jaru) showed a rate of 50 to 100 μS/cm, values that are 20 times higher than those found in preserved areas of the basin.[24]

Moreover, frequent forest burnings, aiming to open space to grow cattle and crops, decrease fauna diversity. After a burning, 78% of animals and plants are reduced[25]. Such burnings also affect the surrounding fauna of the Amazon river, changing the species that live in the river, its biodiversity, and the river’s own metabolism[26].

When the river crosses Macapá, a Brazilian city which concentrates most of the population of Amapá, it suffers with the discharge of untreated sewage. On average, each of Macapá’s citizens produces half a liter of sewage per day which goes directly into the Amazon river and its tributaries.[27]

The Amazon river is also impacted due to damming. There are 140 hydroelectric dams in operation or under construction along the river, and there are proposals for another 428 dams. Considering these projects, scientists argue that even if only a fraction of such dams are implemented, impacts on the river will be disastrous. The huge number of dams will retain most of the river’s sediments and nutrients, stifling life for species from the river. A broad study involving ecologists, engineers, economists, and geologists from universities around the world concluded that no river in the world, not even the huge Amazon, could survive 568 dams.[28]

In addition, activities such as commercial fishing, bio-piracy, poaching, logging, and mining[29] do not contribute to improving the odds of the Amazon river.

Selling Off Amazon’s Biodiversity

A bid promoted by the Brazilian government in 2013 sold the rights of oil exploration in the Amazon’s estuary, which was acquired by a consortium of companies, among them, the French Total, and the British BP (responsible for the largest marine oil spill in the history of petroleum, in the Gulf of Mexico in 2010). Currently, Total, BP, and another 3 companies have opened environmental processes within IBAMA (Brazilian Environmental Agency) seeking environmental licenses to start off their activities in the Amazon’s estuary.

Oil Spills in the Amazon’s Fragile Ecosystem

Another of the daily threats faced by the Amazon is the risk of oil spills in its estuary. A problem that if it occurs, besides the devastation of the river and the sea’s ecosystems, would also threaten one of the largest reef systems in the world.

The reef was revealed to the world in 2016. It presents a unique ecosystem with a rare and, so far, unknown diversity of species. Researchers estimate the reef covers an area of 50,000 km² (19305.11 mi²). Scientists have already recognized 40 species of corals, 60 species of sponges (29 previously unknown), and 73 species of fish.[30]

At least, among other elements, the new reef helped IBAMA to delay the issuance of their licenses until the completion of environmental studies. In August 2017, IBAMA required additional information related to Total’s license process, due to the discovery of the coral reef. In December 2017, IBAMA also did not issue the license to BP, and required additional information related to its process. Such requirements of additional information are a signal that the licenses will not be issued at the present moment, but it does not mean that a license will not be issued once Total and BP complete their process.[31] Moreover, the Brazilian government suspended any new bid processes to exploit oil in the area until 2019.[32]

Environmental groups are watching such processes closely. Greenpeace, which helped to release information about the reef, supports the campaign “Defend Amazon reef”, and fights to pressure oil companies to not exploit oil in Amazon’s estuary. There is an online petition urging Total and BP to cancel their plans to drill oil near Amazon’s reef.[33] 

Although oil exploitation in Amazon’s estuary has not yet begun, it is an activity that has been developed in the Peruvian Amazonian basin for more than 40 years, and its negative impact in the Western Amazon is a sad reality for the environment. More than 190 oil spills have been recorded in Peru since 1997, according to Peru's energy and mining agency. [34] In 2016 alone, 7 oil spills, representing an amount of almost 10,000 barrels, happened in the Peruvian Amazon. [35]

Scientists still do not know the real impacts of such spills in the long-term in the Peruvian Amazon. However, a study from January 2016, by Peru's National Institute of Health, pointed out that the levels of lead, cadmium and mercury in the blood of Amazonian children who live in affected areas were higher than those allowed in adults — and that it could affect their cognitive and motor development. [36] Another study from 2014, conducted by Rosell-Melé, an environmental chemist at the Autonomous University of Barcelona, showed tapirs and other species of mammals ingesting soils contaminated with oil compounds in the damaged areas of the Peruvian Amazon. [37] The point is, indigenous communities, which depend on the river for fresh water and fish, also hunt such animals. In the oil damaged region of Loreto alone, there are 500 indigenous territories, and five reserves for people in voluntary isolation. [38]

Oil exploitation is also a reality in the Amazonian basin of Ecuador. Chevron has exploited oil in this region for more than 30 years, and its activities caused widespread devastation of the ecosystem, and severely affected indigenous communities. To name a few examples, such exploitation resulted in 18 billion gallons of wastewater being dumped into rivers and streams; the construction of more than 900 open-air, unlined toxic waste pits that leach toxins into the soil and groundwater; release of contaminants through spills, spreading oil on roads, gas flaring, and burning of crude; and the creation of a pipeline and road system that has opened pristine rainforest to uncontrolled and widespread clearing, resulting in more than a million acres of deforestation. [39] At the height of its operations, Chevron was dumping an estimated 4 million gallons of oil per day. [40] 

Currently, more than 30,000 people are in a class action lawsuit in Ecuador fighting to hold Chevron accountable for the damage. The contamination of the waters directly impaired the lives of tens of thousands who relied on the waters for their daily activities. Scientific surveys pointed out that the rates of cancer are elevated in areas of oil contamination. Studies have also found high rates of childhood leukemia, and an atypical number of miscarriages. Moreover, children have been born with birth defects. [41]

What Rights of Rivers Would Look Like for the Amazon

Now, imagine how it would be if the Amazon River had rights, how it would be if it could stand up for its legal rights in a court of law. Rights that would include the right to flow; the right to perform essential functions within its ecosystem; the right to be free from pollution; the right to feed and be fed by sustainable aquifers; the right to native biodiversity; and the right to restoration[42].

Personhood for rivers has already been recognized in New Zealand, India,[43] and Colombia, and nature’s inherent rights are recognized in the Amazonian basin bathed countries of Bolivia and Ecuador. Thus, why not apply the same rights to the biggest river on the planet? Why not give the Amazon the chance to stand for its rights and fight against unsustainable exploitation?

If the Amazon had full legal rights, then any unsustainable exploitation that would impair those rights could be challenged, with the river itself having standing in a court of law. When making such a claim, the river would be considered a legal entity, fighting for its own legal rights. In practice, humans would have to stand in a court of law to enforce such rights on behalf of the river, acting as legal guardians – a model that is already familiar to lawyers who represent children, disabled persons, and so forth. This model would in turn empower local communities, environmental groups, and others seeking to support the river’s rights.

Why not take the example of Vilcabamba River, a successful example of a river that enforced its rights, and let the Amazon fight for justice against whoever threatens its rights? As background, in the Vilcabamba River case, a construction project aiming to widen the Vilcabamba-Quinara road was depositing large quantities of rock and excavation material in the Vilcabamba River, increasing the river’s flow and the risk of flood disasters during the rainy  season.[44] The Ecuadorian Appeal Court granted a constitutional injunction in favor of the fundamental rights of the Vilcabamba River, ruling that the Provincial Government was responsible for causing significant damage to the Vilcabamba River, and ordering the restoration of the affected river corridor.[45] In other words, the government had to make the rights-bearing Vilcabamba River whole again.

Now, based only on the threats briefly mentioned above, imagine all of the reparations orders and rulings against future and imminent threats that could favor the Amazon River if it had rights. Rights for nature, including rights for our most precious and important rivers, seems to be the next logical step in our environmental governance, especially if we believe in a sustainable planet for future generations.

After all, economic benefits from the environment will not exist without an environment to support it!

---

[1] https://super.abril.com.br/ideias/rio-amazonas-agua-agua/

[2] Id.

[3] Id.

[4] http://mundoeducacao.bol.uol.com.br/geografia/o-rio-amazonas.htm

[5] https://pt.wikipedia.org/wiki/Rio_Amazonas#Extens%C3%A3o

[6] Id.

[7] Id.

[8] https://en.wikipedia.org/wiki/Pororoca

[9] https://pt.wikipedia.org/wiki/Rio_Amazonas

[10] http://ambientes.ambientebrasil.com.br/amazonia/bacia_do_rio_amazonas/bacia_do_rio_amazonas.html

[11] http://riosdelplaneta.com/rio-amazonas/

[12] Id.

[13] http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0103-40142005000100015

[14] Id.

[15] Id.

[16] https://es.mongabay.com/2007/11/habitantes-del-amazonas/

[17] https://oglobo.globo.com/sociedade/nas-vilas-ribeirinhas-do-amazonas-37-mil-pessoas-carecem-de-medicos-saneamento-14635488

[18] Id.

[19] Id.

[20] http://wwf.panda.org/what_we_do/where_we_work/amazon/about_the_amazon/

[21] https://www.todamateria.com.br/bacia-amazonica/

[22] http://wwf.panda.org/what_we_do/where_we_work/amazon/about_the_amazon/

[23] a measurement used to determine water quality

[24] http://revistapesquisa.fapesp.br/2002/04/01/o-alerta-da-poluicao-nos-rios-da-amazonia/

[25] http://amazoniareal.com.br/queimadas-destroem-78-da-biodiversidade-da-amazonia/

[26] https://pib.socioambiental.org/pt/noticias?id=39091

[27] http://g1.globo.com/ap/amapa/noticia/2013/11/rio-amazonas-e-tao-poluido-quanto-o-rio-tiete-diz-ambientalista-no-amapa.html

[28] https://brasil.elpais.com/brasil/2017/06/14/economia/1497430161_506854.html

[29] https://www.rainforestcruises.com/jungle-blog/threats-facing-the-amazon-rainforest

[30] https://www.uol/noticias/especiais/corais-da-amazonia.htm#novos-leiloes-estao-previstos-para-2019

[31] http://epbr.com.br/foz-do-amazonas-bp-tambem-vai-complementar-estudos/

[32] https://www.uol/noticias/especiais/corais-da-amazonia.htm#tematico-1

[33] https://amazonreefs.org/

[34] http://www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538

[35] Id.

[36] http://www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538

[37] https://www.scientificamerican.com/article/oil-spills-stain-peruvian-amazon/

[38] Id.

[39] http://amazonwatch.org/work/chevron

[40] Id.

[41] Id.

[42] Universal Declaration of River Rights at https://www.earthlawcenter.org/river-rights/

[43] Unfortunately, the Supreme Court of India stayed the decision of the Uttarakhand High Court to recognize the rights of the Yamuna and Ganga Rivers, although efforts continue to permanently recognize the rights of these and other waterways in India.

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

[45] http://www.gardenofparadise.net/Garden_of_Paradise/Rights_of_Nature_Lawsuit.html  and https://www.theguardian.com/global-development-professionals-network/2017/apr/21/rivers-legal-human-rights-ganges-whanganui

How Can Earth Law Save Florida?

By Liz Drayer, Clearwater, Florida

STATE OF THE STATE – UH OH

Our state of sunshine nurtures an abundance of plants and animals, wetlands and prairie, rivers and white sandy beach. Owls nest in pine trees and panthers still prowl the cypress swamp. But this subtropical Eden faces threats from concrete canyons and strip mall sprawl. We pave over tortoise burrows, raze palmettos to make way for chemical-fed par four playgrounds. More bodies crowd in every day, demanding condos and diesel to power their toys.

PAVING HAPPENS

During the last century, Florida lost millions of acres of forest and wetlands to development. As a result, today dozens of mammals, birds, reptiles, fish, coral and other creatures crowd the state’s list of endangered species.

Florida’s crystal-clear springs once drew dignitaries and day trippers seeking cures for their ailments. But the once boiling waters now stagnate, polluted by salt and nitrates, fueling toxic blooms that threaten our health, instead of protecting it.

From the Panhandle to the Keys, growth and booming tourism continue to claim natural areas. Estimates predict the state’s population will double during the next fifty years, putting millions more rural acres at risk. Wildlife and humans will compete for shrinking land and water, and the wildlife will surely lose out. Across the state, lagoons, bays and estuaries are collapsing from chronic pollution and crippled drainage, made worse by alternating drought and El Nino downpours. Ecosystem decline threatens sea grass, fisheries, recreation and local economies. Experts estimate wading birds in the Everglades have declined by 90 percent. Invasive plants and animals have forced out native species. Oil companies threaten to drill in the Gulf on a regular basis. So far public outcry and leadership has thwarted their plans, but for how long?

EARTH LAW TO THE RESCUE

How can we save the nature we have left and revive what we’ve lost? Enter Earth Law, granting legal rights to the Everglades, sea oats and sparrows. No less than the Supreme Court’s Justice William O. Douglas proposed giving rights to nature over forty years ago. Earth Law can help us save crocodiles from extinction, reduce disease, buy time for sinking coastal communities. It can help tourism grow when we beautify beaches and parks, fueling the economy for future generations. How can Earth Law transform Florida?

Jenny From the Block Representing Flipper. Earth Law gives nature the right to flourish and lets citizens enforce that right in court. Imagine sea turtle nests threatened by a new high-rise hotel. A turtle lover could petition the court to stop hotel construction. To persuade the judge, the turtle lover could show that the hotel’s artificial lighting will make it hard for hatchlings leaving the nest to find the sea. She can show how seawalls and sandbags that protect upland construction will degrade turtle habitat. She could argue the litter and tar from hotel operations will pollute frontal zones where baby sea turtles live. Top that off with some photos (courtesy of the Sea Turtle Conservation League of Singer Island) showing the threat simple lounge chairs pose to our native reptiles, and she’s built a strong case. Does all this involve time and effort on her part? Sure, but many facts she needs to argue her case appear online, published by government agencies who should be protecting these creatures in the first place.

Take the case of a new subdivision in East Palatka which brings Hummers and Harleys demanding more parking. Let Palatkans stand up for the live oaks in the bulldozer’s path. Who better to speak for those stately emblems of the south, hardy in hurricanes, granting sweet shade through the sweaty summer? Natives know some of these trees are so large you can see them from space, and the USS Constitution was nicknamed “Old Ironsides” because her live oak hull survived cannon fire.

Neighbors of the oaks can describe their joy watching sapsuckers, turkeys and bears feasting on the trees’ sweet acorns. Just what would those creatures eat in the new parking lot, inquiring minds will demand. They’ll fret for the threatened scrub jay which nests in live oaks, and for the birds which use the moss to build their nests. Why, people will ask, should we trade these delights for more traffic and exhaust fumes?

SLAPP Them Back. What if meanie developers punish citizen advocates with baseless lawsuits meant to silence them? Strategic Lawsuits Against Public Participation (SLAPPS) have defanged community rights in the past. Earth Law can make them illegal, as many jurisdictions already have done. Over half of US states have enacted anti-SLAPP statutes, including California and Texas, and an effort to pass federal anti-SLAPP legislation is underway.

Show Me the Money. Few average Joes have the cash for lawyers and litigation. To encourage citizens to speak up for nature in court, Earth Law can shift the burden of proving a project won’t do any harm onto those proposing it. Make phosphate mine owners pay for consultants to prove their runoff won’t turn Tampa Bay to green slime. If costs are still too high for individual litigants, they can band together or partner with nonprofits, aided by leverage gained when industry shoulders its share of the costs. At least one US crowdfunding site supports environmental lawsuits, and more are sure to pop up as this method of financing citizen rights grows in popularity.

Oh No You Didn’t. Ideally, granting nature’s rights to ecosystems can help protect them before they’re imperiled. Say your local Earth Law ordinance guarantees residents rights to clean water, clean air and sustainable food. Use this guarantee to prod the city council to plant urban forests. Join with your neighborhood association, and show that trees clean the air by absorbing carbon dioxide and producing oxygen, filter pollutants from water and recharge underground aquifers. Trees that produce fruit and nuts can provide food to the community. 

What if your best efforts can’t protect the eagles and armadillos? Earth Law can empower courts to enjoin harmful acts and order restoration. Boneheaded boaters keep mowing down manatees in the Gulf? Ban motorized vehicles from the creatures’ favorite hangouts, and designate safe zones for boating that won’t harm wildlife. Don’t let developers foul the state’s irreplaceable springs, then cut and run. Make them clean up the mess.

Special Victim Earth. Many polluters treat fines they incur for harming ecosystems as a cost of doing business. To get their attention, Earth Law can expand criminal penalties for the worst wrongs, and make corporate officials think twice before pumping carcinogens through your faucet. The US EPA does impose criminal penalties for certain violations, taking into consideration the defendant’s knowledge and negligence. Still, civil actions are far more common than criminal ones. Earth Law can stiffen the penalties and increase prosecutions. A growing number of countries, including Australia and Canada, impose long prison terms for abusing animals. The case for criminalizing nature abuse may be even stronger; we depend on a clean and healthy environment for our own survival.

YOU CAN MAKE EARTH LAW HAPPEN

But it Won’t Be a Walk in Suwannee State Park. Florida’s still a long way from giving rights to rivers and reptiles. Several countries have tried it, as have dozens of US communities, including Pittsburgh, Pennsylvania and Santa Monica, California. Efforts are ongoing to enshrine nature rights in the constitutions of Colorado, New Hampshire, Oregon, and Ohio. Still, nature rights laws have been challenged in court, and thorny issues still need sorting out. Where do rights of whooping cranes end and rights of orange growers begin? How will rights for nature fit in with the maze of laws on the books? There’s little doubt these new rights will be used in ways we don’t foresee. But none of these hurdles should stop us. If we need to amend the US constitution to safeguard natural systems once and for all, we’ll make it happen. When millions of us demand change, once-distant goals move ever closer.

No Pain, No Green. We won’t escape short-term dislocations as we replace dirty businesses with sustainable ones. But we can weather them. Remember the industry doomsayers back in the seventies when we passed clean air and water laws. Business adapted, and will adapt again.

EARTH LAW MUST RULE

Status Quo Equals Suicide. Runaway population growth, overconsumption, and a host of human bad habits threaten not just Florida, but the planet we depend on to survive. Either we save the earth now, or our species is doomed. But if we force a sea change, benefits abound. It’s not too late to fix the damage we’ve done, but we’ve got to get going. What sounds like mission impossible now needs strong leaders and grass roots support. We can win rights for nature, and someday they’ll seem as normal as women voting in elections. Can it be we’ve enjoyed this right for less than a century? Yes, it can. What’s radical one day becomes the routine and we don’t question it. Someday, Floridians will look back at how we abused our great state, and wonder what their clueless ancestors could have been thinking.

Why Earth Law Will Be Good for Puget Sound in Washington State, USA

“There is an ethical consideration that all animals have a fundamental right to healthy habitat… [that] underpins for many the drive for whale conservation and marine protected areas.” — Erich Hoyt

By Darlene Lee and Michelle Bender

What is Puget Sound?

Puget Sound is a transition zone between river and maritime environments. With its complex system of interconnected marine waterways and basins,[i] it is the third largest estuary in the United States, after Chesapeake Bay in Maryland and Virginia, and San Francisco Bay in northern California.

In 2009, the collective waters of Puget Sound, the Strait of Juan de Fuca, and the Strait of Georgia were named the Salish Sea by the United States Board on Geographic Names. Sometimes "Puget Sound" and "Puget Sound and adjacent waters" refer to Puget Sound proper together with the waters to the north, including Bellingham Bay and the San Juan Islands region.

Marine Protected Areas in Puget Sound

Marine Protected Areas (MPAs) have existed in Puget Sound since the early 1900s, although most were established after the 1960s. By 1998, at least 102 intertidal and subtidal protected areas existed in Puget Sound; five managed by at least 12 different agencies or organizations at the local, county, State and Federal level.

A 2009 inventory found a total of 127 MPAs in Washington State, of which 16 percent were no-take areas in which all resource harvest was prohibited. In addition to areas restricting harvest, some MPAs involve habitat protections or restrict non-harvest activities such as vessel anchoring or recreational access. These protected areas account for nearly 600 miles of Washington State’s shoreline; 24 miles are within the national MPA system[HG1] .[ii]

What Challenges Does Puget Sound Face?

From the 1960s onwards, Puget Sound suffered serious pollution. Industrial pipes pumped toxic chemicals into the water; dams blocked the way for salmon; natural resources were overharvested. Those problems still persist, but ecosystem management in Puget Sound has significantly advanced since the 1970s and 1980s.

Scientists now recognize that what happens on the land is intricately tied to the health of the water. We face climate change and unprecedented population growth. Scientists have identified thousands of different human-caused pressures on the ecosystem. New threats include stormwater, emerging contaminants and widespread declines in species and habitats.[iii]

Approximately 23 percent of Puget Sound Basin forestland has moved to human uses, including agriculture and urban lands. Tidal marsh and other river estuarine ecosystem types declined by 80 percent in the last 150 years through a process of diking and draining.[iv]

In the last 100 years, more than 60 percent of Washington State’s old-growth forest was harvested. Much of the remaining old-growth remnants are limited to relatively high elevation public land.

Killer Whales in the Puget Sound

Southern Resident killer whales range in the Salish Sea and along the West Coast. They depend heavily on Chinook salmon for food. In the late-1990s, Southern Resident killer whales experienced a dramatic decline. A precarious food supply, threats from pollution, vessel traffic, and noise continue to jeopardize their survival. As a result, they are federally listed as endangered. [v]

In 2009, the National Oceanic and Atmospheric Administration (NOAA) Fisheries considered a protection zone as part of a package of vessel regulations to protect these whales. The agency adopted vessel traffic regulations in 2011, requiring that boats stay 200 yards from the whales and out of their path, but it did not finalize a protected zone due to strong opposition at the time.[vi]

The Southern Resident killer whale population in Puget Sound is actually a large extended family, or clan, comprised of three pods: J, K, and L pods. They are visible throughout the year in Puget Sound, but are most often seen in the summer, especially in Haro Strait west of San Juan Island, the Strait of Juan de Fuca, and in the Strait of Georgia near the Fraser River.

Threats to Southern Resident killer whales include contaminants, prey availability, vessels, and noise pollution. Additional human activities, such as underwater military activities, have been identified as potential threats for killer whales, particularly on the outer coast. Their small population size (76 individuals at latest count) and social structure put them at risk for a catastrophic event, such as an oil spill, or a disease outbreak, that could impact the entire population.[vii]

The National Marine Fisheries Service described Southern Resident killer whales as one of eight species most at risk of extinction in its 2015 report to Congress, yet stopped short of expanding critical habitat protections for Puget Sound’s orca whale population. [viii]

The Orca Relief Citizens’ Alliance, Center for Biological Diversity, and Project Seawolf petitioned NOAA Fisheries in November 2016 to establish a protected zone free of motorized boat traffic to promote recovery of Southern Residents. The NOAA Fisheries sought public comments on a petition in January 2018 calling for a whale protection zone for highly endangered Southern Resident killer whales on the west side of Washington’s San Juan Island. [ix]

NOAA Fisheries recently completed a status review for Southern Residents under the Endangered Species Act. Although the review documented progress in understanding and addressing threats to the whales, it concluded that the Southern Resident population remains at high risk of extinction and should remain listed as endangered.  Population modeling by NOAA Fisheries’ Northwest Fisheries Science Center suggests the possibility of further declines in Southern Resident numbers, with recovery actions needed to reverse the trend.[x]

How Does Earth Law Differ from Existing Environmental Protections?

In most countries, nature has the legal status of property. In contrast, Earth Law argues that nature has inherent rights, and legally should have the same protection as people and corporations. Earth law enables the defense of the environment in court—not only for the benefit of people, but for the sake of nature itself.

Earth Law argues that humans and nature are not at odds, but are deeply connected and dependent on one another. Formal recognition of nature’s inherent right to thrive will enable the restoration of balance in the global environment.

Our planet’s health depends on this paradigm shift in law, which represents the next evolution in environmental protection and conservation.

How Earth Law Can Bolster the Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA-1972) places a moratorium on the “taking” (hunting, harassing, capturing, or killing) of marine mammals in US waters.

The MMPA was enacted in response to increasing concern among scientists and the public that some species or stocks of marine mammals may be in danger of extinction or depletion caused by human activities.

The MMPA was the first legislation in the US to mandate an ecosystem-based approach – an integrated management approach that recognizes the full array of interactions within an ecosystem (including humans) rather than considering single issues, species, or ecosystem services in isolation.[xi]

Its primary objective is to maintain the health and stability of marine ecosystems by (i) preventing marine mammal species and population stocks from declining beyond the point where they cease to be significant functioning elements of their ecosystem, and (ii) restoring diminished species and stocks to their “optimum sustainable populations.” [xii] [xiii]

Earth Law can further the effectiveness of the MMPA. Earth Law gives formal recognition to the rights of marine mammals.

Recognizing the Rights of Marine Mammals Means:[xiv]

• Regulating tourism and shipping traffic to have minimal effect on these species
• Prohibiting extraction or take in their critical habitat— no incidental take permits (if toxic releases damage the whale-supporting ecosystem, it will be in the province of NOAA to refer the matter to the Department of Justice to litigate”[xv])
• Maintaining population levels according to their natural capacity— rather than as “functioning elements”
• Making illegal activities that market or commercialize these species

Additionally, legal rights will affect the enforcement process by giving the marine mammals standing to sue; furthering their protection and effecting protective and restorative activities for species.

For example, the MMPA strictly prohibits the taking of marine mammals within national waters except when permissible by permit. It provides that “any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary...”[xvi]

With Earth Law in place in a marine protected area, the marine mammals could be considered a party opposed to such a permit, and humans could express this interest on their behalf.[xvii]

Case Study: Whale and Dolphin Sanctuary in Uruguay

The Whale and Dolphin Sanctuary in Uruguay provides an example of how Earth Law can benefit Puget Sound. Established as a marine protected area in 2013, the Sanctuary needed a management plan to enforce the legislated protections.

Uruguay’s largest multi-use protected area, the Whale and Dolphin Sanctuary was established in 2013. The campaign for legal rights has been promoted alongside the #OceanoSanos (#HealthyOceans) campaign that seeks to protect the country’s marine environment by promoting responsible fisheries and preventing illegal, unreported and unregulated (IUU) fishing.

Organización para la Conservación de Cetaceos (OCC) partnered with Earth Law Center to draft a governance plan to ensure enforcement of rights and make whale and dolphin protection a legal responsibility. This will include:

• Creating a sustainable relationship with the ecosystem and species within it.
• Making whale and dolphin protection a legal responsibility; notably the Southern Right Whale and the Franciscana dolphin, an IUCN Red List Species.
• Reviewing activities such as port construction, fishing and vessel traffic for their impact on the sustainability of the Sanctuary. 

What Would Earth Law for the Puget Sound Look Like?

Incorporating Earth Law into existing and new marine protected area governance can enhance and restore both the ecosystem of the Puget Sound as well as preventing the extinction of the Southern Resident whales.

Creating a protected area, including rights for the Southern Resident whales and the Puget Sound, means directly addressing threats including; pollution, habitat destruction, biodiversity loss, vessel traffic and noise, and oil and mineral extraction.[xviii]

There exist multiple pathways for rights of nature to protect the Puget Sound and its species.

1. Pass a law recognizing the Southern Resident whales as legal entities, with all the rights of a legal person. Action to protect the three pods of the Southern Resident whales could address the high pollution of Puget Sound and provide legal recourse to stop commercial discharges.
2. Incorporate rights of nature into existing marine protected area management plans.
3. Create new marine protected areas in the Puget Sound, forming an extensive network that represents all ecosystems and critical habitats.
4. Designate the whole Puget Sound as a marine protected area with legal rights also protecting the species within the complex estuarine ecosystem.
5. Incorporate rights of nature into the proposed whale protection zone, through its originating statute and management. 

An Earth Law Framework in the Puget Sound would recommend (among others):

• Highly protecting core areas in the form of “no-take” for living and nonliving components
• Banning any industrial discharge and oil or mineral extraction[xix]
• Shifting our approach to aim for populations and ecosystems that are thriving and healthy, rather than focusing on preventing degradation and extinction
• Preventing the further decline of threatened and endangered species with swift restorative action and the strict prohibition of activities contributing to their decline
• Adopting a holistic, rights-based and systems-approach to managing human activities, taking into account the clear land-sea connection.

Earth Law offers a new solution to protect and sustain the Puget Sound—one that balances human and environmental needs in a way that allows all species to coexist in harmony.

What Can I Do About Getting Rights Recognition for the Puget Sound?

Read more here

Sign up for ELC’s monthly newsletter here

Volunteer for this initiative here

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[i] https://en.wikipedia.org/wiki/Puget_Sound

[ii] https://www.eopugetsound.org/articles/marine-protected-areas-puget-sound

[iii] https://www.eopugetsound.org/blogs/identifying-greatest-threats-puget-sound

[iv] https://pubs.usgs.gov/sir/2010/5254/pdf/sir20105254_chap1.pdf

[v] http://www.psp.wa.gov/vitalsigns/in-number-of-southern-resident-killer-whales.php

[vi] http://www.westcoast.fisheries.noaa.gov/stories/2017/11_01122017_srkw_protection_zone_petition.html

[vii] http://www.psp.wa.gov/vitalsigns/in-number-of-southern-resident-killer-whales.php

[viii] https://www.biologicaldiversity.org/news/press_releases/2017/orca-09-25-2017.php

[ix] http://www.westcoast.fisheries.noaa.gov/stories/2017/11_01122017_srkw_protection_zone_petition.html

[x] http://www.westcoast.fisheries.noaa.gov/stories/2017/11_01122017_srkw_protection_zone_petition.html

[xi] “Marine Mammal Protection Act,” Marine Mammal Commission, 2017, https://www.mmc.gov/about-the-commission/our-mission/marine-mammal-protection-act/.

[xii] “Optimum sustainable populations” replaced “maximum sustainable yield,” which sought ensure that species replenish themselves for an adequate harvesting subsequent years, as the grounding principle of US resource management approach.

[xiii] “Marine Mammal Protection Act Fact Sheet,” National Oceanic and Atmospheric Administration, updated May 10, 2016, http://www.nmfs.noaa.gov/pr/laws/mmpa/.

[xiv] Source: Adapted from Hoyt (2011), Whale and Dolphin Conservation, ABC Science and One Green Planet

[xv] Trees, supra at 57.

[xvi] 16 U.S.C. 1374 § 104(d)(6).

[xvii] Trees, supra at 37.

[xviii] Environment Guide, Benefits of marine protected areas (Sept. 1, 2017), http://www.environmentguide.org.nz/issues/marine/marine-protected-areas/; OECD, supra.

[xix] Hoyt, supra at 51-54.

 [HG1]Is it better to say federal MPA system?

It’s Time for an Earth Law Textbook

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.

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[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

Evolving California’s Water Governance

By Earth Law Center

History of Water in California

For millennia, California’s native peoples understood that the environment had intrinsic value – even that it possessed thoughts and feelings. “Nature was neither the enemy nor simply a means to an end or a commodity to be exploited for wealth or power.”[1] In particular, native Californians deeply respected the health of rivers and streams, often considering them sacred. It was particularly unthinkable that water – essential to all life – could be bought or sold.

But things began to change in the 1700s as the Spanish introduced to California the perspective that nature – including water – was “property” to be subdued. According to historic Spanish law, “Man has the power to do as he sees fit with those things that belong to him according to the laws of God and man.”[2] But even Spanish law respected environmental limits, and no person was given a superior right to water that was to the detriment of another.

When the 1849 Gold Rush began, emerging state water laws all but eliminated environmental considerations. With gold mining requiring vast amounts of water, the massive influx of settlers turned to a “first in time, first in right” rule to allocate it.  This is called the “appropriative” doctrine. The “riparian” water rights doctrine also emerged around the same time, allowing a landowner to use a portion of the water that flows adjacent to his or her land. The appropriative and riparian water rights doctrines make up the “dual water rights system” of California.

Contrary to native Californian custom, the new legal system encouraged waste and permitted ecological degradation. And contrary to Spanish legal traditions, equity and justice were no longer primary considerations. Above all, the idea of water as a private “good” or “resource” became engrained into law and culture.

The Result of Flawed Water Governance

Flashing forward to modern times, California’s water laws have remained stagnant, and the same flawed legal principles subsist today as then – including the steadfast notion of water as property rather than a shared necessity for all. And while there are new legal protections for waterways, such as the Clean Water Act, they have failed to reverse the tide of environmental degradation. A primary reason is that such laws still operate within the same flawed paradigm of waterways as economic engines.

The result of this system has been the vast over-allocation of water across California – with very little (or sometimes none) left for waterways themselves. In fact, the amount of surface water allocations on paper exceeds California’s actual freshwater supply by about fivefold.[3] Although not all of these water rights are utilized, there is a clear imbalance between the amount of water allocated for human uses – those that are wasteful and unnecessary – and waterway needs.

Reduced freshwater flows to California’s inland waterways, estuaries and coastal habitats have resulted in serious ecological impacts. In fact, over 70% of California-native freshwater fish species are threatened or endangered mainly due to flow changes caused by over-diversions.[4]  For example, reduced freshwater flows to California’s inland waterways, estuaries and coastal habitats have contributed to reductions in population of five steelhead and five salmon species now listed as threatened or endangered.[5]  Moreover, marine predators such as the Southern Resident killer whale and the Southern DPS (Distinct Population Segment) green sturgeon are also endangered due to reduced populations of the California-native freshwater fish they depend on for food. 

Report on 21st-Century Water Governance

Considering many of these challenges, in February 2017, Earth Law Center (and collaborators at Stanford) released a report on evolving California’s water governance, titled “Re-Envisioning California Water Law and Policy for the 21st Century” (available at: https://www.earthlawcenter.org/california-waterways/). The report offers a blueprint for a sustainable water future. Specifically, it addresses California’s flawed water allocation and management system and presents alternatives that would maximize the social and environmental well-being of both humans and nature.

The report addresses many of the flaws in California’s water governance. For example, the state of California often touts water markets as a potential solution to water overuse. However, this approach will only further entrench our dysfunctional water system by directing water towards the most profitable use – i.e., the use with the highest bidder – rather than the most socially and ecologically beneficial use. A market approach treats water as "property" to be bought, sold, and profited from. Water should instead be treated a life-sustaining and inherently public entity.

Rather than a goal of selling water to the highest bidder, California’s approach to water governance must answer the question: “how should our state share something that is fundamentally essential to the life and vitality of all Californians and California’s ecosystems and species?” The answer requires holistically transforming our relationship with water based on a new water ethic – one that takes a holistic view of water as life sustaining and a public and environmental good. And we must implement this ethic through new water governance.

Next Steps

The report describes several approaches that can be taken to evolve water law in policy in California. These include the following:

• Applying readily available but vastly under-utilized protective legal doctrines, such as the waste and unreasonable use and public trust doctrines;
• Developing and prioritizing instream water rights, to ensure that waterways’ needs are highlighted in decision making;
• Funding comprehensive data-gathering efforts on surface flows, groundwater levels, and water withdrawals and uses;
• Enforcing water use rights violations, including allowing for direct penalties for violating water right permits, and creating a streamlined process to act on violations of the waste and unreasonable use doctrine; and
• Simultaneously increasing agricultural and urban water efficiency and reducing demand, so that efficiency savings are not simply translated into more use.

As described above, until only very recently, California embraced a water ethic that respected and shared rivers and streams. This ethic can be met once again if we evolve our laws and choose to create a water future in California that works for all – beginning with the above recommendations. Together, we can transform our current governance system into one that embraces the values of environmental stewardship and harmony with nature, to the benefit of everyone.

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[1] Norris Hundley Jr., The Great Thirst: Californians and Water—A History, Revised Edition (2001).

[2] Las Siete Partidas (1265 codification of Spanish Law).

[3] Kat Kerlin, "California Has Given Away Rights to Far More Water than it Has," UCDavis (Aut. 19, 2014), at: https://www.ucdavis.edu/news/california-has-given-away-rights-far-more-water-it-has.

[4] Johnson, James, “Imperiled Freshwater Fishes,” National Biological Service; referenced in Pacific Rivers Council Report, supra.

[5] See California Department of Fish and Wildlife, "Threatened and Endangered Fish," at: www.dfg.ca.gov/wildlife/nongame/t_e_spp/fish.html.

Rights of Nature: A Few Theoretical Considerations

Photo: Yann Arthus Bertrand, Utah Canyon

By Megan Barickman

It has only been 46 years since Christopher Stone published “Should Trees Have Standing? Toward Legal Rights for Natural Objects,” his seminal essay in which he first introduced the idea that society should “give legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.”[1] The Rights of Nature movement, despite considerable gains over the course of these few years, is still relatively young, and its proponents are still actively involved in debates about how to best articulate its conceptual framework. In what follows, I will attempt to summarize four of the most pressing (and interesting) theoretical considerations that have emerged in contemporary writing about Rights of Nature.

What Do We Mean When We Say ‘Nature’?

As Kate Soper writes in her book What is Nature: Culture, Politics and the Non-Human, the term “nature” is a complex and ambiguous concept.[2] We use “nature” to indicate that which is untouched by human hands, as well as to describe manufactured products (all-natural dish soap). We use the term to talk about that which is inherent in us (human nature) and to describe the vast workings of ecosystems that lie outside of, or encompass, human activity. There is no doubt that nature, in all of these usages, is meant to signify the ‘other,’ the opposite of culture, human manipulation, and in fact, humanity itself.

As philosophers increasingly question the boundaries between nature and culture, the question of what exactly we mean when we say “nature,” and what we want to say instead, becomes more and more prescient. For Rights of Nature advocates, who wish to change the paradigm of our interaction with the non-human parts of the world, this is a question of particular importance. That is not to say, however, that this question requires an immediate answer. Rather, it requires our careful attention, especially as we attempt to answer the other questions surrounding Rights of Nature.

On What Grounds Do We Grant or Acknowledge Rights of Nature?

Directly connected to the question of how we define nature is the question of the theoretical and legal grounding on which Rights of Nature will be established. Most proponents of Rights of Nature will agree that rights ought to be accorded to nature (or recognized) on the basis of nature’s existence alone. As Judith Koons compellingly argues, the universe is revealed to us as self-organizing and self-manifesting, and this is enough to demonstrate its intrinsic worth.[3] While the issue is still a complex one, and there is plenty of room for minor theoretical disagreements, the general consensus shows just how closely this rationale is intertwined with the core tenant of Rights of Nature; nature ought to be protected, not for anything that we see in it, but simply because it is, on its own terms.

As Alessandro Pelizzon and Monica Gagliano point out in their paper “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?,” there is good reason to shy away from other rationales for rights, even though doing so has caused some environmental activists to be less accepting of the tenets of Rights of Nature than might be hoped.[4] Pelizzon and Gagliano address, in particular, Peter Singer’s contention that rights ought to be accorded to animals on the basis of sentience, which Singer defines as the capacity for pain and happiness.[5] In their article, Pelizzon and Gagliano outline several new studies regarding the cognitive capacity of plants in order to argue that sentience, like nature itself, is a culturally constructed and negotiable term, and therefore, is not the most effective basis for extending rights to non-human entities. Rather, the authors suggest, the principle of rights should be understood on the grounds of a constantly evolving knowledge of the other.

Pelizzon and Gagliano’s point is an important one for Rights of Nature in general. If Rights of Nature is to be taken seriously as the ideological rejection of paradigms that assign value to nature based on its relationship and meaning to us, then it must also be a shift to a new evaluation of nature that acknowledges our limited perspective.

What Part of Nature Receives the Rights?

We cannot, however, simply leave nature alone. Whether such an approach was ever possible is debatable – we are, after all, inhabitants of Earth and will always have to decide on the terms of our habitation – and we have now reached a stage of development where every ecosystem has been altered, in some way, by human influence. We will have to decide, despite our limited perspective, what parts of existence ought to be preserved as they are found today, what ought to be restored to the best of our knowledge and ability, and how we will develop and manage the integrated spaces where plants and animals exist in the midst of human habitation. Deciding what parts of nature should be given legal rights must be a large part of this decision-making process, if Rights of Nature is to be successful.

In their 1994 article on Nature’s Rights, Susan Emmenegger and Axel Tschentscher outline the four major paradigms that might be used to guide this discussion: holism, ecocentrism, biocentrism, and physiocentrism.[6] Holism and ecocentrism focus on ecosystems or systems of relationships as rights-bearing entities, while physiocentrism and biocentrism would grant rights to discrete entities rather than the relationships between them.

To be more specific, in holism, the world is seen as a single entity, an interconnected whole, which in and of itself is protected by rights. While ecocentrism also focuses on the relationships between living things and their environment, it is more nuanced and complex than holism. In ecocentrism, each relationship or set of relationships, such as an ecosystem, is seen as a potential rights bearer. In physiocentrism, every living and non-living thing is inherently valuable and is potentially a rights-bearing entity. Biocentrism, on the other hand, considers the interests of living things only.

There are difficulties inherent in each approach. Holism, for instance, is blind to the very real dilemma of competing interests. To provide an extreme example, very few people would want to argue that a deadly virus has as much a right to exist as do the people it infects, or that the “relationship” between a virus and its human host should be protected. Perhaps even more importantly, if rights are to be meaningful as a legal tool, they must foresee and allow for the discussion of competing interests. The Rights of Nature articles included in the constitutions of Ecuador and Bolivia, which are essentially holistic, are often criticized on these grounds as vague and internally inconsistent. Nathalie Ruhs and Aled Jones point out the way in which the articles treat all of nature and humanity as a legal conglomerate, leading to potentially unresolvable conflicts between the Rights of Nature, humans, and the rights of different locales.[7]

Ecocentrism, on the other hand, by treating the rights of different ecosystems and relationships separately, largely avoids this problem. However, both the holistic and the ecocentric paradigms, as Emmenegger and Tschentscher point out, could cause us to try and “pause” nature by focusing on maintaining a balance of relationships that, in reality, are constantly in a natural state of flux. It is worth noting that physiocentrism and biocentrism do not inherently obviate this problem either; it is possible to imagine that if all species were granted the inherent (and equal) right to exist, then extinction would need to be avoided at all costs, even when it is arguably the result of natural causes.

Emmenegger and Tschentscher, who favor biocentrism as the model for Rights of Nature because it is the closest to our current individualistic rights legal system, argue this problem can be circumvented by allowing for change, such as extinction, but only if the “rules of game are fair.” That is, if we know that extinction or radical changes occur very slowly in most cases where human influence is not operative, then we can assume that a species moving rapidly toward extinction or a radical change isn’t being given its fair evolutionary chance.

Not everyone agrees, however, that Rights of Nature should be set up as a “marketplace of interests” that mirrors our own current legal system[8]; there are many who object that excessively individualistic rights will fragment the integrated system that is nature. As Peter Burdon points out, there are now discourses on human rights that seek to shift rights from individuals to the relationships between them. Burdon argues that this new direction of rights discourse will be the most useful in developing a working Rights of Nature model.[9]

What Role Should Humans Play?

But what, and this brings us full circle, is humanity’s ideal relationship to ‘nature’? Proponents of Rights of Nature may readily agree that current environmental laws will always be ineffective because they are founded on an ideology that views nature as fundamentally separate from (and often owned by) humanity, but it is much harder, as should be obvious by now, to determine the proper relationship between humans and the rest of nature. Many new theories have emerged in recent years, often akin to indigenous world views, that challenge the nature/culture divide on which so much of our thinking about nature is based.[10] Rights of Nature demands that we take seriously how we think of nature, but we must also take seriously the fact that, fair or unfair, it is humanity that must make the decisions about how to move forward.

Anne Louise Schillmoller and Alessandro Pelizzon in their article “Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons,” critique many of the new philosophical gestures that seek to shift values away from human exceptionalism. Schillmoller and Pelizzon say that these gestures ignore hierarchies of interest and differentials of power.[11] For example, how and by whom will non-human voices be represented? While theory may decenter humanity’s dominance, practice, in Christopher Stone’s words, will remain “unavoidably anthropocentric.”

In order to practice Rights for Nature carefully and responsibly we must be cognizant of asymmetrical power relations and establish the epistemic conditions of knowledge, i.e. what information is meaningful and who speaks with accuracy and authority. The good news is that Rights of Nature advocates are already asking the right questions to succeed on this front. We need only remain active and engaged in our debate of these considerations.

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[1] Stone, Christopher. “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” Southern California Law Review, issue 45. (1972). pp 450-501.

[2] Soper, Kate. What is Nature? (Massachusetts: Blackwell Publishers, Ltd., 1995).

[3] Koons, Judith E. “What is Earth Jurisprudence?:Key Principles to Transform Law for the Health of the Planet” in Exploring Wild Law: The Philosophy of Earth Jurisprudence 45 (Peter Burdon ed. 2011).

[4] Pelizzon, Alessandro and Monica Gagliano. “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?” Australian Animal Protection Law Journal. Vol. 11, 2015: pp. 5-13.

[5] Singer, Peter. Animal Liberation: A New Ethics for Our Treatment of Animals. 2nd ed. (New York, NY: Random House, 1995).

[6] Emmenegger, Susan and Axel Tschentscher. “Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law.” Georgetown International Environmental Law Review. Vol. VI: Issue 3, Summer 1994: pp 576-579

[7] Ruhs, Nathalie and Aled Jones. “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature.” Sustainability. 2016: p. 174.

[8] Ibid.

[9] Burdon, Peter. “The Rights of Nature: Reconsidered.” Australian Humanities Review, Issue 49. pp. 69-89.

[10] See: Kent, Jaimie. “Rights of Nature and the Political Implications of Post-Humanist Ecologies” (2017). Theses and Dissertations. 686. http://ir.library.illinoisstate.edu/etd/686.

[11] Schillmoller, Anne Louise and Pelizzon, Alessandro (2013) “Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons,” Environmental and Earth Law Journal (EELJ): Vol. 3: Iss. 1, Article 1. Available at: https://lawpublications.barry.edu/ejejj/vol3/iss1/1

Earth Law Center’s 2017 Was One for the Books

By Michelle Bender and Grant Wilson

About the authors:

Grant Wilson worked for ELC from 2013-2015 until adventuring in Latin America. He since returned as ELC’s Directing Attorney, taking the lead on our rights for rivers and land-based ecosystem campaigns.

Michelle Bender started with ELC January 2016, assisting full time as an Earth Law Fellow and Policy and Advocacy, transitioning to Ocean Rights Manager in April this year.

The beginning of 2017 marked a time of transition for Earth Law Center. Though we were sad to see our founding Executive Director go, we could not have been more excited to welcome our new leader, Darlene Lee. She exhibited the team leadership and vision necessary for ELC to take our work to the next level, and establish ourselves as leaders of the Rights of Nature movement.

Recap on Oceans

Earth Law Center’s Ocean Rights Program promotes a new paradigm for ocean governance that focuses on the ocean’s own well-being. The program aims to not only establish protection for marine ecosystems, but to ensure these areas are fully protected and effectively managed. ELC’s objectives to ensure this outcome include:

1. Creating a holistic and ocean rights-based model framework for marine protected areas.
2. Establishing marine protected areas and sanctuaries, and securing legal rights for these areas.
3. Ensuring international treaty laws reflect the inherent rights of the ocean (such as through the Marine Biodiversity Treaty for the High Seas and Beyond, currently under negotiation).
4. Passing rights of nature laws in coastal communities.

Advancing the Rights of Oceans Worldwide

We gained significant headway in accomplishing our goals in 2017. We kicked off our international oceans work in June with the Rights of the Ocean Initiative at the United Nations Ocean Conference. This initiative not only put ELC on the radar as an ocean conservation organization, but gained ELC valuable partnerships, including in Uruguay, Brazil and South Africa. Building off this work, Michelle presented remotely on ‘Adopting Holistic and Ocean Rights-based Governance’ at the United Nations “6th Annual International Conference on Rights of Nature for Peace and Sustainable Development.”

At IMPAC4 Chile: Susana Claro, Fundacion Los Choros; Sylvia A. Earle, Mission Blue founder; Jennifer Sletten, Protected Seas; and Michelle Bender, ELC

Model framework for rights of marine protected areas

ELC completed a first draft of a model framework for marine protected areas after 500 hours of research and analysis. What originally started out as a 100-page document was trimmed succinctly to a 17-page main document plus appendices. The Framework was launched at the Fourth International Marine Protected Area Conference in Chile early September. It received enthusiastic support from respected ocean champions and organizations, including Mission Blue.

New Partners and Initiatives Worldwide

ELC launched oceans initiatives with new partners, too. For example, Organización para la Conservación de Cetaceos (OCC) and Earth Law Center (ELC) formed a partnership to establish legal rights for the Whale and Dolphin Sanctuary in Uruguay’s territorial waters. Though the Sanctuary was created in 2013, it still lacks a management plan. We started drafting the plan and will schedule stakeholder and government meetings in 2018 to gain consensus on aspects of the management plan.

Additionally, ELC was fortunate enough to work with groups in South Africa to call upon Parliament to amend the new Marine Spatial Planning Bill to include rights of nature and the precautionary approach. A comment letter has been passed to members of Parliament and we look forward to keeping you posted on the bill’s final language.

And finally, ELC was invited to collaborate with the French Research Institute for Development (IRD) on drafting a convention on the Rights of the Pacific Ocean. The objective is to create a treaty that all Pacific Island Nations sign and agree to implement. The treaty will focus on recognizing and respecting specific rights of the Pacific Ocean.

What’s next for oceans in 2018?

We do not want to stop with a successful Ocean Conference. We will kick off next year by getting the Rights of the Ocean Initiative in front of more organizations and stakeholders. Using our connections made in Geneva, ELC will begin outreach to UN Country representatives, in hopes of a UN resolution on the adoption of rights of the ocean into the Treaty for Biodiversity on the High Seas (which is due to begin negotiation in 2018). Additionally, meetings will begin between Pacific Island Nations, stakeholders and organizations to draft the convention on the Rights of the Pacific Ocean. The Treaty is expected to be signed by parties and binding in 2 years.

With regards to the Earth Law Framework for Marine Protected Areas, ELC will finalize the Framework using suggestions and comments gained from the expert ‘Call for Inputs.’ We anticipate officially releasing the final framework on Earth Day 2018 at the EarthX expo in Dallas, Texas, where ELC will be attending with partners Mission Blue.

ELC will also be taking rights of the ocean to Brazil, by inserting this paradigm in ongoing lawsuits through amicus curiae, and to the International Whaling Commission, with a declaration on the rights of cetaceans. You can read more on our key partners here and here. Additionally, ELC continues to draft model legislation for the Patagonian Shelf of Argentina and Uruguay, assisted in large part by Argentinean volunteer Andrea Galassi.

Finally, ELC will align with animal rights groups working to retire captive display cetaceans to seaside sanctuaries to adopt legal rights for these animals and their ecosystems.

Recap on Island Nations Initiative

ELC also kicked off a campaign to promote rights of nature within Island Nations. Establishing rights of nature in Island Nations permanently protects nature in the face of climate change while providing a platform for environmental and conservation partnerships. Prime Minister of the Cook Islands, Henry Puna, spoke on the rights of the ocean at the United Nations Ocean Conference this year. ELC’s Framework for Marine Protected Areas was received enthusiastically by the Office of the Prime Minister and forwarded to relevant agencies with ELC’s offer of assistance.

What’s next for island nations in 2018?

We await follow up with the Cook Islands Office of the Prime Minister and marine affairs agencies and will also be conducting outreach to other Island Nations, including Palau, French Polynesia and New Caledonia. We have also developed an extensive policy document on implementing rights of nature within island nations, thanks to our wonderful Research Fellow, Margarita Lavides. We plan to utilize that document to advise local advocates in numerous island nations on rights of nature law and policy.

Recap on Municipal Rights of Nature Work

ELC continued to push for the rights of nature at the municipal level. This work included ensuring full enforcement and implementation of the landmark Santa Monica Sustainability Rights Ordinance – the first-ever rights of nature ordinance on the West Coast of the United States. For example, ELC is currently working to implement the right of aquifers to sustainability through a proposed ban on new private wells. Additionally, ELC continues to work with San Francisco leaders to pass a law establishing a right to thriving biodiversity.

What’s next for municipal rights of nature work for 2018?

Earth Law Center will seek implementation the Sustainability Rights Ordinance in Santa Monica by working with partners to ensure full enforcement of nature’s rights. Additionally, ELC hopes that San Francisco can become a model of rights of nature activities from which other major cities worldwide can learn. Therefore, we will work to pass new laws and further engage the community on rights of nature, building from previous successes such as two Bay Area Rights of Nature Ethics Tribunals. 

Recap on Rights for Rivers

Universal Declaration of River Rights

Earth Law Center's presentation on the Rights of Rivers (click to view).

ELC worked to integrate existing global victories for river rights (including in New Zealand and Colombia), as well as ecological principles of river health, into a common set of rights that are universal for all rivers. Already, ELC’s Universal Declaration of Rights of Rivers was cited in an amicus brief in Patagonia, in support of the San Juan River’s right to flow. It also served as the basis for a rights of nature law in Mexico City (see below) – the first-ever such law in North America. We are also proud that environmental leaders worldwide have endorsed the document.

Rights of Rivers in Mexico

ELC has been working working with local partners – including Cuatro al Cubo and others – to secure legal rights for rivers in Mexico. Based on this effort, the Legislative Assembly of the Federal District included the rights of waterways within the recently approved Water Sustainability Law of Mexico City (“Ley de Sustentabilidad Hídrica de la Ciudad de México”). This landmark water law recognizes that rivers, channels and streams possess a right to flow, a right to avoid harmful alterations to ecosystems and biodiversity, a right to be free from contamination, and a right to rescue and rehabilitate important water zones, amongst others. The law is only awaiting publication in the "Official Gazette" of Mexico City to become official.

In drafting the rights of waterways provision in the law, lawmakers looked to ELC’s Universal Declaration of the Rights of River, which was drafted by ELC with significant input from experts worldwide. However, it was the adamant efforts of Cuatro al Cubo, its lawyer, and many other leading environmental partners in Mexico that ensured this language was included in the law. ELC is proud to support their efforts!

What’s next for rivers in 2018?

ELC and partners seek to build from our victory in Mexico to secure immediate rights for three rivers in particular: the Magdalena, Atoyac (Puebla), and San Pedro Mezquital. All of these efforts will build from the existing momentum from the recent victory in Mexico City. To help achieve these goals and further mobilize support, ELC will attend the Rights of River Forum, to be held in Puebla, Mexico in March 2018. Finally, we will solicit feedback on and endorsements of the Universal Declaration of the Rights of Rivers from additional entities from across the globe in order to build consensus.

Enforcing the Rights of Rivers and Lakes in the United States and Canada

ELC continues to advocate for the California State Water Resources Control Board to formally identify the most over-diverted waterways as “impaired” due to low flows under the Clean Water Act. Identification would help restore water to these rivers and streams. In November 2017, ELC and co-plaintiffs filed a lawsuit on this issue, with Lawyers for Clean Water representing our organization.

ELC has also launched an amicus brief campaign to advocate for rights of rivers and lakes in US and Canadian courts. An amicus curiae – literally, "friend of the court" – is a non-party to the case that can submit a brief as an outside expert. This campaign will showcase the rights of rivers movement to judges and significantly increase our changes of a favorable court decision.

Finally, ELC is working with Juliee de la Terre (Sacred Land Sacred Water) to recognize the Great Lakes Ecosystem and a living legal entity. The ELC and partners have drafted a declaration defining the fundamental rights of the Great Lakes, which is still open for feedback and endorsement. We have also recently secured agreement from a major law school in the area to host one or more events on the rights of the Great Lakes (announcement coming soon).

What’s next for 2018?

ELC will continue to advance the lawsuit defending the right of waterways to be listed as “impaired” due to altered flows under the Clean Water Act. In addition, ELC will create a toolkit so that advocates across the country can make similar legal arguments in their states, resulting in great protections for flows, aquatic species, and freshwater ecosystems. ELC also plans to launch its amicus brief campaign by engaging in at least five lawsuits in the US and Canada as an amicus curiae. Finally, with regards to the Great Lakes, ELC will host several community events (including at a major law school) and will implement the rights of the Great Lakes into at least one local law.

Rights of Nature at the United Nations and IUCN

ELC also continued to engage the United Nations and International Union for Conservation of Nature (IUCN) on rights of nature. For example, ELC’s recent contribution to the UN Harmony with Nature resolution was highlighted as an example of successful Earth Law in practice. Additionally, ELC continued to engage the IUCN and World Commission on Environmental Law (WCEL) – an international body of legal experts of which ELC’s Directing Attorney is a member. For example, ELC submitted to the WCEL online seminar to train lawyers and judges on rights of nature issues (currently under consideration).

What’s next for 2018?

ELC will advance the rights of rivers within the United Nations, in order to reflect current legal developments in this area within international resolutions. Additionally, ELC will train judges and lawyers on rights of nature at its planned online seminar, which will feature leading judges and other legal experts from around the world. Other planned activities include distributing legal briefs to members and speaking at international events. 

Michelle Bender at the 2017 Earth Expo in Oakland (Grant Wilson offscreen)

Thank you for your continued support on behalf of ELC and Mother Earth. We look forward to reporting back on the progress of all our initiatives. If you would like to learn more or volunteer you can contact Grant Wilson for River/Land Rights (gwilson@earthlaw.org) and Michelle Bender for Ocean Rights (mbender@earthlaw.org).

It’s not too late to make a tax-deductible donation. It’s your Earth. Help us protect it.

Dams + Climate Change = Bad News

By Samantha Stahl

The United States has 9,265 dams, second only to China which has a staggering 23,842.[i]  With climate change causing water shortages and storm surges, this might seem like good news. Dams store water, provide renewable energy and prevent floods. Unfortunately, they also worsen the impact of climate change. They release greenhouse gases, destroy carbon sinks in wetlands and oceans, deprive ecosystems of nutrients, destroy habitats, increase sea levels, waste water and displace poor communities.

Crumbling, badly maintained dams also create a flood risk; endangering lives and putting significant financial strain on local governments and industry.

Dams = water loss

Our systematic overuse of fresh water, in addition to the already worsening effects of climate change, creates a need for artificial reserves. According to the American Water Works Association, in 2010 Americans withdrew 355 billion gallons per day (BGD) from the nation’s water systems; 12 percent for public water supply, 32 percent for irrigation and 45 percent for thermoelectric power.[ii]  The average American uses around 2,000 gallons of water per day.[iii] 

Dams would appear to conserve water by storing it, but the bigger picture shows this is not true.

Generally, reservoirs and artificial lakes have a larger surface area than the rivers and channels that feed them. Larger surface areas expose more water to the sun, which speeds up evaporation. And due to the nutrient rich water from trapped sediment, dams and reservoirs also promote aquatic plant growth. The plants’ transpiration contributes to the already heightened evaporation rate.  Every year, about 170 cubic kilometers of water evaporates from the world’s reservoirs. This accounts for roughly 7 percent of all fresh water consumed by human activities![iv]

A study conducted by the European Water Association on the evaporation rate from artificial and municipal lakes and reservoirs in Istanbul concluded that the amount of evaporation per year was equal to the city’s water needs for about 26 days.[v]

The evaporation also affects the microclimates of the surrounding areas, disrupting natural temperature fluctuations, ecosystems and habitats.  For example, increased evaporation in the region of a large dam changes the moisture concentration of the air, leading to increased heavy rainfall.[vi]  This deprives the surrounding areas of their traditional rainfall patterns, placing stress on ecosystems and municipalities that depend on those patterns. And it leads to an increased rate of storm surges, which can create more frequent and intense flooding than the dam was designed to handle. 

Additionally, dams disturb the flow and composition of the water within rivers and channels. Water released downstream from dams has unnaturally high energy and very little sediment, which causes “hungry water” to run forcefully, eroding the riverbeds, without sufficient sediment concentration to slow it down.[vii]  This deepens the riverbed compared to the surrounding water table, which causes the ground water to rush into the channel and become surface water – a process known as incision.[viii] 

Incision is a natural process in the life of rivers and channels, but exacerbated incision, caused by rapid erosion, results in the draining of surrounding groundwater.  The USGS has reported that between 2000 and 2008 the US depleted enough groundwater reserves to contribute 2 percent of the global sea level rise during that time.[ix]

As of 2012, 40 percent of the world’s major river basins’ renewable water supply had been depleted.[x]  This creates a vicious cycle, where growing demand requires more dams to keep up with fresh water usage. Surface and ground water depletion then accelerates too quickly for natural replenishment to be possible. 

Dams = Habitat destruction

Any dramatic change in river composition stresses both up- and downstream habitats. Habitat loss is the leading cause of extinction. 

Dams disrupt fish and bird migration. The change in the composition of the river interferes with the chemical signals guiding species through their biological processes. And the physical barrier of the dam blocks species from their traditional spawning and rearing locations. As a result of this, pollution, and the effects of climate change, fresh water species have lost 76 percent of their populations since 1970.[xi]  The Snake River running through the Northwestern United States, for example, has 15 dams!  Since the completion of the Lower Granite Dam in 1975, the population of Sockeye Salmon in the region has severely declined; between 1985 and 2007, only about 18 Sockeye Salmon return to Idaho each year.[xii]

Additionally, changes in the timing and flow of the rivers can create conditions which threaten the survival of the species that have evolved to live there.  Any alteration in the structure and composition of the river can have disastrous effects on the surrounding species, in many cases leading to extinction.[xiii]       

Downstream ecosystems suffer from the lack of sedimentation in the water that flows over the dam. Normally, nutrient rich sediment regulates and provides nourishment to downstream habitats.  But reduced sedimentation creates less fertile soil, stunting the growth of dependent species.  The lack of vegetative growth can lead to erosion and to the destabilization of the surrounding areas.[xiv] 

Downstream habitats are also severely impacted by changes in salinity and oxygen levels.  Due to the high rate of evaporation and growth of aquatic vegetation within the reservoir itself, water that travels downstream from a dam usually has a higher salinity content and a lower oxygen concentration than normal.[xv]  This change in the chemical makeup of the water creates detrimental conditions for species that previously thrived in those areas.

Dams also negatively impact ecosystems and habitats upstream.  Trapped river borne nutrients can facilitate the growth of toxic algae blooms.  Communities around the world from South Africa to California have had to impose drinking and swimming bans to protect people from water-borne illnesses. Some dams have killed off fisheries and entire aquatic ecosystems.[xvi] 

Even in less devastating circumstances, the new stagnant water environments created in the reservoir damage the conditions of the existing habitat. They also host non-native and invasive species that further undermine the integrity of the surrounding ecosystems.  

Dams = Greenhouse gases

A recent study found that reservoirs account for about 4 percent of human-made climate change.[xvii]

Most reservoirs, especially those in tropical regions, emit significant amounts of greenhouse gases because of anaerobic bacteria that break down the vegetation at the base of the reservoir, giving off carbon dioxide and methane. 

Additionally, the changes to rivers’ timing, chemical and sediment composition, and flow lead to dramatic variations in floodplains and wetlands, which can cause the destruction of surrounding forests.[xviii]  Deforestation contributes significantly to climate change because the trees no longer store additional carbon dioxide and their previously absorbed carbon is released into the atmosphere. And the drying out of wetlands destroys another valuable carbon sink.

Dams are detrimental to carbon sinks in the ocean as well.  Studies of the Congo River reveal that nutrient- and sediment-rich water from the river drives biological processes deep into the Atlantic Ocean, contributing to algae growth.[xix]  When those sediments and nutrients disappear, the conditions that support carbon dioxide-storing algae break down, destroying the carbon sink along with it.  

Additionally, blocking the sediments traveling downstream can have devastating effects when river deltas are deprived of the silt they need to defend against damage from the ocean.  Without the shoring up of river deltas and wetlands, inland ecosystems and human communities become even more vulnerable against the storm surges and sea level rises caused by climate change.[xx] 

Dams = Earthquakes            

Scientists have attributed over 100 earthquakes around the world to dams and reservoirs,[xxi]  a phenomenon known as Reservoir Induced Seismicity.[xxii]  This happens when extra water seeps into the micro-cracks and fissures under the reservoir and surrounding areas and lubricates faults already under tectonic strain.  The 7.9 Sichuan Earthquake in China in 2008, killed 80,000 people and has been linked to the construction of the Zipingpu Dam.[xxiii]    

Dams = Trouble for people already affected by climate change

Dams displace around 80 million people worldwide.[xxiv]  From the people removed from dam building sites to the people who lose their homes to failing dams, most of the displaced communities come from impoverished areas already affected by climate change.

Dams that displace large populations often cause human rights violations. Authoritarian governments in Burma, China, Colombia, Ethiopia, Guatemala, Sudan and other countries have responded to dam opposition with violence, intimidation and threats. In the worst dam-related incident, more than 440 indigenous people died in the suppression of opposition to Guatemala's Chixoy Dam in 1982.[xxv] 

Additionally, old and failing dams generate both dangers and costs. According to the American Society of Civil Engineers, by 2020, 70 percent of the United States’ dams will be more than 50 years old.[xxvi]  And according to ICOLD, 2.2 percent of dams built before 1950 failed before 1995.[xxvii] 

In 2017 nearly 2,000 state-regulated “high hazard” dams need repair. These are dams that could result in a high loss of life if they fail.  While dam construction technology has advanced and dams built today have improved, it would still cost an estimated $300 billion to secure the world’s dams.[xxviii]  And this is in addition to the $2 trillion that has already been spent constructing dams globally since 1950.[xxix] 

Due to the high cost of maintenance and safety, many of the world’s dams get more dangerous as they age. The Mosul dam in Iraq and the Kariba dam in Zambia rank among the world’s most dangerous.[xxx]  Should the Mosul dam fail, it could result in the death of 500,000 people and deprive millions more of power and water.  The 58 year old Kariba dam could result in 3.5 million dead, leave 40 percent of South Africa without power and cause untold damage to surrounding wildlife, plus the destruction of another nearby dam, the Cahora Bassa.[xxxi] 

The US also hosts several dams close to failure. Earlier this year, fear of the collapse of the Oroville Dam Spillway[xxxii]  resulted in the evacuation of 200,000 people in northern California. While the dam is still intact, the eroding spillway, which is a critical piece of California’s flood control network, will make it difficult for the dam to manage heavy flows and rainfall.  And, in February, the Twentyone Mile Dam in Nevada burst, causing massive damage to private property and local infrastructure.[xxxiii] 

Growing recognition that old and eroding dams pose too high a risk have resulted in a growing number of dam removals. The United States has taken down 1,384 dams since 1912, with a majority of those dams removed in the last two decades, and 72 in 2016.[xxxiv]  Removing damaged and aging dams protects the surrounding population from disaster and allows the rivers to restore their natural and biological integrity.         

Rights of Nature = Healthy waterways + Sustainable relationship  

Fresh water is vital to the functioning of Earth’s hydrologic cycle, the maintenance of aquatic and surrounding ecosystems, and the support of human life.  Preserving healthy and high functioning waterways contributes to controlling global temperatures and sustaining fresh water reserves, among countless other benefits. 

Rivers are important in their own right, but also matter for their ability to maintain the health of surrounding river catchments, floodplains, and wetlands.  If we continue to build dams that destroy our waterways’ ability to support vital ecosystems, we continue a historical paradigm that values short-term progress and developmental achievement over the sustainable health and integrity of Earth’s systems.

We will be on the path to a sustainable relationship with a healthier environment when we recognize that Earth has intrinsic rights to thrive, evolve and flourish. Earth law recognizes that Earth’s inherent rights are separate and distinct from property and ownership rights bestowed by humans. By actively promoting this new paradigm, we can forge a more balanced and reciprocal relationship between human activities and Earth’s natural systems. 

Addressing the flaws in the traditional approach to development and acknowledging the rights and interests of waterways will enable us to better care for the planet and its resources. This will benefit humans too.  By understanding sustainable water management and implementing those principles into our industry and governmental systems, we can better address the causes of waterway degradation.  Through understanding what waterways need to function properly, we can create laws and regulations that can better outline the parameters of human activity. 

Protecting waterway health must be one of the highest priorities when determining how water is used.  If it is not, our waterways will continue to degrade and will be unable to provide the basic functions on which both nature and humankind depend. 

To read about the Universal Declaration for Rights of Rivers, click here.

Consider staying informed and volunteering to support Earth Law Center’s work to protect our planet’s waterways. And if you benefitted from this article, please offer your support ELC continue creating content like this that helps shift the paradigm of environmental law and understanding.

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[i] http://www.icold-cigb.net/article/GB/world_register/general_synthesis/number-of-dams-by-country-members

[ii] https://www.awwa.org/Portals/0/files/resources/water%20utility%20management/sotwi/2015-AWWA-State-of-the-Water-Industry-Report.pdf

[iii] http://voices.nationalgeographic.org/2010/08/18/american_lifestyle_costs_nearl/

[iv] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[v] http://www.ewa-online.eu/tl_files/_media/content/documents_pdf/Publications/E-WAter/documents/40_2006_07.pdf

[vi] http://onlinelibrary.wiley.com/doi/10.1029/2009EO480001/pdf

[vii] https://www.wou.edu/las/physci/taylor/g407/kondolf_97.pdf

[viii] https://definedterm.com/incised_river_channel

[ix] https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf

[x] https://voices.nationalgeographic.org/2012/03/14/are-we-running-out-of-water/

[xi] https://www.internationalrivers.org/node/8326

[xii] https://www.earthlawcenter.org/new-blog-1/2017/11/dam-removal-to-restore-snake-river-to-health

[xiii]file:///C:/Users/Samantha/Google%20Drive/MY%20JOBS/Earth%20Law%20Center/Blogs/Dam%20Blog/Research/Water_Storage_Paper_21.pdf

[xiv]file:///C:/Users/Samantha/Google%20Drive/MY%20JOBS/Earth%20Law%20Center/Blogs/Dam%20Blog/Research/Water_Storage_Paper_21.pdf

[xv] https://www.internationalrivers.org/environmental-impacts-of-dams

[xvi] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[xvii] https://link.springer.com/article/10.1007%2Fs11027-007-9086-5

[xviii] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[xix] https://www.internationalrivers.org/environmental-impacts-of-dams

[xx] http://probeinternational.org/library/wp-content/uploads/2011/10/sedimentation.pdf

[xxi] http://www.sciencedirect.com/science/article/pii/S0012825202000636

[xxii] https://www.internationalrivers.org/sites/default/files/attached-files/ris_final_lorez2.pdf

[xxiii] https://www.internationalrivers.org/sites/default/files/attached-files/ris_final_lorez2.pdf

[xxiv] https://www.internationalrivers.org/sites/default/files/attached-files/world_commission_on_dams_final_report.pdf

[xxv] https://www.internationalrivers.org/campaigns/chixoy-dam

[xxvi] https://www.nytimes.com/interactive/2017/02/23/us/americas-aging-dams-are-in-need-of-repair.html

[xxvii] https://www.internationalrivers.org/and-the-walls-came-tumbling-down

[xxviii] https://www.internationalrivers.org/and-the-walls-came-tumbling-down

[xxix] http://www.hydrocoop.org/the-role-of-dams-in-the-xxi-century/

[xxx] https://oilprice.com/Alternative-Energy/Hydroelectric/The-Worlds-Most-Dangerous-Dams.html

[xxxi] https://oilprice.com/Alternative-Energy/Hydroelectric/The-Worlds-Most-Dangerous-Dams.html

[xxxii] https://www.rt.com/usa/377210-dam-disasters-in-america/

[xxxiii] https://www.nytimes.com/interactive/2017/02/23/us/americas-aging-dams-are-in-need-of-repair.html

[xxxiv] https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2017/02/15104536/DamsRemoved_1999-2016.pdf

Rights of Nature for the Great Lakes

Sunrise on Lake Michigan

By Melannie Levine

The Great Lakes are the largest surface freshwater system on Earth. Few people realize that the Great Lakes hold 84 percent of North America's surface freshwater.[1] Only the polar ice caps contain more.[2] From west to east, spanning over 750 miles (1,200 kilometers), the lakes are: Superior, Michigan, Huron, Erie and Ontario.[3] Each comprise their own unique ecosystems and together form a larger, integrated whole.

The Great Lakes Basin is rich in biodiversity as well, with over 3,500 species of plants and animals. This includes an array of rare, threatened, and endangered animals, including aquatic species such as lake sturgeon.

Despite the Great Lakes being an area of vast biodiversity and rich habitat, its natural ecosystems are being diminished. Threats include pollution, over 180 non-native and invasive species, human alteration of water flows, and more.

To address these and other threats, Earth Law Center (ELC) seeks U.S. and Canadian recognition of the Great Lakes as a legal entity possessing rights. Legal status would ensure permanent and rights-based protections for the Great Lakes, creating legal structures that require that these ecosystems be restored to health. By contrast, our current legal structure treats the Great Lakes and its nonhuman inhabitants as property, incentivizing its destruction.

The Great Lakes touch eight states (Michigan, Wisconsin, Minnesota, Illinois, Indiana, Ohio, Pennsylvania, and New York) and the Canadian province of Ontario. When taking the watershed into consideration, over 30 million people rely upon the water from the five lakes, equating to “10 percent of the U.S. population and more than 30 percent of the Canadian population.”

Climate Change Hurts the Great Lakes

Climate change is having significant negative impacts on the Great Lakes and worsening the impact of other longstanding environmental harms. The situation highlights the need to establish a new legal and cultural relationship with this watershed.

One climate change-driven harm comes from rainfall patterns. Higher-than-average rainfall accumulation in the region over the previous summer season[4] is part of a growing trend. The Great Lakes have seen a 10.8 percent annual increase in precipitation from 1900 until 2012, with a 37 percent increase of heavy storm precipitation over the last half century.[5] While replenishing water levels, the high rainfall also causes flash floods, destroys shorelines, boosts toxic algal bloom, increases sewage overflows, and washes chemicals and agricultural waste residing on topsoil into lake water.[6] This adversely affects ecosystems at both the lakes’ edge and water basin.

The average temperatures along the lakes also have increased. From 1900, the annual average temperature in the Great Lakes region has gone up by 2 degrees Fahrenheit, and this is projected to increase to 11.2 degrees Fahrenheit by 2100. This increase brings about several concerns, including the 71 percent reduction of annual average ice coverage between 1973 and 2010, more algae growth, additional dead zones lacking oxygen, and wildlife species continuing to go extinct.[7] In fact, out of approximately 250 fish species residing in the Great Lakes[8], more than 13 wildlife species have gone extinct since the Europeans first started settling the region.[9]

While temperatures increase, so too does usage of electricity, creating a destructive feedback loop for climate change. Daily water extraction from the lakes to generate electricity went from about half of all water extraction, or 240 million cubic meters, to 95 percent of all daily water extraction, or over 3 billion cubic meters, between 1985 and 2002. “Power plants in the Great Lakes basin [in 2002] withdrew more water for hydroelectricity generation in an hour than was withdrawn in a day in 1985.”[10] This heavy reliance upon electricity only furthers warming air and water temperatures, making the issue worse.[11]

Great Lakes Health Declines Despite 2012 Bilateral Agreement

A recent commission found that the U.S. and Canada have a long way to go toward ridding the Great Lakes of pollution. Inadequately-treated sewage, industrial chemicals and farm runoff still flow into the five lakes, the International Joint Commission said in its first checkup report since both nations last updated the Great Lakes Water Quality Agreement in 2012.

"While significant progress has been made to restore and protect the lakes, the governments of Canada and the United States and Great Lakes civil society as a whole are living with the costly consequences of past failures to anticipate and prevent environmental problems," the report says. "By now, it should be clear that prevention makes environmental, economic and common sense.”[12]

As more people depend on the Great Lakes, the less likely it is that the lakes will replenish.  Human uses of the Great Lakes are many, including  “drinking, cleaning, flushing, crop irrigation, creating electricity, refining, bleaching, distilling, and cooling.”[13]

University of Michigan researchers published a report detailing the greatest stressors found on and around the Great Lakes in the Great Lakes Environmental Assessment and Mapping (GLEAM) project in 2013. These stressors are caused by manmade interventions or activities for either recreational or commercial purposes, also known as ecosystem services. As seen in Figure 1, a map of stressed locations, the harms to these lakes are pervasive and severe.[14]

Figure 1

Pollution Worsens in the Great Lakes

Lake Erie suffers from toxic algae, fed by phosphorus from fertilized farms, cattle feedlots and leaky septic systems. The algae’s toxin, called microcystin, causes diarrhea, vomiting and liver-function problems, and readily kills dogs and other small animals that drink contaminated water. A small bloom of toxic algae even formed directly over Toledo’s water-intake pipe in Lake Erie, miles offshore. Beyond the dangers to people and animals, the algae cause tens of billions of dollars of damage to commercial fishing and to the recreational and vacation trades.[15]

The Great Lakes don’t just have algae to contend with. Legacy contamination plagues the Great Lakes since it can take the lakes decades to rid themselves of toxins.[16] Most of the commonly found pollutants result from improper disposal over decades.[17] The contamination also increases with shoreline construction, erosion and digging (to accommodate larger vessels).

Mercury levels in some species of Great Lakes fish are stable but are increasing in others. Chemicals like the fire retardant polybrominated diphenyl ethers (PBDE) have been found  in the water, air and sediment and also in the wildlife and people who live near the Great Lakes. Exposure to PBDEs has been linked to thyroid disorders, birth defects, infertility, cancer, and neurobehavioral disorders.[18]

Canada’s government promised to spend nearly CAN$9 million to upgrade, renovate and improve the water plant in Neskantaga First Nation, a northern Ontario community that has been without safe tap water since 1995. "For more than 20 years we haven't been able to drink water from our taps or bathe without getting rashes," says Neskantaga Chief Wayne Moonias. Nearly 40 other First Nations in northern Ontario are also without safe drinking water.[19]

These threats to communities underscore the inescapable reality that degrading our ecosystems undermines our own wellbeing. Humans are part of nature and cannot survive without its nourishment. Until we modernize our legal and cultural relationship with nature, our own health will continue to suffer alongside the health of all species.

The Great Lakes Drown in Plastic Pollution

The U.S. and Canada together discard 22 million pounds of plastic into the waters of the Great Lakes each year, according to a new Rochester Institute of Technology (RIT) study. Most of it washes up along the shores, accounting for 80 percent of the litter found there.[20]

Plastic pollution in Lake Michigan equals 100 Olympic-sized pools full of plastic bottles dumped into the lake every year. "Every piece of plastic entering our watersheds is an example of a serious design flaw: we are manufacturing products that have no recovery plan or value after they leave consumer's hands," said Anna Cummins, co-founder and global strategy director of 5 Gyres Institute. "Just as we demand that people dispose of their trash properly, we must also demand that companies take responsibility for the end life of their products."[21]

Unfortunately, the plastic doesn’t go away, but rather gets broken down into microplastic particles of less than one millimeter in diameter, creating a Garbage Patch of microplastic in the Great Lakes. Testing suggests that in terms of concentration there are twice as much microplastic particles in the Great Lakes as there are in oceans across the globe.[22] Rivers flowing into the Great Lakes also contain high levels of microplastics.[23]

Efforts Made to Halt the Decline of the Great Lakes

Many international agreements, like the Great Lakes Water Quality Agreement[24] between the U.S. and Canada, and federal regulations, like the Clean Water Act,[25] as well as state and local water quality standards, now exist.

Other examples of initiatives related to the wellbeing of the Great Lakes include:

• The Remedial Action Plan, which works to reverse the downward trend the Great Lakes have been facing by forming regional partnerships to identify “Beneficial Use Impairments” (BUI) that are causing sections of the lakes to be listed as “Areas of Concern” (AOC)[26]
• The Great Lakes Restoration Initiative, a federal effort initiated in 2009 that funds hundreds of projects at high ecosystem stress sites, representing the largest investment in the Great Lakes over the past two decades[27]
• The Great Lakes National Program Office (GLNPO), which coordinates U.S. efforts with Canada under the Great Lakes Water Quality Agreement (GLWQA) to restore and maintain the chemical, physical and biological integrity of the Great Lakes Basin Ecosystem[28]

Despite the good intentions of these efforts, we must realize that they have yet to restore the Great Lakes to health. ELC argues that such programs do slow down the degradation of Great Lakes ecosystems, and that without such efforts the rate of environmental degradation would have been much worse. However, a new approach recognizing the rights of nature is necessary to restore the Great Lakes to health and ensure their long-lasting protection.

Rights of Nature for the Great Lakes

A growing movement in the U.S. and worldwide seeks to recognize and enforce fundamental rights for nature. Like other rights-based movements before (e.g. women’s rights, anti-slavery, and so forth), the movement to establish rights for nature seeks to ensure that the rights of ecosystems are both recognized and enforced in a court of law.

Establishing legal rights for the Great Lakes would provide long-lasting protection for this unique, important ecosystem. It would also ensure that nature’s needs are always met rather than only when it is convenient. An entity that is treated as mere property lacking rights, as nature is now, will never have its interests fully represented. ELC seeks to change this dynamic for the Great Lakes in partnership with Sacred Land Sacred Water.

“The Great Lakes ecosystem is globally imperiled by pollution, water withdrawal, invasive species, agricultural runoff and the nuclear industry. The Great Lakes holds one fifth of the world's fresh water...ONE FIFTH. Initiating Rights of Nature legal structures is the best way to work within a legal/regulatory system that sees fresh water only as a commodity and not a commons” nots Juliee de la Terre, from Sacred Land Sacred Water.

Legal rights for the Great Lakes will allow local communities and indigenous tribes to serve as guardians of nature to enforce the inherent rights of the ecosystem. So, for example, if pollution is destroying a local waterway, a member of the community can sue the polluter on behalf of the waterway and seek a court order calling for its restoration to health (and an end to the excessive pollution) as a legal right. 

Universal Declaration of the Rights of the Great Lakes

To advance this campaign, ELC has worked with environmental leaders throughout the Great Lakes Region to uphold its rights. This document describes the fundamental rights to which all waterways in the Great Lakes Region are entitled. The document, once finalized (feedback is still welcome), will serve as a blueprint for local communities, tribes, regional and state governments, and, eventually, national governments (i.e. USA and Canada) as they work to recognize and implement the rights of nature within the Great Lakes Basin. We encourage you to review, give feedback on and support us to protect this essential ecosystem!

As the next step, ELC and partners are asking for feedback from interested communities, tribes, and other entities about putting the rights of the Great Lakes into law.

As with any rights-based movement, early adopters are essential to giving momentum to the movement. We are confident that these rights will begin to be put into law in 2018, and that the entire Great Lakes Basin will have legal rights in the near future – to the benefit of humans and nature. 

Does your community want to establish legal rights for the Great Lakes? Contact gwilson@earthlaw.org to learn more.

Want to get more involved?

• Read about ELC’s  online
• Give feedback on the Universal Declaration of the Rights of the Great Lakes
• Volunteer for the Rights of Nature for the Great Lakes Campaign
• Stay informed
• Support Rights of Nature for the Great Lakes

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[1] https://www.epa.gov/greatlakes/great-lakes-facts-and-figures

[2] https://www.epa.gov/greatlakes/great-lakes-facts-and-figures

[3] https://en.wikipedia.org/wiki/Great_Lakes

[4] https://binational.net/wp-content/uploads/2017/10/GL-Summer2017_Final.pdf

[5] http://glisa.umich.edu/media/files/GLISA_climate_change_summary.pdf

[6] https://binational.net/wp-content/uploads/2017/10/GL-Summer2017_Final.pdf

[7] http://glisa.umich.edu/media/files/GLISA_climate_change_summary.pdf

[8] https://www.glerl.noaa.gov/education/ourlakes/facts.html

[9] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false

[10] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false

[11] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false

[12] http://www.chicagotribune.com/news/nationworld/midwest/ct-great-lakes-pollution-20171128-story.html

[13] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false]

[14] https://www.canadiangeographic.ca/article/pollution-great-lakes

[15] https://www.nytimes.com/2014/08/05/us/lifting-ban-toledo-says-its-water-is-safe-to-drink-again.html

[16] https://www.glerl.noaa.gov/education/ourlakes/facts.html

[17] http://www.regions.noaa.gov/great-lakes/index.php/great_lakes-restoration-initiative/toxics/].

[18] https://response.restoration.noaa.gov/about/media/chemical-pollution-great-lakes.html

[19] http://www.cbc.ca/news/canada/thunder-bay/neskantaga-water-plan-1.4225889

[20] https://www.ecowatch.com/plastic-great-lakes-2157466316.html

[21] Plastic pollution in Lake Michigan is approximately the equivalent of 100 Olympic-sized pools full of plastic bottles dumped into the lake every year.

[22] http://voices.nationalgeographic.org/2013/04/12/new-concerns-about-plastic-pollution-in-great-lakes-garbage-patch/].

[23] https://www.usgs.gov/news/widespread-plastic-pollution-found-great-lakes-tributaries

[24] www.on.ec.gc.ca/glwqa/facts-e.html

[25] www.epa.gov/watertrain/cwa/

[26] https://www.epa.gov/great-lakes-aocs/restoring-great-lakes-aocs

[27] http://www.ns.umich.edu/new/releases/21040-environmental-threat-map-highlights-great-lakes-restoration-challenges

[28] https://www.epa.gov/aboutepa/about-great-lakes-national-program-office-glnpo

Earth Law Center’s Fight to Return Rights to the Ocean

By JJ Lee

The rise of the conservation movement in the 1970s heralded an era of awareness of the dangers of exhausting the ecological limits. Since then, activism by citizens around the world has carried the fight against climate change to the forefront of global attention.

Yet despite the progress, efforts have not reversed the damage to Nature. A failure to recognize and address climate change is symptomatic of a greater problem: the treatment of the Earth as an endless resource for human use rather than as a rights-bearing entity. To address this root cause of continued environmental degradation, Earth Law Center works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve.

Why does the ocean need rights?

Overfishing, climate change, and plastic pollution[i] have left the ocean in a rapid state of decline and in imminent danger of losing its capacity to support life.[ii] Society uses marine environments in many ways including fishing, tourism, aquaculture, and energy production.

Current legal structures to regulate these activities view the ocean as a resource, and have established loopholes and permits that allow for actions that choose economic benefit over ecosystem health and stability. As a result, 60 percent of the world’s major marine ecosystems are degraded or used unsustainably, leading to a decline in marine biodiversity of 49 percent, roughly half of what it was 50 years ago.[iii]

Our relationship with the ocean is unsustainable. With the cumulative economic impact of poor ocean management practices costing USD 200 billion per year (UNDP, 2012), there exists an opportunity to adjust our practices to improve the effectiveness of regulations.

We need to level the playing field, and balance human wants and needs with that of the ocean. Sustainable growth and livelihoods can only occur through sustained and restored ocean health. Rights for the ocean is the next step in evolving marine protection in order for humans to truly live sustainably within the ocean’s and planet’s limits.

Rights for the Ocean Campaign Launched

In Spring 2017, ELC launched the Rights of the Ocean Initiative to promote an Earth-centered paradigm in ocean governance. The initiative sums up the growing trend worldwide towards recognizing and protecting Nature’s inherent rights to be healthy as the best solution to today’s pressing environmental challenges.

Led by Ocean Rights Manager Michelle Bender, the Ocean team at ELC work to support the global movement for the worldwide legal recognition of the rights of the ocean. The Ocean team support the movement by raising awareness, educating others, and carrying out analytical research.

Early efforts engaged the UN General Assembly on Harmony with Nature recommendation for all parties to develop a new legal and policy framework for the implementation of the Rights of Nature.

The initiative connected and unified the work and missions of organizations worldwide. ELC shared the initiative with NGOs accredited to the conference, International Union for Conservation of Nature (IUCN) members, UN country delegates and a comprehensive list of ocean-related organizations. Approximately 25 percent of the organizations that received it, responded to ELC’s email. Initial sign-ons and enthusiastic support from organizations such as Mission Blue, Ocean Care, the Great Whale Conservancy and Organización para la Conservación de Cetaceos eventually grew into a coalition of over 60 signatory organizations from 32 nations.

ELC recognized the opportunity and need to raise further awareness and build a network of support for the new paradigm at the highly anticipated UN Ocean Conference in June 2017. Executive Director Darlene Lee presented the “Incorporation of the Inherent Rights of the Ocean into the Ocean Conference 2017 ‘Call for Action’” on behalf of its signatories, supporters and members.

Says signer Roxana Schteinbarg from the Instituto de Conservación de Ballenas, “Thank you for this incredible initiative!  We hear all the time great speeches talking about sustainable development but putting priority on human needs. This is not correct and it is the time to change our perspective and consider first the need of the planet.”

Since the Ocean Conference, ELC has partnered with organizations internationally to spur the creation of rights-based marine protected areas in various nations. ELC has also produced the Earth Law Framework for the Marine Protected Areas after recognizing that future endeavors around the world will benefit from sharing a set of guidelines developed by coordinated expert analysis.

MPAs can contribute to reducing poverty, building food security, creating employment and protecting coastal communities[iv]

• Expanding the coverage of no-take MPAs to 10 percent and 30 percent  shows benefits exceed the costs, with ratios in the range of 3.17 – 19.77[v]; from the most conservative estimate of US$490 billion and 150,000 full-time jobs in MPA management, to the most optimistic estimate of US$920 billion and over 180,000 jobs by 2050.[vi]
• Rights of oceans makes it a legal responsibility to adopt sustainable practices into ocean-dependent industries and allow for continued, long-term ecosystem and economic stability and growth.

Creating the Earth Law Framework for Marine Protected Areas

ELC volunteers conducted over 500 hours of  research and analysis to create a framework that builds upon the one initiated by the IUCN, NOAA, and Rights of Nature precedents.

The ELC largely focused on Step Two, “Developing the legal framework,”of the IUCN’s Guidelines for Marine Protected Areas,[vii] a document that provides instructions for countries on various actions needed to establish an effective system of marine protected areas. The Framework also adapts and incorporates the key components of the MPA creation and implementation in national systems from the “Framework for the National System of Marine Protected Areas of the United States of America”[viii] by NOAA. Most importantly, the Rights of Nature precedents that give ecosystems legal identity served as a key point of analysis in the development of the Framework. The ecosystems examined include the Galapagos Islands of Ecuador, the Whanganui River in New Zealand and the Te Urewera National Park in New Zealand, which all have originating statutes that accord them rights as well as subsequent management plans that outline implementation.

Through the process, ELC learned that language is key. A single word can make a decisive difference between success and failure. For example, though the IUCN Guidelines intend for ecosystem protection, its recommendations maintain a human-centered approach, leaving room for interpretation. The IUCN defines the goal of MPA networks as “provid[ing] for protection, restoration, wise use, understanding and enjoyment of the marine heritage of the world in perpetuity [….] in accordance with the principles of the World Conservation Strategy of human activities that use or affect the marine environment” — “wise use” meaning, “for the use of people on an ecologically sustainable basis” in consideration of the continued welfare of people affected by the creation of the MPA.[ix]  ELC believes “wise use” should also include the use of the ecosystem by other species.

With the ultimate goal of becoming a guideline for implementing an Earth-centered approach to marine protected area governance, the draft includes a collaborative “call for inputs” which aims to collect best practices and recommendations as well as to achieve a global consensus for advancing effective policies.

ELC launched the draft of the Framework at the Fourth International Marine Protected Areas Congress in September, where it connected with a host of organizations, including the IUCN, the World Wildlife Federation, Conservation International, the Conservation Land Trust, Greenpeace, Fundacion Meri, Costa Humboldt, Fiscalia Del Medio Ambiente, and the Forum for the Conservation of the Patagonian Sea and Areas of Influence.

Mission Blue, an alliance of more than 180 respected ocean conservation organizations, multinational corporations, and individual scientific teams and NGOs around the world, working to build public support for ocean protection, is one of 63 organizations that supported ELC’s UN Ocean Conference Initiative and which now endorses the Earth Law Framework for Marine Protected Areas. The Framework has since been sent to over 1000 experts and organizations globally, including experts from the UN Harmony with Nature Initiative, NOAA and organizations such as Oceana and the Ocean Conservancy, for recommendations and further improvements.

ELC has received valuable input. Advice received includes the need to consult and integrate the recommendations of indigenous leaders as well as to make clear that the Framework balances the rights of humans with that of Nature. Other intriguing responses suggest an integrated approach that includes “CSOs, traditional institutions, research, academia and policy makers,” the creation of a UN-specific group focused on commitment to the seas, an emphasis on education for fishermen on the benefits of MPAs, and the implementation of a business sponsorship program for “Adopt an MPA.” As one submission highlighted, corporate rights hold a key part of the solution in changing systemic values towards the environment:

“the bottom line is corporate structure where company law states benefit to the shareholders is primary. Company law needs to state that a company has a primary duty to preserve the environment, and secondary duty to produce money for shareholders.”

 What’s next for the recognition of ocean rights

The fight is far from over!

The new ocean governance requires overcoming the weaknesses of the current regime. These weaknesses include the lack of information sharing, transparency, accountability, and compliance reporting mechanisms as well the systematic integration of regional and national conservation arrangements. Insufficient international regulatory authority remains the most challenging priority in securing a thriving future for the ocean.

The universal adoption and implementation of a rights-based legal structure offers a unique long-term solution for the many challenges the ocean faces. Only a framework that recognizes and protects the ocean and all of its ecosystems as living entities addressess the root causes. These inalienable rights include: right to life, freedom from abuse, and ability to maintain vital processes necessary for supporting life.

Achieving universal adoption and effective implementation of a rights-based ocean governance framework will involve the integrated effort and coordination of all levels of government as well as nongovernmental partners, including the private sector, local communities and stakeholders, NGOs, scientific and academic experts, and most importantly, private citizens. It is important to  move beyond top down decision-making.

Marine Protected Areas in particular require a holistic approach that integrates ecological, economic, social, and political considerations with an emphasis on participatory decision-making from an early stage and science-based management through open dialogue. Proper legislation through political effort, adequate financial and human resources, institutional capacity, sustained public engagement, resource management and marine spatial planning, collaborative opportunities and initiatives, effective monitoring and reporting systems, and the creation of shared social norms are just a few examples of the many actions necessary for the implementation of effective marine protected areas.

Growing global momentum for rights of nature

In 2008, Ecuador became the first nation to recognize the Rights of Nature in its Constitution, followed by Bolivia in 2011. Over 40 municipalities in the US have passed rights of nature ordinances, including Santa Monica which ELC led. The Whanganui River in New Zealand and Atrato River in Colombia enjoy legal rights recognition today, and in 2012, the Supreme Court of India recognized the Constitutional duty of citizens to protect the environment and ruled that human interests do not take automatic precedence over that of nonhumans. 

Specifically pertaining to the rights of nature as applied to marine protected areas, Ecuador and the Law of the Galapagos represents the growing momentum of the Earth Law Framework. The 2014 Management Plan for the Protected Areas of Galapagos for Good Living recognizes the connection between development and conservation, human dependence on natural ecosystems, and the limits of the marine ecosystem that cannot be breached. The Special Law limits economic activities to permanent residents and maintains minimal human interference in the ecosystems. Similar efforts in New Zealand led to the Sea Change Marine Spatial Plan, which proposes the recognition of the rights of Hauraki Gulf Marine Park and a holistic and integrative approach to improving the Gulf ecosystem, health, and the wellbeing of those dependent on it.

These victories would not have been possible without individuals combining their collective power to propel forward critical change.

We need to uphold the rights of the ocean

The terrible consequences of continued harm to the environment underlines the interconnectedness of all life on Earth. We need your help in driving forward a new normative paradigm of conservation ethics and actions for a healthy ocean, now and for future generations. No contribution is too small when something as fundamental to our own survival as our spaceship Earth is at stake. There are many ways to get involved - from engaging your local government in grassroots progress to joining international organizations leading the effort to save the ocean at the forefront of policy-making.

The adoption of universal rights for nature or new rights-based ocean governance is only half the battle. Ensuring that such measures remain protected and permanent, as well as adaptive to the evolving demands of the needs of the ocean, requires sustained engagement and informed action.

Here’s how you can help the ocean gain legal rights recognition

• Write to Congress or specific members (Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, among others) about your support for specific laws (https://www.congress.gov/bill/115th-congress/senate-bill/31/all-info)
• Congressional Ocean Advocates may be one resource for that particular method: https://www.oceanchampions.org/congressional-champions/
• Or https://sanctuaries.noaa.gov/involved/, which has some specific instructions on how you can get involved

The enthusiasm and support that the Rights of the Ocean Initiative has garnered since its inception indicate that the tide may finally be turning, and the Earth Law Center stands steadfast in its fight to spread further awareness of and education on ocean rights, with the goal of seeing its effective and long-term actualization.

To accelerate the premature termination of nature, humanity ensures its own rapid and untimely end. The Earth as a living, breathing entity that requires the protection and stewardship of humankind who reap its bounty is not a revolutionary concept, but one that has been largely forgotten. An eco-centric approach that returns fundamental rights to nature is the next bold step that we must make to achieve sustained prosperity for all whom equally draw and create life from it.

To weigh in on the Framework or to participate in the Rights of the Ocean Initiative, visit the online form www.earthlawcenter.org/oceanrights or email Michelle Bender at mbender@earthlaw.org before December 15th.

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[i] George Leonard & Andreas Merkl, Confronting Ocean Plastic Pollution at the Global Scale: New Insights and Strategic Opportunities, 1 (2015) (internal document).

[ii] Global Issues, Declining Ocean Biodiveristy, (Sept. 1, 2017, 7:09pm), http://www.globalissues.org/article/171/loss-of-biodiversity-and-extinctions#DecliningOceanBiodiversity.   

[iii] Living Blue Planet Index, World Wildlife Fund, Living Planet Report, 2014, available at: http://www.livingplanetindex.org/projects?main_page_project=BluePlanetReport&home_flag=1. 

[iv] https://www.earthlawcenter.org/new-blog-1/2017/8/ecosystem-based-approach-to-mpas

[v] https://www.oecd.org/environment/resources/Marine-Protected-Areas-Policy-Highlights.pdf

[vi] http://ocean.panda.org/media/WWF_Marine_Protected_Areas_LR_SP.pdf

[vii] https://www.iucn.org/sites/dev/files/import/downloads/mpaguid.pdf

[viii] https://nmsmarineprotectedareas.blob.core.windows.net/marineprotectedareas-prod/media/archive/nationalsystem/framework/final-mpa-framework-0315.pdf

[ix] IUCN MPA Guidelines, supra at xx

Mexico on the Vanguard for Rights of Nature

Rio Magdelena

By Darlene Lee

In January 2017, Mexico City changed its constitution to include rights of nature.[i] The amendment states in part that “the right to the preservation and protection of nature will be guaranteed by Mexico City authorities in the scope of their competence, always promoting citizen participation in this subject.”[ii]

The amendment, promoted by a citizen initiative that included nearly 150 civil society organizations, was officially launched at the first Forum on the Rights of Nature in 2016.[iii]  Here, stakeholders and environmental thinkers from throughout Mexico declared their support for harmonizing governance with nature. (The amendment was passed shortly before the 100th anniversary of the 1917 Mexican Constitution, which was established by President Venustiano Carranza during the Mexican Revolution.[iv])

Mexico City follows in the progressive footsteps of Ecuador and Bolivia. Ecuador amended its constitution to uphold the inherent rights of nature, while Bolivia also recognizes nature’s rights through two national laws. Mexico City’s deadline for implementing its new constitution is December 31st, 2020, but it’s thought it will be in effect by 2019.[v]

Building from this momentum, work to firmly establish rights of nature in Mexico continues. Earth Law Center (ELC) is partnering with local environmental and social organizations to win legal rights for the Magdalena, Atoyac and San Pedro Mezquital rivers. All three rivers face significant threats, including pollution and altered flows. And a proposed dam project will seriously damage the San Pedro Mezquital if it goes ahead.

In 2017, the Whanganui River in New Zealand was the first river in the world to secure legal rights recognition. And soon thereafter, a constitutional court in Colombia released its decision to establish legal rights for the Atrato River. ELC is honored to work with local advocates to bring the same change to Mexico.  

What are Rights of Nature?

A primary purpose of our legal system is to stop humans from violating the rights of other humans. Now laws are beginning to prohibit humans from violation the rights of nature, as well. When the law recognizes ecosystems as right-bearing entities, ecosystems – represented in court by local people – will be able to seek legal recourse against anyone who harms their rights. ELC seeks to establish this new paradigm.

The rights of nature has several advantages over our current legal paradigm:

• Advancing nature’s rights will correct the gaps in our legal structures that allow natural systems to be abused for profit.
• A rights of nature approach promotes the idea that humans must respect the Earth’s systems, which would benefit the natural world and humanity as a whole.
• Legally recognizing that nature has an inherent right to thrive will promote whole ecosystem health, rather than allowing nature to teeter on the brink of extinction.

Finally, in regards to waterways, by recognizing the inherent rights of rivers and streams, we can begin to repair the damage caused by institutionalized water overuse. We can also ensure clean and abundant fresh water for future generations.

What are the Rights of Rivers in Particular?

To define the rights to which all waterways are entitled, ELC analyzed the ecological principles of river health and the legal precedent for recognizing the rights of rivers worldwide. We concluded that a river or waterway possesses, at minimum:

1. the right to flow;
2. the right to perform essential functions within its ecosystem;
3. the right to be free from pollution;
4. the right to feed and be fed by sustainable aquifers;
5. the right to native biodiversity; and
6. the right to restoration.
7. These are the rights enshrined in ELC’s Universal Declaration of the Rights of Rivers. It is our hope that this document will serve as a baseline for governments to protect the rights of rivers worldwide.

Why Doesn’t the Current System Protect Rivers?

Market theory dictates how water is allocated, resulting in a system where those with the means to buy more water have a greater share of the rights to that water.  This system creates several problems:

• Allocating water, a non-substitutable resource, based on an individual’s wealth necessarily leads to an unfair outcome.  Wealthy citizens, corporations and municipalities have the power to demand more water for less essential purposes. Meanwhile, poorer populations, who rely primarily on local infrastructure to provide basic essentials like clean drinking water, do not receive their fair share. 
• In a system that forces different parties to compete against each other for rights to water, integral groups are excluded from the water allocation process – namely, the waterways themselves. This is because our legal systems generally classify rivers and other waterways as property. As property they have no recourse when confronting infringement of their fundamental rights. 

Because natural waterways are not yet rights-holding entities, they have no legal recourse to claim a stake in the outcome of water rights distribution. The rivers keep the freshwater that maintain healthy ecosystems and essential functions, but they have no say in how humans use their waters. Thus rivers are without the ability to claim a reasonable and sustainable share of the water for themselves. 

Mexico City’s Last Free Flowing River: The Magdalena Seeks Legal Rights

Metro Mexico City has an estimated population of 21.2 million – the most populated city in the Western Hemisphere.[i] And only one free-flowing river remains in Mexico City: the fragile Magdalena.[ii]

Mexico City used to be the Aztec city of Tenochtitlan. It was originally built on a network of lakes and floating islands. Centuries of population growth have resulted in a sinking city, extensive flooding and almost 20 percent of residents being unable to get water from their taps each day.[iii]

The Magdalena faces threats from altered flows, chemical and pathogenic contaminants, and hydraulic infrastructure (dams, diversion channels, pipelining of springs). The health of the Magdalena impacts local fragile ecosystems, including the Mexico City aquifer and forests in the Valley of Mexico.

A group of local environmental and social leaders have fought passionately for the restoration of the Magdalena River for decades. While they have made commendable progress, many of them believe that legal rights for the Magdalena River will provide the legal incentive necessary to see this river restored to health.

Upholding Legal Rights for the Atoyac River

This river, also known as the Balsas River, flows through the states of Puebla and Tlaxcala and has been ranked as one of the three most polluted rivers in Mexico. In the state of Puebla, 2.3 million people are directly affected by the contamination of the river. Each day, 146 tonnes of organic waste are dumped into it, along with 62.8 tonnes of suspended solids and 14 kilograms of heavy metals.

Pollution in Rio Atoyac, Foto: Eslmage

Threats to the river include the textile, metalworking and petrochemical industries, as well as over-diversion and dams. The restoration of this river will restore fish populations, wildlife habitat and clean water over a vast area, including within the Sierra Madre del Sur.

Environmental leaders have drawn attention to the impairment of the Atoyac River, and several positive developments have resulted. For example, Conagua (the National Water Commission) has sanctioned 34 companies for uncontrolled effluent dumping into the river. Additionally, the Council of Puebla, headed by Mayor Luis Banck, established the commitment "Vive Atoyac," which aims to recover and clean up the Atoyac River Basin in the stretch of the Municipality of Puebla over the next 15 years.

Despite these gains, the river continues to suffer from poor health. Local advocates believe that establishing rights for the Atoyac will modernize the legal dynamic between human and waterways and provide the permanent protections that this river needs.

Securing Legal Rights Recognition for the San Pedro Mezquital River

The San Pedro Mezquital River is the seventh largest river in Mexico, flowing through the western Sierra Madre into the Marismas Nacionales (the National Wetlands) Biosphere Reserve, on the coast of the state of Nayarit. As a function of its relatively pristine state, the San Pedro Mezquital crosses and nurtures the unique ecosystems of rare species, as well as unique indigenous cultures, including the Huichol People in the high sierras and the Meztitlán swamp fishermen in the mangroves of Marismas. Because of its inaccessible location, the San Pedro Mezquital has received relative protection from the anthropogenic threats experienced by other river ecosystems in Mexico.

Este vídeo es sobre Proyecto sin título

However, the proposed Las Cruces Dam threatens to fundamentally impair the San Pedro Mezquital. The dam would adversely affect fish species and agricultural needs depended upon by 12,000 families, and also destroy an indigenous ceremonial center and 14 sacred sites. The dam would also restrict the water and nutrients flow that the river carries to Marismas Nacionales, home of one of the largest mangrove forests in Mexico.

Dams alter a river’s ecosystem from one that’s cold, flowing and connected, to one that’s warm, stagnant and fragmented – with devastating consequences for wildlife. Globally, dams have been the single largest factor in plummeting freshwater fish populations, which have declined by 80 percent since 1970. Dams have also been linked directly to soil erosion, water-logging, salinization and new disease vectors.

Rights-based protections for the San Pedro Mezquital River could mean that the river has a right to flow – which may be incompatible with dam construction. Further, establishing rights for the San Pedro Mezquital River will bolster indigenous and community rights by giving local river guardians a robust ability to demand that their  free, prior and informed consent is given.

Mexican Environmentalists Hard at Work

Cuatro al Cubo ("Four to the Cube"), Organi - K, Dale la Cara al Atoyac A.C., Nuiwari, A.C., Rights of Mother Earth Mexico and many others work to advance a variety of social, environmental and urban design solutions to Mexico’s challenges, including ailing waterways. Additional groups have adjacent aims, with a focus on community health, plastic and chemical pollution, recreation, indigenous rights, urban design and many other areas.

ELC is proud to partner with these and other organizations to establish legal rights for rivers. Many of these groups were directly responsible for achieving rights of nature within Mexico City’s new constitution, and they are determined to continue the expansion of protections for Mexican ecosystems and communities. Together, we are confident that we can create an international model of success for humans and nature thriving together in harmony.

About the author: Earth Law Center (ELC) works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. Earth Law Center does this by partnering with local organizations to catalyze the paradigm shift to one in which nature has a say in decisions which impact ecosystems, species and overall health and well-being.

Strengthening and Enhancing Mexican River Protection

We need your help to secure rights for these rivers in Mexico! Here is how you can help today:

1.  Donate to ELC
2.  Volunteer with ELC
3.  Contact ELC if you want to work on your own river rights campaign
4.  Have your organization sign the Declaration of River Rights document
5.  Connect with us on social media and sign up for our newsletter

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[i] https://www.facebook.com/notes/paxamama-news/la-constituci%C3%B3n-de-la-cdmx-reconoce-que-la-tierra-est%C3%A1-viva-y-tiene-derechos/366806370372202

[ii] http://www.cdmx.gob.mx/storage/app/uploads/public/59a/588/5d9/59a5885d9b2c7133832865.pdf

[iii] https://www.facebook.com/notes/paxamama-news/la-constituci%C3%B3n-de-la-cdmx-reconoce-que-la-tierra-est%C3%A1-viva-y-tiene-derechos/366806370372202

[iv] https://blogs.loc.gov/law/2011/02/the-history-of-the-mexican-constitution/

[v] http://worldconsciouspact.org/featured-2/rights-nature-mexico-city-constitution/

[vi] http://worldpopulationreview.com/world-cities/mexico-city-population/

[vii] http://foreignpolicy.com/2017/05/31/mexico-city-last-living-river-pollution-water/

[viii] http://worldpopulationreview.com/world-cities/mexico-city-population/