, Executive director of Oregon Coast Alliance, writes about the Rights of Nature movement.
Published on March 6, 2019 by the American Association of Geographers.
Rights of Nature is a short-hand term for a form of ecological governance that both provides for and prioritizes Nature’s right to flourish. It also provides for various subsidiary rights, such as the right to restoration, the right to its natural processes, and the right to ecosystem functioning without interference. The term “Rights of Nature” gives the impression that the primary focus is defending Nature’s rights in courts of law. However, the Rights of Nature paradigm aims for a more fundamental shift in governance than only defending rights: placing Nature and its needs before human needs, so that human needs are reconfigured within Nature’s limits. Providing Nature with legal personhood and the guardians to defend its rights in court helps change the framework to a form of ecological governance, rather than laws that provide only for human needs. Currently, American law merely regulates human uses of the natural environment and provides for minimal curbs on overuse by such means as fines for pollution or, more rarely, refusal to grant permits for projects deemed too ecologically damaging.
What is Rights of Nature Governance?
The upsurge in interest in ecological governance is driven by the clear signals worldwide of increasing ecological degradation at systemic levels, ranging from climate change to greatly accelerated species loss across ecosystems. It is clear to many thinkers and advocates that the current industrial paradigm is now threatening ecological integrity worldwide and with it the ability of human communities to live sustainably and support critical needs for food, fresh water, decent shelter and ways of making a living.
Rights of Nature is less a specific template than an overarching ideal of ecological governance, the details of which are fashioned in unique ways in each culture that is seeking to enhance or restore sustainable living within Nature’s limits. This requires that Nature be granted the same rights to flourish and maintain itself as humans grant themselves in their legal structures. But underlying the need for legal protections is the concept that humans and Nature are in a relationship, rather than Nature merely providing a hoard of natural resources for indiscriminate human use. The legal structures discussed in Rights of Nature literature codifies the details of this restored relationship, rather than actually creating it.
Fully implementing a Rights of Nature or similar form of ecological governance, is the only way to reach true sustainability, because it places human activities within the framework of Nature’s laws and limitations, as other forms of governance do not. The problem, however, is how to define “sustainability,” as this overused term has lost both its mooring and meaning. Four criteria need to guide an understanding of the sustainability that a Rights of Nature paradigm aims for: (a) true sustainability prohibits mitigation or substitution for monetary or political gain; (b) sustainable projects create sustainable levels of human use, rather than encouraging continued over-consumption; (c) sustainable use shrinks the human footprint on the earth, not expands it; (d) true sustainability is a flexible and continuous process, as populations, technologies, and needs change, but it always maintains Nature’s biophysical integrity throughout, despite the dynamic changes inherent in ecological processes.
The History of the Rights of Nature Paradigm
The idea of granting Nature legal rights originated in a court case decided in 1972 by the United States Supreme Court, Sierra Club versus Morton. The Forest Service had issued permits for Disney Enterprises to build a complex of recreation and lodging facilities in Mineral King Valley in the Sierra Nevada of California. The Sierra Club Legal Defense Fund sued to stop the project, but the lower court held that the Fund would not be adversely affected by the project and thus had no legal standing to sue. The United States Supreme Court decided to hear the case. As the case was pending, Christopher Stone, a professor at the University of California School of Law, authored a law review article arguing that natural areas and objects should have legal rights to defend their ecological integrity from harms that would damage them.
This article, entitled “Should Trees Have Standing?” caught the attention of Supreme Court Justice William O. Douglas. The Court ruled against the Sierra Club, but Justice Douglas wrote a now-famous dissent in which he said, “Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.” Ultimately, the Sierra Club was able to prevent the destruction of Mineral King Valley, which is now part of Sequoia National Park. Professor Stone’s provocative article, suggesting that Nature be granted legal personhood to protect its own integrity, slowly began to attract more attention.
The country of Ecuador was the first to place Rights of Nature in its governing laws. Section 7 of the new Constitution of Ecuador adopted in 2008 says, “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” The Constitution also grants Nature the right to be restored and requires the government to prevent or restrict activities leading to species extinction, ecosystem destruction, and permanent alteration of natural cycles. Significantly, the Ecuadoran Constitution also protects its people’s rights to food sovereignty, and the right, especially of indigenous peoples, to remain on their ancestral lands, protecting their rights to develop ancestral traditions and societies and retain ownership of their community lands.
This new Constitutional provision on Nature’s Rights is slowly changing the face of Ecuadoran law. The very first lawsuit using the Rights of Nature provision was decided in Ecuador in 2011. It concerned a new road built along the Vilcabamba River in Loja Province and the dumping of construction rubble into the river. The Provincial Justice Court of Loja ruled in favor of the river, noting that damage to nature is generational in extent and that therefore the “precautionary principle” should guide development projects. The court required the government to take immediate corrective actions and appointed a delegation to oversee the cleanup.
Read the full report HERE.