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Can we protect nature by giving it legal rights?

St Louis River
The St. Louis River feeds Lake Superior, which holds 10% of our entire world’s fresh surface water.

This article originally appeared on EnsiaEnsia is powered by the University of Minnesota’s Institute on the Environment and is a member of the Institute for Nonprofit News and the Solutions Journalism Network.

A great blue heron walks slowly on long legs. A loud splash just might signal the presence of an endangered lake sturgeon. At the headwaters of the Great Lakes, North America’s largest freshwater estuary teems with life. This place called Gichigami-ziibi in native Anishinaabemowin — the St. Louis River in English — is rich in biodiversity and an important place for migratory birds and native fish.

This body of water in Duluth, Minnesota, is also rich in challenges. Forty years ago, U.S. Steel left behind what has been called the “most widely contaminated” Superfund site in the Rust Belt, where it’s still not safe to eat the fish or swim in the water. Currently over US$300 million is being invested into restoration. At the same time, concerned citizens worry that upstream the same river is threatened by two proposed projects: an open-pit copper-nickel mine that would store hazardous waste in an already aging and leaking dam, and an oil pipeline that would bring the ongoing threat of spills.

The stakes are high, especially since the St. Louis River feeds Lake Superior, which holds 10% of our entire world’s fresh surface water.

In August 2019, a group of citizens met in Duluth to learn about an unconventional strategy that could protect this place and potentially change its story going forward. Rights of Nature is a growing international movement that recognizes species and ecosystems not simply as resources for humans to use, but as living entities with rights of their own. Twenty people from different backgrounds attended the gathering: activists and organizers, grandmothers, a Catholic priest and an Indigenous elder, each with their own concerns about the ecosystem. Now community members are working on a ballot initiative for 2020 to recognize rights of the estuary.

This way of seeing the natural world is fundamental to many Indigenous worldviews. If Rights of Nature finds a place in Western law, it could transform our ability to protect nature.

Key differences

Rights of Nature differs from conventional environmental protection in three key ways.

First, with Rights of Nature, communities work together outside of the regulatory system to establish legal rights. Under conventional environmental law, “communities can’t prohibit what state law permits,” says Thomas Linzey, executive director of the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based nonprofit law firm. Linzey says rights-based law steps outside of the state permitting system entirely, placing the power in people’s hands to establish “constitution-type” rights for nature that could eventually take precedence over regulations.

For example, people in Duluth who are concerned about mercury, asbestos, cadmium, lead and arsenic ending up in their drinking water as a result of the proposed copper-nickel mine upstream are funneled toward the state regulatory system, where their primary recourse is to comment on the project’s Environmental Impact Statement, fight permits in court and struggle to uphold pollution standards. But the regulatory system defines what, where and how much pollution is allowed, not if the pollution is allowed. By recognizing the rights of nature, the community can make protecting the ecosystem the top order of business.

“The American legal system has been flexible enough to expand rights and legal personhood to slaves, women, children and corporations,” then–University of California, Berkeley, law student Allison Katherine Athens wrote in Ecology Law Quarterly in 2018. That, Athens wrote, sets a precedent for expanding who and what has rights.

Second, Rights of Nature laws are enforced differently than other environmental protections. When a community bill of rights is adopted into law, it designates a guardian to enforce the rights of an ecosystem. Duluth residents would be the guardians, who could then take action to ensure that the estuary’s legal rights are upheld.

A third key difference is that Rights of Nature attempts to incorporate Indigenous worldviews into the Western legal framework. In the Anishinaabe cosmology, Mother Earth comes before people, and there’s a responsibility to care for rivers because they are her veins. It’s a worldview that includes reciprocity between humans and nature, rather than a hierarchy that places humans above nature — and some humans above other humans.

This shift in worldview means treating both nature and Indigenous peoples differently, including honoring Native leadership. In order for it to be truly different from other environmental protections, the movement for Rights of Nature will need to have “genuine Indigenous voices, thought and leadership,” says Anishinaabe elder Ricky DeFoe. DeFoe says this begins with “each of us doing the work to decolonize our own minds.”

“If you’re going to be an ally,” he says, “stand behind us, beside us. We have our own speakers, orators, scholars, thinkers.”

Exist, flourish, thrive, regenerate

The Rights of Nature concept has been gaining ground over the past decade. Ecuador wrote rights-based protection of nature into its constitution in 2008, so that any citizen can go to court on behalf of nature.

In New Zealand, the Indigenous Māori people worked with the government to establish rights for the Whanganui River. As a result of the law passed in 2017, the river can be represented in court by a governing body made up of two appointed representatives; one from the Māori, and one from the national government. For Māori leaders, this is more than a legal win: It is the beginning of a process of regaining the reciprocal relationship with the river that was lost in colonization.

In the United States, Linzey says, some three dozen communities in Oregon, California, Ohio, New Mexico, Colorado, Virginia, Pennsylvania, New York and New Hampshire have laws that acknowledge legally enforceable rights for ecosystems: the right to exist, flourish, thrive and regenerate. In addition, communities like Toledo, Ohio; Grant Township in Pennsylvania, and Pittsburgh are adopting bills of rights that establish the right to local self-government, the right to a healthy environment, the right to clean water, and protection for the local environment. This challenges the belief that nature is property, and the idea that state and federal laws prevail over local governance.

In Minnesota in 2018, the White Earth Band of Ojibwe passed a law in tribal court protecting the rights of manoomin (wild rice), the first law in the world recognizing that a specific species has rights. If the city of Duluth decides to acknowledge the existence of the rights of the St. Louis River Estuary and the wild rice that grows there, it would be the first municipality in the U.S. to recognize rights for an estuary through local law, by amending the city charter.

Mixed success

Not everyone, of course, agrees with the Rights of Nature approach. Some argue that nature is an object and should not have rights. Others contend we should fix how we apply rights law to humans before bringing nature into the picture.

Where it has been adopted, the approach has met with mixed success. The world’s first legal test of the Rights of Nature approach took place in Ecuador in 2011. The Provincial Court of Justice of Loja ruled in favor of the Vilcabamba River as a plaintiff on the basis that the river has the right to flow and be healthy.

In the U.S., Lake Erie gained legally enforceable rights for nature in 2019 through a citizen group called Toledoans for Safe Water. However, Drewes Farms Partnership, an Ohio agribusiness, is challenging the law, contending that the city of Toledo didn’t have the authority to adopt it. Some environmentalists worry that even if the law stands, the designated guardian may not have the resources to defend it, especially when faced with corporations that have much more money to dedicate to a lawsuit.

Whole new world

However it plays out, Rights of Nature offers a potentially transformative approach to environmental advocacy by offering an enhanced potential for alliance and coalition building. Currently, environmental battles are often fought on a case-by-case basis, with individuals and organizations lining up with a specific cause, rather than pursuing the bigger aim of protecting an ecosystem as a whole, now and into the future. By bringing together people who have previously worked separately to protect not only against the next looming threat, but to establish rights that can be enforced into the future, Rights of Nature could open the door to a whole new world of environmental protection.

DeFoe says that’s the beautiful part — the connections and community that come from doing this work together. “We can each have our own focus,” he says, “with the same goal: Life. Clean water.”

Emily Levang wrote this story as a participant in the Ensia Mentor Program. The mentor for the project was Hillary Rosner.

Comments (9)

  1. Submitted by William Hunter Duncan on 02/14/2020 - 11:17 am.

    Every living thing has the innate right to exist. Surely in acknowledging such rights for birds, bees and waterways, we will begin to take more seriously the right of humans to be free from coercion, domination and abuse.

    The alternative seems to be the status quo, where the only right that seems to exist sometimes is the right to make money. That a 40 year old Superfund site still pollutes the St Louis River should call out the lie of future ecologic protections, of the planned new mining in the Arrowhead. Adding Superfund sites that are like eternal money pits is a peculiar kind of idiocy, and should be widely rebuked and condemned.

    • Submitted by Delbor Raymondo on 02/15/2020 - 11:43 am.

      And the Red River has the right to flood Fargo, and the Mississippi has the right to flood New Orleans and shouldn’t be unjustly confined by dams and levees. That is cruel to the free flowing river. Oh and all those locks and dams have to go as well.

      • Submitted by William Hunter Duncan on 02/15/2020 - 05:28 pm.

        The rivers were there long before the cities. That cities were built on flood plains is the arrogance and foolishness of humans, not some condemnation of the rivers. The locks and dams have proven to exacerbate the worst floods. We work against nature at our peril; working with nature, nature and culture would thrive.

  2. Submitted by Bob Barnes on 02/14/2020 - 12:08 pm.

    Humans have rights. Animals and plants and objects do not. They are incapable of speaking or even reasoning/thinking on a level above basic self preservation instinct. This is one of the worst ideas I’ve ever read (and I’ve read some pretty bad ones).

    • Submitted by Robert Ahles on 02/15/2020 - 12:56 am.

      Suprise Bob Barnes, humans are animals. Some humans don’t think so well.

      • Submitted by Bob Barnes on 02/18/2020 - 01:51 pm.

        Humans are mammals, not animals. Big difference. We are able to reason and think logically. We can build complex machines etc…animals cannot. They have no rights by human standards…and most especially not for rocks, trees or rivers et al.

  3. Submitted by Robert Ahles on 02/14/2020 - 03:45 pm.…/trump-clean-water…

    January 23, 2020

    The Trump administration has completed its rollback of environmental protections for streams, wetland and other bodies of water, a process that has stripped pollution safeguards from drinking water sources used by around a third of all Americans.
    Clean water protections strengthened under the Obama administration have long been targeted by Donald Trump, who has called it a “very destructive and horrible rule”.

  4. Submitted by Jon Kingstad on 02/16/2020 - 12:39 pm.

    The “States”, separately and corporately “United”, have enacted a great deal of legislation that had the intention, if not the effect, of doing just what this article says but “rights” and laws in general are typically not self-enforcing. The National Environmental Protection Act is one of many examples of laws which were aimed at preventing projects that destroyed the environment. In my experience, the legal profession and the judiciary have done a masterful job of emasculating that law by generating huge reports and the ways corporate projects are avoiding or mitigating environmental damage. The Enbridge pipeline projects are recent examples of this where not one of the massive NEPA EIS’s even mentioned the carbon emissions or the damage to water resources from the expansion of the tar sands mining areas. Corporate profits trump environment and ecology every time.

  5. Submitted by Paul Stolen and Stolen on 02/26/2020 - 10:35 am.

    I believe this movement was triggered by the book “Should Trees Have Standing?”, by Christopher Stone. It was published in 1972. The 3rd edition was updated and published years later. It is a completely fascinating book. “Standing” is the legal concept that, if granted, allows one the ability to sue. The book reviews the history of the expansion of “standing”, estpecially regharding minorities and women. I still recall the quote from a Wisconsin Supreme Court opinion in about 1885 or so denying woman standing, saying, among other things, “……women are like big children.” Its the kind of book that teaches us beyond its central premise, and should be used in any sort of environmental (and others) class, whether in high school or college.

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