Home / General / Should Nature Receive Legal Standing?

Should Nature Receive Legal Standing?

Comments
/
/
/
425 Views

Such is the question offered by environmental historian Adam Sowards. Based around a 1972 William O. Douglas dissent saying that nature should have legal standing in environmental cases, as opposed to the interests of the members of environmental organizations (for instance).

And so it seems unlikely, at least for now, that Douglas’ vision of nature as an entity with the right to sue will manifest in our courts. But does that matter? It depends on your criteria. The aftermath of the Supreme Court’s decision in Sierra Club v. Morton helped establish standing for environmental organizations, thus facilitating environmental litigation. The court’s opinion did not extend that right to natural objects, but Douglas’ dissent nudged the courts toward recognizing nature’s rights. This perspective pointed the way, according to legal scholar Christopher Stone, toward a new “level of consciousness” for the courts.

And so the debate about nature’s standing then becomes a broader philosophical debate about law and what it can and can’t, or should or shouldn’t, do. Law is not intended to transform levels of consciousness or morality; it is a pragmatic discipline. As a practical matter, extending standing to natural objects may simply be unnecessary.

As a moral matter, however, the failure to acknowledge nature’s rights frustrates legal and environmental activists and surely would have disappointed (though not surprised) Douglas, who retired from the Supreme Court in 1975, after a debilitating stroke, and died five years later.

Today, global climate change, biodiversity losses and habitat fragmentation are creating unprecedented social and ecological problems. Environmental crises require serious changes in governance and legal systems and, arguably, in morality. When organizations such as the Earth Law Center work to “advance legal rights for ecosystems to exist, thrive and evolve,” or when Ecuador declares in its 2008 Constitution that nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes,” they are paying homage to Douglas’ -vision and implementing it in governing structures where law and morality may intersect.

Maybe it doesn’t matter all that much. After all, it’s not all that hard to establish that people have an interest in a sound or untrammeled or (describe how you want) ecosystem. But the lack of nature itself having legal standing does suggest how society prioritizes not only humans over other creatures but also development over the interests of the creatures displaced or destroyed by that development.

Interesting thought piece at least.

FacebookTwitterGoogle+Share
  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • I can see how enshrining nature’s rights in a constitution or a law would work (and have positive results in re: environmental legislation), but how could it have legal standing? Who would be empowered to petition courts on its behalf?

    (Obviously, this is a nitpick where the larger issue is the recognition in law and custom that humans are not the only beings on the planet with rights, but it’s a nitpick I’m curious about.)

    • Lee Rudolph

      Who would be empowered to petition courts on its behalf?

      Athens, Georgia, boasts “the tree that owns itself”, so there must be some body of case law. Not that I’d trust Georgian case law.

      • rea

        “We thought that we would never see,
        A suit to compensate a tree”

        (as a panel of the Michigan Court of Appeals once said . . .)

      • Brett

        I wonder if you could try that with a much larger parcel of land. “A Forest That Owns Itself”, so to speak. See how it stands up in court.

    • Hogan

      The Lorax, obviously.

  • LeeEsq

    This doesn’t seem like it will make a difference. Humans are still needed to initiate law suits and I don’t see how judges are going to change their rulings because nature has standing to sue. The judges inclined to protect the environment will continue to do so and those opposed will do so to.

  • Considering that a) Corporations are now people, too and b) estimates are that if companies were charged by Mother Nature, Inc for the natural resources they freely employ in manufacturing (air, sunlight for farming, and so on), the cost would be at least about equal to the global GDP, I’d say, oh hell yes it should.

  • Andrew

    “Based around a 1972 William O. Douglas dissent saying that nature should have legal standing in environmental cases, as opposed to the interests of the members of environmental organizations (for instance).”

    Interestingly Christopher Stone (who is cited in the article you link but only commenting on the dissent) apparently put the idea in Douglas’ head with his article “Should Trees Have Standing?”

    According to the preface to his book version of the article, Stone wrote the article for a symposium on law and technology for the USC law review of which Douglas was scheduled to write the preface, with the specific hope that Douglas would be receptive to the idea when the court was hearing Sierra Club v. Morton.

  • Incontinentia Buttocks

    Swamps are people, too, my friend!

    • toberdog

      actor212 already pointed out that corporations are people.

      Oh, you meant “swamps” in the sense of, “wet areas with an astonishing diversity of life.”

      • njorl

        Yes, he said swamp, not morass.

        • “Morass” in a thread started by Incontinentia Buttocks…you can’t get much more meta than that.

  • Derelict

    Gaming out the possible progression of suits and law that would flow from such a thing leads to either a Luddite dystopian future, or one in which a deus ex machine stroke of technological advancement miraculously starts undoing the damage humans cause. I tend to think the former is more likely.

    And, of course, there’s the question of Nature’s standing to sue for past damages. Can Nature sue to force a global cleanup of the Pacific plastic patch, for example? And if Nature is given standing, it should be able to demand an injunction on the burning of fossil fuels to stop climate disruption.

    • Just_Dropping_By

      It seems like there are jurisdictional and choice of law issues relating to the North Pacific Gyre even if the pollution is deemed to be a continuing trespass or otherwise not subject to a statute of limitations or repose.

  • Owlbear1

    They get a shout out in the Constitution but I’ve never seen them in court.

    Our Posterity.

    Does “The Future” have standing in any court anywhere?

  • Joe_JP

    Douglas wrote a lot about nature and saw it as valuable for human happiness. His dissent at certain points focused on those who benefited from nature and suggested the sorts of people who might litigate in the interests of nature:

    Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist, or a logger — must be able to speak for the values which the river represents, and which are threatened with destruction.

    Humane societies in Britain were given special powers to defend animals under early animal welfare laws. Can see some group being given authority to defend let’s say a whale in the whale’s name. I think there is added force in making the lawsuit about the whale or the river or the forest. Hunting and fishing can be used to help protect nature, e.g., but it is a somewhat different thing to directly concern yourself about the fish.

    Someone still will have to litigate in their names. The nexis Douglas spoke of can provide an opening.

    • toberdog

      This quote makes it sound like Douglas is thinking of the intangible benefits of “nature.” He was right, but the challenge we face now is far more profound and existential. We cannot forget that humans cannot exist on this planet without the natural web of other living creatures. The futures depicted in so many science-fiction movies of billions of people crammed into unending megalopolises(the endless apartments in The Fifth Element come to mind) will never happen.

      • Joe_JP

        From what I read, the instrumental value of nature seems to be what he was particularly concerned about, but the “existential” concern might have been addressed by him too. You point is well taken regardless.

  • rea

    Of course giving “Nature” standing rather begs the standing question (using “begs the question” correctly). Some human being has to be in court representing “Nature,” and it has to be someone we can trust to do the job properly, and there we are back again applying the standing rules.

    • Lurker

      In Europe, we have the Århus Convention, which requires that in any administrative proceeding affecting environment, construction or water use, NGOs need to have standing.

      In practice, as applied in Finland, it means that if you have a non-profit organisation the bylaws of which include the one or more of the following options: “The purpose of Society X is — to promote the conservation of nature / protection of environment / promotion of the conservation of cultural values / affecting the quality of the living environment”, then you also have standing. And because the cases relevant to environment are tried in administrative courts, suing authorities is dirt cheap: appeals to administrative court cost 90 euros, and subsequent appeal to the Supreme Administrative Court costs 220 euros, with no risk of having to pay the opposing side’s legal costs. (On the other hand, you cannot be awarded the legal fees, either)

      In addition to the legal standing of the private associations, there exists an office in the state regional administration which has the legal duty to sue local or national authorities if they make decisions contrary to environmental law. To protect it from outside pressure, the office is independent from the rest of the state regional administration.

      The third issue is the non-existence of the “unitary executive” theory. It is commonplace to see the environmental bureau of the regional administration appealing to courts against environmental permits of Defence Forces shooting ranges (and vice versa, the Defence Forces appealing against an environmental permit, demanding more relaxed environmental protection measures).

      Naturally, regardless of who makes the appeal against authority decision, the court applies the same statute law, so the private applicant and the overseeing environmental authority have about the same possibility of succeeding in their case.

      • Andrew

        “In practice, as applied in Finland, it means that if you have a non-profit organisation the bylaws of which include the one or more of the following options: “The purpose of Society X is — to promote the conservation of nature / protection of environment / promotion of the conservation of cultural values / affecting the quality of the living environment”, then you also have standing.”

        The U.S. Supreme Court reasons that if you can create standing by merely evincing an interest in something, that kind of defeats the purpose of standing as a limiting principle. Personally I’d like to see taxpayer standing (like you see here in religious freedom/establishment clause cases) extended to environmental cases, but it probably won’t happen anytime soon.

        “The third issue is the non-existence of the “unitary executive” theory. It is commonplace to see the environmental bureau of the regional administration appealing to courts”

        The unitary executive theory is a minority view, and even in that case almost always extends only to areas in which the executive branch has always had wide authority, most often foreign affairs, military actions, and national security. It certainly does not stop state-level agencies (or the states as a whole themselves) from bringing action against Federal agencies and other states; the EPA particularly is commonly sued by (and in turn sues) the states over environmental disputes.

        That

        • Lurker

          The standing I noted is not the same as tax-payer standing. It requires a non-profit association with suitable by-laws. Such an association has a legal existence only if it has been registered. Because the registration of a non-profit association, which involves at least three members making an application and then the Office of Patents and Registers checking the legality of its by-laws, takes some six months, the association needs to be already in existence when the case needs to be brought to court. (Typically, the authority decision needs to be appealed in 14 or 30 days.)

          Second, the association needs to have that an exact statement about its purpose to safeguard one of the interests I mentioned in the by-laws. Most associations that are not nature conservation organisations or similar lack such statements. And changing the by-laws requires usually two general meetings at specific intervals, with supermajority requirements for the decision-making, followed by the Office of Patents and Registers checking the legality of the new by-laws before they gain validity, which also takes some six months.

          So, the standing granted by the statute law is restricted to associations that are already in existence and which their members have meant to be able to appeal authority decisions before a specific case has come up. In addition, the association needs to be registered as a non-profit for idealistic purposes, preventing e.g. political parties, limited liability corporations, religious communities and cooperatives from having standing.

          This is very different from tax-payer standing.

          • Andrew

            I understand, you’re talking about a statutory creation that adds to the already-extant types of standing. I was making a separate argument, that in the US I would like to see a recognition of taxpayer standing for environmental cases.

    • Can’t the judge appoint a legal guardian, a la a minor child?

  • PSP

    Be careful what you wish for. Imagine James Watt appointing a coal executive as the GAL for Nature.

It is main inner container footer text