Environmental Regulation has failed us. Yes, you heard me. Not might fail us. Not is failing us or will fail us. It already has. The very system that was designed to “protect” our air, water, soil, our person is the same system that legalized the harm in the first place. But we were still told to trust it.
And because of this, people keep telling me that Rights of Nature is a nice idea, but one that will never happen.
Well, I hate (love) to break it to you, but it already has.
In episode four of our Rights of the Lakes podcast, I sat down again with Tish O’Dell and Ben Price of CELDF (Community Environmental Legal Defense Fund). They are two community rights pioneers with the organization. We traced the Right of the Nature movement from its very first legal foothold to where it stands today, across multiple continents, in multiple constitutions, right now as I type. From Ecuador to India to New Zealand and more.
Where It Actually Started
I was surprised to learn that the Rights of Nature movement started right here in the United States. I though Ecuador was the first location. It was the first country to enshrine it into their constitution, but the movement has its roots right here in the good ole’ US of A. I find that quite ironic. A country that fights against even recognizing climate change is the one where Rights of Nature took a foothold.
Here’s the story.
In 1972, a law professor by the name of Christopher Stone posed a thought experiment to his students at USC during the middle of an actual fight between Roger Morton, then U.S. Secretary of Interior, Disney and the Sierra Club (Sierra Club v Morton) over a proposed ski resort and entertainment complex in the Sierra Nevada’s that Disney would develop. They had won a $35 million bid with the U.S. Forest Service to build in Mineral King Valley located in the Sequoia National Forest. Professor Stone’s question was simple: What if the ecosystem itself had legal standing? Not environmental protections that regulate how much damage is allowed, but actual rights. The right to exist outside of human law while having the right to be defended in the court of human law by people speaking on its behalf? He wrote an entire essay on the subject called Should Trees Have Stranding?
The fight between the U.S. government, Disney and the Sierra Club went all the way to the Supreme Court. The U.S. government and Disney won the battle in a 4-3 ruling (two justices recused themselves) stating that the Sierra Club lacked legal standing to sue because it couldn’t prove any of it’s members would be directly injured. But that wasn’t the end of the war. The Sierra Club was given permission by SCOTUS to amend their lawsuit to show exactly how its members’ recreational or aesthetic uses of the area would be damaged. So they did, and they refiled. Disney’s response was to scrap the Mineral King project. Then in 1978, Congress officially added the Mineral King Valley under the protection of Sequoia National Park.
But it was Justice William O. Douglas who referenced professor Stone’s thought experiment directly in his dissent. Justice Douglas argued that natural entities (like lakes, valleys, rivers, forests, etc.) should be granted legal personhood to sue for their own preservation in court.
Sit with that for a moment.
The entire modern legal framework for rights of nature exists because one law professor refused to let an idea stay theoretical.
Who says on person or one idea can’t change the world?
It took over three decades, but Professor Stone’s thought experiment became something more. In 2006, CELDF helped the small borough of Tamaqua, Pennsylvania pass the first Rights of Nature law in modern history. That fight was over a plan to dump river sludge laced with PCBs (polychlorinated biphenyls), mixed with coal ash containing mercury, into an abandoned strip mine where it would have most definitely leached straight into the community’s groundwater.
Two years after Pennsylvania’s success, Ecuador wrote the Rights of Pachamama (Mother Nature) into its national constitution. CELDF was invited to consult on that process, but as Ben stated: Ecuador had its own path there, rooted in an indigenous population with a relationship to the land that did not require a law to validate it. The law still stands today. However, the current Ecuadorian government is aggressively pursuing domestic policies targeting environmental activists and seeking to bypass environmental laws and constitutional protections to expand resource extraction. They’ve gone
as far as freezing bank accounts of indigenous and environmental leaders and labeling them “terrorists.”
The fight never ends, but the point I’m making here is that it only took two years. Two years from a borough in Pennsylvania, to an entire nation’s constitution. This is where the movement began.
The Trap Hiding Inside “Legal Personhood”
I’m going to be honest with you. I have stated many times if corporations have rights, then nature should too. It should yes, but not in the same way. These are not parallel claims. To be frank, corporations should not have personhood rights, they should have rights that are very limited in scope, especially limitations on usurping actual humans and bringing harm to nature. But nature, nature should have absolute rights.
Let me explain.
Ben stated that legal personhood is a “fiction.” Something that human law creates and then treats it as real. It’s the same type of legal fiction that is used to give corporations personhood rights in the United States.
New Zealand used legal personhood to recognized the Whanganui River and give it Rights of Nature. On the surface, it sounds like a win, right? A river recognized and protected by law, treated as more than property, and given legal standing in court.
But here is the problem with granting nature “legal personhood,” as Ben explains it. Personhood subordinates the river to human law instead of recognizing rights that belong to the river on their own terms. Legal personhood cuts both ways. It comes with the right to sue and be sued.
Tish explained it further. Imagine a community that has built up a restoration fund for a river already polluted by industry. Under the “personhood” framework, a corporation could turn around and sue that river to lost profits, going after the very money set aside to heal it. That is not hypothetical. That is exactly how our legal system already treats people and communities. Corporations sue people and communities for lost profits or threats to its business regularly. Just look at the Lake Erie Bill of Rights as one shining example on the mountain of absurdity. If a corporation will sue people and communities for lost profits, even though they have violated the rights of the people and communities, there is no reason to believe corporations would treat a river or Lake any differently.
This is an important distinction that every person reading this and every Great Lakes Basin community needs to understand. We are not trying to make nature into a corporation with better branding. We are working to recognize that nature holds rights inherent to itself. The right to flow naturally, the right not to be poisoned, the right to regenerate when harmed, independent of human law.
All Great Ideas Get “Co-opted”
Both Ben and Tish flagged something every one of us needs to be aware of and watch for. As the Rights of Nature movement grows, industry is moving in to hollow it out from the inside.
Tish gave the example of a Scottish beauty company, Faith in Nature, that put a seat for nature on its corporate board and is now selling a book about it. Sounds progressive, doesn’t it? Well, it’s not. It’s co-opting to make a buck. Out of ten board seats, nature gets one and a human still decides who fills it, and who represents nature. That is not “Rights of Nature.” That is a marketing play. Nothing more.
The same pattern shows up in legislation that calls itself Rights of Nature, or environmental protections while only protecting the human benefit of clean water. For example, say a developer wants to build a suit of vacation homes. Laws will be bent to benefit the immediate human benefit of that development, not natures, not the surrounding communities. The endpoint here is still extraction. It’s just dressed up in better language.
CELDF recently released their State of Rights of Nature report. It specifically names which developments are real and which are co-opted. They are also advising the Eco Jurisprudence Monitor to do the same on a global scale. If we do not name the differences out loud, the entire movement gets diluted into nothing and then “corporate personhood” wins.
This Is Not Theoretical For Us
Two social media posts I put out recently about data centers in the Great Lakes Basin Region went a little viral on two different platforms. And it did so with people who would never call themselves environmentalists. A few brought up the Lake Erie Bill of Rights in the comments. Others brought up the importance of the Great Lakes. Many commented that they do not want data centers here, full stop. People are starving for this conversation because they are starving to be heard.
Ben’s response to this is important to hear. Rights movements are not a “two-week fix.” People want to know what stops specific projects right now, immediately. The honest answer to this is usually nothing. Why nothing? Because
“The entire legal system was built to make harm legal and resistance to that harm illegal”
This is the upside-down reality we are forced to organize inside of. Don’t let it scare you into silence.
Data centers are going up across the Great lakes Basin region (and the country) in numbers that should alarm everyone. Most people talk about how they run on stolen water and by putting a massive burden on our electricity grid. They even talk about them buying up critical farm land. But what’s not talked about nearly enough is how they emit light pollution and noise pollution and that they are dependent on diesel generators that emit fine particulate matter, nitrogen oxide (NOx) and PM2.5. PM2.5 is a neurotoxin that behaves in the body like lead poisoning. Once you inhale it, it crosses the blood-brain barrier and the damage it causes becomes irreversible. Documented research shows the risks these centers create when it comes to lung development in children, let alone how they contribute to chronic and serious health issues in adults. Again, we are not talking in hypotheticals here. We are talking about permanent damage to children breathing this air right now, and the massive adverse health effects in adults, all legally sanctioned by the same politicians responsible for protecting them.
Ben put it plainly.
“If another country did this to us, we would call it an act of war. Because it is our own government issuing permits, we call it regulation.”
Where This Actually Goes
Two hundred fifty years ago, the first grievance listed in the Declaration of Independence was that the king stripped communities of the right to make laws for their own common good. That grievance spurred a revolution. That grievance has also never been resolved. Our federal constitution never recognized local community government, and it still doesn’t to this day. States routinely override the decisions their local communities make through preemption. Just look at Saline Township, Michigan. I’m talking to you Gretchen Whitmer.
As Ben so poignantly stated:
“if you do not have democracy where you live, you do not have it anywhere.”
And this is the real fight underneath all of this. Rights of Nature is not only an environmental movement. It is a movement for communities to claim the authority to govern their own communities instead of having that authority preempted by state and federal governments beholden to industry and industry alone.
As Tish stated, the global movement matters because it proves this is possible, but the work of Rights of Nature happens locally, where you live, where you can actually move something.
Forty million people live in the Great Lakes Basin region. Forty million. We are embracing a movement with twenty years of groundwork laid by people like Tish and Ben and organizations like CELDF.
We are forty million people who are done being lied to, who are tired of the spin, who are tired of being sacrificed for some far-off billionaires’ profits. This is our opening to bring about community rights where we live, and to defend the nature we are all a part of, together.
I will leave you with this: we are not passive beneficiaries of progress. We are the inheritors of a fight, and now, it is time to lead it.
Read our Rights of the Lakes Blueprint in partnership with CELDF. Join our Email list. Get involved and organize where you live. The Great Lakes are ours to defend, or they are ours to lose. The choice is yours.
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Watch Rights of the Lakes Episode 4 below. Episodes 1, 2 and 3 are also available if you are new to this series. Be sure to Subscribe, Like, and Share to help us reach more people