Should Nature Have Rights? Exploring a Provocative Question

Here’s a piece I wrote some time ago “in partial fulfillment of the requirements” of a course I was taking. If you’re hoping for some spiritual or theological reflections from me, this will not scratch that itch. While I do think the question of whether or not nature should be granted “rights”  is of theological and pastoral significance, that isn’t the lens I’m using here. I’m posting this piece as an invitation to reflect on what I think is a provocative and important question. (I’ve removed the footnotes below, not to avoid attribution but to make it a bit less tempting to borrow.)  —

When we hike a mountain or swim in a lake, do we have any obligations to that mountain or that lake? Do human beings have any obligations to non-human organisms? Do we have duties toward ecosystems? We often talk about our obligations and duties toward other people, even to generations long-dead or to those not yet living, but what about nature? Questions like these can take us down any number of moral and legal trails. The purpose of this essay is to explore one in particular, that is, the question of what it would mean for nature to have rights. Obviously, such a topic would be better dealt with over hundreds of pages instead of the fifteen or so used here. Therefore, what I will attempt to do is simply to survey the matter, situating it in the present context and highlighting some of the key challenges and benefits of the concept.

The very idea of granting nature legal standing might seem absurd at first blush. What I will try to show here is merely that it is not. There exist certain legal trajectories, some having presented themselves over centuries and some only recently, that demonstrate what it could mean for nature to have rights. Though undeniably radical, the idea is not as far-fetched it might first appear.

Before embarking further in our exploration of this idea it is important to define a few key terms. First, when the term nature is used throughout this essay, it will be used to refer to non-human entities, both living species, ecosystems, and geographical features like rivers and mountains. Making a distinction between nature and humanity is deceiving in one sense. It makes it appear as though humans are something other than organisms who depend upon ecosystems. Nevertheless, the distinction is helpful when it comes to the discussion of whether or not rights may be accorded non-human entities. Second, when the term standing is used, it will be used to mean something along the lines of the definition Alan R. Mabe unfolds in his encyclopedia entry. Though, the concept of standing is dependent on a number of other significant terms, it essentially means that an entity has the right to have its interests heard in a legal forum. Entities with standing possess the relevant interests, credentials, and characteristics to sue another party in order to be restored in the face of damages that other party has inflicted upon them. In most jurisdictions around the world, entities that are not persons or collectives of persons cannot have standing. A third, and final, term that we must define at the outset is a right. It is easy to get lost here in the ambiguity that swirls around the various types of rights one might have. However, in this essay the term will refer to a claim one entity can assert against another. That is, if one entity has a right to something then other entities have the duty to (at least) not infringe upon that right. Beluga whales clearly do not have a right to a driver’s license, but they just might have a right to continue to exist. Were this latter right to be infringed upon, we might argue that beluga whales should be granted standing in a court of law to have their existence rights restored.

There is a large and quite fierce debate about the origins of rights and whether or not rights-talk does as much to promote social welfare as it does to grab newspaper headlines. I admit to not being particularly convinced that rights are an inherent features of the universe’s fabric. Likewise, I think communitarian critics of rights-talk have something important to say about the way the centralization of this concept in contemporary moral discourse has energized the social fragmentation and individualization of the modern word. Whether this fragmentation and individualization is a cause of our contemporary environmental problems or not, it clearly is at least a co-symptom of the same disease. I say this merely to make the point that the following discussion of nature’s rights may not be the only way to safeguard the flourishing of nature.

One can easily imagine a world where our sense of connection to nature was strong enough to prevent serious degradation of the biosphere. However, the world we actually live in appears to be one where limits are rarely upheld (or even acknowledged) except where they cross the boundaries of another entity’s rights. When that happens individuals are (usually) granted standing in legal forums and the possibility of restitution is laid open. The concept of rights has clearly accomplished much in the modern world, and the discussion of whether or not nature should have them is itself a recognition of how much positive work the concept has enabled.

The Emergence of a Theory of Nature’s Rights

In various traditions around the globe natural entities have long been thought of in terms that are essentially personal. The notion that humans might have duties to them is hardly new. However, serious contemporary consideration of the matter can be linked to a paper that appeared in the early 1970s. In the fall of 1971, law professor Christopher Stone was teaching an introductory course on Property Law at the University of Southern California. Near the end of a lecture on the way law has changed with respect to what could be owned and who could own it, Stone sensed that his students were getting restless. To re-engage them before the end of the class, he allowed himself to riff on the subject a bit. He wondered aloud what would happen if nature was conceived of as not just an object to be owned but as a subject with rights. What if rivers, lakes, and trees had rights? What sort of a change in the zeitgeist would such a development require? What would be its implications? The hurdle, Stone knew, was that natural ‘things’ were protected under the law not because they had rights of their own, but because damaging them might infringe on the rights of some person. Stone soon found himself wanting to demonstrate that granting rights to natural entities was not incoherent.

Stone phoned the reference librarian at the university to see if any pending cases might serve as a context for such a thought experiment. The librarian pointed Stone to Sierra Club v. Morton, a case about to go before the Supreme Court. In that case the court was asked to decide if the Sierra Club had standing to oppose development on a portion of U.S. Forest Service lands known as Mineral King. Stone saw the case as an opportunity to test his argument: “[W]hy not designate Mineral King, the wilderness area, the plaintiff ‘adversely affected,’ let the Sierra Club be characterized as the attorney or guardian of the area, and get on with the merits?” Stone wanted his thinking on the matter to have a chance to impact the outcome of the case.

The timeline was tight. However, Stone connected with the editor of the Southern California Law Review, which happened to have an upcoming issue in which the preface was scheduled to be written by one of the Supreme Court Justices. Though the journal issue would not be published before the case was decided, the justice would need to read the draft manuscript before publication in order to perform his writing duties. Stone was able to have his thought experiment included in the journal issue, even though it deviated slightly from the theme of the other articles. As it turned out, the majority of the court did not find the Sierra Club’s argument convincing. However, in his dissenting opinion Justice William Douglas wrote that: “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.” In support of his argument, Justice Douglas referenced Stone’s paper.

The core of the argument that Stone put together ran something like this. He began by observing that in the past children, women, and racialized persons did not have rights. They were considered property and could be disposed of as the owner wished. However, this had clearly changed for the better. What were once considered ‘objects’ were now considered ‘subjects.’ Not only had the collection of rights-bearing persons expanded to include these people, but it had also expanded to include trusts, corporations, joint ventures, municipalities, nation-states, and other entities. In truth, the expansion of legal personhood beyond individual people had begun in the medieval period when jurists developed concepts that allowed them to conceive of entities like the church and the crown having an existence that transcended the individual who occupied the seat at any particular time.

Stone’s point was not that rivers or polar bears were people in the same way as a homo sapiens. Rather, he was trying to advance two significant claims regarding the expansion of rights. First, the various expansions of rights, moving persons from the category of objects to subjects, had rarely seemed to be an obvious development. Stone wrote, “Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable. . . . The fact is, that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable.” Second, Stone was arguing that there was no reason to think that the expansion of rights had finally reached its apotheosis. If the object-to-subject legal transition had been made before, why could it not happen again? Why not give some sort of legally actionable rights to nature?

In the same essay Christopher Stone advanced a description of how his idea could be put into practice.  Economists have long argued that part of the cause of environmental damage is a lack of clear property rights and that clarifying (or creating) relevant property rights would create economic value. Stone sensed that something similar might be true if nature itself were granted these rights. It’s important to recognize that Stone was not claiming that nature should have “every right we can imagine, or even the same body of rights as human beings have.” He didn’t even think that every natural entity should have equal rights. After all, humans have rights in varying degrees and most of our rights are note absolute. Our right to vote, move freely, or drive can be taken away. However, having rights means that infringement upon these abilities cannot happen without warrant.

One differences between nature and the various other entities that have previously been granted legal rights is that as far as we can tell, nature will never be able to advocate for itself in a legal forum. Therefore, Stone suggested that nature would need to have appointed guardians in a manner similar to minors or incapacitated humans. These guardians would not only advocate for nature in the courts, but they would also ensure that the relevant natural entity would be the “beneficiary” of the judgement.

Christopher Stone’s work is far from the only argument for nature’s rights, yet it remains a cornerstone of the discussion. A second, more recent and less technical contribution comes from a Catholic priest named Thomas Berry. Berry is known as a cultural historian who cultivated a deep concern for the way human communities have understood their relationship with the earth. Legal scholar Peter Burdon sees Berry’s project stemming from the priest’s assumption that the many and varied incidents of environmental damage and mismanagement point to a serious underlying problem. This underlying problem is the Western legal system’s overwhelming concern for the advancement of human beings and the consistent relegation of nature to the status of an object that can be divided and owned.

Berry’s response to this problem, spread across multiple books, is to re-narrate the fundamental story we tell about ourselves and our cosmic home. Berry tries to move beyond the traditional anthropocentric perspective toward a broader account of the universe’s unfolding, which he refers to as “cosmogenesis.” The function of this new story is to relativize humans by placing them with a much larger account of life, thereby encouraging them to take natural processes into account. Berry wants to place law within this broader context and to widen the legal frame so it structures not only human relationships, but also relationships between humans and the earth.

Berry’s 2006 book Evening Thoughts contains his most direct assessment of the need for radical legal development. Berry suggests that contemporary law has grown out of an era when the most pressing worry was authoritarian monarchs encroaching on personal freedoms. Therefore, the legal system goes to great lengths to delineate the boundaries of personal property, yet it has little to say about the way human life ought to fit within the more basic laws of nature. Berry puts it this way: “Since the continuation of our industrial processes depends directly on the legal system authorizing these processes, we must reconsider our legal system in its deepest foundations.” Berry believes that human flourishing depends on the recognition of nature’s rights. He enjoins the legal profession to shift its efforts from serving industrial interests to serving the “survival of the earth in the fullness of its grandeur.”

Thomas Berry is idealistic. However, like Stone he is not suggesting that nature should have the same rights as human beings. All rights in Berry’s view should be role-specific. Just as human rights are for humans, so rivers should have river rights and birds should have bird rights. These rights very qualitatively and are not absolute. Across this variance, though, runs a common pattern. Berry believes that every entity in the earth community, whether alive or not, has three basic rights: “the right to be, the right to habitat . . . and the right to fulfill its role in the ever-renewing processes of the Earth community.” These rights, and any others an entity might have, are grounded in the source of existence—the universe itself.

Since Thomas Berry is not a legal practitioner, readers could be forgiven for being dubious of the impact of his thought. However, there is a direct line of influence between Berry’s work and the leading international advocate for the rights of nature, an organization known as the Global Alliance for the Rights of Nature. One of that organization’s central publications, the book Wild Law, traces its genesis directly to the work of Thomas Berry. On that account, it’s not surprising that the Global Alliance for the Rights of Nature defines the rights of nature in terms that are already familiar to us: “Rather than treating nature as property under the law, rights of nature acknowledges that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles.” Though Thomas Berry died in 2009, his work itself persists and continues to give evidence of its generativity.

Beyond Theory

If we return once again to the goal of this essay, which is to explore what it would mean for nature to have legal rights, it is evident that we have not yet completed the task. Though the work of Christopher Stone and Thomas Berry is influential, it really only helps us imagine what standing could mean for nature. Though both of these authors offer a concrete account of the rights nature might possess and, in Stone’s case at least, suggest some key elements of the idea’s operationalization, it remains difficult to see how it could actually happen. Questions remain at two levels: First, what impacts would such a development have on the rest of the legal tapestry? Is it even possible for nature to have standing and for the rest of modern law to not be torn apart? Second, how could such a law, or set of laws, come into being? Would any legislature really approve a statute that implicitly limits the rights of humans by giving rights to non-human entities? These questions are not a mere quibbling around the edges, they cut to the pith of the matter. If granting nature standing is to be more than starry-eyed campfire talk, it must possess the capacity to be operationalized.

The good news, for the sake of our exploration at least, is that this has already happened in several places. In 2006 the Tamaqua Borough in Schuykill County, Pennsylvania passed a law recognizing the rights of nature. Some observers have said that this was the first jurisdiction in the world to take such a measure. Tamaqua Borough’s ordinance stated that it was unlawful to “interfere with the existence and flourishing of natural communities or ecosystems, or to cause damage to those natural communities and ecosystems.” Violation of the ordinance would allow residents of the borough to sue on behalf of the affected ecosystem, with damages paid to the borough and used for restoration. Other municipal ordinances followed Tamaqua’s lead. In 2019 an ordinance was passed in Toledo, Ohio that granted rights to Lake Erie. The Yurok Tribe, on the U.S. west coast, passed a resolution later in the same year that granted rights to the Klamath River. Whether or not municipal or local laws like these survive court challenges remains to be seen, though it seems unlikely.

A 2017 decision of the High Court in Uttarakhand state in India had potential to have a much wider impact. In an effort to force cleanup of the highly polluted Ganges River and its prominent tributary, the Yamuna River, the court conferred legal personhood on the river system. Also in 2017, the Constitutional Court of Columbia declared the Atrato River basin to be a legal entity with rights to “protection, conservation, maintenance, and restoration.” To advocate for the rights of the river a joint guardian, comprised of both governmental and indigenous representatives, was created. These cases attracted widespread attention, both because of their relative novelty and because of the high level at which the laws were being worked out. The enhanced legal status of the Ganges and Yamuna Rivers did not last long however. Despite the sacred status of this river system, it was only several months before the Supreme Court of India reversed the decision on the grounds that the river’s status as a legal person, and the widespread liability it created, could not be sustained by the legal system itself. The court anticipated a flood of litigation.

As significant as the examples from India and Columbia are, developments in New Zealand and Ecuador will likely serve as the most interesting trials for nature’s enhanced legal status in the coming years. In 2017 the Whanganui River in New Zealand became a legal person. This unique status was anchored in the river’s connection the Whanangui Iwi (a Māuri tribe) who view it as an ancestor. While this decision was roughly concurrent with those in India and Columbia, the roots of this case go back more than a century and constitute the longest legal battle in New Zealand’s history. Over that time, the Whanganui Iwi repeatedly raised legal challenges to the Crown’s management of the river. The government responded by passing laws to legalize its actions and fend off the claims of the Whanangui Iwi. At the center of the dispute was the question of whether or not the Crown had overstepped its treaty rights in staking any claim on the river whatsoever. The courts found that it had and appointed a committee to outline a way forward. The process led, not to the river being returned to the Whanganui Iwi as a possession, but to a recognition that the river has its own rights. The Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017 stated that the “Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements” is an “indivisible and living whole.” The legislation declared this entity, known as Te Awa Tupua, to be a “legal person” with “all the rights, powers, duties, and liabilities of a legal person.”

There are a number of interesting things about this piece of legislation. However, the most significant is surely the way in which the legal personhood of the Whangnaui River rests within a braiding together of common law and the legal traditions of the Whanangui Iwi. New Zealand’s recognition of the limits of its treaty powers forced an innovative approach. Though this braiding of Indigenous understandings into a western legal framework is not entirely novel, the Te Awa Tupua Act shows the potential such an approach might hold for environmental legislation. For example, Canada purports to value Indigenous knowledge and requires this to be taken into account in the environmental assessment of major industrial projects and the status of species at risk. It is not difficult to imagine that such knowledge, if taken seriously, may undercut some of the colonialist assumptions about which entities can be subjects or objects, what can own and what can be owned.

If New Zealand’s Parliament has demonstrated that modern legislation can, at least initially, accommodate laws that grant nature rights, the country of Ecuador is demonstrating how the concept might be advanced one step further. Mother earth, or ‘Pachamama’ in a local Andean language, was given legal rights in Ecuador’s new Constitution of 2017. The legal scholar Hugo Echeverría reports that lawmakers debated whether the best approach to environmental protection was to simply strengthen the existing legal framework or to take the novel step of granting rights to nature. They chose the latter.

Ecuador’s constitution refers to nature in several places, but it is Article 71 that requires respect for Pachamama’s existence and “for the maintenance and regeneration of her life cycles, structure, functions and evolutionary processes.” While this wording comes to us through translation, it certainly looks like we see the influence of Thomas Berry. It isn’t surprising, then, that Echeverría tells us that, while the “contribution of indigenous legal principles” is “fundamental to the recognition of rights to nature” in the Constitution, there are also other sources. Ecuador is a signatory to some of the most important international treaties on the environment, including the Convention on Biodiversity and the World Charter for Nature. It may be that Ecuador serves as a global test case for the rights of nature.

Though the constitutional provision regarding Pachamama is only a few years old, there have already been several cases that have “activated the rights of nature.” A substantial analysis of these cases is beyond the scope of this paper; however, at the very least the Ecuador example shows that granting nature rights is not, in the judgment of that set of lawmakers at least, incommensurable with human rights. To the contrary, Echeverría believes that Ecuador may well demonstrate that granting rights to nature will prove to enhance the rights of humans who depend on nature.

Conclusion

Is granting nature standing in legal forums realistic? Well, this paper has shown both that a theoretical argument can be made for such a move and that some jurisdictions have already taken that step. The idea is no longer the hypothetical it seemed in the 1970s. A fuller consideration of these sorts of precedents would need to include some of the more common forms of legislation the trend in this direction, even though they don’t explicitly acknowledge nature’s rights. This would include laws that mandate the protection of species at risk or safeguard biodiversity. While these sorts of laws don’t grant nature rights, they do require some of the things that granting nature rights is intended to do: preserve the existence, habitat, and reproductive capacity of species.

The advantage that granting nature rights has over these more mainstream frameworks is chiefly that they would allow nature to have standing in court. It could then be established that humans, and their corporations, have a broad duty to ecosystems and species. This would encourage a balanced approach to economic activity that accounted for the survival needs of species long before they became at-risk. And this points to the fundamental advantage of granting rights to nature: such a move would provide a legal framework for human activity that more closely matched human and natural economies.

There are, however, some weaknesses in the way the rights of nature are currently being pursued. It’s important to note here that this movement is highly diverse and just as a wider net would likely capture more good ideas, it would also pull in more bad ones. For that reason my critique here will be limited to literature referenced above.

The first weakness that must be mentioned is the propensity some advocates of nature’s rights have for a sweeping dismissal of contemporary law. Thomas Berry wants to entirely reorient jurisprudence. Thus, Cormac Cullinan, following Berry, makes the observation that the cosmos and life on earth can be characterized by three themes: differentiation, autopoiesis, and communion. These themes in turn form a macro law Berry and Cullinan believe contemporary jurisprudence must align itself with. Berry and Cullinan refer to these themes as “cosmogenetic” principles. The problem is that these themes are much too broad to sort good law from bad. They are unable to adequately differentiate between behavior that promotes the welfare of humans and nature from behavior that harms it. It isn’t clear, from a foundation such as cosmogenetic principles, why predator-prey relationships would be allowed in nature but not among humans. The Berry stream of thought is helpful in the basic rights it asks us to grant nature, but unhelpful in the fundamental reworking it expects. Developing law anew from first principles, or “comprehensive doctrines,” will go nowhere in pluralistic societies.

This points to a second shortcoming of some of the discourse around nature’s rights: the assumption that it requires a prior commitment to non-anthropocentrism. There is simply no way to grant nature rights without the rights-granters doing the granting. One could respond to that claim by saying that nature already has rights and all human beings need to do is acknowledge them. However, in the case of nature, which cannot speak for itself, granting and acknowledging are functionally equivalent. As far as I can see, the legal enterprise is a human-centered one. The strength of some of the views discussed above is that they show how granting rights to nature, or giving natural entities the status of legal persons, need not imply a flattening out of rights or a flattening out of all rights-holders. This helps the concept pass the smell test of basic feasibility. A legal system that remains anthropocentric (humans must remain the lead actors after all) can evolve to account for more than human interests. However, this comes as we take adequate ownership of our role in lawmaking, not from trying to write ourselves out of the center.