海角大神

Fed up with recurring, pollution-fueled toxic algae blooms, voters in Toledo, Ohio approved the 鈥淟ake Erie Bill of Rights.鈥� Among other things, the bill guarantees the right of the lake and its surrounding watershed 鈥渢o exist, flourish, and naturally evolve.鈥�

The new law, passed last month, is the latest sign of a growing movement to recognize the rights of nature. Advocates are pushing a transformation in how the law views nature 鈥� from something that鈥檚 merely property, existing for the benefit of people, to an entity that has inviolable rights of its own. It鈥檚 a view that detractors say could cause legal chaos, and proponents see as a natural evolution of both the law and the moral consciousness of our society.

鈥淲e need to change how nature itself is treated under the law, much like we need to change how communities are treated under the law,鈥� says Mari Margil, associate director of the Community Environmental Legal Defense Fund (CELDF), which advocates for rights for nature and helped draft the Toledo bill. 鈥淥ur legal system 鈥� and the legal system mirrored around the world 鈥� needs a fundamental shift. It鈥檚 not going to be enough to regulate fracking or algae blooming better. It鈥檚 a really critical change that鈥檚 needed. We see this as aimed at that kind of transformational change.鈥�

It鈥檚 far from clear, however, whether Toledo鈥檚 law can hold up in court. The day after the Lake Erie Bill of Rights was approved by voters, a farmer filed a lawsuit questioning its constitutionality.

鈥淚t gives Toledoans, every Toledoan, jurisdiction over almost 5 million people, and 490,000 businesses, and every government entity and the 35 northern counties of Ohio. That is far beyond the city鈥檚 authority,鈥� says Yvonne Lesicko, vice president of public policy for the Ohio Farm Bureau, which supports the farmer鈥檚 suit. Beyond the law鈥檚 unconstitutionality, she says, 鈥渋t鈥檚 never good policy to regulate by litigation.鈥�

Ms. Lesicko emphasizes that many farmers are already trying to adopt best practices to avoid runoff, and she believes lawsuits will only stymie those efforts and put farmers on the defensive.

Privately, even advocates of the law say they doubt it will survive a court challenge, but they view it as a long-term strategy that could be transformational over time. And, in various forms around the world, the concept that nature has rights is gaining momentum.

A fledgling movement

In the United States, several cities and towns have recognized rights for nature, particularly in Pennsylvania, where CELDF has actively advanced the concept. Pittsburgh adopted a nature rights provision in 2010 as part of a tactic to keep hydraulic fracturing out of the city. So far, though, no U.S. laws explicitly giving rights to nature have stood up in court in any sort of enforcement case, and most have been more general. Toledo鈥檚 is the first in the U.S. to grant rights to an ecosystem.

Internationally, the idea has gained more traction, with Ecuador enshrining the rights of nature in its constitution, and several countries 鈥� including Bolivia, Colombia, New Zealand, and India 鈥� recognizing rights of either specific ecosystems or nature more broadly (see sidebar).

In the U.S., however, critics maintain that rights of nature laws are inconsistent with our legal system.

鈥淲e鈥檙e a nation of laws and if we鈥檙e free to ignore those laws we have anarchy,鈥� says Kent Holsinger, a Denver-based attorney who specializes in land and water law. 鈥淚f you start inventing rights for trees and grass and rocks, that creates chaos, and it鈥檚 inconsistent with our system of government.鈥� [Editor's note: An earlier version misstated Mr.聽Holsinger's first name.]

Before rights of nature can gain a foothold in U.S. jurisprudence a more significant question will likely have to be addressed: how to define 鈥渘ature.鈥�

鈥淚f you did create this right and you didn鈥檛 define it very narrowly you would have the [legal] floodgates opening,鈥� says Jan Laitos, a professor at the University of Denver Sturm College of Law specializing in natural resources and environmental law.

Would it have to be a single living object, like a tree? Would it extend to a group of living objects, like a forest, or to inanimate objects, like a mountain? 鈥淲hat about a natural system like the climate? Could you bring a lawsuit on behalf of the planet鈥檚 climate which is being adversely affected by human beings? 鈥楾he Earth鈥檚 climate vs. Con-Ed,鈥� or something?鈥� asks Professor Laitos. 鈥淭hat could be one reason why we never want to create such a right. How do we limit it?鈥�

Do inanimate objects have interests?

Whether or not such rights are actually inconsistent with the legal system depends on how they鈥檙e framed. American law recognizes nature primarily as a property interest, and in the courts, the rights of nature movement comes down to an issue of standing, or who has the right to bring a case before a court. A famous 1972 article in the Southern California Law Review that argued for rights for nature posed the question explicitly:

鈥淚t is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either; nor can states, estates, infants, incompetents, muncipalities (sic) or universities,鈥� wrote University of Southern California professor of law Christopher Stone. 鈥淟awyers speak for them, as they customarily do for the ordinary citizen with legal problems.鈥�

The notion was tested in court in 1972, when the Sierra Club challenged an attempt by Disney to build a resort in Sequoia National Forest all the way to the U.S. Supreme Court. The justices rejected the suit, saying the Sierra Club had not shown there would be an injury. But in a famous dissent, Justice William O. Douglas made the case for why groups like the Sierra Club should be allowed to represent the interests of 鈥渋nanimate objects鈥� like trees in court.

鈥淭hose who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen,鈥� he wrote. 鈥淧erhaps they will not win. Perhaps the bulldozers of 鈥榩rogress鈥� will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?鈥�

For decades Justice Douglas鈥� dissent garnered little interest, and the high court has made it more difficult to meet standing requirements in environmental protection cases. (This term, the justices in favor of private landowners seeking to limit the protected habitat for an endangered species of frog.)

But the dissent has reemerged in recent years, and in a 2015 ruling in Pennsylvania, a judge sidestepped the question of whether a creek had standing, leading some experts to think that there could be an acceptable way for the rights of nature to be presented in American courts.

鈥淲hen that decision in Pennsylvania came out ... people began to think, 鈥楿h huh, this is something that might be workable, so long as we make it reasonable,鈥� says Hope Babcock, a professor at Georgetown Law.

Translating stewardship into law

One option would be to establish a limited guardianship, where 鈥渘ature鈥� is represented by judicially vetted and approved groups. For people who lack an ability to represent themselves, Professor Babcock adds, guardians are 鈥渁 time-honored concept in American law.鈥�

Mary Wood, a professor at the University of Oregon School of Law, argues that there鈥檚 another way for nature鈥檚 rights to mesh with U.S. law, using the public trust doctrine: the concept that the government holds some resources in trust for the public. It鈥檚 a concept that goes back to ancient Rome, and that has been held up in numerous instances in U.S. courts. And, while Professor Wood notes that some rights of nature advocates aren鈥檛 comfortable with it because it鈥檚 grounded in property law, she says the doctrine ultimately declares that some resources are so crucial to society that they can鈥檛 be privatized.

鈥淩ights of nature needs the public trust standards to be viable in court,鈥� says Professor Wood. 鈥淭he rights of nature cannot be just an appeal to an awakened human sensibility. To have traction, it has to be enforceable in court, and it has to be recognizable in court.鈥�

It remains to be seen how Toledo鈥檚 lawsuit will play out 鈥� and it seems unlikely that the current courts in the U.S. are ready to recognize the lake鈥檚 rights in the way they鈥檙e written. But for advocates, it鈥檚 a chance to illustrate the failures of the current regulatory system and, they hope, to move the concept forward.

鈥淲e can鈥檛 rely on the EPA to do anything at this point,鈥� says Crystal Jankowski, a Toledo mother and graphic designer who helped push for the bill of rights with Toledoans for Safe Water, a grassroots organization. Ms. Jankowski was in the hospital giving birth to her daughter in 2014 when one of the water crises hit the town, and hundreds of thousands of residents were told not to drink their water for two days.

Voters approved the law, she notes, despite a barrage of attack ads opposing the measure, because residents were so fed up. And in the weeks since the law was passed, she鈥檚 had communities across the country reach out wondering how they could pass similar legislation. 鈥淭his is not an isolated incident,鈥� says Ms. Jankowski. 鈥淭his is a growing movement.鈥�

Professor Wood concurs that our relationship with the natural world is undergoing a shift. The rights of nature movement, she says, 鈥渞epresents a moral awakening that is truly global,聽a recognition that human destruction of nature is having horrific聽consequences not only to the human species but to all of nature. The聽human conscience suddenly feels responsible.鈥�