Monday, October 02, 2017

The Rights of Nature

Update: A lawsuit in Denver's federal district court was filed on September 25th, a commonplace occurrence, no doubt. But this case is different. It names the Colorado River as plaintiff and seeks to hold the State of Colorado through is governor liable for violating its right to exist, flourish and regenerate. Conservationists know that the river has been grossly misappropriated and abused by man's development activities. It's waters are so removed for irrigation and urban uses that they no longer reach the Gulf of California, which they did for six million years. Then in the 1920's states of the western Great Basin began divvy the waters to serve the growing West. The river now provides precious water to 30 million people in seven states and Mexico. Climate change will reduce the amount river water even further by 5-20% over the next forty years. In essence the suit, filed by Denver attorney Jason Florez-Williams, seeks to give the Colorado River personhood to protect itself. A conservation group known as Deep Green Resistance is appearing as the river's "next friend" in court. Commentators give the suit a slim chance to none to prevail, but its mere filing indicates the growing popular desire to give Nature legal standing in American courts.

{18.09.17} Der Donald thought he was being clever when he attempted to justify his withdrawal of the United States from the Paris Climate Accord by saying he represented Pittsburgh, not Paris. The statement was unfair to the city of Pittsburgh, once a very dirty and polluted steel town, that has literally "cleaned up its act" since the days of US Steel and Andrew Carnegie. [photo, below] Significantly Pittsburgh is the first US city to recognize the rights of nature under law. Rather than treating nature as if it were inanimate property and not a living organism, the doctrine of the rights of nature recognizes that nature in all its forms has a right to exist, persist and regenerate. This is a doctrine that is very familiar to indigenous peoples all over the world who understand nature to be a living entity, but is just beginning to receive attention and respect it deserves in western jurisprudence.

Pittsburgh yesterday: what Donald has in mind?
How did a former steel town become a leader in the recognition of the rights of nature? It began with a community based effort to stop hydraulic fracking within the city limits of Pittsburgh. The city sits on top of the Marcellus Shale formation which is being exploited by oil and gas companies. In order to bring the oil and gas to the surface from one mile down, the shale has to be fractured with high pressure water laced with toxic chemicals. The process is very polluting since it releases carcinogens like benzene, heavy metals, and radioactive ores. It has been proven to cause contamination of ground water and earth tremors.

A city councilman, Doug Shields, led the fight to pass an ordinance prohibiting drilling in Pittsburgh when a local Catholic church signed a lease to permit drilling for natural gas beneath their cemetery. Written by the Community Environmental Legal Defense Fund, it elevates the rights of community and nature over corporate rights, challenging the state to pre-empt Pittsburgh's concept of home rule. The ordinance in several of its provisions denies the legal "personhood" of corporations seeking to drill within the city's limits. The ordinance passed the city council unanimously and was signed into law in 2010.

Pittsburgh was not the first US jurisdiction to recognize nature's legal rights. That honor goes to Tamaqua, PA a rural community that was literally being dumped on with toxic sewage sludge. Abandoned coal pits in the area were being used for the disposal of waste solids some of which came from New York and New Jersey and contained hospital and industrial wastes. A spike in diseases such as Alzheimer and cancer were detected. The borough had enough: it passed an ordinance asserting its community and banned the dumping. Under Section 7.6, "natural communities and ecosystems shall be considered persons for the enforcement of civil rights".

The doctrine of nature's legal rights has been recognized and enforced in other countries.  In April 2017 an Indian high court granted legal personhood to the Ganges and Yamuna rivers, both considered sacred by Hindus.  Similarly a New Zealand court recognized the legal personage of the Whanganui river, considered an ancestor by the Maori people. In 2008, Ecuador adopted a constitutional amendment that acknowledged nature’s right to “exist, persist, maintain and regenerate its vital cycles.” Bolivia followed three years later with a similarly worded law.Both refer to Pachamama, the Quechua and Aymara word for “nature” or “Mother Earth.”

In the United States, legal commentators trace the origin of the doctrine to an influential 1972 law review article by USC professor Christopher Stone, Should Trees Have Standing?, but Native American have held similar sacred beliefs for thousands of years.  Former Chief Justice William O. Douglas was obviously influenced by the concept of nature having legal rights when he wrote that natural 'objects' should have standing to sue through their representatives to preserve their existence when injury is "the subject of public outrage".

Corporations have had their personhood enshrined in US jurisprudence for two centuries.  US Person asks: is it so outrageous or radical to think that living nature--hard pressed by technology and commerce--to have the same rights as an inanimate legal fiction? Clearly, the people of Pittsburgh have come to appreciate and value a clean environment and beautiful environment in which to live, regardless of what Donald Trump has to say.