Trees Standing

Nature - A corporate body with rights?

UNTHINKABLE!

All rights have come from the unthinkable...from moral, social and economic dimensions. The very idea is odd, laughable (Christopher Stone, 1972).

 

Stone argues that the defense of abstract entities has existed through time and new entities are always popping up and endowed with natural rights that are "unthinkable"... Well then, natural objects such as forests, oceans, rivers and other so-called "natural objects in the environment - indeed, the natural environment as a whole should have legal rights.

As defined by Wohlleben in "The Hidden Life of Trees" trees and nature as a whole should be defined under a reformulated public trust doctrine as more than being conserved for humans, but as entities engaged in a complex system that suffer harm.

In the universe of "things" (of which we are a part), 19th century utilitarian Jeremy Bentham argued for codifying laws for other animals not based on comparative intellect or goodness in human terms but on the principal of pain and pleasure.

Global consciousness among nations?

In movements around the globe, the granting of rights for nature covers all components of the environment whether it is a forest, river, lake, or mountain. These movements might or might not become a new paradigm for environmental law. The weight of climate change might possibly become more of a determinant as to whether national laws related to the environment are institutionalized and upheld.

At least 14 countries have passed measures protecting rights for nature that recognize a personhood that gives nature the right to sue. There have been a number of landmark cases. Laws are being codified to manage, conserve, and protect the natural environment.

A growing number of cosystems around the world have been declared living entities by local or federal courts. Many of these courts also granted personhood.

In 2008 Ecuador was the first country to write comprehensive rights for nature into its constitution. Article 71 of the Constitution stated that nature had a right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. A 2011 ruling by a provincial court in Ecuador recognized the Vilcabamba River's rights were violated by road construction. This became the first legal ruling in favour of Rights of Nature in the world. Article 71 defines nature's rights based on the premise that nature or "Pachamama", where life is reproduced and exists, "has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution."

Bolivia followed suit and added, "...to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities".

Colombian Constitutional Court’s ruled in 2016 that the Atrato River had legal personhood and had the right to be protected, conserved and restored.The Supreme Court of Colombia ruled in 2018 that the Colombian Amazon was a subject of rights and ordered that the government take action to protect it.

New Zealand became the second nation to give legal status to rivers in the case of the Whanganui River.

Bangledash was the first nation to explicitly give rights to all its rivers. Violation of those rights was equivelant according to one spokesperson to "killing your mother."

In India legal rights were given to the Ganga and Yamuna rivers.

On November 16, 2010, Pittsburg, Pennsylvania became the first city in the United States to declare nature a legal person as an argument to ban “fracking” within the city limits. 

In 2018, the White Earth Band of Ojibwe in Minnesota adopted a tribal law issuing rights to manoomin wild rice because it was a living entity. In 2019 the band sued the Minnesota Department of Natural Resources (DNR) in tribal court on behalf of the wild rice following its decision to pump 5 billion gallons of shallow water in the process of building a pipeline. The argument was a weave of culture, treaty rights, the rights of nature, and climate change.

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The legal challenges of direct rights for nature

However, direct rights for nature is a legal term of art with complexities that need to be unraveled and codified perhaps in case law. Aagard (2010) notes that environmental law exists but it is not stable. It is highly fragmented and unduly complicated.

Despite positive global movements represented by nation-states, activists and various jurisdictions, the evolution of rights for nature is a long winding road of litigations. There are sweeping and critical questions to answer in the courts and in the public realm.

Is personhood to be considered in terms such as virtue and sentiency, (apparently not at least in relation to Citizen's United as a corporate body)?

What advocacy will exist for nature beyond special interests? Who or what entity will have standing. Who or what will serve as a guardian of rights for nature?

What about nation-states and the global realities of climate change? An International Court with teeth is ultimately the only legal response to the global climate crisis caused not only by ignorance but by willfulness on the part of global corporations and others. But nature as an economic paradigm separates north and south. Furthermore, will the United States ever participate?

Summarily, reconstituting legal precepts to include nature means that legal advocacy will become more than the protection of nature in the interest of others. It is based on both the interest of the entity itself and enlightened self-interest. It is an entirely different line of layered reasoning from Western thought. It touches on precepts such as Gaia and animism.

 

What does making nature whole
mean when it comes to
representing interests?

The legal precept, make whole, is appropriate in terms of a contextual understanding that the granting of rights covers all components of the environment whether it is a forest, river, lake, or mountain. It is also inclusive of remediations based on past harm.

However, there are genuine landuse concerns that pit humans as a species against direct rights for nature. A recent article brought up the conflict of saving land for trees versus growing food for hungry populations.

There is also greed and hierarchical meanings of ownership that increasingly benefit a few that calls for a sea change in terms of legal philosophy. When the unthinkable in written history occurred, be it a pope or a corporation, the purpose was to ensure a permanent entity to bring order and to impose codification of beliefs to maintain that order. Beyond that motive, e.g. challenging self interest was not a question.

Making nature whole in the legal sense is viewed by some as too costly and complex in terms of defining and assessing damages. Primarily this view is motivated by the perception of threat to our economic reasoning that elevates capitalism to that of a primary drive.

Yet, in the name of enlightened self-interest all the players need to come to the table. As some countries and jurisdictions have recognized, nature can only have a voice if it is given the rights of a legal entity that includes the capacity to make whole remediation based on past harm that is more or less inclusive of private/public ownerships.

Furthermore, Payne (2017) notes that in the framework of extensive harm done to the environment following the conditions of war (The US involvement in Vietnam as only one example), and it should be noted the unprecedented migrations taking place today, that the question of environmental integrity offering agency to a dynamic and changing environment will open the door to new questions and more effective remedies. Currently global understanding inadequately relies on vague references in defining the term "natural environment" as property.

It's a tough road. Symbiosis in nature and capitalistic systems are not allied. For instance, mycorrhizae symbiotic relationships between fungi and plants are both competitive and cooperative . In the case of the latter, Arbuscular mycorrhizal fungi colonize the root system of a host plant, providing increased water, and water movement as well as nutrient absorption capabilities while the plant provides the fungus with carbohydrates formed from photosynthesis. In terms of humans' enlightened self interest this further supports a carbon sink helping to ensure our survival. This can be seen as a shared concern on a global scale.

However, as Stone observes(cite) any remedy to a damaged repairian or other natural system is negated through a quantitative compromise between conflicting interests. It is unlikely that nature would receive a remedy of making a forest whole. (eg., restocking fish, water -fowl and and other animal and vegetable life or dredging and washing out impurities...

So then, how is harm to nature, including humans in the anthropocene sense to be determined given powerful and historically sanctioned interests? This brings the Tragedy of the Commons into a new light in terms of causality. In the exercise of truth to power it questions motives by governments and corporations in terms of harm and remedies.

The Role of the Public

We've seen the divisions revealed in the COVID episode, including the distrust of science in the United States. We've witnessed the lack of collective empathy and concern; of enlightened self interest in relation to masks and vaccines. In the face of this what chance to trees have?

As far as behavior, we are a competitive and aggressive animal that is highly political. We classify what is lesser and afford the lesser only a certain degree of protection, be it blacks, women, or children, richer or poorer.

Many of us have become detached from nature aside from extracting its goods. In the absence of education nature is lesser. There is no substantial lexicon to argue otherwise. Diversity, "public trust" "social contract" "finite resources" these are meaningless words to a majority of people.

Government has held a heavy hand in this. US state constitutions revised or amended from 1970 to the present have incorporated a public trust doctrine to provide greater protection to the environment.

This doctrine included the duties of a trustee and preserving the corpus of the trust for the future rather than the question of agency and the immediacy of rights in relation to beneficiaries.

Unfortunately, the people-centered public trust doctrine, while serving a purpose, proved to be insufficient in terms of protecting the environment. It became too tied to special interests based on economic motives. It did not allow adequate public participation rather it has been dependent on the inaccessibility of administrative law.

Today, the concept of direct rights for nature moves beyond traditional meanings of "public trust" and perhaps changes the nature of questions - is mutuality preserved? What is the difference between an ant and a tree, between me and a tree?

The Process and the End Game

As we face existential threats, enlightened self-interest is a critical precept in terms of success; What is good and right for nature, is good and right for all of us.

However, exercising this precept is not easy.

The hope and the challenge is that there are many languages to describe legal relationships in terms of direct rights nature from formulistic, bureacratic, to indigenous understanding. The question is what combined effort will produce a lexicon a paradigm that can speak to economic, political, and social dominant belief systems?

What is the end game? In legal terms, utilitarian Jeremy Bentham decried the disconnect found within the America's Constitution; between the Bill of Rights as vaguely "natural rights" and its articles produced by white male forebearers tired of meetings. He argued instead for the experiential in the process of codification that included other species.

As a precurser, consideration of direct rights and environmental integrity introduces a liminality as terms from different domains represent a search toward critical understanding of our place in the world. Science and perhaps our own indigenous witnessing tells us that there is a timeline. From the perspective of climate change time is of the essence in terms of asking the right questions and finding a language that lead to action.

What is the value of current movements? It is potential. The global movement toward personhood for nature has provided opportunities to re-imagine legal systems that are interwoven with ancestral and local knowledge with the potential to establish new institutions such as nature courts. Ultimately the movement has the potential to allow greater participation for the public in redefining and upholding new meanings of public trust and stewardship on the part of individuals.

Perhaps discourse and then themes, structured by words now spoken, will emerge and break free of administrative entanglements and selfish politics. This perhaps then leads to a degree of public consciousness that broadens meanings of rights and good for all principles applied to nature and in doing so recognize direct rights for nature as a rule of law.

Then there is the strength of hope. What is the hope embodied in the current activity? - Is hope in floating in liminality, in the unspoken, too idealistic as the courts and activism on the ground battle meanings and consequences? Will self-interests whatever their values overshadow public understanding?

Hope? Ultimately we are asking for a change in attitudes about nature, of which we are a part, while we run out of time.

The birch family

I rest in the shade under a huge maple on hot day after working in the yard. I place my hand on the ancient tree. It feels peaceful. Its story is written on its face for anyone who cares to look. For many decades the maple tree in my yard has been observing or so I believe.

What does it know? Has it counseled other trees. Just maples, or others, too?

But enough! Jeremy Bentham said, “What else is it that should trace the insuperable line? Is it the faculty of reason or perhaps the faculty of discourse? But a full-grown horse or dog, is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day or a week or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being? ...The time will come when humanity will extend its mantle over everything which breathes...

So that day I visit the Birch family in a gully near my house and see generations of trees linked together. I am relieved. This place is too awkard for mining, fracking, or logging. The family will survive, I think.

Seriously, are trees sensitive or sentient or virtuous and therefore worthy of legal standing?
Are corporations sentient and therefore worthy of legal standing? Are their relative contributions to our collective survival worthy of legal standing?

What rights specifically should trees standing, as a part of nature, have?

The Sentience Institute describes sentiency as “the capacity to have positive and negative experiences, usually thought of as happiness and suffering.”

Conscious entities as defined by Wohlleben in "The Hidden Life of Trees" trees and nature should be defined as entities engaged in a complex system that suffer harm. However, currently if trees suffer. There is no remedy.

How are we going to perceive nature in this manner and what does this have to do with law? It is difficult to know where notions such as virtue or sentiency or pain and pleasure or cooperation play an effective role in the legal realm but, unlike Citizens United, I'm sure that these terms exist in give and take of Gaian nature even as more countries and jurisdictions have increasingly and unabashedly claim that they do.

Meantime, it is difficult when observing the death of coral reefs or stripped forests for narrow commerical gain not to have a gut feeling that there is some intrinsic and shared experience of pain or pleasure in nature besides in ourselves. So, I wonder when a forest is disrupted or denuded do they feel collective pain or am I anthrocentic? In any case, we encounter concepts such as virtue and cooperation, and sentiency.

If nothing else, the embodiment of the question of injury brings greater sensitivity to acts such as extractions that affect humans and nature as part of a whole and that cause harm.

READINGS

Common Dreams, What It Means If 'Ecocide' Becomes an International Crime (July 11, 2021)

Defining the Environment: Environmental Integrity, Cymie R. Payne in Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles, and Practices, Ed. Stahn, et al , Oxford Scholarship Online, November 2017.

Should Rivers Have Same Legal Rights as Humans? A Growing Number of Voices Say Yes, Ashley Westerman, NPR, August 3, 2019

Should Trees Have Standing? - Toward Legal rights for Natural Objects, Christopher D. Stone, Southern California Law Review 45 (1972): 450-501 - A seminal work that helped set a course for new thinking in environmental law.

Are Trees Sentient Beings? Certainly, Says German Forester, Richard Schiffman, Living World, November 16, 2016 - Interview with Peter Wohlleben.

The Earth Has Lungs. Watch Them Breath, Robert Krulwich, March 9, 2016, National Geographic

The greatest happiness of the greatest number is the foundation of morals and legislation, The Commonplace Book in Bowring (ed), Works vol.10 in Oxford Essential Quotations (4 ed), 2016, Susan Ratcliffe (ed).

Jeremy Bentham, Wikiquote.

The Common Law and the Environment in the Courts, Stuart Buck, Case Western Reserve Law Review, Vol.58, Issue 3, 621, (2008).

Climate Change and the "Tragedy of the Commons", Walter Robinson, North Carolina State University, Climate Change and Society, 2021.

Root and Branch: Climate Catastrophe, Racial Crisis and the History and Future of Climate Justice, Maxine Burkett, Harvard Law Review, April 20, 2021, 134, F. 326