The Natural Rights of Nature

Photo from Open Verse

Standing doctrine is one of the foundations of the judicial process, determining who can bring lawsuits and who cannot. Rooted in the “cases” and “controversies” requirement of Article III of the U.S. Constitution, standing doctrine has evolved to require an injury that is (a) “concrete and particularized and… actual or imminent,” (b) “fairly traceable to the challenged action of the defendant,” and (c) “will be redressed by a favorable decision.”

However, more expansive and creative conceptions of standing have been present in legal scholarship for decades. One such conception, advanced by Christopher Stone in his seminal article “Should Trees Have Standing?—Toward Legal Rights for Natural Objects” argues that like corporations, “states, estates, infants, incompetents, municipalities or universities… when a friend of a natural object perceives it to be endangered, he [should be able to] apply to a court for the creation of a guardianship.” Stone argues that the extension of rights to natural objects is not illogical in a legal landscape that features an ever-expanding conception of personhood.

This idea is far from new. Many indigenous groups have recognized the rights of nature for millenia and several countries have guaranteed legal rights to nature in recent years. Bolivia, for example, has extended legal personhood rights to the natural environment while New Zealand has granted personhood to the Urewera Forest and Whanganui River by statute. Legal systems around the world have also directly explored the question of legal standing for nature. In 2022, for example, an Indian court held that because nature retains the same rights and privileges as humans, the government must defend it in court when it does not have outside representation.

Indian courts are not alone in wrestling with the question of standing for nature. In 1972, Justice William Douglas argued in a groundbreaking dissent in Sierra Club v. Morton that standing should be granted to natural objects, and American courts have repeatedly addressed the question since then. After Walt Disney Enterprises began surveying the Mineral King valley with the goal of building a ski resort, the Sierra Club sought an injunction on behalf of the valley to prevent its development. Maintaining that the Sierra Club should have the right to seek this injunction, Douglas wrote that “public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation… [and those] who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.”

A sole dissent is not indicative of a broader legal consensus, however. In fact, the courts have remained divided regarding a burgeoning movement by municipalities to confer rights upon nature. Over the past two decades, dozens of American localities in ten states have enacted rights of nature ordinances. Tamaqua Borough, Pennsylvania kicked off the movement by recognizing sewage dumping as a violation of the rights of nature in 2006. Since then, towns from New Hampshire to Oregon have formulated a broad swath of environmental rights, using them to reduce a wide variety of ecological harms.

Although grassroots movements to grant nature rights have enjoyed modest success across the United States, courts have remained largely hostile to these developments. In 2017, the federal district court in Colorado dismissed Colorado River Ecosystem v. State of Colorado, in which plaintiffs sought a declaration from the court that the Colorado River ecosystem is a legal person endowed with rights. Overturning local efforts, an Oregon state court held in 2019 that a Lincoln County ordinance banning aerial pesticide spraying conflicted with existing Oregon law regarding pesticide regulation and declined to grant the Siletz River ecosystem standing as a party to the lawsuit. The ruling was upheld on appeal. Similarly, in 2020, a federal district court in Ohio struck down the Lake Erie Bill of Rights, which guaranteed rights to Lake Erie and allowed citizens to bring lawsuits enforcing those rights, as “unconstitutionally vague and exceed[ing] the power of municipal government in Ohio.”

While previous cases examined the potential existence of legal rights for nature, in 2022, the first case seeking specifically to enforce a declaration of rights for nature was filed in Florida. Plaintiffs, five waterways and an environmental activist, sought an injunction stopping a commercial and residential development, arguing that it violates a 2020 Orange County ordinance that grants standing to local waterways and guarantees them the right to “exist, flow, be protected against pollution and maintain a healthy ecosystem.” However, a state judge dismissed the complaint, finding the local ordinance incompatible with state law and rejecting constitutional arguments of a “fundamental right of local community self-government.” The case is now undergoing appellate review.

Through novel conceptions of legal personhood, rights, and standing, a creative environmental movement has pushed the boundaries of American law. A groundswell of support for this movement at the municipal level has transformed Christopher Stone’s vision of standing for nature from an academic proposition into a political reality. However, if the movement to endow nature with legal standing and legal rights is to move forward, statutory changes must evolve beyond the municipal level to avoid irreconcilable conflicts with state and federal law. Courts cannot create rights that do not exist, nor can they uphold rights that contradict higher statutory authority. But if a legally innovative environmental movement can persuade more elected officials to expand their understanding of natural rights, trees may soon enjoy standing after all.

Jude Farley is a freshman at Brown University, concentrating in International & Public Affairs. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at jude_farley@brown.edu.