The poisoned scenery left left by an illegal goldmine in the Amazon forest. Photo: Mario Tama/ Getty Images
Today, environmental laws govern the human use and demolition of nature. They legalise fracking, drilling, and even dynamiting the tops off mountains to mine coal. The repercussions are proving catastrophic: the die-off crisis of the world’s coral reefs, accelerating species extinction, climate change. Finally, though, this is changing. In 2006 the first statute recognising the legal rights of nature was enacted in the borough of Tamaqua, Pennsylvania, in the United States. The community sought to prevent dredging sludge laden with PCBs( polychlorinated biphenyl ) being dumped in an deserted coalmine. The organisation I work for, the Community Environmental Legal Defense Fund, helped the council draft the law, transforming nature from being rightless to possessing rights to exist and flourish. It was the first such law in the world. Communities across more than 10 US countries have now followed suit, including New Hampshire, Colorado and Pittsburgh.
After the decision to grant legal rights to nature in Pennsylvania, representatives of my organisation satisfied Ecuador’s constituent assembly in 2008, which was elected to draft a new constitution. We discussed the rights of nature, and why communities all over the world find themselves unable to protect nature under statutes that authorise its exploitation. The assembly’s chairperson, Alberto Acosta, told us:” Nature is a slave .”
However, that year Ecuador enshrined the rights of nature- or Pachamama ( Mother Earth)- in its constitution, the first country to do so. Since then Bolivia has put in place a Law of Mother Earth. Tribunals in India and Colombia have similarly ruled that ecosystems possess rights. In Mexico, Pakistan, Australia and other countries, rights-of-nature frameworks are being proposed and enacted.
Colombia’s supreme court was asked to consider the climate-change impacts of Amazon deforestation in the lawsuit that led to its groundbreaking ruling. Similarly, in Nepal the US-based Center for Economic and Social Development is working to advance rights to safeguard against climate change. The Himalayas- known as the world’s third pole- are experiencing warming faster than any other mountain range on earth. With the melting of ice and snowfall, a Sherpa told us,” the mountains are turning black “. But now a constitutional amendment has been developed that would, if adopted, recognise the rights of the Himalayas to a climate system free from global-warming pollution. It would for the first time offer a platform for Nepal to hold major climate polluters accountable for transgressing the rights of the mountains.
Law today divides the world into two categories: people, capable of having rights; and property, unable to possess rights. While “were not receiving” universally agreed upon definition of” legal person”, it is generally understood to mean an entity capable of bearing rights and duties. The problem that the rights-of-nature movement is now encountering is that this definition is predictably problematic when it comes to rivers, woods or nature more broadly.
In 2017, for example, the country high court in Uttarakhand, India, ruled that in order to protect the Ganges and Yamuna rivers, they should be considered legal persons with” all corresponding rights, duties and liabilities of a living person “. In a subsequent appeal to India’s supreme court, the nation government asked whether, if the rivers inundate, leading to the death of every human being, a lawsuit could be filed for damages. Could the Uttarakhand chief secretary of state, named by the court as one of several officials in loco parentis , be liable on the river’s behalf? In this case, the supreme court decided not.
Can we hold a river accountable for flooding, or a woodland for burning? Of course not. Yet existing legal systems force us to think of nature in terms of human concerns rather than what concerns nature. With the past three years the warmest in recorded history, and as we face what has been called the sixth great extinction, lawmakers and judges appear increasingly to agree that it is time to secure the highest form of legal protection for nature, through the recognition of rights.
To make progress in this area, “were supposed to” break free from legal strictures that were never intended to apply to nature, such as legal personhood, and establish a new structure that addresses what nature wants. Perhaps we can call this framework legal naturehood. A recent symposium at Tulane Law School, in New Orleans , brought together academics, lawyers and activists to develop a set of guidelines for recognising and enforcing legal rights of nature, known as the rights-of-nature principles.
These define the basic rights that nature requires, including rights to existence, regeneration and restoration. Further, they call for monetary damages derived from violations of these rights to be used solely to protect and restore nature to its pre-damaged country. In addition, they outline a means for nature to defend its own rights- like children unable to speak for themselves in court- by being the named” real party in interest” in administrative and court proceedings. The principles build on laws and judicial decisions that have begun to accumulate in this new region of law, laying the groundwork for what legal naturehood could look like.
As daily headlines tell us how we are tearing holes in the very fabric of life on globe, it is time to make a fundamental shift in how we govern ourselves towards nature- before, as Colombia’s supreme court wrote, it’s too late.
* Mari Margil is associate director of the US-based Community Environmental Legal Defense Fund