A global movement is attempting to transform the legal systems that govern humankind’s relationship with the environment. Community Environmental Legal Defense Fund’s Mari Margil argues that we must stop treating the planet as if it exists solely for human exploitation and recognize the fundamental rights of nature.
There was a time, not too long ago, when environmental degradation was measured in bald eagles. Or giant pandas. Or polar bears. The dwindling numbers and possible extinction of what environmentalists call “charismatic megafauna” captured the public’s imagination and provided majestic indicators that humans and nature were not in harmony.
In recent years, attention has turned to smaller creatures. Researchers are racing to determine the causes of honeybee colony collapse. Wasp and moth populations are under stress, and bats are disappearing. As the rate of species decline accelerates, it’s the pollinators and other unsung heroes that are gaining fame—the ones that are neither cuddly nor cute but are essential to maintaining the fabric of the natural world. With 2016 confirmed as the warmest year in recorded history (the third record-breaking year in a row), that fabric is wearing thin. Entire ecosystems are at risk. A recent New York Times headline declared, “Large Sections of Australia’s Great Reef Are Now Dead.” Massive bleaching and die-off of coral reefs worldwide threaten the habitat of upward of 8 million species.
As if all of that weren’t worrying enough, this precarious moment has been met in the U.S. with the election of a president who called climate change a Chinese hoax. Rather than take a leading role in the fight to save the planet, the administration of Donald Trump seems intent on running the other way, going so far as to appoint Scott Pruitt as head of the Environmental Protection Agency. Pruitt filed a litany of lawsuits against the EPA while serving as Oklahoma’s attorney general and told CNBC in March he doesn’t believe carbon dioxide is a major contributor to global warming. Within their first 100 days, Trump, Pruitt, and their allies in Congress moved to roll back the Obama administration’s carbon restrictions, expand offshore drilling, and open up more federal lands and parts of the Arctic to further oil and gas exploration. And decisions made last year to halt progress on the Dakota Access Pipeline and Keystone XL—two pipeline projects designed to expedite extraction of some of North America’s most carbon-rich oil—have been reversed.
But waiting out the next four years hoping for a change in national leadership is not an option. We must push for nothing less than a transformation in the legal systems that govern humankind’s relationship with the earth. Right now, a growing global movement is trying to shift both law and culture to recognize the legal rights of nature. This is essential to get us away from systems that treat the natural world as if it exists solely for human exploitation.
SEEDS OF CHANGE
In the 2016 general election, voters in Schuylkill County, Pennsylvania, favored Trump over Hillary Clinton by 43 percentage points. Yet 10 years earlier, the Schuykill borough of Tamaqua, in the heart of eastern Pennsylvania coal country, made environmental history.
Residents had learned that it was impossible to protect the environment in Tamaqua under existing laws. To safeguard their community, they needed to change how the law considered nature, from treating it as property to understanding it as holding rights. In 2006, the Tamaqua Borough Council passed a law recognizing the legal rights of nature.
This was the first such statute not only in Pennsylvania or the United States, but in the world. Over the next decade, dozens of communities in 10 U.S. states would enact similar rights-of-nature laws, and now the trend is spreading across the globe. Ecuador enshrined the rights of nature in its national constitution in 2008. Bolivia passed its Law of the Rights of Mother Earth in 2010. In New Zealand, the indigenous Tūhoe people and the central government finalized a legal settlement in 2014 that secured “legal recognition in its own right” for the Te Urewera ecosystem—a former national park of more than 770 square miles. Earlier this year, the New Zealand Parliament with the Whanganui Iwi people codified the legal status of the Whanganui River. And recently, courts in both India and Colombia have ruled that rivers and other ecosystems possess certain rights.
These laws and court decisions are developing a new form of jurisprudence. In 2014, when an oil-and-gas corporation sued a community in Pennsylvania to overturn local prohibitions on fracking wastewater injection wells, a watershed—represented by the Community Environmental Legal Defense Fund—filed to defend its own legal rights. In Ecuador, the Vilcabamba River went to court to defend its rights against government actions that were degrading it, and the Provincial Court of Loja decided in the river’s favor.
This change—to recognize the fundamental rights of the natural world—reorders our legal systems. Our current governments and laws are designed to promote the rapid utilization of property—that is, of nature. Environmental regulations merely manage our use of the natural world. These laws thus legalize practices such as fracking, mining, and drilling—placing conditions on how and how much exploitation and pollution can occur.
But, 10 years ago, the people in Tamaqua Borough recognized that a system of law that treats nature as property—as without rights—is not only unsustainable, it’s untenable.
As members of the Swedish Parliament described in a 2015 motion seeking to incorporate the rights of nature into national law, previous legislation assumed the ownership and capitalization of the natural world, “which, in practice, often meant that it suffered damage.”
“Environmental legislation,” the motion stated, “usually allows a certain level of natural harmful activities, rather than to restore ecosystems or to take preventive measures.”
The Constitutional Court of Colombia was more pointed, ruling in November 2016, in a case brought to protect the Atrato River, that the river has rights to “protection, conservation, maintenance, and restoration.”
“The prevailing view is economic,” the court wrote. “In this way, policies and legislation have emphasized access to economic use and exploitation to the detriment of the protection of the rights of the environment and of the communities.”
POWER CONCEDES NOTHING
Past people’s movements understood, as the abolitionist Frederick Douglass explained, “Power concedes nothing without a demand.” For governments to make the right choice—what through the lens of history may appear as the only choice—they must be made to do it.
Consider the perceptual, societal shifts required to make women’s suffrage achievable or lawful matrimony for same-sex couples politically possible. The U.S. Congress did not lead the charge for women’s suffrage any more than the Supreme Court paved the way for marriage equality. Rather, those institutions followed people who came together to push parameters, alter norms, and drive change.
It took generations of suffragists meeting, speaking out, organizing, and re-organizing before the U.S. had the conditions necessary to ratify the 19th Amendment to the Constitution. It was a movement that at its zenith was characterized by direct action, a defiance of the existing order, and a refusal to obey or accept a legal system that denied women basic rights. It included advocacy, not just for voting rights, but also for other protections under the law. Hundreds of bills and initiatives were introduced at the state and local level, and though many did not pass, each helped build a discourse and shift public opinion.
Suffragists ultimately succeeded in making the denial of the right to vote, as well as the denial of other rights, indefensible by pushing change upward from the grass roots and against the existing legal system and culture.
Previous movements demonstrate that achieving even basic rights requires radical shifts in society. As they fought for transformational, systemic change, advocates recognized that settling for incremental progress would only help preserve the prevailing system.
In the past, environmental campaigns have mostly worked within an existing framework. Activists have advocated for regulations in an attempt to place conditions on fossil fuel extraction and other activities that exploit nature. They’ve acted within a legal structure that considers nature’s purpose to be the provision of resources. The idea that we can “better regulate” our way to environmental protection, however, has led to this moment where we have pushed the earth’s natural limits to the breaking point.
We can’t continue to operate inside the regulatory paradigm and expect to reverse current dangerous trends. For environmental activists as well as those simply bearing witness to the degradation of the natural world, the critical question is: Are we finally ready to recognize the fundamental rights of nature?