On April 26, 2021, Lake Mary Jane, Lake Hart, Crosby Island Marsh, Wilde Cypress Branch, and Boggy Branch filed suit against Beachline South Residential in the Ninth Judicial Circuit Court of Florida to protect themselves from further development. Wilde Cypress Branch et al. v. Beachline S. Residential, LLC & Noah Valenstein, Sec’y of the Fla. Dep’t of Env’t Prot. These waters sit in Orange County in the middle of Florida and allege that the proposed Meridian Parks Remainder Project would injure them by turning 100 acres of wetlands and streams into buildings and parking lots.
The waterways are claiming standing to be in court via an Orange County ordinance, known as the Right to Clean Water Initiative, that gives them those rights. Specifically, the law secures the rights of waterways to “exist, flow, be protected against pollution and maintain a healthy ecosystem”; allows citizens to file enforcement actions on behalf of waterways; and directs courts to enjoin projects and activities that violate the rights of waterways. Voters—89% of them—approved the new law on November 3, 2020, and it was the first legal action in Florida to recognize the rights of nature. Orange County, which is the fifth largest county in Florida and the 30th largest county in the United States, became the largest municipality in the United States to recognize the rights of nature.
Rights of Nature is a global movement to vest animals and natural features such as mountains and rivers with legal rights, such as the rights to exist, evolve, and flourish, with concomitant standing in the relevant courts to bring lawsuits to protect themselves. Much of the intellectual foundation for Rights of Nature came from Christopher D. Stone and his famous article “Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” 45 So. Cal. L. Rev. 450 (1972). His ideas helped to inspire Ecuador to incorporate rights of nature into its national constitution in 2008 and the New Zealand Parliament to accord rights to the Whanganui River in March 2017, among many others. Delphine Missone, Christopher Stone’s Influence on European Legal Scholars, RIGHTS OF NATURE: Opening the Academic Debate in the European Legal Context (Toulouse 1 Capitole University, du 14/10/2019 au 15/10/2019). Indeed, the Community Environmental Legal Defense Fund, which tracks rights of nature developments in its ever-growing time line, lists Stone’s article as the start of the movement.
The U.S. federal courts, however, were among the first in the world to address the issue of whether species and natural amenities could speak for themselves, and the U.S. Supreme Court firmly rejected the idea in Sierra Club v. Morton, 405 U.S. 727 (1972). Although Stone and his article convinced Justice Douglas, id. at 741–43 (Douglas, J., dissenting), the Court majority refused to grant even “special interest” standing to the Sierra Club to protect the Mineral King Valley, requiring instead that “a party seeking review must allege facts showing that he is himself adversely affected. …” Id. at 740 (majority op.). Lower federal courts in the United States continue to reject nonhuman plaintiffs. The Cetacean Cmty. v. Bush, 386 F.3d 1169, 1177–78 (9th Cir. 2004); Okinawa Dudong v. Gates, 543 F. Supp. 2d 1082, 1093–94 (N.D. Cal. 2008).
Nevertheless, as the Orange County case demonstrates, the federal government is not the only rights of nature player in the United States. Across the country, municipalities and tribes are adopting rights of nature approaches in attempts to deepen existing environmental protections, often specifically with respect to water quality and aquatic ecosystems. Tribes and municipalities with rights of nature legislation include the Navajo Nation (2005); Tamaqua Borough, Pennsylvania (2006); Barnstead and Nottingham, New Hampshire (2008); Pittsburgh, Pennsylvania (2010); Broadview Heights, Ohio (2012); Mora County, New Mexico (2013); the Ho-Chunk Nation (2016); Lincoln County, Oregon (2017); Lafayette, Colorado (2017); Ponca Nation of Oklahoma (2017); White Earth Band of the Chippewa Nation (2018); Toledo, Ohio (2019); Exeter, New Hampshire (2019); Yurok Tribe (2019); Nottingham, New Hampshire (2019); Menominee Indian Tribe of Wisconsin (2020); Nez Perce Tribe (2020); and the Tŝilhqot’in Nation (2020). In addition, in 2016 more than 200 U.S. and Canadian tribes signed the Grizzly Treaty, which recognizes the grizzly bear’s right to exist in a healthy ecosystem.
Litigation ensued—and rights of nature is quickly becoming an area of law that all natural resources, environmental, and energy law attorneys should know about. At least one case, Colorado River Ecosystem v. State of Colorado, No. 1:17-cv-02316 (D. Colo. filed Sept. 25, 2017), has been filed to test whether the federal courts are willing to revisit Sierra Club v. Morton. The case sought personhood rights for the Colorado River Ecosystem, but it was dismissed with prejudice three months later. Opponent farmers successfully challenged the City of Toledo’s Lake Erie Bill of Rights on constitutional grounds. Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551, 556–57 (N.D. Ohio 2020), appeal dismissed, 2020 WL 3619934 (6th Cir. Apr. 14, 2020) & 2020 WL 3620205 (6th Cir. May 5, 2020). The Bill of Rights also generated significant ballot measure litigation in Ohio.
Much of the litigation, however, explores the rights of tribes and municipalities as well as the rights of nature. For example, in August 2021, the White Earth Band of Ojibwe filed Manoomin v. Minnesota Department of Natural Resources, Case No. GC21-0428, in White Earth Tribal Court. The case seeks to enforce the rights of manoomin (sacred wild rice) to be protected from the Enbridge Line 3 tar sands oil pipeline, which carries oil from Alberta, Canada, to Lake Superior and crosses Chippewa treaty-protected lands. Both the White Earth Band and the Treaty Authority adopted laws in 2018 giving manoomin rights to exist, flourish, regenerate, and evolve; to restoration, recovery, and preservation; and to pure water and freshwater habitat, a healthy climate system, and a natural environment free from human-caused global warming impacts and emissions. While the case ultimately challenges the Minnesota Department of Natural Resources’ authority to issue permits to the pipeline, the initial battles focus on whether tribal jurisdiction can extend to the state agency under these circumstances. Minnesota first asked the tribal court to dismiss the case, then sought an injunction in the U.S. District Court for the District of Minnesota. Minn. Dep’t of Nat. Res. v. White Earth Band of Ojibwe, No. 0:21-cv-01869-WMW (D. Minn. Aug. 19, 2021). On September 3, 2021, the district court refused to stop the tribal litigation, and on September 21, the U.S. Court of Appeals for the Eighth Circuit denied the state’s motion for a preliminary injunction. Oral argument on the merits occurred on December 16, 2021, and briefing has continued into May 2022. The Eighth Circuit’s decision is likely to make important rulings on tribal sovereignty and jurisdiction, perhaps warranting a trip to the U.S. Supreme Court.
Jurisdiction is likely to be an important first issue in the Florida litigation, as well. Indeed, the Lake Mary Jane lawsuit is less likely to fail on standing grounds than on state preemption grounds. While the waterways’ status as plaintiffs is making news, it was actually Chuck O’Neal, resident of Orange County and president of Speak Up Wekiva, a conservation organization, who filed the lawsuit on behalf of the affected waterways. Thus, the case has a real human plaintiff, allowing the court to duck the issue of the waterways’ standing if it so chooses. Even the federal courts have allowed nonhuman plaintiffs to sue when they are joined by a human. E.g., Loggerhead Turtle & Green Turtle v. Cnty. Council of Volusia Cnty., Fla., 148 F.3d 1231, 1247–55 (11th Cir. 1998) (finding that the sea turtles had standing to bring Endangered Species Act claims based on artificial lighting).
However, the state of Florida may have preempted the lawsuit. After the Right to Clean Water Initiative was on Orange County’s ballot, but before the vote, the Florida legislature amended the Florida Environmental Protection Act. The amended statute—in effect July 1, 2020, before the Orange County vote—states that:
A local government regulation, ordinance, code, rule, comprehensive plan, charter, or any other provision of law may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision as defined in s. 1.01(8) or grant such person or political subdivision any specific rights relating to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution.
Fla. Stat. Ann. § 403.412(9)(a) (2021). Amendments to the Florida Constitution, as well as new legislation in the Florida legislature, have been proposed to undo this provision and its apparent preemption of municipal rights of nature laws, but none have been enacted yet.
Thus, the future of both tribal and municipal rights of nature in the United States depends on how the federal courts and state legislatures choose to view the extent of tribes’ and municipalities’ jurisdiction. Clearly, however, the momentum to recognize rights of nature is building, and tribal and municipal efforts will likely continue—even if the results are uneven geographically.
