Summary
- The Rights of Nature movement is part of a push for eco-centric approaches to law, sometimes called Earth Law.
- Examples are provided on how water law could be improved by incorporating principles from the Rights of Nature movement.
Trends
Rights of Rivers swell in Colorado
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The Rights of Rivers are gaining traction in Colorado. Local leaders in Nederland, Ridgeway, and Grand Lake have all taken steps to promote the Rights of Rivers in their communities. These communities have joined the growing Rights of Nature movement, which is having a resurgence both here in the United States as well as abroad. The Rights of Nature movement is part of a push for eco-centric approaches to law, sometimes called Earth Law. These movements represent a sharp break from a worldview that suggests that nature has value only through its utility to humans, and instead forcefully argue for the intrinsic value of nature. Of course, these ideas have been around for a long time, since before European settlers imposed colonial property rights systems, notably among Indigenous communities.
Importance of Rights of Rivers
Rivers in the western United States have been dammed and diverted until they become mere shadows of their former selves. These activities reflect the misguided approach of prior generations. Diversion of river water for agriculture or industry was prioritized with no thought to environmental concerns or the river itself. Thus, as one stark example illustrates, the Colorado River regularly fails to reach its end in the Gulf of California. Along the river, the result has been polluted and salinated water, low flows, warming water, and a dramatic decline in wildlife and ecosystems that depend on the river, including several endangered species of river fish.
Rights of Rivers can help alleviate this grim situation, but what rights should rivers hold? One view has been put forth in the form of the Universal Declaration of the Rights of Rivers, which includes a river’s rights to:
- flow,
- perform essential functions within its ecosystem,
- be free from pollution,
- feed and be fed by sustainable aquifers,
- preservation of native biodiversity, and
- regeneration and restoration.
Upholding and giving meaningful effect to these rights in our legal system would help to restore our rivers and all those who depend on them, including humans.
Resistance from the old guard
Water law in many Western states, including Colorado, was developed to promote settlement by those of European descent in the arid west, principally by supporting mining and agriculture. While these activities are still important to our modern society, there are many other competing uses for water. Simply focusing on ways that humans can put water to use is problematic and has caused the exclusion of nature’s interests to the detriment of healthy river ecosystems.
Water buffalos—i.e., the old guard of water lawyers in Colorado—have been rallying for a last gasp of new dams and diversions of water, trying to get their projects grandfathered in before cuts to water use on the Colorado River are forced by climate change and the federal government. These powerful interests find support in state government officials who fight back against any suggestion that rivers themselves have rights, or even that the public has interests in rivers, through aggressive litigation tactics. These same forces will be expected to oppose Rights of Rivers work in local communities across the state, as well. However, the old system has led us to this crisis, and we can no longer afford to ignore environmental concerns or the needs of 21st-century populations that depend on our rivers to survive. Water law must adapt and change, whether the old guard likes it or not. Rights of Nature provide one key avenue for making the necessary changes.
Rights of Rivers in action
So what would Rights of Rivers mean in action? How would transitioning to an eco-centric approach to rivers transform water law in Colorado and other states? Here are a few concrete ways that water law could be improved by incorporating principles from the Rights of Nature movement.
- Expansion of the definition of “beneficial use.” In many states, property rights in water require that the water be put to a beneficial use, which typically means diversion and consumption of water by agriculture, mining, or other industries. These laws can be updated to clarify that keeping water in a river to ensure its health and the functioning of river ecosystems would also fit the definition of beneficial use, perhaps as extensions of existing instream flow programs.
- Appointment of legal guardians for rivers. The common objection that nature cannot speak for itself can be overcome by the appointment of legal guardians for rivers. River guardians could then advocate on rivers’ behalf in administrative proceedings, permitting, or litigation, including litigation in water courts that are established specifically to adjudicate disputes over water rights. Such advocacy might mean that if a river has a right to flow, it requires something like a minimum lifeline flow that is necessary for rivers to achieve their basic functions. River guardians might be governmental or quasi-governmental entities, or they might be nonprofits appointed by the relevant authorities.
- Standing for rivers in legal actions. The doctrine of standing as applied to environmental law has become a joke; tracking down individuals with plans to use a specified forest or stretch of river is a huge waste of time. Reforming standing to allow river guardians or even the general public to engage in litigation on behalf of rivers that are clearly threatened with harm would free us from the farce of thinking that groups will diligently pursue litigation only if they have a member with a current rafting trip on the books. We can then focus on the merits of legal disputes and not the sideshow of fights over standing.
The Rights of Rivers provide a powerful rhetorical and organizing tool, one that pushes back against the prevailing legal system that prioritizes exploitation of natural resources. As we collectively stare into the abyss of looming climate and other environmental disasters, Rights of Rivers can provide a beacon of hope that can lead us to a more sustainable future.
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