As a legal movement, “Rights of Nature” refers to ecologically-based policy frameworks that provide for the right of ecosystems and natural elements to exist and flourish. Rights of nature legal structures require pivoting our human relationship with nature to bring it within ecological boundaries—they require a recognition that humans have a dynamic and important relationship with nature and that we exist within it, not apart from it. Granting these rights to nature (including wild animals, in many cases) provides advocates with proper legal instruments to adequately safeguard ecosystems from further destruction.
In contrast, modern environmental regulatory systems implicitly legalize damage to nature and determine how much of that damage is acceptable; they do not attempt to prevent or eradicate pollution, climate change, and the destruction of critical habitats. In fact, the restrictions placed on pollution and resource extraction are generally minimal, poorly and inequitably enforced, and impose relatively miniscule consequences for violations.
What are the Underlying Requirements for Such a Framework?
A governing system implementing the rights of nature would be the most effective method of attaining environmental sustainability, as it restricts human impacts on the environment within the limitations of the natural world and planetary boundaries. In order to quantify such a system, we must first understand what is meant by the term “sustainability,” and there has been much discussion in recent years on what the concept encompasses and what it requires in practice. One leading researcher in the field notes the important benchmarks in understanding sustainability in reference to nature’s rights: it “prohibits mitigation or substitution for monetary or political gain,” it addresses and seeks to prevent over-consumption, it reduces human impact, and it is “a flexible and continuous process, as populations, technologies, and needs change,” while invariably upholding the integrity of nature’s boundaries.
History and Overview of the Rights of Nature Movement
The underlying concept of granting legal rights to nature came to modern fruition during a 1972 U.S. Supreme Court case over the US Forest Services’ grant of development permits to Disney Enterprises in California’s Mineral King Valley; as the decision was pending, a law school professor published a compelling article arguing in favor of granting legal rights to nature. The article gained significant attention from Supreme Court Justice William O. Douglas, who was inspired to draft a dissenting opinion that was well ahead of its time in advocating for nature to be provided with legal standing.
In a non-legal context, the fundamental principles underlying rights of nature frameworks are deeply rooted in the wisdom and traditions of Indigenous communities. For example, the Achuar and Kichwa peoples of the Upper Amazon, within the territory comprising Ecuador, maintain their ancient traditions living in harmony with the forest and its non-human inhabitants. It is, therefore, no coincidence that Ecuador was the first country to enshrine the rights of nature in its Constitution, granting nature the right to be restored and establishing a requirement that Ecuador’s government prevent human activity if it will result in environmental destruction and/or species extinction.
Article 71 of the redrafted constitution states that Pachamama (or Mother Earth) not only has the right to exist but also to have its “maintenance and regeneration of its life cycles, structures, functions, and evolutionary processes” respected. The first Ecuadorian lawsuit utilizing the rights of nature legal theory was resolved three years later; it was brought to address dumping of construction waste into the Vilcabamba River. The Court decided in favor of the river, noting that “damage to nature is generational in extent and that therefore the ‘precautionary principle’ should guide development projects, and… required the government to take immediate corrective actions and appointed a delegation to oversee the cleanup.”
The first laws establishing legal structures which recognized the rights of nature in the US were adopted by municipalities; the first in 2006 by Tamaqua Borough in Schuylkill County, Pennsylvania. In the years since, other communities in Pennsylvania, as well as those from Maine to New Mexico, have adopted, or made plans to adopt, similar policies. In 2010, several hundred Pittsburgh residents voted in favor of a law declaring the environment’s right to be free from fracking pollution. In 2018, the White Earth Band of Ojibwe from northwestern Minnesota argued for the rights of manoomin, or wild rice, which included the rights to clean water, regeneration, and pollution prevention.
In February of 2019, citizens of Toledo, Ohio passed a ‘Bill of Community Rights and Nature’s Rights’ to protect Lake Erie, which is subject to repeated toxic algal blooms as a result of factory farming runoff into its watershed.
Other countries have also followed Ecuador’s lead. In 2017, New Zealand’s government granted the Whanganui River with legal personhood. This modern development has been a very long time coming; the region’s Indigenous Māori have held up the Whanganui, or Te Awa Tupua, as a spirit ancestor for centuries. The 2017 Whanganui River Claims Settlement Act, or Te Awa Tupua, includes not only its waters but also the riverbed and its flora, subsoil, and the airspace overhead.
The Whanganui River was neither the first nor last natural body to be granted legal rights within New Zealand. In 2014, Te Urewera National Park on the east coast of New Zealand’s North Island, territory that traditionally belonged to the Tūhoe tribe, earned personhood status, as did Mount Taranaki in 2018.
In 2017, Columbia’s Constitutional Court granted the Atrato River with legal rights after the river’s ecological health became threatened due to industrial mining operations; the decision cited New Zealand’s precedent. In 2018, the country’s Supreme Court went even further and granted legal rights to all ecosystems making up the Colombian Amazon. The Supreme Court refers to the 2017 decision in its ruling, which focused on the devastating impacts of deforestation and climate change on the Amazon, and the need to make significant changes in how the region is protected.
In Australia, the Yarra River was declared a “living entity” in 2017; the landmark decision not only advanced a natural rights legal framework, but also bolstered the rights of the Wurundjeri people, who helped draft the Wilip-gin Birrarung murron, or Yarra River Protection Act. And in July of 2019, the Bangladesh Supreme Court held that all of the country’s several hundred rivers are alive and entitled to legal rights.
In India, the High Court in Uttarakhand, northern India, ruled in 2017 in favor of legal protections for both the Ganges and Yumana rivers. Because the Ganges is used in many holy rituals, as well as a basic source of water for cleaning and bathing, it has become heavily polluted.
While the Uttarakhand High Court’s decision was ultimately overturned, the same Court has since ruled that the entire “animal kingdom” is a legal entity with personhood rights. According to the Court, all animals have the right to a livable habitat, and the ruling includes agricultural regulations regarding the treatment of farmed animals.
In Nepal, the Himalayas are experiencing warming faster than any other mountain range on earth, and a constitutional amendment has been developed that would recognize the rights of the mountain range to a climate system free from global-warming pollution. The amendment would, for the first time, provide a platform for Nepal to hold major climate polluters accountable for violating the rights of the mountains.
The rights of nature movement has also been gaining ground in Brazil. In 2016, the International Union for Conservation of Nature World Congress on Environmental Law adopted the World Declaration on the Environment Rule of Law, upholding the principles of the rights of nature, and municipal laws in the cities of Paudalho and Bonito have been approved that recognize the same.
This year has brought additional progress. In February, Panama passed a bill recognizing nature’s rights and making it the responsibility of everyone – Panamanian citizens, companies, and government authorities – to ensure “[n]ature’s right to exist, persist, and regenerate…” And most recently, in March, Chile’s Constituent Assembly approved the text of an article on the rights of nature that will be included in the country’s new Constitution; the language explicitly recognizes nature’s rights and calls on the government to respect and protect them. Rights of nature activists have expressed optimism regarding both measures.
International and intergovernmental organizations have played an important part as well. Since 2009, with the adoption of its five resolutions on 'Harmony with Nature,' the United Nations General Assembly (UNGA) has attempted to define a non-anthropocentric relationship with nature. In 2010, the outcome of the World People’s Conference on Climate Change and the Rights of Mother Earth was the creation of the Universal Declaration of Rights of Mother Earth. And during the last few years, the International Rights of Nature Tribunal has been examining “systemic rights of nature-based alternatives to the false solutions and failed negotiations of governing States.”
The Legal Nature of Nature’s Rights
Modern laws and regulations sort the physical world into two categories: legal persons (having rights) and property (non-rights bearing entities). While there is no universally agreed upon definition of “legal person,” it is generally understood to mean an entity capable of bearing legal rights and responsibilities. The problem with this definition is that it can be difficult when defining rights and responsibilities in the context of nature and its elements.
To make progress towards a sustainable relationship with nature, we must break away from existing legal structures such as personhood and establish new frameworks that address nature’s essential requirements: the right to exist and flourish unencumbered, and to be restored where damage has been done. As one Bolivian activist noted, the “Rights of Nature forces us to think in terms of the non-human from a broader view of systemic interrelations and not just a narrow perspective of humans need not care for the non-human.”
It is now clearer than ever before: changes in human use of the environment must take place—the planet’s ecological boundaries are at a significant turning point. Yet unanswered questions about a new ecology-based system must be dealt with: how would these laws be most effectively applied, and to what physical entities? How would destructive human activities be quantified, and where is the line? How can our human impact be kept from interfering with the essential needs of nature?
These questions must be dealt with, but they should not slow the pace of progress. The environmental problems we have created, including oceanic dead zones, the desertification of the Amazon rainforest, ecosystem depletion, and ultimately, the tragic impacts of climate change, require urgent solutions that apply current research and data to specific and regional ecological problems. More importantly, they require patience, the willingness to collaborate among those with differing motivations, and the vision to see a future where true sustainability is possible.