Does nature have rights? We have enough trouble ensuring that human beings have equal rights, much less equity in a free society. But does water, land, and air have a right to exist in a safe environment? And do we have a right to violate it?
Several years ago, while vacationing on Pelee Island, the southernmost point in Canada, I noticed a green film on the water. I didn’t make much of it because on Pelee, if the water’s rough on one side of the island, you go to the other to swim. But then water advisories began to appear without explanation.
I recall the time when Lake Erie was thought to be environmentally dead — the 1960s — certainly not where you wanted to immerse yourself in or certainly spend your vacation near. The water was discolored and dead fish washed up on the shore. Thanks to enlightened political leadership and persistent environmental advocacy, Lake Erie experienced a revival in the late 20th century, only to tainted by algae, its current nemesis. Well, perhaps the nemesis is the society that fails to control fertilizer runoffs into the feeder system to the lakes.
That green scum washing up in the surf at Pelee Island is now known to be algae, which has a good/bad balance in nature. It’s an essential part of the marine ecosystem, but “nutrient pollution,” largely coming warmer water temperatures and farm fertilizer runoffs, can promote growth of algal blooms and have a destructive impact on the water, killing fish and causing illness in humans. It’s said to create health problems for people living within miles of the water. Reduced phosphorous in the water supposedly has helped, but the problem has persisted. Even Lake Superior in the far north has noted algae growth.
The American and Canadian governments reached an agreement to reduce the causes of the algae in 2018, with the goal of a 40 percent reduction by 2025.
However, there has been an interesting spin on the issue that resonates with environmentalist on both sides of the border: the right of the water to ecological health. It’s a concept that environmentalists like David Boyd has been advocating through his work in Canada, but it was actualized by folks very close to the problem in Toledo, which experienced a loss of water because of the algae in 2014. The Northwest Ohio citizenry passed a “Bill of Rights” that would have protected Lake Erie’s right to “exist, flourish, and naturally evolve” as an ecosystem through the principle of human rights.
Within months, Harvard law professor Richard Lazarus — admittedly sympathetic to the cause — criticized the law as having little chance of surviving judicial scrutiny The ultimate significance of the Lake Erie Bill of Rights, however, is less likely to be defined by those terms, which are vulnerable to judicial invalidation, than to the important lesson they teach about rising citizen frustration with inadequate environmental protection laws.”
It turns out that Lazarus was right. Ohio Judge Jack Zouhary last year ruled the law invalid on technicalities. He and Lazarus, from different legal perspectives, made it pretty clear that the right of the natural ecosystem to exist in a healthy state will only be possible through federal policy, which has been largely silent on this and several environmental protection issues since the international accord in 2018. It will be interesting to see how prominent a role environmental policy plays in the presidential election.
As the lives of human beings matter in sacred and secular ways, will we one day advocate that natural life matters?
Grant Wilson, executive director of the Earth Law center says it’s a matter of time before the rights of nature become the law of the land. “Before settlers, this land was occupied by indigent people,” Wilson says. “Many of them believed that nature was alive; they believed we have a duty to serve as guardians, protectors of nature and live in harmony with rivers, waters, and other ecosystems. It’s really only relatively recently, over the last couple hundred years, that we put on top of that the notion that water is human property and that humans have dominion over al of nature for our gain, our use.”
Great Lakes conservationist, John Hartig references “working” water ways — rivers that became commercialized, and ultimately polluted. The idea of nature as “property” is relative recent in human history, Wilson says. The notion that we own nature and should exploit nature, that it’s a good thing, a commodity, has begun to be challenged in North America. Actually, Latin America has been a focus of that movement, Wilson adds. In 2008, Ecuador recognized that nature has rights in its constitution. Columbia has also had several landmark court decisions declaring that ecosystems have rights.
In 1972, Supreme Court Justice William O. Douglas offered a dissent in Sierra Club v Morton, arguing that nature should have its own voice, not that of an advocate like the Sierra Club: “…these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court — the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community. Douglas wrote five environmental books. One, A Wilderness Bill of Rights, argued “to protect those whose spiritual values extend to the rivers and lakes, the valleys and the ridges, and who find life in a mechanized society worth living only because those splendid resources are not despoiled.”
Wilson explains that you want representation somewhat akin to that which would govern the advocacy of a guardian with a human, to make sure they’re speaking on behalf of the person, not the interests of an organization such as Sierra Club, regardless of how well-intentioned the organization might be.
As the world slowly becomes sensitized to the rights of nature, “customary law” — law that is recognized though not established in the courts — will help drive change. “Many rights of nature supporters believe that the rights of nature are inherent, just like you and I have inherent rights,” Wilson says. The Declaration of Independence recognizes that human rights are inherent; The rights of nature are inherent as well.
Grant Wilson is co-author of a new textbook, Earth Law: Emerging Ecocentric Law – A Guide for Practitioners, which is the first legal text that addresses ecocentric law and jurisprudence.
Post written by Dennis Archambault
