Notes on “The Rights of Nature”

By Bob Sheak

Does nature have rights? What is nature? What are the rights? These are questions being asked today by a growing number of groups that want to be able to protect their communities from the ravages of fracking, injection wells, from transportation of shale gas and oil by railroad or pipeline, and from offshore drilling and drilling in the Gulf of Mexico and in the ocean north of Alaska and other places in the Arctic.

These are questions that have been implicitly or explicitly considered for centuries. Most of the time, in western traditions, nature was assumed as something to be exploited for the benefit of humans whatever the damage to “nature.” Nature, or the environment, only had value in a utilitarian sense. Then later there was a concern about how to most efficiently manage the resources of nature for the benefit of humans. There is an informative book on the subject (which I have not yet finished reading) by Roderick Frazier Nash entitled The Rights of Nature: A History of Environmental Ethics (1989).

Here is one telling point Nash makes, namely, that for two thousand years the Christian Scripture was used “to justify the exploitation of nature in the same way that defenders of slavery used it to justify ownership and exploitation of certain classes of people” (p. 89). And, another example, in Judaism and Christianity “people were masters, not members, of the natural world. Created in the likeness of God, unique in their possession of a soul and expectation of salvation, humans clearly stood above other forms of life” and “Jews and Christians traditionally believed that the rest of creation existed solely for human benefit” (p. 88).

This exploitative sentiment permeates the development of large-scale agriculture and all phases of commercial and industrial capitalism to the present day. Although it is being increasingly challenged, the profit-first imperative of capitalism, now reflected, for example, in extreme and environmentally damaging modes of fossil-fuel extraction and consumption continues. In this context, nature in all of its manifestations is some-things to be owned, controlled, denuded, and depleted. This continues to be the situation, despite the mounting scientific evidence that our economic system is polluting the air, water, soil, and wreaking harm on billions of people and steadily destroying the very ecological bases of life.

 I. The Corporate Economic-political System in the U.S.

You already know there are divergent views on the relation of people to the “environment,” or “nature,” or “mother earth,” or the “earth,” or the ecosystem, or the “ecosphere,” or “gaia.”  As already stated, the prevalent view today and for all of U.S. history has been essentially economic, always accompanied by ideological justifications of a mixture of political, religious and philosophical texts. With the rise of large corporations in the late 1800s and their economic dominance by the early 1900s, the idea that nature had rights were by and large limited to property and constitutional rights for citizens. There were critics, then and now, but their voices have had little political impact.

Consider how the present economic-political system presents huge obstacles to the successful adoption in law of “the rights of nature.”

(1) A conception of “nature”

Humans have a God-given right to dominate nature for their own purposes and nature is a virtual endless source of resources for human benefit.

(2) Capitalism as facilitator

Capitalism unleashes the forces that will enable this virtually endless bounty to be continually realized.

(3) Expected results

  • Society, at least the majority, will benefit through a growing economy based on nature’s bounty and through a “trickle down” process that raising the opportunities and living standards of the “middle” and “working” classes.
  • Technological advances and market forces (i.e., the decisions of big corporations) will keep the bounty flowing for the foreseeable future, although one shouldn’t look too far into the future

(4) Unfortunate results

Depletion and degradation of nature’s resources will produce “sacrifice zones” or, in some cases, areas to be restored, depending on the potential profit to be made and/or the willingness of government to undertake remedial actions. However, the degradation of the environment goes beyond this or that polluted site and now has society-wide and global effects that are degrading or destroying an increasing number of habitats, on land (e.g., the micro-organisms that make soil fertile), in the oceans, and in the atmosphere.

As you know, the global climate is being chemically altered by accumulating carbon dioxide in the atmosphere, the chemical structure of ocean is being acidified, while fresh water sources are being contaminated and land and soil on which society’s food system depends are being despoiled.

Locally in Athens County, one of the immediate threats of concern stems from the toxic fracking wastes dumped into injection wells. Those involved in variously challenging the safety of injection wells are aware that there are many other environmental problems and, at least activists have an understanding of the much larger environmentally damaging industrial, agricultural, military, and government policies and practices that wreak havoc on people and other species around the earth.

(5) Conservatives fight for the status quo

Assume that rich investors and the executives and boards of mega-corporations make decisions about nature that are bringing and will continue to bring economic benefits to themselves and to others in society. They contend that such decisions lead to the optimum (or best) allocation and use of resources. They and their ideological and media promoters emphasize that the economy works in a wondrous way. Decisions among big corporate actors are not collaborative or group decisions, and certainly not central planning. Rather the allocation of resources is said to be the outcome of a multiplicity of plans and policies made and fostered by individual investors, big banks and a variety of financial investment firms, individual corporations with investments around the globe,  networks of corporations, all driven by the desire to maximize their own particular economic interests. It’s all so complex that it defies any central guiding hand. Attempts to plan economic policies are not only inefficient they also, they say, have authoritarian tendencies.

Conservative economists argue that government intervention only serves to make a given problem worse than it is. With this in mind, rich investors and the corporate oligarchs use their enormous resources to shape and attempt to limit government policies, unless they are beneficial to interests to big corporations. They do this through large financial contributions to favored political candidates, political ads, conservative think tanks, the large-scale media, armies of lobbyists, the support of supra-organizations that represent big capitalists across economic sectors like the U.S. Chamber of Commerce and the Business Roundtable, industry trade groups (e.g., The American Petroleum Institute), and an ideology that promotes the view that there are no viable alternatives to the present capitalist system.

Insofar as “nature” is concern, capitalists, among many others, view nature as being “without limits,” at least in the knowable future.

(6) Liberals want to regulate and patch the status quo

Liberals do not always dispute conservative claims and corporate power, but they are more likely to advocate reforms or the enforcement of existing laws and regulations to protect the environment. There is some understanding of the importance of the degradation of the environment. They want both economic growth and a “clean” environment. In the last analysis, however, they typically go along with the idea that economic growth trumps the integrity of the environment, especially in a period of slow growth.

There are environmental laws and regulations (see: Lawyers.com – http://environment-law_lawyers.com/federal-acts-that-protect-our-environment.html.) From the liberal perspective, government environmental laws and regulations are designed to keep environmental degradation from becoming excessive, to impose legal penalties on the environmental-law breakers, and to require remedies to reclaim, often with taxpayer money, the parts of the degraded environment that are reclaimable. However, as we see in Ohio, the regulations are often weak, not adequately enforced, and unsuccessful because they are made within an institutional structure that favors a capitalist economy and leaves corporations the freedom to make decisions that do harm to others or “nature,” that is, do harm to particular places and people and other species, negatively affect the productivity of the land or pollute the air or water, etc.

When there are fines for violating environmental laws, the penalties are usually paid out of corporate revenues and have little effect on the authority, salaries/bonuses, or other accoutrements of office, or their status in the broad corporate community, or the top corporate executives.  Top executives rarely go to jail. The regulations are often imposed after-the-fact. There is no precautionary principle that requires products or processes to be proven safe to the “public” before they are allowed to be sold to consumers or prescribed by physicians. And, certainly, our economic system and those across the political spectrum still give priority to economic growth over environmental sustainability or regeneration.

 II. The “Rights of Nature” as a Legal Construct

The “Rights of Nature” are employed as a legal construct by some environmental activists, including activists in Athens, to protect local communities from government and corporate policies and practices that threaten available water sources, the air, and land, and to justify greater local, or municipal, government than before.

The Community Environmental Legal Defense Fund (CELDF) is a leading force in the movement to give rights to nature and to provide legal advice and support to local groups seeking more self-governance and the authority to protect their constitutional rights for safe and uncontaminated water, air, and land. Tish O’Dell, CELDF Ohio Organizer has shared by email a series of the organization’s article on the “Rights of Nature Resources.”

Relevance for Athens County

Before turning to the articles by CELDF, here are few thoughts on CELDF’s local influence on a local Athens group, the Bill of Rights Committee (BORC). The local group has proposed to change the county’s form of governance to a “charter” form of governance, which would give residents of Athens County a broader range of self-determination than the current form does (see also the recent article “Athens County to become a County Charter?”).

The goal of the group is to have the proposal included on the November ballot. to In addition to greater self-government, BORC wants Athens’ enable residents to use this enhanced governance structure to protect county residents from fracking, injections well, or any other economic endeavor that would be environmentally damaging and harmful not only to county residents but also to “ecosystems” in the county. First, here is what the proposal says about the rights of residents.

 “The purpose of the charter is to establish and exercise our right to local self-government as guaranteed by the Ohio Constitution, and to use this authority to protect our water, land and air from state sanctioned industrial pollution.”

 Among its list of fifteen “community rights” specified in the “The Petition for Submission of Proposed County Charter,” there is a section included that refers to the rights of nature, as follows:

“Ecosystems within the County of Athens, including, but not limited to, rivers, streams, wetlands, and aquifers, possess the right to exist, flourish, and naturally evolve, from activities prohibited by this Charter and other local enactments.”

There is also another section that combines the two sets of rights.

 “Rights to Clean Air, Water, and Soil. All residents of the County of Athens, along with ecosystems within the county, possess the rights to clean air, water, and soil.”

CELDF’s long standing position to have the rights of nature recognized in the law

Here is the full text of a statement from CELDF entitled “Rights of Nature: Background”

The Community Environmental Legal Defense Fund is working with communities in the United States and in countries around the world on grassroots organizing, public education and outreach, research, and legislative drafting – assisting people, NGOs, elected representatives, and government officials to craft and adopt new laws that change the status of natural communities and ecosystems from being regarded as property under the law to being recognized as rights-bearing entities.

Through this work, the Legal Defense Fund has assisted more than three dozen communities in the U.S., and assisted the Constituent Assembly of Ecuador, to put in place a new paradigm to protect nature – a paradigm based on rights.

Existing Environmental Laws Treat Nature as Property

 By most every measure, the environment today is in worse shape than when the major U.S. environmental laws were adopted over thirty years ago.  Since then, countries around the world have sought to replicate these laws.  Yet, species decline worldwide is increasing exponentially, global warming is far more accelerated than previously believed, deforestation continues unabated around the world, and overfishing by corporate trawlers in the world’s oceans is pushing many fisheries to collapse.

These laws – including the Clean Air Act, the Clean Water Act, and similar state laws – legalize environmental harms by regulating how much pollution or destruction of nature can occur under law.  Rather than preventing pollution and environmental destruction, our environmental laws instead codify it.  In addition, under commonly understood terms of preemption, once these activities are legalized by federal or state governments, local governments are prohibited from banning them.

In the U.S., title to property carries with it the legal authority to destroy the natural communities and ecosystems that depend upon that property for survival.  In fact, environmental laws in the U.S. were passed under the authority of the Commerce Clause, which grants exclusive authority over “interstate commerce” to Congress.  Treating nature as commerce has meant that all existing environmental law frameworks in the U.S. are anchored in the concept of nature as property.

Moving from a Property, to a Rights Framework to Protect Nature

The Legal Defense Fund has assisted communities in the United States to craft first-in-the-nation laws that change the status of natural communities and ecosystems from being regarded as property under the law to being recognized as rights-bearing entities.

Those local laws recognize that natural communities and ecosystems possess an inalienable and fundamental right to exist and flourish, and that residents of those communities possess the legal authority to enforce those rights on behalf of those ecosystems.  In addition, these laws require the governmental apparatus to remedy violations of those ecosystem rights.

In essence, these laws represent changes to the status of property law in the U.S., eliminating the authority of a property owner to interfere with the functioning of ecosystems and natural communities that exist and depend upon that property for their existence and flourishing.  They do not stop development; rather they stop development and use of property that interferes with the existence and vitality of those ecosystems.

 III. Some questions to think about

There is no doubt that the existing economic-political systems, certainly in the U.S., have defined “nature” and its “resources” as exploitable things that have no independent legal standing in law. Contrary to this, CELDF assumes that nature and its resources can be meaningfully defined as independent “entities” that deserve standing and protection before the courts and therefore deserve attention and support by not only environmentalists but also by all communities that recognize their need for protection by this radical legal innovation. Nonetheless, this position on the rights of nature needs clarification.

Question 1 — What does “nature” include? Does the definition go so far as to include the bacteria and other micro-organisms that are vital to making the soil fertile? (Check out the extraordinarily informative book by Kristin Ohlson, the soil will save us: How Scientists, Farmers, and Foodies are Healing the Soil to Save the Planet (2014).) The scientists, farmers and foodies to whom Ohlson refers are not making progress because of successful law suits. They are making progress because of their inventiveness and growing knowledge of organic farming. At the same time, laws that facilitate these practices would surely help to expand them.

Question 2 — Who will be given standing in the courts? Nature, or the relevant parts of nature, is not going to be given “standing” before the court. Nature cannot speak for itself. The implication of CELDF’s position is that there is a consensus or clear leadership in most communities and this leadership or consensus will represent in court the rights of nature at issue. Is this a safe assumption to think that there will be such leadership or consensus in communities? The assumption is based on rather limited evidence on this issue. At the same time, the idea is catching on, according to CELDF and organizations like Global Exchange (http://www.globalexchange.org/campaigns/rights-of-nature) and the Global Alliance for the Rights of Nature (http://therightsofnature.org/what-is-rights-of-nature).

Question 3 — Is there a way to overcome the status quo in the interest of the “rights of nature”? Undoubtedly, the “rights of nature” may fail to be accepted or fought for as a legal construct because hundreds or thousands of communities are limited in their environmentally-relevant options by the larger economic-political system and the existing distributions of power and wealth.

Question 4 — How can community-internal conflicts be resolved? If some groups in a community want to invoke the rights of nature to keep a potentially environmental destructive enterprise out of the community, there may in some or many other groups that want the enterprise for the jobs and tax revenues it might bring to the community. Most people and communities do not have readily available and viable options for jobs and other necessities, as viewed within the present political-economic-cultural context. With growing environmental and climate disruption and devastation, however, attitudes may change and the “rights of nature” may become one part of a program for the transformation of society. Even so, there may still be a need for innovative ways to resolve conflict.

Final remark: For a more in-depth analysis of concerns about the usefulness of the concept “the rights of nature,” please see Laurel Fish’s article “Homogenizing Community, Homogenizing Nature: An Analysis of Conflicting Rights in the Rights of Nature Debate,” Stanford University, June 2013 (http://web.stanford,edu/group/journal/cgi-bin/wordpress/wp-content/uploads/2013/06/Fish->pdf).

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A discussion of this issue is welcome. Please send your questions and/or contributions to SDFRAC at sdfrac@gmail.com.

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