Does Nature Have Rights? A Burgeoning Legal Movement Says Rivers, Forests and Wildlife Have Standing, Too

Does Nature Have Rights? A Burgeoning Legal Movement Says Rivers, Forests and Wildlife Have Standing, Too

For Chuck O’Neal, a lifelong outdoorsman and environmentalist, the moment of truth came on election night 2020, as results rolled in from perhaps the most partisan campaign season in American history.

He wasn’t watching Trump or Biden. O’Neal had spent the past two years running a campaign in Orange County, Florida, based on an unorthodox legal doctrine that holds that rivers, mountains and forests should have legal rights, just like people. 

His effort involved amending the county’s charter, its mini-constitution, with a so-called rights of nature provision. The provision would protect waterways like the glassy Wekiva River from harmful pollution, such as that linked to toxic algae blooms fueled by fertilizer runoff from agriculture, septic systems and poor stormwater management. 

While the rights of nature movement has been gaining ground for decades in countries around the world and in dozens of local jurisdictions in the United States, O’Neal knew that this fast-growing county in central Florida, home to Disney World in booming Orlando, would offer one of its biggest tests.

The concept of rights of nature was so far outside of the U.S. legal mainstream, and so threatening to agribusiness and other industries, that even O’Neal doubted that more than 50 percent of voters would go for it. 

So, late on election night, when a colleague spun around his silver laptop to reveal the final results to O’Neal, he stared in disbelief. 

“You’ve got to be kidding me,” O’Neal called out to a nearly empty dining room overlooking the river.

There, on the fluorescent screen, was one of the biggest surprises of the 2020 election: 89 percent of Orange County voters had united behind the rights of nature.

O’Neal’s fight had just begun.

Gaining Urgency

The legal movement for the rights of nature began with a seminal 1972 law review article, Should Trees Have Standing, by Christopher D. Stone, a law professor at the University of Southern California, who wrote that he was “quite seriously proposing” giving legal rights to nature. 

The idea was famously taken up by Supreme Court Justice William O. Douglas in a dissent in the case ​​Sierra Club v. Morton, but couldn’t muster support from a majority of the court.

In the years since then, the concept has surfaced globally in legislation, judicial rulings and constitutional amendments in countries that include Canada, Mexico, France, Columbia, Pakistan, Bangladesh, Bolivia, India, New Zealand, Ecuador and Uganda. At the United Nations, a Harmony With Nature program has helped coordinate and advance the movement, with nongovernmental organizations playing a leading role.

'Rights of Nature' Gaining Traction Across the Globe

In the United States, rights of nature laws have taken root in more than 30 localities across the country, in, among other states, Ohio, Colorado, Pennsylvania and Minnesota. Florida, home to Republican Gov. Ron DeSantis, a leading Trump supporter, has become an unlikely epicenter, while other Florida cities like Titusville, Venice, Fort Myers, Naples and other jurisdictions are in varying stages of developing their own rights of nature ordinances, following Orange County’s example. 

Still, no U.S. court has ever upheld a rights of nature law, although some remain on the books, in effect awaiting litigation. The U.S. laws, so far mostly local ordinances, face unique obstacles because of legal precedent that subordinates local government laws and lawsuits to state legislation.  A hearing scheduled for November on Orange County’s charter change could be the most consequential legal moment to date for the rights of nature concept in the American courts. 

The doctrine holds that nature and its component parts are not “things” or property but living beings with intrinsic value and an inherent right to exist. The idea is centuries old, existing primarily in Indigenous and other land-based cultures. But with pollution and deforestation threatening vast swaths of the planet and climate change amplifying sea level rise, extreme weather and mass migration, the concept of granting rights to nature has gained saliency and urgency across the globe over the last 15 years. 

As the movement matures, it has dovetailed with a global push to criminalize ”ecocide,” or widespread destruction of the environment. That campaign aims to add “ecocide” as a fifth crime, alongside genocide and crimes against humanity, before the Hague-based International Criminal Court.

The ecocide and rights of nature movements both advance the idea that Earth is intrinsically worthy of protection: ecocide through criminal laws and the rights of nature mainly through civil and constitutional lawsuits. 

Both movements are premised on the belief that a new legal framework is needed, because existing laws have failed to stop accelerating environmental emergencies like climate change and mass species die-offs. 

While the crime of ecocide would outlaw only severe environmental destruction, rights of nature laws aim to protect against more commonplace acts, like government permitted pollution. The concept has raised the question: What level of human impact on nature is acceptable?

The movement is causing friction with what are considered fundamental rights in western legal systems: individual liberty and personal property. If nature has rights, then human beings have new responsibilities and will have to restrict certain activities that unjustifiably impair those rights. 

That tradeoff between values and responsibilities isn’t new in America, in the realm of environmental protection or otherwise, but as the Covid-19 pandemic has shown, some Americans resist the imposition of new duties, even if they are for the common good and the wellbeing of future generations. 

Still, perhaps counterintuitively, the United States is where the vast majority of rights of nature laws have been enacted at the local level. Galvanized by oil spills, toxic waste dumps, lead-tainted water, air pollution and fracking, Americans increasingly battered by climate change have been drawn towards the rights of nature movement, as Chuck O’Neal was in Orange County. 

The Battle in Orange County

An animal lover who’d grown up camping in state and national parks, O’Neal had served as the natural resources chair for the Florida chapter of the League of Women Voters in the early 2010s, helping draft legislation aimed at protecting Florida’s waterways. 

Time and time again, he would watch as industry lobbyists, chambers of commerce and corporate bigwigs picked over the bills until they had lost all meaningful effect. The experience left a bad taste in his mouth. 

In 2018, when toxic algae blooms reached their most severe levels yet, killing off thousands of tons of wildlife like fish, manatees and dolphins, as well as imperiling the state’s critical tourism economy, O’Neal decided he had to find a way to break the control that lobbyists and legislators had over Florida’s ecosystems. Those groups hadn’t just passed watered-down environmental laws, they had also erected barriers that kept citizens and environmentalists out of court. 

A landscape in Orlando. Credit:Jeffrey Greenberg/Universal Images Group via Getty Images
A landscape in Orlando. Credit:Jeffrey Greenberg/Universal Images Group via Getty Images

He thought back to a two-day course he had taken a few years earlier with a lawyer named Thomas Linzey, 52, now the senior legal counsel for the Center for Democratic and Environmental Rights, based in Spokane, Washington. 

Linzey, using a wood easel, paper and magic markers, had explained how communities can challenge corporate power and protect their local environment using rights of nature laws. At the time, the concept resonated with O’Neal, but he shelved the idea, thinking Floridians weren’t ready to accept it. 

But by 2019, with algae blooms becoming longer and more severe, O’Neal thought a moment had arrived. That April, O’Neal asked Linzey to fly down from Pennsylvania to talk to a group of about 30 fellow environmentalists in his living room. The verdict soon was in: “People’s minds were blown,” O’Neal said of the meeting.

To test Floridian’s acceptance of the idea, Linzey and O’Neal selected Orange County as a bellwether because of its status as a charter county, which under Florida’s constitution gives citizens greater authority to enact local laws. 

The two worked together for over a year, meeting weekly on Zoom, to shepherd a draft charter amendment through the lengthy review process. Included in the draft was another first in U.S. law: a human right to clean water. 

Even at the local level, their efforts hit snags. To place the rights of nature on the ballot, it first had to clear the charter review commission, which included a number of developers who tried to derail it, Linzey said.  

By June 2020, the amendment was on the ballot and O’Neal had inspired about 75 volunteers, who posted nearly 2,000 signs around the county emblazoned with slogans promoting their cause. 

“I had never seen anything like it,” Linzey, who has drafted more than 30 U.S. rights of nature laws, said of the campaign and voters’ embrace of the movement. 

On Nov. 3, 2020, Orange County became the largest municipality in the United States to pass such a law. 

But unbeknownst to many of those voters, Florida’s legislature had already put in place its own form of damage control. 

The First Case: Tamaqua, Pennsylvania

Linzey, a frequent speaker and legal consultant on the rights of nature and community rights, first met Cathy Morelli, a city councilwoman in Tamaqua, Pennsylvania, in 2006. 

She had come to him in her fight against toxic sewage sludge that had killed two youths in nearby communities. The news stories shook Morelli, who over the previous three years had witnessed the illness and deaths of more than 10 neighbors, including her own father’s battle with leukemia. The cases were unusual, such as clusters of polycythemia vera, a rare form of blood cancer. Though rates of the disease were over four times higher in the area, officials found no environmental link. 

The town had become a sacrifice zone for industry, Morelli thought, and now some of its leaders wanted to issue permits for a new round of dumping. She knew she had to do something to stop it, but wasn’t sure how. 

Linzey and Ben Price, another rights of nature activist, helped Morelli draft an ordinance that aimed to prevent further hazardous waste dumping in Tamaqua, a town of almost 7,000 in eastern Pennsylvania’s coal country. They included a provision no one had ever used before, giving legal rights to “natural communities” and ecosystems. The solidly Republican town threw its weight behind Morelli’s ordinance, helping it become the first known rights of nature law in the world. 

Though the 2006 Tamaqua ordinance has never been tested in court, Price credits the law with deterring a dredging company from moving forward with planned sludge dumping in a mining pit near the town. 

News of the pathbreaking law would make its way around the country—and the globe—inspiring communities and governments at all levels to embrace the movement. 

One of those communities was Toledo, Ohio, where residents, with Linzey’s help, passed the 2019 Lake Erie Bill of Rights, in response to a number of environmental affronts, including toxic algae blooms caused by agricultural runoff.

Horacio Romero of Toledo, Ohio looks at algae in Lake Erie at Maumee Bay State Park Aug. 4, 2014 in Oregon, Ohio. Credit: Aaron P. Bernstein/Getty Images
Horacio Romero of Toledo, Ohio looks at algae in Lake Erie at Maumee Bay State Park Aug. 4, 2014 in Oregon, Ohio. Credit: Aaron P. Bernstein/Getty Images

Immediately after, an agricultural organization filed a lawsuit in federal court to stop the law from taking effect. A judge struck it down for being unconstitutionally vague. Other U.S. rights of nature laws have been nullified on grounds that they are superseded by state law. 

Linzey and other lawyers are now advancing the idea that municipalities have inherent authority to self-govern and that states should set the floor, not the ceiling, on environmental regulations, allowing communities to enact more stringent protections if they choose to do so.  

Most recently, Linzey has worked with attorneys who filed a lawsuit this summer in the White Earth Nation Tribal Court in Minnesota to stop construction of Enbridge Energy’s Line 3 oil pipeline, asserting the legal rights of manoomin, or wild rice, to “exist, flourish, regenerate and evolve.” The suit was the first rights of nature claim ever filed in a tribal court. 

Demonstrators gather in the Mississippi River while others march across it during a 'Treaty People Gathering' protest in Clearwater County, Minnesota, on Monday, June 7, 2021. Credit: Nicole Neri/Bloomberg via Getty Images
Demonstrators gather in the Mississippi River while others march across it during a ‘Treaty People Gathering’ protest in Clearwater County, Minnesota, on Monday, June 7, 2021. Credit: Nicole Neri/Bloomberg via Getty Images

At issue is Minnesota’s approval of Enbridge’s request to pump billions of gallons of fresh water during a drought, which attorneys say harms tribal members and the manoomin. Linzey explained that the law aims to protect the legal rights of manoomin, which is sacred to some Indigenous peoples, both on-reservation as well as off-reservation, and is part of a wider effort toward connecting the rights of nature to Indigenous treaty-held rights on territory ceded to the United States. 

“That could have ramifications for all tribal nations across the United States who want to use rights of nature laws to enforce their hunting, fishing and gathering rights on traditional tribal lands,” Linzey said. He expects that state governments, which have traditionally ignored tribal nations when making permitting and other decisions affecting those treaty rights, will fight hard to block the rights of nature laws. 

In August, the state of Minnesota filed for an injunction in federal court to strip the White Earth Nation’s Tribal Court of jurisdiction to hear the manoomin litigation. A judge denied the request, and the state has appealed. 

“We can expect the same kind of hostility from other state governments, as tribes begin to enforce their treaty rights on their traditional lands,” Linzey said.

In Florida, Agribusiness Calls Rights of Nature a ‘Direct Threat’

At the same time O’Neal was campaigning for Orange County’s rights of nature charter amendment, an omnibus bill dubbed the 2020 Clean Waterways Act, aimed at improving state water quality, had been making its way through Florida’s legislature.

Before the final vote, a 29-word clause was inserted into the 111-page bill, preempting and prohibiting local governments from recognizing or granting legal rights to the natural environment. The preemption clause is something state legislators often use on a variety of issues to prohibit and extinguish local laws on issues from pollution to health care. 

While conservatives historically have championed local control over centralized government, Florida has taken the opposite tact under Gov. DeSantis. In July 2020, he signed the Clean Waterways Act, preempting O’Neal’s charter amendment before voters in Orange County even went to the polls, voting overwhelmingly in favor of rights of nature. Most voters did not seem to realize that the state legislature had already moved to nullify their vote.

Just after the legislation went into effect, the Florida Farm Bureau Federation, an agricultural industry group, awarded state Rep. Blaise Ingoglia, a Republican, their 2020 Legislator of the Year award, noting Ingoglia was the “driving factor” ensuring the 2020 Clean Waterways Act “contained the Rights of Nature preemption language.”

Neither the Florida Farm Bureau Federation nor Ingoglia responded to requests for comment.

In a 2020 newsletter for the Turfgrass Producers of Florida, Charles Shinn, director of government and community affairs for the Florida Farm Bureau Federation, wrote that rights of nature laws are a “direct threat” to agriculture and that “business lobbies and any groups that are concerned about private property rights” would have to support the preemption legislation. Shinn did not respond to a request for comment. 

O’Neal was incensed at what he called an anti-democratic move by Tallahassee politicians, and he and Linzey immediately began planning how to nullify the Farm Bureau’s efforts to derail the charter amendment.

Jerry Phillips, a former Florida Department of Environmental Protection lawyer, said loosening the grip of industry groups like the Farm Bureau from the institutions meant to protect Florida’s environment won’t be easy. 

“You have to live in Florida to understand just how backward it is, but everything is geared towards greed,” said Phillips, now the director of Florida’s Public Employees for Environmental Responsibility. “Everything is geared towards fostering more people coming into the state, more business, more development and if that means destruction of wholesale areas of the state, so be it, they will do it.”

After the election, O’Neal began his own legal maneuvering, eyeing a developer, Beachline South Residential, which was planning to fill in over a hundred acres of wetlands, freshwater marsh and wet prairie to build mixed-use residential and commercial retail across 1,923 acres in east Orange County. 

To O’Neal, the development had “test case” written all over it. 

Rights of Nature Around the World

Unlike Florida, not all governments have resisted rights of nature-like laws. In countries like New Zealand, officials have welcomed the idea as a means to redress legacies of human rights abuses, create a more pluralistic legal system and safeguard important ecosystems.

In 2014, Māori tribes and New Zealand officials finalized a settlement in a 175-year old dispute related to the Whanganui River. The settlement established a new paradigm for the waterway, also called Te Awa Tupua, giving it a form of legal personhood that mirrored Māori worldviews. New Zealand has worked with the Māori to create similar frameworks for a national park and Mt. Taranaki.

Members of a Maori crew rest their paddles after paddling with  on the Whanganui River on May 14, 2015 in Wanganui, New Zealand. Credit: Hagen Hopkins/Getty Images
Members of a Maori crew rest their paddles after paddling with on the Whanganui River on May 14, 2015 in Wanganui, New Zealand. Credit: Hagen Hopkins/Getty Images

The settlement recognized that the government’s predecessor, the British Crown, had surreptitiously taken sovereignty over the tribes and the territories they had occupied for centuries, forcibly introducing the concept of property ownership on the Māori. 

The Crown had predicated its ownership over the land on the doctrine of Discovery, an international legal concept based on the idea of western superiority over other cultures. The land grabs had crippled the tribes’ way of life, including their spiritual connection to the river, which they view as their ancestor. 

In other countries, courts have had opportunities to interpret the laws, and in several cases, to recognize the rights of nature of their own accord. 

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In Bangladesh, known as the land of rivers, the Supreme Court in 2019 acted on its own to recognize the rights of all of the country’s rivers, noting the environmental importance of water now and into the future. Courts in Columbia, Brazil and India have taken similar actions.

In 2008, Linzey and Price assisted with the drafting of Ecuador’s constitution, which enshrined the rights of Pachamama, or Mother Earth. Since then, Ecuador has been the epicenter of enforcement litigation. 

While there have been some adverse rulings, dozens of cases filed in Ecuadorian administrative and lower courts have resulted in decisions favorable to ecosystems, including a river, mangroves and a jaguar. And, pending before Ecuador’s Constitutional Court are at least three rights of nature cases that could have bearing on how the laws are effectuated throughout the country. 

Pastaza River leaving the Andes and entering the lowlands of the Oriente in Ecuador. Credit: Rolf Schulten/ullstein bild via Getty Images
Pastaza River leaving the Andes and entering the lowlands of the Oriente in Ecuador. Credit: Rolf Schulten/ullstein bild via Getty Images

At stake in one of those cases is whether government-approved mining is allowable within the Los Cedros Reserve, a protected forest. The case highlights the tension between aspiration and reality in Ecuador, which is still heavily dependent on extractive industries and the foreign investment that comes with it. 

For Mari Margil, executive director at the Center for Democratic and Environmental Rights, that tension makes changing people’s beliefs about nature important. “You can’t just pass a law and feel comfortable that the government will properly implement it,” she said. “The organizing never ends. That’s the case in any social justice movement, and the rights of nature isn’t an exception.” 

In Florida, Two Streams, Two Lakes and a Marsh File Suit

In April, Chuck O’Neal, in his capacity as president of the nonprofit Speak Up Wekiva, and five waterways protected by Orange County’s rights of nature law—Wilde Cypress Branch, Boggy Branch, Crosby Island Marsh, Lake Hart and Lake Mary Jane—all filed suit as named plaintiffs against Beachline South Residential, the Orlando developer. Noah Valenstein, secretary of the Florida Department of Environmental Protection, was also named as a defendant.

“The proposed development violates the right to exist of the Crosby Island Marsh, Lake Hart and Lake Mary Jane by cutting off and/or restricting the sufficient flow of clean water into these protected bodies of water,” the lawsuit said. 

'Rights of Nature' Suit Filed Against Florida

The defendants have invoked the Clean Waterways Act, claiming it preempts the county’s rights of nature charter amendment. The waterways and O’Neal disagree, arguing that the state legislation is vague and violates the county’s rights as a charter government to enact its own laws. A hearing on the issues is set for November, in what is likely to be the beginning of a long and potentially precedent-setting journey through the appellate courts. 

At the same time, O’Neal is pursuing a statewide ballot initiative aimed at amending Florida’s constitution to, among other things, recognize certain rights of nature. The campaign is aiming to secure the required 891,000 petition signatures in time to put the initiatives on the 2022 ballot, taking the fight over the rights of nature straight to Tallahassee and potentially making the 2022 midterms the biggest moment yet for the movement.

The developments in Florida are consistent with how advocates elsewhere are advancing the laws. Enforcement of existing legislation has taken center stage, with litigation enforcing nature’s rights cropping up from Minnesota, as tribes battle to block Line 3, to Ecuador, where advocates are anxiously awaiting the Supreme Court’s rulings. 

Lawyers like Grant Wilson of the Earth Law Center expect those court cases to sharpen the practical effects of the laws: “Let’s say a river has rights. What does that mean in practice?” Wilson said. “It could mean, for example, that the government must establish plans to remove dams with significant negative ecological impact. Or it could mean that a river, through a legal guardian or other means, has the opportunity to participate in governmental decision-making impacting the health of the river.” 

Seizing on the momentum gathering in courts around the world, Wilson has co-written an “Earth Law” case book and is working internationally with law schools to train students, lawyers, judges and government officials on the concepts.

“People say that no legal theory can stand up against all of the big industries of the world and I think we can overcome that,” Wilson said. “That’s part of why we’re training lawyers and judges because when we bring that big landmark case against someone like Chevron, they’ll recognize that nature has rights. I think we can get there.”

For O’Neal, there’s not only his conviction that rivers, mountains and forests have rights, but the deeply held belief that those basic rights were wrongly left out of the U.S. Constitution over 200 years ago, because of what he calls a myth about the over abundance of nature. With the Earth’s population now close to 8 billion people, he said, the world is much smaller than we thought. 

“We have to find a balance between nature and commerce, and right now we’re so far out of balance that the world is spinning out of control,” he said. “We can create a new system, building a body of law that recognizes fundamental rights of nature. I think it’s our last and best hope to save the planet.”

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