A River and Its Water: Reclaiming the Commons - Part 40
40th of a series
“The river, for example, is the living symbol of all the life it sustains or nourishes. . . .”
- William O. Douglas, Sierra Club v Morton (1972)
In 1972 Christopher Stone, a little-known faculty member at USC Law School, published an article titled “Should Trees Have Standing? – Toward Legal Rights for Natural Objects.” Stone’s thesis was that non-human natural things, such as trees and rivers, suffered real harm as a result of human activities but had no legal remedy to protect themselves. They did not, in the legal terminology, have standing – the ability to show that they have been directly or indirectly harmed by an action. It’s hard to argue that they haven’t been harmed, but lawsuits had never before taken their rights into account. Only an aggrieved human could sue.
When I first read this article decades ago, it seemed, well, far-fetched. Stone himself called it “unthinkable.” But he traced over time the extension of rights from encompassing only self and extended family to all humankind; and he described the law gradually expanding to include children, women, the enslaved. “The fact is,” he wrote, “that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of "us" – those who are holding rights at the time.”
Finally, he demonstrated that inanimate things – trusts, municipalities, nation-states, corporations – had been defined under the law as persons for a long time – long before the Supreme Court said so in 2020 in Citizens United v Federal Election Commission.
In 1972, the idea that natural objects could have legal standing was not as far off the rails as it seemed. For in that year, the Supreme Court issued a ruling in Sierra Club v Morton that is now best remembered for Justice Douglas’s powerful dissent. Called “the most liberal justice ever,” Douglas wrote widely about the wilderness, and it’s worth quoting from his dissent, in which he cited Stone’s article:
“The critical question of ‘standing’ would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. . . .The ordinary corporation is a ‘person’ for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”
In the ensuing 52 years, the idea of “rights of nature” has gone from the fringe to the forefront. Led by Pennsylvania attorney Thomas Linzey, many municipalities have drafted laws, the first being Pittsburgh in 2010; and several countries, starting with Ecuador in 2008, have written the rights of nature into their national constitutions, including New Zealand, India, and Mexico.