Despite incremental improvements, stemming the tide of development (sorry, “progress”) can seem like an exercise in futility. But what if we gave nature itself—trees, rivers, entire ecosystems—a right, codified in our legal systems, to exist and flourish? Robin Milam, of the Global Alliance for the Rights of Nature, and Holly Doremus, a law professor at the University of California at Berkeley, square off.
What rights does nature have?
RM: Natural systems have the right to exist, persist, maintain, and regenerate. Not only do humans need for ecosystems to be healthy, but the ecosystems themselves need to be healthy and continue their natural cycles. We need to recognize that fact in our legal, social, and economic systems.
HD: The key difficulty, though, is deciding who speaks for a natural object and how they know what the wishes of the natural object are. How do we know whether a mountain prefers a ski run or a forest?
How can rights of nature change the way we protect the ENVIRONMENT?
RM: When rights of nature are adopted by a country, state, or community, an ecosystem under threat is given legal standing and representation, which can make all the difference in a case. Also, damages are assigned to repairing the ecosystem instead of going to the individual who owns the property. More fundamentally, it’s the recognition that nature isn’t just property to be bought, sold, and consumed. That natural systems in and of themselves have an intrinsic right to be healthy. Our legal system is currently set up to protect nature through regulations and permits, and that process is failing. Once a permit is deemed legal, there’s very little that a community can do to stop the process, whether it’s fracking or factory farming or mountaintop removal. That’s why some of them have passed rights-based laws.
HD: I don’t think it would help environmentalists win more cases in federal court. Standing difficulties involve proving future harm, generalized harms—things like global warming—and probabilistic harms where we’re pretty sure bad things are going to happen somewhere, but we’re not sure where. I don’t see intrinsic rights of nature getting us over any of those humps.
How do we balance, say, a tree’s right not to be cut down with a human’s right to a house?
RM: It’s not about an individual tree—it’s about entire ecosystems. We’re going to continue to cut down trees and use other natural resources, but the rights of nature should inform how we strike the balance. The ecosystem that’s part of a dispute is given legal standing when the laws of nature are part of the legal framework.
HD: I see defining rights of nature as highly problematic. What are the boundaries? Plus, if you just adopt rules that confer legal rights, I don’t see that getting us anywhere. You have to change people’s attitudes as well.
Even some environmentalists argue that we should be focusing instead on human rights to clean water and breathable air.
RM: That’s the approach we’ve already taken, and while certainly conditions have improved in specific areas, business as usual isn’t really working. We need to get out of the box and rethink how we relate to our planet and reclaim natural processes. The Rights of Nature movement is a continuation of the civil rights movement. We begin with our individual voices standing together to bring about the necessary systemic social, economic, political and legal changes for us to live in harmony with all life.
HD: People who don’t believe in the rights of nature might resist this kind of thing in a way that they wouldn’t resist another legal framework. For example, you don’t have to believe that creatures have an intrinsic right to exist to endorse the Endangered Species Act. And if we’re trying to get public funding to pay people to represent nature, politically I think that would be a tough sell.