By James Proffitt | August 19, 2019
In Toledo, Ohio, the Lake Erie Bill of Rights passed in February on a landslide vote even after a massive cash outlay by the opposition. That’s just one example of the way Rights of Nature is gaining traction worldwide.
The idea that nature itself, that a forest, river, lake or an underground aquifer, have the same type of inalienable rights that people do, is still novel, but it’s not really new. It’s been practiced by Indigenous communities all over the world for thousands of years, but it’s just been since the ‘70s that it’s gained attention and in the last two decades that it’s taken hold in many courts.
And in one nation’s constitution.
Toledo embraces Rights of Nature
The Lake Erie Bill of Rights idea took hold in earnest in Ohio a few years ago, after the Toledo water crisis, which shut down the city’s water plant for several days when a harmful algae bloom threatened residents with waterborne toxins. That bloom was blamed on farm fertilizers and animal manure, combined sewer overflows and weather conditions. After a lengthy fight to get the issue on the ballot, it passed. It was then immediately challenged in court.
Litigation is ongoing, with a number of parties entering the fray, including the Ohio Attorney General’s Office, which has sided with opponents. The lake’s legal rights have yet to be hammered out—or stamped out—by the courts.
Supreme Court justice pens compelling dissent half century ago
In the U.S., Rights of Nature made its first significant foray into the public arena in 1972. U.S. Supreme Court Justice William Douglas wrote a dissent in a case brought by the Sierra Club regarding a proposed Disney ski resort development in the Sierra Nevada mountains. In the end, the development never happened, and Douglas’ dissent still resonates with advocates for nature, nearly a half century later.
His dissent, in part:
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….
Douglas went on to mention corporations and ships, among others, as parties who are not human yet which are represented in courts:
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…
The voice of the inanimate object, therefore, should not be stilled.
Ecuador a leader in Rights of Nature initiatives
In 2008, Ecuador adopted a new constitution that included the natural world’s rights. It was different from any other constitution in the world, the first of its kind.
“We are going through a really important moment and transitions and changes,” said Natalia Greene, president of CEDENMA, the nation’s national coordinating entity for environmental non-governmental organizations. “So this really presents a great opportunity. We heard about Rights of Nature and we wanted to include it in the debates.”
Greene said 97 assembly members voted for it, with just a little more than a dozen against. Folks from around the world have been in contact with her and others, to find out how it works, how they can do the same thing, she said.
Greene is part of the Global Alliance for Rights of Nature, an organization founded in 2010 with the goal of disseminating the idea of Rights of Nature around the world.
“For so many companies and communities, they see nature as disposable,” Greene said. “Whether it’s trash or where they pollute. But we as humans are part of nature and we’re trying to say that we are interconnected with nature and we are inherently part of the cycle.”
While GARN is particularly involved in the South American region when it comes to Rights of Nature, its staff sees rising action on U.S. soil.
“You have more than 100 communities which have incorporated Rights of Nature in their ordinances in the U.S. or are trying,” Greene said.
Ohio community tries to protect its aquifer
One of those communities is in northwest Ohio. Williams County Alliance was formed in 2006 with a broad range of goals, including economic sustainability, education and citizen action, according to organizer Sherry Fleming. In recent years, the WCA has zeroed in on a threat to its regional water supply, the Michindoh Aquifer, using Rights of Nature in its fight.
“It’s considered a sand and gravel aquifer, and it was deposited about 14,000 years ago,” Fleming said. “It truly is our only economically feasible source of water because we don’t have some of the alternatives like other places, which have rivers.”
Fleming described the aquifer, which lies beneath nine counties at the intersection of Michigan, Indiana and Ohio, not as an underground lake or river, but more like water mixed with sand and gravel. When you begin taking too much out, she said, there could be serious trouble.
WCA turned to Rights of Nature when they learned a local company planned on pumping up to 10 million gallons a day from the Michindoh then selling the water outside the boundaries of the aquifer.
After Williams County petitioners offered up more than the required number of signatures to place a citizen initiative on the ballot, the local board of elections ruled in July the ballot initiative was unconstitutional. Petitioners sued, and a common pleas court judge ruled shortly thereafter the ballot initiative was unconstitutional.
WCA, with assistance from the Community Environmental Legal Defense Fund, has asked the Ohio Supreme Court to force the local board of elections to move forward with the ballot initiative for the November election, allowing voters to decide the fate of the Michindoh aquifer. The court will issue a written opinion at some point in the future.
Rights of Nature stalled in Ohio
However, in Ohio, the future of Rights of Nature took a hit July 17 when the House of Representatives and Senate agreed on a budget bill specifically banning those cases from courts in the state. The language reads, in part:
“Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas….” and “No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.”
Since 2012, nearly three dozen Rights of Nature initiatives have qualified for city and county ballots in Ohio and have faced varying levels of obstruction. Fourteen measures were removed from the ballot and not allowed a vote, and five have been passed into law by voters, according to Tish O’Dell, Community Environmental Legal Defense Fund’s Ohio community organizer.
“In other words, they’re saying they protect the lake when we know they’re not,” she said. “They’re protecting corporate interests and then when people try to protect nature, the more the government does everything within its power to make sure that doesn’t happen.”
O’Dell said she believes the language was inserted into a budget bill of several thousand pages purposefully, to get it passed with little fanfare or public input.
State Sen. Matt Dolan and Rep. James Hoops are credited with the insertions. Neither responded to GLN requests for comment.
Yvonne Lesicko, vice-president of public policy with the Ohio Farm Bureau said her organization and its members definitely support conservation and clean water, but not Rights of Nature in its current form, calling it “unconstitutional and unenforceable.”
“Instead,” Lesicko said, “we’d like to see our farmers continuing not to have to worry whether they’re going to be sued, but instead putting their mental and financial efforts into continuing the conservation practices they’re already undertaking in order to find real solutions. At best it’s distracting and at worst it’s unconstitutional.”
She said the organization did not pursue having the language inserted in the budget bill but fully supports it.
“Farmers have been working very hard, and in Ohio they’re good conservationists and they’re good stewards of the land and the water,” Lesicko said. “We’ve seen it time and time again, they’re doing the right thing out there in the countryside all over the state.”
She described an oversimplification that farmers in Ohio face: that because they don’t support LEBOR or Rights of Nature they don’t support water quality.
“Farmers are just as frustrated as everyone else, and the problem is there isn’t a silver bullet or a one-size-fits-all solution. They’re more than happy to work toward solutions when they know they’ve got good science-based practices that can work on their fields.”
Troubles for nature mean more interest
“It’s been kind of a mixed bag,” said Grant Wilson, an attorney with Earthlaw.org, referring to the response to Rights of Nature. “When nature has rights, and what does that mean, and how does it fit into our legal system – we’re really grappling with that.”
Wilson said as more people in the U.S. and around the world became aware of environmental issues Rights of Nature is likely to gain even more momentum.
“A lot of people are beginning to realize the ecological crises we’re in,” he said. “But giving an ecosystem rights doesn’t mean that centuries will change. There have been a lot of cases that have cited Rights of Nature since Douglas’ dissent, and there have been some court cases that said ‘Yeah, you have to restore this river ecosystem to health,’ and other times they’ve said that companies have economic rights as well, the right to exploit the ecosystem. So it’s been kind of a mixed bag.”
Successes, failures: momentum is gaining
Despite legal setbacks almost daily, the idea is growing and moving in a positive direction according to Hal Crimmel, filmmaker and English department chair at Weber State University.
Crimmel wrote, co-produced and directed “Rights of Nature: A Global Movement,” which explores the origins, present and future states of the movement and has been screened around the world.
“Some hav been successful, some haven’t,” he said. “It’s a real, growing movement in Indigenous communities in the nations. I think people are frustrated.”
Crimmel said one of the greatest challenges facing the issue is funding, especially when the adversaries are most often large corporate entities with deep pockets.
“Who’s going to put up the money to take them to court or defend themselves against lawsuits filed by them?” he asked. “That’s really a big piece of the picture. And there’s also enforcement. In South America, do the governments have the muscle or the will to enforce the law, even though people in Colombia or Ecuador are extremely proud of these laws?”
Enforcement of Rights of Nature laws has often been lax, Crimmel said.
“Any time you have some sort of new idea I think it takes a really long time before it’s really implemented,” he said.
Despite the challenges of funding and governmental opposition in so many arenas, Crimmel said he has high hopes for Rights of Nature’s future.
“I’m pretty optimistic about the idea,” he said. “I think it’s got a lot of traction. There are a lot of legs to this thing. In South America, and a lot of Europeans are interested in it, too. In the end it’s really going be about implementation.”