The rights of nature: an evolving jurisprudence
M’Ballou Yacine Sanogho
August 29, 2002
The rights of nature is a legal theory that ascribes inherent rights to ecosystems and species, embracing an indigenous ideology. Although Western legal theory tends to view nature as a tangible thing that can be exploited by landowners, humans and corporations, the rights of nature theory follows indigenous views more closely, understanding nature as an intangible living space free of ownership and one in which humans, animals and businesses must coexist.
Numerous countries and cities worldwide have already implemented the rights of nature in constitutional provisions, local ordinances, and court decisions. These laws generally recognize the rights of nature in general or recognize the rights of specific ecosystems, waterways, species, or plants. Additionally, the laws allow anyone to bring legal actions on behalf of the natural ecosystem in case of potential violations. In this article, we provide a brief overview of this emerging jurisprudence in various countries.
North America
In the United States' indigenous communities, the rights of nature were always part of their ancestors' core principles. Thus, adopting and advancing the rights of nature laws and policies was a natural process. In Wisconsin, the Ho-Chunk and the Menominee Tribes recognize the rights of Nature and the Menominee River, respectively. In Oklahoma and Minnesota, the Ponca Tribe and the White Earth Ojibwa recognize the rights of nature and wild rice. The White Earth Ojibwa adopted the world's first rights of nature law that protects a plant species, “the manoomin,” or wild rice. The law recognizes the rights of wild rice to “exist, flourish, reiterate, and evolve, as well as inherent right to restoration, recovery, and preservation.” In California and Idaho, the Yurok Nation and the Nez Perce Nation recognize the rights of the Klamath and Snake rivers, respectively.
Despite the increasing awareness of climate change and pollution in the United States, the rights of nature are not recognized at the U.S. federal level. Part of this failure is due to U.S. lawmakers and federal courts' reluctance to recognize nature's legal standing to bring a legal claim in its own right.[i] However, at the local level, several municipal laws recognize the legally enforceable rights of nature. These local laws allow any person to bring an action in the name of the natural community or ecosystem. The remedies require the restoration of the damaged ecosystem to its pre-damages state or compensation paid to the local government to repair the damages.
Certain examples of such local laws include: the Tamaqua Borough Ordinance recognizing the rights of the ecosystem to “exist, flourish, and naturally evolve” (the first law on the rights of nature), the Lake Erie Bill of Rights recognizing the rights to a "clean and healthy environment" and Orange County's Right to Clean Water recognizing the rights of local bodies of waters to "exist, flow, be free of pollution, and maintain a healthy ecosystem.” The local authorities' power to adopt local ordinances on the right of nature or similar rights derives from the Tenth Amendment of the United States Constitution, which gives any power not delegated to the Federal government, nor prohibited, to the states or the people.
Similarly, Canadian law does not recognize the rights of nature. Numerous statutes in Canada make nature—from fisheries to wildlife to the land itself— the exclusive property of humans, with no inherent right to exist, flourish, or be restored.[ii] However, an indigenous council and a municipality adopted the Rights of Nature law, protecting the Magpie River.
Latin America
Mexico does not have federal laws on the rights of nature. However, the states of Mexico City, Colima, and Guerrero recognize the rights of nature in their state constitutions. Moreover, since taking office in late 2018, Mexico's president Andres Manuel Lopez Obrador has promoted a significant reforestation program, pledged to phase out certain pesticides and fought against fracking.[iii] That being said, President Obrador has faced criticisms for prioritizing Mexico's state-owned energy companies, including Pemex and CFE.[iv] His government also postponed a rule requiring clean-burning diesel until after he leaves office in late 2024, “arguing that Pemex lacks the infrastructure to meet it.”[v]
Brazil does not have federal laws on the rights of nature. However, the cities of Bonito, Paudalho, and Florianópolis have approved municipal laws recognizing the rights of nature. These laws recognize “the right of nature to exist, thrive and evolve” and place an obligation on municipal governments to take steps to ensure that right is protected. Moreover, Brazilian President Jair Bolsonaro's anti-environmental policies have been criticized, including his intention to open the Amazon for exploitation.
In Columbia, the Constitutional and Supreme Courts recognized the rights of the Ria Atrato and the Amazon, respectively. The Boyocá Administrative Court and other lower courts have also recognized the rights of several waterways and ecosystems.
In Bolivia, the legislative assembly in 2010 passed a law of Rights of Mother Earth, which gives nature legal rights to life and regeneration, biodiversity, water, clean air, balance, and restoration. It mandates a fundamental ecological reorientation of Bolivia's economy and society, requiring all future laws to adapt to Mother Earth law and accept the environmental limits set by nature.
Asia, Australia and Africa
The trend of local recognition continues in Asia. For example, Indian federal laws have yet to recognize the rights of nature. However, the high courts of Uttarakhand, Punjab, and Haryana recognized the legal rights of the Ganges and Yamuna Rivers, glaciers, the entire animal kingdom, the Sukhna Lake, and other ecosystems.
Bangladesh does not have federal laws on the rights of nature. However, the High Court recognized the legal rights of all rivers within the country and ordered the National River Protection Commission to serve as the guardian for the waterways.
Australia does not have federal laws on the rights of nature. However, in 2020, in New South Wales, Australia, the Blue Mountains Council adopted a measure to integrate the Rights of Nature into its municipal planning and operations. On the other hand, New Zealand's Parliament began implementing traditional indigenous knowledge of the Maori people with their modern legal system. It became one of the first countries to give legal personhood status to a mountain, river, and national park.
Uganda amended its National Environment Act in 2019 to include the rights of nature. It states in part, “Nature has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions, and processes in evolution.”
Nature in constitutions
Ecuador was the first country in the world to incorporate the rights of nature into its 2008 constitution. Under Ecuadorian law, nature has the right “to integral respect for its existence and the maintenance and regeneration of its life cycles, structure, function, and evolutionary processes.” People have standing to invoke nature's rights, and such rights apply widely in civil, criminal, administrative, and operational laws. However, like its northern neighbor, the United States, where courts are battling to determine nature's legal standing, the Ecuadorian courts' dilemma focuses on priority. That is, whether the natural ecosystem has precedence over a company's property rights (Marmeza Shrimp 2015) or economic development (i.e., national interest) (Condor-Mirador 2012).[vii] Moreover, the administration of the President Guillermo Lasso enacted Executive Decrees 95 and 151 in August 2021, aiming to relax environmental controls to fast-track foreign mining companies' entrance into the Amazon, despite Indigenous peoples' firm decision to keep their territories mining-free.[viii]
The decrees are part of the new Presidential administration's public policy strategy to address the South American nation's crippled economy and colossal foreign debt by doubling down on the exploitation of nature. Both decrees formalize the mechanisms for government institutions, such as the Ministry of Energy and Non-Renewable Resources and the Ministry of Environment, Water, and Ecological Transition, to swiftly grant environmental licenses to oil and mining industries while evading international laws and the country's constitutional framework. The Indigenous Peoples were not consulted nor gave their consent to either Decree. The President's decision demonstrates grave setbacks in guaranteeing human and collective rights and the rights of nature and reinforces a long history of human rights abuses and socio-environmental conflicts in the Amazon linked to the oil, gas, and mining sectors.
Bolivia adopted the rights of nature in its 2009 Constitution. Additionally, in 2010 Bolivia's Legislature passed the Law of the Rights of Mother Earth, Act No. 071. In 2012 it adopted the Law of Mother Earth and Integral Development for Living Well Act. No. 300, which provided some implementation details consistent with nature's rights. It states in part that the “violation of the rights of Mother Earth, as part of comprehensive development for living well, is a violation of public law and the collective and individual rights.” However, this aspect has yet to be enforced.
International initiatives
At the international level, The Universal Declaration for the Rights of Mother Earth was written and presented at the World’s Peoples Conference on Climate Change and the Rights of Mother Earth in Cochabamba, Bolivia in 2010. Moreover, pursuant to General Assembly resolution A/RES/74/224, the President of the General Assembly convened an Interactive Dialogue on Harmony with Nature on 22 April 2020, commemorating International Mother Earth Day.[ix] The Interactive Dialogue included the participation of Member States, United Nations entities, independent experts, and other relevant stakeholders. The first year of the Decade of Action and Delivery of the 2030 Agenda is to protect biodiversity and live in harmony with nature. Participants will share case studies to exemplify pathways for Earth Jurisprudence and for reconnecting with the laws of Mother Earth.
Looking ahead
The rights of nature theory acknowledges the living existence of nature (i.e., the ecosystem and species). And because existing things, like humans, have legal rights, so should nature. Gaining momentum in various jurisdictions, the rights of nature theory presents a path forward for combatting climate change and pollution, asserting that the survival of humanity depends on a healthy ecosystem. Protecting nature's rights is equivalent to safeguarding human rights and society’s well-being.
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[i] In Sierra Club v. Morton, 405 U.S. 727 (1972), The United States Forest Service issued and accepted the Walt Disney Company's bid to build a ski resort in Mineral King, California. The project required the construction of a new twenty-mile highway, a nine-story parking structure, a cog-assisted railroad, and a 66,000-volt power line through the Sequoia National Park, where Mineral king is located. The Sierra Club Legal Defense Fund, later renamed Earth Justice sued the United States Secretary of the Interior in San Francisco federal court to block the development of the ski resort, arguing that the resort would cause “irreparable harm to the public interest.” The Sierra Club did not allege it suffered a unique, private injury from Disney's proposed ski resort resulting in the dismissal of its case at the trial, appellate, and supreme court levels. The Sierra Club later amended its complaint to include a unique, private injury from the proposed ski resort, and the court moved the case to discovery. However, on August 1972, the then Governor of California, Ronald Reagan, withdrew his support for the project, arguing that the new highway to the resort would be too expensive to build. The Sierra Club stopped pursuing the lawsuit, and in 1977 the court dismissed the case for the parties’ lack of legal actions. Although the court ultimately dismissed the case, the case is known thanks to justice Wilson O. Douglas's dissenting opinion in which he asserted that natural resources ought to have the standing to sue for their own protection, that is, “[I]nanimate objects are sometimes parties in litigation […] [t]he ordinary corporation is a "person" for purposes of the adjudicatory processes […and] [s]o 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.”
This case set the framework for subsequent cases on the right of nature, the majority of which focus on determining whether a natural entity (i.e., a type of animal, body of water, or forest) has the standing to bring suit in its own name under United States Federal laws.
In Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106 (9th Cor. 1988), the National Audubon Society and the Sierra Club filed a lawsuit against the Hawaii Department of Land and Natural Resources, claiming that the Department violated the Endangered Species Act by maintaining feral sheep and goats in an endangered Palila bird's critical habitat. The district court found the state violated the ESA and ordered it to initiate steps towards the removal of feral sheep from the island within two years. Critical to this case was the court's opinion, which states: "an endangered member of the honeycreeper family, the Hawaiian Palila bird, has legal status and wings its way into federal court as a plaintiff in its own right [and that that Palila] had earned the right to be capitalized since it is a party to these proceedings."
Then in Cetacean Community v. Bush, 386 F. 3d 1169 (9th Cor. 2004), the Cetacean Community (which comprised all the world's whales, porpoises, and dolphins) sued the United States Navy, arguing that the Navy's use of low-frequency sonar during wartimes harmed the Cetacean Community in violation of the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. The Navy filed a motion to dismiss the claim, arguing that the Cetacean Community did have the standing to bring the claim to court under the stated Acts. The district court granted the motion dismissing the case and held that the Acts granted "any person" the right to sue for violating these laws. The definition of “person” were individuals, corporations, governments, and other entities within the United States jurisdiction and does not include animals. Thus, the Cetacean Community, which is not comprised of “persons,” does not have the standing to sue the Navy for violating the Acts. In considering its prior decision in Palila, the District Court held that: “our statements in Palila are nonbonding dicta […] if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should have said so plainly. In the absence of any such statement […], we conclude that the Cetaceans do not have statutory standing to sue.”
[ii] Rachel Garrett and Peter A. Allard, Rights of Nature Legislation for British Columbia: Issues and Options, University of British Columbia. The papers are available on the Centre’s website, https://allard.ubc.ca/cle.
[iii] David Alire Garcia, “Mexico’s President Nods to Environment but Favors State Energy Firms,” Reuters (Thomson Reuters, September 3, 2020), https://www.reuters.com/article/us-mexico-politics-environment-analysis-idUSKBN25U1ZL.
[iv] David Alire Garcia, “Mexico's President Nods to Environment but Favors State Energy Firms,” Reuters (Thomson Reuters, September 3, 2020), https://www.reuters.com/article/us-mexico-politics-environment-analysis-idUSKBN25U1ZL.
[v] David Alire Garcia, “Mexico's President Nods to Environment but Favors State Energy Firms,” Reuters (Thomson Reuters, September 3, 2020), https://www.reuters.com/article/us-mexico-politics-environment-analysis-idUSKBN25U1ZL.
[vi] Ricardo Gaefke, Harmony with nature - policies list, available at http://www.harmonywithnatureun.org/rightsOfNaturePolicies/.
[vii] In Condor-Mirador 2012, the local court noted that the civil societies efforts to protect nature from the exploration and production of copper, gold, and silver constituted a private goal (i.e., private interest), while the private mining company was acting in favor of development (i.e., public interest). Ruling that public interests precede private interests, the judge denied the protective action for the ecosystem. The appellate court affirmed the lower court's decision. This decision set the framework for a battleground between the ecosystem's constitutional rights and the state's power in corporations, even foreign corporations, to exploit mineral reserves for economic developments or national interests. Faced with this dilemma, legal environmentalists must proceed with caution to avoid setting an unlikely global precedent.
[viii] “Indigenous Peoples File Lawsuit against Ecuador's President to Halt New Extractive Conquest in the Amazon, Threatening Indigenous Sovereignty & Our Climate,” Amazon Frontlines, August 18, 2022, https://amazonfrontlines.org/chronicles/ecuador-indigenous-lawsuit-lasso-decrees-oil-mining/.
[ix] “Harmony with Nature | General Assembly of the United Nations,” United Nations (United Nations), https://www.un.org/pga/74/event/harmony-with-nature/.
