Imagine a world where nature has rights. A lake or waterway would have the right to remain clean and could assert that right against industrial polluters. Wetlands could stand up for themselves to push back against builders who wanted to fill them in with concrete and build 40-story towers on them. An endangered ecosystem could assert the right to restore itself and prevent future degradation.
Imagine no more. The rights of nature movement is gaining steam. Across the country, communities and tribal nations are signing on to it. In Wisconsin, the Ho-Chunk Nation took a first vote for a rights of nature tribal constitutional amendment in 2016. It was the first tribal nation in the U.S. to do so. In 2018, the White Earth band of the Chippewa Nation in Minnesota adopted the Rights of the Manoomin law, which secured legal rights of manoomin (wild rice); it was the first law to secure legal rights of a particular plant species. In 2010, the City of Pittsburgh enacted rights of nature legislation to keep fracking out of the city. In February 2019, the City of Toledo, Ohio, passed the Lake Erie Bill of Rights, which allows individuals to sue on behalf of the lake.
“When we think about nature today, it is treated like property or a commodity under the law,” says Mari Margil, associate director of the Community Environmental Legal Defense Fund, an environmental group based in Pennsylvania that assists communities in developing environmental and rights of nature laws. “In workshops, we teach that other people’s movements, such as the abolitionist movement, the movement for women’s and LGBTQ rights, have faced similar legal structures. The abolitionists, for example, were facing a structure of law that treated certain people as property. They had to transform enslaved people from being property to rights-bearing individuals. Today, nature is treated as property. Just like during slavery, there are laws regulating literally how slaves could be used. Today, that’s what environmental laws do.”
Margil says current environmental laws legalize and authorize certain uses of nature, and that communities that are interested in enacting rights of nature laws recognize that current laws do not actually protect the environment but authorize the very things these communities are trying to stop, such as fracking. “As long as we are treating nature in this way with environmental laws that regulate the abuse of nature rather than its protection, then we can’t protect nature,” she says. “We have to really shift how nature is treated under the law, so we can protect it. In a very practical sense, environmental laws today have led us to this place. When we talk about ‘environmental law’, we think that it’s protecting the environment, but oftentimes it’s doing something else entirely.”
|
|
Rights of Nature Gains Ground in Wisconsin
Bill Greendeer, a Ho-Chunk tribal member, has been a long-time advocate for rights of nature legislation to become an amendment to the Ho-Chunk constitution. Greendeer of La Farge, Wis., was a leader in proposing that rights of nature legislation be taken up by the Ho-Chunk Nation general council, which, in 2016, took a first vote for a rights of nature tribal constitutional amendment. It was the first tribal nation in the U.S. to do so.
“The Ho-Chunk believe we are brothers and sisters of everything on Earth,” Greendeer says. “Corporations are destroying the Earth at an alarming rate these days.” As a member of the Deer Clan, he accepts a special responsibility for protecting nature. When Greendeer watched the sand mines coming into Wisconsin, he was motivated to act. “For me, it was just a matter of introducing legislation to put rights of nature into our constitution.” Greendeer says he is involved with a work group comprised of representatives from tribal culture, history departments and environmental groups that support a secretarial election, in which tribal members vote for or against a rights of nature constitutional amendment. The secretarial election would be the next step in advancing the amendment.
“It hasn’t been put into the Ho-Chunk constitution, because it has to be passed by paper ballot to get into the constitution,” says Forest Jahnke, program coordinator for the Crawford Stewardship Project in Crawford County. “Updates by paper ballot almost never happen. When the paper ballots went out [last year], it didn’t make it, because so few people responded. There’s now a movement to move it forward by raising awareness of it. The support is there. It just hasn’t gotten through the final procedural step. There’s still work to be done there.”
Greendeer knows it may be an uphill fight to win approval in a secretarial election. “It’s going to be a process,” he says. “You have to jump through hoops to protect what we have left.”
In addition to the Ho-Chunk Nation, Jahnke says a number of communities around Wisconsin have shown interest in rights of nature legislation as a strategy, but none has yet drafted community rights ordinances. There have been numerous workshops and educational meetings around the state. “We’ve been working for a long time in a very restricted framework of regulatory ordinances that does not truly allow our communities to decide for themselves how they want to develop going forward,” Jahnke says. “This is critical for taking back our democracy... to recognize the rights of nature. We [humans] are part of [nature] and not separate. Our right to clean water doesn’t mean much if our rivers and aquifers are polluted. We have to be recognizing rights for ecosystems and non-human species.”
‘This is Critical for Taking Back Our Democracy’
Despite obstacles and, in some instances, lawsuits, rights of nature advocates seem to be gaining ground. For example, in a March 2019 article in Science magazine, Spanish and Swedish contributors argue for the advancement of rights of nature as a means to oppose further environmental degradation. As they wrote: “Adjudicating conflicts between rights of nature and human activities will be controversial, but no more so than conflicts between, for example, human rights to free expression and nondiscrimination. Conflicts between nature and human activities happen on a massive and systematic scale. When people and corporations have rights and nature does not, nature frequently loses, as evidenced by the continuing deterioration of the environment. Rights of nature may help to prevent this one-sided outcome.”
Rights of nature laws have sometimes faced legal challenges. Not long after the citizens of Toledo passed the Lake Erie Bill of Rights, the law was immediately challenged by agriculturalists. Concurrently, the environmental group Toledoans for Safe Water asked a federal district court to let them and the “Lake Erie Ecosystem” defend the law from challenges.
Rights of nature laws also face formidable ideological opposition. For example, in response to the recent Science article, Wesley J. Smith, senior fellow at the Discovery Institute, opposed the rights of nature movement in the politically conservative American Spectator: “We had better put a cork in this movement quickly,” Smith wrote. “If we wait too long, ‘nature rights’ will inevitably be adopted into the Green New Deal and/or otherwise become part of the Democrat (sic) Party environmental platform. If that happens, common sense environmentalism will go the way of the dodo.”
The fledgling rights of nature movement is slowly gaining adherents and momentum in the U.S. and around the world. In Pennsylvania, 63 communities have adopted rights of nature laws; in New Hampshire, 12 communities have done the same. Ecuador was the first country to adopt rights of nature laws in its constitution (2008). Bolivia has also adopted rights of nature legislation. Rights of nature laws are currently being proposed in India, Nepal, Australia, Cameroon and Colombia, among other places. (A timeline of the movement around the world can be found at celdf.org.)
The rights of nature movement traces its roots to Roderick Frazier Nash’s book The Rights of Nature: A History of Environmental Ethics, first published in 1989 by The University of Wisconsin Press. Nash earned his doctorate from UW-Madison, and his dissertation was the foundation for another seminal book, Wilderness and the American Mind.
Tressie Kamp, staff attorney at Midwest Environmental Advocates, says when communities use rights of nature or other arguments to uphold their rights, they are taking on the burden of enforcing those rights, often in the face of state laws that have not significantly evolved in recent years to address changes in certain industries, such as Concentrated Animal Feeding Operations.
“I think that’s a lot to ask of a group or a community,” Kamp says. “I would hope that in the long term—when you’re talking about upholding the rights of nature and protecting the environment—it not just be left on the shoulders of an individual, a group or a community, but that it’s something we all need to buy into. I also hope that in the longer term, this falls onto our government at all levels working harder to uphold conservation and the environment.”
