'Laboratories of the Future: Tribes and Rights of Nature' by Elizabeth Kronk Warner and Jensen Lillquist in (2023) 111
California Law Review 325-393 comments
From global challenges such as climate change and massextinction, to local challenges such as toxic spills and undrinkablewater, environmental degradation and the impairment of Earthsystems are well documented. Yet, despite this reality, the U.S. federalgovernment has done little in the last thirty years to provide acomprehensive solution to these profound environmental challenges;likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve asalternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as "laboratories" for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.
The authors argue
Rights of nature are increasingly moving into the legal mainstream, both in the United States and abroad. Rights of nature laws, which seek to make injuries to natural entities legally cognizable and justiciable in court, generally consist of at least one of two elements: (1) legal personhood for nature or specific natural entities and (2) substantive rights for nature or specific natural entities. To date, six countries have implemented the rights of nature on a national level, and several states and cities outside the United States have passed rights of nature. Within the United States, various Tribes and municipalities have passed rights of nature laws; no state has done so. Considering that before the early 2000s, no rights of nature law had been passed, these laws represent a fairly significant legal and cultural shift, at least within their respective jurisdictions. Environmental law scholars are clamoring to examine the impacts of these developments and how advocates might successfully utilize such arguments in state and federal court. While existing environmental laws and related environmental ethics and values within the United States tend toward anthropocentrism in prioritizing the protection of humans alone, rights of nature laws and ideals center on the natural world. For many who view rights of nature as valuable to the effective protection of the environment and as a necessary switch toward an environmental ethic that will better protect the Earth from the negative impacts of exploitation, it may seem as if the arc of the moral universe is finally bending toward justice.
Ultimately, non-Native communities considering or looking for ethical paradigms alternative to anthropocentrism should consider the work being done by Tribes in this space. Tribal environmental ethics may depart from anthropocentrism, and Tribes are already implementing laws based on such alternative ethical paradigms. Yet, scholars and advocates often fail to look to Indigenous Peoples and Tribes for guidance in this area;" Indigenous Peoples and Tribes have been incorporating the rights of nature principles into tribal and customary law for a long time. This Article helps to fill the void by demonstrating not only that the theoretical conception of rights of nature may benefit from Indigenous Peoples, but also that Tribes can offer legal protections where other actors cannot. To date, at least five Tribes within the United States have passed rights of nature resolutions. These Tribes, as much as any state or municipality, represent laboratories in which the concept of rights of nature can be tested for strengths and weaknesses. This testing may in fact produce the United States' first enforceable rights of nature provisions.
Tribes have the potential to possess significant regulatory power and are unique within the U.S. legal system. "[T]hey are both sovereigns and wards subject to the protection of the federal government." In Montana v. United States, the Supreme Court stated that "the inherent sovereign powers of an Indian [T]ribe do not extend to the activities of nonmembers of the [T]ribe." Yet, it created two exceptions to this general rule: first, a "[T]ribe may regulate ... the activities of nonmembers who enter consensual relationships with the [T]ribe or its members, through commercial dealing, contracts, leases, or other arrangements." Second, a "[T]ribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the [T]ribe." The second Montana exception is especially relevant to the enforcement of rights of nature laws.
Thus, while U.S. municipalities have faced substantial obstacles to enacting enforceable rights of nature provisions, Tribes may be more successful. This is because of the inherent sovereignty of Tribes and because tribal environmental ethics differ from those of many non-Native communities in notable ways. Many (although certainly not all) Tribes possess a relationship with their environment and land that recognizes not only how humans are benefitted by nature but also values nature for its own self-worth. This special connection with the environment and land therefore informs the environmental ethics of many Tribes. That ethic, which differs from mainstream environmental ethics, improves the likelihood of effective and enforceable rights of nature provisions within tribal communities.
This Article highlights a legal path for Tribes in the United States to enact enforceable rights of nature provisions where U.S. municipalities cannot. As such, Part I more fully details the concept of "rights of nature" and how this legal concept relates to the more traditional anthropocentric model of environmental laws used within the United States. In addition, Part I examines both international and subnational developments in the United States and discusses the relative strengths and weaknesses of the several existing models, as well as challenges to enforceability. Part II turns to Tribes in the United States and more fully details tribal exceptionalism and sovereignty, tribal environmental ethics, and the concept of Tribes as laboratories. Part II then examines several tribal rights of nature provisions. Part III compares two ongoing cases to highlight the potential strength of Tribes in this area: Wilde Cypress Branch v. Beachline South Residential, which stems from Orange County, Florida's rights of nature provision, and Manoomin v. Minnesota Department of Natural Resources, which stems from the White Earth Band of Ojibwe's rights of nature provision.
Ultimately, this Article advances the emerging rights of nature literature in two important ways. First, it demonstrates how Tribes have made and continue to make important contributions to the rights of nature discourse both inside of the United States and beyond. Second, this Article examines how legal arguments in support of rights of nature have a greater likelihood of success in tribal court systems than in other legal systems within the United States. This is because, to date, courts have not questioned a Tribe's sovereign authority to enact such legislation; the same cannot be said for municipalities within the United States. This is the first Article to substantively examine how Tribes within the United States fit within the larger rights of nature movement and how the unique role of Tribes within the U.S. legal system may produce different results. ...
Further
Professor Stone's original article advocating rights of nature is focused primarily on legal personhood, as its title suggests. As other scholars have noted, "[l]egal personality is articulated as the capacity to bear rights and duties in law. Legal personhood typically confers three specific rights . . . [including] the right to sue and be sued in court (known as legal standing)." When it comes to rights of nature laws, proponents typically focus on legal standing.
Standing under the U.S. Constitution has three elements: (1) injury in fact, (2) causation, and (3) redressability. Establishing legal personhood for natural entities would remove a barrier to establishing the "injury in fact" prong, in essence, by allowing injuries to natural entities to be legally recognized and by allowing groups to rely on those injuries when bringing suit.
Prior to Stone's article, the law of standing was in flux; some lower courts had held that injuries to recreational and aesthetic interests were sufficient to establish standing for groups with a "special interest" in areas affected by federal projects. These cases allowed for proponents of environmental causes to establish standing through injury to them but did not permit standing for non- humans; thus, non-humans are without rights in the eyes of the law. This is the crux of Stone's point: "[A]n entity cannot be said to hold a legal right unless and until some public authoritative body is prepared to give some amount of review to actions that are colorably inconsistent with that 'right."' In other words, even if a jurisdiction were to recognize substantive rights to a natural entity, without a process by which to vindicate those rights, that entity would be de facto rights-less.
Thus, Stone argues that to be a "holder of legal rights," an entity must satisfy three criteria: "[F]irst, . . . the thing can institute legal actions at its behest; second,... in determining the granting of legal relief, the court must take injury to it into account; and, third, . . . relief must run to the benefit of it." On the first point, Stone argues for a guardianship model as a substitute for traditional standing. Here, "when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship." This, he argues, opens the floodgates to litigation less than recognizing standing simply for recreational interests. As is discussed below, several Tribes and municipalities have adopted this recommendation and created guardianships for the natural elements impacted by their rights of nature provisions.
Regarding his second point, Stone argues that injuries to natural objects should be assessed under the "welfare economics position": "Every well-working legal-economic system should be so structured as to confront each of us with the full costs that our activities are imposing on society." Though not articulated explicitly, Stone argues both for the economic costs of pollution and for the injuries to animals' right to exist to be legally cognizable. Finally, on his third point, Stone argues that remedies for damages to natural objects should be placed in a trust fund, which would then be used to repair the damage to the object. ....
Yet, it is not altogether clear whether recognizing rights for either nature in general or a specific natural entity would remedy some of the issues environmental advocates face in establishing standing. For instance, in Juliana v. United States, the U.S. Court of Appeals for the Ninth Circuit, after acknowledging the urgency of climate change and the U.S. government's role in failing to address it, held that the "redressability" prong of standing was not met given that it was outside the power of an Article III court to grant relief. While rights of nature laws allow for a legal recognition of natural entities' injuries, a court may lack the power to redress these injuries. This is an issue with which rights of nature proponents must contend.
In sum, rights of nature proponents often advocate extending legal personhood to non-human natural entities in an effort to make these entities' injuries legally cognizable. While under the current standing doctrine aesthetic and recreational injuries to humans are cognizable, proponents argue that simply recognizing injuries to natural entities themselves would be more straightforward, be less subjective, and would remove one barrier-but not all barriers-to bringing suit on behalf of an injured natural entity.
'Rights of Nature Include Rights of Domesticated Animals' by Anne Peters in Philipp B Donath, Alexander Heger, Moritz Malkmus and Orhan Bayrak (eds), Der Schutz des Individuums durch das Recht (Springer, 2023) 15-30 comments
The current trend to grant nature and natural entities rights is deficient to the extent it leaves domestic animals out of the legal picture. The 2022 Ecuadorian Constitutional Court judgment on the wild monkey Estrellita manifests the undue legal privileging of wild animals over domesticated animals. Estrellita extended rights of nature to wild animals, although the recognition of rights of nature amounts to false indigenisation and organised hypocrisy. The rationales offered for rights of nature, ranging from materialism over animism, are less convincing than the explanation for rights that are due to animals because of their ability to suffer. Three further practical functions of legal rights (resistance against commodification, shifting the burden of explanation and justification, and off-setting political powerlessness) are highly relevant for animals. Especially domesticated animals need legal rights more than mountains.
'How Ecuador's Courts Are Giving Form and Force to Rights of Nature Norms' by Craig M Kauffman and Pamela L Martin in (2023)
Transnational Environmental Law argues
In 2008, Ecuador recognized rights of nature (RoN) in its Constitution. Since then, RoN have been relied upon in judicial decisions 55 times in Ecuador. Following years of ad hoc treatment of RoN by Ecuador's government and courts, its Constitutional Court selected various cases to establish binding jurisprudence in respect of RoN. In doing so, the Constitutional Court and various provincial courts in Ecuador have clarified the content of RoN, including specific criteria for determining RoN violations and the relationship between RoN and other constitutional rights, including community and economic rights related to development. Moreover, the courts are imposing sanctions on RoN violators, including the state and powerful commercial sectors. This article shows how Ecuadorian court decisions are changing RoN from a vague, abstract concept into a set of specific standards for how to balance RoN with various human rights and existing environmental law in order to implement sustainable development in an integrated and holistic manner that does not sacrifice ecosystem functioning. In doing so, the article contributes to the emerging literature on how new environmental law norms are constructed as they are put into practice, as well as the important role that judges play as norm entrepreneurs. ...
The above cases undermine previous analyses suggesting that RoN in Ecuador are merely symbolic and unimplemented as a result of judicial corruption and structural barriers. Ecuadorian judges are also rejecting the idea that the Constitution provides no guidance for how to reconcile competing constitutional rights, as some scholars allege. Court rulings emphasize the Constitution's commitment to a new development approach rooted in the Andean Indigenous concept sumak kawsay, which sees humans as embedded in natural systems and dependent on other natural entities through reciprocal relationships. Based on this, the Constitutional Court has ruled repeatedly that RoN are transversal, interacting with all other constitutional rights.
