'Rights for nature or protecting people’s rights?: The operationalization of rights of nature in non-indigenous communities in the United States' by Ellen Kohl in (2024) 156 Geoforum comments
As the Rights of Nature movement gains political traction globally, researchers must examine how this transnational movement to extend rights to nature or natural entities is being operationalized in place. Proponents of the rights of nature contend transferring rights to nature constitutes a paradigm shift in human-environment interactions and will lead to solutions directed at the root causes of environmental problems. Critics contend that these rights-based governance structures have the potential to do more harm than good for environmental protection depending on the cultural and legal frameworks within which rights of nature are enacted. In this paper, I examine how rights of nature have been operationalized in non-Indigenous communities in the United States through an analysis of rights of nature ordinances passed in these communities between 2006 and 2020. Drawing on theoretical engagements with rights I demonstrate how the reliance on universalizing human rights frameworks and anti-corporation rhetoric both distinguish these ordinances from the broader rights of nature movement and center the rights of people to have access to a clean environment rather than the intrinsic rights of nature. In conclusion, I explore alternatives to how rights of nature are currently operationalized in non-Indigenous communities in the United States and call for increased research on the implications and impacts of rights of nature ordinances to assess whether they achieve their stated goals.
Rights of Nature (RoN) is a transnational “rights-based environmental governance” structure that uses liberal legal rights to protect nature rather than relying on existing forms of environmental governance (Kohl and Walenta 2023). The movement traces its intellectual origins to Earth Jurisprudence scholarship which contends that current environmental crises are caused by cultural and legal systems in which human needs are separate and superior to those of nature (Berry, 1999, Boyd, 2017, Cullinan, 2011). The RoN movement draws on different legal channels to grant nature legal rights akin to the rights secured by human persons, such as the right to live, thrive and flourish, and the right to not be polluted (Gilbert et al., 2023, Kauffman and Martin, 2021, Kauffman and Martin, 2018; O’Donnell, 2023, O’Donnell, 2020, Putzer et al., 2022, Tănăsescu, 2022). This can be done by granting personhood status to nature, either directly or indirectly through the appointment of an administrating body, or by extending rights to nature (Kauffman and Martin, 2021, Kurki, 2022, Tănăsescu, 2020). RoN advocates contend this structure provides greater protection to natural entities and will prevent catastrophic environmental destruction (Gilbert et al., 2023, O’Donnell, 2023). For many, the extension of rights to nature represents a paradigm shift in the human-environment relationship (Cuadros, 2019, Dogaru and Dogaru, 2022a, Dogaru and Dogaru, 2022b, Ito and Montini, 2018, Villavicencio-Calzadilla and Kotzé, 2023). As more communities turn to RoN activism, and adopt RoN legal frameworks, there is an emerging theoretical debate in support of (Bradshaw, 2022, Kauffman and Martin, 2023) and those raising concerns about extending rights to nature (Bellina, 2024, Guim and Livermore, 2021, Sachs, 2023, Spitz and Penalver, 2021, Petel, 2024).
The motivations for transferring rights to nature vary over space and time but O’Donnell, writing in Eckstein et al. (2019), contends there at least four specific reasons that rivers, the natural entity she studies, are granted rights. These include (1) a recognition of Indigenous cosmologies and values, (2) eco-centrism, or bringing rivers and humans onto equal level, (3) market environmentalism, creating mechanisms through which rivers can participate in markets, and (4) private interest regulatory theory, which allows mechanisms through which rivers can advocate for themselves (Eckstein et al. 2019). In this paper, I add a motivation of people’s desires to address a particular environmental concern for which traditional forms of environmental rule making are not providing them sufficient protection. In this way, I frame the understandings of RoN not only through legal understandings, but also in place and through political understandings because “one cannot understand what the rights of nature are doing without thinking about them in terms of power relations” (Tănăsescu 2022, 16). Given the diversity of how, why, and where RoN are adopted the operationalizations of RoN looks different in different places. While RoN is a transnational movement, the specific place-based articulations of the movement and the outcomes of RoN activism are impacted by the social, cultural, and political context within which they take place (Kinkaid, 2019, Gilbert et al., 2023, Tănăsescu et al., 2024). Through an examination of the over 60 RoN ordinances enacted within the United States (US) between 2008 and 2020 I build on current scholarship examining the operationalization of RoN in the US context (Fitz-Henry, 2018, Fitz-Henry, 2022, Fitz-Henry, 2023, Kohl and Walenta, 2023; Macpherson, 2021, Moutrie, 2022) to expand our understandings of the place-based articulations of RoN.
In this paper, I carry out this analysis to examine how theoretical conceptions of RoN have been translated in US legal structures. Through this analysis and discussion, I demonstrate that the operationalization of RoN in non-Indigenous communities in the US shifts from granting nature the status of personhood to an extension of rights to nature by extending conceptions of human rights onto nature. I demonstrate how this universalization centers the needs of people rather than the intrinsic rights of nature. Moreover, the operationalization of RoN in these communities specifically has an anti-corporation clause. These differences contradict the claims of RoN proponents who justify the need for RoN legislation as necessary because it represents a paradigm shift by elevating nature’s rights as equal to people’s rights. I begin by reviewing conceptions of property, rights, personhood, and rights to nature, paying particular attention to the US context. From there, I explain the methods used. Then I use the theoretical frameworks to analyze the ordinances enacted in the US context. In conclusion, I call for more research on how, if at all, these ordinances are changing people’s perceptions of nature and if environmental conditions have improved in and around places where RoN legislation has been enacted.
'Civil Litigation for Environmental Damages: Are the So-Called Rights of Nature an Alternative?' by Guillermo Schumann Barragan in (2024) 14 International Journal of Procedural Law 73–98 comments
This paper aims to analyse civil litigation for environmental damages and whether the so-called rights of nature are a viable alternative de lege ferenda. To this end, it examines (i) the participation of civil society in environmental protection through public enforcement mechanisms in the Spanish legal order; (ii) the cause of action for environmental damage claims; and (iii) whether rights of nature are a good option to enhance the protection of nature in civil justice.
On the 3rd of October 2022, Law 19/2022 on the recognition of the legal status of the Mar Menor lagoon was published in the Spanish Official State Gazette (boe). The law attributes the lagoon legal status (Article 1 Law 19/2022) and certain rights: the right to exist, protection, conservation and restoration (Article 2 Law 19/2022). Furthermore, according to Article 6, “any natural or legal person has the right to defend the ecosystem of the Mar Menor”. Depending on the nature of the action, criminal, civil or administrative courts will have subject-matter jurisdiction (Article 4 Law 19/2022).
The attribution of legal status to elements of nature – e.g. a river, a forest, a mountain or a coral reef – is not new on the international scene. This theory, which is unknown in European legal orders, is known as the rights of nature. As a result of public concern about climate change, environmental protection has become one of the EU’s political priorities. A good example of this is the European Commission’s package of measures known as the Green Deal. Renewable energy and environmental have become a leitmotiv on the European political agenda.
In this context, this paper aims to analyse civil litigation for environmental damages and whether the so-called rights of nature are a viable alternative de lege ferenda. To this end, it examines (i) the participation of civil society in environmental protection through public enforcement mechanisms in the Spanish legal order; (ii) the cause of action for environmental damage claims; and (iii) whether rights of nature are a good option to enhance the protection of nature in civil justice.
