Although the Supreme Court has yet to release an opinion in American Electric Power v. Connecticut (previously discussed here), many commentators approaching the case from divergent points of view believe that the Court will likely reject the common law public nuisance cause of action, which is based on the power companies’ creation and release of substantial amounts of greenhouse gases that have contributed to global warming. Aside from the jurisdictional and substantive issues that the AEP case raises directly, the issue lurking under the surface in that case, and made explicit in at least two other international cases, is the extent to which claims alleging environmental damage should be adjudicated on the basis of rights entirely separate from those which humans may assert for the benefit of individual human interests. Stated differently, the problem of redressing harms caused by our overconsumption of fossil fuels and various other environmental harms raises what I believe to be two extremely provocative questions, neither of which will be answered here, but which provide a starting point for more effectively and honestly addressing issues of environmental harms. First, how does a society decide to whom/what rights will be granted, and second, can a system of human laws accurately and effectively provide rights to nonhuman natural systems?
As an initial matter, perhaps notions of “granting” or “providing” rights already obfuscate a fundamental question; that is, is it honest to say that any human can actually grant rights, or are humans solely in a position to deny fulfillment of rights that exist inherently for the benefit of all beings?
Although any possible answer to this question will be charged with moral and religious assumptions, its posing is intended to frame the issue of the proper role of humans in protecting those categories of “goods” that may be said to have value (and perhaps some sort of “rights”) separate from that which humans grant or ascribe to them, such as the idea of an inherent benefit in ecosystems unsullied by the wastes of human overconsumption.
The fact that the Anglo-American tradition of anthropocentric rights is not the sole method of allocating or acknowledging rights suggests that there is nothing necessarily or absolutely true about our legal systems’ means of recognizing certain right-holders, to the exclusion of other types. Indeed, the worldwide history of other cultures’ clear acknowledgement of humans’ component role (as opposed to a central role) in creation and existence suggests that a legal system that includes rights held by or bestowed upon natural systems is equally as logical as a human-based rights system. Thus, there would seem to be nothing inherently illogical or impossible about a human system that recognizes the rights of nature. Rather, the concepts of individual property and individual rights that are the hallmarks of Anglo-American legal systems perpetuate assumptions about our role in the world, defining our relationship to resources and natural systems as one of domination and superiority over the natural world.
Currently, that conception of our role in the world—that of controllers—is bringing modern society face to face with the realities of living in a world largely if not entirely beyond our control, and during recent decades we have been forced to begin to modify our legal systems in attempts to protect environmental resources. However, a fundamental divide between protecting environmental goods for the benefit of humans for their own sake and protecting natural systems for a purpose separate from direct human benefit remains evident in these laws. The Clean Water Act, for example, seeks to protect water bodies with the goal that those bodies be returned to a “fishable and swimmable” condition, making clear that the law’s intended beneficiaries are the members of the human community. Similarly, the Clean Air Act’s air quality standards state the Act’s protections in terms of human public health and safety.
Let me be clear here: I do not disagree with the goals of either of these Acts, or with those of numerous other laws intended to curb or reverse the deleterious effects that human activities have had on the planet. My point is simply to draw attention to the purpose of these laws as solely (or, more generously, “primarily”) benefiting humans, as opposed to having been enacted with the intention of protecting the planet’s natural systems as having a “good” separate from anything that could benefit humans.
For example, while the AEP litigation is pending before the United States Supreme Court, other legal systems throughout the world are affording different potential methods to address the multifarious problems of human-caused environmental alteration and degradation. In Ecuador, as one example, a fairly recent amendment to that country’s constitution recognized the rights of nature “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” Notably, similar language has also been incorporated into local laws and resolutions passed by communities in the United States, reaffirming that the sentiment (if perhaps not yet the substance) is clearly reconcilable with the American legal tradition.
Even more recently, the Ecuadorian constitution’s protections for nature were invoked in what could set groundbreaking precedent in adjudicating the “rights of nature.” The human plaintiffs in the lawsuit (questions of standing, anyone?) allege that harms outside Ecuador, to wit, the Deepwater Horizon oil spill in the Gulf of Mexico in 2010, caused injury to natural systems (or rather “Nature”), and that these injuries are redressable in the Ecuadorian constitutional courts. The case was filed quite recently, and members of the environmental community, among many others, wait with baited breath to learn how the court will treat the alleged harms and claims for relief, which essentially would require that BP ensure that no such injuries occur in the future, rather than pay monetary compensation or penalties. Taking a similar approach, Bolivia is also in the process of passing legislation acknowledging and protecting the rights of nature, although the scope and effect of the pending law remain to be seen.
Utilizing a different, more traditional individual-rights approach, the Federated States of Micronesia are seeking to invoke principles of international law to challenge the development of coal-fired power plants on the other side of the globe in the Czech Republic. The challenge is based on alleged climatic damages caused by the use of fossil fuels. This method of challenge, which maintains the existing Western framework of the rights of humans as opposed to nature, showcases another way in which the existing legal structures must be manipulated or contorted to remedy the problems caused by human inputs into the non-human natural world.
This approach seeks to massage existing remedies in established legal systems in attempts to ensure the preservation of natural systems. Perhaps the most notable advocate of such a system in the United States was Justice William O. Douglas, whose position has been characterized by the idea that even trees have standing to redress environmental wrongs. The fundamental idea of this position is that a human legal system should be able to provide remedies for harms to the environment, solely on the basis of those harms, rather than on any human injuries suffered. Other attempts have been made to establish claims on behalf of natural objects, species, or particular creatures in the natural world, using concepts of guardianships or trusts to fit protections for the natural world into existing legal systems. None of these methods of retrofitting, however, fully address the question of whose rights are actually at issue, or whether natural systems can even have “rights” subject to protection by humans legal systems.
The preceding discussion is, admittedly, loaded with numerous assumptions, extra-legal considerations, and other questions left begging. Moreover, the ideas are nothing new in the realm of legal theory, but merely present issues central to problems of extreme current interest. Thus, in light of the rapidly expanding base of scientific information, as well as growing fears of climate change, worldwide pollution, loss of natural ecosystems, and loss of species, to name a few, questions of how we grant or recognize rights for the benefit or protection of natural systems should be given substantial consideration in the continuing development of our legal systems.