PEEK INSIDE THE SPRING 2011 ISSUE OF YES! MAGAZINE
When the first abolitionists declared that slaves should be freed, their opponents argued that blacks were the property of their owners and giving them rights would cripple the American economy. The arguments were different when the suffragists demanded rights for women, but the predictions were the same: The economy, and perhaps civilization itself, would crumble if their rights were recognized.
Today, similar claims are being made about a new effort to expand rights. But the recipients of these rights are not human beings—they’re animals and ecosystems. Advocates from Pennsylvania to Bolivia are using ancient traditions, new scientific research, and a growing body of legal scholarship to argue that society can and should recognize these rights.
Ecuador’s new constitution formally recognizes the rights of nature, and more than 100 municipalities in the United States have enacted ordinances giving citizens the ability to file lawsuits on behalf of natural resources and ecosystems. Meanwhile, in 2008, activists in Spain came within a hair’s breadth of gaining legal recognition for the rights of great apes, and an international coalition of scientists and philosophers is urging policymakers worldwide to recognize a draft declaration of rights for whales and dolphins.
Proponents of rights for nonhumans acknowledge that they are raising complicated issues. How many trees, for instance, can be taken from a forest before the logging constitutes an impediment to the ecosystem’s right to “flourish”? The details won’t be entirely clear until they are worked out in court over decades.
But one thing is certain—granting rights to animals and ecosystems would mean big changes in property law. While U.S. animal-cruelty laws have protected certain animals from abuse since the Animal Welfare Act of 1966, those laws still maintain that animals are property. And just try telling a corporation that local communities should have a say in what the company does with its land. Granting rights to animals and ecosystems would transform them into something resembling people in the eyes of the law, with huge impacts on how communities and corporations interact with nature.
Letting Communities Decide
The idea that nature should have legal standing has been around since at least 1972, when law professor Chris Stone wrote a pioneering article about it. For more than 20 years the idea remained pure theory, until a Pennsylvania environmental group decided to use it as a way of balancing out the overwhelming weight of corporate rights.
Since 1995, Thomas Linzey and his colleagues at the Community Environmental Legal Defense Fund (CELDF) have been helping rural and blue-collar communities fight corporate drilling and mining permits that threatened to contaminate their land and water. Corporations wanted to use rural Pennsylvania as a “sacrifice zone” of toxic industrial practices like drilling for natural gas and dumping toxic sludge, says Mari Margil, CELDF’s associate director.
But each time a community won in court, the corporation involved would resubmit the permit and eventually come out on top. The law was tipped in favor of corporations because it treated them as people whose rights to do what they wanted with their property trumped the rights of communities to enjoy clean land and water. One way to change that, CELDF realized, was to convince local governments—and, eventually, the courts—that local ecosystems had rights of their own.
“The people who adopt these pioneering kinds of laws are not what you would call environmentalists or activists,” Margil says. “They’re people who want to protect their community.”
Tom Gerhard, for instance, is a 54-year-old truck driver and the chair of the board of supervisors for Packer Township. He heard about these ordinances after a supervisor from a nearby town saw pallets of sewage sludge on a farm in Packer. She told Gerhard how her own community had banned the sludge, and he was on the phone with members of CELDF a few days later.
The decision to pass an ordinance was simple, Gerhard says, because the sludge could contaminate the Still Creek reservoir, an important source of drinking water for Packer Township.
The sludge “contains pharmaceutical supplies, human waste, basically anything you might put in your drain,” Gerhard says. And even though the corporation that brought it from New Jersey markets the sludge as fertilizer, it didn’t sell it to the farmer—it paid him to take it.
Packer Township passed an ordinance in June 2008 that banned application of sludge and recognized the rights of nature. Gerhard soon heard from the state’s Attorney General, who threatened to sue the Township for interfering with “normal agricultural operations.” While other towns backed down under pressure, Packer stood firm and has been sludge-free ever since.
“We’re the first township in Pennsylvania to beat the Attorney General in round one,” Gerhard says, the pride clear in his voice. “Without clean air or water, we don’t survive.”
Rights of nature laws can help communities seeking self-governance, but they are also much more than that. Environmental lawyer Cormac Cullinan believes that they can be a vessel for bringing the wisdom of indigenous people into the courts of modern nations.
After the compromises and failures of the U.N.’s climate change negotiations in Copenhagen in 2009, the Bolivian government of Evo Morales convened an alternative meeting in Cochabamba. Delegates at the World People’s Conference on Climate Change and the Rights of Mother Earth spent three days debating and revising a draft and signed the final version of the People’s Agreement on April 22, 2010.
Cullinan, who helped write the original text of the Agreement, explains that indigenous people tend to see human beings as a dependent part of a larger web of life and have cultural ways of making sure that people respect the ecosystem. Modern law, however, allows that web to be damaged because it recognizes only the rights of humans and treats nature as property.
The People’s Agreement attempts to change that model by translating indigenous doctrines into a legal language that the international community will adopt. “It provides a mechanism for balancing human interests against the interests of earth,” Cullinan says, “because if humans are the only ones with rights, the balance is tipped too far in the favor of the humans.”
Cullinan hopes that activists for social justice, environmental protection, indigenous people, and animal rights will unite around the People’s Agreement. “The one thing that we all have in common is the Earth,” he says, “and what we need to do is play by the rules of the Earth.”
One month after the World People’s Conference took place in Bolivia, a group of scientists and philosophers gathered in Helsinki, Finland, to make a similar argument in a different context. The group included many of the world’s foremost experts on the psychology and behavior of cetaceans, the order of animals that includes whales, dolphins, and porpoises. The convention ended with a Declaration of Rights for Cetaceans, 10 simple statements that recognize each individual animal’s right to life, habitat, and freedom.
New research in cognitive science suggests that cetaceans are “nonhuman persons” who deserve rights similar to those enjoyed by humans, says Lori Marino, one of the drafters of the Declaration and a senior lecturer in neuroscience and biology at Emory University. She says this was part of the reason why the scientists chose to use the language of rights in their declaration, as opposed to the traditional language of conservation.
Dr. Marino suggests that when scientists and philosophers wrestle with the question of what it is about ourselves that makes us human beings with rights, they find that “it has to do with sentience, self-awareness, and autonomy.” You don’t have to be a Homo sapiens to have those traits. Whales and dolphins have been shown to possess them, along with a few other animals such as great apes and elephants.
“These are beings that are aware of themselves, think about their thoughts, and think about their lives,” Marino says, and therefore, each one deserves rights. That approach is different from the one taken by traditional conservation biology, which aims to keep populations stable but doesn’t consider the rights of individual animals.
New Rights in Balance
Advocates for the rights of cetaceans and apes share general principles and goals with the supporters of the Cochabamba Agreement, but differences do come up.
What if Orangutans Had
Their Day in Court?
Environmentalists say nature should have legally recognized rights. But what does that really mean?
“Just protecting the ecosystem is not enough,” Dr. Marino says, pointing to her group’s support for cetaceans in captivity who are no longer part of any ecosystem.
Meanwhile, some advocates of rights for ecosystems take issue with the idea of nonhuman personhood for only those animals whose intelligence resembles our own.
“Are algae sentient or not?” Cormac Cullinan asks. “All of these things have a degree of sentience, but it’s in a different form.” He says he’d prefer to focus on the health of the whole system.
Yet each of these activists says that their differences are outweighed by the goals and interests they share. Margil says she welcomes the work of advocates like Dr. Marino because “it’s all moving forward to an expansion of rights beyond the human.”
If that expansion is widely adopted into law, it will demand difficult sacrifices from ordinary people as well as from corporations. But the first few victories for the rights of nature suggest that the idea can empower communities, put a check on the rights of corporations, and create a more ethical society.
With climate change and resource shortages looming, looking after the rights of nature offers a way to protect ecosystems and the animals that live in them—including humans.
Madeline Ostrander contributed reporting for this story. Madeline is senior editor at YES!Interested?
- Born violent? A troop of baboons chooses an enduring culture of peace.
An international movement—of governments, scientists, and activists—is bringing a focus on environmental rights to the climate negotiations in Cancún.
A historic new ordinance bans natural gas drilling while elevating community decision making and the rights of nature over the “rights” associated with corporate personhood.