Rights of Nature & the Law

Episode Notes

Transcript

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Lindsey Schromen-Wawrin:  We are at the point now where if we continue with the legal system that treats nature as property, my concern is that we might at best can slow down the train of ecological meltdown. But slowing down and changing direction are two different things and what we need to do is change direction so we don’t “go off the cliff” as they say.

Intro:  Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams:  Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I am Craig Williams coming to you from Southern California, I write a blog named “May It Please the Court” and have two books out titled “How to Get Sued” and the “The Sled.” Well, the Declaration of Independence, famously states that all men are endowed by their creator with certain unalienable rights. But to those who are similar unalienable rights, extend beyond people?  According to groups like The Global Alliance for the Rights of Nature, our ecosystem, the trees, oceans, animals and mountains are entitled the rights of their own. So, was the Declaration of Independence too limited in its language?  Does nature have its own self-evident rights?  Today on Lawyer 2 Lawyer, we’ll be discussing law and nature. We’ll take a look at what rights we have to access nature. Whether there’s a requirement that government preserve nature for us and if we have any legal rights to force the preservation of other species.

And to do that, we’ve got a great show for you today; our guest is Lindsey Schromen-Wawrin. He’s an attorney with Shearwater Law. He’s worked for the Community Environmental Legal Defense Fund since 2013 where his clients have included the Lake Erie ecosystem, the Little Mahoning Watershed, Crystal Springs Ecosystem and numerous grassroots community groups fighting for local democracy. He’s written about the Rights of Nature in representing ecosystems in court and introduction for practitioners. He serves as City Councilor in Port Angeles, Washington, and is a member of the International Parliamentary Alliance for the recognition of Ecocide. Welcome to the show Lindsey.

Lindsey Schromen-Wawrin:  Hey, thanks so much for having me. 

J. Craig Williams:  Well, this is an unusual topic for us to discuss. The Rights of Nature doctrine, what is that? 

Lindsey Schromen-Wawrin:  So, in Western Law, we treat ecosystems and the Earth in general has property. I remember talking to an attorney who reminded me of that first day of property law class. When we go over the rights of a property owner. It includes you have the right to exclude others from your property, to use your property, to transfer ownership of your property and ultimately the right to destroy your property. So, we’ve been treating the earth and its ecosystems as property, wherein we ultimately have the right to destroy it. The Rights of Nature doctrine says that ecosystem should instead have rights, you know?  At the basic level, the right to exist and within that framework, then ecosystems are no longer just property but rights bearing entities in our legal system. 

J. Craig Williams:  That’s a really unusual take from the property law perspective. That old bundle of sticks that my law professor taught me about. But just on a basic level, it’s pretty arrogant I think, isn’t it?  For humans to assume that the Earth doesn’t have rights. I mean, we’re pretty late in the game, coming into this — into nature. 

Lindsey Schromen-Wawrin:  Yeah, that reminds me of another — early on in my encounter with this area of law. I mean, I was a law student working on this at the same time and one summer, I was collecting signatures on a petition, trying to get the Spokane River to have the right to exist for it to naturally evolve. And I’d mostly heard about this idea from non-native, people from white people. And I’m outside the grocery store, collecting signatures and this woman who appears to be native walks up. And I say, “Hey, do you want to sign an initiative to help give the Spokane River the rights?” 

And she looks at me and I’m white and she’s like, “Oh, you’re finally figuring that out?” and I thought, “Okay, yeah, this is something different.” We talked about this as Rights of Nature. So, it is part of our western law system of rights-based laws. But you know, that doesn’t necessarily square exactly with a lot of indigenous ways of thinking about law. 

There’s an excellent book by Robin Wall Kimmerer called Braiding Sweetgrass and she says that in western law, property ownership is a bundle of rights, whereas in a gift economy, property is a bundle of responsibilities. So, she’s flipping that from rights to responsibilities. In some way, when we recognize rights for ecosystems, we are recognizing that we have a responsibility for ecosystems. That actually fits with our right-based framework where whenever anyone has a right, somebody else has a responsibility. The government has a responsibility because we have rights to privacy, rights of free speech. Those are rights that limit the behavior of somebody else.

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J. Craig Williams:  It’s interesting because in California, we have in the civil code what are known is “Maxims of Law” and one of those Maxim’s is that it he who receives the right must bear the burden. It is very similar to the concept that you’re talking about with indigenous people. Why isn’t it that — how did we get switched from responsibilities, which I think is more of an indigenous belief, is that right? 

Lindsey Schromen-Wawrin:  And that’s how Kimmerer describes it and that’s how a lot of other indigenous, legal scholars, describe it. I mean, there’s this question we’re wrestling with right now, of whether the rights of nature framework is enough to get us out of our ecological meltdown, catastrophe that we’re facing; or do we need to do, even kind of go beyond that the rights-based framework?  And that’s something I’m wrestling with myself. The history of how we got here, I think that goes back centuries, if not millennia. But we’ve we generally — I mean, maybe a non-judgmental way of viewing it is we haven’t had to think about rights for ecosystems because we haven’t really even had the concept of ecosystems for a little bit more than a hundred years. 

Let alone understanding that our impact as human societies can alter the Earth’s biogeochemical cycles on a global level. If we go back to like — if we were to rewrite the Bill of Rights from the U.S. Constitution today, I imagine most people would think there’d be something about environment, climate, you know?  Right to a livable climate as people have been arguing in court that we put in there. I mean, I think there’s certain things like the Third Amendment that we probably would forget about because it just hasn’t been relevant for a couple hundred years. But there’s other things that are just absent because the framers of the constitution didn’t have to think about those things in their lives at that time. That’s 

J. Craig Williams:  That’s because nature was abundant and the Earth was nowhere near as populated as it is now, nor did the Industrial Revolution really exist. There’s been a lot of change since then. 

Lindsey Schromen-Wawrin:  Yeah. I mean, we’re at the point now where if we continue with the legal system that treats nature as property, my concern is that we might at best can slow down the train of ecological meltdown. But slowing down and changing direction are two different things and what we need to do is change direction so we don’t go off the cliff as they say. 

J. Craig Williams:  How does the rights with responsibilities argument work with the courts?  I mean, granted we do have the right to have access to nature, so then don’t we also have the corollary responsibility to maintain it. Where does those arguments sit? 

Lindsey Schromen-Wawrin:  Yeah. So far, courts have not been very receptive to the idea of ecosystems having rights. I’ll back up on that idea and kind of go to one of the first legal scholars thinking about this issue in the 20th century in our U.S. legal system and that’s Professor Christopher Stone, who wrote a pretty famous paper called “Should Trees have Standing.” He starts that paper by talking about what he calls the unthinkable. You know like, “How do we think about something having rights, when we’ve never even conceptualized that before? 

He goes into that for several pages at the beginning of “Should Trees Have Standing.” And then says, you know, you probably have figured out why I’m saying this, I’m suggesting this implausible idea that natural objects, trees, ecosystems should have the ability to come into court and argue for their own rights. Stone wrote that paper about the same time that a case in California was winding its way up to the U.S. Supreme Court and he tells the story and Should Trees Have Standing revisited about getting a copy of his paper to Justice Douglas who then wrote a dissent in Sierra Club versus Morton. Basically, arguing Stone’s idea that this issue of environmental standing would be a lot easier if nature itself had standing rather than trying to find recreationists who spends time in that valley who would be harmed by the dam going in and that sort of thing. That’s all-predating Justice Scalia’s standing jurisprudence that has really shut the courthouse door to a lot of environmental plaintiffs. So, at the same time as Stone kind of theorizing this idea which you some people then started adding ecosystems to their list of plaintiffs but it never really took off at that point. Similarly, a lot of — several states started passing a state constitutional amendment — while I guess technically the people of the states passed constitutional amendments to recognize a right to a clean and healthy environment, environmental rights specifically for people, right? 

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So, there’s two levels here; one is saying that we as human beings should have a right to a clean and healthy environment and that’s vital and important. The other is that the ecosystem itself has rights which is more of the kind of ontological rupture in the law of taking something that is property and turning it into something that is a right-sparing(ph) legal person. 

J. Craig Williams:  Well, let’s take a look at it from the way that the professors taught us to in law school, which is, where does it derive from?  Where does this right derive from?  And I think what you’ve been making is an existence-based arguments. In other words, when we declare that we have certain inalienable rights, we derive those rights because we exist. So likewise, doesn’t nature have the same, right because it existed way before we got here?

Lindsey Schromen-Wawrin:  What you’re getting to right there is one of the challenges that we’re having and just the language we use around this. So, we have this concept of legal persons which is someone who has legally recognized rights and responsibilities and we divide legal persons into natural persons, which are human beings and artificial persons, which are entities, specifically governments and businesses. So, where does an ecosystem fit?  Because as you just said, ecosystems have been here long before us so they’re not artificial persons.

But also, the term “natural persons” already been taken and that means human beings. So, do we need to invent a new kind of legal person?  Do we fit ecosystems into one or the other? These are I think the sort of questions that we as a legal community are now in the middle of wrestling with.

J. Craig Williams:  It’s an interesting issue. If you don’t have any basis for it, then where do you derive some kind of standing to get into court?  Do you just simply create it and argue it and try and extend the law to something that the law doesn’t really want to exist?

Lindsey Schromen-Wawrin:  So, some attorneys have tried that and actually in other countries that has been successful in the last five years or so. There have been cases in Colombia, India, other places where judges have effectively sua sponte said, “Okay, I’m going to recognize rights for that river. It has legal rights, it’s a legal person with rights.” That has not been the case in the United States, so some of the cases I’ve worked on in the U.S. have been more about a local government, a city or a county passing a law that recognizes the rights of ecosystems within that jurisdiction and then the ecosystem attempting to intervene in court. The ecosystems you mentioned that I’ve represented have been in that place where the ecosystem along with members of the — human beings who are part of that ecosystem being the speaking parts of the ecosystem attempting to intervene to defend his rights in court. So far, judges have been like “I’m not going to go there. But I mean, we’ve had judges say I think this is an idea that will come and I’m just not ready to do it in this particular case but I encourage you to appeal.” So, you know I think it’s just a matter of time in other words.

J. Craig Williams:  How does this play into the biblical letter — in Genesis where early on, it says that God gives man dominion over the land and the animals and the birds and the things that creep the earth or however it’s phrased. Does this biblical concept have any play in the courts? 

Lindsey Schromen-Wawrin:  That’s an interesting — that I’ve never pursued. So maybe a theologian would be better able to answer that question. I apologize. 

J. Craig Williams:  Well, no. I understand your reluctance but think about it from the standpoint if we’re going to approach it from a religious perspective, going into court and sing to a judge. Well, the Bible gives us dominion over these things so, once there’s a dominion established, then we have rules. That’s a far-fetched argument, but perhaps it’s a little something we had to add it up(ph) with this conversation later on. 

Lindsey Schromen-Wawrin:  Well, I think a lot of the — I mean, there’s a robust area of scholarship, looking at the intersection of Christian theology, colonialism, white supremacy, property and kind of how all that mixed together in the creation of our modern legal system. That’s not really an area I’ve dived into, although it would be fascinating to have time to read more of it. But, I mean, I think you’re onto issues of, where did we get this idea in our Western worldview, which, Christianity dramatically influenced our legal system. That we have dominion over ecosystems and that they are just our property and we can do what we want with them.

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J. Craig Williams:  Right, because the Buddhist view of things is completely the opposite that all things have rights, and that they are to be treated with respect. 

Lindsey Schromen-Wawrin:  Yeah. And there’s some history in European law around like, I think it’s called (00:15:20) law. I should probably find the paper. I did not review that ahead of our interview. But you know, animals having standing in court, an animal harms a person and the animal is actually on trial. I think medieval legal systems in Europe, might have had more of a relationship to non-human animals than we do today. We kind of laugh at those ideas now.

J. Craig Williams:  We do and you know, one of the other things that we probably shouldn’t be laughing about is the climate change and mother nature essentially overruling all of these decisions that say that it has no rights because it’s been pretty vociferous right now.

Lindsey Schromen-Wawrin:  “Nature Bats Last” as some folks have said and you know, this is one of our challenges I think in how we think about law or government policy today, is that — in the law, we can define, A equals B or B equals C or red is blue or what is chicken. I mean, we can ask all those questions and we can make it say whatever we want. 

I mean I’ve seen, one of the cases I was involved with was around fracking waste and the agencies like, “Well yes, it is toxic but the law says it’s not, so it’s not toxic” You know what I mean?  We can define reality how we want in the law but if our definitions and our legal system aren’t in line with how the earth works, as a holistic natural system, we are the ones who are ultimately going to suffer. So, it’s really up to us to figure out how do we align our legal system with the laws of natural science, so to speak. So that we’re not at such an impasse where what we’re doing is so detrimental to the systems that support us and support our society. 

J. Craig Williams:  Is there anything in the existing laws that we have — say, the National Environmental Protection Act or The Endangered Species Act that give you any solace to this argument? I mean, I know that we set aside significant areas of land especially out west for preservation of ecosystems and species and we’re doing significant harm in other places. 

Lindsey Schromen-Wawrin:  I think the Endangered Species Act is potentially the closest of our current environmental law that comes toward recognizing rights for ecosystems. And of course, with the Endangered Species Act, it’s a specific species but because we include its habitat, it kind of extends to a larger landscape scale protection. 

But we have to recognize what the limitation is there, that species once it’s threatened and endangered, then begins to have protections and I mean in some way it has rights?  Although, we don’t frame it that way. So, it fits into the property model too of you can use your property up to a certain point, right?  Government can regulate over use of property in certain ways. So, in that sense, Endangered Species Act is something that fits into the property framework for environmental regulation. While also hinting at what Rights of Nature could mean if we extend those protections. It’s unfortunate that we’re saying, “Okay, you have to be near death to get to get help,” right?  We need to do more because what we’re doing overall is not working. 

J. Craig Williams:  Well, yeah, “nearly extinct” is not the time to start protecting an animal. 

Lindsey Schromen-Wawrin:  Unless you just want a minimum population. Yeah, and we see as a society, I think people are rapidly understanding the benefits of a healthy environment, for us, for our public health, for our ability to sustain ourselves in resilient local economies. And I think that’s where that that human right, that human benefit is very synergistic with the idea that ecosystems themselves have inherent rights, which is different. That is saying that, “we’re doing this not because of any benefit to ourselves, but because the rest of nature, not just human beings have value itself.

J. Craig Williams:  Could we ever be that altruistic?

Lindsey Schromen-Wawrin:  I mean — boy, I don’t know. That’s getting the philosophy question, right?

J. Craig Williams:  Right. But that’s where the pitch is. That we take care of it for its own existence, rather than for our own benefit.

Lindsey Schromen-Wawrin:  You service to others is the right we pay for our time here on earth. I mean, there’s a lot of things that all of us do that are beneficial for others that we see no individual gain. I mean, I don’t want to digress into a question of “what is human nature?” But even when we think about evolution, I’m in the Pacific Northwest, we have a lot of big old trees and an amazing old-growth forest and a lot of it has been harvested at the same time.

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Forest researchers have been studying the way that trees communicate with each other through fungal networks. And you know, there’s this whole debate about well that goes against their Darwinian understanding of evolution. Well actually, Darwin said a lot about cooperation as well, it’s not all competition, it’s not all self-interest. So maybe part of this is rethinking our ideas of how biology works, how natural selection works, how competition and cooperation work with natural systems and not assuming that competition is the way that the natural world works. 

J. Craig Williams:  I think there’s an entire generation coming that’s going to do that. 

Lindsey Schromen-Wawrin:  I hope so. It’s going to be helpful for all of us who are older than that generation — 

J. Craig Williams:  Right.

Lindsey Schromen-Wawrin:  — or on solidarity with it.

J. Craig Williams:  And unfortunately, it seems one of the things that we haven’t taken care of, I speak as a member of the older generation and having to turn it over to younger ones, saying, “Sorry, we screwed this one up and wow it’s coming on as fast.” 

Lindsey Schromen-Wawrin:  Yeah, we just went through a massive heatwave in the Pacific Northwest with record-setting temperatures and those sorts of events, while you can’t tie them directly into climate change, I think are more frequent because of climate change. That’s kind of the way the meteorologists phrased it and the reminders to everybody of the importance of figuring out solutions. And not just solutions in the — let’s set a benchmark for greenhouse gas emissions, reduction in 30 years, that’s easy for hand-elected official to do. I mean, as a city council member, it’s easy for me to promise things in the future when I’m not on council anymore, right?  But the harder thing is what do we do in the here and now with individual projects, individual policy decisions and how are those affected?  So, I hope that the Rights of Nature framework can help with that. 

I mentioned the case in where the judge said, “Maybe, you know, judges should consider letting ecosystems in, I’m not ready for that.”. That was a case on Coastal Oregon where a county had passed a ban on aerial spraying of pesticides. So that’s a specific issue where the forest service federal land in Coastal Oregon has not been using aerial spraying of pesticides to manage their forest. The state land and private land continues to do so, so it’s possible without using those chemicals. But this county prohibited it and that’s a specific fight over a specific kind of harm which, if we stop that harm, the nature often bounces back is what we see when we look at ecologically restoration. 

So, in that case just to finish that story, the State of Oregon has a law from the 1990s that’s a Pesticide Preemption Act. It’s remarkably similar to an American Legislative Exchange Council model code that is also from the mid-90s and the Appellate Court ruled following the Trial Court that the State Pesticide Preemption Act prohibits the county from prohibiting aerial spraying of pesticides. So, we have the system right now where states can interfere with local democracy and prevent people at the local level, from expanding environmental rights protections, which I think is a big problem that goes deeper into our system of government. 

J. Craig Williams:  That seems a little odd. Maybe not odd but I thought that the rights that weren’t specifically outlined in the constitution or the state constitution reserved the local people. 

Lindsey Schromen-Wawrin:  Yeah. The challenge is what local governments have been a contested space in our system of law. Ever since the 18th century. So, the way I explained it in brief is that when we had the American Revolution, states became the sovereign powers that had the power that the King and Parliament had. Then through the U.S. Constitution, some of that limited power went to the federal government. But those constitutions at the time didn’t address local governments. 

There’s even — some academics who have written papers on this of like, “Where’s the role of local governments and all of this?” And part of the thinking is that local governments are kind of working fine at the time. So, there’s no need to write about them or change their structure, but in the 19th century judges argued over “was there a right of local self-government?” or did all the power that locality, cities, counties, towns, townships, did all that power come from the state?  And by the mid, 19th century, one of those 19th century jurists, John Forrest Dillon had said that, it’s all from the state that became known as Dillon’s rule. 

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At the beginning of the 20th century, the U.S. Supreme Court kind of not codified but formalized Dillon’s rule saying “This is how it is local governments are shoulder of the state, they have no power about what the state gives them. Yeah, the state can even destroy them at will.” That then has been how we’ve approached local governments throughout the 20th century. There was a popular backlash against Dillon’s rule at the end of the 19th, beginning of the 21th century called the “Home Rule movement.” But judges have kind of put Home Rule back in the box of Dillon’s rule basically saying “Okay, Home Rule expands local governments to be able to do whatever the state doesn’t prohibit them from doing.” So, you don’t meet expressed permission but if the state expressively prohibits it, then the local government can’t do it.

So, it’s still state control over local governments. There’s been a lot of legal scholarship recently and a fantastic paper by professors working with the National League of Cities called “Principles of Home Rule for the Twenty-First Century.” That says, we need a more robust system for understanding when states can interfere with local democracy. What we learned as preemption as lawyers and arguing that when states are setting ceilings on health safety and rights protections that that should be strictly scrutinized as a barrier to local democracy. But when states are setting the floor for minimum standards for health and safety, that’s a different story and that should be more liberally reviewed by Courts. So, let’s not just say in preemption analysis, is there a conflict or is there field preemption and then the state always trumps the local. 

But let’s actually get more into the nuances because what we’ve seen in recent decades, is corporate special interests using state legislatures to weaponize preemption against local democracy. I don’t think that’s what our system of government should be about. 

J. Craig Williams:  No, I would agree with you. 

Lindsey Schromen-Wawrin:  I should probably have mentioned the idea that humans are separate from nature, being a central challenge of this because I think that’s where we get a lot of our estrangement. I mentioned Robin Wall Kimmerer’s book, Braiding Sweet Grass. In it, she talks about the Three Sisters Garden, where people grow corn and squash and beans altogether and corn provides the structure that the beans grow up. She actually then says “It should be really be called ‘The Four Sisters Garden’ because the gardener, the human being who is helping to create that environment for those plants is also working together with those three plant species.” So, I like how she adds people back into these systems as a necessary part of helping to keep ecosystems healthy. 

J. Craig Williams:  We exist just like nature exists. We have to cooperate; we are running out of chances. Well, Lindsey, it’s been a fascinating discussion and time has just flown by and we just about reached the end of our program. So, I’d like to invite you to share your final thoughts and your contact information if you like. 

Lindsey Schromen-Wawrin:  Yeah, sure. I mean, this question of Rights of Nature is at the stage now where we’re past Christopher Stone’s unthinkable premise of his Should Trees Have Standing article and we’re now at this place where we’re trying to figure out what are the legal mechanisms by which this works. Whether an ecosystem has rights, does that also mean it should have liabilities? I don’t think it should. But that is a risk that we might face as this progresses that — you know, you can sue the river when it floods your property. How do we make sure that that’s not what we end up with? So, the time is right for attorneys to get involved with this and to think about how does this work mechanistically? Who gets to represent ecosystems? How do we ensure that local people’s interests are valued in that process?  

These are all the fun questions that we, as lawyers dig into. So, I mean, I think the time is right to engage. I would say for starters on kind of where to go on that, the Community Environmental Legal Defense Fund, which is one of my clients is a great resource for getting into this and their website is celdf.org, Community Environmental Legal Defense Fund, C-E-L-D-F dot org. And I’m happy to talk with anyone about this stuff as well. I can be reached 360-406-4321 or lindsey@shearwaterlaw, which is [email protected].

J. Craig Williams:  Great. Well, thank you very much Lindsey, it’s been a pleasure having you on the show.

Lindsey Schromen-Wawrin:  Thank you so much for this conversation. I really appreciate it and it provided me more questions for thinking about where does this come from and where is this going to go?

J. Craig Williams:  Good. Well, I’d like to extend our thanks to our guest, Lindsey Schromen-Wawrin for being on our show today. Thank you very much. 

Lindsey Schromen-Wawrin:  Thank you. 

J. Craig Williams:  And for our listeners, if you like what you heard today, please rate us on Apple Podcast or your favorite podcasting app, you can So your favorite podcasting app, you can also visit us at legaltalknetwork.com where you can sign up for our newsletter. 

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I’m Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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