Rights for Rivers: Fighting for the Legal Rights of Nature

Arguing for the legal standing of nature was greeted as ridiculous in the 1970s. But now the idea is catching on.

In October 1971, a few months after international officials gathered in Iran to sign the Ramsar wetlands treaty, Christopher Stone was standing in front of his introductory property law class at the University of Southern California鈥檚 law school, trying to hold the attention of his restive students. Observing that the definition of property had changed radically over human history, transforming not only the distribution of power within society but society鈥檚 view of itself, he wondered aloud about the effects of a similarly radical redefinition of 鈥渞ights.鈥� What if legal rights were extended to, say, rivers? Or animals? Or trees? 鈥淭his little thought experiment,鈥� Stone recalled decades later, 鈥渨as greeted, quite sincerely, with uproar.鈥�

Class was soon dismissed鈥斺€媡o the relief of the students and their professor鈥斺€媌ut Stone did not abandon his thought experiment. Instead, he called the law library鈥檚 reference desk and asked if there were any pending cases where the 鈥渞ights鈥� of a natural object might affect the outcome. Within half an hour, a librarian called back to suggest Sierra Club v. Hickel.

The case involved a proposed Walt Disney resort in Mineral King Valley, a wilderness area in the Sierra Nevada of California. The Sierra Club Legal Defense Fund had challenged the development permit that the U.S. Forest Service had granted to the Disney corporation, but the court that heard the case had ruled that the Sierra Club had no 鈥渟tanding鈥濃€斺€媌ecause the club itself would not be 鈥渁ggrieved鈥� or 鈥渁dversely affected鈥� by the development, it had no right to sue. The club had appealed, and the case would soon reach the U.S. Supreme Court.

Stone hastily pulled together an essay for an upcoming issue of the Southern California Law Review. 鈥淚 am quite seriously proposing that we give legal rights to forests, oceans, rivers, and other so-鈥媍alled 鈥榥atural objects鈥� in the environment鈥斺€媔ndeed, to the natural environment as a whole,鈥� he wrote. He was not, he emphasized, suggesting that no one be allowed to cut down a tree. 鈥淭o say that the natural environment should have rights is not to say that it should have every right we can imagine, or even the same body of rights as human beings have,鈥� he wrote. 鈥淣or is it to say that everything in the environment should have the same rights as every other thing in the environment.鈥�

Stone鈥檚 argument was that natural objects should not have to depend on the Sierra Club for legal standing, but should be accorded their own. If forests, oceans, and rivers possessed standing, Stone argued, court-鈥媋pproved human 鈥済uardians鈥� could sue on their behalf, much as legal representatives can sue on behalf of incapacitated people or defunct corporations. These guardians would represent the interests of the natural objects, and the court would award any compensation to the object itself, perhaps in the form of funds for restoration.

Like the rights held by people鈥斺€媠uch as the right to vote and the right to own property鈥斺€媘any of the existing protections afforded to natural objects are open to interpretation, and can be limited in certain circumstances. Legal standing for natural objects, Stone predicted, would allow their human advocates to spell out the consequences of such limitations, and elevate those consequences in the eyes of the courts and the public.

鈥淪hould Trees Have Standing?鈥� was published, by design, in an issue of the law review for which Supreme Court Justice William O. Douglas had agreed to write a preface, and it found its way to its intended audience of one. Though the Supreme Court ruled against the Sierra Club in April 1972, Douglas cited Stone鈥檚 argument in the opening lines of his dissent. 鈥淐ontemporary public concern for protecting nature鈥檚 ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation,鈥� Douglas wrote. He concluded his dissent by quoting Aldo Leopold: 鈥淭he land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.鈥� (Public opposition to the Disney development continued after the court ruling, and company executives eventually lost interest in the project. The Mineral King Valley, now part of Sequoia National Park, remains undeveloped.)

Douglas鈥檚 unusual dissent caught the attention of the press, and Stone鈥檚 argument was widely ridiculed. 鈥淚f Justice Douglas has his way鈥斺€� / O come not that dreadful day鈥斺€� / We鈥檒l be sued by lakes and hills / Seeking a redress of ills,鈥� one lawyer wrote. A Michigan appeals court later issued an entire opinion in doggerel, beginning with the lines 鈥淲e thought that we would never see / A suit to compensate a tree.鈥�

Stone鈥檚 essay continues to be argued over by law students, but 50 years after its publication, the notion of 鈥渁 suit to compensate a tree鈥� no longer seems so far-鈥媐etched. The U.S. Endangered Species Act, signed into law two years after Stone published his article, includes a provision that allows private citizens to sue over alleged violations of the act, and courts have since granted standing to spotted owls, red squirrels, Florida Key deer, and other endangered species as co-鈥媝laintiffs in citizen suits.

Charles Darwin, in The Descent of Man, observed that, over the course of human history, the 鈥渟ympathies鈥� of Homo sapiens have become 鈥渕ore tender and widely diffused, so as to extend to the men of all races, to the imbecile, the maimed, and other useless members of society, and finally to the lower animals.鈥� History, of course, doesn鈥檛 move in a straight line, and it鈥檚 clear from our own time that sympathies can contract as quickly as they expand; in 2020, the U.S. Fish and Wildlife Service proposed to severely curtail the protections granted to birds more than a century earlier by the Migratory Bird Treaty Act. Yet for many groups of humans鈥斺€媤omen, children, people of color, people with disabilities, people without property鈥斺€媟ights now widely considered inalienable were not so long ago seen as ridiculously out of reach. And our sympathies for other species are already being translated into legal rights.

In 2017, the Whanganui River鈥斺€媡he longest navigable river in New Zealand鈥斺€媌ecame a legal person. The Whanganui had been controlled by colonial and national governments since the mid-鈥�1800s, but the indigenous M膩ori people had never willingly given up their historical claim to the river, and it had become the subject of one of the country鈥檚 longest-鈥媟unning court battles. After M膩ori legal scholar Jacinta Ruru and her student James Morris noted in a 2010 article that Stone鈥檚 concept of legal standing for natural objects resembled the M膩ori concept of rivers as living beings, government officials and M膩ori leaders took up the idea: If they couldn鈥檛 resolve who owned the river, maybe the river should, in a sense, own itself. In 2014, the parties reached a settlement that recognized the Whanganui, its tributaries, and 鈥渁ll its physical and metaphysical elements鈥� as 鈥渁 living and indivisible whole.鈥� Three years later, following a parliamentary debate conducted in M膩ori and English, the settlement became law.

The Whanganui, which has been dammed for hydropower, mined for gravel, dynamited for steamer passage, and polluted by urban effluent, will now be represented in court by two guardians, one chosen by the M膩ori groups most closely connected to the river and one by the national government鈥斺€媙ot unlike the arrangement Stone proposed. Exactly what legal personhood means for the Whanganui will surely be the subject of lawsuits to come. But the agreement changes the terms of those arguments. 鈥淭he law, like our most fundamental societal stories, reminds us not only of what we are, but of what we aspire to be,鈥� writes Holly Doremus. 鈥淪tories that become embedded in law are thus powerful forces in shaping society and social attitudes.鈥� Often, they reinforce existing ideas. Sometimes, they expand our sense of the possible.

Though the Whanganui legislation and a growing number of laws like it vary in their particulars, they replace what Stone called 鈥渢he view that Nature is a collection of useful senseless objects鈥� with the general proposition that rivers, or forests, or animal species have value beyond the services they provide to humans, and that the responsibilities and costs of tolerating and sustaining them should be borne not by an unlucky few but by society as a whole.

New Zealand biologist and anthropologist Mere Roberts, herself of M膩ori descent, writes that the M膩ori worldview might be best described as 鈥渒in-鈥媍entric,鈥� in which humans are bound to one another, and to the rest of the living world, by a multitude of reciprocal relationships. Like Leopold鈥檚 concept of plain citizenship, this view recognizes that some of our relationships with other species are consumptive, some are predatory, and some inflict costs on both parties. It also recognizes that all have at least some potential for reciprocity, if only in the broadest sense of continuing the flow of energy within the biotic pyramid.

As individuals and as species, living organisms are part of interdependent communities, existing within a web of mutualisms that Leopold once imagined as 鈥渁 universal symbiosis.鈥� Given the harm our species is capable of doing to others, it鈥檚 understandable that over the course of the conservation movement, some have tried to sever our relationships with other species, drawing hard boundaries in an attempt to limit our exploitation of other forms of life.

Boundaries have been useful to conservation鈥斺€媋nd will continue to be. But the lesson of ecology, much like that of Aesop鈥檚 fables, is that human relationships with the rest of life are both inescapable and inescapably complex. The great challenge of conservation is to sustain complexity, in its many forms, and by doing so protect the possibility of a future for all life on Earth. And for that, there are no panaceas.

Read an interview with author Michelle Nijhuis about Beloved Beasts: Fighting for Life in an Age of Extinction here.

Excerpted from Beloved Beasts: Fighting for Life in an Age of Extinction by Michelle Nijhuis, copyright 漏 2021 by Michelle Nijhuis. Used by permission of W. W. Norton & Company Inc.

Michelle Nijhuis is a project editor at the Atlantic, a contributing editor at High Country News, and an award-winning reporter whose work has been published in National Geographic and the New York Times Magazine. She is co-editor of The Science Writers鈥� Handbook and lives in White Salmon, Washington.