Does this butterfly or landscape have any rights we humans must respect? Even the right to exist?
Large sections of Australia’s Great Barrier Reef are now dead, done in by climate change. The vaquita a unique marine mammal that calls the Sea of Cortez home, is down to perhaps thirty individuals and is almost certain to be extinct soon– it is the world’s smallest marine mammal, only discovered in 1958. The several species of river dolphins are probably going soon—the baiji, also known as the Yangtze River dolphin, was declared extinct in 2006. Tropical forests are rapidly being cut—we’re losing 80,000 acres a day, along with an estimated 150 plant, animal and insect species a day—that’s losing 30 million acres and about 50,000 species a year. Human needs almost always win. Does it have to be that way? Does any natural object or any species or anything on earth have any inherent right to exist?
More than forty years ago Christopher Stone wrote his famous essay “Should Trees Have Standing. Towards Legal Rights for Natural Objects.” That essay was widely discussed, and perhaps generated as much derision as thoughtful analysis. The essay has been enormously influential. It was prompted by courts ruling in a case involving a proposed large Walt Disney development in the Mineral King Valley. The Sierra Club sued to stop development and lost because it was ruled that the Club was not suffering harm and that the Valley itself had no inherent rights. The suit did delay the proposal and Disney gave up; Mineral King was annexed to Sequoia National Park in 1978 by an act of Congress. Stone’s essay (appearing in the journal of the USC law school, where he taughtl) was cited by Justice William O. Douglas in his famous dissent to the case (Sierra Club v Morton). That dissent made the article famous.
In a 2014 case, the New York Supreme Court ruled that chimpanzees were not persons and thus could not sue for his or her freedom. The case was filed on behalf of a chimp named Tommy, by the Nonhuman Rights Project. That there was even a legal action shows considerable progress. Do I personally think that chimps should have some kind of legal rights? Yes, perhaps as some version of dependent person, something like the legal status of children or adults incapacitated by comas. (Here’s a good Huffpost piece, “Legal Legal Personhood for Apes,” 2/2015)
Courtesy of Citizens United in 2010, corporations now have legal rights as persons. If we can grant an abstraction like a corporation legal rights as a person, we surely can grant a forest legal right as a person. Corporations and forests are both human concepts. Corporations do have some physicality in the form of buildings, machinery, transport fleet, inventories and the like, but most of its assets have essentially no real existence: patents, cash, organizational structures, ownerships, stock, and more. A forest is of course a human concept, but it is based on understanding the complex interrelationships of real entities, perhaps best described by the word “ecosystem” including trees, fungi, insects, animals, soils, water, geography, climate.
New Zealand just granted a river the legal status as a person—apparently the first time anywhere. The river, the Whanganui, in the North Island, is New Zealand’s third longest. The Whanganui iwi (Maor, “iwi” meaning tribe) has been engaged in legal action for 140 years; the group regards the river as an ancestor. The settlement includes NZ$80 million plus an additional NZ$1 million to set up a legal framework. Two guardians will be appointed, one from the tribe and one from the crown (that is, the government). The river must now be treated as a living entity (see The Guardian, “New Zealand river granted the same legal rights as a human being”).
Bolivia has recently reorganized its Constitution and legal system and it grants legal rights to nature (whether this will survive the current administration is unknowable). The effort has been derided as wishful idealism, but it is based at least part in the traditions of Andean peoples, and should be respected. This included the Law of the Rights of Mother Earth (this source is Wikipedia on the 2010 proposal). The legal framework is still being set up, but it authorizes a Mother Earth ombudsman (which had not been set up as of 2/2016).
We are not going to become a world of vegans anytime soon. But there is no reason we cannot require that industrial animal agriculture, to my mind the worst offender, mitigate the cruelty currently characterizing the industry. In the US alone, we kill some 9 billion animals each year (in 2015 , 27.7 million cattle, 8.8 billion chickens, 115 million hogs, 2 million sheep/lambs, 232 million turkeys). It would be healthier for Americans to cut down on meat consumption, but we would be morally better off to be less cruel and more respectful. As it is, some states have “ag gag” laws on the books that make some kinds of research and whistle blowing actions concerning animal agriculture into crimes of terrorism. These act to perpetuate cruelty. However there is hope, because some large corporations have acted to reduce cruel methods in response to pressure from the public has achieved some positive results. Articulate and persistent environmental activism does sometimes gain results.
I don’t know if we can establish a body of legal rights for animals and for natural objects. I argue that any species has an inherent right to exist and that to purposefully inflict pain or extinction on a species is a crime, in its worst form ecocide. Human use of other species or of natural objects is necessary for our own survival, but surely we can try to reduce the pain and harm that we inflict. We have the right to defend ourselves, so wiping out smallpox is justified. Wiping out the vaquita to be able to sell more fish to China is not. We must inhabit the earth, but if only for our own survival, the human part of the world must become familiar with the basic importance of ecosystems, water flows and other factors. We Americans have in place national habits that border on the criminal—pushing millions of people into deserts as in Phoenix, building communities in areas in which fire is an important and frequent part of the local environment’s processes, overusing herbicides and insecticides that in time contaminate our rivers and groundwater, and more.
Species are not static in time and space, no aspect of nature is. We’re part of that process, a species in our own right. It would be a recognition of that to more fully articulate our place on earth, and to respect it more. Much change is caused by human activity, increasing over time so much that many now see us in an era termed the Anthropocene, a recognition that we are now an elemental geophysical force. We as Americans need to do what we can to spread awareness of this whole range of issues. I see it as a moral imperative as well as something that will help all of us, people and all of nature and natural systems, survive. Here’s a case that relates a bit: for many years, medical schools used cadavers as discardable educational tools, but more recently medical programs have established ways in which students have become more respectful toward cadavers. That respect makes all the difference.
I see no reasons that we cannot come up with a framework that respects the rights of species, ecosystems and the planet. Here’s a good essay providing useful background and context on animal rights (Huffpost 3/28/2016, “Do Animals Have Legal Rights?”).
The legal future of rights for anything in nature is going to be problematic. The Trump regime over the next four years may have the opportunity to appoint as much as half the federal appellate judiciary, through presently vacant positions and through attrition of present judges as they retire. The prospect for legal changes is low. So, we need to remember that the potential harmful development of a natural wonder more than forty years ago caused Christopher Stone to write his extraordinarily influential essay. That act helped change many minds. Those of us in the present concerned with these issues need to keep at it, keep writing, keep convincing people.
Later addition: In response to a comment, I see I was unclear about the doctrine of corporate person hood. It has existed legally in some form since the later 1800s (here’s the Wikipedia entry about it). My point is that the 2010 decision enhanced the person hood of corporations.