Johnny Rook's Climaticide Chronicles

Cross-posted at The Environmentalist (published at Reuters via The Environmentalist), Daily Kos and Docudharma.

Next week Ecuador votes on providing constitutional rights to rivers, tropical forests, islands and air. Polls now show that 56% support and only 23% oppose a bill of rights for nature, similar to legal rights provided to people. This bill of rights would change the legal status of natural resources from property to a “right-bearing entity.”

Ecuador is taking this approach to protect its people from the health care problems caused by pollution when multinational corporations extract or damage their natural resources, leaving behind polluted environments for the country to clean-up. This approach would also enable citizens and government officials to file lawsuits to protect our natural resources when agencies focus on special interest agendas rather than the public interest.

The proposed constitutional clauses acknowledge rights possessed by nature or “Pachamama,” a “goddess revered by indigenous Andean peoples” and would provide that:

“Natural communities and ecosystems possess the unalienable right to exist, flourish and evolve within Ecuador. Those rights shall be self-executing, and it shall be the duty and right of all Ecuadorian governments, communities, and individuals to enforce those rights.”

This is not unprecedented. The US provides legal rights to corporate entities:

But Ecuador is not the first country to propose granting rights to nonhuman entities: Many countries, including the United States, have long held that corporations possess many of the same rights – such as the rights to free expression and to due process – that human beings have. And in June, Spain’s parliament approved a measure to extend some human rights to nonhuman apes.

Moreover, in a landmark environmental case, Sierra Club v. Morton (1972), Justice Douglas argued in a dissenting opinion that “inanimate objects,” like our natural resources, should also have standing to file lawsuits as a means of “self-defense” from pollution and environmental degradation:

The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. This suit would therefore be more properly labeled as Mineral King v. Morton.

Justice Douglas noted the analogy to the legal standing of other inanimate objects, such as ships and corporations:

“Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole — a creature of ecclesiastical law — is an acceptable adversary, and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist, or a logger — must be able to speak for the values which the river represents, and which are threatened with destruction.

A US lawyer helped develop this new framework in Ecuador because our existing model of a regulatory system where government is supposed to protect our environment in a permit system that first evaluates and mitigates environmental impacts has simply not worked.

In Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability, James Gustave Speth points out the paradox that for the past 40 years environmentalists have “grown in strength and sophistication,” yet we now have an environment that faces a calamity on all sides: We have lost half of our world forests, 90% of large ocean fish, 20% of coral, 1/3 of wetlands, ½ of mangroves, and every year an area the size of Nebraska is lost to desertification, species are lost at a rate of 1,000 times the natural rate of extinction, and we keep losing ice and glaciers to climate change while “persistent toxic chemicals can now be found by the dozens in . . . every one of us.”

The objective of the new nature bill of rights is to codify a sustainable development by allowing communities, elected officials and individuals to file lawsuits to obtain damages to our ecosystem:

“In the same way, compensation is measured in terms of that injury to a person or people. Under the new system, it will be measured according to damage to the ecosystem. The new system is, in essence, an attempt to codify sustainable development. The new laws would grant people the right to sue on behalf of an ecosystem, even if not actually injured themselves.”

Under existing laws, people generally need to provide evidence of personal injury flowing from the environmental damage in order to have standing to file a lawsuit.

This can be extremely difficult. To provide a conclusive link, say, between a cancer and polluted drinking water is, legally speaking, virtually impossible.

Ecuador is ready to try this new approach because it is fed up with foreign multinational corporations degrading and polluting their environment. Providing legal rights to natural resources may not only protect their environment, but reduce government expenses litigating the corporations:

Now it is in the grip of a bitter lawsuit against US oil giant Chevron, formerly Texaco, over its alleged dumping of billions of gallons of crude oil and toxic waste waters into the Amazonian jungle over two decades.

It is described as the Amazonian Chernobyl, and 30,000 local people claim that up to 18m tonnes of oil was dumped into unlined pits over two decades, in defiance of international guidelines, and contaminating groundwater over an area of some 1,700 hectares (4,200 acres) and leading to a plethora of serious health problems for anyone living in the area. Chevron has denied the allegations. In April, a court-appointed expert announced in a report that, should Chevron lose, it would have to pay up to $16bn (£8.9bn) in damages.

Chevron, which claims its responsibilities were absolved in 1992 when it handed over its operations in Ecuador to the state-owned extraction company, Petroecuador, immediately set about discrediting the report. A verdict on the case is still thought to be a long way off, and Ecuador’s government could face US trade sanctions for its refusal to “kill” the case.

This movement to grant legal rights to nature did not start in Ecuador. Years ago, in the US, cities and towns used a similar approach to ban coal mines, incinerators and factory farms:

Aided by the Community Environmental Legal Defense Fund in Pennsylvania, about a dozen municipalities have abandoned the old-fashioned way of halting development — through the appeals process — and are placing outright bans on environmentally disruptive activities.

For example, in Pennsylvania, Southampton prohibits corporate ownership of farms, and Wayne passed an ordinance that gives the town the power to keep out corporations with criminal histories. The Defense Fund gets much of the credit (or the blame) for these decidedly anti-business, grass-roots efforts. It even offers ready-made ordinances to protect ecosystems. Ecuadorean officials called the group when they were crafting the new constitution, and now it’s fielding calls from Australia, Italy, South Africa and Nepal, which is writing its first constitution.

Justice Douglas had similar concerns about corporate special interests. He advocated that our natural resources should have legal defenders before they were destroyed by our government or private corporations. Justice Douglas recognized that our system provides state and federal agencies as well as Congress to perform that role. However, our system does not provide the needed protection due to special interests which manipulate in order to minimize environmental protections:

Yet the pressures on agencies for favorable action one way or the other are enormous. The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction, and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated. [As one court of appeals observed,] “the recurring question which has plagued public regulation of industry [is] whether the regulatory agency is unduly oriented toward the interests of the industry it is designed to regulate, rather than the public interest it is designed to protect.”

Finally, Justice Douglas recognized that “[p]ermitting a court to appoint a representative of an inanimate object would not be significantly different from customary judicial appointments of guardians ad litem, executors, conservators, receivers, or counsel for indigents.”

Given the failures inherent in our own system to protect our environment and natural resources, it is good to see attempts to use new, creative approaches.