I've started reading about the rights of nature movement as I research my note topic, which is something you do on a law journal- basically a paper of legal research. The rights of nature movement seeks to protect the environment by granting rights and legal personhood to nature so that individuals can sue on behalf of ecosystems in court that would otherwise go unrepresented. I think it's a really interesting way to protect the environment by integrating it into the legal system.
I think that the legal system is out of sync with how normal people think of nature. First is that the law does not see humans as animals, which anyone would tell you is biologically true. Black's Law Dictionary defines "animal" as "any animate being which is endowed with the power of voluntary motion. In the language of the law the term includes all living creatures not human." The Animal Welfare Act specifically excludes rats, mice, reptiles, amphibians, fish, and farm animals to avoid protecting the welfare of animals used in scientific testing, agriculture, and fisheries. However, laws protecting animals from cruelty go way back: the first in America was passed in the Massachusetts Bay Colony in 1641, prohibiting anyone from exercising "any tirranny or crueltie towards any bruite creatures which are usuallie kept for man's use." What I wonder is if we protect dogs and cats from cruelty, shouldn't all animals be granted some reasonable guarantee that they be kept from any more cruelty than necessary? Like farm animals and lab rats may need to be used for human ends, but surely we can set some limits on their abuse.
While granting legal personhood to plants, animals, or ecosystems may sound unusual, it doesn't sound so weird once you think about the fact that corporations, ships, municipalities, and a million other legal fictions are considered people under the law. They don't have the same rights as humans (for example, corporations can't vote) and so neither would nature. You grant human rights to humans and tree rights to trees and so on. Boyd cites Sue Donaldson and Will Kymlicka who argue that animal rights should be distinguished in three categories: domestic, wild, and liminal (animals that are on the border of wild and domestic like raccoons, crows, etc.). In fact, some animals have already been plaintiffs in lawsuits where endangered species are at risk due to some human action. These cases have names like Palila et al v. Hawaii Department of Land and Natural Resources (the Palila is a honeycreeper bird) and Marbled Murrelet v. Babbit, or Hawksbill Sea Turtle v. FEMA and American Bald Eagle v. Bhatti. However, Boyd writes that in Cetacean Community v. Bush, in 2004, the Ninth Circuit held that cetaceans do not have standing to sue. What I don't understand is which animals do have standing and which don't, or if Cetacean Community overturned the earlier cases. I will have to read the case.
Okay, I'm back from reading the case and it looks like the court in Cetacean Community is the same as the court in Palila and they decided that the language in Palila that granted standing to the bird was nonbinding dicta, meaning it was not a part of the decision meant with precedential effect. Interestingly, the court held that the constitution actually allows for animals to have standing, but statutes passed later do not. So, Congress can change the law whenever it wants to give animals standing. There was another case in 2018, Naruto v. Slater, that made the news and I saw that it referenced Cetacean Community. This was when a monkey took some pictures on a camera that were eventually printed in a book. PETA sued on behalf of the monkey to get it some financial compensation for the selfies it took that then made someone a whole lot of money in a photography book. In that case, the court also ruled that the animal had no standing, finding that unless Congress specifically grants animals standing in a law, it should be assumed that "persons" or "individuals" refers to people as already understood under law. I would say that is a perfectly reasonable decision. It is not really in the best interest of society to have courts make such a drastic change to the laws, this is something that state legislatures or Congress should take on. It seems that most cases in which an aspect of nature is a plaintiff are older than these ones and out of date.
Similarly, courts are also striking down laws that grant rights to nature as part of a "community rights" approach to lawmaking. Basically, a few towns threatened by fracking have passed laws that incidentally grant rights to nature while also stripping rights from corporations. These laws have all been struck down when the cases are heard on the merits because the things they do are so over the top, like saying that corporations that violate the law cannot seek redress in court. As a result, the whole law gets thrown away, including the rights of nature. Courts are also striking down laws like the Lake Erie Bill of Rights (LEBOR) for vagueness when they say that nature has the rights to evolve, flourish, and other bullshit. Those laws are basically just aspirational statements. What does interest me is a new law that Orange County just passed that is significantly more detailed in its framework for how the lawsuits will work. As I continue writing my article, I plan on researching more about this. Unfortunately, Florida passed a law preempting Orange County, so their law will probably fail (or so it seems, maybe I'm being too pessimistic), but maybe similar laws could be passed in other states using the Orange County law as a template.
Miscellaneous Facts:
- St. Francis of Assisi believed in the equality of all creatures and called the sun, the Earth, the water, and the wind his brothers and sisters.
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