# A Brief History of Rights of Nature in the United States

An episode of [Drilled](https://invisiblenetwork.ai/podcast/1439735906), 24 Feb 2022, 32 min.

Audio: https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/SxlTEPDY7xDg35RXkASs/pdrl.fm/3e5572/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/9a7ab5ee-ce11-48ff-a544-b3ec00ea9b1e/15aa8a92-414d-4913-bb82-b3ec00f1adfa/audio.mp3?utm_source=Podcast&in_playlist=7f82f371-6316-4ea6-a108-b3ec00ea9b2d

Rights of nature first started making its way into U.S. courtrooms via an unlikely source: Disney. Today it's a huge threat to the fossil fuel industry. So much so that the industry is pushing preemptive bans on rights of nature laws in states across the country. See omnystudio.com/listener for privacy information.

## Transcript

[0:03] Speaker 1: Last time on Damages, you heard a little bit about
[0:06] Speaker 1: how wild Rice got rights. That's part of who we are.
[0:11] Speaker 2: I know, It's one of those fundamental core pieces of
[0:14] Speaker 2: our identity.
[0:16] Speaker 3: We're part of that creation. Something had to give us substance,
[0:21] Speaker 3: Something have to give us substance. And the agreement was
[0:27] Speaker 3: we would remember and I can look at water and
[0:32] Speaker 3: see a spirit there.
[0:33] Speaker 4: The unique case names wild rice, which is sacred in
[0:37] Speaker 4: Jibweight culture, as the lead plane up.
[0:42] Speaker 1: The Wild Rice case was the first to be filed
[0:44] Speaker 1: in tribal court in the US, A few non native
[0:48] Speaker 1: communities have also tried to work rates of nature into
[0:52] Speaker 1: their laws. In Ohio, Toledo residents passed the Lake Eerie
[0:57] Speaker 1: Bill of Rights in twenty nineteen, for example, but it
[1:00] Speaker 1: met with swift and severe backlash that ultimately led to
[1:05] Speaker 1: the state of Ohio passing a preemptive ban on any
[1:09] Speaker 1: rights of nature laws. In Pennsylvania, some townships have moved
[1:14] Speaker 1: to adopt rights of nature into their government charters, but
[1:17] Speaker 1: there too, the opposition has been pretty fierce. We're going
[1:21] Speaker 1: to get into the details of those stories a little
[1:23] Speaker 1: later in this season, but today we're going to look
[1:26] Speaker 1: at the US more broadly, and why it's so hard
[1:31] Speaker 1: to integrate an idea like rights of nature into the
[1:34] Speaker 1: American legal system, and why the idea is so terrifying
[1:39] Speaker 1: to industry.
[1:43] Speaker 5: Mister Olson, are you taking the position that there is
[1:47] Speaker 5: no difference in the First Amendment rights of an individual?
[1:53] Speaker 5: A corporation, after all, is not endowed by its creator
[1:58] Speaker 5: with inalienable rights. So is there any distinction that Congress
[2:05] Speaker 5: could draw between corporations and natural human beings full purposes
[2:13] Speaker 5: of campaign finance?
[2:14] Speaker 6: What the Court has said in the First Amendment context
[2:17] Speaker 6: is that corporations are persons entitled to protection under the
[2:21] Speaker 6: First Amendment.
[2:26] Speaker 1: Back in twenty ten, Conservatives won a long running campaign
[2:30] Speaker 1: to grant corporations free speech. The Citizens United case was
[2:35] Speaker 1: the final win in that long battle, with the Supreme
[2:39] Speaker 1: Court granting First Amendment rights to corporations, including the right
[2:43] Speaker 1: to political speech and to donate money anonymously. That one
[2:48] Speaker 1: court decision has been credited with sparking a huge amount
[2:52] Speaker 1: of dark money in politics. And it will probably come
[2:55] Speaker 1: as no surprise to hear that a lot of the
[2:57] Speaker 1: very same industries that fought so hard for corporate free
[3:01] Speaker 1: speech are not at all into the idea of ecosystems.
[3:06] Speaker 1: Having those rights welcome back to damages. I'm Amy Westervelt.
[3:19] Speaker 1: In the United States, the push for rights of nature
[3:22] Speaker 1: started with of all things Disney.
[3:27] Speaker 7: The Wonderful World of Disney.
[3:32] Speaker 1: In the nineteen seventies, Walt Disney Productions wanted to build
[3:36] Speaker 1: a ski resort in Sierra National Forest. The Sierra Club
[3:42] Speaker 1: sued them to try to stop it. That case went
[3:44] Speaker 1: all the way to the Supreme Court. Our reporter Meg
[3:48] Speaker 1: Duff picks up the story here.
[3:53] Speaker 5: The largest tree and the largest living thing on the
[3:57] Speaker 5: face of the.
[3:57] Speaker 8: O, Mister Solna is to Chief Justice Burger and may
[4:02] Speaker 8: have pleased the Court. The Sierra Club brought this proceeding
[4:06] Speaker 8: against the Secretaries of Agriculture and Interior and their assistance
[4:10] Speaker 8: to establish that their plans to authorize a huge private
[4:15] Speaker 8: recreational development at Mineral King in Sequoia National Game Refuge
[4:20] Speaker 8: and for a state highway across Sequoia National Park to
[4:23] Speaker 8: reach that development, we're illegal.
[4:26] Speaker 4: That's the Sierra Club's lawyer, Leland Salna Junior, arguing before
[4:29] Speaker 4: the Supreme Court in November nineteen seventy one. Just a
[4:33] Speaker 4: month before in October, Walt Disney World opened in Florida,
[4:38] Speaker 4: and now Disney was planning another resort in Mineral King
[4:42] Speaker 4: Valley in the Giant Sequoia's range.
[4:45] Speaker 8: Mineral King is located in the Sierra Nevada Mountains, approximately
[4:50] Speaker 8: two hundred and twenty five miles north of Los Angeles.
[4:53] Speaker 8: It is a portion of a fifteen thousand acre game refuge,
[4:56] Speaker 8: which Congress created in nineteen twenty six. Walt Disney Productions
[5:01] Speaker 8: has described Mineral King as unsurpassed and natural splendor, perhaps
[5:05] Speaker 8: more similar to the European Alps than any other area
[5:07] Speaker 8: in the United States, and generously endowed with lakes, streams, cascades, caverns,
[5:13] Speaker 8: and matchless mountain distas. In nineteen sixty nine, the Forest
[5:17] Speaker 8: Service accepted a proposal from Disney for a huge resort
[5:20] Speaker 8: development at Mineral King. Disney would construct hotels, lodges, restaurants,
[5:26] Speaker 8: other permanent facilities so that fourteen thousand persons could ski
[5:30] Speaker 8: at Mineral King at one time.
[5:32] Speaker 4: To get there, though, Disney would have to build a
[5:35] Speaker 4: busy highway through the heart of Sequoia National Park to.
[5:39] Speaker 8: Solve the problem of transporting fourteen thousand persons at one
[5:42] Speaker 8: time to Mineral King was a problem and the state
[5:45] Speaker 8: of California agreed to construct a high standard freeway to
[5:49] Speaker 8: dead end at Mineral King, provided that it could cut
[5:52] Speaker 8: across the park.
[5:53] Speaker 4: It might sound weird, but the idea for the road
[5:56] Speaker 4: actually came from the Forest Service. They'd been hoping to
[5:59] Speaker 4: ma Mineral King a more accessible recreation area for more
[6:03] Speaker 4: than twenty years. So it's good for the Forest Service
[6:07] Speaker 4: and it's good for Walt Disney productions. Who it's not
[6:10] Speaker 4: good for are the hikers and the trees. If Californians
[6:14] Speaker 4: have learned anything the past few summers, it's the building
[6:17] Speaker 4: in fire prone areas makes natural fire cycles difficult to maintain,
[6:22] Speaker 4: and this disputed road would lead to a ski resort,
[6:25] Speaker 4: which creates a huge conservation problem. That's one reason the
[6:29] Speaker 4: Sierra Club filed suit. The question is does the Sierra
[6:32] Speaker 4: Club really have any right to speak for the trees?
[6:36] Speaker 4: Solicitor General Irwin Griswold said no.
[6:40] Speaker 7: This case, in a very real sense, is the ultimate
[6:43] Speaker 7: case on standing.
[6:45] Speaker 4: Standing means you need to be able to show that
[6:48] Speaker 4: you were hurt in some way. It's the thing that
[6:51] Speaker 4: allows you to file a case.
[6:54] Speaker 7: If the petitioner here has standing, then I believe it
[6:59] Speaker 7: fair to conclude that anyone who asserts an interest in
[7:03] Speaker 7: a controversy has standing.
[7:05] Speaker 9: Griswold is saying, no injury, no case.
[7:09] Speaker 7: It did not allege that it had any financial interest
[7:12] Speaker 7: in the controversy. It did not allege the ownership of
[7:16] Speaker 7: any property involved, or any interference within the activities it
[7:20] Speaker 7: is conducting. It did not even allege a special interest
[7:24] Speaker 7: in mineral king.
[7:25] Speaker 4: This slicter general is saying, really, it's none of their business.
[7:29] Speaker 4: If we let the Sierra Club plead this case, things
[7:32] Speaker 4: could really spiral.
[7:34] Speaker 7: I don't think there's any magic in the fact that
[7:37] Speaker 7: the Sierra Club is a club or that has members
[7:42] Speaker 7: or a long and distinguished history, many of which members
[7:47] Speaker 7: may well share the interest which it's management now advances.
[7:52] Speaker 7: If it is the fact that it is a group
[7:54] Speaker 7: that gives it standing, how big a group must it
[7:58] Speaker 7: be remembered? Five or fifty or fifty thousand? What reason
[8:07] Speaker 7: is there for picking any number? If any group has
[8:11] Speaker 7: standing because it has an intellectual or emotional interest, does
[8:17] Speaker 7: it not inevitably follow than any individual who was certain
[8:21] Speaker 7: image likewise has standing to raise these legal questions. If
[8:27] Speaker 7: the Sierra Club has standing, as Mister Justice Blackman suggested,
[8:31] Speaker 7: would not John Muir have standing?
[8:37] Speaker 10: The odd thing about this thesis is it didn't come
[8:40] Speaker 10: out of an environmental thinking an environmental law class. It initiated.
[8:46] Speaker 10: The thesis initiated in a property class I was teaching.
[8:50] Speaker 10: I was teaching the basic property class, the introductory property
[8:53] Speaker 10: classes of the class you can teach without knowing a
[8:55] Speaker 10: lot of the technical details.
[8:58] Speaker 4: Just one month before that Supreme Court argument, Christopher Stone
[9:02] Speaker 4: was just a few hundred miles south of Sequoia National
[9:05] Speaker 4: Park at the University of Southern California in Los Angeles,
[9:09] Speaker 4: teaching his intro to Property law class. He was an
[9:13] Speaker 4: environmental lawyer and law professor at the University of Southern
[9:16] Speaker 4: California for over fifty years. He actually passed away last May,
[9:21] Speaker 4: so I wasn't able to talk with him, but I
[9:23] Speaker 4: was able to find a lecture he gave back in
[9:26] Speaker 4: nineteen ninety six.
[9:28] Speaker 10: It was getting towards the end of the hour, and
[9:32] Speaker 10: I was trying to think of what would a radically
[9:34] Speaker 10: different consciousness that would be law linked look like. And
[9:37] Speaker 10: I said it would be where nature had rights, so
[9:43] Speaker 10: trees warming to it, rivers and the place broke is
[9:47] Speaker 10: pandemonial and of the hour. Thank goodness. Students were no,
[9:51] Speaker 10: that's you know, this is like enough. And I walked
[9:54] Speaker 10: down into the hall and I was exaggerating at all.
[9:56] Speaker 10: I said to myself, don't used seak myself on the
[9:58] Speaker 10: third person. So Stone, what have you done? Now?
[10:04] Speaker 4: What Stone had just done was question one of the
[10:07] Speaker 4: most fundamental taken for granted premises in Western law that
[10:12] Speaker 4: nature is property and that it exists to be used.
[10:16] Speaker 11: The phrase is, whoever owns the soil, it is theirs,
[10:19] Speaker 11: up to heaven and down to hell.
[10:21] Speaker 4: Environmental sociologist Colin Jarollmack is an expert on the intersection
[10:26] Speaker 4: of property rights and nature, and he says that in
[10:29] Speaker 4: the US this idea goes back to the colonial period.
[10:39] Speaker 11: So England had the strongest property rights before the United States.
[10:44] Speaker 2: And there's a huge caveat.
[10:45] Speaker 11: Though, to that whoever you know owning the soil down
[10:48] Speaker 11: to hell part, which was that the crown retained anything
[10:53] Speaker 11: valuable underneath the surface. So you technically own the soil,
[10:56] Speaker 11: but any gold, silver, or oil, precious metals, gas that
[11:00] Speaker 11: was there belonged to the crown. And so you know,
[11:03] Speaker 11: the United States inherited property law as it inherited many
[11:07] Speaker 11: other forms of law from England. But there was a
[11:09] Speaker 11: very conscious decision when the so called Founding Fathers, you know,
[11:13] Speaker 11: won the Revolutionary War to get rid of those caveats.
[11:18] Speaker 11: And this was explicitly consciously pulling on John Locke, who
[11:22] Speaker 11: exerted an incredibly strong force on the American Constitution, who
[11:26] Speaker 11: made this argument that it is only through labor that
[11:29] Speaker 11: nature becomes valuable.
[11:32] Speaker 4: This argument was also used to take Native American land.
[11:35] Speaker 12: Early Americans were afraid of the wilderness, and they said,
[11:39] Speaker 12: if we leave Indian people's in ownership, they will just
[11:44] Speaker 12: waste it as wilderness.
[11:46] Speaker 9: That's Robert Miller.
[11:48] Speaker 12: I'm a citizen of the Eastern Shawnee Tribe of Oklahoma,
[11:51] Speaker 12: and I'm a professor at the Sandra Day O'Connor College
[11:54] Speaker 12: of Law at Arizona State University. John Locke's theory was
[11:58] Speaker 12: to put land to it its best and highest use,
[12:02] Speaker 12: and in American society, that seems to be make the
[12:05] Speaker 12: most money off it as you can plunder it for
[12:08] Speaker 12: its resources. If there's water, use it, use it even
[12:12] Speaker 12: if you use it up or defolid if there are
[12:16] Speaker 12: if there's oil, or trees or minerals, it's strip mined
[12:20] Speaker 12: until you have it all and then leave it and
[12:22] Speaker 12: walk away. And something I tell my class is more
[12:25] Speaker 12: than ever. Different cultures might see a different definition of
[12:29] Speaker 12: the best and highest use. A native culture who's already
[12:33] Speaker 12: lived here a thousand years and hopes to live here
[12:36] Speaker 12: for another thousand might be a little more in tuned
[12:39] Speaker 12: to preserving the waters, not cutting every tree, not killing
[12:43] Speaker 12: every animal than would corporate America.
[12:47] Speaker 4: When Stone said in his law school class that nature
[12:50] Speaker 4: could have rights, he was echoing ways of thinking about
[12:53] Speaker 4: the land that are not actually new. In doing so,
[12:57] Speaker 4: he was rejecting centuries worth of this Colonne idea that
[13:01] Speaker 4: nature only has value once humans have extracted value from it.
[13:05] Speaker 12: The justification was Christianity and civilization. That God wanted European
[13:12] Speaker 12: Christians to own these lands, and that the Christian God
[13:15] Speaker 12: intended that, and somehow Christian Europeans were superior to everyone
[13:20] Speaker 12: around the world.
[13:21] Speaker 4: That's the idea behind what it's called the doctrine of Discovery.
[13:25] Speaker 4: It goes all the way back to the Crusades and
[13:27] Speaker 4: says that land not owned by another Christian state, like
[13:31] Speaker 4: land occupied by indigenous people, for example, or by Muslim
[13:35] Speaker 4: or Jewish or Hindu or any non Christian people was
[13:39] Speaker 4: up for grabs. In his college class, Stone was suggesting
[13:43] Speaker 4: the opposite, that nature could have value in and of itself.
[13:47] Speaker 4: He was saying something that goes against all of Western
[13:51] Speaker 4: property law, that nature could be a subject rather than
[13:54] Speaker 4: an object to be owned. Legal subjects can be injured.
[13:58] Speaker 4: If you can be injured, you can get stand in court,
[14:01] Speaker 4: and you can plete your own case.
[14:03] Speaker 10: In traditional law, if there's an upstream or upriver polluter,
[14:07] Speaker 10: a factory is polluting, and someone downriver, call them Jones,
[14:11] Speaker 10: is suffering the effects of the pollution, Jones can bring
[14:15] Speaker 10: a suit against the polluter. What would the law have
[14:17] Speaker 10: to look like to correspond to a state of affairs
[14:21] Speaker 10: in which the river had rides, I said, One, the
[14:25] Speaker 10: suit would have to be brought or bringable in the
[14:28] Speaker 10: name of the river. The river would be the plane
[14:30] Speaker 10: if not Jones. Secondly, it would be the damage to
[14:34] Speaker 10: the river. And third, if relief were awarded, the relief
[14:39] Speaker 10: would run to the river.
[14:41] Speaker 4: Stone called the USC library to ask if any other
[14:44] Speaker 4: cases like this had been brought before. They told him
[14:47] Speaker 4: about the Sierra Club and the Disney Ski Resort. Stone
[14:51] Speaker 4: realized that the Sierra Club didn't have standing. But what
[14:54] Speaker 4: if Mineral King Valley itself did. What if instead of
[14:59] Speaker 4: s Club versus Morton, it was Mineral King versus Morton. Now,
[15:06] Speaker 4: remember this is October nineteen seventy one and the Supreme
[15:10] Speaker 4: Court is set to hear this case in November. So
[15:14] Speaker 4: Stone only has one month to figure out a way
[15:17] Speaker 4: to somehow smuggle this idea that nature could have rights
[15:21] Speaker 4: into the court, and the arguments are already set. There's
[15:25] Speaker 4: no way he can put this idea into the mouth
[15:27] Speaker 4: of the Sierra Club's lawyer. His best bet is to
[15:30] Speaker 4: get it straight to a judge. So Stone starts laying
[15:35] Speaker 4: out the argument in an article for the USC Law Review,
[15:39] Speaker 4: where it just might be read by Justice Douglas, the
[15:42] Speaker 4: most liberal voice on the bench.
[15:44] Speaker 13: Justice Douglas said, but why not just essentially follow Stone's
[15:50] Speaker 13: position and let the Mineral King be the Plaintifflet it
[15:54] Speaker 13: should be called Mineral King against Partner of Interior.
[15:59] Speaker 4: But Justice Doglass wasn't writing the ruling. He was writing
[16:02] Speaker 4: the descent. The Er Club loses the case, although the
[16:06] Speaker 4: ski resort never actually gets made in California. Rethinks the
[16:09] Speaker 4: highway to nowhere. The important thing from Stone's point of
[16:13] Speaker 4: view is that Justice Douglas writes a descent. Now, this
[16:18] Speaker 4: wild idea that nature could have her day in court
[16:21] Speaker 4: is out in the world from the pan of the
[16:23] Speaker 4: esteemed justice himself.
[16:32] Speaker 6: People that have not strong connections with these wars of
[16:35] Speaker 6: indigenous perspectives. I think, you know about what was perhaps
[16:41] Speaker 6: the first time that they came across these ideas, and
[16:45] Speaker 6: they think, okay, it was a book that was written
[16:48] Speaker 6: in the United States, you know, about whether trees have rights?
[16:55] Speaker 4: That would be Stone's book, Should Trees have standing? Monica
[16:59] Speaker 4: Ferrie Tinta is a lawyer in London. She says that
[17:02] Speaker 4: while Stone may have popularized the idea of the rights
[17:05] Speaker 4: of nature, it has a much longer history, but.
[17:08] Speaker 6: It's not really the rational Western mind that came up
[17:12] Speaker 6: with these ideas. We are talking about all around the
[17:15] Speaker 6: world indigenous communities. They have very similar approaches to nature
[17:21] Speaker 6: and the natural world, where they don't see that the
[17:25] Speaker 6: human being is more important, or that there is a
[17:28] Speaker 6: hierarchy where human life, let's say, you know, is more
[17:32] Speaker 6: important than this natural world.
[17:35] Speaker 4: In a sense, Western ideas about nature have been playing
[17:38] Speaker 4: catch up.
[17:39] Speaker 2: I think what's important to remember is that so today's
[17:42] Speaker 2: legal system is based on a mechanistic view of the
[17:45] Speaker 2: world that really emerged during the scientific revolution of the
[17:48] Speaker 2: sixteenth and seventeenth centuries, which views nature as like a
[17:51] Speaker 2: machine composed of fragmented, independent parts.
[17:55] Speaker 9: That's Craig Kaufman.
[17:57] Speaker 2: I'm an associate professor of environmental politics at the University
[18:00] Speaker 2: of Oregon.
[18:01] Speaker 4: And according to Kaufman, our law is lagging far behind
[18:05] Speaker 4: our science. The foundations of our law haven't really changed
[18:09] Speaker 4: much since the eighteenth century, during the Enlightenment.
[18:13] Speaker 2: And at that time, lawyers replaced the previous view of
[18:16] Speaker 2: the world as a living organism or a community of life,
[18:21] Speaker 2: and this was replaced with a new view of the
[18:23] Speaker 2: world as sort of like stocks of independent resources that
[18:26] Speaker 2: could be taken and manipulated and exchanged and so forth
[18:30] Speaker 2: and so on. And it also emphasized the idea that
[18:33] Speaker 2: humans are separate and apart from nature, right, and so
[18:36] Speaker 2: can be sort of like the masters of the machine.
[18:39] Speaker 4: And so, how has that mechanistic view of the world
[18:42] Speaker 4: been working out for us?
[18:44] Speaker 2: Not well, right, you know. So it turns out if
[18:47] Speaker 2: you move rivers, there's consequences, right, if you destroy the
[18:52] Speaker 2: forests that are like the lungs of the world. There's consequences.
[19:07] Speaker 2: Scientists now understand that the world is not really a
[19:10] Speaker 2: collection of discreete parts, but rather it is a dynamic
[19:14] Speaker 2: and fluid, interconnected community of life that's probably best understood
[19:18] Speaker 2: in terms of patterns and relationships. So each piece is
[19:21] Speaker 2: dependent on all the others.
[19:29] Speaker 4: Monica Ferrie Tinta told us that much of international human
[19:32] Speaker 4: rights law came into being after World War Two, but
[19:35] Speaker 4: most environmental protections didn't start to come until the sixties
[19:39] Speaker 4: and seventies, and the two.
[19:40] Speaker 9: Didn't quite mash.
[19:42] Speaker 4: Kaufman says, people started to realize that rights for nature
[19:47] Speaker 4: could be a sort of hack of fitting a different
[19:50] Speaker 4: way of thinking about nature into our creaky old Western
[19:55] Speaker 4: legal system, exactly the kind of consciousness shift that Stone
[19:59] Speaker 4: was proposed.
[20:03] Speaker 2: In many Western societies, we value things that we value
[20:09] Speaker 2: by giving them rights, and so that's just the way
[20:12] Speaker 2: our system works, and so you sort of adapt it,
[20:16] Speaker 2: you know, you fit with the culture that you have.
[20:19] Speaker 2: So in our particular legal system in the United States,
[20:22] Speaker 2: for example, corporate property rights are really keen.
[20:30] Speaker 4: What Kaufman told me was a story about fracking. Fracking
[20:34] Speaker 4: is how we get natural gas, and if you own
[20:37] Speaker 4: land where fracking is done, you can make a lot
[20:40] Speaker 4: of money off the mineral rights to that land. But
[20:43] Speaker 4: it can also poison well water.
[20:46] Speaker 2: There are communities where these well systems are their only
[20:49] Speaker 2: access to clean drinking water, and people start getting sick
[20:54] Speaker 2: they lose access to potable water.
[20:57] Speaker 4: And with fracking, people started to realize that giving nature
[21:00] Speaker 4: rights could solve for way more than the Sierra Club's
[21:04] Speaker 4: worries about esthetics and conservation. It could fight childhood cancer.
[21:11] Speaker 2: In our legal system, if you wanted to sew to
[21:14] Speaker 2: say the fracking company, to force them to stop, you
[21:18] Speaker 2: have to show standing in court, and to do that,
[21:21] Speaker 2: the burden of proof is really high, and you have
[21:23] Speaker 2: to show that you specifically were harmed in some very tangible,
[21:28] Speaker 2: concrete way. It's often really difficult to do that in
[21:32] Speaker 2: a way that meets the standards of the law. So
[21:34] Speaker 2: a family will come and say, you know my child,
[21:38] Speaker 2: and you know the X percent of the people now
[21:40] Speaker 2: have cancer rates that have skyrocketed and these other disease
[21:43] Speaker 2: and my child has this problem. And the lawyer for
[21:47] Speaker 2: the fracking company will say, well, how do we know
[21:50] Speaker 2: that this problem was caused by the fracking wastewater. It
[21:54] Speaker 2: could have been genetic, it could have been secondhand smoke,
[21:58] Speaker 2: and it's virtually possible to draw a direct line of causation.
[22:03] Speaker 2: But scientifically, it's very easy to show the direct harm
[22:08] Speaker 2: caused to the functioning of the watershed ecosystem by injecting this.
[22:14] Speaker 2: So if you legally recognize the ecosystem as a subject
[22:19] Speaker 2: with rights to maintain the functioning and of their cycles
[22:23] Speaker 2: to be restored when damaged, you know, so forth and
[22:26] Speaker 2: so on, and then you empower the local community members
[22:30] Speaker 2: to speak on behalf of the watershed ecosystem, then it's
[22:35] Speaker 2: much easier to show standing.
[22:37] Speaker 4: In the US, some communities have started writing the rights
[22:41] Speaker 4: of nature into their town charters. They haven't yet won
[22:45] Speaker 4: at the federal level, but one case in Grant Township
[22:49] Speaker 4: is currently before the Pennsylvania Supreme Court. Federally recognized tribes
[22:54] Speaker 4: are also writing the rights of nature into tribal law.
[22:58] Speaker 4: Using the rights of nature as a legal strategy is
[23:01] Speaker 4: actually happening around the world.
[23:04] Speaker 2: In the United States, it tends to be framed as
[23:08] Speaker 2: community rights and democracy. In New Zealand, it tends to
[23:12] Speaker 2: be framed according to Maori Cosmo Vision about kinship relationships
[23:16] Speaker 2: between Maori tribe Ewi and the ecosystems in which you know,
[23:22] Speaker 2: that's their ancestral territory.
[23:25] Speaker 6: We have seen also this movement also take in place
[23:29] Speaker 6: a bit in India.
[23:30] Speaker 10: You know.
[23:30] Speaker 6: In Colombia we've seen some actions before courts trying to
[23:35] Speaker 6: protect weavers and even forests.
[23:38] Speaker 2: And Africa tends to be again framed by responsibility to
[23:44] Speaker 2: be a good custodian for these sacred natural sites. In
[23:48] Speaker 2: Europe it tends to be framed more in terms of ecoside.
[23:52] Speaker 6: The constitution, and Ecuador has this acknowledgment that nature has rights,
[23:58] Speaker 6: something that doesn't exist in in other constitutions. In Mexico
[24:03] Speaker 6: they already have started, you know, to consider introducing the
[24:07] Speaker 6: rights of nature into the constitution.
[24:10] Speaker 2: The common analogy among all of them is this idea
[24:13] Speaker 2: that we have to recognize that, you know, there is
[24:18] Speaker 2: this order to the world. We are part of the
[24:21] Speaker 2: ecosystems in which we are embedded. We are part of nature,
[24:24] Speaker 2: not separate from it, and that we have to learn
[24:27] Speaker 2: to live within nature's rules.
[24:33] Speaker 4: Next, things are about to get weird, both for Stone
[24:39] Speaker 4: and for the legal system itself. That story after the break,
[24:45] Speaker 4: I'm Meg Duff and this is Damages.
[25:02] Speaker 1: I had heard about rights of nature for a while,
[25:05] Speaker 1: but right when I was starting to dig into it
[25:07] Speaker 1: a little bit more, this great documentary came out. It's
[25:10] Speaker 1: called Invisible Hand. It's the third film from directors Joshua
[25:14] Speaker 1: Prabannik and Melissa Troutman and executive producer Mark Ruffalo. It's
[25:19] Speaker 1: won seven Best Documentary Awards and received laurels from twenty
[25:23] Speaker 1: to international film festivals. It's an excellent deep dive on
[25:28] Speaker 1: the subject of rights of nature. If you want to
[25:29] Speaker 1: dig into it even more after listening to this series,
[25:33] Speaker 1: I highly highly recommend it. It's a paradigm shifting documentary
[25:37] Speaker 1: that does not leave viewers in total despair, but actually
[25:41] Speaker 1: provides some inspirational solutions, strategies, and stories that will move
[25:46] Speaker 1: you to take action where you live. If you haven't
[25:49] Speaker 1: seen Invisible Hand, you're missing out. Go to Invisible handfilm
[25:54] Speaker 1: dot com for more on where to watch and how
[25:57] Speaker 1: to support this great work.
[26:07] Speaker 4: First came the poetry Law Poetry, published in the Journal
[26:11] Speaker 4: of the American Bar Association.
[26:16] Speaker 10: If Justice Douglas had has his way, Oh come not
[26:19] Speaker 10: that dreadful day. We'll be sued by lakes and hills
[26:22] Speaker 10: seeking an address of ills. Great mountain peaks of name
[26:25] Speaker 10: prestigious will suddenly become litigious. Our books will babble in
[26:29] Speaker 10: the courts, seeking real damages for torts. How could I
[26:32] Speaker 10: rest beneath a tree if it may soon be suing me?
[26:35] Speaker 10: Or enjoy the playful porpoise while it's seeking habeas corpus?
[26:39] Speaker 9: Okay? This poem was written by a lawyer named John Knapf.
[26:45] Speaker 10: Every beast within his pause will clutch an order to
[26:48] Speaker 10: show cause. The courts besieged on every hand will crowd
[26:51] Speaker 10: with suits by chunks of land. Ah, but vengeance will
[26:54] Speaker 10: be sweet. Since this must be a two way street,
[26:56] Speaker 10: I'll promptly sue my neighbor's tree for shedding all its
[26:58] Speaker 10: leaves on me.
[27:00] Speaker 9: Take that treehuggers.
[27:02] Speaker 4: If something has rights, shouldn't it also have responsibilities? In
[27:07] Speaker 4: Western law, the idea of holding nature responsible is ridiculous.
[27:12] Speaker 4: That's why contracts have that section weaving liability for acts
[27:15] Speaker 4: of God for nature's whims. But something about Stone's argument
[27:20] Speaker 4: took hold.
[27:21] Speaker 10: Suits began to come up around the country.
[27:23] Speaker 4: And around the world, and sometimes they were even succeeding.
[27:28] Speaker 4: But Stone was having second thoughts.
[27:31] Speaker 9: See.
[27:32] Speaker 4: He had been out to prove a point. His article
[27:35] Speaker 4: had been about a legal question, a theory.
[27:38] Speaker 10: It's a legal thesis about how we can fit non
[27:42] Speaker 10: humans into a legal system.
[27:45] Speaker 9: His question was could we?
[27:47] Speaker 4: He argued that we could, But now that his argument
[27:50] Speaker 4: was out in the world, there was a different question,
[27:53] Speaker 4: not could we, but should we?
[27:56] Speaker 10: The problems are rich and wonderful. I mean, there are
[27:59] Speaker 10: difficulties make this harder than a lot of people who
[28:02] Speaker 10: readily embraced it saw and I was the more worried
[28:06] Speaker 10: about this. For example, if you suppose you have a
[28:09] Speaker 10: nuclear plant that is warming a river because the water
[28:12] Speaker 10: runs through the cooling water runs through the nuclear plant
[28:14] Speaker 10: warms the river. What effect does this have an ecosystem? Well,
[28:17] Speaker 10: it raises the temperature of the water. Is this good
[28:19] Speaker 10: or bad for nature? Well, of course immediately becomes a
[28:22] Speaker 10: solly question and a difficult question. Some parts of nature
[28:25] Speaker 10: that worth thriving before don't do as well. Seamanates, it
[28:28] Speaker 10: turns out I love higher temperature water. So how do
[28:32] Speaker 10: you run this Stonian system? With difficulty? Because if you
[28:36] Speaker 10: have a guardian for the manates saying this is fine,
[28:39] Speaker 10: you know in a guardian for other parts of ecosystem
[28:41] Speaker 10: saying there are you know, how what do you look to.
[28:55] Speaker 1: All these questions about how to integrate the rights of
[28:58] Speaker 1: nature into Western courts is something judges and lawyers outside
[29:03] Speaker 1: the US have been grappling with in the decades since
[29:06] Speaker 1: Stone first started talking about all of this. Which ecosystems
[29:11] Speaker 1: have rights, and how does the government decide? And what
[29:15] Speaker 1: if the rights of one ecosystem impose on the rights
[29:18] Speaker 1: of another, What makes an appropriate guardian for nature? Who
[29:22] Speaker 1: should get that role, and what responsibilities does it come with.
[29:26] Speaker 1: These questions are becoming less theoretical as more and more
[29:30] Speaker 1: cases set precedence. In the next few episodes, we're going
[29:34] Speaker 1: to get into how some countries and courts have answered
[29:37] Speaker 1: these questions and what it really looks like to give
[29:42] Speaker 1: nature rights. We're going to start with Ecuador, the first
[29:46] Speaker 1: country to write rates of nature into its constitution, all
[29:50] Speaker 1: the way back in two thousand and eight. That country's
[29:53] Speaker 1: Constitutional Court, its equivalent to the US Supreme Court, just
[29:57] Speaker 1: ruled on one of the biggest rates of nature cases
[30:01] Speaker 1: in the world.
[30:02] Speaker 14: And one of those cases before the Constitutional Court of
[30:06] Speaker 14: Ecuador is a case to protect Losdros Forest Reserve from
[30:11] Speaker 14: mining it's a very, very ecologically diverse forest that will
[30:19] Speaker 14: be gone if concessions for mining put forth by the
[30:24] Speaker 14: Ecuadorian government.
[30:25] Speaker 9: I'll go through.
[30:29] Speaker 1: That story next time. Damages is an original Critical Frequency production.
[30:37] Speaker 1: This episode was reported and written by Meg Duff. Our
[30:42] Speaker 1: editor and senior producer is Sarah Ventry. Sound designed by
[30:45] Speaker 1: Ray Pang, mixing and mastering by Mark Busch. Additional editing
[30:50] Speaker 1: by Martha troyan citizen of Obi Shika Kong lack Suol,
[30:54] Speaker 1: First Nation. The show is written and reported by me
[30:58] Speaker 1: Amy Westerild, with reporting by Karen Savage, Meg Duff, and
[31:03] Speaker 1: Lindall Rawlins. Our fact checker is Woo dan Yan. Our
[31:07] Speaker 1: First Amendment attorney is James Wheaton of the First Amendment Project.
[31:12] Speaker 1: Our theme song this season is Bird in the Hand
[31:14] Speaker 1: by Forenoon. Artwork is by Matthew Fleming. The show is
[31:18] Speaker 1: supported in part by a generous grant from the File Foundation.
[31:23] Speaker 1: If you'd like to support our work, please rate or
[31:25] Speaker 1: review the podcast wherever you're listening and share it with friends.
[31:29] Speaker 1: Thanks for listening, and we'll see you next time.

Shows are listed from Apple Podcasts' charts and directory, and Podcast Index where it is used. Every show and episode belongs to its publisher and plays from the publisher's own feed; this site hosts none of them.