The idea that the Ganges River in India or the Amazon Basin in Brazil should have "legal personhood" – and thus be able to defend its interests in court – was considered zany only ten or fifteen years ago, at least in Europe and North America. Now this once-fringe legal concept is going mainstream. Legislatures or courts in twelve countries have recognized the "rights of nature" at the state, local, and/or national levels in a dozen nations. In the United States alone, some three dozen communities –from Pittsburgh and Toledo to Orange County, Florida (population 1.5 million people) – have enacted such laws, often with overwhelming public support. Ecuador now has a constitutional provision recognizing the rights of nature.
It's somewhat surprising that unorthodox legal concept has taken root and developed so quickly. After all, western jurisprudence generally privileges private property rights over nature, humanity over plants and wildlife, and individual rights over collective rights. So how have conventional systems of law come to accept the daring idea that natural systems are alive and deserving of legal protection?
A lot can be learned from the impressive legal work of Thomas Linzey, a fiercely creative attorney who has not only pioneered the rights of nature, but developed legal doctrines for "community rights" and more recently, "self-owned land." (More about both of those in a moment.)
Linzey, based in Spokane, Washington, is Senior Legal Counsel at the Center for Democratic and Environmental Rights, where he has been a leading champion of community empowerment and the rights of nature for more than twenty years. Previously, at the Community Environmental Legal Defense Fund, Linzey had argued for "community rights" as a legal response to corporate abuses such as fracking and water pollution.
In Episode #40 of my Frontiers of Commoning podcast, I quizzed Linzey about his legal hacks that attempt to protect ecosystems and communities in novel ways.
While Linzey looks to the law, he regards grassroots pressure for change as a critical part of his challenge, much as the civil rights, abolitionist, and suffragist movements sought in their time. All of these movements ultimately required changes in the Constitution, which is something that grassroots movements and municipal laws help move forward, he argues.
"There is a state constitutional amendment currently circulating in Florida for the rights of nature, which is slowly moving up to the state level." This work is "neither left nor right," he said, "because a lot of communities doing this work are not liberal. The work started in rural south-central Pennsylvania, which is about as red as it gets."
Linzey noted that the legal space opened up by "rights of nature" litigation has been impressively large. He noted how the Sauk-Suiattle tribe in Washington State sued the City of Seattle over its hydroelectric dams, which don't have passages to allow salmon to swim upstream to spawn, resulting in a sharp decline in salmon populations. But the Sauk-Suiattle's lawsuit did not invoke a rights of nature law or court ruling, he said. It invoked its own customary, unwritten law, as honored within the tribe for generations. The tribe argued that the formal, written law of US courts had failed to honor Indigenous value systems over generations, and that their unwritten, customary law should be legally recognized as a legitimate tool for protecting wild salmon.
Carving out legal space for customary practice and social norms has enormous implications for the commons, which has always relied on unwritten social practices and informal understandings than on formal legal contracts enforced by the state.
One impediment to moving an agenda of community rights and rights of nature is the idea of "state preemption" – that notion that state and national levels of government can preempt laws made at lower levels of government. But Linzey points out that preemption is often selectively applied to different areas of law, and is not an across-the-board rule. In short, there are opportunities to roll back (asserted) preemption of municipal or state laws.
Linzey argues that these efforts, in turn, must be connected to a movement to expand opportunities for democratic self-determination, particularly at the lowest feasible levels of citizen intervention.
"We're not talking about localities becoming their own countries," said Linzey. "We're talking about widening the portal of lawmaking to allow for an expansion of rights towards sustainability." So instead of federal of state law acting as a ceiling of permissible lawmaking, it is merely a floor – a minimum legal requirement that can be made stronger by lower levels of government if they so choose.
Linzey is now introducing a new legal idea that builds on the rights of nature concept – "self-owning land." Unlike rights of nature laws, which require a legislature or court to recognize such rights, private landowners can introduce self-owning land language into conservation easements for their own land. "What we did was borrow the rights of nature language and embed it into the land easement, so that a landowner could not just restrict use of the property, but actually recognize rights for ecosystems within that conservation easement," said Linzey.
This idea arose, he said, when "a landowner came in the door saying he owns forty acres of the last remaining old growth forest in Nova Scotia. He wanted to find a way for the land to own itself. We said that's crazy, because under western law you can't do that. But we came up with a model by which land can legally hold title to itself. That involves the creation of a legal alter ego within the law. An avatar is one way to look at it," said Linzey.
"So what we do is create an unincorporated association under the law…..The flora, fauna and other elements of an ecosystem that comprise the land come together as an association and create a legal entity. It is then represented by human guardians…. who have a legal relationship with the land and legal duties to carry out the best interests of the ecosystems – like guardians who represent the interests of minors in court."