Should this tree have the same rights as you?
November 3, 2019 1:05 PM   Subscribe

Around the world, a movement is gaining momentum that grants legal rights to natural phenomena, including rivers, lakes and mountains. On 26 February 2019, a lake became human. For years, Lake Erie – the southernmost of the Great Lakes – has been in ecological crisis. Invasive species are rampant. Biodiversity is crashing. Each summer, blue-green algae blooms in volumes visible from space, creating toxic “dead zones”; the algae is nourished by fertiliser and slurry pollution from surrounding farms. In August 2014, phosphorus run-off so fouled Erie that the city of Toledo, at the lake’s western tip in Ohio, lost drinking water for three days in the hottest part of the year.

Appalled by the lake’s degradation, and exhausted by state and federal failures to improve Erie’s health, in December 2018 Toledo city councillors drew up an extraordinary document: an emergency “bill of rights” for Lake Erie. At the bill’s heart was a radical proposition: that the “Lake Erie ecosystem” should be granted legal personhood, and accorded the consequent rights in law – including the right “to exist, flourish, and naturally evolve”.

Robert Macfarlane previously [1] [2] [3] [4] [5] [6] [7] [8] [9] [10]
posted by Ahmad Khani (22 comments total) 27 users marked this as a favorite
If we can give legal personhood to a corporation, then it makes perfect sense to give it to a river as well.
posted by Paragon at 1:16 PM on November 3, 2019 [26 favorites]

posted by Lyme Drop at 1:22 PM on November 3, 2019 [1 favorite]

As a botanist, I always have believed that you should not protect a specific animal or plant species, you should protect the ecosystem that supports it. That will protect a panda, a bristlcone pine, and happily, it will protect us from destroying ourselves and everything else.
posted by acrasis at 1:41 PM on November 3, 2019 [41 favorites]

Well put.
posted by Splunge at 2:14 PM on November 3, 2019

Bracing for the IRL version of "Raped Environment Led Polluters On, Defense Attorneys Argue"
posted by Rhaomi at 2:26 PM on November 3, 2019 [7 favorites]

If we can give legal personhood to a corporation, then it makes perfect sense to give it to a river as well.

Not even just as a bitter joke. If a company has its owners' rights to speech and contract and so on even without the explicit consent of every person who owns any portion of it, then it seems to me to follow that a river should have the right to go after corporations to pay for their ecological damage on behalf of every human whose health and property are potentially impacted, if nothing else.

Corporations are only people in the sense that they have the rights their owners would have collectively. It's supposed to be a convenient fiction. They aren't exactly the same rights we have as individuals. It makes sense, after a fashion... but only if everybody else's interests are entitled to similar protection. You don't need the animism part of this, basically. Even if we say that only humans are really people, all that ecological damage is future tax dollars to fix, or future human health consequences, or future higher prices, or some kind of cost that humans will be paying. The legal fiction of a river-person should, in my opinion, be able to go after the legal fiction of a corporate-person on behalf of every human who is losing the future value of the river.
posted by Sequence at 2:29 PM on November 3, 2019 [11 favorites]

It would be far better to remove personhood from corporations and enact and enforce strong, real protections for the environment. This is just warmed over mysticism (the link), that while I understand the sentiment to want to do something, gets into all kinds of weird territory, legally and maybe otherwise.
posted by blue shadows at 2:31 PM on November 3, 2019 [21 favorites]

Yes we need to protect whole ecosystems but in the case of many urban trees they are not native to the place, but neither are they detrimental. Many specimen trees in neighborhoods need some kind of personhood as otherwise no one will stand for them - legal protections are not enough.

I do a lot of consulting work in the highly fragmented remains of a former 2000 hectare ancient forest. There's maybe 10% left, and two to three hectares are cut down every year and replaced with not-forest. A few people venerate it but person-hood ( #foresthood? ) could help it - however it will never be complete again, the bits left are too small to support it's original fauna (which were also many of the pollinators and seed-dispersers).

Many native peoples venerate and protect local trees (knowing they are part of a whole ) - we too need to become native to our places.
posted by unearthed at 2:50 PM on November 3, 2019 [1 favorite]

Not even just as a bitter joke
Don't know if you were referring to my comment there, but I didn't intend it as a joke at all - the rationale for giving the Whanganui River legal personhood is compelling:
We have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as in indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.
It's a great legal way to fight the tragedy of the commons.
posted by Paragon at 2:53 PM on November 3, 2019 [7 favorites]

Fascinating article and fascinating idea. I like the idea of a tree having the same rights as me, but at the same time I can see how that’s antithetical to human society. I mean, logically this would mean we could not harvest apples from an apple tree without its consent, right? I realize this argument sounds a lot like Republicans claiming that legalizing same sex marriage would lead to people marrying box turtles, but that’s not my point—it’s more that granting personhood to non-persons features of the environment might be overkill. The ideal would be somehow legally enshrining the principles of indigenous peoples who know to preserve and protect their environments, but I have know idea how we’d do that, and I guess when all you have is a code of laws, everything looks like a tort.
posted by ejs at 4:39 PM on November 3, 2019

theoretically nice but who owns the corporation and who can sue on its behalf, etc?
it would be interesting to have a wall street style numbers publishing system that published various "indices" of lake /river/farmland/etc health. public record keeping adds value? or does it have to be tradeable?

also reminds me of this watershed map->

something about better responsibility if watersheds define government subdivisions, rather than existing state or town boundaries. better feedback likely?
posted by danjo at 4:59 PM on November 3, 2019

I didn't intend it as a joke at all

Apologies for construing it that way! I have heard it put exactly like that as sort of a "har har" thing and I agree, it is... well, it's as sensible as anything else in the law is, anyway, and a lot more equitable than one but not the other.
posted by Sequence at 5:37 PM on November 3, 2019 [1 favorite]

Should Trees Have Standing?
posted by hank at 5:54 PM on November 3, 2019 [2 favorites]

One of the many nice touches in Katherine Addison's "The Goblin Emperor" book is that in the elf kingdom's legal system, there are "the Witnesses vel ama, the Witnesses who gave voice to the literally voiceless; there was one for the river and one for the game preserve." That bit of world-building really gave me pause and made me wish that we had such a system too.
posted by em at 6:32 PM on November 3, 2019 [3 favorites]

Bracing for the IRL version of "Raped Environment Led Polluters On, Defense Attorneys Argue"
posted by Rhaomi at 2:26 PM on November 3 [3 favorites +] [!]

Look at a map of the state of Louisiana. Look at the Lafitte Oilfield south of Ironton.

Look at the Taylor oil leak that s been releasing gallons of oil and tons of methane into the Gulf of Mexico for 15 years.

This is pretty much American Petroleum Institute's argument for not enforcing the Coastal Zone Management Act, or anything in the Gulf, although the word we always hear is 'degraded'
posted by eustatic at 6:59 PM on November 3, 2019 [1 favorite]

I understand why people take exception to looking at things this way. I would, too, if we lived in the world I wish lived in, the one I was indoctrinated to believe I lived in. In this world, with this system, where many kinds of wrongdoing cannot be addressed, it seems like a reasonable course.
posted by wierdo at 7:37 PM on November 3, 2019 [1 favorite]

The legal fiction of a river-person

[I mean, I'm right here.]
posted by riverlife at 7:47 PM on November 3, 2019 [9 favorites]

Animistic Legal Code, interesting concept. Besides the modern movement to push for Sapience rights to certain higher-leveled Sentient creatures. Expanding that to the world itself.

God my hippie heart loves this so much. (insofar as it has to recognize some sort of legal regime).
posted by symbioid at 8:04 PM on November 3, 2019 [1 favorite]

This doesn’t substitute for having robust environmental regulations, and i would hope less beloved and uncharismatic pieces of ecosystems would get attention too. But a an additional form of recognition and possibly protection, this is interesting.
posted by Dip Flash at 8:50 PM on November 3, 2019

Not to spoil anyone's fun, but the actual legal mechanics here are not particularly mystical or even remarkable. The late lamented Lake Erie Bill of Rights provided that "[t]he Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest. Damages . . . shall be paid to the City of Toledo to be used exclusively for the full and complete restoration of the Lake Erie Ecosystem and its constituent parts to that status."

This is just a minor variant on that old staple of the US legal system, the ex rel action. (It's my perhaps-inaccurate impression that the river-rights and ecosystem-rights laws adopted in New Zealand, India and elsewhere involve analogous adaptations of analogously well-established legal forms.) US state laws authorizing citizens to bring ex rel suits over environmental matters are pretty common (PDF link) -- although the Lake Erie BOR may have been a bit of an outlier in allowing the suit to move forward regardless of whether the government acquiesced.

There's always some potential for trouble around the ill-defined margins of relator actions, but those are problems that the legal system has ample experience in handling.

So while I am personally very much of an animist, I don't think there's anything particularly animistic at work here. I'm more inclined to see these laws as a simple prybar for removing one of the numerous layers of plywood that polluters have nailed over the courthouse door.
posted by Not A Thing at 9:00 PM on November 3, 2019 [2 favorites]

When a tree needs to come down (dying, a weed species etc) down it comes, but if it doesn't need to happen it is murder. It has cost me the odd job but I have a name for protecting trees, so occasionally I tell an enquirer I'm not a tree murderer, too many people basically hate nature but want a pretty view.

Joan Nassaur's Messy Ecosystems, Orderly Frames is a good start on this route.
posted by unearthed at 9:05 PM on November 3, 2019

Interesting timing on the Lake Erie aspect of this post because this week the University of Toledo is hosting the 19th annual Great Lakes Water Conference. This conference is sponsored by the University of Toledo through the Legal Institute of the Great Lakes.

Held on the second Friday of November, the conference brings together three panels of experts, lawyers and laypeople alike. Each panel is lead by a moderator who generally comes from academia. There are periods of Q&A following each panel and with the audience generally engaged in the topic, the Q&A can be very interesting. Each year the conference picks out hot issues facing the Great Lakes with an occasional focus on Lake Erie. This year the focus is on the Lake Erie Bill of Rights among other hot topics involving the waters of the Great Lakes basin.

Past topics have included the historic Great Lakes Compact, Clean Water Act (and other EP issues), harmful algal blooms, property rights of adjacent owners both residential and commercial, diversion of water from the basin and a whole lot more. It is free and open to the public. Lawyers can even earn continuing legal education credits (with a $75 fee).

As one who has attended nearly all 18 of the previous conferences, I say it is well-worth a trip to Toledo if you have an interest (proprietary or otherwise) in the Great Lakes.
posted by MorgansAmoebas at 5:56 AM on November 4, 2019 [1 favorite]

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