Should Rivers Have Rights? [POLICYbrief]
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Should Rivers Have Rights? [POLICYbrief]


The idea of nature having rights might seem,
at first, really kind of an odd fit for the American legal system. We typically think of rights as things that
people have with respect to their government. Nature rights though is a very similar concept,
just applied far more broadly to protect all of the natural environment. The idea of granting rights to nature is a
way of saying that nature or at least certain places have their own independent claims that
should be recognized within the legal system. The problem is that, unlike an individual,
unlike an association, unlike even a corporation, there isn’t anyone with intentions, with claims,
with interests that we can identify to direct how those rights are exercised or defended. Recently, the United States Supreme Court
has granted corporations the right of freedom of speech, and simply means that the legal system
has recognized that, in a certain context, political speech, corporations should have the same
right, freedom of speech, as persons have. I think we could analogize this to the development
of nature rights. It doesn’t mean that a court is declaring
that a river is a person, but a court might say that a river has the same right to live
as a person does. Standing is what prevents courts from becoming
general policy forums. Standing requires that any litigant, any person
going to court, have a true injury that was caused by the other party and could be redressed
by the court. Nature rights would essentially build
on the standing limitation. So, when the government does something to
you directly, standing’s not a problem. When the government regulates or fails to
regulate someone else and you claim that that has consequences for you, then standing is
more difficult. Nature rights would allow the people who are
closest to the river or closest to the landscape and have the greatest connection to go to
court and protect those rights when they’re threatened by competing interests. In the environmental context, standing is
often an issue because the claims are that the government failed to take action to protect
a species or a place or failed to regulate a particular industry or facility and that
that somehow is then responsible for downstream harms to the individuals that object to that
decision. The problem that we’re trying to solve here
is that the environmental law system that we have in the United States that’s been around
now since the 1970s has been a failure. Water is fluid. It does not respect boundaries, it does not
respect locations, and our values and needs for water have changed tremendously over the
years. And so, creating fixed property rights in
something that’s both fluid and for which our needs change and evolve has never made
a lot of sense. A body of water could have an owner, it could
have a steward, it could have a legal guardian, it could have some sort of legal representative,
but it’s never going to be able to represent itself in a legal proceeding. It’s ultimately going to be dependent upon
individuals who are given the ability to act on behalf of that resource. And claims about nature itself having rights
are really a way of side-stepping the question about how do we identify which people or which
groups of people should be in a position to advance claims on behalf of particular places
or particular natural systems. While the idea of protecting the environment
in general and in the abstract is very hard to get your head around, protecting the river that you depend on for
your drinking water, that you swim in, that you fish in, that you see every day, the river
that you name as the place where you live, that I think is something that the legal system
can get its- its proverbial arms around and resolve cases for. Arguing about nature having rights doesn’t
really get us to the underlying question of how to deal with competing claims over natural
resources. Maybe a particular group should have more
say about the resources that are in their community or that are in their locality. But the best way to achieve that is by identifying
actual rights in the land and in the underlying resources, not trying to claim that the land
itself has some sort of right that a particular group of people can divine independently. Nature rights is a way for individuals and
communities to get their power and at least their voice over their local environment back. And so, I think a lot of the interest in nature
rights is coming from folks who are frankly distrustful of large government or are skeptical
that large government is going to be the solution to our environmental problems. When people say that they want rivers or mountains
or other natural places to have rights, what they usually mean is they want to be able
to take action on behalf of those resources in courts or in administrative proceedings. Rather than talking about nature having rights, we should look at ways of expanding the sorts
of property rights and other rights we have in resources to a broader array of environmental
concerns so that more people in groups are in a position to try and protect those resources
about which they care.

7 Comments

  • Hodges Media

    This concept of giving an inanimate object "rights" is a gross perversion of written law, it is ripe for abuse. There are codes and statutes within the written law which already protect our natural environment against abuse.

  • Michael McLaughlin

    this is retarded. communists need to stop distorting english common law. the only thing that matters is access. an individual can own a river, or a lake, or land or anything else. stop having common spaces. own the things you want to protect.

  • Brandon Tsang

    I believe that rivers should have rights because that way, the government and people living along the river are able to press charges if the river is being infringed on.

    Also, if companies and firms have rights and considered a “person” under law, why can’t the nature we utilize have that too?

  • Mister Sauga

    You don't need rights for nature to protect it. It just doesn't fit very nicely. A written Constitution can protect nature in the form of substantive provisions that are not nessecarily rights.

  • MrSquaresville

    Can this be applied to a river that was removed by government in the past?
    Can you hold them responsible and have the river restored?
    Would it matter if the river had a large population of salmon?

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