Article in The Christian Science Monitor - Sunday, April 9, 2017

An Indian court says glaciers and rivers are 'living entities.' Could the same approach work in the US?

Just weeks after a high court in the Indian state of Uttarakhand granted legal personhood to the Ganges and Yamuna rivers, the same court recently extended that same standing to the Gangotri and Yamunotri glaciers that feed them. 

The finding follows New Zealand’s mid-March passage of a law recognizing the Whanganui River – a feature that the Maori people consider an ancestor – as a living entity. And the Indian court’s effort to protect the vanishing glaciers also carries religious overtones, since both the rivers and glaciers are considered sacred sites to many Hindus. “The past generations have handed over the ‘Mother Earth’ to us in its pristine glory and we are morally bound to hand over the same Mother Earth to the next generation,” the two ruling justices wrote, according to India’s Hindustan Times.  The ruling and the New Zealand law are variants of “rights of nature” measures with theoretical roots dating back to the 1970s. They appear in the United States, too: More than three dozen US localities have ordinances ascribing varying types of rights to nature, or to specific natural objects. Their rise is in some ways a monument to the global exchange of ideas, with US activists advising national legislatures in Ecuador and Bolivia, whose laws in turn emboldened jurisdictions in the US and elsewhere.

But the India and New Zealand models may not be obvious candidates for US copycats, both because of their religious underpinning and differences in the legal channels by which advocates tend to assert their claims. “It’s a model that exists in a number of different places, but the laws do look different because they’re taking root in different institutional environments,” says Craig Kauffman, a University of Oregon political scientist who studies global policy responses to climate change. Nature's day in court Rights of nature measures in the US trace their origins to a seminal 1972 law review article by University of Southern California professor Christopher Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” The arguments laid out by Professor Stone lodged themselves in the consciousness of environmentalists and even influenced then-Supreme Court Justice William O. Douglas, who cited it in a dissenting opinion that same year.  If ships and corporations could be recognized by courts as legal personalities, wrote Justice Douglas in Sierra Club v. Morton, ecosystems under “the destructive pressures of modern technology and modern life” ought to be able to sue to preserve themselves. Specifically, a federal rule could be fashioned to permit litigation in the name of everything from rivers and beaches to groves of trees and even air, to preserve those inanimate objects “where injury is the subject of public outrage.” Legal personhood of the sort granted by the Indian judges doesn’t bestow the same rights afforded to a human. But it does allow representatives of the entity to make claims for harm done to it – and be sued for harm it does to others. The Indian judges’ decision affects more than just the glaciers. It calls for a considerable array of natural features surrounding the Gangotri and Yamunotri, including rivers, air, lakes, and meadows, to get legal standing to sue for harm, with the help of senior public advocates. “The overarching idea is, this is personhood in same sense as corporate personhood. But in the Indian case, it seems like this is personhood in the same sense of human personhood. So it kind of depends on what version we’re thinking is going to have longer legs,” says Gwendolyn Gordon, assistant professor of legal studies at the University of Pennsylvania’s Wharton School.

Bringing it back to the US Years of struggles to pass legislation protecting the Ganges River from pollution had frustrated advocates in India, who ended up turning to public interest litigation – an Indian judicial recourse that allows third parties to bring claims on behalf of others without having to prove harm to themselves, as long as judges find it to be in the public interest. In the US, public interest litigation doesn’t exist. Nor are natural objects guaranteed the right to acquire legal personhood – though corporations can. That means rights of nature activism usually takes the form of ballot initiatives, which often emerge to contest the power of corporations wherever local natural resources are seen as being placed at risk. The first such ordinance, for example, came in 2006, when Tamaqua Borough in Pennsylvania sought to protect the town’s drinking water from the dumping of sewage sludge nearby. More recently, municipalities such as Highland and Grant Townships in Pennsylvania have passed new home-rule charters that name specific watersheds to be protected from potential pollution from fracking interests. “Typically it’s reactive to some kind of degradation or problem. The early ones were sewage sludge, often now it’s fracking,” says Dr. Kauffman of the University of Oregon. The change envisioned by activists such as the Community Environmental Legal Defense Fund (CELDF), the US-based network behind many of the measures in the US and abroad, goes well beyond the protection of natural resources from pollution. Many of them hope that the legal girding that defends against resource degradation will slowly engender a broader transformation, one that assigns inherent value to nature, independent of its utility to humans. “We say we’re trying to move from a Roman property-based legal structure to a legal structure that gives rights to all living things. It’s a really big paradigm shift in peoples’ minds,” says Mari Margil, the CELDF’s associate director. It’s also one that can jibe with the worldview of indigenous groups. In 2008, Ecuador adopted a constitutional amendment that acknowledged nature’s right to “exist, persist, maintain and regenerate its vital cycles.”

Bolivia followed three years later with a similarly worded law. Both refer to Pachamama, the Quechua and Aymara word for “nature” or “Mother Earth.” Native American tribes in the US with similarly reverential beliefs about nature might be next to catch on. In Wisconsin, for example, the Ho-Chunk tribe is considering an amendment to its constitution that would ban frac sand mining, fossil fuel extraction, and genetically engineered organisms – an approach some advocates think will catch on with other indigenous groups. “Other tribes are picking it up,” says Juliee de la Terre, an adjunct professor at Viterbo University in La Crosse, Wis., who has worked with the Ho-Chunk on the amendment. “I’m hoping it starts a landslide and tribes all over the country start doing it.” Not that rights of nature measures are necessarily environmental panaceas. In South America, laws have proved vague enough to allow for the approval of new large-scale extractive projects, like last year’s inaugural drilling of the Yasuní National Park in the Ecuadorian Amazon. Ms. Margil says the protections in the Indian case, including the naming of specific representatives on the Ganges’ behalf, are unusually well-detailed.  “So far in the US, the local laws have been more broadly focused, so not ecosystem-specific,” she says, adding, “We are beginning to see a little bit of a shift in some communities in the US.” “People come at it from a spiritual place, a moral place and sometimes a practical place – that existing environmental laws don’t protect the environment, and we need to do something different.”