Effort may give Birds, Bees, Trees Legal Standing

NOAKI SCHWARTZ, Associated Press December 4, 2010

What if a trimmed tree could sue as an amputee or a shucked clam could claim wrongful eviction?

birds, bees and Carbon eating trees

In an effort to ban everything from drilling oil to incinerating garbage, about a dozen communities across the country have adopted ordinances that give nature legal standing and water down the rights of businesses.

The long-debated philosophy could face court challenges. But it has gained traction among those who believe the environment needs greater protection, even while critics ridicule the thought of arming bugs with legal rights against foes such as lawn mowers.

“What if nature had rights?” said Shannon Biggs, with Global Exchange. “What if the Amazon could sue an oil company for environmental damage?”

Last month, Pittsburgh banned natural gas drilling within city limits and Mount Shasta City hopes to follow suit in California by blocking cloud seeding.

Whether these laws will hold water remains to be seen. Environmental lawyers say the ordinances are misguided and unlikely to accomplish much. Even the academic credited with inspiring the movement called the laws silly.

“It’s not protecting nature,” said Christopher Stone, a University of Southern California international environmental law expert, who said the laws appeared more focused on protecting communities.

In the 1970s, Stone penned a seminal article, “Should Trees Have Standing?”, which was cited during a famed Supreme Court decision.

The case involved the Sierra Club trying to stop The Walt Disney Co. from building a large ski resort at Mineral King Valley in California’s southern Sierra Nevada. The court decided the group lacked standing and failed to show how it would be injured, though environmentalists prevailed when Congress added the land to Sequoia National Park in 1978.

The case and article inspired decades of debate on the issue, including a mocking poem by the American Bar Association that asked, “How can I rest beneath a tree if it may soon be suing me? Or enjoy the playful porpoise while it’s seeking habeas corpus?”

Avenues for defending natural resources through federal protections such as the Clean Water and Clean Air acts have expanded significantly since those days, prompting legal experts to ask if these nature-based laws are necessary.

Environmental groups, individuals and government agencies can now represent nature in court. For example, the National Oceanic and Atmospheric Administration is essentially acting as guardian of marine resources in the Gulf of Mexico that have been harmed by the BP oil spill.

“If people are being harmed, there are plenty of legal remedies,” said David Pettit, senior attorney for the Natural Resources Defense Council. “You don’t need to invent something new.”

After years of fruitlessly pursuing existing environmental avenues to stop landfills, factory farming and the spreading of sewage sludge, the Community Environmental Legal Defense Fund in Chambersburg, Penn. decided to take a more extreme approach.

Its first rights of nature ordinance in 2006 was aimed at protecting Tamaqua Borough from spreading sewage sludge on farm land within town limits. Since then the group has helped pass similar ordinances in other parts of Pennsylvania, New Hampshire, Maine and Virginia. More recently, the group helped bar natural gas drilling in Pittsburgh and even worked with the government of Ecuador to include a rights of nature clause in its new constitution.

“What’s normal isn’t working,” said Ben Price, the group’s projects director. “A regulatory law regulates the rate of destruction – it doesn’t stop it.”

Many of the ordinances use similar language that gives ecosystems the right to thrive and strips corporations of legal rights.

The proposed ordinance in Mount Shasta, which could be reintroduced next year after a technicality kept it off the November ballot, would ban Pacific Gas & Electric Co. from seeding storm clouds with potentially toxic chemicals believed to increase rainfall.

The measure says that “natural communities and ecosystems, including, but not limited to wetlands, streams, rivers, aquifers, clouds and other water systems, possess inalienable and fundamental rights to exist, flourish and naturally evolve within the City of Mount Shasta.”

Legal experts don’t think the laws will get far in court. Cities can’t arbitrarily award themselves authority to regulate something that’s already under the purview of the state and federal government. Municipal laws also can’t take away corporate rights awarded by federal courts – rights that also enable groups to argue corporations have legally enforceable responsibilities.

The Pennsylvania attorney general’s office challenged several sludge ordinances but dropped those lawsuits when the ordinances were repealed. A lingering lawsuit involving Packer Township is awaiting trial.

“They may have very good motives but in the end they may be motivating people to put something in a strategy that may not likely accomplish much,” said Sean Hecht, who heads the Environmental Law Center at the University of California, Los Angeles.

Proponents, however, say they recognize their burgeoning movement may take some time to get results. Looking past the bug jokes and mocking poems, Price and others see their struggle to give nature legal standing as comparable to another historic effort that was years in the making.

“It took hundreds of challenges,” he said, “before racial segregation was overturned as the law of the land.”