Hundreds of lawsuits have flowed from the Deepwater Horizon catastrophe, filed by citizens, states and the federal government. And someday, perhaps, the Gulf of Mexico’s ecosystems will also file suit.
Environmental philosophers and other people say that biological communities — ecosystems, habitats, species and populations — have a right to exist. They’re not just valuable because they’re someone’s property. Environmental lawyers say courts should recognize this right, and could allow people to represent nature as legal guardians or trustees.
Were nature’s rights recognized before the Deepwater Horizon wellhead blew, the destruction might have been avoided. In its aftermath, future disasters might at least be averted. If nothing else, pollution’s toll would be fully acknowledged in courts of law, not just public conscience.
“There is room in our legal system to expand the concept of guardianship,” said Patricia Siemen, executive director of the Center for Earth Jurisprudence. “The inlets and the marshes, the beaches that are damaged, species of birds that are threatened — each one may have its own guardian, with a right to speak for the interests of that being, and the legal authority to speak for that being.”
Legal recognition of ecological rights was originally proposed in 1972 by University of Southern California law professor Christopher Stone, who floated the idea as an academic exercise but became convinced of its justification. To Stone, arguments against the intrinsic rights of animals and ecosystems to exist were no more coherent than historical arguments against the rights of foreigners, children or women.
(Had Stone written a century earlier, he would have found a sympathetic ear in Charles Darwin, who in The Descent of Man wrote that humanity’s social impulses produced an ever-expanding circle of empathy. As mankind extended his regard “to the lower animals, so would the standard of his morality rise higher and higher.”)
‘The way our laws are constructed, anybody in the community can stand in the shoes of the river, so to speak.’
Stone’s landmark essay “Should Trees Have Standing?” (.pdf), was derided by some scholars. “Our brooks will babble in the courts / Seeking damages for torts,” chided one attorney. Others embraced it, including Supreme Court justice William O. Douglas. It became an environmental rallying point, and influenced legal activism in the decades to come.In its modern form, natural rights are not usually framed in terms of individual creatures — though laws against cruelty to animals implicitly acknowledge their rights — but rather populations and ecosystems. In many ways, laws recognize those rights, too: The Endangered Species Act says that species have value. The Oil Pollution Act, which will guide the environmental assessment of Deepwater Horizon’s damage (.pdf) and ultimately determine what the U.S. government asks BP to pay for restoration, appoints various federal agencies as trustees of damaged Gulf habitats.
But there are important differences between the trusteeship sought by natural rights advocates and the trusteeship of the Oil Pollution Act. Under that law, only federal agencies can represent the Gulf of Mexico’s nature. Citizens and communities cannot. Meanwhile, the OPA’s trusteeship only kicks in after a disaster.
“Where natural rights would have the greatest influence in the context of oil and oil spills is before oil spills occur, when you’re trying to prevent damages from occurring,” said Kathryn Mengerink, director of the Environmental Law Institute’s Ocean Program.
A natural rights strategy for Gulf citizens can be found in statutes drafted by the Community Environmental Legal Defense Fund, a nonprofit group that’s worked with dozens of Pennsylvania communities trying to restrict natural gas drilling and sewage sludge dumping. The statues explicitly grant towns and cities — most notably, Pittsburgh — legal standing to enforce the rights of ecosystems and natural communities.
“The way that environmental laws work now, is that unless you experience direct harm, you don’t have legal standing,” said Mari Margil, the CELDF’s associate director. “The way our laws are constructed, anybody in the community can stand in the shoes of the river, so to speak.”
‘Nothing in the text of Article III [of the U.S. Constitution] explicitly limits the ability to bring a claim in federal court to humans.’
Similar statutes wouldn’t have allowed Gulf communities to stop deep-water oil drilling — indeed, many Gulf communities wouldn’t have wanted to stop it — but the statutes would have given the public a chance to participate in drafting drilling regulations. BP might not have been given a free pass.“The guardian for fish, for seagrass, for whatever might be granted, can be at the table where those regulations are drafted,” said Siemen. “Obviously, it has to be someone with a conservation biology background, but they’d be there to give input.”
If Gulf communities became legal guardians for nature, they would also have recourse should the government’s estimate of Deepwater Horizon’s environmental damage prove low. This could happen if there’s political pressure to settle with BP, if the science becomes skewed by corporate or political pressures, or if some damages are simply overlooked.
The spill’s deep-sea effects in particular may be underestimated, with assessments focusing on wetlands, shallow-water fisheries and other ecosystems that are both commercially valuable and relatively easy to study, said Cynthia Sartou, executive director of the Gulf Restoration Network.
Under the Oil Protection Act, however, only state and federal government agencies can represent nature. People could hypothetically sue the federal government to do a better job, but it’s unlikely. “You are very limited in your right to sue. You are very limited in your right to even comment on what they do,” said Sartou.
“In a system of natural rights, it wouldn’t simply be the federal government who has the opportunity to support those rights,” said Mengerink. “It would be the public. If you don’t trust the government to do its job, this would be added support.”
Whether natural rights statutes will hold up in court remains to be seen. So far, judges have been inconsistent in their treatment of the idea, which has generally been advanced in connection to individual animals rather than ecosystems.
One promising sign came from the federal Ninth Circuit court’s 2004 decision in Cetacean Community v. Bush, in which the court had to decide whether “the world’s cetaceans have standing to bring suit in their own name” in challenging the Navy’s use of whale-harming sonar. The court ultimately ruled against recognizing the cetaceans’ standing, but wrote that “nothing in the text of Article III [of the U.S. Constitution] explicitly limits the ability to bring a claim in federal court to humans.”
But Siemen warned that laws alone aren’t enough. “For a natural rights movement to be successful, there has to be a huge shift in our consciousness,” she said. “If we adopt more environmental laws, and there hasn’t been a shift in the value system of humans toward caring and protecting, then those laws won’t be enforced.”
Images: 1) Striped dolphins swimming through oiled water (NOAA). 2) Community of creatures around a “cold seep” on the Gulf of Mexico seafloor (Derk Bergquist/Marine Resources Research Institute, South Carolina Department of Natural Resources).
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