1. Ecosystems as people promotes sustainable development.
One of the biggest challenges facing sustainable development law is valuing natural systems on the same level as anthropocentric systems (economics and society). There are many methods to value the environment and maintain its integrity (i.e. ecosystem services). This blog argues that expanding legal concepts of the rights of nature and the environment provides another potential option to level the three-legged stool. Specifically, standing should be expanded to include ecosystems themselves. Currently the best method for achieving this goal is through treaty negotiations between sovereign governments. Expanding standing to nature is not a new concept. See Sierra Club v. Morton, 405 US 727, 741-55 (1972),where the modern concept of standing was described. This blog examines expanding the rights of nature through a treaty at the intersection of sustainability and indigenous rights. Greater environmental standing is necessary to achieve sustainability. In a world where corporations, are considered people, so too should the natural environment.
First, this post examines current standing requirements for environmental plaintiffs and why expanding those requirements promotes greater sustainability. Next, this blog examines New Zealand’s recent move to recognize the personhood of the Whanagui River and the possibilities for applying this concept in the United States. Next, this blog compares environmental personhood to corporate personhood, a recognized concept in American law. Finally, this blog examines why altering normative choices is critical for the development of sustainability law.
2. Current standing requirements do not promote sustainability.
Environmental groups achieve standing by demonstrating that individual members have standing. These members have to show that they use and will be harmed by potentially environmentally harmful actions. Standing needs to be expanded in order to make sustainability law a reality. This is because allowing for greater standing will allow for more decisions related to the environment to be challenged in court. One study identified that the modern standing doctrine, from Lujan v. Defenders of Wildlife, 504 US 555 (1992), has had little empirical impact on the standing of claims brought. However, the study does not account for the potential of claims that might be brought if standing was to be expanded. In other words, attorneys and clients are not likely to waste time and money if they do not meet the jurisdictional requirements.
One of the key concepts in sustainability is the emphasis on equality. This includes inter-species equality. In effect, it allows the natural environment to have greater equality with the economy. This is in line with sustainability by balancing the three-legged stool of sustainability.
There are three key elements to standing: injury in fact, causation, and redressability (Lujan, 504 US 555 (1992)). One underlying issue in standing is that the injury in fact must occur to the plaintiff, not the environment itself. An injury must occur to a person that actually uses the environment in question. For example, if a timber company wanted to log a forest, the environmental plaintiff would have to show that they used and visited that specific area (Sierra Club v. Morton).
This standard creates a problem for sustainability law because it places a greater emphasis on the economic sphere. Corporations are able to speak for their own interests. See Part 3.a., infra. Protecting nature can only be achieved in a piece meal fashion. Environmental groups are limited to suing to protect areas that they use. In theory, some natural resources unprotected because they are not used by an member of an environmental group. In other words, all corporations are able to assert legal protect over all their interests while natural protection is largely limited to what is being used. Some areas, especially remote and critical habitat, are not used at all, but need to be protected. This emphasis unbalances the three-legged stool of sustainability with greater emphasis on the social and economic spheres. This is because standing can limit the ability of sustainability activists to bring claims, if they are unable to find a member that uses a particular natural resource. In a world where environmental systems are rapidly degraded, greater protection should be given to the finite and irreplaceable natural resources.
As illustrated by the picture above, the environmental sphere has largely been neglected. Expanding the environmental leg of sustainability can balance the stool to promote equality. This balancing between competing interests is at the heart of sustainability (Ostrom, et al., A General Framework for Analyzing Sustainability of Social-Ecological Systems, Science 325, 419 (2009)).
3. The Whanganui River was recognized as a living entity and is represented by a tribe and the New Zealand government.
Treaty rights can be used to promote sustainability.
The Whanganui River, the longest navigable river in New Zealand, was recognized as a “single indivisible and living entity” by a treaty settlement (Record of Understanding in relation to Whanganui River Settlement (2011)). This recognition is based on historical and cultural beliefs of the Whanganui Iwi, a Maori tribe. The Whanganui Iwi have a long tradition of living near the Whanganui River. The treaty sets out preliminary stages: setting goals for future negotiations for the management of the Whanganui River. One key concept established was that of Te Awa Tupua, which recognizes the river as a person.
The Whanaganui Iwi and the New Zealand government agreed to act as trustees for the river. While the treaty is limited in that it does not affect existing statutes or property rights, it gives that tribe a greater ability to protect their environment in court than they had before. Before this treaty, the Whanaganui Iwi had no legal rights to the spiritually significant Whanaganui River. This lack of rights lasted for nearly 120 years (Marguerite Spencer, A White American Female Civil Rights Attorney in New Zealand: What Maori Experience(s) Teach Me About the Cause, 28 Wm. Mitchell L. Rev. 255, 273 (2001)). It gives the tribe a greater interest in protecting the environment, restoring some elements of sovereign control. The purpose of the treaty is to promote the health of the Whanganui river and its ecosystem due to the cultural importance of the river.
Artificial corporations have more rights than natural systems.
One important part of sustainability is finding a balance between the social, environmental and economic spheres. Currently, the economic sphere takes a greater precedent over environmental interests. This can be seen in the manner in which corporations are view by the law, as persons, compared to the environment. For example, corporations are allowed to bring legal claims on their own behalf. Corporations enjoy free speech protection (Citizens United v. FEC, 558 US 310). This classification of economic entities gives them a greater set of rights than nature. Contrasted to environmental systems, these rights put economics far ahead of ecosystem integrity.
Finding a way to balance these spheres is a critical part of sustainability. Elevating the standing of the natural environment would allow for greater protection of ecosystem services. In the past, natural systems have been degraded to further economic and social interests. Recognizing greater rights of ecosystems would help to reverse the trend of environmental degradation. Something New Under the Sun (McNeil and Kennedy, 2001) provides a discussion of the trend of environmental degradation. This is especially true if trustees, like in the Whanagui Treaty, are able to represent these interests.
4. Similar treaties could be negotiated between the federal government and Native American Tribes.
The personhood of the Whanganui River is the creation of a treaty agreement between a tribal government and the New Zealand government. The negotiations between two sovereign entities, in the form of a treaty, allow for greater freedom to develop sustainability. This approach might be of limited value in the United States as a whole. However, the creation of equal rights in controlling natural resources might be an effective way to promote conservation on tribal land. Under the Whanganui River treaty, the parties appoint several River Trustees, appointed in equal numbers by the New Zealand and Tribal governments, who are responsible for managing the Whanganui River and working with other shareholders. This approach is likely limited in non-tribal land in the US because there is not the critical element of sovereignty. Tribal governments are dependent sovereigns in the US and retain many of the elements of sovereignty, including territorial control over their boundaries (Johnson v. M’Intosh 21 U.S. 543, 1823)). While the full scope of Indian law is beyond the scope of this blog, sovereignty is a key concept.
Additionally, treaties preserve tribes greater sovereignty over their land by maintaining tribal authority over natural resources. The treaty between the Whanganui Iwi and the New Zealand government specified that both groups would act as trustees for the river. This helps preserve a greater amount of the inherent sovereignty of tribal groups, instead of making them subject to national laws. For example, it might allow Native American tribes to have greater control over rivers within their territorial boundaries, instead of being limited to the Clean Water Act (33 U.S.C. §1251 et seq.)
This agreement would require extensive negotiations between individual tribal governments and the United States government. It would likely be a long process. However, it represents a chance to improve sustainability in portions of the US.
5. Expanding the rights of nature could promote equality between the spheres of sustainability.
Sustainability law requires revising legal standards to fully address sustainable goals. New Zealand’s recent treaty to establish the personhood of the Whanganui River shows that sustainability law, at least in the US, needs to reconsider the rights of nature relative to economics and social interests. Sustainability will require greater protection of natural systems, in order to preserve ecosystem services and cultural values. Treaty negotiations between the United States government and tribal governments, as in New Zealand, could be a first step toward expanding the rights of nature to level the three-legged stool of sustainability.
