Blog By: Ben Robinson
Most can agree that the destruction of nature is not necessarily a good thing. In recent years, several countries have recognized nature as having natural rights, or rights attributed to natural entities.[i] Threats to nature have pushed South American countries such as Ecuador and Bolivia to protect their natural fixtures, recognizing natural rights in 2008 and 2010 respectively.[ii] The theory of natural rights has gained global traction in other countries like New Zealand, India, and Mexico.[iii] This theory has prompted protectors of nature to seek similar protections in the United States and, however virtuous, this theory has not taken hold in our nationwide legal system.[iv]
In North Carolina, a proposed bill sought to give the Haw River ecosystem natural rights.[v] Led by indigenous people, the bill’s ideals are “rooted in traditional indigenous knowledge” and “recognized increasingly in the United States.”[vi] Such rights include a “right to naturally exist, flourish, regenerate, and evolve.”[vii] Although not yet passed, this is a sensible attempt to instill natural rights to natural entities.[viii] In Ohio, The Lake Erie Bill of Rights (LEBOR) passed in 2019, granting Lake Erie legal natural rights to “exist, flourish, and naturally evolve.”[ix] However, this bill did not survive legal muster despite its virtuous intention.[x]
Generally, our legal system doesn’t recognize the theory of “natural rights”. Our laws recognize property, owners of property, and rights of actions by the owners of property.[xi] For example, the North Carolina bill sought to make the Attorney General enforce the protections for the river.[xii] A natural entity has no voice or money to defend itself—a natural entity can only be protected by those who want it protected and enforced by those who agree to enforce protections. [xiii]
Vagueness in statutory language was one reason the LEBOR was stuck from existence.[xiv] The ordinance allowed citizens to sue on behalf of the lake, yet the language “allowing the lake to exist, flourish, and naturally evolve” was found too vague to enforce.[xv] The LEBOR also conflicted with pre-existing state laws that were enacted to protect the lake, and local ordinances cannot supersede state laws.[xvi]
Deciding who should uphold these natural rights is a glaring issue. Under the Public Trust Doctrine, the “general public” owns the waters of the Great Lakes.[xvii] The LEBOR sought to instill that “The City of Toledo or any resident of the City of Toledo may enforce rights…”[xviii] However, 10.5 million citizens of the United States and Canadian residents live along the lake.[xix] Canadian authorities already comply with the United States on EPA issues, which pre-empts future natural right protections.[xx]
Relying on indigenous principals to protect entities is a thoughtful gesture, but likely not effective. Countries that have adopted these protections, like Ecuador, have justified them because many indigenous people rely on the natural entities.[xxi] However, much of the litigation after these natural rights were enacted has not been indigenous-related at all.[xxii] America’s people, economy, and history are of a much different makeup, and an indigenous motive may not suffice to sway a court to abandon property law principles and preempted environmental protection.[xxiii]
There are examples in the United States which illustrate a basis for natural rights.[xxiv] “The Tree That Owns Itself” in Athens, Georgia, was “deeded to itself” by Colonel William H. Jackson.[xxv] While not a legally binding deed, this deed has been respected, with no property disputes having arisen over the tree.[xxvi] Similarly, in 2019, California’s Yurok Tribe granted the Klamath River “legal rights of a person,” highlighting its cultural importance, even if unenforceable.[xxvii] These examples show how community support can foster the intended effect of natural rights, even without legal authority.
Due to uncertain litigants, legal pre-emption, and vague language, true natural rights have yet to legally exist in the United States. While the United States has federal and state agencies that protect the environment already, however, a communal recognition of the importance of the natural entity could serve to function as natural rights. Through the power of a fair democracy, locally represented communities can elect officials who advocate for granting legal rights to natural entities. By crafting precise, locally focused legislation and statutes—ensuring they are not preempted by federal law—communities can clearly define both who is responsible for protection and what is being protected, ultimately safeguarding the natural environment around us.
[i] See Cody Peluso, What Are The Rights of Nature?, Population Media Center, August 18, 2023 https://www.populationmedia.org/the-latest/what-are-the-rights-of-nature#:~:text=Numerous%20countries%2C%20including%20Ecuador%2C%20New,recognize%20The%20Rights%20of%20Nature [https://perma.cc/2ZJB-9QB9].
[ii] Erin O’Donnell, Anne Poelina, Alessandro Pelizzon & Cristy Clark, Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature, 9 Transnat’l Env’t. L. 403, 404. (2020).
[iii] Peluso, supra note i.
[iv] See generally What are the Rights of Nature?, Global Alliance For The Rights Of Nature https://www.garn.org/rights-of-nature/ (Website for organization comprised of activists of all kinds standing behind giving nature “Natural rights”) [https://perma.cc/P2QZ-KUNV].
[v] 1 LNPG: North Carolina Environmental Law § 10.34 (2024).
[vi] Id.
[vii] H.B. 795, Gen. Assemb. Reg. Sess. (N.C. 2023)
[viii] See HB 795 North Carolina House Bill, https://fastdemocracy.com/bill-search/nc/2023-2024/bills/NCB00011995/#summary-menu [https://perma.cc/LV7U-NZ9L].
[ix] Turning the Tides: Judge Finds Lake Erie Bill of Rights Unconstitutional, The National Agricultural Law Center, Mar. 4, 2020 https://nationalaglawcenter.org/turning-the-tides-judge-finds-lake-erie-bill-of-rights-unconstitutional/ [https://perma.cc/5WMV-LG6C].
[x] Id.
[xi] See Introduction to Property Law: Understanding the Basics, July 26, 2023, Univ. of Pittsburgh School of Law, https://online.law.pitt.edu/blog/introduction-to-property-law-understanding-the-basics [https://perma.cc/N96M-VDKS].
[xii] Turning the Tides, supra note ix.
[xiii] Nicholas de Toledo, What if nature became a legal person?, World Economic Forum, May 19, 2020, https://www.weforum.org/agenda/2020/05/nature-legal-personhood/
[xiv] Introduction to Property Law, supra note xi.
[xv] Id.
[xvi] Id.
[xvii]Who Owns the Water?, American Planning Association, Michigan Chapter, https://www.planningmi.org/aws/MAP/pt/sp/wowgl#:~:text=The%20water%20in%20the%20Great,entirety%20of%20the%20Great%20Lakes [https://perma.cc/K8PJ-2MA7].
[xviii] Supra note xi.
[xix] Lake Erie, National Marine Ecosystem Status, https://ecowatch.noaa.gov/regions/great-lakes/lake-erie
[xx]See generally EPA Collaboration with Canada, EPA, https://www.epa.gov/international-cooperation/epa-collaboration-canada (Describing United States and Canadian international agreements where Canada works with the similar EPA guidelines) [https://perma.cc/LVA5-2NNE].
[xxi] Elizabeth Macpherson, David Jefferson & Julia Torres Ventura, Rights of nature and rivers in Ecuador’s Constitutional Court, International Journal of Human Rights, Feb. 7, 2024, https://www.tandfonline.com/doi/citedby/10.1080/13642987.2024.2314536?scroll=top&needAccess=true
[xxii] Id.
[xxiii] Benjamin Elisha Sawe, Largest Ethnic Groups and Nationalities in the United States, World Atlas, July 18, 2019, https://www.worldatlas.com/articles/largest-ethnic-groups-and-nationalities-in-the-united-states.html [https://perma.cc/AD2B-EPY5].
[xxiv] See The Tree That Owns Itself, Visit Athens Ga, https://www.visitathensga.com/things-to-do/attractions/the-tree-that-owns-itself/#:~:text=One%20of%20Athens'%20most%20beloved,as%20it%20pays%20no%20taxes! [https://perma.cc/7CSA-3AYT]. See also Jay A. Martin, The Klamath River has the “Legal Rights of a Person” a Yurok Tribe Resolution Establishing Rights Of The Klamath River, Siskiyou News, Oct. 26, 2023 https://www.siskiyou.news/2023/10/26/the-klamath-river-has-the-legal-rights-of-a-person-a-yurok-tribe-resolution-establishing-rights-of-the-klamath-river/#:~:text=Yurok%20Tribe%20declared%20rights%20of,now%20being%20extended%20to%20nonhumans. [https://perma.cc/KC3Y-NQLN].
[xxv] The Tree That Owns Itself, supra note xxiv.
[xxvi] Id.
[xxvii] Martin, supra note xxiv.