Corporate Personhood for Trees, Rivers and Nature?
Corporate personhood has been lurking in U.S. law since 1886, but it came to public attention when the corporate person known as Hobby Lobby did not want to pay for health insurance that covered birth control pills because Hobby Lobby has religious scruples against birth control, or did in 2014.
A corporation having religious scruples shocked just about everybody except human persons still reeling from the Supreme Court’s 5-4 decision in the 2010 Citizens United v. Federal Election Commission case, holding that corporate persons had free speech rights to spend money opposing human persons.
Human political activists complained about spending contests with corporate political activists because the corporate persons have more money. The absurdity of corporate persons needing freedom of religion and freedom of speech is apparent, but cases are coming to court around the world that extend the idea of legal personhood even farther.
Unlike corporate persons, another class of non-human “persons” has obvious needs at the courthouse. They have been turned away with no argument beyond a general claim of absurdity, but that claim is losing force. An early example of the claim being brushed away was Sierra Club v. Morton.
The Sierra Club was suing Secretary of the Interior Roger Morton to protect a forest, and the SCOTUS threw them out because they lacked “standing,” a particularized harm to the Sierra Club at issue in the case, more harm than to just to any taxpayer off the street.
The purpose of the standing rule is to prevent anyone from suing over any governmental action claiming they did not like how their money was being spent.
Justice William O. Douglas, known in history as a civil libertarian, had a record in environmental cases to raise the question whether he shared DNA with plants. Douglas dissented from the Court’s opinion throwing out the case.
He agreed that the Sierra Club did not have standing but claimed it was the trees about to be harmed, not the Sierra Club. In that controversy between the trees and those who would kill them, the proper question was whether the Sierra Club was a responsible party that could be trusted to assert the legal interest of the trees in surviving. The trees were in need of a legal guardian just like a human being unable to assert his or her interests because of age or disability.
The trees are living things, Douglas believed, that have an interest in survival as trees rather than boards and sawdust. Douglas has been widely ridiculed within the legal profession for this dissenting opinion. I have yet to meet an American Indian lawyer who joined the laughter. Even those Indian lawyers who disagree with the Douglas formulation of standing do not ridicule it.
The Sierra Club or the trees (depending on your point of view) lost their case in 1972. Over 50 years later, the courts of another nation rooted in English common law as we are has agreed with Justice Douglas. The same issue is rising in two other nations, one common law and one not.
The river Ganges has been sacred to Hindus in India from time immemorial. The Mother Ganges appears in the Rigveda, the earliest Hindu scripture, an indication she had already been a part of oral tradition. People make pilgrimages from all over India to bathe in her sacred waters, and it is believed that if one’s ashes are scattered on the living body of the Ganges, the person who has walked on is closer to moksha, liberation from the cycle of life and death.
To Western eyes, these beliefs would appear to be all the protection the Ganges would ever need. Who would dare harm a living goddess? As it happens, the Ganges is even more polluted than the Mississippi in places.
Only about 80 percent of the Indian population is Hindu. Of those who are Hindu, many believe that Mother Ganges could not be harmed by mere human beings. Before ridiculing this belief from a claim of cultural superiority, Americans had best pay attention to religious climate change deniers, who hold that mere humans could not possibly harm the planet.
Legal personhood in India is like the U.S. in that it is extended to corporations and trusts. India had already gone one step farther in recognizing the legal personhood of temple deities, what would be disparaged in this country as “idols.” This year, the high court of the Indian state of Uttarakhand extended legal personhood to two rivers, the Ganges and the Yamuna.
The effect of riverine personhood is that pollution may be enjoined without proof that it harms humans. It is unlawful because it violates the river’s right to life. The court imposed a blanket ban on new mining licenses while environmental impact studies are conducted.
The state pollution control board has been ordered to shut down all establishments that are dumping untreated sewage into the rivers. That would close over 700 hotels in tourist areas. While polluters do not as a rule get sanctioned in India, the court intends to fine or jail government bureaucrats who fail to comply with orders to suppress pollution.
The victory for the Mother Ganges comes in the same year that the indigenous people of another nation with a legal system rooted in English common law took similar steps. The Whanganui River in New Zealand is considered part of the living landscape by the Maori people indigenous to that landscape.
Unlike American Indians, the Maori have one master treaty that defines the relationship between themselves and the settlers. The Treaty of Waitangi (Te Tiriti o Waitangi) was signed by 39 Maori chiefs over March and April of 1840, the number of signers reflecting that there are many bands of Maori.
The Whanganui Iwi people are historically linked to the sacred river of the same name. An indigenous Member of Parliament told Radio New Zealand, “From a Whanganui viewpoint the well-being of the river is directly linked to the well-being of the people…”
The Maori people have been fighting to protect their sacred river for over 160 years, sometimes by direct action and sometimes by lobbying and litigation. This year, the New Zealand Parliament passed a bill recognizing the personhood of the river and entrusting protection of the river’s interests in court to a pair of indigenous people, one appointed by the government and one elected by the Maori.
Treaty Negotiations Minister Chris Finlayson defended the “strangeness” of a river with legal personhood, saying, “it’s no stranger than family trusts, or companies, or incorporated societies.”
The common-law countries of India and New Zealand follow the civil law country of Ecuador, influenced by its indigenous people, granting constitutional rights to “nature” which, the constitution claims, “has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”
The constitution puts the primary duty of protecting nature on the government, but gives citizens and cities legal standing to sue if the government fails in its duty. Cyril Mychalejko, writing on the OpEdNews blog before the provision was ratified, predicted, “Jaguars, spectacled bears, brown-headed spider monkeys, and plate-billed mountain toucans may all just breathe a little easier.”
Ecuador’s constitutional status of nature will have to contend with governments seeking to profit from extraction industries and transnational corporations seeking the same. Once more, though, American lawyers inclined to feelings of superiority should remember that the equal protection clause in the U.S. Constitution—intended to make former slaves and former masters equal before the law—took over 100 years to come to fruition.
The people ratified the constitutional status of nature in 2008. In 2015, Natalia Green, an Ecuadorian activist who first worked for the constitution and now works to enforce it, gave a presentation to the Yale Center for Environmental Law and Policy. She reported that the efforts to use the law have been mixed, with wins and losses similar to what we see in the U.S. In both countries, there is stout opposition by businesses to shutting down development to protect endangered species.
Still, Green concluded that the rights of nature paradigm created an opportunity to rethink patterns of development in harmony with nature itself and with respect for the “voluntarily isolated” indigenous communities that were often in proximity to natural areas seeking protection from development.
The constitutional claims of the natural landscape aligned nicely with the desire of Indigenous Peoples to be left alone. While there remains much to be done to recognize the intrinsic value of nature, putting the fine words in the constitution created an incentive that did not exist before.
Ecuador, New Zealand, and India are geographically and culturally about as far apart as they could be and still exist on the same planet. By constitutional amendment, by act of parliament, and by court decision, all three legal systems have arrived at Justice Douglas’s position in Sierra Club v. Morton that the natural world is valuable on its own terms and deserves legal protection.
Douglas wrote in dissent almost 50 years ago, and the current U.S. government is about as hostile to forests, rivers, and endangered species as we’ve seen since Douglas penned his famous dissent. A growing body of evidence from around the world suggests that fewer people are laughing.