Where Nature’s Rights Go Wrong

*Mauricio Guim is an assistant professor of law at the Instituto Tecnológico Autónomo de México (ITAM); Michael A. Livermore is a professor of law at the University of Virginia. We thank participants at workshops held by the University of Texas at Austin School of Law, the University of Kentucky Law School, the American Law and Economics Association, and the Latin American Workshop in Law and Economics for valuable feedback. We also thank Matthew Adler, Jonathan Cannon, Willis Jenkins, Richard L. Revesz, and Mila Versteeg for comments and Austin Hetrick and Libby Murray for research assistance.Show More

There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights of nature into the Ecuadorian constitution in 2008. However, there are reasons to be skeptical that these environmental rights will have the kinds of transformative effects that are anticipated by their most enthusiastic proponents. From a conceptual perspective, a number of difficulties arise when rights (or other forms of legal or moral consideration) are extended to non-human biological aggregates, such as species or ecosystems. There are two very general strategies for conceiving of the interests of such aggregates: a “bottom-up” model that grounds interest in specific aggregates (such as particular species or ecosystems), and then attempts to compare various effects on those specific aggregates; and a “top-down” model that grounds interests in the entire “biotic community.” Either approach faces serious challenges. Nature’s rights have also proven difficult to implement in practice. Courts in Ecuador, the country with the most experience litigating these rights, have had a difficult time using the construct of nature’s rights in a non-arbitrary fashion. The shortcomings of nature’s rights, however, do not mean that constitutional reform cannot be used to promote environmental goals. Recent work in comparative constitutional law indicates that organizational rights have a greater likelihood of achieving meaningful results than even quite concrete substantive rights. Protection for the role of environmental groups within civil society may, then, serve as the most effective way for constitutional reform to vindicate the interests that motivate the nature’s rights movement.

Introduction

One of the most basic questions in environmental law, policy, and ethics is whether human societies owe obligations to non-humans. For the most part, U.S. environmental law has embraced a human-centered perspective, which justifies environmental protection primarily on the basis of benefits delivered to human beings. But, from the beginnings of the modern environmental movement, there have been efforts to promote an alternative, bio-centered view. Justice Douglas’s dissent in Sierra Club v. Morton—in which he called on the Court to grant legal personhood to “valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—provides a canonical expression of the path not taken.¹1.Sierra Club v. Morton, 405 U.S. 727, 742–43 (1972) (Douglas, J., dissenting). For a discussion of the Court’s reluctance to take up a biocentric view, see Jonathan Z. Cannon, Environment in the Balance: The Green Movement and the Supreme Court (2015).Show More

In recent years, this bio-centered perspective has gained renewed traction in global environmental law discourse, especially through a new generation of constitutional and statutory rights extended directly to natural entities. A particular watershed moment came in 2008 when the country of Ecuador became the first in the world to recognize rights for nature in its constitution.²2.See infra Part I. We use the phrase “rights for nature” and “nature’s rights” interchangeably throughout this Article.Show More These new rights have come at a time of increasing frustration with the failure of legal institutions to come to terms with grave environmental threats such as climate change.³3.See, e.g., Roger Hallam, Common Sense for the 21st Century: Only Nonviolent Rebellion Can Now Stop Climate Breakdown and Social Collapse (2019).Show More Activists, commentators, and scholars have argued that “nature’s rights” may be able to achieve the kind of sustained and transformative environmental progress that has so far proven elusive.⁴4.See, e.g., David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (2017); infra Section IV.A.Show More

In this Article, we provide a dose of skepticism.⁵5.Other scholars have raised a number of general problems with substantive environmental rights. See, e.g., James R. May & Erin Daly, Global Environmental Constitutionalism 59 (2015) (collecting sources critical of constitutionalizing environmental rights); Tim Hayward, Constitutional Environmental Rights 74–75 (2004) (noting that substantive environmental rights might have an atomizing effect as collective demands for justice become fragmented into individual litigation and claims); César Rodríguez-Garavito, A Human Right to a Healthy Environment?, in The Human Right to a Healthy Environment 155, 166 (John H. Knox & Ramin Pejan eds., 2018) (arguing that substantive environmental rights “fall[] short of . . . transformational promises, as the language of rights tends to be more definitive than the complications of implementation warrant”). In this Article, we focus on the subclass of environmental rights that grant cognizable legal rights and remedies to non-human entities, especially aggregates such as species, ecosystems, or rivers.Show More A defining feature of environmental policy is that it touches on complex, interconnected systems. As a consequence, environmental policy tends to have effects across a large number of (at least arguably) morally relevant dimensions. Outcomes that are affected by environmental policies include many features of human health and well-being, biodiversity and extinction, the protection of wilderness, and the stability of ecosystems. The natural world is not a monolithic “it,” but a “they” in the broadest possible understanding of that term.⁶6.Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (examining the difficulty of attributing intentionality to collective entities in the context of statutory interpretation).Show More This basic, pragmatic reality means that the process of environmental policymaking often requires that comparisons be made across alternatives that have both positive and negative effects on human beings and the non-human world.⁷7.As is discussed in more detail below, the use of the language of rights does not obviate the need for comparison. See infra Part II. If anything, the notion of legal or moral rights simply makes the notion of comparison more complicated by introducing ideas such as lexical priority. See generally Jeremy Waldron, Rights in Conflict, 99 Ethics 503 (1989) (exploring possibilities of moral reasoning in cases of rights conflict).Show More

A common example of an environmental policy choice that governments have faced many times is whether or not to grant a permit for a hydroelectric dam. Granting a permit may further economic development for some while destroying the property of others; the dam may reduce carbon dioxide emissions by displacing fossil fuel electricity generation, but its construction may also wipe out the habitat of an endangered species. If the concept of nature’s rights is not to be entirely paralyzing, it must admit of some way for these heterogeneous effects to be balanced against each other to decide whether, all things considered, it is better to grant the permit or not.

This balancing analysis requires that the various entities that are affected by a policy be defined and that the effects of the policy on these entities be compared. Each of these steps raises difficulties for a nature’s rights framework. At the definitional step, the entities in question will frequently be aggregates, such as ecosystems or species.⁸8.For purposes of this Article, we focus on an understanding of nature’s rights that involves biological aggregates such as species. An alternative formulation of nature’s rights could ignore such aggregates and instead deal exclusively with individual organisms. Such a view could largely, or entirely, overlap with the animal welfare perspective promoted by figures such as Peter Singer. See Peter Singer, Animal Liberation (1975). Some efforts have been made to articulate a framework for considering animal welfare in this manner. See, e.g., Alexis Carlier & Nicolas Treich, Directly Valuing Animal Welfare in (Environmental) Economics, 14 Int’l Rev. Env’t & Res. Econ. 113 (2020); Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012). But nature’s rights, at least as it has been articulated so far, generally take as rights bearers aggregates such as species, ecosystems, rivers, and even the totality of nature. This makes them very different from an expanded welfarism that accounts for the pain and pleasures of non-human organisms. See infra notes 93–101 and accompanying text.Show More There may be multiple ways of drawing lines around these aggregates, and estimates of the net consequences of a policy may be sensitive to these definitions. If there is no principled way to decide how to define the relevant entities, the decision of whether a policy is, on balance, desirable will be contingent on arbitrary line-drawing choices.

Even if the entities could be defined in a satisfactory fashion, making comparisons across entities raises additional challenges. Policy analyses limited just to effects on humans raise the classic problem of interpersonal comparisons. Solutions to this problem are generally grounded in the mutual intelligibility of people’s motivations, interests, and reasons. A shared and comprehensible intersubjectivity that allows for deliberation and bargaining undergirds notions such as the social welfare function and the social contract, which are the dominant approaches for evaluating public policy choices. An equivalent shared understanding with entities like species, ecosystems, and landscapes is missing, leaving no clear foundation for an analytic structure capable of rendering effects across these entities comparable.⁹9.By contrast, for ethical systems that embrace animals as worthy of moral consideration, the shared experience of pain and pleasure is a natural starting place for a balancing analysis. See Singer, supra note 8, at 8 (“The capacity for suffering and enjoyment is a prerequisite for having interests at all . . . .”). Of course, profound differences between humans and non-human animals also raise a host of challenges in attempting to make moral judgment in the face of trans-species effects. See Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 195 (2010) (noting a “sense of awe and incomprehension regarding the other’s being”). See generally Matthew Calarco, Zoographies: The Question of the Animal from Heidegger to Derrida (2008) (illustrating difficulties in moral reasoning about animals).Show More

This problem can be restated as one arising from multi-dimensionality. In standard forms of environmental policy analysis, the heterogeneous effects associated with a government decision are reduced to a single dimension along which comparisons can be made.¹⁰10.See generally EPA, Guidelines for Preparing Economic Analyses 7-1 (2010) (“Estimating benefits in monetary terms allows the comparison of different types of benefits in the same units, and it allows the calculation of net benefits—the sum of all monetized benefits minus the sum of all monetized costs—so that proposed policy changes can be compared to each other and to the baseline scenario.”).Show More As practiced in the United States, that dimension is often a monetary metric based on the affected parties’ willingness to pay.¹¹11.Id. at 7-6.Show More If non-human entities have their own intrinsic value, above and apart from the value assigned to them by people, then effects on those entities must also be measured along a common dimension to make them comparable. But none of the tools or concepts that are used to translate effects on people to a single dimension can readily be applied to all of the relevant non-human entities. This leaves policymakers with a highly multi-dimensional space where policy comparisons will often be indeterminate. Unless there is some sensible way to reduce the dimensionality used to describe outcomes, then it will often be unclear whether a policy infringes on, promotes, or is neutral with respect to the interests that undergird nature’s rights.¹²12.Comparisons of effects on various interests need not be quantitative in nature, but to avoid paralysis, the interpretation of the interests implicated by environmental policy cannot imply that those interests are so strongly incommensurable that it is impossible to evaluate policies with diverse effects.Show More

Moving from the theoretical to the practical, experience with rights for nature has shown that their conceptual deficiencies have led to confusion, inefficiency, and arbitrariness—without any obvious environmental benefit. Multiple litigants pursuing conflicting goals have come to court claiming to speak on behalf of nature’s rights, forcing courts not only to balance heterogeneous effects of policy choices but also to arbitrate between alternative plausible representational claims. Where nature’s rights have been litigated, courts have struggled mightily to make sense of the inquiry before them.¹³13.These early struggles do not necessarily mean that courts will never land on a well-founded and workable understanding of nature’s rights. Indeed, one way that nature’s rights provisions could be defended is that they pose the question to courts of how best to articulate the obligations of human societies to the natural world. On this account, at this stage in their development, nature’s rights provisions are not intended to have determinate substantive content. Rather, they initiate a deliberative process involving courts, as well as other social actors, focused on the appropriate relationship between humans and nature. The substantive content will emerge from this process over time. But, inasmuch as the concept of nature’s rights continues to involve intrinsic value placed on biological aggregates such as species, ecosystems, or nature itself, it will face the challenges raised in Parts II and III below.Show More

For all these reasons, rights for nature are unlikely to provide the solution that frustrated environmentalists seek.¹⁴14.We draw a sharp distinction between nature’s rights and animal rights. See supra note 8. Under the former, biological aggregates of various sorts—including species, ecosystems, rivers, landscapes, or all of nature—are understood as having rights or interests. Under the latter, individual organisms (typically animals) are understood as having rights or interests. Our critique is focused on nature’s rights and leaves to the side the question of whether and how the rights, interests, or well-being of individual organisms could or should be considered when evaluating the desirability of environmental policy.Show More But that does not mean that constitutional rights and courts are a dead-end for environmental progress. Recent work in comparative constitutional law has focused on the characteristics of constitutional rights that are most associated with success. In general, that literature finds that provisions that protect organizations are most likely to be effective.¹⁵15.See Kevin L. Cope, Cosette D. Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Ann. Rev. L. & Soc. Sci. 155, 171 (2019) (summarizing relevant research); Georg Vanberg, Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice, 80 J. Econ. Behav. & Org. 309, 317 (2011). See generally Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016) (providing an in-depth empirical examination of the effectiveness of constitutional rights).Show More There is a lesson here for efforts to use constitution-making to achieve environmental goals. Concrete rights for the people and organizations that seek to promote a healthy relationship with the environment are more likely to lead to results than guarantees to abstract non-human entities.

The remainder of this Article proceeds as follows. Part I discusses the spread of rights for nature as part of a more general trend toward the expansion of environmental rights. Many activists, commentators, and courts have enthusiastically embraced rights for nature, in part due to frustration with traditional forms of environmental governance. Starting from their origin in Ecuador, rights for nature have been adopted in a variety of jurisdictions at the international, national, and local levels. These rights are now the topic of serious discussion by international institutions and have been promoted by many academics and environmental organizations.

Part II focuses on conceptual challenges that arise when rights for nature are understood in a bottom-up manner, as arising from the rights (or interests) of biological aggregates such as species or ecosystems.¹⁶16.As is discussed below, we borrow from Raz to treat nature’s rights as implying that entities of some kind are the bearers of interests of sufficient moral weight to justify assigning a duty to some other. See Joseph Raz, The Morality of Freedom 166 (1988). For our purposes, we set aside the additional complications associated with legal or moral reasoning about rights, and instead assume that if the underlying interests can be articulated in a meaningful way, then those additional difficulties can be addressed. See infra Part II.Show More The core issue is that environmental disagreements often involve conflicts within the domain of nature, implying that any option selected by a decision maker will create both benefits and harms for entities—such as species, ecosystems, and landscapes—that make up the natural world. When such conflicts arise between the rights (or interests) of some entities and others, decision makers must engage in some form of balancing. Drawing from work in moral philosophy and welfare economics, we examine the difficulties of deriving a coherent framework for this balancing inquiry. In particular, we raise difficulties associated with defining the relevant entities and their interests. Without a framework for balancing harms against each other when rights (or interests) conflict, decision makers are left with no criteria that can be used to arbitrate disputes in many concrete cases.

Part III examines whether some of the problems discussed in Part II can be resolved by understanding nature’s rights not as the aggregation of the rights of other entities, such as species or ecosystems, but in a top-down manner that begins with the biotic community as a whole.¹⁷17.The distinction between a bottom-up and a top-down understanding of nature’s rights tracks the concepts of biocentrism and ecocentrism from the environmental ethics literature. See Dale Jamieson, Ethics and the Environment: An Introduction 145–53 (2008).Show More We raise some initial objections to this approach, which are grounded in the problem of separation: both the need to respect the separate interests of at least some non-human entities and the conceptual difficulty of separating human activity from nature. We then use data from the Yale Environmental Performance Index to test whether there is a single dimension that captures existing metrics for environmental performance. We find that there is not. Finally, we discuss the possibility for a relatively low-dimensional representation of environmental performance to derive a set of “frontiers” that represent a space for nature’s rights. Although this may be the most promising existing path forward, we examine some of its deficiencies.

Part IV examines the application of nature’s rights in practice. We focus on Ecuador, the country with the most practical experience in this area. What we find is not heartening. In the limited number of cases where they have been applied, rights for nature have been used by a variety of groups and individuals, all speaking on behalf of nature, to bring conflicting claims. Facing an impossible situation, courts have done their best, but the results they reach have largely been arbitrary and ungrounded in any meaningful normative criteria. We then offer some justifications for nature’s rights that are not grounded in their immediate practical effect, but rather for their symbolic, expressive, or cultural reform function. This may be the best justification for nature’s rights, although many proponents of these rights focus on more short-term practical effects. We finally conclude with a discussion of lessons that can be learned from recent work in comparative constitutional law for the design of environmental rights. In applying those lessons, we argue that, although there may be a place for nature’s rights in the toolkit as a means of communicating social values and commitments, more targeted rights that provide tangible protections for a robust civil society presence for environmental advocates may be more likely to lead to tangible results.

* Mauricio Guim is an assistant professor of law at the Instituto Tecnológico Autónomo de México (ITAM); Michael A. Livermore is a professor of law at the University of Virginia. We thank participants at workshops held by the University of Texas at Austin School of Law, the University of Kentucky Law School, the American Law and Economics Association, and the Latin American Workshop in Law and Economics for valuable feedback. We also thank Matthew Adler, Jonathan Cannon, Willis Jenkins, Richard L. Revesz, and Mila Versteeg for comments and Austin Hetrick and Libby Murray for research assistance. ↑
Sierra Club v. Morton, 405 U.S. 727, 742–43 (1972) (Douglas, J., dissenting). For a discussion of the Court’s reluctance to take up a biocentric view, see Jonathan Z. Cannon, Environment in the Balance: The Green Movement and the Supreme Court (2015). ↑
See infra Part I. We use the phrase “rights for nature” and “nature’s rights” interchangeably throughout this Article. ↑
See, e.g., Roger Hallam, Common Sense for the 21st Century: Only Nonviolent Rebellion Can Now Stop Climate Breakdown and Social Collapse (2019). ↑
See, e.g., David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (2017); infra Section IV.A. ↑
Other scholars have raised a number of general problems with substantive environmental rights. See, e.g., James R. May & Erin Daly, Global Environmental Constitutionalism 59 (2015) (collecting sources critical of constitutionalizing environmental rights); Tim Hayward, Constitutional Environmental Rights 74–75 (2004) (noting that substantive environmental rights might have an atomizing effect as collective demands for justice become fragmented into individual litigation and claims); César Rodríguez-Garavito, A Human Right to a Healthy Environment?, in The Human Right to a Healthy Environment 155, 166 (John H. Knox & Ramin Pejan eds., 2018) (arguing that substantive environmental rights “fall[] short of . . . transformational promises, as the language of rights tends to be more definitive than the complications of implementation warrant”). In this Article, we focus on the subclass of environmental rights that grant cognizable legal rights and remedies to non-human entities, especially aggregates such as species, ecosystems, or rivers. ↑
Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (examining the difficulty of attributing intentionality to collective entities in the context of statutory interpretation). ↑
As is discussed in more detail below, the use of the language of rights does not obviate the need for comparison. See infra Part II. If anything, the notion of legal or moral rights simply makes the notion of comparison more complicated by introducing ideas such as lexical priority. See generally Jeremy Waldron, Rights in Conflict, 99 Ethics 503 (1989) (exploring possibilities of moral reasoning in cases of rights conflict). ↑
For purposes of this Article, we focus on an understanding of nature’s rights that involves biological aggregates such as species. An alternative formulation of nature’s rights could ignore such aggregates and instead deal exclusively with individual organisms. Such a view could largely, or entirely, overlap with the animal welfare perspective promoted by figures such as Peter Singer. See Peter Singer, Animal Liberation (1975). Some efforts have been made to articulate a framework for considering animal welfare in this manner. See, e.g., Alexis Carlier & Nicolas Treich, Directly Valuing Animal Welfare in (Environmental) Economics, 14 Int’l Rev. Env’t & Res. Econ. 113 (2020); Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012). But nature’s rights, at least as it has been articulated so far, generally take as rights bearers aggregates such as species, ecosystems, rivers, and even the totality of nature. This makes them very different from an expanded welfarism that accounts for the pain and pleasures of non-human organisms. See infra notes 93–101 and accompanying text. ↑
By contrast, for ethical systems that embrace animals as worthy of moral consideration, the shared experience of pain and pleasure is a natural starting place for a balancing analysis. See Singer, supra note 8, at 8 (“The capacity for suffering and enjoyment is a prerequisite for having interests at all . . . .”). Of course, profound differences between humans and non-human animals also raise a host of challenges in attempting to make moral judgment in the face of trans-species effects. See Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 195 (2010) (noting a “sense of awe and incomprehension regarding the other’s being”). See generally Matthew Calarco, Zoographies: The Question of the Animal from Heidegger to Derrida (2008) (illustrating difficulties in moral reasoning about animals). ↑
See generally EPA, Guidelines for Preparing Economic Analyses 7-1 (2010) (“Estimating benefits in monetary terms allows the comparison of different types of benefits in the same units, and it allows the calculation of net benefits—the sum of all monetized benefits minus the sum of all monetized costs—so that proposed policy changes can be compared to each other and to the baseline scenario.”). ↑
Id. at 7-6. ↑
Comparisons of effects on various interests need not be quantitative in nature, but to avoid paralysis, the interpretation of the interests implicated by environmental policy cannot imply that those interests are so strongly incommensurable that it is impossible to evaluate policies with diverse effects. ↑
These early struggles do not necessarily mean that courts will never land on a well-founded and workable understanding of nature’s rights. Indeed, one way that nature’s rights provisions could be defended is that they pose the question to courts of how best to articulate the obligations of human societies to the natural world. On this account, at this stage in their development, nature’s rights provisions are not intended to have determinate substantive content. Rather, they initiate a deliberative process involving courts, as well as other social actors, focused on the appropriate relationship between humans and nature. The substantive content will emerge from this process over time. But, inasmuch as the concept of nature’s rights continues to involve intrinsic value placed on biological aggregates such as species, ecosystems, or nature itself, it will face the challenges raised in Parts II and III below. ↑
We draw a sharp distinction between nature’s rights and animal rights. See supra note 8. Under the former, biological aggregates of various sorts—including species, ecosystems, rivers, landscapes, or all of nature—are understood as having rights or interests. Under the latter, individual organisms (typically animals) are understood as having rights or interests. Our critique is focused on nature’s rights and leaves to the side the question of whether and how the rights, interests, or well-being of individual organisms could or should be considered when evaluating the desirability of environmental policy. ↑
See Kevin L. Cope, Cosette D. Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Ann. Rev. L. & Soc. Sci. 155, 171 (2019) (summarizing relevant research); Georg Vanberg, Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice, 80 J. Econ. Behav. & Org. 309, 317 (2011). See generally Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016) (providing an in-depth empirical examination of the effectiveness of constitutional rights). ↑
As is discussed below, we borrow from Raz to treat nature’s rights as implying that entities of some kind are the bearers of interests of sufficient moral weight to justify assigning a duty to some other. See Joseph Raz, The Morality of Freedom 166 (1988). For our purposes, we set aside the additional complications associated with legal or moral reasoning about rights, and instead assume that if the underlying interests can be articulated in a meaningful way, then those additional difficulties can be addressed. See infra Part II. ↑
The distinction between a bottom-up and a top-down understanding of nature’s rights tracks the concepts of biocentrism and ecocentrism from the environmental ethics literature. See Dale Jamieson, Ethics and the Environment: An Introduction 145–53 (2008). ↑
See generally May & Daly, supra note 5 (examining trends in constitutional discourse on environmental rights). ↑
See generally David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 45–77, 117–65, 192–231 (2012) (discussing the issue of enforceability and examining the use of environmental rights in Latin America, Africa, and Europe). ↑
See U.N. Secretary-General, Harmony with Nature, U.N. Doc. A/71/266 (Aug. 1, 2016); U.N. Secretary-General, Harmony with Nature, U.N. Doc. A/70/268 (Aug. 4, 2015). ↑
See generally Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (dismissing a substantive due process challenge against U.S. government inaction on climate change for lack of standing). There is also a movement in the United States toward the adoption of nature’s rights at the municipal level. See generally Marsha Jones Moutrie, The Rights of Nature Movement in the United States, 10 Env’t & Earth L.J. 5 (2020) (surveying and praising local nature’s rights campaigns). ↑
See generally Boyd, supra note 4. ↑
See, e.g., Chris Jeffords & Lanse Minkler, Do Constitutions Matter? The Effects of Constitutional Environmental Rights Provisions on Environmental Outcomes, 69 Kyklos 294 (2016). ↑
These include citizen-suit provisions in the Clean Water Act, 33 U.S.C. § 1365 (2018), and the Clean Air Act, 42 U.S.C. § 7604; the requirements of environmental assessment in the National Environmental Policy Act, 42 U.S.C. § 4321; and provisions concerning the listing and protection of species in the Endangered Species Act, 16 U.S.C. § 1540. There are also important differences between citizen-suit provisions and environmental rights. The former are, in essence, an enforcement mechanism, whereas the latter create substantive obligations to specific entities. That is why judgments in such citizen-suit cases are rendered to the U.S. Treasury rather than as damages to the plaintiff. ↑
See generally Boyd, supra note 19 at 299 (link to online appendix of constitutional provisions related to environmental rights). Boyd’s The Environmental Rights Revolution uses online appendices. The appendix above can be found at https://open.library.ubc.ca/cIRcle/‌collections/ubcpress/641/items/1.0058133 [https://perma.cc/5HJZ-VXUX]. ↑
Id. ↑
Constitution of the Republic of Ecuador, Oct. 20, 2008. The right to nature is one of several environmental rights that are recognized in the Ecuadorian constitution—others include a right to water, id. art. 12, and a right to a healthy environment, id. arts. 14, 66. ↑
Id. art. 71. ↑
Id. arts. 72, 73. ↑
Id. art. 11. ↑
Id. art. 71. But see Michelle P. Bassi, La Naturaleza O Pacha Mama de Ecuador: What Doctrine Should Grant Trees Standing?, 11 Or. Rev. Int’l L. 461, 464 (2009) (arguing that Ecuador’s constitution is unclear about the requirements for standing). ↑
There are three provisions in the Constitution related to this statement:Article 11.5. In terms of rights and constitutional guarantees, public, administrative or judicial servants must abide by the most favorable interpretation of their effective force.
Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.

Article 396. The State shall adopt timely policies and measures to avoid adverse environmental impacts where there is certainty about the damage. In the case of doubt about the environmental impact stemming from a deed or omission, although there is no scientific evidence of the damage, the State shall adopt effective and timely measures of protection. ↑
May & Daly, supra note 5, at 255, 344 (reviewing the countries that had recognized rights or duties to nature as of 2015). ↑
Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth] No. 71 (2010) (Bol.); see also Brandon Keim, Nature to Get Legal Rights in Bolivia, Wired (Apr. 18, 2011), https://www.wired.com/2011/04/legal-rights-nature-bolivia/ [https://perma.cc/HZ3G-3HL4]. ↑
Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth] No. 71, art. 3 (2010) (Bol.) (translation by the author). ↑
Id. art. 7; Boyd, supra note 19, at 126; see also John Vidal, Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth, Guardian (Apr. 10, 2011), https://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights [https://perma.cc/7E4V-RZJM]. ↑
Ley De Derechos de la Madre Tierra [Law of The Rights of Mother Earth] No. 71, art. 10 (2010) (Bol.); Maria Antonia Tigre, Implementing Constitutional Environmental Rights in the Amazon Rainforest, in Implementing Environmental Constitutionalism: Current Global Challenges 75 (Erin Daly & James R. May eds., 2018). To date, no Defensoría de la Madre Tierra office has been created. Tigre argues that the failure to fill the new office indicates that “the rights are more symbolic rather than practical.” Id. But see Boyd, supra note 19, at 140 (referring to two 2010 cases in which the Constitutional Court of Bolivia referred to the right to a healthy environment and concluded that it includes the right to potable water). ↑
National Environment Act (2019), § 4 (Uganda), available at http://files.‌harmony‌withnatureun.org/uploads/upload834.pdf [https://perma.cc/B54A-CTHT]. ↑
Assemblée National [National Assembly], Amendment CL786, du 22 juin 2018 (Fr.), https://www.assemblee-nationale.fr/dyn/15/amendements/0911/CION_LOIS/CL786.pdf [https://perma.cc/6R6D-7LUM] (rejected amendment). ↑
U.N. Secretary-General, Harmony with Nature, ¶ 32, U.N. Doc. A/72/175 (July 19, 2017) (describing the rights of nature provisions included in Article 13 of the constitution of Mexico City and Article 2 of the constitution of the State of Guerrero). ↑
Ciudad de Santa Fe, Santa Fe, Ordenanza No. 12541 (30 de agosto del 2018) (Arg.), https://www.concejosantafe.gov.ar/Legislacion/ordenanzas/ORDE_12541.pdf [https://perma.cc/D94Q-LZB2]. ↑
Altera o Art. 133, de 12 de novembro de 2019, Diário Oficial Eletrônico Do Município de Florianópolis [DOF] de 20-11-2019 (Braz.). ↑
Lei No. 878/2018, de 20 de dezembro de 2018, Diário Oficial Eletrônico Dos Municípios de Pernambuco [DOP], de 04-02-2019 (Braz.). ↑
Altera o Art. 1 o decreto No. 001/2017, de 21 de dezembro de 2017, Diário Oficial Eletrônico Dos Municípios de Pernambuco [DOP], de 08-03-2018 (Braz.). ↑
Pittsburgh, Pa., Code of Ordinances art. 1, § 104 (2011); Santa Monica, Cal., Mun. Code ch. 12 (2019); Santa Monica, Cal., Mun. Code ch. 7.18 (2018); Santa Monica, Cal., Mun. Code ch. 4.75 (2013) (repealed and reinstated as chapter 12 in 2019). ↑
See Santa Monica Mun. Code ch. 12; Santa Monica Mun. Code ch. 7.18; Santa Monica Mun. Code ch. 4.75 (repealed and reinstated as chapter 12 in 2019). ↑
White Earth, Minn., Ordinance to Establish Rights of Manoomin on White Earth Reservation and Throughout 1855 Ceded Territory § 1(a) (Jan. 11, 2019) (codifying the right of manoomin rice to “pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions” and more). ↑
Mountain Lake Park, Md., Ordinance No. 2011-01 (Apr. 15, 2011) (regulating the extraction of natural gas within the town of Mountain Lake Park). ↑
Mora County, N.M., Ordinance 2013-01 (Apr. 29, 2013) (establishing a local bill of rights that protects the natural sources of water from damage related to the extraction of oil, natural gas, and other hydrocarbons). ↑
Wales, N.Y., Local Law No. 3-2011, § 4(b) (2011) (establishing “Rights of Natural Communities” wherein “[e]cosystems and natural communities possess the right to exist and flourish within the Town”). ↑
Broadview Heights, Ohio, Ordinance No. 115-12, § 1 (Sept. 4, 2012) (“Natural communities and ecosystems . . . possess inalienable and fundamental rights to exist and flourish within The City of Broadview Heights. Residents of the City shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems.”); see also Yellow Springs, Ohio, Ordinance 2012-17, ch. 878, § 878.04 (2012) (“Ecosystems and natural communities possess the right to exist and flourish within the Village.”); Toledo, Ohio, Mun. Code ch. XVII, § 254(a) (2019) (establishing the rights of Lake Erie Ecosystem “to exist, flourish, and naturally evolve”), invalidated by Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020). ↑
Some local ordinances grant rights to nature. See, e.g., Licking Township, Pa., Ordinance Protecting the Right of the Community to Natural Water Sources Within Licking Township § 3.5 (2010); Packer Township, Pa., Ordinance to Protect the Health, Safety, and General Welfare of the Citizens and Environment of Packer Township § 7.2 (2008); Mahanoy Township, Pa., Ordinance 2008-2, § 7.14 (Feb. 21, 2008). Some grant legal standing to residents to enforce rights on behalf of natural communities and ecosystems. See, e.g., Pittsburgh, Pa., Code § 618.03(b) (2010); Forest Hills, Pa., Ordinance No. 1017, § 3(b) (Oct. 19, 2011); West Homestead, Pa., Ordinance No. 659, § 3(b) (May 10, 2011). Other ordinances establish that natural communities shall be considered to be “persons.” See Tamaqua Borough, Pa., Ordinance No. 612, § 7.6 (Sept. 19, 2006). ↑
Halifax, Va., Code art. VII, § 30-156.7 (Feb. 7, 2008) (granting inalienable and fundamental rights to nature to exist and flourish). ↑
Newfield, N.J., Town of Newfield Water Ordinance § 5.1 (Feb. 10, 2009) (proposing an ordinance to grant natural communities and ecosystems inalienable and fundamental rights to exist and flourish). ↑
Nottingham, N.H., Nottingham Water Rights & Self Government Ordinance § 5.1 (Mar. 15, 2008). ↑
Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, §§ 14–15 (N.Z.). ↑
Id. § 69. ↑
See id. §§ 18–20 (explaining the function of this office is to “act and speak for and on behalf of [the Whanganui River],” to “promote and protect [its] health and well-being,” to perform “landowner functions” with respect to the “land vested in [it],” to administer the commission charged with deciding application for fishing and catchment activities, and to administer a related fund). The Te Pou Tupua is comprised by appointing one member of the Maori Tribe and one member of the government. ↑
Ngā Iwi o Taranaki and the Crown: Record of Understanding for Mount Taranaki, Pouākai and the Kaitake Ranges 2017, § 5 (N.Z.). ↑
Writ Petition (PIL) No. 126 of 2014 ¶ 19, Salim v. Uttarakhand (2017) (India). ↑
Writ Petition (PIL) No. 140 of 2015 ¶ 2, Miglani v. Uttarakhand (2017) (India). ↑
Members of India’s environmental community have reacted with skepticism towards the court’s innovation. See, e.g., Omair Ahmad, Indian Court Awards Legal Rights of a Person to Entire Ecosystem, Climate Home News (Apr. 3, 2017), http://www.climatechangenews.com/‌2017/04/03/indian-court-awards-legal-rights-person-nature/ [https://perma.cc/9QXM-5J3R]; Indian Court Grants Himalayan Glaciers Status of ‘Living Entities,’ Dawn (Apr. 1, 2017), https://www.dawn.com/news/1324199/indian-court-grants-himalayan-glaciers-status-of-living-entities [https://perma.cc/M969-CLTL]. The Supreme Court of India ultimately ruled that the Ganges and Yamuna Rivers cannot be viewed as living entities. See India’s Ganges and Yamuna Rivers Are ‘Not Living Entities,’ BBC News (July 7, 2017), https://www.bbc.com/news/world-asia-india-40537701 [https://perma.cc/88ZV-JSL5]. ↑
Writ Petition (PIL) No. 43 of 2014 ¶ 98, Bhatt v. India (2018) (India). ↑
Sebastian Bechtel, Legal Rights of Rivers—An International Trend?, Client Earth (Mar. 13, 2019), https://www.clientearth.org/legal-rights-of-rivers-an-international-trend/ [https://perma.cc/J4UW-9CVJ]; U.N. Secretary-General, Harmony with Nature, ¶ 23, U.N. Doc. A/74/236 (July 26, 2019). ↑
Corte Constitucional [C.C.] [Constitutional Court], noviembre 10, 2016, M.P: Jorge Iván Palacio Palacio, Sentencia T-622/16 (Colom.). The judge who wrote the majority opinion in this case noted the influence of the prior decisions in India on his reasoning: “[He] said that in an event that the Court organized in October 2016, he listened attentively to the speech given by a judge from India, who explained that ‘our brothers the trees and our sisters the flowers’ should be subject to rights.” He went on to say: “Thus, when the case came to the Court, I knew what I had to do: Nature has a right not be polluted, a right not to be destroyed, and a right to be rationally used.” See Jorge Iván Palacio: El Centinela del Río Atrato, El Espectador (Dec. 3, 2017), https://www.elespectador.com/noticias/judicial/jorge-ivan-palacio-el-centinela-del-rio-atrato-articulo-726304 [https://perma.cc/EXP3-K7U2] (translation by the author). ↑
Sentencia T-622/16, ¶ 5.3, 5.4, 9.22 (Colom.). ↑
Ana Lucía Maya-Aguirre, Implementing Environmental Constitutionalism in Colombia: Tensions Between Public Policy and Decisions of the Constitutional Court, in Implementing Environmental Constitutionalism: Current Global Challenges 143, 157 (Erin Daly & James R. May eds., 2018). ↑
Sentencia T-622/16, ¶ 9.32 (Colom.). ↑
Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Lab. abril 5, 2018, M.P: Luis Armando Tolosa Villabona, STC4360-2018, 48 (Colom.). ↑
Jurisdicción Especial Para La Paz [Special Jurisdiction for Peace], Sala. Reconocimiento. noviembre 12, 2019, M: Belkis Florentina Izquierdo Torres & Ana Manuela Ochoa Arias, Caso No. 02 de 2018, 30 (Colom.). ↑
Redacción Nacional, Río Quindío, Otro Cuerpo Fluvial que Es Sujeto de Derechos [Quindío River, Another River Body that Is Subject to Rights], El Nuevo Siglo (Dec. 8, 2019), https://www.elnuevosiglo.com.co/articulos/12-2019-rio-quindio-otro-cuerpo-fluvial-que-es-sujeto-de-derechos [https://perma.cc/B9XQ-QC3Z]. ↑
Juzgados Primero Penal del Circuito con Funciones de Conocimiento de Neiva-Huila [Juzg. Circ.] [First Criminal Court of the Circuit with Functions of Knowledge of Neiva-Huila], octubre 24, 2019, J: Victor Alcides Garzon Barrios, Sentencia de Tutela de Primera Instancia No. 071, 35 (Colom.). ↑
Tribunal Superior de Medellín [T. Sup.], Sala. Civil. junio 17, 2019, M: Juan Carlos Soso Londoño, Sentencia No. 38, Tribunal Superior de Medllín [T.S.M.] 43 (Colom.). ↑
Tribunal Administrativo del Tolima [T. Admtivos] [Administrative Superior Court], Sala. Civil. mayo 30, 2019, M.P: José Andrés Rojas Villa, Sentencia 73001-23-00-000-2011-00611-00, 149 (Colom.). ↑
Juzgado Único Civil Municipal la Plata—Huila [Juz. Mun.] [Municipal Civil Court], marzo 19, 2019, J: Juan Carlos Clavijo González, 41-396-40-03-001-2019-00114-00 (Colom.). ↑
Tribunal Administrativo del Boyocá [T. Admtivos] [Administrative Superior Court], Sala. de Decisión agosto 9, 2018, M.P: Clara Elisa Cifuentes Ortiz, Expediente 15238 3333 002 2018 00016 01, 67–68) (Colom.). ↑
Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. de Casación Civil julio 26, 2017, M.P: Luis Armando Tolosa Villabona, AHC4806-2017 (No. l7001-22-13-000-2017-00468-02, p. 34–35) (Colom.). ↑
Medio Ambiente y Derechos Humanos [The Environment and Human Rights], Opinión Consultiva [Advisory Opinion] OC-23/17, Corte Interamericana de Derechos Humanos [Inter-Am. Ct. H.R.] (ser. A) ¶ 62, n.100 (15 de noviembre de 2017); see also Nicolás Carrillo-Santarelli, The Politics Behind the Latest Advisory Opinions of the Inter-American Court of Human Rights, Int’l J. Const. L. Blog, Feb. 24, 2018, http://www.iconnectblog.com‌/2018/02/the-politics-behind-the-latest-advisory-opinions-of-the-inter-american-court-of-human-rights/ [https://perma.cc/X9MY-A74Z] (remarking on the political aspects of several advisory opinions published by the Inter-American Court of Human Rights, including OC-23/17). ↑
Medio Ambiente y Derechos Humanos [The Environment and Human Rights], Opinión Consultiva [Advisory Opinion] OC-23/17, Corte Interamericana de Derechos Humanos [Inter-Am. Ct. H.R.] (ser. A), ¶ 62 (15 de noviembre de 2017) (emphasis added) (translation by the author). ↑
The Community Environmental Legal Defense Fund describes itself as “building a movement for . . . the Rights of Nature to advance democratic, economic, social, and environmental rights—building upward from the grassroots to the state, federal, and international level.” Community Environmental Legal Defense Fund, CELDF Statement on Orange County, FL ‘Rights of Nature’ Law (Nov. 4, 2020), https://celdf.org/2020/11/celdf-statement-on-orange-county-fl-rights-of-nature-law/ [https://perma.cc/423D-HJSV]. The Earth Law Center states that it “seek[s] legal rights for ecosystems and species” throughout the world. Earth Law Center, Community Toolkit for Rights of Nature 22, https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/5c8abd994192021c8d560fcb/1552596381584/Community+Toolkit+for+Rights+of+Nature.pdf [https://perma.cc/W7NM-L5RW]. ↑
Maria Akchurin, Constructing the Rights of Nature: Constitutional Reform, Mobilization, and Environmental Protection in Ecuador, 40 Law & Soc. Inquiry 937, 952 (2015). ↑
See U.N. Secretary-General, Harmony with Nature: Note by the Secretary-General, ¶ 5, U.N. Doc. A/71/266 (Aug. 1, 2016); U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 4, U.N. Doc. A/70/268 (Aug. 4, 2015). ↑
U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 4, U.N. Doc. A/69/322 (Aug. 18, 2014). ↑
U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 41, U.N. Doc. A/72/175 (July 19, 2017). ↑
See generally Out of the Mainstream: Water Rights, Politics and Identity (Rutgerd Boelens, David Getches & Armando Guevara-Gil eds., 2010) (explaining the impact of indigenous movements on Latin American water management). ↑
Bryant Rousseau, In New Zealand, Lands and Rivers Can Be People (Legally Speaking), N.Y. Times (July 13, 2016), https://www.nytimes.com/2016/07/14/world/what-in-the-world/in-new-zealand-lands-and-rivers-can-be-people-legally-speaking.html [https://perma.cc/C28W-N7R3]. ↑
John Vidal, Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth, Guardian (Apr. 10, 2011), https://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights [https://perma.cc/6KRA-ZG6Z]; Craig M. Kauffman & Pamela L. Martin, Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand, 18 Glob. Env’t Pol. 43, 55 (2018). ↑
See David R. Boyd, Recognizing the Rights of Nature: Lofty Rhetoric or Legal Revolution?, 32 Nat. Res. & Env’t 13, 17 (2018). See generally Boyd, supra note 4 (offering a defense of nature’s rights for a broader audience). ↑
See, e.g., Jan G. Laitos, How Science Has Influenced, but Should Now Determine, Environmental Policy, 43 Wm. & Mary Env’t L. & Pol’y Rev. 759, 788 (2019); Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Env’t L.J. 1, 41–42 (2017); Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Christina Voigt ed., 2013) (collecting essays exploring broad environmental rights). The origin of the notion of nature’s rights can be found in the legal academic literature in Professor Christopher D. Stone’s famous essay, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450, 456 (1972); Cormac Cullinan, Wild Law 157–59 (2d ed. 2011) (advocating radical restructuring of law and governance to account for natural systems). See generally Susan Emmenegger & Axel Tschentscher, Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law, 6 Geo. Int’l Env’t L. Rev. 545, 573 (1994) (“Acknowledging nature’s rights would make the respective natural entity a subject whereas it is merely an object of human considerations in the context of duties towards nature.”). ↑
See, e.g., Carolina Valladares & Rutgerd Boelens, Mining for Mother Earth: Governmentalities, Sacred Waters and Nature’s Rights in Ecuador, 100 Geoforum 68, 68–69 (2019) (discussing the relationship between nature’s rights and mining); Eden Kinkaid, “Rights of Nature” in Translation: Assemblage Geographies, Boundary Objects, and Translocal Social Movements, 44 Transactions Inst. Brit. Geographers 555 (2019) (considering rights of nature as “a boundary object connecting translocal assemblages of environmental governance through acts of translation”); Florent Kohler, Timothy G. Holland, Janne Sakari Kotiaho, Maylis Desrousseaux & Matthew D. Potts, Embracing Diverse Worldviews to Share Planet Earth, 33 Conservation Biology 1014, 1014–16 (2019) (arguing for nature’s rights to preserve nature); Kelly D. Alley, River Goddesses, Personhood and Rights of Nature: Implications for Spiritual Ecology, 10 Religions 502 (2019) (examining rights for nature through a religious lens); Mariana Chilton & Sonya Jones, The Rights of Nature and the Future of Public Health, 110 Am. J. Pub. Health 459 (2020) (advocating for rights of nature to mitigate environmental impacts and discrepancies on public health); Guillaume Chapron, Yaffa Epstein & José Vicente López-Bao, A Rights Revolution for Nature, 363 Science 1392 (2019). ↑
Intersecting topics include literatures on rights, rights conflicts, incommensurability, group rights, and animal welfare. ↑
Cf. Richard Schragger & Micah Schwartzman, Some Realism about Corporate Rights 345, 347, in The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders & Zoë Robinson eds., 2016) (arguing that there is no need to settle disputes concerning ontological status of corporations to reason about group rights). For purposes of this Article, we proceed under Schragger and Schwartzman’s view that ontological claims about entities need not be settled to engage in pragmatic reasoning about legal rights. ↑
See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948). ↑
Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics 119–29 (1986). ↑
See supra Part I. ↑
See Akchurin, supra note 81. ↑
Stone, supra note 89, at 456. ↑
Cf. Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents 182 (2011) (citations omitted) (adopting “‘normative individualism’ . . . : the view that something [including extending legal rights to groups] is good only if it is good for individual human[s] or, more generally, sentient beings”). ↑
Stone, supra note 89, at 456 n.26. ↑
See generally Justin Farrell, The Battle for Yellowstone: Morality and the Sacred Roots of Environmental Conflict (2015) (examining a host of different sources of conflict over the management of a complex ecosystem with a large number of interested stakeholders). ↑
See generally Tom Campbell, Rights: A Critical Introduction (2006) (summarizing various theories of rights and their relation to legal rights); see also Leif Wenar, Rights, The Stan. Encyc. of Phil. (Edward N. Zalta ed., 2015), https://plato.stanford.edu/archives/‌fall2015/‌entries/rights/ [https://perma.cc/5TME-FMZQ] (describing the nature of rights, categorizing rights according to shared attributes, and exploring sub-categories of moral and legal rights). ↑
See Waldron, supra note 7, at 508. Lexical priority means that certain claims must be satisfied altogether before other claims. See, e.g., John Rawls, Justice as Fairness: Political Not Metaphysical, 14 Phil. & Pub. Affs. 223, 227–28 (1985) (stating two principles of justice where “the first is given priority over the second”). ↑
See Robert Nozick, Anarchy, State, and Utopia 29 (1974). ↑
Ronald Dworkin, Taking Rights Seriously 6 (1977). ↑
For a discussion of rights discourse in the United States, see, e.g., Richard A. Primus, The American Language of Rights (1999); Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (1999); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991). For a critique of the discourse of rights at a global level, see Eric A. Posner, The Twilight of Human Rights Law (2014). ↑
For general critiques of rights reasoning in the context of human rights, see Alasdair MacIntyre, After Virtue 6–21 (2d ed. 1984). ↑
See generally Waldron, supra note 7 (exploring the moral difficulties that occur when rights conflict with one another). ↑
See generally Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson eds., 2008) (discussing conflicting liberties in the context of same-sex marriage and religious freedom). See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1753–54 (2020) (“[T]he employers fear that complying with Title VII’s requirement [not to engage in employment discrimination against homosexual or transgender people] . . . may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”). ↑
For additional examples of policy choices that present conflicts within the domain of nature, see Jamieson, supra note 17, at 168–80. ↑
77 Fed. Reg. 9303 (Feb. 16, 2012). ↑
EPA, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (2011). ↑
Id. ↑
Id. ↑
Timothy P. Robinson et al., Mapping the Global Distribution of Livestock, PLOS One, May 29, 2014, at 1, https://journals.plos.org/plosone/article?id=10.1371/journal.pone.‌0096084#‌pone-0096084-g002 [https://perma.cc/EN4R-2GPX]. ↑
See generally Jared Prunty & Kevin J. Apple, Painfully Aware: The Effects of Dissonance on Attitudes Toward Factory Farming, 26 Anthrozoös 265 (2013) (discussing conflicting public attitudes concerning animal welfare and commercial farming practices); Ruth Harrison, Animal Machines: The New Factory Farming Industry (1964) (providing moral arguments). ↑
It has sometimes been argued that the profit motive is adequate to provide for animal welfare, because “farm animals which receive better care will be more productive.” See Jayson L. Lusk & F. Bailey Norwood, Animal Welfare Economics, 33 Applied Econ. Persps. & Pol’y 463, 464 (2011) (explaining but not adopting this view). Indeed, a purely profit-motivated firm will invest some resources into animal welfare and will not engage in gratuitously inhuman treatment. But, as long as there are increasing returns to animal welfare from further investments beyond what is profit maximizing—a highly likely situation—then profitability and protections for animal well-being will part ways. See id. ↑
National Pollutant Discharge Elimination System, 79 Fed. Reg. 48,300 (Aug. 15, 2014). ↑
Id. at 48,318–21. ↑
EPA, Benefits Analysis for the Final Section 316(b) Existing Facilities Rule (May 2014), https://www.epa.gov/sites/production/files/2015-05/documents/cooling-water_phase-4_benefits_2014.pdf [https://perma.cc/9JK9-66H3]. ↑
Joe Ryan, NRG’s Massive California Solar Plant Finally Making Enough Power, Bloomberg (Feb. 2, 2017), https://www.bloomberg.com/news/articles/2017-02-01/nrg-s-massive-california-solar-plant-finally-making-enough-power [https://perma.cc/URX3-5ABV]; Cal. Energy Comm’n, California Solar Energy Statistics and Data, https://ww2.energy.ca.gov/almanac/renewables_data/solar/index_cms.php [https://perma.cc/N7N5-HCWG]. ↑
Avoided emissions calculations are tricky. The values here are a back-of-the-envelope calculation using the following information: Avoided Emissions Calculator, https://www.irena.org/climatechange/Avoided-Emissions-Calculator [https://perma.cc/23W4-MJB6]. To arrive at our estimate, we set the country entry to “United States of America,” the technology entry to “concentrated solar power,” and the year entry to “2016.” Using these inputs, IRENA reports that 3,701 GWh were generated in 2016 by concentrated solar power. According to the above estimates, Ivanpah generated about 3,500 GWh between 2014 and 2020. IRENA reports that the United States avoided an estimated 2.832 million tons of carbon dioxide when producing this much energy using concentrated solar power. In order to account for any confounding variables, we cut this figure in half and rounded down to provide a conservative, lower-bound estimate of avoided emissions. ↑
See, e.g., Manish Ram et al., LUT University Energy Watch Group, Global Energy System Based on 100% Renewable Energy—Power, Heat, Transport and Desalination Sectors 16 (Mar. 2019) (offering a policy scenario in which installed solar electricity generating capacity is nearly ten times greater by 2050 than current (2015) installed capacity from all energy sources). ↑
Bureau of Land Mgmt., California Desert Conservation Area Plan Amendment/Final Environmental Impact Statement for Ivanpah Solar Electric Generating System 1–23 (2010). ↑
Louis Sahagun, This Mojave Desert Solar Plant Kills 6,000 Birds a Year. Here’s Why That Won’t Change Any Time Soon, L.A. Times (Sept. 2, 2016), https://www.latimes.com/local/california/la-me-solar-bird-deaths-20160831-snap-story.html [https://perma.cc/A8NA-JZLH]. ↑
See Hillel Steiner, The Structure of a Set of Compossible Rights, 74 J. Phil. 767, 768 (1977). ↑
Keith Dowding & Martin Van Hees, The Construction of Rights, 97 Am. Pol. Sci. Rev. 281, 292 (2003) (Steiner’s account leaves a set of rights that “are nonexistent or vanishingly small”). ↑
See Alan Gewirth, Are There Any Absolute Rights?, 31 Phil. Q. 1, 3 (1981). ↑
John Oberdiek, Specifying Rights Out of Necessity, 28 Oxford J.L. Stud. 127, 128 (2008) (arguing rights carry limiting specifications); Russ Shafer-Landau, Specifying Absolute Rights, 37 Ariz. L. Rev. 209 (1995) (analyzing arguments about specifications on rights). ↑
See Waldron, supra note 7, at 516–19. ↑
In the context of constitutional adjudication, courts (especially outside the United States) often make recourse to the notion of “proportionality” in cases of rights conflict. See Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094, 3096, 3110–21 (2015). Jackson argues that the concept of “‘proportionality as such’ . . . differs from ‘balancing’ tests that tend to focus primarily on quantification of net social good” because it is part of a “structured, sequenced . . . analysis” that “as a whole, prioritizes the right.” Id. at 3099–100. This might be thought of as a mix of a pure balancing approach with one that involves some prioritization mechanism. ↑
See generally Matthew D. Adler, Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis 158–70 (2012) (examining “the range of accounts of well-being proposed within the philosophical literature”). ↑
See generally EPA, supra note 10 (describing EPA’s approach to evaluating environmental policy using cost-benefit analysis). ↑
Chapron, Epstein & López-Bao, supra note 90, at 1392. ↑
Id. ↑
This move is correctly controversial. For example, it may be that it is easier to make such comparisons under a consequentialist view, which evaluates choices based on their outcomes. But some may object to consequentialism, either generally or in the context of nature’s rights—for example, because it fails to take seriously the obligations of individuals to act (or not act) in particular ways, which is distinct from the obligation to bring about (or not) certain outcomes. See generally F.M. Kamm, Non-Consequentialism, the Person as an End-in-Itself, and the Significance of Status, 21 Phil. & Pub. Affs. 354, 358–59 (1992) (“I believe that options [to not maximize overall best consequences] are justified by the view that persons are not mere means to the end of the best state of affairs, but ends-in-themselves, having a point even if they do not serve the best consequences.”). We put these critiques to one side, under the stipulation that welfare economic tools (or others that are associated with consequentialism) could be applied to reasoning concerning nature’s rights if they facilitate comparison between policy options with complex effects on the world. If this assumption does not hold, then nature’s rights face a range of additional difficulties. ↑
For the classic formulation of the problem, see Lionel Robbins, An Essay on the Nature and Significance of Economic Science 139–40 (2d ed. 1935) (arguing that interpersonal utility comparisons are outside the boundaries of economic science altogether). See generally Ken Binmore, Interpersonal Comparison of Utility, in Oxford Handbook of Philosophy of Economics 540, 547–50 (Don Ross & Harold Kincaid eds., 2009) (providing overview); Marc Fleurbaey & Peter J. Hammond, Interpersonally Comparable Utility, in 2 Handbook of Utility Theory 1179, 1181 (Salvador Barberà, Peter J. Hammond & Christian Seidl eds., 2004) (same); Interpersonal Comparisons of Well-Being (Jon Elster & John E. Roemer eds., 1991) (collecting essays exploring various perspectives). ↑
See generally The Oxford Handbook of Well-Being and Public Policy (Matthew D. Adler & Marc Fleurbaey eds., 2016) (collecting diverse views). ↑
Binmore, supra note 136, at 541. ↑
See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 48 Econ. J. 635, 637–38 (1938). ↑
John Rawls, A Theory of Justice 26–27 (rev. ed. 1999). ↑
Id. at 11. ↑
See id. at 13. John Harsanyi argues that Rawls places too much emphasis on worst-case scenarios. See John C. Harsanyi, Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’s Theory, 69 Am. Pol. Sci. Rev. 594, 595–97 (1975). ↑
EPA, Guidelines for Preparing Economic Analyses A-3 (2010). ↑
The classic papers setting out the Kaldor-Hicks framework are: John R. Hicks, The Foundations of Welfare Economics, 49 Econ. J. 696 (1939) and Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 Econ. J. 549 (1939). ↑
See Matthew D. Adler & Eric A. Posner, New Foundations for Cost-Benefit Analysis 10–12 (2006) For an examination of the theoretical justification of using cost-benefit analysis as a policy tool, see generally id. ↑
See generally Tibor Scitovsky, A Note on Welfare Propositions in Economics, in Readings in Welfare Economics 390, 400–01 (Kenneth J. Arrow & Tibor Scitovsky eds., 1969) (introducing problem of preference cycles). ↑
See Adler, supra note 131, at 187–92; John C. Harsanyi, Cardinal Welfare, Individualistic Ethics, and Interpersonal Comparisons of Utility, 63 J. Pol. Econ. 309, 316–21 (1955) (offering account of how interpersonal comparisons can be made). ↑
See Daniel Kahneman, Objective Happiness, in Well-Being: The Foundations of Hedonic Psychology (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 1999). Cf. Paul W. Glimcher, Foundations of Neuroeconomic Analysis (2011) (developing notion of cardinal utility based on observable neurological information). ↑
Adler, supra note 131, at 185–92. ↑
Matthew D. Adler, Extended Preferences, in The Oxford Handbook of Well-Being and Public Policy, supra note 137, at 476, 476. ↑
See Hilary Greaves & Harvey Lederman, Extended Preferences and Interpersonal Comparisons of Well-Being, 96 Phil. & Phenomenological Res. 636, 645 (2018). ↑
EPA supra note 10, at 7-7 to 7-10. ↑
See generally Robert Costanza et al., The Value of the World’s Ecosystem Services and Natural Capital, 387 Nature 253 (1997) (estimating economic value of several ecosystem services, including pollination and nutrient cycling). ↑
Singer, supra note 8. ↑
See Taylor, supra note 94, at 122, 125, 128–29. See generally Nicholas Agar, Biocentrism and the Concept of Life, 108 Ethics 147 (1997) (developing a “continuum” of organisms from humans to “simple living things” that clarifies the degree of moral consideration that ought to be afforded). ↑
Compare J. Baird Callicott, In Defense of the Land Ethic: Essays in Environmental Philosophy (1989) (defending moral consideration of aggregates), with Tom Regan, The Case for Animal Rights 362 (1983) (criticizing as “[e]nvironmental fascism” views that suggest that the interests of individuals be subordinated to those of aggregates). ↑
See, e.g., Paul W. Taylor, The Ethics of Respect for Nature, 3 Env’t Ethics 197, 218 (1981) (“If we accept the biocentric outlook and accordingly adopt the attitude of respect for nature as our ultimate moral attitude, how do we resolve conflicts that arise from our respect for persons in the domain of human ethics and our respect for nature in the domain of environmental ethics? This is a question that cannot adequately be dealt with here.”). ↑
For a useful introduction to the field, see Daniel M. Hausman & Michael S. McPherson, Economic Analysis, Moral Philosophy, and Public Policy (2d ed. 2006). ↑
Making comparisons does not require the stronger relationship of commensurability. For a general discussion of the issue of commensuration in the context of legal decision making (including the adjudication of rights), see a useful symposium issue of the University of Pennsylvania Law Review. Symposium, Law and Incommensurability, 146 U. Pa. L. Rev. 1169 (1998). ↑
The word “individual” derives from the Latin indīviduus, meaning indivisible. See Individual, Oxford English Dictionary (3d ed. 2014). We set aside concerns about personal identity, although there is a vibrant philosophical literature on these questions. See, e.g., Eric T. Olson, The Human Animal: Personal Identity Without Psychology (1999); Marya Schechtman, The Constitution of Selves (1996); Derek Parfit, Reasons and Persons (reprt. 1987); see also Eric T. Olson, Personal Identity, Stan. Encyclopedia Phil. (last updated Sept. 6, 2019), https://plato.stanford.edu/entries/identity-personal/ [https://perma.cc/AVF6-G9M9]. ↑
Examples include the U.S. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087. ↑
Susan Milius, The Fuzzy Art of Defining Species, Science News, Nov. 11, 2017, at 22–24; see also Michael Ruse, Biological Species: Natural Kinds, Individuals, or What?, 38 Brit. J. Phil. Sci. 225, 226–27 (1987) (listing four biological concepts of “species”). ↑
See Frank E. Zachos, Species Concepts in Biology 77–96 (2016) (providing an annotated list of thirty-two definitions). ↑
See, e.g., Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 842 (9th Cir. 2003). ↑
For example, the Supreme Court has had an extraordinarily difficult time articulating coherent boundaries around what constitutes the “waters of the United States” for purposes of jurisdiction under the Clean Water Act. See, e.g., Rapanos v. United States, 547 U.S. 715 (2006). ↑
William Miller III, The Hierarchical Structure of Ecosystems: Connections to Evolution, 1 Evolution: Educ. & Outreach 16, 16 (2007). ↑
See Andreas Wilting et al., Planning Tiger Recovery: Understanding Intraspecific Variation for Effective Conservation, 1 Sci. Advances, June 26, 2015, at 1, DOI, 10.1126/sciadv.1400175. ↑
U.S. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44. ↑
Id. § 1536. ↑
Put aside the fact that there are no wild orangutans or tigers in the United States. ↑
Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4722 (Feb. 7, 1996) (“Any interpretation adopted should also be aimed at carrying out the purposes of the Act . . . .”). ↑
Id. at 4723. ↑
Id. ↑
Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 59–71 (2001); Amartya Sen, Commodities and Capabilities (Oxford India Paperbacks 1999) (1987). ↑
Callicott argues that the distinction between individuals and collectives is an illusion because “‘individual organisms’ (including human organisms) are . . . ecological collectives.” J. Baird Callicott, How Ecological Collectives Are Morally Considerable, in The Oxford Handbook of Environmental Ethics 113, 113–14 (Stephen M. Gardiner & Allen Thompson eds., 2017). It is true that, as a biological matter, a person is made up of many trillions of human cells in addition to trillions of microorganisms—e.g., bacteria, viruses, protozoa, and fungi—representing hundreds of species. See Peter J. Turnbaugh et al., The Human Microbiome Project, 449 Nature 804, 804–06 (2007) (describing the microbiome and what is known about it). However, although human beings are collectives of a sort, we take it as uncontroversial that the interests of the sub-units can be safely ignored—it would be absurd to grant standing to a person’s gut biota to sue her small intestine over a conflict of resources. It is, perhaps, worth considering why some biological collectives (e.g., individual organisms) have this type of unity that others (e.g., species and ecosystems) lack. Consciousness and subjective experience provide one possible explanation. Indeed, one of the leading theories concerning the neurological basis of consciousness argues that its most basic function is the integration of information that is diffused across the organism. Giulio Tononi, Melanie Boly, Marcello Massimini & Christof Koch, Integrated Information Theory: From Consciousness to Its Physical Substrate, 17 Nature Revs. Neuroscience 450, 452 (2016) (“[T]he content of an experience (information) is integrated within a unitary consciousness.”). ↑
For a popular account of subjective experience of an octopus, see Peter Godfrey-Smith, Other Minds: The Octopus, the Sea, and the Deep Origins of Consciousness 98–106 (1st ed. 2016). ↑
Thomas Nagel, What Is It Like to Be a Bat?, 83 Phil. Rev. 435, 438–40 (1974). ↑
See Jennifer A. Mather, Cephalopod Consciousness: Behavioural Evidence, 17 Consciousness & Cognition 37, 37 (2008). ↑
Lusk & Norwood, supra note 116, at 479–80. ↑
Cf. List & Pettit, supra note 98, at 182 (discussing moral agency in the context of deliberating between groups of people and denying that aggregates have moral interests independent of individuals). ↑
See Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or., 515 U.S. 687, 708 (1995) (holding that the definition of “harm” under the Endangered Species Act could include habitat loss). ↑
Here, correct prices are simply those that would exist in a perfect market. ↑
See, e.g., Harsanyi, supra note 147; Harsanyi, supra note 142. ↑
Rawls, supra 140, at 11. ↑
Id. ↑
As noted by Carlier and Treich, in the original position literature:[P]eople are asked to imagine that they do not know their gender, ethnic background, economic status, class, abilities or talents; they can be slaves, physically [disabled], mentally [disabled] and so forth, but they usually cannot be animals. Many mental barriers are overcome in this thought experiment, but not that of species.
Carlier & Treich, supra note 8, at 131. ↑
For an account of fairly complex social relationships in the non-human world, see generally Frans de Waal, Chimpanzee Politics: Power and Sex Among Apes (1st U.S. ed. 1982) (studying the social organization of a chimpanzee colony). ↑
Wilfrid Sellars, Empiricism and the Philosophy of Mind 76 (Harv. Univ. Press 1997) (1956) (noting that the “space of reasons” is one “of justifying and being able to justify what one says,” i.e., one that requires quite sophisticated communicative capacities). ↑
Nils Chr. Stenseth, Where Have All the Species Gone? On the Nature of Extinction and the Red Queen Hypothesis, 33 Oikos 196, 196 (1979). ↑
Id. at 197–99, 223. ↑
Id. at 197. ↑
Levi T. Morran, Olivia G. Schmidt, Ian A. Gelarden, Raymond C. Parrish II & Curtis M. Lively, Running with the Red Queen: Host-Parasite Coevolution Selects for Biparental Sex, 333 Science 216, 216 (2011). ↑
We might imagine that transaction costs could create space between an evolutionarily stable equilibrium and the Pareto frontier. ↑
Karen Bradshaw argues that, to a limited degree, non-human animals have been granted some property rights. Karen Bradshaw, Animal Property Rights, 89 Univ. Colo. L. Rev. 809, 823 (2018). But even under a generous interpretation, as a share of the wealth of the world, the portion granted to non-humans is vanishingly small. The question of whether non-humans deserve more is one that sounds in justice and cannot be answered based on the existing state of the law. ↑
Derek Parfit, Equality and Priority, 10 Ratio (n.s.) 202, 213 (1997). ↑
See Rawls, supra note 140, at 13. ↑
See, e.g., Taylor, supra note 157, at 218. ↑
Aldo Leopold, A Sand County Almanac 224–25 (1949). ↑
It is possible that Leopold meant the “biotic community” in local rather than global terms. See id. at 129–32 (understanding ecological effects by “thinking like a mountain”). If so, Leopold’s biotic communities would be akin to other aggregates (such as ecosystems or species) that are discussed above in Part II. For purposes of the discussion that follows, we interpret the biotic community as extending to the global scale. ↑
Individual, Oxford English Dictionary (3d ed. 2014); Charlton T. Lewis & Charles Short, In-dīviduus, A Latin Dictionary (1879), http://www.perseus.tufts.edu/hopper/text?‌doc=‌Per‌seus:‌text:‌1999.04.0060:‌entry=individuus [https://perma.cc/T6KU-XWLE]. ↑
J.E. Lovelock, Gaia as Seen Through the Atmosphere, 6 Atmospheric Env’t 579, 579 (1972); James E. Lovelock & Lynn Margulis, Atmospheric Homeostasis by and for the Biosphere: The Gaia Hypothesis, 26 Tellus 2, 3 (1974). ↑
According to Margulis, Gaia “is not an organism” but “an emergent property of interaction among organisms.” She defined Gaia as “the series of interacting ecosystems that compose a single huge ecosystem at the Earth’s surface. Period.” Lynn Margulis, Symbiotic Planet: A New Look at Evolution 119–20 (1998). ↑
See David Abram, The Spell of the Sensuous: Perception and Language in a More-Than-Human World 302 n.62 (1996) (“Whatever the scientific fate of the Gaia hypothesis, . . . [it] ultimately encourages us to speak of the encompassing earth in the manner of our oral ancestors, as an animate, living presence.”). ↑
See Rosaleen Howard-Malverde, “Pachamama Is a Spanish Word”: Linguistic Tension Between Aymara, Quechua, and Spanish in Northern Potosí (Bolivia), 37 Anthropological Linguistics 141, 141–43 (1995). ↑
See, e.g., Dennis McKerlie, Egalitarianism and the Separateness of Persons, 18 Can. J. Phil. 205, 205, 207–08 (1988). ↑
It bears noting that even if the interests of persons are not treated separately, diminishing marginal utility of consumption would justify some level of redistribution in an unequal society. ↑
See, e.g., Adler, supra note 131, at 314–21. ↑
Sarah F. Brosnan & Frans B.M. de Waal, Monkeys Reject Unequal Pay, 425 Nature 297, 297 (2003). ↑
See generally Edward O. Wilson, Sociobiology: The New Synthesis 106–29 (1975) (exploring the biological origins of altruism). ↑
See Brosnan & de Waal, supra note 208, at 297. ↑
The influence of modern humans is particularly strong compared to other species, although that influence emerged gradually over time. If humans are understood as distinct from the biotic community due to this influence, it would raise the question of when, after Homo sapiens became a distinct species, its influence was sufficiently grave that it broke off from the biotic community as a whole. ↑
Many environmental ethicists reject the notion that humans are separate from nature in any fundamental sense. See generally Uncommon Ground: Rethinking the Human Place in Nature (William Cronon ed., 1995) (collection of essays exploring consequences of human-nature connection for environmental law and ethics). Of course, there is a long philosophical tradition that does separate humans from the rest of nature, based on characteristics such as the capacity for reason. Immanuel Kant, Groundwork of the Metaphysics of Morals 37 (Mary Gregor ed. & trans., Cambridge Univ. Press 1998) (1785) (distinguishing between “persons”—rational beings who are ends in themselves—and “things”—non-rational beings that have worth only as means). For a recent example, see George Kateb, Human Dignity (2011) (arguing that humans have a special responsibility of stewardship that other species do not). But such accounts are very much at odds with the one-entity approach, with its holistic emphasis on interdependence and the embeddedness of humans within broader natural systems. ↑
See generally Jedediah Purdy, After Nature: A Politics for the Anthropocene (2015) (exploring implications of pervasive human influence over the environment). ↑
Yinon M. Bar-On, Rob Phillips & Ron Milo, The Biomass Distribution on Earth, 115 Proc. Nat’l Acad. Sci. 6506, 6507–08 (2018). ↑
Elizabeth Pennisi, Plants Outweigh All Other Life on Earth, Sci. Mag. (May 21, 2018), https://www.sciencemag.org/news/2018/05/plants-outweigh-all-other-life-earth [https://perma.cc/S7VD-32J5]. ↑
See Z.A. Wendling et al., 2020 Environmental Performance Index 1 (2020), https://epi.yale.edu/downloads/epi2020report20210112.pdf [https://perma.cc/Y54P-8PZX]. ↑
Id. ↑
Id. ↑
Id. ↑
The EPI data is available at EPI Downloads, EPI2020 Results, https://epi.yale.edu/downloads [https://perma.cc/9YVK-7YM3]. ↑
A principal components analysis of the issue category variables indicates that, although the first component accounts for nearly half the total variance, seven components are needed to account for ninety percent. ↑
Even if there were a single overarching dimension of environmental performance, that would not be the end of the inquiry—the moral basis for using the index to limit human activities would need to be defended. ↑
See Dworkin, supra note 104, at xi. ↑
See generally Michael A. Livermore & Richard L. Revesz, Rethinking Health-Based Environmental Standards, 89 N.Y.U. L. Rev. 1184, 1186–90 (2014) (discussing the “stopping point problem” in the context of air quality regulation). Balancing would require that an interest be defined such that it could be compared to the costs of refraining from the activity. ↑
See generally Esperanza Martinez, Prólogo, in La Naturaleza Con Derechos: De la Filosofía a la Política 7, 13–20 (Alberto Acosta & Esperanza Martínez eds., 2010) (arguing for the transformational potential of nature’s rights). But see Mary Elizabeth Whittemore, The Problem of Enforcing Nature’s Rights Under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite, 20 Pacific Rim L. & Pol’y J. 659, 661 (arguing that, “all things considered, successful execution of the environment provisions is unlikely in Ecuador’s legal and political environment”). ↑
Fundación Pachamama, Reconocimiento de los Derechos de la Naturaleza en la Constitución Ecuatoriana 12 (2010). ↑
Whittemore, supra note 225, at 661. ↑
As Patricia Siemen from the Center for Earth Jurisprudence warned, without political support, environmental rights “won’t be enforced.” Brandon Keim, Nature to Get Legal Rights in Bolivia, Wired (Apr. 18, 2011), https://www.wired.com/2011/04/gulf-natural-rights/ [https://perma.cc/XK4N-FL6E]. ↑
Akchurin, supra note 81, at 956. ↑
Craig M. Kauffman & Pamela L. Martin, Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail, 92 World Dev. 130, 131 (2017). ↑
Id. at 134; Craig M. Kauffman, Rights of Nature Lawsuits in Ecuador, Env’t Pol. & Env’t Pol’y, https://blogs.uoregon.edu/craigkauffman/rights-of-nature-lawsuits-in-ecuador/ [https://‌perma.cc/H6YC-ZDRW]. ↑
Kauffman & Martin, supra note 230, at 135–36. ↑
Id. at 134–35. ↑
Id. at 135. ↑
Id. ↑
Id. at 136–37. ↑
Id. at 137. ↑
Id. ↑
The conceptual problems outlined in Parts II and III would make it difficult, or impossible, to say whether nature’s rights have been appropriately vindicated in any given case. Nevertheless, we can evaluate judicial decisions involving nature’s rights on more general grounds. These include whether nature’s rights cases tend toward outcomes that the proponents of nature’s rights favor, whether decisions involving nature’s rights claims are predictable, and whether the reasons given by courts in nature’s rights cases are non-arbitrary and relate in a reasonable way to case outcomes. ↑
Corte Constitucional del Ecuador [Consitutional Court of Ecuador], Apr. 27, 2016, Sentencia No. 034-16-SIN-CC 1. ↑
Id. at 6. ↑
Id. at 14. ↑
Id. ↑
The court began by claiming that the constitutional change represented a “rupture with the traditional paradigm of considering nature a simple object.” Under this “new paradigm . . . nature is an independent subject of constitutional rights.” The court went on to state that “the Constitution breaks with an anthropocentric worldview, according to which humans are the center and end of all things, to a biocentrism one that recognizes that nature does not need humans but humans need nature.” La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador] 27 Apr., 2016, Sentencia No. 034-16-SIN-CC 13 (translation by the author). ↑
Corte Constitucional del Ecuador, Sentencia No. 034-16-SIN-CC 16 (translation by the author). ↑
La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador], May 20, 2015, Sentencia No. 166-15-SEP-CC 14. ↑
Id. at 13⁠–14. ↑
Id. at 15–16 (translation by the author). ↑
La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador], Sept. 2, 2015, Sentencia No. 293-15-SEP-CC 2–3. ↑
Id. at 13. ↑
Id. ↑
See generally Frederick Schauer, The Force of Law 5 (2015) (arguing for the particular role of sanctions in understanding the distinctive nature of law); Richard A. Posner, Economic Analysis of Law 183–84 (3d ed. 1986) (focusing on ex-ante incentive effects of law). ↑
Rebecca Stone, Legal Design for the “Good Man,” 102 Va. L. Rev. 1767, 1806 (2016). ↑
See, e.g., Richard H. McAdams, The Expressive Powers of Law: Theories and Limits 9 (2017) (offering a general theory on how law affects behavior via effects on beliefs and attitudes). ↑
Robert Cooter, Expressive Law and Economics, 27 J. Legal Stud. 585, 586 (1998). ↑
See, e.g., Laitos, supra note 89, at 759, 797–98 (2019) (describing what amounts to expressive theory of nature’s rights, although not referring to it as such). As discussed above, indigenous communities often provide pivotal political support for efforts to create nature’s rights. See supra Part I. The (potential) instrumental value of nature’s rights, then, could be understood not only in terms of human-nature relationships but also based on whether they have positive effects on the standing or treatment of these communities within their societies. It is certainly possible for nature’s rights campaigns to have strategic value in promoting the broader political goals of indigenous communities. Whether such campaigns are the best use of scarce resources is a pragmatic judgment based on a complex set of political, cultural, social, and behavioral factors. ↑
Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Env’t L.J. 1, 35 (2017). ↑
Linda Sheehan, Implementing Rights of Nature Through Sustainability Bills of Rights, 13 N.Z. J. Pub. & Int’l L. 89, 98 (2015). ↑
Akchurin, supra note 81, at 962. ↑
Stone, supra note 89, at 500–01. ↑
Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363, 1375 (2000). Adler ultimately rejects this type of expressive theory. Id. See also Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2045 (1996) (distinguishing between expressive theories that focus on “norm management” from those that emphasize the “intrinsic” character of some statements). ↑
See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1504 (2000) (“[W]hat makes an action morally right depends on whether it expresses the appropriate valuations of (that is, attitudes toward) persons.”). ↑
Houck, supra note 257, at 35. ↑
See Cope, Creamer & Versteeg, supra note 15, at 155. ↑
See, e.g., Adam S. Chilton & Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J. Legal Stud. 417, 434 (2015) (finding no evidence that constitutional torture prohibitions have reduced rates of torture in a statistically significant or substantively meaningful way). ↑
David S. Law & Mila Versteeg, Sham Constitutions, 101 Calif. L. Rev. 863, 865–67 (2013). ↑
See generally Adam Chilton & Mila Versteeg, How Constitutional Rights Matter (2020) (examining the efficacy of constitutional rights); Chilton & Versteeg, supra note 15, at 577. ↑
Cope, Creamer & Versteeg, supra note 15, at 171; see generally Chilton & Versteeg, supra note 267 (examining in detail the efficacy of these rights). ↑
Cope, Creamer & Versteeg, supra note 15, at 171. ↑
Id. ↑
See generally Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009) (examining role of mobilization in the vindication of international human rights commitments); Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998) (documenting the role of activists, organizations, and democratized access to courts in expanding civil rights and liberties in various jurisdictions). ↑
Cf. Vanberg, supra note 15, at 309 (arguing that procedural constitutional constraints have significant advantages over constitutional norms that attempt to secure broader substantive values); see also May & Daly, supra note 5, at 237 (suggesting that, collectively, such process rights can raise awareness, provide opportunities to participate, foster empowerment, strengthen local communities, facilitate government accountability, increase public acceptance of decisions, and contribute to the legitimacy of governmental action). ↑
See, e.g., Zygmunt J.B. Plater, Dealing with Dumb and Dumber: The Continuing Mission of Citizen Environmentalism, 20 J. Env’t L. & Litig. 9 (2005); Cary Coglianese, Social Movements, Law, and Society: The Institutionalization of the Environmental Movement, 150 U. Pa. L. Rev. 85, 87–88 (2001). ↑
See generally United Nations General Assembly, Report of the Special Rapporteur on the Situation of Human Rights Defenders A/71/281 (2016) (describing the “increasing violence, intimidation, harassment and demonization” of environmental activists). ↑
United Nations Environmental Program, Environmental Rule of Law 116–34 (2019). ↑
Global Witness, Enemies of the State? 7, 23, 30 (2019). ↑
For example, within the United States, there is a long history of environmental organizations using procedural statutes for substantive ends. See generally William W. Buzbee, Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City 5 (2014) (documenting many ways groups used procedural challenges in the course of a year-long environmental campaign). ↑

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

Volume 107 / Issue 7

By Mauricio Guim & Michael A. Livermore

107 Va. L. Rev. 1347

The Chimerical Concept of Original Public Meaning

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward …

By Richard H. Fallon

107 Va. L. Rev. 1421

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people …

By Robert Frey

107 Va. L. Rev. 1499

Where Nature’s Rights Go Wrong

By Mauricio Guim & Michael A. Livermore^*

Article — Volume 107, Issue 7

Where Nature’s Rights Go Wrong

The Chimerical Concept of Original Public Meaning

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions