“The Rights of Nature” and “Should Trees Have Standing?” (Environmental Book Review #1)

There are an enormous number of ideas out there about how to respond to the environmental crises facing the world. This is a personal journey for me, reading every major environmental book I can and reviewing them in order to come to some conclusions about what I think the best ideas are. Writing is a way for me to process my thoughts on these issues and I think if I share I could learn more.

Should Trees Have Standing? Law, Morality, and the Environment

Christopher D. Stone, 3rd ed., Oxford University Press, 2010

The Rights of Nature: A Legal Revolution That Could Save the World

David O. Boyd, ECW Press, 2017

In recent times, different laws passed in different parts of the world have granted legal personality to rivers, mountains, lakes, and the environment as a whole. This has been celebrated in environmentalism and termed “the new animism” by British environmental author Robert McFarlane. As a concept, recognising the rights of non-humans has a long history and is explored in these relatively recent books by Christopher Stone and David Boyd.

For many people, recognizing that animals, plants and natural objects are holders of rights would represent a leap of progress, representing an extension of human notions of morality and a transformation in how we think about ourselves and our relationship with nature. But it would also draw a clear limit for humans, possibly an end point for humans pushing the ways we can exploit resources to create new technological wonders (or alternatively draw a limit on human greed). In this way environmental rights are both progressive and conservative, extending our morality while limiting our own actions. They also progress the legal system while reaching back to more traditional approaches to our relationship with the world around us.

Western legal systems are anthropocentric. At least since the concept of human rights started to expand in the mid-20th century, people and people’s duties to one another have been at the core of law. And although there might be a number of core reasons Western legal systems developed, there is no doubt that property rights have always been front and centre: questions of how people have ownership over nature and resources, and what they can do with it.

Within this perspective, environmental law has been seen as something intruding on people’s rights, particularly their property rights. It limits what people can do with themselves and their property. Environmental laws do acknowledge a countervailing interest, but it is usually that of other people or most often a social cost (to groups of people) that isn’t factored into private arrangements. It almost never recognizes that non-humans might have rights or expectations that are not facilitative of human rights.

Caring about the environment usually involves caring for things for their own sake. I don’t have to be able to actually go and see something to want it protected; nor does it have be able to be used as a resource in a human activity. I just like that it exists, and the knowledge that I have about it is marvelous enough. This can apply as much to blue whales as to the strange ways in which fungi relate to one another in a forest: a fungus might not be pretty or useful to me, but the truly weird way in which it operates may still be something to marvel at that makes it worthy of protection. This, however, prevents a conundrum for the law. Do we recognize this contradiction, that humans value things beyond their obvious value to us, or do we recognize the exact terms on which humans value them?

The core of Stone’s argument that he still holds on to is that giving legal rights to non-humans will reflect the way in which we want to value them: for themselves. Granting them the right is a way of recognizing the value they provide to humans, before this value is even considered in relation to what other interests the non-human’s might collide with.

Stone’s book is made up of 8 essays plus an “epilogue” that functions as an update on his original classic essay, “Should Trees Have Standing?”. The book is mostly made up of much more recent ideas than the 1972 thesis, and it addresses climate change, the oceans, recognizing future generations, and agriculture as environmental issues, as well as more amorphous issues such as “sustainable development” and the question “is environmentalism dead?”, which was apparently a live question about 10 years ago. His fundamental mission is to give practical substance to concepts that might exist as mere slogans or buzzwords. As a result it is really an academic work, and (apart from the occasional flourish) functions less as inspiration so much as a depository of concrete proposals, many of which closely relate to his original idea of granting rights and representation (through appointed guardians) of either non-human animals and plants or to environments as a whole. On the whole his ideas are good, but they do reflect the time he was writing in that it may have felt realistic to propose big international solutions to environmental problems (I’m thinking of his proposals for international guardians of the environmental commons). Right now it feels as though we are both lacking the prior commitment to internationalism in global politics for big new proposals, while at the same time we have a better existing framework for dealing with climate change than we did then, in the form of the Paris Agreement.

By comparison, Boyd’s book is a more enjoyable read, as it is focused on the wider stories of how rights have come to be recognized and the legal advocacy stories that have got them there. It attempts to paint a picture of a steadily expanding global movement for recognition of the rights of the environment that is succeeding with time. It’s less academically rigorous than Stone’s work but is also less US-centric and doesn’t entirely shy away from the pitfalls of the idea: for example, he is honest about the failures in Ecuador to realise the vision of the rights of Pachamama (who is roughly the figure of mother earth for indigenous societies in Ecuador) set out in its constitution, starting with contradictions in the constitution itself, which also defines certain parts of nature as resources of the State and enables their exploitation. He still retains his belief in the recognition of rights in nature, rather than suggesting another conception of the relationship between humans and the environment is necessary. This could be overeagerness on Boyd’s part: he wants to draw the links between the different ways non-humans’ rights are being recognized without seriously considering the differences between the goal of allowing chimpanzees good lives and the protection of forests sitting on oil deposits. The outcome is that he does show there is some success in changing how the law reflects thinking about the environment around us, but doesn’t go very far in showing that this movement has actually made a huge difference to protect the environment outside a few individual successes, such as improving the lives of a group of chimpanzees in human captivity.

One potential pitfall of granting non-humans standing is where the line is drawn. Both Stone and Boyd (and the other advocates that Boyd references in his work) make the comparison with corporations, which cannot represent themselves and rely on humans to do it for them. This crosses a point of practicality: you can’t say, for example, that a porcupine can’t have legal standing because it can’t sign a piece of paper or instruct a lawyer or take its pleading to court, as we already allow others to be represented in legal proceedings that can’t do that. However, it doesn’t really cross the moral point. Corporations may be the bad guys of the global economy, as they are required to deliver profits to shareholders as their primary function, but we could say they are given legal rights as they represent people as a collective rather than as individuals. When people go into business together, they can use the corporate form as a vehicle for their shared interests to minimize their own conflicts and keep their business lives separate from their personal. There may be much better ways to reflect the interests of collective groups of people that aren’t reflected in the law, but that debate is one about human groups, not about animals, plants, or nature. On the other hand, if it is justified to extend rights to individual animals or plants, the corporation analogy provides some justification to extend rights to collectives of animals and plants, such as wider ecosystems like rivers or forests.

So what is the limit of what we extend rights to? Could non-living objects have rights? If we want living ecosystems to have rights, might we also want natural non-living wonders to have them too? I am thinking about magnificent rock formations or sand dunes. When it comes to it, even human property could have rights. Why does the Mona Lisa not have its own set of rights? Given that, in one of Stone’s examples, we are constructing the interests of sea urchins, why not construct the notional interests of a painting?

This question probably can be resolved on any number of grounds, by answering that only things that are living (including ecosystems, which could encompass rivers and mountain ranges) can be given rights in this manner. Virtually every visually beautiful place would be able to be protected as an ecosystem, barring only the most totally inhospitable places on the planet. Beyond that, we can draw a line between something that acts with some independent agency and something that doesn’t. Although humans might heavily influence the environment, if we were to take humans out of the equation sea urchins would be able to grow, expand, move and change without us. That gives a reason to consider what would happen if we left them alone. The Mona Lisa cannot act of its own accord.

The notion of granting legal standing to non-humans invites all manner of straw man arguments, some of which are flagged by Stone in his introduction and essay noting the ways in which his original article was ridiculed in the 1970s. These mostly misconstrue the point as being that we should grant the same rights to non-humans as are enjoyed by humans, and quickly reduce to the point that humans can’t do anything without interfering with something non-human. Granting the right to life to plants would probably stop us from being able to eat. This is obviously not the point being made by Stone or Boyd, and you have to question the motivations of those who suggest that it is. Boyd makes the point clearly when he quotes Steven Wise, a lawyer who has attempted to represent chimpanzees in court: “Sometimes people think we’re trying to get human rights for chimpanzees. We’re not. We’re trying to get chimpanzee rights for chimpanzees.”

However, this leads to the central problem for the advocates of the rights of non-humans: granting standing to them necessarily raises the question of what the substance of their rights should be. For standing to be granted to a thing, it has to have some legal right that can be brought to court. An empty right to be heard isn’t something courts have much time for, and such a right wouldn’t do much good for the plants, animals and environments in question. Stone lets this question hang, making it clear that rights do not have to be absolute (referring to an example of sea urchins being harmed by a crucial power plant) but not confirming exactly what rights would be available and, crucially, how conflicts between environmental rights and other interests would be weighed. He argues that simply requiring the acknowledgment and evaluation of environmental harms, with that leading to some consequences in some cases, would be an improvement. In several of his other essays he elaborates on this core argument, suggesting a guardian for the oceans, “global commons guardians” for parts of the planet not in the possession of individual countries, and in a twist arguing against a guardian for future generations on the basis that future generations are already accounted for well enough through other mechanisms. Boyd also thinks that the simple acknowledgment of the place of and harms to environmental entities represents a valuable shift in thinking, and one with the potential to prevent the kinds of environmental destruction we are really concerned with.

What granting these rights to nature, trees and other non-humans would ultimately do is take certain decisions out of the political sphere and into the legal one. Advocacy for the environment would still be required, but it would happen in courtrooms and with lawyers rather than in the sphere of public debate. It would likely be up to judges to decide how to assess conflicts of interests between non-humans and humans, although of course to some extent the resolution of these conflicts could be set out in legislation passed by democratically elected parliaments and congresses. This doesn’t strike me as immediately gratifying: it has the risk to disempower people who feel personally invested in the protection of the environment (or, of course, its destruction). On the other hand, it provides the gratification of giving something of a voice to voiceless entities that seem to deserve it. It also could bridge something of a gap between peoples’ desire to protect the environment and their inability to engage politically with every environmental decision that is made. Furthermore, many of the decisions are in situations that are already essentially “legalized”, such as planning and resource management decisions involving permits for certain activities, and adding the capacity for potential harms or benefits to non-humans to be recognized in the process is the way to enable environmental protection in such situations. Additional resources would be required to include non-humans in these proceedings: in some cases it might draw out legal proceedings a lot to consider the various impacts on animals, plants, and the environment. However, I suspect this is going to be a recurring theme in reviewing these kinds of books. The reality is that caring for the environment requires real commitment and resources.