An organizer in the Colorado River “personhood” lawsuit explains.
If I asked you, “Which corporation provides drinking water to 40 million Americans?” you might guess Nestle or Pepsi or Coca Cola. It’s a trick question. No corporation provides drinking water to 40 million Americans, but the Colorado River does.
Similarly, if I asked you, “Which corporation shapes the American Southwest by moving millions of square acres of red rock, granite mountainsides, and desert sand?” you might guess Chevron or Exxon-Mobil or Bechtel. But, again, no corporation is capable of shaping the American Southwest like the Colorado River does.
Despite the fact that no corporation can do what ecosystems can do, corporations under American law are considered “persons” and the ecosystems giving us life are not. For the past decade, a movement committed to achieving legal rights for nature has been gaining momentum .
Ecosystems gaining rights worldwide
Courts and legislatures from South America to Asia have recognized that ecosystems themselves possess rights. Ecuador amended its national constitution in 2008 to establish the rights of ecosystems to exist, regenerate, evolve and be restored. Using these constitutional provisions, Ecuadorians have filed several enforcement cases protecting the rights of rivers and other ecosystems in the country.
In July 2014, Te Urewera, an 821-square-mile forest area of New Zealand, was designated as a legal entity with “all the rights, powers, duties, and liabilities of a legal person.” Te Urewera may now bring causes of action on its own behalf without having to prove direct injury to human beings.
This past spring, New Zealand’s Whanganui River gained legal “personhood status” under an agreement that states the river is no longer the property of the government but rather owns itself.
Colombia’s Constitutional Court, in November 2016, ruled that the Atrato River, including its tributaries and watershed, is “an entity subject to rights to protection, conservation, maintenance, and restoration.” To enforce these rights, the Court ordered that the Colombian State shall “exercise legal guardianship and representation of the rights of the river in conjunction with the ethnic communities that inhabit the Atrato river basin.”
In March, a high court in northern India declared that the Ganges and Yumana Rivers are “legal/living persons.” This declaration followed numerous rulings by the court which found that while rivers are “central to the existence to half of the Indian population and their health and well-being,” they are severely polluted and their existence seriously threatened.
First step toward protection in U.S.
To bring the rights of nature movement to the United States, four of my comrades and I in the environmental and social justice organization Deep Green Resistance recently filed a first-in-the-nation lawsuit—Colorado River v. Colorado—in the United States District Court, District of Denver, seeking “personhood” for the Colorado River and recognition of the river’s rights to exist, flourish, regenerate, and naturally evolve. Personhood grants one the right to sue for damages and seek court-enforced injunctions—rights that corporations, as persons, possess.
The Colorado River is the only listed plaintiff, so it can be said that the Colorado River, herself, is suing the State of Colorado. Under current law, however, the Colorado River is not “legally competent,” so my colleagues and I serve as “next friends” to the Colorado River—a fiduciary or guardian of the river’s interests in court. We are represented by noted Denver-based civil rights attorney Jason Flores-Williams. Community Environmental Legal Defense Fund (CELDF), the premier rights of nature organization in the United States, is advising us.
While water continues to be polluted, air poisoned, and the collapse of every major ecosystem on the continent intensifies, our system of law fails to protect the natural world we depend on. Legal tools such as achieving wilderness designation are available for some places. But the 1964 Wilderness Act which governs what can be designated as wilderness only protects “an area where the earth and its community of life are untrammeled by man” and land “retaining its primeval character and influence without permanent improvements or human habitation.”
Ecosystems like the Colorado River have been so thoroughly exploited that they no longer retain their primeval character. Designating the Colorado River as “wilderness” is impossible under this definition.
Parallels of racism and ecocide
The American legal system fails to protect nature because it defines nature as property that may be consumed and destroyed. To define nature as property is to objectify nature and objectification always precedes exploitation. Environmental philosophers Derrick Jensen and Neil Evernden insist that no one will be safe so long as nature remains objectified and valued only for the way humans use it.
Jensen, while diagnosing the cultural roots of ecocide, observes a psychological principle: “We act according to the way we experience the world. We experience the world according to how we perceive it. We perceive it the way we have been taught.” Jensen quotes a Canadian lumberman who once said, “When I look at trees I see dollar bills.”
When corporations see trees, they, too, see dollar bills. And, when the legal system looks at trees, it sees property. Jensen helps us unpack the psychology of this objectification: “If, when you look at trees you see dollar bills, you will act a certain way. If, when you look at trees, you see trees you will act a different way. If, when you look at this tree right here you see this tree right here, you will act differently still.”
Evernden describes the dilemma facing environmentalists working for change in the legal system. He asks us to imagine that we are lawyers defending a black client in Jim Crow South or apartheid South Africa. “What would you do,” Evernden asks, “if faced with a trial judge who denies your client any rights and who, after hearing your case, simply says: ‘so what—is he white?”
If we were lawyers in this case, we’d have two choices. We could detail our client’s genealogical record to try to prove our client has white blood and, in the process, legitimize institutionalized racism by bowing to its demands. Or, we could make the argument that lacks legal merit under contemporary standards, demand that the judge recognize the rights and dignity of our client, and then watch as the judge disregards our argument while sentencing our client to death.
Many of us would seek to prove our client white and, at least, give our client a chance to be safe from execution. Evernden writes, “Essentially this is what the environmentalist does. When challenged to justify his declaration on behalf of the living world, he proceeds, not to oppose the assumptions of his critics, but to try ‘to prove his client white’. Rather than challenge the astonishing assumption that only utility to industrialized society can justify the existence of anything on the planet,” environmentalists try to prove that the ecosystems they love are only valuable for the way humans use them.
American history is haunted by notorious failures to afford rights to those who always deserved them. Americans will forever shudder, for example, at Chief Justice Roger Taney’s words, when the Supreme Court, in 1857, ruled that persons of African descent cannot be, nor were never intended to be, citizens under the Constitution in Dred Scott v. Sanford. Justice Taney wrote of African Americans, “They had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race … and so far inferior, that they had no rights which the white man was bound to respect…”
Without rights that white, slave-owning men were bound to respect, the horrors of slavery continued.
On the other hand, the most hopeful moments in American history have occurred when the oppressed demanded and were granted their rights in American courts. Despite centuries of treating African Americans as less than human while defining them as property, our system of law now gives the same rights to African Americans that American citizens have always enjoyed. Once property, African Americans are now persons under the law.
Similarly, despite a centuries-old tradition where women were, in the legal sense, owned by men, our system of law now gives the same rights to women that American citizens have always enjoyed. Once property, women are now persons under the law.
Like African Americans and women before, natural ecosystems must be recognized as persons under the law.
Can we change our relationship with nature?
Practically speaking, if the Colorado River was granted rights, what would happen to all the human activities existing along the river?
Less than 20% of the river’s water is used by individuals for drinking and residential purposes. Close to 80% of the water is used by corporations, especially for industrial agriculture to water nearly 3 million acres of commodity cropland.
Personhood grants a legal entity a bundle of rights. A right grants a “person” the capability to request access to the power of the state to compel another to do something or stop doing something. For example, a “person” in the United States has the right to free speech. This means a person has the power to step into a courtroom, accuse someone of infringing upon his, her, or its right to free speech, and ask that the court order the defendant to stop infringing on the person’s free speech, or to pay money to the person.
A ruling by the court that the Colorado River has personhood and rights would grant citizens a stronger tool to end destructive corporate activities. But these activities would only be ended after a lawsuit was brought against the corporation. Eventually, yes, many corporations who have profited for so long on the exploitation of the river might see their activities shut down by courts.
For example, the Nestle Corporation owns two plastic bottling operations on the river. These operations divert as much as 500 million gallons of Colorado River water which is put in plastic bottles and sold back to the public. Nestle would not have to close up shop until 1. they are sued by the Colorado River, 2. a judge finds Nestle is infringing on the river’s rights and 3. a judge orders Nestle to close up shop (through an injunction) or orders payment of damages so high that Nestle’s shop is no longer profitable and Nestle decides to close up.
We can look to international models for guidance on how to implement the rights of nature. In recognizing rights of nature for the Te Urewera ecosystem and the Whanganui River, New Zealand established a government board to serve as guardians protecting Te Urewera’s and the Whanganui River’s interests.
In Ecuador, any person may invoke rights of nature in court, just like any person may invoke their constitutional rights to free speech, due process, freedom from illegal search or seizure, or a trial by jury in the United States. Ecuador’s constitution reads, “any person will be able to demand the recognition of the rights of nature before public organisms.”
Is there any optimism our lawsuit can succeed? Either we will fundamentally change our relationship to the natural world, or we may face extinction. Instead of wondering whether we can succeed, we must ask, “What needs to be done?”
We want others to consider filing rights of nature lawsuits, too. Most movements begin at the local level. The movement for women’s suffrage, for example, did not start with the U.S. Supreme court. It was a struggle that lasted more than 50 years and included over 400 local and state laws that recognized the right of women to vote.
To change local and state laws like the women’s suffrage movement did, we need communities across the country to pressure their local courts and governments by demanding rights of nature for local ecosystems.
And, one day, maybe future Americans, living in a truly sustainable world, will look back, embarrassed, to ask, “Why were corporations considered persons when ecosystems were not?”
Will Falk is a writer, lawyer and grassroots activist who lives in Heber City, Utah.