Environmental personhood or juridic personhood is a legal concept which designates certain environmental entities the status of a legal person. This assigns to these entities, the rights, protections, privileges, responsibilities and legal liability of a legal personality. Because environmental entities such as rivers and plants can not represent themselves in court, a "guardian" can act on the entity's behalf to protect it. Environmental personhood emerged from the evolution of legal focus in pursuit of the protection of nature. Over time, focus has evolved from human interests in exploiting nature, to protecting nature for future human generations, to conceptions that allow for nature to be protected as intrinsically valuable.Gwendolyn Gordon. "Environmental Personhood." (2017), at page 25. This concept can be used as a vehicle for recognising Indigenous peoples' relationships to natural entities, such as rivers.James DK Morris and Jacinta Ruru. "Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples' Relationships to Water." AILR 14 (2010): 49. Environmental personhood, which assigns nature (or aspects of it) certain rights, concurrently provides a means to individuals or groups such as Indigenous peoples to fulfill their human rights.
Background
The United States Professor Christopher D. Stone first discussed the idea of attributing legal personality to natural objects in the 1970s, in his article "Should trees have standing? Towards legal rights for natural objects".Christopher D. Stone. "Should Trees Have Standing—Toward Legal Rights for Natural Objects." Southern California Law Review 45 (1972): 450. A legal person cannot be owned; therefore, no ownership can be attributed to an environmental entity with established legal personality. Standing is directly related to legal personality. Entities with standing, or locus standi, have the right or capacity to bring action or appear in court. Environmental entities cannot themselves bring action or appear in court. However, this action or standing can be achieved on behalf of the entity by a representing legal guardian. Representation could increase protection of culturally significant aspects of the natural environment, or areas vulnerable to exploitation and pollution.
Although there is no federal law in the United States implementing environmental personhood, the idea has been advocated for by a US Supreme Court Justice. In the decision of the 1972 US Supreme Court case Sierra Club v. Morton, Justice William Douglas wrote a dissenting opinion arguing that certain "environmental elements" should have locus standi, and that people with a meaningful relationship to that environmental element should be able to act on its behalf for its protection. As of June 2021, at least 53 initiatives in 12 countries have used the concept of 'person' in their legal text.
The Sierra Club, an environmental advocacy group, brought this suit against then Secretary of the Interior of the United States, Roger C. B. Morton stating that the federal government, according to the Administrative Procedure Act, could not grant permits for developers to build infrastructure – specifically a highway, powerlines, and a ski resort – in the Mineral King Valley, part of the Sequoia National Forest."Sierra Club v. Morton." Oyez, www.oyez.org/cases/1971/70-34. Accessed 7 Nov. 2021. The Sierra Club aimed to protect this undeveloped land within the national forest, but the U.S. Court of Appeals for the Ninth Circuit had stated that because the members of the Sierra Club would not be directly affected they could not sue under the Administrative Procedure Act, which "provides standards for judicial review" for instances where a person is negatively impacted by an agency action, such as granting a permit. The Supreme Court agreed that the Sierra Club could not sue under the Administrative Procedure Act, as it could not show that the actions of the defendant caused or would cause injury to its members. This ruling led Supreme Court Justice William Douglas to write his dissenting opinion, arguing that people should be allowed to sue on behalf of non-living things writing, "[t]hose who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen." This opinion is shared by those who continue to argue for environmental personhood in the United States and around the world.
Domestic rights of nature
New Zealand
In 2014, Te Urewera National Park was declared Te Urewera, an environmental legal entity.Te Urewera Act 2014. The area encompassed by Te Urewera ceased to be a government-owned national park and was transformed into freehold, inalienable land owned by itself.Te Urewera Act 2014, ss 12–13.
Following the same trend, New Zealand's Whanganui River was declared to be a legal person in 2017.Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14. This new legal entity was named Te Awa Tupua and is now recognised as "an indivisible and living whole from the mountains to the sea, incorporating the Whanganui River and all of its physical and metaphysical elements."Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 13(b). The river would be represented by two guardians, one from the Whanganui iwi and the other from the Crown.
Also in 2017, the New Zealand government signed an agreement granting similar legal personality to Mount Taranaki and pledging a name change for Egmont National Park, which surrounds the mountain.
India
The Ganges and Yamuna Rivers are now considered legal persons in an effort to combat pollution. The rivers are sacred to Hindu culture for their healing powers and attraction of pilgrims who bathe and scatter the ashes of their dead.Dr Susan Bliss. "A river is a 'person'." 49 Geography Bulletin No 2 (2017): 17. The rivers have been heavily polluted by 1.5 billion litres of untreated sewage and 500 million litres of industrial waste entering the rivers daily.
The High Court in the northern Indian state of Uttarakhand ordered in March 2017 that the Ganges and its main tributary, the Yamuna, be assigned the status of legal entities. The rivers would gain "all corresponding rights, duties and liabilities of a living person." This decision meant that polluting or damaging the rivers is equivalent to harming a person. The court cited the example of the New Zealand Whanganui River, which was also declared to possess full rights of a legal person.
This development of environmental personhood has been met with scepticism as merely announcing that the Ganges and Yamuna are living entities will not save them from significant, ongoing pollution. There is a possible need to change long-held cultural attitudes towards the Ganges, which hold that the river has self-purifying properties.
There is further criticism that the guardianship of the rivers was only granted to Uttarakhand, a region in northern India which houses a small part of the rivers' full extent. The Ganges flows for 2,525 km through Uttarakhand, Uttar Pradesh, Bihar, Jharkhand and West Bengal, with only a 96 km stretch running through Uttarakhand. Only a small section of the 1,376 km Yamuna tributary runs through Uttarakhand – which also crosses through the states of Haryana, Himachal Pradesh, Delhi and Uttar Pradesh.
Regardless of scepticism surrounding the decision of the Uttarakhand High Court, proclaiming these vulnerable rivers as legal entities invokes a movement of change towards environmental and cultural rights protection. The decisions may be built upon as a foundation for future environmental legislative change.
United States
In 2006, the borough of Tamaqua, Pennsylvania, worked with a rights of nature group called the Community Environmental Legal Defense Fund (CELDF). Together, the groups drafted legislation to protect the community and its environment from the dumping of toxic sewage.Gwendolyn Gordon. "Environmental Personhood." (2017), at page 10. Since 2006, CELDF has assisted with over 30 communities in ten states across the United States to develop local laws codifying the rights of nature. CELDF also assisted in the drafting of Ecuador's 2008 constitution following a national referendum.
Besides Tamaqua, several other towns throughout the United States have drafted legislation that would, in effect, give nature natural rights. In 2008, residents in a town by the name of Shapleigh, Maine, added new provisions to the town's legal code. The new sections granted rights to the nature and natural bodies of water that surrounded Shapleigh, and purported to strip the rights of corporations granted by the United States Constitution. What prompted the change to Shapleigh's legal code was a plan by the Nestle Corporation, which owns several water bottle brands such as Poland Spring, to pump truckloads of groundwater from Shapleigh to a water bottling facility. As of 2019, no lawsuits have been filed against Shapleigh, Maine for the change in the town's legal code, and the Nestle Corporation has not chosen to challenge the code either. In this case the CELDF did not assist the residents of Shapleigh in drafting sections 99-11 and 99-12 of their legal code, they were instead assisted by lawyers from Vermont.
In April 2013, the CELDF assisted officials in Mora County, New Mexico, in creating an ordinance that limited the ability of corporations to extract gas and oil, and gave rights to the natural ecosystems and bodies of water that resided within Mora County. This ordinance made Mora County the very first place within the United States to ban the production of gas and oil, within a certain area, in an official statement. A lawsuit was filed against Mora County on November 12, 2013, which asserted that Mora County's ordinance infringed on corporations rights, especially the first, fifth, and fourteenth amendments. In January 2015, Mora County's ordinance was overthrown by U.S. District Judge James O. Browning as he viewed the ordinance to violate the first amendment rights of corporations.
In early 2014, Grant Township, Indiana, Pennsylvania, enlisted the CELDF's help in drafting an ordinance that would give the natural bodies of water surrounding Grant Township natural rights. A company named Pennsylvania General Energy (PGE) had converted an old oil and gas well into a "wastewater injection well," and residents became concerned for what that could mean for the natural ecosystems surrounding their township. The water in a wastewater injection well is waste that is left over from a process called fracking. This water can contain harmful pollutants and chemicals that can poison groundwater. In Grant Township, most residents rely on the Little Mahoning Creek for their water needs. If the wastewater injection well were to leak, there is a possibility it could contaminate the Little Mahoning. The risk of contamination is what prompted Grant Township residents to ask the CELDF for assistance in drafting an ordinance. Grant Township's ordinance gave natural rights to the ecosystems and bodies of water that were within the borders of Grant Township. Grant Township's ordinance also stripped corporations of their rights deeming that corporations would not be seen as "persons" within the borders of Grant Township. In August 2014, PGE sued Grant Township which began a legal battle that would last for almost five years. Grant Township lost the lawsuit against PGE in April 2019, and Judge Susan Baxter ordered Grant Township to pay PGE's legal expenses which were over $100,000. In addition, Grant Township's ordinance was declared invalid.