When Does a Tree Stand Without Standing?

Environmental protection based on the environment as property and commerce has lead to some weird results -- or at least some not-altogether-good-natured satirizing. For example, in applying these laws, the government developed a regulation called the “reasonable bird test" -- called, that is, not by the government, but by facetious commentators. The Clean Water Act of 1972 aims to protect waterways. The courts and regulatory agencies have had to wrestle with criteria for determining when a body of water is a “waterway” subject to protection under the Clean Water Act. The Army Corps of Engineers (ACE) articulated the Migratory Bird Rule (dubbed pejoratively the “reasonable bird test”): that protected waters include those:

"a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or b. Which are or would be used as habitat by other migratory birds which cross state lines." (51 Fed. Reg. at 41217. [1986])

Crossing state lines brought migration under "interstate commerce." The conditional verb "would be used" apparently prompted critics to pretend that the condition to be satisfied was the birds' reasonableness, and that the government was essentially saying that if a reasonable bird flying between two states would likely land on the body of water, then that water was subject to protection. The ACE and the EPA used the rule for a number of years in determining which waterways to protect -- until the Supreme Court (Solid Waste Agency of Northern Cook County v. ACE [2001]), struck down the "reasonable bird test" (as critics called it), to the dismay of the environmentalist community.

A pair of perfectly reasonable sandhill cranes

As long as environmental protection is based on commerce, on seeing the environment as property, then we aren’t really protecting nature – we’re just coordinating its exploitation.

The Lorax says that he speaks for the trees, who have no tongues. If the Lorax, or you, or anyone, were to show up in court to speak for the trees, or the rivers, or the mountains, the first question is legal “standing.” Do you have standing to pursue the legal action? The court is prepared to consider damage to you – damage to your financial prospects, or to your health – from, say, pollution of a river. The court can see you and your interests, but doesn’t see the river itself. In a previous era, courts didn’t see slaves, or women.

Even if you manage to win, and damages are awarded, the damages will be awarded to you. The damages do not go to the river, because the river is not seen. The river is merely property. Just as damages to a woman used to go to the husband – to compensate him for the loss in value of his property -- or damages to a slave were compensated to the owner.

As long as environmental law regards nature as property and commerce, as long as such law merely coordinates the exploitation, then the justice system will not do justice to the Earth. People justice and Earth justice will be divorced and separated.

Take the case of Nottingham, New Hampshire. The people of that town wanted to protect their water. They wanted to prevent their water from being privatized – taken over as property for commerce and profit. They

“fought for seven years to stop USA Springs from coming in and privatizing their water. They appealed permits to the state department of environmental services, they circulated petitions, they lobbied their state legislature, the held protests, and they filed lawsuits. They did everything right -- through conventional environmental organizing -- but somehow they still weren’t winning." (Mari Margill, "Bioneers" radio podcast, "Earth Justice")

The state environmental agency is more interested in granting permits to companies than in protecting a public good. And that’s because the underlying basis of environmental protection isn’t the environment, it’s commerce. Conventional environmental organizing works within this assumption that nature is property and commerce, and thereby ultimately strengthens that assumption itself.

We need a new assumption. And it is beginning. A dozen municipalities now have passed local laws declared that ecosystems have rights in themselves – anyone can bring suit on behalf of the ecosystem, and the damages have to go back to restoring the ecosystem itself. That’s not radical – it’s an extension of basic concepts of representation – but it does take an explicit law to say that the interests of an ecosystem have standing in court.

That’s a shift that can seem rather jarring. Christopher Stone, back in 1972, published an article in the Southern California Law Review that became famous: “Should Trees have Standing? Toward Legal Rights for Natural Objects.” He wrote:

“The fact is that each time there is a movement to confer rights onto some new 'entity,' the proposal is bound to sound odd, or frightening, or laughable. This is partly because, until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of “us” – those who are holding rights at the time. Such is the way the slave South looked upon the Black. There is something of a seamless web involved: there will be resistance to giving the thing 'rights' until it can be seen and valued for itself; yet it is hard to see it and value it for itself until we can bring ourselves to give it 'rights' -- which is almost inevitably going to sound inconceivable to a large group of people.”

Forty years after Christopher Stone wrote that article, legal rights for natural objects still sounds inconceivable to a large group of people -- but not quite as large as it was.

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Part 3 of 5 of "Earth Justice, People Justice"
Next: Part 4: "The Beauty and the Tragedy"
Previous: Part 2: "Protecting the Life of Commerce"
Beginning: Part 1: "The Rock and the Mountain"