Standing for Nature - Expanded TOC

Annotated Table of Contents Standing for Nature Legal

Strategies for Environmental Justice

Dana Zartner, Fabian Cardenas, and Mohammad Golam Sarwar

Introduction

Standing for Nature explores the growing rights of Nature movement around the world, which has at its core a goal of not only providing better legal mechanisms to protect the environment, but also of creating a shift in human perceptions of the human-Nature relationship to one of interdependence and respect, rather than domination. In this introductory chapter, the basic idea of the rights of Nature is introduced, along with short summaries of the cases examined in later sections, before setting up the primary question this book address, which is: What makes for successful rights of Nature law?

Countries such as Peru, Ecuador, India, Bangladesh, Uganda, Panama, and Sweden, along with local communities throughout the United States and elsewhere, have crafted laws recognizing the rights of Nature through a variety of legal mechanisms. Given this is a relatively new phenomenon and that some efforts have been more successful than others, this book provides advocates with helpful insights for developing rights of Nature in their own communities. Although more people recognize the need to address issues of environmental justice, there are still those who are resistant to new ideas. Each successful promulgation of rights of Nature laws opens more space for the idea that we need to change how humans think about nature, the human–nature relationship, and current legal and policy structures. This book highlights how the rights of Nature movement offer environmental advocates in the United States and around the world innovative legal mechanisms to do just that.

Chapter 1 - Understanding the “Rights” in Rights of Nature

Chapter 1 addresses some of the foundational questions that must be considered when developing rights of Nature law. Across the world, common questions arise about this legal concept that get to the heart of how rights are recognized, internalized and enforced. Those

unsure about the meaning of the rights of Nature often ask: Does giving rights to Nature mean that trees can march into court and sue me if I chop one down? Since it now has rights, does the mountain have freedom of speech and religion? If the rivers have rights and they flood, damaging homes and harming people, do they also have the responsibility to pay for damages? To some extent, these questions reflect a misunderstanding of the meaning of rights of Nature laws, what they provide, and how they fit within a legal rights framework. But they also represent real challenges both institutionally and culturally that must be overcome for these laws to offer effective environmental justice protections and a new path toward a more harmonious human–nature relationship.

For advocates, it is important to explore more deeply what rights of Nature means, how we define this concept, and our goals in codifying the rights of Nature in concrete legal mechanism. This is important because in addition to the often-tongue-in-cheek queries above, serious questions may be raised about the rights of Nature: Does the concept of rights of Nature mean the same thing for everyone? Do we need it to? And how do we translate values, ideas, and worldviews about the rights of Nature and the corresponding human–nature relationship into law and policy in our contemporary world in a way that can provide an actionable framework for ensuring these protections? This chapter explores each of these questions by consider the historical develop of rights and to whom they apply, the role that law can play in constructing rights for non-human entities, and the cultural, spiritual, and philosophical ideas that support the recognition of the rights of Nature.

Chapter 2 - Legal Tradition as a Tool for Environmental Justice Advocacy

This chapter lays out the framework we propose advocates use when developing rights of Nature laws, highlighting two fundamental goals for these laws. First, they are potential mechanisms for protecting the environment and addressing environmental justice using law. Second, rights of Nature are a worldview and a way of thinking about the natural world and the human–nature relationship in a more integrated and holistic way. For advocates, it is important to understand both to use rights of Nature law as a mechanism to better address environmental justice issues. While Chapter 2, focused on the latter, the rights of Nature as a worldview, this chapter focuses on the former, the more practical aspect of creating rights of Nature law that fits within the existing legal tradition of a place.

Chapter 2 delves into legal tradition as a framework that includes both the legal institutions in a community, including how the law is made, interpreted, and applies, and the legal culture of a place, which reflects the values and beliefs about law and how it should function within a community. This chapter explores these two components of legal tradition to understand the context in which laws are developed, accepted, implemented, and enforced, and how to assess these factors within each individual community. Reviewing key aspects of both legal

institutions and legal culture, this chapter sets up the framework through which the four case studies will be discussed in the following chapters.

Chapter 3 - From the Mountains to the Sea: Aotearoa New Zealand

This chapter explores the case of Aotearoa New Zealand, which has passed several pieces of legislation protection the rights of natural entities. The contemporary legal tradition of Aotearoa New Zealand is grounded in the common law heritage of the country’s English settlers, but as in many settler states the tradition has been adapted over time to reflect the unique culture and institutional needs of the country. Although the Māori peoples and their laws have not always been adequately represented, over time Aotearoa New Zealand has succeeded more than many other states at incorporating Indigenous culture and laws into the legal tradition. This, in turn, has had a significant impact on the development of rights of Nature law in the country.

Aotearoa New Zealand is often held up as the pinnacle of efforts to implement rights of Nature law. Beginning with the Te Urewera Act of 2014, granting the Te Urewera Forest legal personhood and the Tūhoe people guardianship, Aotearoa has since codified the rights and values of the Whanganui River and has recently passed similar legislation recognizing the rights of Taranaki maunga. Through a close reading of the history of these efforts and the way in which these laws were created, this chapter provides advocates with a glimpse into one of the most successful rights of Nature efforts to date.

Chapter 4: Riverine Reflections and Responsibilities: Bangladesh

This chapter considers the 2016 decision of the High Court of Bangladesh to recognize the rights of all the country’s rivers. The Court’s decision in this case a very nuanced illustration of the interplay between history, culture, development, politics, and law, which is very illustrative for advocates, But, even though Bangladesh is a country with a history and culture deeply tied to its environment through the rivers, it is also a place where there is sometimes a cultural disconnect between the people and their law due to mistrust of government and lack of access to justice mechanisms.

This chapter explores the unique case of Bangladesh and its legal institutions such as public interest litigation, activist courts, and extensive advocacy efforts, while also identifying some of the challenges facing effective implementation of the High Court’s ruling. While the Bangladeshi rights of Nature case has not garnered as much global press attention as the efforts in some of the other cases discussed in this book, it provides an important example of innovative rights of Nature law and how advocates can use this law to fight for better environmental justice protections.

Chapter 5 - Rights of Nature for Future Generations: Colombia

In Chapter 5 we examine the judicial decision in Colombia that recognized rights for the Amazon. As with Bangladeshi’s cultural connection to their rivers, Colombians have a strong attachment to the natural beauty of their country and are acutely aware of the importance of the Amazon. There is also a strong community of environmental lawyers in Colombia, and communities and NGOs remain active and committed to implementing the 2018 decision. But the country still faces challenges, many of which are related to the lingering impacts of the decades long conflict between the government and FARC

This chapter explores that Amazon case and how advocates build support for the rights of Nature from both the bottom-up and the top-down. A culture that is already ecoconscious is a fertile ground for expanding ideas about the place of Nature in the world today, and the more community and government support there is for these efforts, the more likely they are to succeed.

Additionally, this chapter highlights the importance of an active and creative when advocating for novel legal issues such as the rights of Nature. Communal action by citizens supported by responsive legal analysis from the judges has resulted in multiple rights of Nature decisions in Colombia, covering more natural entities than any other country and offering others around the world some good strategies for their own work.

Chapter 6 - Rights of Nature and the Challenges of Individualism: The United States

So far, the United States has been a difficult place for rights of Nature advocates, with some of the most prominent rights of Nature laws being struck down by courts. While there have been some laws successfully promulgated in local municipalities and among Indigenous communities, the legal tradition of the U.S. creates several challenges for advocates that will have to be addressed. Chapter 6 examines these challenges through the case of the effort to pass the Lake Erie Bill of Rights and delves into key issues such as the need to balance conflicting rights, infringement on constitutional guarantees, and long-held cultural beliefs about the law and the environment in the United States. Understanding these challenges, all of which are deeply tied to the U S legal tradition, will help advocates work toward enacting more successful environmental justice protections in the future.

This chapter also discussions how the United States compares with the other three cases in this book. Although the chapters on New Zealand, Colombia, and Bangladesh all highlight the challenges that the effective implementation of rights of Nature laws are facing in those countries, in each case the challenges are mitigated by successes. In the United States, by contrast, not only has it been more difficult to mount advocacy efforts to enact rights of Nature laws, but in the instances where it has been possible, the challenges to the laws’ very existence are immediate and often successful. This chapter examines more deeply why we see successes

in other countries, but obstacles in the U.S. and what lessons advocates should take away for future efforts.

Chapter 7 - Thrive and Survive: Tools for Effective Implementation of Rights of Nature Laws

The case studies in this book have provided a glimpse into how several different communities have enacted rights of Nature laws. The examples of Aotearoa New Zealand, Bangladesh, Colombia, and the United States highlight for advocates some of the most important factors to consider when contemplating rights of Nature law as a mechanism to address environmental injustices. Measuring the success of the rights of Nature movement requires that we look not only at the creation of these laws but at their effective implementation and acceptance by the broader community.

This chapter brings all the detail of the case studies in Chapters 3 through 6 together and synthesizes the successes and challenges in these four cases into a list of ten strategies for those interested in developing rights of Nature laws in their own community. Beginning with the two overarching components of legal tradition – legal institutions and legal culture – this chapter breaks these down into lessons learned to help future efforts, ranging from ensuring all stakeholders have access to the conversations around these new laws, to being very specific and intentional with language, to remembering something every advocate needs – patience and persistence.

Chapter 8 - Moving Forward: Challenges and Change

The cases presented in this book are some of the best-known rights of Nature examples in the world today, and judging by the continuing momentum of the movement, they are just the beginning. But there will be challenges, of course. Even the most thoughtful, inclusive, detailed rights of Nature law will inevitably have difficulties somewhere in the process of implementation, enforcement, and acceptance. The final chapter of this book responds to some of the broader challenges facing the rights of Nature movement and reiterates the importance of law as a tool to address them. For advocates, identifying these challenges and proactively facing them by crafting nuanced laws is a crucial part of an advocacy strategy.

The book then concludes by revisiting the message that the more people talk about the rights of Nature, the more possibilities open up regarding its development and implementation in a community in a tangible, legal way. Not even ten years on from the enactment of the first law covered in this book, the world of the rights of Nature looks very different. This book contributes to this movement by analyzing these existing laws for lessons advocates can learn to continue the momentum into the future, recognizing that our current systems of laws, policies, and reliance on human goodwill are not working fast enough to stem the tide of environmental catastrophes and potential injustices. More people are opening themselves up to different

possibilities for action and a new way of viewing the world, and with this book we hope to contribute to that.