What if We Gave Nature Legal Rights?

What's good for corporations may be good for nature.

Looking for a good lawyer.

Photo by Vivek Kumar on Unsplash

Last week, the King of New Zealand's Indigenous Maori people called for whales to be granted the same legal rights as people in a bid to protect the species.

The King’s thinking aligns with many who have argued for enhanced legal rights for nature in the past. Giving legal personhood to things like forests, rivers, mountains, and animal species could give them the best chance to survive and help regenerate the natural world and its resources.

Though the concept may seem novel, it has happened before.

The Global Alliance for the Rights of Nature is attempting to ensure that nature – trees, oceans, animals, mountains – have rights just as human beings have rights. They aim to get humans to ensure that nature is granted these rights and that these rights are enforced. Organizations like the Community Environmental Legal Defense Fund are attempting to work with communities to ensure nature has the rights it needs to thrive.

In most Western Economic Systems, we tend to take for granted that natural resources can be used for human benefit with little regard for their well-being and longevity. These beliefs are deeply ingrained in our legal systems.

Ecosystems and their resources are generally owned by someone, which usually means that the owner can do whatever they want with that property. Giving legal rights to nature helps to ensure nature is protected and has the “right” to exist and flourish.

These norms may be slowly changing.

In 2021, the Muteshekau Shipu (Magpie River) in Québec’s Côte-Nord region was made a legal “person” by the Innu Council of Ekuanitshit and the Minganie Regional County Municipality. This was done to protect the waters of the river, and the people and wildlife that depend on the river.

Other 'entities' have been granted legal capacity, such as the Whanganui River in New Zealand.

In September 2008, Ecuador became the first country in the world to place the Rights of Nature in its constitution. Bolivia has also established Rights of Nature laws.

Tamaqua Borough in Pennsylvania was the first community in the United States to enact the Rights of Nature.  Since then, dozens of communities have adopted such laws.  In November 2010, the City of Pittsburgh, Pennsylvania, became the first major municipality in the United States to recognize the Rights of Nature.

When Nature sues, who gets compensated?

Think about a man-made disaster in your lifetime where nature was spoiled or ruined. It could be Chernobyl ($700 Billion Cost) or the BP Deepwater Horizon oil spill in the Gulf of Mexico. Looking at these two events side by side is instructive. BP and its partners paid about $71 billion for the deepwater horizon cleanup and legal penalties. This included an agreement under which BP paid for an $8.8 billion restoration of the impacted areas of the Gulf of Mexico. That $700 billion cost assumed for Chernobyl involved very little rehabilitation or restoration of nature. If you dig into the above report on Chernobyl, you will see that most of that cost comes from the loss of economic activity, health impacts, and damages to the countries surrounding the Chernobyl plant in Ukraine.

These aren’t apples-to-apples comparisons, and a nuclear meltdown that will take thousands of years to dissipate is not the same as an oil spill that was eventually stopped and cleaned up. But what makes the Deepwater Horizon case so unique is that nature had an advocate that got things done. There are still negative impacts from the Deepwater Horizon event, including the loss of 11 lives. But in the case of Deepwater Horizon, there was enough public outrage over the environmental damage and so much effort to fix the environmental damage, that nature had a real advocate – and the damage done to nature itself was addressed.

Unfortunately, such instances are rare. It took a horrific environmental tragedy, that was on television 24/7 in a rich country for people to advocate for nature in the Gulf of Mexico in the wake of the Deepwater Horizon disaster.

Which means personhood for nature makes sense.

Part of the reason to make parts of nature legal entities is so that nature can get compensated, or “made whole” when damage is done. Currently, when nature is harmed, it needs a person to be a plaintiff on its behalf. But any damages that are awarded due to harm to nature – are nearly always paid to the plaintiff, usually in the form of money. This often doesn’t help the nature that was harmed. Nature could be awarded legal rights so that nature can be restored, whatever that would look like.

So, what would nature’s personhood look like?

To get some understanding of what legal personhood in nature could look like, let’s take a look at the non-person personhood we are most familiar with - corporate personhood.

“Companies are people, my friend.”

In most jurisdictions around the world, corporations are considered “persons”. This means that these corporations are legally independent entities with rights and can be held accountable separately from the people who work for these corporations. Alternative legal structures for corporations do exist and some have argued that corporations should not be granted personhood and should instead be seen as a nexus of contracts, or some other legal form.

The argument of whether corporations should be considered “persons” is a whole different blog, and one I imagine exists somewhere else on Substack. You can argue for or against it. (I’m a fan of Nexus of Contracts myself), but the point here is to look at the corporate personhood framework to see if something like it could work for nature.

What are some of the benefits and drawbacks of corporate personhood?

Benefits

• Corporate personhood allows corporations to:

• Allows for easier taxation and regulation.

• Simplifies transactions, contracts, and other legal agreements.

• Protects rights of shareholders/owners.

• Can sue and be sued, and other legal benefits.

• Can play a societal cultural role through interactions with society.

Drawbacks

• Too much power can be concentrated in corporations, leading to legislative and regulatory capture.

• Their wealth often allows their speech and actions to dominate other players on an issue.

• Lack of morality. A corporation’s first duty is seen to be to shareholders. A corporation often has no incentive to be a “good neighbor”.

• Personhood should be reserved for citizens.

These aren’t exhaustive lists, so please feel free to discuss these points further in the comments, pro, or con.

Either everything is a person, or just people are.

Corporate personhood evolved in the law as a way for corporations to do business. But they simply are not physically living and breathing human beings. It seems silly to have a “personhood” carve out for corporations alone, but not for other “non-human” entities that could benefit from personhood. Legal personhood could also benefit society, as a legal personhood for our natural resources would likely make them more stable, and less exploitable without proper care for the “commons”. Legal personhood for nature could greatly reduce the tragedy of the commons – where the commons we all enjoy (clean air, water, land) are not taken care of because they can be used and abused with little to no recourse.

To put it simply, if we are going to let corporations be “persons” and afford them special privileges and protections due to that personhood, then it makes sense to make our natural resources legal persons as well.

Corporations depend on these natural resources, and we have done a poor job as humanity of protecting these natural resources from abuse and overuse by corporations.

Legal personhood for nature can be seen as leveling the playing field so that our natural resources enjoy similar protections as corporations.

Natural personhood would likely necessitate several new organizations and ways of organizing to grow, but I don’t see that being a problem. There are already plenty of organizations that protect a local watershed, forest, or local species.

The Devil’s advocate.

If we are going to seriously consider whether things in nature should be afforded legal “personhood”, let’s consider some of the arguments against “personhood” for nature. I’ll address some of them here, but feel free to discuss this in the comments or yell at me on LinkedIn.

Q: Can nature, or the representatives of nature be sued? What if a flood destroys property? Can nature be held accountable?

A: If a river is a “person”, sure you can sue it. Good luck with that though. I’m not a lawyer, but I think it would be hard to prove a river had “intent” behind its actions or was “negligent”. “Acts of God” may result in insurance company payouts, but not in legal liability. If you want to skip the river and find a way to sue God, I’d like to see that filing.

Q: Lawsuits are expensive. Who is going to pay for the river, the forest, or the whale’s legal representation and court fees?

A: This is where the new organizations and organizing principles come in. People will have to foot the bill and organize to represent a nature-based “person”, but by giving that nature-based entity rights, you give nature “standing” in the eyes of the law that it largely doesn’t have now. By giving nature rights, you give it the right to damages if it was wronged. That would allow for a legally required restoration of nature, that we largely don’t have now.

Q: What happens when the rights of nature interfere with the rights of humans?

A: This already happens all the time. But currently, nature doesn’t have any legal “rights” in these conversations. Again, it currently takes a person or legal entity to show they were harmed by the actions of another to sue so that they can collect some damages, and then maybe some of that will get back to nature.

We as a society should be having hard conversations about climate action and the impact that has on farmers. We should be talking about a just transition when oil, gas, and coal jobs are eliminated. We should be talking about what giving legal rights to the air, water, land, and animals means. Legal standing for nature would force us to have these conversations.

We need the biosphere to be healthy so that we can be healthy. Giving the biosphere legal rights makes some sense if we are serious about making the future a better one.