Nine Important Results from the Escazú COP3

Between April 22nd and 24th, 2024 the third meeting of the parties to the Escazú Agreement was held in Santiago, Chile. The Escazú Agreement COP3—or in long form, the Third Conference of the Parties of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean—was overseen by the UN’s Economic Commission for Latin America and the Caribbean (ECLAC), which has its headquarters in Santiago. The international event drew the participation of multiple environmental NGOs, representatives of Indigenous peoples who defend Nature, and officials from diverse governments that have signed the agreement.

The Escazú Agreement is the first international treaty in history to enshrine rights for those considered defenders of Nature, in order to reinforce the protection of human rights in environmental matters. Likewise, it promotes the implementation of management and governance mechanisms in environmental matters, involving vulnerable groups such as youth, women, and Indigenous peoples in the process.

ELC’s Impact at the Conference

ELC’s Javier Ruiz at Escazú COP3

Given the importance of this agreement, Earth Law Center (ELC) has sought to actively participate in the Escazú development process since its beginning. Members of ELC’s Latin America team have not only participated in each of the Conferences of the Parties (COPs) that have taken place but also have developed projects that apply the guidelines of the Escazú Agreement in communities of women Nature defenders in vulnerable contexts. 

At this time, together with our partner organization Defensa Ambiental, we are working with Indigenous communities of women defenders in Chile and Peru, identifying barriers to and gaps in the development of their rights. We are also urging their respective governments to recognize the importance of the Escazú Agreement, ratify its contents (in the case of Peru), and implement the contents of the respective Action Plan (in the case of Chile). 

Ms. Marí Luz Canaquiri, President of the Indigenous Kukama Women’s Federation

At COP3 Escazú, ELC’s Javier Ruiz, Expert in Environmental Policy and Climate Change, accompanied Ms. Marí Luz Canaquiri, leader of a federation of Kukama Indigenous women who recently won their court case seeking the recognition of rights and Indigenous guardianship for Peru’s Marañón River. This marked the first time a river in Peru has been acknowledged as having rights. 

“We Indigenous people ask that you respect us [in] our worldview, for us living beings have [the] spirit of [the] people,” said Canaquiri at COP3 Escazú. “We want our rivers to flow freely without any pollution, for our mountains and ancestral territories to be respected, because it is our life and it is the lung of the entire world. . . . Defending Mother Nature is defending our own lives.”

Members of ELC’s Latin America team also presented at official pre- and side events of the conference, discussing problems faced by civil society and Indigenous defenders in the application of their rights under the Escazú Agreement, as well as comparative experiences of the agreement’s implementation in Chile, Ecuador, and Peru.

Nine Highlights of the Escazú COP3

1. The Regional Action Plan on environmental defenders was approved, maintaining the Regional Forum and the existing Working Group. This plan reinforces compliance of the treaty’s article 9°, establishing strategic actions that allow a safe environment for human rights defenders, without threats, restrictions, and insecurity in their activities. 

2. The instrument of ratification of Dominica was deposited, making it the sixteenth State Party to the agreement.

3. The decision on national implementation was approved. From this, the Parties must have national implementation plans for the Agreement by 2026. This decision is of major significance since it urges the Parties to continue moving toward the full and effective implementation of the Escazú Agreement. Parties are encouraged, for instance, to create roadmaps for the national implementation of the Agreement through transparent and collaborative processes, embracing the implementation guidelines of the Escazú Agreement, prepared by the Secretariat.

4. The decision on mainstreaming the gender perspective was approved. This decision encourages the Parties to continue promoting the full and effective participation of women in all their diversity, including Indigenous women; to prevent discrimination and gender violence against women defenders, contributing to gender equality; and requests to the Secretariat to prepare a guide for the mainstreaming of the gender perspective in the implementation of the Escazú Agreement, to be presented at the next Conference of the Parties.

5. Three operational decisions were approved: COP4 is set for April 22nd to 24th, 2026 (again at ECLAS headquarters in Santiago, Chile, unless another location is proposed and accepted); a new mandate is granted to the board of directors; and the nomination procedure for the national focal points of the States Parties is established.

6. Topics of sessions organized on Mother Earth Day included: environmental information systems and emissions records, participation in environmental impact assessment systems, and access to justice.

7. The roadmap for the implementation of the Agreement in Saint Lucia was launched.

8. The joint UNESCO-ECLAC document, “Access to environmental information in Latin America and the Caribbean: synthesis of decisions of guarantor bodies and selected jurisprudence,” was published.

9. The report of the second Annual Forum on Human Rights defenders in environmental matters, organized in Panama in 2023, was distributed.

Re-envisioning Riverscapes and Urban Riverfronts in India: Toward Ecological and Social Harmony

By Namrata Kabra & Sanya Saroha

Namrata Kabra is a legal researcher with expertise in environment, biodiversity, and climate laws. She is a Program Associate, Water & Climate Security at Kubernein Initiative and Research Coordinator of the South Asia Bioregionalism Working Group.

Sanya Saroha is a policy researcher with expertise in foreign policy, urban water governance, and climate change. She is a Research Analyst, Water and Climate Security at Kubernein Initiative.  

Introduction

As India undergoes rapid urbanization and experiences a surge in urban population, the issue of urban water security, intertwined with impacts of climate change, looms larger than ever. Amidst these pressing needs, a concerning trend to “develop” and “beautify” riverfronts in urban areas has emerged.

This trend is perhaps best exemplified by the much-heralded Sabarmati Riverfront Development Project, which is located in Ahmedabad in the State of Gujarat, western India, and claimed to provide a meaningful waterfront environment to reconnect the city with river.[1] This is a highly arguable model that has not only exacerbated drought-like conditions in the Sabarmati River but also led to inadequate groundwater recharge. These cost-intensive riverfront development (RFD) projects involve alteration of the natural course and ecosystem of rivers and raise questions about the misallocation of public investments. These projects are ecological and social disasters, as indicated by a multitude of protests, legal proceedings, and poor results from preliminary studies assessing their effectiveness. For over a decade, experts in river ecology have been warning against prioritizing cosmetic beautification of rivers over their genuine restoration and revitalization.[2] Himanshu Thakkar, an environmental activist working on water related issues with South Asia Networks on Dams, Rivers and People (SANDRP), highlights the importance of considering a river’s “character, purpose, and cultural value,” stating that neglecting these factors could result in more problems than solutions.[3]

The misallocation of public funds for such projects neglects alternative approaches such as Rights of Nature governance for river restoration and rejuvenation initiatives, which would better serve environmental conservation and community interests. The Rights of Nature approach is increasingly recognized as a vital alternative to anthropocentric models. This shift paves the way for justice and environmental resilience, viewed through an ecocentric perspective. It not only acknowledges the obligations owed to people affected by the deterioration of river ecosystems but also lays the groundwork for climate resilience and adaptation, ensuring a more promising future for humanity and the planet. For example, the right to healthy drinking water, a human right, is dependent on rivers’ inherent rights to fulfil their ecological functions and flow freely in their floodplains. Disturbing river ecologies disrupts the natural balance and also exacerbates climate risks, heightening the threat of disasters and endangering species, both human and non-human. Governance and policies need to prioritize inclusive and sustainable practices to maintain the delicate balance of river ecosystems, ensuring the well-being of both the environment and the communities that depend on rivers.

Ecological and Social Fault Lines of Riverfront Development Projects

Riverfront development is perceived as an avenue to reconnect urban residents with rivers[4] and claims[5] to be addressing environmental improvement;[6] mitigating floods; cleaning, retaining, and replenishing rivers; creating a continuous public realm; strengthening surrounding public amenities and projects; supporting social upliftment; and effecting sustainable development and beautification of the area. However, these claimed goals come at the expense of disrupting the natural flow of the river. Such disruptions elevate flood risks by interfering with floodplains, heighten vulnerability to climate-related hazards, and jeopardize aquatic biodiversity and the well-being of local communities that subsist on these rivers. Rather than creating a direct connection between people and rivers, such RFD projects can lead to further distortion of and alienation from rivers.

The livelihoods and shelters of millions of people are being displaced, and river streams are being diverted, causing huge impacts to ecology, hydrology, and native biodiversity. For instance, the Sabarmati RFD project led to the relocation of around 5000 families.[7] Likewise, the transformation of the Gomti River in Lucknow in the State of Uttar Pradesh, Northern India, following riverfront development has resulted in a notable decline in fish species, with significant repercussions for the livelihoods of fisherfolk. In 2013-14, the river was known to support approximately eight distinct fish species; it now harbours only one species.[8]

The indiscriminate copy/pasting of the Sabarmati RFD model across 100+ cities in India, devoid of genuine stakeholder engagement, is encountering widespread resistance across the country, as evidenced in cities such as Pune, Kota, Ahmedabad, Delhi, and more. These resistances have culminated in legal battles at the National Green Tribunal (NGT) and various State/Federal High Courts, indicating serious discontent and opposition to such dangerous projects. The NGT has taken suo motu cognizance[9] in challenging environmental violations in the Netravati RFD in coastal city of Mangaluru in the State of Karnataka, Southern India, and the Joint Committee constituted by NGT against the Chambal RFD in Kota, in the State of Rajasthan, North-Western India has found violations of green norms.[10]

Initial findings from the compilation of ten RFD projects paint a concerning picture of widespread destruction affecting livelihoods, biodiversity, rivers, and public finances.[11] Consider the following list of RFDs in different Indian cities and the projects’ associated social, ecological, and economic challenges:

Source: Authors’ Analysis, referenced citations from 12 to 27.

Inappropriate Importation of European Riverfront Development Project Models

Many of India’s contemporary urban RFD projects are inspired by the designs of European models such as the Thames and Seine River fronts. Such imported models, however, fail to recognize the unique paths carved by Indian rivers. Rivers in South Asia, often originating from mountains, carry a lot of silt and sedimentation. The meandering of such rivers not only adds to the beauty of the landscape but also renders many ecological and social services and slows down the flow of the gushing rivers. The sediments deposit in the plains, creating the riverbanks that sustain millions of lives and livelihoods. Through the sedimentation process, rivers store and recharge the groundwater along their paths and thereby feed the lifeline of India.

By 2025, it is anticipated that one out of every two Indians will live in cities.[28] Concrete and grey infrastructure such as is incorporated in the RFD models contradict efforts to revitalise rivers and mitigate urban flooding effectively. Rejuvenation of rivers is necessary, and restoration of public spaces around rivers is needed beyond aesthetics. River fronts in cities must be open public spaces that allow for social-cultural-spiritual engagement and connection with rivers. “What” kind of river fronts are designed, and “who” designs them for the benefit of “whom,” is key to ensuring the public places are enjoyed by everyone. The current trend of RFD is catering to only particular aesthetics and sects of the society. The booming real estate market (riverview apartments) and tourism activities along the riverfront means that low-income residents, particularly those displaced by the project, no longer have equitable access to the river.[29] Digvijay Singh, CEO of Indore Smart City, touts the Kahn River project’s success, citing a 40% rise in property prices while disregarding access to housing for the marginalized.[30] The social and ecological fault lines of such RFDs lead to exclusive access, further marginalizing those whose livelihoods depend on the rivers.

Embracing Rights of Rivers and Ecological Flow of Rivers

​​Rights of Nature is emerging as a governance approach for protecting our ecosystems and their inhabitants. It essentially recognizes Nature—in this case, rivers—as legal entities with intrinsic rights, akin to human rights, to protect them from environmental degradation and exploitation. This approach seeks to shift the legal paradigm from viewing rivers solely as resources for human use to recognizing them as living entities with their own rights.[31] Around the world, the movement for granting rights to rivers is growing and is believed to lead to more responsible environmental stewardship and a more holistic approach to conservation and development.[32]

The legal Rights of Nature movement in India[33] stemmed from judicial decisions from several State High Courts.[34] These began with a landmark judgment from March 2017 (In Mohd. Salim vs. State of Uttarakhand & Ors., Writ Petition (PIL) No. 126/2014) by the Uttarakhand State High Court, granting legal recognition to entities such as the Yamuna and Ganga Rivers.[35] This recognition was soon extended to their tributaries and glaciers by another order from the Uttarakhand High Court (In Lalit Miglani vs. State of Uttarakhand & Ors., Writ Petition (PIL) No. 140/2015).[36] However, the Uttarakhand High Court orders were quickly stayed by the Supreme Court (In State of Uttarakhand vs. Mohd Salim & Ors., SLP (Civil) 16879/2017), in April 2017.[37] The Uttarakhand Government had argued for reversal of the order for reasons including the impractical imposition of duties on the rivers and concerns about transboundary jurisdictional issues. While this matter is yet pending before the Supreme Court, other judgments granting legal rights to nature have been passed by various other High Courts of India. For example, cases related to the following subjects:

• Animal Kingdom (In Narayan Dutt Bhatt vs. Union of India & Ors)[38]

• Sukhna Lake (In Court on its Own Motion vs. Chandigarh Administration)[39]

• Mother Nature (In Periyakaruppan vs. Principal Secretary to Government & Ors., WP (MD) 18836/2018)[40]

Historically, India has always and continues to revere nature through customs and traditions, although many of these practices have now become symbolic. Court rulings such as that from Uttarakhand may not offer immediate solutions to prevent the exploitation of natural resources, but they hold the potential to shift legislative paradigms towards prioritizing environmental protection over developmental projects. For example, local and Indigenous communities preserving ecosystems via practices such as protecting Sacred Groves are safeguarded by laws like the Forest Rights Act (FRA), enacted in 2006 in India. The FRA empowers tribal (Indigenous communities known as Adivasis) and other forest-dwelling communities to assert legal ownership over ancestral forest lands.[41] It rectifies historical injustices by granting them rights previously denied, including management authority and access to forest resources.

The rights of rivers primarily include the right to flow freely without pollution and the right to flood its floodplains. Therefore, implementing urban floodplain zoning and preventing encroachments in buffer zones are crucial steps to enable rivers to swell and shrink through changing seasons. A case in point is the August 2023 heavy rainfall and floods in New Delhi in the Yamuna floodplains.[42] No plan or action has been put in place to address these issues with an understanding of “pattern of rainfall and pattern of land use,” making this a recurring phenomenon.[43] Concurrently, the Yamuna RFD plan is underway for a 22 km stretch of the floodplains with the goal to enhance the area’s beauty, rejuvenate the floodplains, and provide better public access.[44] An increase in grey infrastructure over and around rivers has created a huge disturbance with the flow of the Yamuna river. There are currently 14 bridges on the riverbed for roads, railways, and metro, and two more in the planning stage.[45] The recent flooding, during which the Yamuna reclaimed its centuries old original course, serves as a significant lesson highlighting the importance of understanding floodplain dynamics and the potential hazards linked to altering the natural flow of rivers through concretized encroachments.

Over the years, with an increasing number of dams for hydropower generation and rising impacts of climate change, Indian rivers, especially in urban areas, are facing the dichotomy of water scarcity and flash flooding. The solution to both problems lie in ensuring that the ecological flow of rivers (linear, horizontal, and vertical) across all the seasons is maintained. It has been recognised and legally mandated by the National Green Tribunal in OA 498 of 2015, “all States to maintain a minimum environmental flow of 15-20% of the average lean season flow in their rivers.” While the minimum of 15-20% can be challenged itself, the recognition of maintaining ecological flow of the river is a welcome decision. In their Action Plans for rejuvenating polluted rivers, the River Rejuvenation Committees have mandated maintaining ecological/environmental flows.[46]

Advocating Action for Harmonious Coexistence with Rivers

Rivers are beautiful, life-giving, productive, self-restoring natural ecosystems on which our survival, and that of all lifeforms, depends. Rivers have inherent ecological functions, such as to feed and be fed by their aquifers and to provide home to aquatic natural biodiversity. As city dwellers in rapidly urbanizing India, we must stand up in action for rivers against maladaptation practices, such as cosmetic encroachment upon rivers and their hydrology, that threaten water security, cultural significance and reverence, climate resilience, and equal access to rivers. The loss and damage caused by urban flooding is a result of throttling the rivers by narrowing their channels for concretized development and recreation.

To truly restore rivers and enjoy their beauty, we need to create and sustain democratic participatory processes that include mapping hydrology and stakeholders (including non-human) of the rivers. Thereafter, we need to successfully implement Rights of Nature by recognizing rivers’ right to exist and regenerate, as seen in the Ecuadorian Constitution, and the protection of the rights of local communities and Indigenous Peoples (Tribals/Adivasis in India) who have historically safeguarded nature.[47] It is compelling that we prioritize bioregional governance and strategies for addressing the looming climate and biodiversity crises. By embracing the solutions offered by nature, we can pave the way for restoration and regeneration and secure our future.

At the policy level, the River Cities Alliance in India serves as a platform facilitating the exchange of best practices and lessons among river cities.[48] Drawing insights from the challenges encountered in RFDs, particularly concerning social and ecological concerns, offers valuable learning opportunities for other river cities to avert similar pitfalls. As the leader of the Global River City Alliance, India has the opportunity to demonstrate its leadership through action and ideology by setting a precedent for advocating a river-centric perspective and endorsing the rights of rivers as fundamental principles for the 275+ global cities within this alliance.[49]

Citations

[1] https://sabarmatiriverfront.com/

[2]https://timesofindia.indiatimes.com/india/from-kashmir-to-kota-indias-riverfronts-are-undergoing-a-makeover/articleshow/107784236.cms

[3] https://timesofindia.indiatimes.com/india/from-kashmir-to-kota-indias-riverfronts-are-undergoing-a-makeover/articleshow/107784236.cms

[4]https://www.hindustantimes.com/cities/delhi-news/indias-cities-are-transforming-their-waterfronts-101706464299346.html

[5] http://www.tapiriverfront.com/

[6] https://sabarmatiriverfront.com/

[7] https://www.downtoearth.org.in/news/water/the-dark-side-of-sabarmati-river-development-63728

[8] https://india.mongabay.com/2019/02/after-pollution-riverfront-development-chokes-lucknows-gomti/

[9] https://www.downtoearth.org.in/news/water/netravati-riverfront-project-ngt-takes-cognisance-of-crz-environmental-norm-violation-allegations-seeks-report-95189

[10] https://timesofindia.indiatimes.com/city/jaipur/chambal-riverfront-project-violated-green-norms-panel/articleshow/107738395.cms

[11] https://sandrp.in/2022/06/21/river-front-development-projects-damaging-rivers-wasting-public-money/

[12]http://timesofindia.indiatimes.com/articleshow/107706945.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[13] https://ballotboxindia.com/ap/Riverfront-projects-in-India/5182095549/

[14]http://timesofindia.indiatimes.com/articleshow/107738395.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[15] https://sandrp.in/2022/06/21/river-front-development-projects-damaging-rivers-wasting-public-money/

[16]https://www.downtoearth.org.in/news/governance/ganga-riverfront-construction-work-stopped-in-bihar-s-bhagalpur-for-violating-wildlife-sanctuary-act-82623

[17]https://timesofindia.indiatimes.com/city/jaipur/rs-1600cr-later-dravyavati-riverfront-is-squatters-hub/articleshow/88131513.cms

[18]​​https://www.deccanchronicle.com/nation/current-affairs/140921/government-shelves-musi-riverfront-development-project.html

[19]https://india.mongabay.com/2022/05/punes-proposed-river-rejuvenation-project-does-not-consider-ecology-hydrogeology-and-climate-change-say-experts/

[20] https://www.counterview.net/2021/04/chhattisgarhs-apra-riverfront-imitates.html

[21]https://india.mongabay.com/2023/07/environmentalists-raise-concerns-as-work-on-jks-tawi-riverfront-continues/

[22]https://www.hindustantimes.com/india-news/gomti-riverfront-development-scam-cbi-raids-40-locations-in-up-101625461000696.html

[23] https://www.downtoearth.org.in/news/water/the-demise-of-rivers-59881

[24]https://prcindia.in/publications/reports/yamuna-riverfront-development-project-a-culmination-of-the-struggle-between-planned-and-unplanned/

[25] https://www.counterview.net/2021/07/citizens-object-to-utterly-destructive.html

[26]https://prcindia.in/publications/reports/emerging-fronts-and-dwindling-ganga-a-preliminary-report-on-patna-riverfront/

[27] https://sandrp.in/tag/riverfront/

[28]https://www.orfonline.org/wp-content/uploads/2021/05/ORF_OccasionalPaper_317_BlueGreenInfrastructure.pdf

[29] https://urbanvoices.in/riverfront-projects-are-new-tools-for-urban-revitalization-globally/

[30] https://www.hindustantimes.com/cities/delhi-news/indias-cities-are-transforming-their-waterfronts-101706464299346.html

[31] https://www.globalassembly.de/en/rights-of-nature/case-studies/rights-of-rivers-india

[32] https://www.earthlawcenter.org/river-rights

[33] https://www.youtube.com/watch?v=GvPf2IR8cQs

[34] https://india.mongabay.com/2020/06/commentary-righting-the-wrong-rights-of-rivers-in-india/

[35] https://www.ielrc.org/content/e1704.pdf

[36] https://indiankanoon.org/doc/92201770/

[37] https://webapi.sci.gov.in/jonew/courtnic/rop/2017/10359/rop_917276.pdf

[38] https://indiankanoon.org/doc/157891019/

[39] https://indiankanoon.org/doc/87436538/

[40] https://ecojurisprudence.org/wp-content/uploads/2022/06/Madras-High-Court-Ruling-Rights-of-Nature.pdf

[41] https://tribal.nic.in/FRA.aspx

[42]https://frontline.thehindu.com/environment/how-extensive-urban-development-in-yamuna-plains-increases-risk-of-floods-in-delhi/article67142123.ece

[43]https://scroll.in/article/1053060/delhi-floods-political-spat-over-provincial-water-management-covers-up-for-municipal-inadequacies

[44]https://prcindia.in/publications/reports/yamuna-riverfront-development-project-a-culmination-of-the-struggle-between-planned-and-unplanned/

[45]https://www.urbanprecis.com/bridges-over-yamuna-in-delhi/#:~:text=Map%20depicting%20location%20of%20bridges,in%20planning%20and%20construction%20stages.&text=New%20Yamuna%20Bridge%20as%20a%20replacement%20for%20Old%20Yamuna%20Bridge's%20railway%20traffic.

[46] https://pib.gov.in/PressReleasePage.aspx?PRID=1782294

[47] https://www.thethirdpole.net/en/climate/opinion-time-to-recognise-and-respect-rivers-legal-rights/

[48] https://pib.gov.in/PressReleasePage.aspx?PRID=1795103

[49] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1985500

ELC Latin America Team to Cohost Official Side Event at Escazú Agreement COP 3 (Zoom webinar registration link below)

COP 3 of the Escazú Agreement is the third meeting of the Conference of the Parties to the Regional Agreement on Access to Information, Public Participation, and Access to Justice in Environmental Matters in Latin America and the Caribbean. This conference will take place from April 22nd to 25th at the headquarters of the Economic Commission for Latin America and the Caribbean (ECLAC), Santiago de Chile.

The implementation of this international treaty is essential to strengthen environmental human rights and generate cultures that are safe for defenders of Nature and conducive to their work. (Click image below to register or read on for additional information and links.)

Earth Law Center (ELC) together with NGO Defensa Ambiental are working on successful implementation of the Escazú Agreement in Latin America. Our Latin America Team is running a project, entitled “Training on the Rights of Access to Information, Participation, and Justice in Environmental Matters,” aimed at Indigenous women who defend rivers in Chile and Peru.

The project has the support of ECLAC and the French embassy in Chile, and in this event we will have the distinguished presence of the Indigenous women defenders of the Marañón River, who in March of this year achieved a legal victory recognizing the river as a rights-holding entity, as well as their rights as its legal protectors.

At the upcoming Escazú Agreement COP3, we have organized the following official side event, to which we are pleased to invite you:

“Comparative experiences of Ecuador, Chile, and Peru in the implementation of safe and enabling environments for Nature defenders. Evaluation of barriers and accessibility in environmental rights.”

This event will take place on Monday, April 22nd, between 12:30 to 14:00 pm (GMT -4, Santiago de Chile). This event is a Zoom webinar, with access starting at 12:25 pm.

Click the image above or use this link to register.

Consult the complete program of our event in Spanish here.

Consult the complete program of our event in English here.

Rights of Nature or Wrongs to Nature? The Denial of Legal Personhood to Nature in the UK

By Charlotte Dent

In February 2024, a British government official told the United Nations (UN) that the United Kingdom (UK) would never give rights to Nature.

During a debate on preliminary negotiations for the UN Environment Assembly in Nairobi, the British delegate from the Department for Environment, Food, and Rural Affairs (Defra) said, “The UK’s firm position is that rights can only be held by legal entities with a legal personality. We do not accept that rights can be applied to nature or Mother Earth. While we recognise that others do, it is a fundamental principle for the UK and one from which we cannot deviate.”

Defra’s statement is both misleading and ill-judged. It wrongly suggests that the category of bodies with a legal personality cannot be extended. In fact, there is nothing immutable about rights; legal personhood has developed over time to reflect societies’ understanding of who or what is deserving of rights under the law. 

The creation of modern Human Rights law gave all human beings legal subjecthood. Marginalized groups such as women, however, have historically been denied this right. In the UK, the common-law doctrine of “coverture,” brought over by the Norman Conquest in 1066, meant that married women could not enjoy legal personhood separate from their husbands. Coverture was not challenged until the Married Women Property Acts of the 1870s to 1890s, which changed the status of women from legal objects to subjects under the law.

Human beings are not the only legal entities with legal personalities recognized in the UK. Non-human entities, such as companies, have enjoyed personhood since 1844. In fact, ships were granted personhood in the nineteenth century even as they were transporting human cargo denied this right: slaves. 

Defra’s “firm position” that rights cannot be given to Nature thus falsely conceives of the law as a static entity bound by predetermined “fundamental principles.” On the contrary, the UK’s uncodified constitution gives lawmakers a great deal of flexibility to enact statutes that reflect the evolving understandings of who or what has intrinsic value and deserves rights.

Government stance runs counter to majority opinion, including King Charles’s support for “fundamental rights and value of Nature”

Defra’s statement is also ill-judged because it turns a blind eye to the fact that the UK’s current environmental laws are not working, a fact of which the British public is well aware. According to a YouGov poll from September 2022, 81% of UK adults believe Nature is under threat and that more needs to be done urgently to protect and restore it. Even the former Prince of Wales (now King Charles) has recognized “the fundamental rights and value of Nature” in the foreword to Terra Carta: For Nature, People, & Planet, his roadmap for sustainable business.

Defra’s opposition to granting Nature rights is not just flawed; it is materially concerning. This is because the UK’s current environmental laws are failing spectacularly. 

Under UK law, Nature is a legal object with a limited range of interests, which are afforded protections through statutes and by the regulatory agencies that enforce them. This system is inherently flawed and deeply unsuccessful. 

The statutes that were created to protect Nature have in actuality vested regulatory bodies with breathtaking authority and discretion to issue permits that allow the very harms that the laws were designed to prevent. Moreover, regulations are weakened by corporate interests, and subject to the changing priorities of governments. The problem has been compounded by government cutbacks, which have left the regulators unable adequately to prosecute polluters, who cause destruction without fear of legal consequences. 

One only has to glance at the state of the UK’s waterways to appreciate this alarming system failure in practice. The law only allows untreated sewage discharges in exceptional cases, such as during periods of unusually heavy rainfall. However, in 2022 there were 1.75 million hours of raw sewage discharges. This has left only 14% of rivers in England with a “good” ecological status, and none with a “good” chemical status. Despite the Environment Agency’s reports decrying the pollution in rivers as “shocking” and “unacceptable,” there have only been an average of seven prosecutions a year between 2015 and 2021. 

A September 2023 investigation conducted by the Office for Environmental Protection into sewage overflows suggested the UK government, the Environment Agency, and the Water Services Regulation Authority loosely interpret the law that limits dumping. These regulatory bodies are therefore complicit in the water companies’ pollution. Unsurprisingly, the report also condemns Defra for failing in its duty to make enforcement orders against non-compliant sewage companies.

The problem is underpinned by the privatization of the water companies. England is one of only two countries in the world to fully privatize water. The result is that water is treated as a product with instrumental value, sold by companies beholden to investors, who pay out profits to shareholders instead of reinvesting in better infrastructure to limit damage. Over the three decades in which water has been privatized, the nine main water and sewage companies have run up net debts of almost £54bn and paid out dividends of £65.9bn, while overseeing a lack of investment. 

The fate of the UK’s waterways points to the greater truth that statutes protect corporate interests over the protection of Nature, and treat our most vital natural resources as assets to be traded and squandered for financial gain.

The current system of environmental law in the UK is a monumental failure. Rather than organizing an emergency response to an existential climate threat, regulations and regulators protect the interests of industries that rely on the destruction of Nature for their business, bringing the ecosystems to the edge of the climate precipice. The UK’s “protective” laws now serve as the rope to which it grips as it walks the plank toward destruction.

The system failure demonstrates that the UK needs a new approach to the protection of nature. As long as it is a legal object, afforded lackluster protections so it can be exploited for human gain, the natural world will not be safe. It is time to afford Nature rights through legal selfhood so that it can protect itself against harms. 

Toward Rights of Nature in the UK

Photo credit: Sam LeGrys

The Rights of Nature movement aims to bestow fundamental rights and safeguards upon ecosystems and natural entities within the environmental sphere. It encompasses a range of principles, from advocating for the right of natural entities to flourish to seeking formal recognition of Nature as a legal entity in its own right. This stands in contrast to the current paradigm wherein ecosystems are typically viewed as human property or resources devoid of their own rights or autonomy.

The Rights of Nature movement seeks to address the underlying causes of ecological decline—particularly the widespread commodification of nature. While traditional environmental laws are frequently reactive, intervening only when a species or ecosystem is on the brink of collapse (such as with endangered species legislation), giving nature legal personhood recognizes its right to exist, thrive, and regenerate. Such legal recognition enables the defense of the environment in judicial settings—not solely for human benefit, but also for the intrinsic value of Nature itself.

When Nature, or a part of it (such as a river, forest, or species) is declared a “subject of rights,” it has the right to legal representation by a guardian—much like a charitable trust designates a trustee—who will act on its behalf and in its best interest. This guardian is typically an individual or a group of individuals well-versed in the care and management of the ecosystem. This gives Nature a voice through a legal representative that can protect its interests. 

Rights of Nature is not just a concept, it is also enshrined in law in some countries and communities, such as Ecuador, where it has been part of the constitution since 2008. In Ecuador, the Constitutional Court to date has found that rights exist for forests, mangroves, beaches, and a wild monkey in captivity. Other countries, such as New Zealand, Columbia, and most recently, Peru, have granted rights to rivers under the law.

Establishing legal rights for Nature will help us transform the legal system into one that can be used to protect and improve ecology. Adopting this legal framework will move us toward a system wherein Nature is valued and protected for its own sake, and can protect and defend itself, rather than relying on limited statutory protections enforced by toothless regulators. Contrary to Defra’s assertion, giving Nature rights under the law is surely our best chance of securing its enduring protection.

The Global Plastics Treaty and "Plastics Justice"—A Primer

Led by Ocean Program Director Rachel Bustamante, Earth Law Center (ELC) recently released a report entitled “Advancing Ocean Justice in the Global Plastics Treaty.” You can find more information, including links to the full report and a related press release, on ELC’s Ocean Plastics webpage.

In this blog post, we break down some key terms and concepts related to plastic pollution, the Global Plastics Treaty, and plastics justice, ending with ways that anyone can get involved in this critically important issue.

What is the Global Plastics Treaty?

The Global Plastics Treaty (GPT) is an international agreement currently being negotiated at the United Nations (UN), with the treaty process having been launched in March 2022 by a resolution of the UN Environment Assembly (UNEA). Its Resolution 5/14 calls for the development of “an international legally binding instrument on plastic pollution, including in the marine environment, . . . which could include both binding and voluntary approaches, based on a comprehensive approach that addresses the full life cycle of plastic.”

This treaty process represents an unprecedented opportunity to address the plastic crisis.

What is the scope of the plastic pollution crisis?

Plastic pollution is severe and widespread. Across their full life cycle (production, distribution, use, and waste), plastics cause damage to people and Nature. For instance, 99% of plastics are made from fossil fuel-based polymers and require greenhouse gas emissions in their production. Then, plastics result in further emissions as they are trucked or shipped to industries and consumers. 

Plastics contain harmful chemicals, including known cancer-causing agents (carcinogens), and plastic waste pollutes the environment and can be harmful or deadly to wildlife that ingests plastics or gets tangled in them. Plastic pollution occurs both at the macro-level, such as plastic bags blowing around a city block or discarded fishing nets floating in a river or ocean, and also at the level of microplastics. These tiny plastic particles are now so widespread they have been found in everything from remote alpine raindrops to the bloodstreams of wildlife to a rising percentage of human placentas. 

Microplastics have also been found in every ocean basin, and plastics represent a particular threat to ocean life and ecosystems. For a more in-depth take on the research and details of this issue, we suggest reading “An Earth Law Solution to Ocean Plastic Pollution” by Michelle Bender. “Plastic fragments can transport contaminants, increase their environmental persistence, and concentrate organic pollutants up to 106 times that of surrounding seawater,” she writes. “The chemicals present in plastic pollution, such as PCBs, lead to reproductive disorders or death, increase the risk of diseases, and alter hormone levels.”

While plastics impact virtually every ecosystem and human being, it is clear that disproportionate negative impacts occur to the ocean and across race, occupation, ethnicity, class, gender, and age—which leads us to the topic of plastic justice.

What is plastic justice?

The term “plastic justice” points to the reality that the harms caused by the full life cycle of plastics disproportionately impact the ocean and marginalized communities, and so a just response requires attending to those disproportionate impacts. 

To take one example: enormous amounts of plastic are dumped into the ocean every year. These plastics not only harm and kill fish and other sea life but also wash up on the shores of island and coastal states, such that impoverished communities suffer the health and economic consequences of plastics they neither produced nor used.

Plastic justice is comprised of three main elements: 

• the protection of the ocean

• the fulfillment of human rights

• the progression of social equity

ELC’s report introduces plastic justice in much more detail and maps the communities most burdened by plastic pollution, including Small Island Developing States, Indigenous Peoples, People of Color, the Global South, youth, and other marginalized communities. 

How is the Global Plastics Treaty being negotiated?

More than 160 countries participate in the process, which is being overseen by a body called the International Negotiating Committee on Plastic Pollution (INC). The development of a draft treaty takes place through a process of comment and revision, punctuated by multiple rounds of in-person negotiation.

Three rounds of negotiation, held in Uruguay, France, and Kenya, took place in 2022 and 2023. A fourth (INC-4) will take place in Ottawa, Canada from April 23 to 29, 2024. A fifth and likely final round of negotiations (INC-5) is scheduled for November 5 to December 1 in Busan, South Korea, with plans for treaty adoption in 2025. 

What is (and isn’t) in the current draft of the Global Plastics Treaty?

As it stands, the treaty text combines a blend of binding and voluntary targets. Following the last session of negotiations (INC-3), substantial diverging views on the scope and ambition of the agreement caused the now Revised Zero Draft to grow almost three times in size, aiming to accommodate all of the inputs of countries. This means that provisions across the six parts, which cover issues including microplastics, addressing existing pollution, preventing new pollution, a just transition, waste management, and implementation, currently include a range of options for countries to discuss at INC-4. 

Though some countries have advocated for limiting the scope of the treaty to cover only pollution or waste management, Resolution 5/14 mandates the agreement cover the full life cycle. Currently, there are no provisions to reduce plastic production at a global level or protect against biodiversity impacts, nor are there numerical targets that mandate a specific timeline for implementation. 

Although an international treaty on plastic pollution is an important step and much progress has been made toward it, it’s disheartening to see that the current draft lacks a binding obligation for treaty signatories to protect human rights. It lacks even a single instance of the word “justice,” much less a substantive incorporation of justice principles and human rights.

Earth Law Center's Report: Highlighting the Need for Ocean Justice

ELC’s report, “Advancing Ocean Justice in the Global Plastics Treaty,” emphasizes that ocean justice is crucial for achieving an effective agreement. With the next round of negotiations scheduled for April in Ottawa, Canada (INC-4), this report can serve as a vital advocacy tool, highlighting how the full life cycle of plastics disproportionately harms the ocean and marginalized communities and thus demands a response grounded in justice.

The report includes geographical and sectoral survey findings—highlighting, for instance, that support for including human rights in the final treaty was notably strong among African and Latin American countries, and that large majorities of surveyed representatives of government, nonprofit organizations, academia, and business support using Rights of Nature principles to help guide the treaty. Other recommended principles of law include Indigenous Knowledge, polluter pays, intergenerational equity, and common but differentiated responsibilities and respective capabilities.

“The importance of embedding justice within this treaty cannot be overstated,” said Rachel Bustamante, Ocean Program Director at ELC. “The plastic life cycle jeopardizes every Sustainable Development Goal, contributes significantly to global climate change, and threatens human rights worldwide. How equitable and just this treaty turns out to be will have undeniable implications for people, the ocean, and truly, the planet.”

What is #Youth4PlasticJustice?‍

To build continued support and momentum for a Global Plastic Treaty that includes consideration for ocean justice and human rights, Earth Law Center, EarthEcho International, The Ocean Project, and World Ocean Day are planning a series of actions as part of an advocacy campaign called #Youth4PlasticJustice at INC-4, taking place from April 23 to 29, 2024 in Ottawa, Canada. ‍

How can I get involved?

Join the #Youth4PlasticJustice movement:

1. Raise your voice by helping contribute to a video with a call-out to world leaders at INC-4 to support the inclusion of justice and human rights in the Global Plastics Treaty. Check out these submission details and RECORD AND SUBMIT YOUR VIDEO HERE. 

2. Sign the petitions to demand negotiators advance ocean justice at INC-4 and adopt a strong Global Plastics Treaty. 

3. Follow Earth Law Center, EarthEcho International, and World Ocean Day on social media to learn more and stay up to date on actions. 

Peru's Marañón River Wins Recognition of Rights and Indigenous Guardianship in Court

Earth Law Center (ELC) celebrates an important victory obtained for the Marañón River on March 18, 2024. The Kukama Indigenous women of Santa Rita de Castilla, and legal nonprofit Instituto de Defensa Legal (IDL), obtained a historic ruling recognizing the river as a holder of inherent rights—the first such ruling in Peru. With ELC’s Latin America Legal Program having supported the case since its inception, we are thrilled to see this development.

In a decision that will reverberate for years through Peru and the international environmental community, the judge representing the Mixed Court of Nauta ruled in favor of the Federation Huaynakana Kamatahuara Kana (HKK), an association of the Kukama people based in the heart of the Peruvian Amazon, who have defended the river from oil spills for more than a decade.

In the application for protection in the case, the Kukama women, through the president of their federation, Mrs. Mariluz Canaquiri, requested the court to recognize the Marañón River as a subject of rights and for its intrinsic value. In the worldview of the Kukama people, the river is a living being that is home to different forms of life, as well as the Kukama ancestors.

The Kukama women also requested that a basin council be established so as to bring Indigenous communities into the decision-making process in relation to the conservation and protection of the river. The members of HKK have now been appointed guardians of the river, and the oil company Petroperú has been ordered to update its environmental management plan and to better maintain the oil pipeline that for years has contaminated the flow of the Marañón River.

The defense of the case has been carried out since 2020 by lawyers Juan Carlos Ruiz and Maritza Quispe from IDL, which advises and supports the legal defense of Indigenous peoples and communities in Peru. The request for protection that IDL drafted was key to giving a voice to the Kukama women so that they could participate in the legal process to protect the river that they consider to be sacred.

Constanza Prieto-Figelist and Javier Ruiz of the ELC Latin American Legal Program have been involved with the river defenders in several ways, including running a capacity development workshop in November 2023 in the Kukama territory of the Amazon. The workshop’s aim was awareness and skill-building regarding the exercise of rights of access to information, participation, and justice in environmental matters—all of which are aspects of the implementation of the Escazú Agreement, a regional environmental treaty involving several dozen nations in Latin America and the Caribbean.

Prieto-Figelist and Ruiz have supported the case itself since its formulation and, together with Monti Aguirre of International Rivers (IR), led one of the three amicus curiae briefs that were presented at the November 2023 hearing of the trial. Other organizations, including the Global Alliance for the Rights of Nature; the Justice and Corporate Responsibility Project; the Center for Environmental Law, based at the University of Victoria, Canada; and the University of Essex, United Kingdom, joined the specialized briefs.

Javier Ruiz, ELC’s environmental policy and climate change specialist, was present at the hearing in Nauta on November 9, 2023 to explain the importance of recognizing the rights of the Marañón River. He also emphasized the urgency of applying the precautionary principle in environmental matters—the idea that judges should rule against practices or developments whose impact on the environment presents uncertain but plausible risks—to help guide a decision in favor of the river and the Kukama women.

The amicus curiae presented by ELC and IR clearly had a positive influence on the case. The judge applied the precautionary principle in the face of serious threats to the Marañón River, such as continued oil spills from and lack of maintenance of the Petroperú company’s oil pipelines. She also made use of the consultative and jurisprudential criteria of the Inter-American Court of Human Rights to establish a legal link between the right to a healthy environment and the rights that were recognized for the Marañón. Furthermore, she made reference to the applicability of the international standard of human rights of Convention 169 of the International Labour Organization’s Indigenous and Tribal Peoples Convention. 

Highlights of the Ruling

In the resolutions of the sentence, the judge declared the Marañón River and its tributaries as the holder of the following inherent rights:

• The right to flow;

• The right to exist in and support a healthy ecosystem;

• The right to flow free from all contamination;

• The right to feed and be fed by its tributaries;

• The right to biodiversity;

• The right to be restored;

• The right to the regeneration of its natural cycles;

• The right to the conservation of its ecological structure and functions; and

• The right to protection, preservation, and recovery.

She ordered the Peruvian State to recognize and protect the aforementioned rights, and further ordered that the Regional Government of Loreto (GOREL) carry out the pertinent procedures before the National Water Authority for the creation of a water resources basin council for the river and its tributaries, urging the authorities to include the participation of Indigenous communities.

She named the Indigenous communities and the Peruvian State through its authorities as guardians, defenders, and representatives of the Marañón River and its tributaries. 
The judge also ordered the Petroperu company to prepare and present an updated Environmental Management Instrument within a period of six months, stipulating that said instrument include a comprehensive evaluation of the impacts that the company is making upon the river in carrying out transportation and hydrocarbon activities. She likewise ordered the company to assume commitments regarding environmental and human rights, including consultation with Indigenous peoples about updating its environmental instruments.

Elements of Indigenous worldview and human environmental rights in the ruling

There are two points that we must take into account to understand why rights were recognized for the Marañón River, when so many other such cases have not succeeded.

The first point is that the plaintiffs are Indigenous women, which meant not only the inclusion of an Indigenous worldview in the court case but also the pertinence of a body of legal work related to Indigenous human and environmental rights. Currently, the Kukama territory is made up of the lands located on the Huallaga, Marañón, and Nucuray-Pavayacu Rivers within the Alto Amazonas Province in Loreto, Peru, and there is a second, eastern block located in the Pacaya and Samiria Rivers around the National Reserve of that name and in the Puinahua channel in the lower Ucayali. The Kukama culture and worldview has an aquatic orientation, in which the Marañón River is a living being and is conceived as an entity that harbors life. The first ancestor of the Kukama lineage is said to have been born from the river, and the Marañón is the vertebral column that articulates their culture and identifies them with the territory adjacent to the river.

There is an extensive body of work related to human rights of Indigenous peoples applicable to the Latin American region. The international system recognizes the rights to culture and territory of peoples, such as ILO Convention 169, and the United Nations Declaration and American Declaration on the Rights of Indigenous Peoples. Likewise, the Inter-American Court of Human Rights on repeated occasions has issued binding jurisprudence regarding the effects on the environment, culture, water, and territories of Indigenous communities. This new ruling on the rights of the Marañón thus has a solid basis in the standards of cultural and territorial rights of Indigenous peoples and sets a new precedent for future cases.

The second point is that the judge in the case relates constitutional human rights already recognized in the Peruvian Constitution to the Rights of Nature. The main starting point is the criterion set by the Inter-American Court of Human Rights in its Advisory Opinion 23/17, which holds that the right to a healthy environment must protect the elements of Nature for their intrinsic value and that it is possible to recognize Nature’s rights.

In addition to developing the constitutional content of the right to a healthy environment based on the standard set by the Inter-American Court of Human Rights, the judge set the ecological scope of her ruling in relation to the Constitution of Peru. The Constitutional Court of Peru issued a ruling in case 322/2023, stating that biocentric and ecocentric approaches to the protection of Nature have constitutional validity. Taking this argument into account, as well as the language regarding intrinsic value of Nature adopted in the new Kunming-Montreal Framework’s Convention on Biological Diversity, the judge recognized the rights of the Marañón River.

This ruling is a critical first step toward vindicating the rights of the Kukama people, marking positive progress in the fight undertaken by Indigenous women in Peru and beyond. “In our worldview, rivers are sacred, but with oil pollution we saw how they were damaged by heavy metals and the population became sick,” said Mariluz Canaquiri. “That is why we ask that their rights be respected.”

For IDL lawyer Juan Carlos Ruiz, the sentence is very important: "Because by recognizing rivers as living entities with rights, the actions of the State are constrained. That is to say, it will make any State action that puts rivers in danger subject to nullification."

“We are very happy to receive the ruling, it is the first in Peru to recognize an element of nature with its own rights,” said ELC’s Javier Ruiz. “It is a ruling that provides justice for the Kukama women and their people, recognizes them as guardians and defenders of the river, in addition to ordering that they be consulted in accordance with the standards of ILO Convention 169.”

ELC will maintain its commitment to supporting the legal defense of the Marañón River and its Indigenous women defenders. The ruling from the court is a first-instance resolution that can still be appealed by the Peruvian authorities and that will require extensive legal work and support from all allies in the case.

Consult the ruling [Spanish]

For further reading on this case:

1. Historic ruling recognizes the Marañon River as a subject of Rights

2. Landmark ruling: The Peruvian Court of Nauta recognizes the rights of the Marañón River and the Indigenous communities as its guardians

3. Historical event in the Amazon: Kukama women get Peru to recognize the rights of a river 

4. Loreto: judicial ruling declared the Marañon River as a subject of rights

5. Historic ruling: The Peruvian Court recognizes the rights of the Marañon River 

6. Historical judgment: Peruvian Court recognizes rights over the Marañon River 

7. After Years of Indigenous-Led Campaigning, Court Grants Rights to Peru's Marañón River

8. Historic ruling: Loreto Court recognizes the Marañon River as a subject of rights 

9. Historic ruling: Peruvian Court recognizes rights over the Marañon River 

10. Historic ruling recognizes the Marañon River as a subject of rights 

11. Landmark Peruvian Court Ruling Says the Marañón River Has Legal Rights To Exist, Flow and Be Free From Pollution

12. Rights of Nature granted to one of the River Amazon’s main sources

An Interview with Rabbi Anson Laytner, Translator of "The Animals' Lawsuit Against Humanity"

An Interview with Rabbi Anson Laytner, Translator & Editor of The Animals' Lawsuit Against Humanity

Book description from the publisher:

In this interfaith and multicultural fable, eloquent representatives of all members of the animal kingdom—from horses to bees—come before the respected Spirit King to complain of the dreadful treatment they have suffered at the hands of humankind. During the ensuing trial, where both humans and animals testify before the King, both sides argue their points ingeniously, deftly illustrating the validity of both sides of the ecology debate.

***

About the translator:

Anson Laytner is a happily retired rabbi, living in Seattle, whose career focused on building positive interfaith and interethnic relations in our community. His most recent book is The Forgotten Commandment. For more information or to contact him, go to www.ansonlaytner.com, and see the bottom of this page for a fuller bio.

***

This interview has been condensed and edited for clarity.

Grant Wilson: Before we dive into the book, I'd love for you to tell us a little bit about who you are and your background.

Rabbi Anson Laytner: I'm a native of Toronto, Canada. I majored in Chinese studies and spent a year in China back in 1973 - ’74 before coming to America and going into rabbinical school. And so I am an ordained reform rabbi, but I chose, in part because of my experience in China, to focus mostly in the nonprofit sector. I did a variety of jobs there, doing community relations in the Jewish community, as well as 11 years doing housing for people with AIDS. After being in several other jobs, I ended my career teaching at Seattle University, which is a Jesuit university. So, one of the major focuses from my career has been on improving interfaith and inter ethnic relations. 

I'm an author and have six books to my credit, most recently, The Forgotten Commandment. And I am president of an organization called the Sino-Judaic Institute, which looks at Jewish life in China.

Grant: You mentioned that diplomacy between religions is something that you're interested in. In the book, The Animals’ Lawsuit Against Humanity, the first thing you learn when you read the introduction is that the story is a kind of cross-religious fable that passed through the hands of all these different people and different times. I noticed that there are some origins in India and then it's seen in Iraq and then it's translated into Hebrew and so forth. Was that part of your interest in this to begin with? That it was so cross-religious and cross-cultural? 

Anson: Not initially, no. Initially, what drew me to the story were interests that grew out of my rabbinic thesis on the Jewish tradition of arguing with God, which later became the book Arguing With God. I was researching how various biblical and Jewish figures down through the ages have argued with God and taken God to task for being an underperforming deity. And I came across a reference to this “Letter of the Animals” in Hebrew. And I said, “Oh, that sounds really interesting, the animals arguing against humanity.” And so I photocopied the whole manuscript, which wasn't very long, and took it with me on my travels, first to New York and then out here to Seattle, where a friend and I decided to start translating it.

As soon as we started doing the translation and looking at the introduction to the Hebrew version, which isn't in our version, I was impressed and amazed because I had always thought that Jewish-Christian relations in Europe were kind of tense. And here was a rabbi translating this Hebrew story, which itself was a translation from the Arabic, and the Arabic version had been borrowed from Sanskrit stories. So you've got Indian and Muslim-Arab sources being translated into medieval Jewish Hebrew at the behest of a Christian duke in fourteenth-century France. It’s hard to believe. But that was the culture in Provence at the time. It was a real hub for interfaith learning and a center for the transmission of Greek culture to the European world via Arabic. 

Grant: That's so interesting. At Earth Law Center, we do a growing amount of research into different religions and faiths and how they might support the idea of giving voice to nature. We look at Islam, we look at Protestant sects, Catholicism, Judaism, and so forth. But this is interesting in that it kind of brings all of these different faiths together. So would you say that even today, this book would be well-received or of interest to all these faiths from which it originated? 

Anson: Absolutely, I think it would be. I mean, it's still well-known in the Arab speaking world by its Arabic name. It's been published a lot. Sadly, the Hebrew version has not been published since the version that we used as a translation, which was published in Israel in 1949. Ours is the only English translation of the Hebrew text, although a couple of scholars, subsequent to our text, translated the Arabic version into English. They called it The Case of the Animals versus Man Before the King of the Jinn, and that's a much bigger book than ours. We really cut ours down.So I think between our version and this other text that I just mentioned, it's beginning to gain some awareness in the English speaking world, which means I think people will notice it and say, kind of like your initial reaction, “Hey, this is amazing. How could a thousand years have passed and here we are still at the same place regarding our treatment of animals?”

Grant: The book starts with this beautiful utopia of Nature on a remote island, and then the humans show up in this big ship and when they see this wide array of animals, they kind of lick their lips, saying, “We own them, they're our property, they can serve us.” That starts a thread that carries throughout the book – this idea of human superiority and of animals being human slaves and so forth. Can you share a little more about how the story is set up?

Anson: So, as you say, the animals are living in peace and harmony. Then a shipload of people get shipwrecked there, and they have a very hard time making a go of it until they notice that the animals are completely unafraid of them. And then they say, “Hmm, this is a great opportunity for us to make life easier for ourselves and to have meat and dairy products.” So they just grab the animals they need and enslave them and treat them the way people have generally treated animals down through the ages. A few of the animals escape and go to the king of the island, who, in The Animals Lawsuit Against Humanity version, we call the Spirit King, but in the original is actually called the King of the Jinn, the genies. 

Grant: Jinn or genies? Like genie in a bottle? 

Anson: Yeah, like a genie in a bottle, that kind of thing. And there's a long history of Jinn in ancient literature.They don't have bodies, they're ethereal, they change shape, they can be mischievous, troublemakers, but they're also part of God's creation according to the ancient perspective of things. So, in this case, the king of the island is a very benevolent, wise ruler, and he is outraged that these new creatures are treating his subjects so poorly. He demands that humanity come to his court and account for their treatment of the animals. And so the human beings send a delegation and basically say, “This is our God-given right. It says right there in the Bible that we are meant to rule and subjugate and govern. And so we're just doing what God wants us to do.” And then the animals say, “That's not so, you're never meant to treat us this way.” And then they go back and forth, with the human beings trying to assert their claim to superiority and the animals refuting every one of their claims.

Grant: So they start to plead their cases, and the humans are like, “Yeah, we have dominion over nature, we're superior. Here's all the reasons we're superior.” When you were working on this, did you follow parallel arguments being made in modern society? There's a long line of thinkers like Thomas Berry, who wrote about Earth Jurisprudence and this idea that we're all a communion of subjects and that human dominion over nature is the root cause of the environmental crisis. As you were writing this, did you have the current environmental crisis in mind? 

Anson: Yeah, and also another person that I was in touch with a little bit, Peter Singer. And in fact, when our book came out, almost 20 years ago, I had gotten so convinced by the story that I started clipping things from the newspaper, showing how close our environment was to disaster and how different species were disappearing. Now I'm even more committed to the premise of the book that animals need to be treated better because they are like our canary in the coal mine. 

Grant: I wonder if you've noticed any of the legal innovations that have been happening in recent years in this arena? Like there's a group, the Nonhuman Rights Project, who tried to secure standing in a court of law for Happy the Elephant.

Anson: I have been following some of those stories in the news and been very hopeful for them.

Grant: I feel that parts of this book should be introduced as parts of those cases.

Anson: They really could. And here's the thing, I mean, when Kolonymus ben (son of) Kolonymus, the rabbi who translated the story from Arabic into Hebrew in the fourteenth century, was doing his work, there was a whole debate in society about whether animals were equal to human beings in terms of their rights or whether human beings had some kind of superiority. So it's not just a contemporary issue: it goes back to the fourteenth century, and it even goes back to the tenth century when the story was first done. So this is a perennial debate: Are human beings substantially, qualitatively different from other living beings?

Grant: In the book, the humans make arguments like, “Well, we stand on two legs and you stand on four.” Of course, that's not true for all animals. “We have culture, we have arts, we have a conscience.” The animals respond that having four legs around the ground suits their purpose perfectly. All of the animals are made to serve their role in this larger earth community. And is having a conscience and free will really so great if you are using it for exploitation and for the poor treatment of life? I think these same arguments are also happening in religious circles. Is that right? 

Anson: I can't generalize to the non-Abrahamic religions, but certainly Judaism, Christianity, Islam, all three religions have strong teachings about how to care for other living things. But they also have equally strong traditions saying that humanity are overlords and are the pinnacle of creation and so therefore can do what we want. So you have this tension in each religion about which view is going to win the day. 

Grant: And even in the book amongst the humans, there are two camps. There's the ones that are like, “These are our slaves.” And then the other group of humans who sometimes go along with the humans that are the dominant voice, but other times they're like, “You know what? Maybe the animals have a point.” And so that's basically the environmentalists in the book. 

Anson: That's the thing - there's always been this tension, and I would say through much of human history, it's the side with the physical power, the brute force, that has won the day as opposed to those groups who want to listen to what the animals are saying. And that includes those of us today who are talking about reconciliation and coexistence, whether it's with animal species or people of other faiths or people of other backgrounds and ethnicities.

Grant: And by the end, it seems like even the humans who were the worst actors were starting to come around to the animals’ arguments, which is hopeful.

Anson: Other than the humans who disappeared. Once the bad ringleaders are gone, everyone seems better off. 

Grant: Yeah, right. You can take that literally, or they can disappear over time as the generations learn. You know, the first time I read this, I kind of chuckled at the phrase “winged swarming things.” I took that to mean the insects, in part since the bee is the ruler of the winged swarming things. So when I saw this stuff about bees in the book, I immediately sent it to our bees team, who are working on protections for bees in several places in Latin America. For instance, there’s a town in Costa Rica that has declared citizenship for bees. I felt a particular affinity for the bee and the donkey in the book. Are there any animals in the book that you felt particularly connected to?

Anson: I also really enjoyed donkey a lot. I was particularly touched by the sheep's plea when she says, “There we are in the marketplace, being chopped up and sold, and that's us! That's our bodies, that's our babies!” That really resonated with me. And I liked cricket. Cricket was very thoughtful.

Grant: When I read that line from sheep, it made me think of factory farming today. I'm not trying to give you too much work, but I feel now we need an updated factory farming focused version of the story, and a screenplay, for the lawyers, law students, judges, and so on. I did see a reference to rights in the book, which was interesting. It wasn't the focus, like the idea of who has rights and who doesn't, like us legal nerds like to talk about. But I did see our friend, the cricket, talk about animals communicating their right to a life free from violence and abuse. That's what I would put in my brief as a lawyer. 

Anson: I was just remembering that one of my favorite lines in the story is when the king asks the people for proof of their claim to be ruling the animals. The people say, “Well it is our God given right, and it says so right in the Bible.” And the king says, “Well, do you have further proof of that?? And they think for a while and say, “Oh no, the documents were lost in the Flood.”

Grant: That made me laugh, it’s so funny. Like classic lawyers like to say, “It is our word against theirs.”

Anson: I also wanted to mention one of things that we did in The Animals Lawsuit Against Humanity that was a big change from the original. In the original, the king says, “I rule in favor of the human beings, but you human beings should behave better.” [Cotranslator] Dan Bridge and I felt like the ending needed to be kicked up a notch, so we came up with the “10 Warnings” - if you see these things happening, be wary and know that you need to change your path. And then everyone lives happily ever after after that. In my new book, my one and only novel, which just came out, called The Forgotten Commandment, I've taken the animal story, condensed it a bit, and transformed it into this story of a secret manuscript. And there, I kick up the ending even stronger. You have the 10 Warnings, but I make it even more specific that the Earth as a living entity is kind of kicking back against humanity. 

Grant: Tell me more about your new book. Do you recommend that people read it as a supplement to the Animals Lawsuit Against Humanity, or is it a stand alone thing? Is it totally from your own brain or did you have any source material?

Anson: The Forgotten Commandment was published by Wipf and Stock in December 2023. It weaves together four different strands. One strand is tracing the history of a Sephardic Jewish family from the land of Israel at the time of the First Crusade leaving for Spain and Portugal, later leaving the Iberian Peninsula at the time of the Spanish Inquisition and going up to Holland and settling there. So, along the way you meet various important figures dealing with historical happenings like the expulsions from Spain and Portugal. You meet Spinoza, an excommunicated Dutch Jew, for example. And this family are the carriers of an ancient manuscript which is The Animals Lawsuit Against Humanity. It gets confiscated by the Inquisition and shipped off to the Vatican, but the family has an oral tradition that goes along with the story, so it's passed along from generation to generation. 

The second strand of the story is in the twentieth century and deals with a descendent, who is a scholar. He begins to track down the story, which leads him to the Vatican Secret Archives, where he finds the story, starts to transcribe it, but then his work is disrupted by WWII. So then he hustles his way back home, then leads the reader on an escape from the Nazis in France. This strand is based on the true adventures of one of my teachers. In it, you meet the future Pope Pius XII and rescuers like the American Varian Fry, and learn a great deal – as I did – about the Vatican libraries and archives. 

The third strand is the tale of The Animals Lawsuit itself, a shortened version with a different, more powerful ending. 

And then the fourth strand is a modern one where a scholar from Seattle meets up with a scholar from Toronto and they track down this man's work and follow his leads to the Vatican Secret Archives, and they succeed in translating this story. There is a big interfaith gathering where they reveal the newly-discovered ending to the story, which makes a big impact on everyone because it's eerily prophetic. But then something happens, but I won’t give away the end of the book. 

My point in writing the novel was to give the characters a chance to talk about human beings’ inhumanity to other human beings, and how violence and intolerance threaten other human beings first and foremost, and connecting our inhumanity to each other with our inhumanity to animals and the environment. By giving the opportunity to the characters to speculate about why human beings behave the way we do, how we could be behaving differently and better, and giving The Animals Lawsuit a greater environmental punch, hopefully that will make the message of the novel have a greater impact. 

I hope that the story will aid in people having a changed perspective, whether they are religious or not, such that they begin to look at other living things in a more sensitive and appreciative way. And to look at our environment as a whole in a more appreciative way, so we do less harm and that applies to everyone, religious or not. 

Grant: Do you think that the Spirit King would be pleased with our progress since the initial opinion? 

Anson: No, not yet. You're making a good start over there at Earth Law Center. 

Grant: Oh, we try. I’ve heard that for interview type formats, it's good to have short answers alongside the more narrative ones. So that can be a short no.

Anson: You can file an amicus brief on behalf of the animals. For me, it was a thrill to learn of your interest in the book and to find out about the work that Earth Law Center is doing. It does bring into concrete manifestation what the story is about, and I think that's wonderful. It takes things to a whole new level from theological literary plain to a concrete reality plane, and that's terrific. 

Grant: Well thank you for being part of this meshwork of folks in this space, and we love when religion, spiritual, academic, and law can all move forward together in exciting directions.

***

About the translator:

Anson Laytner is a happily retired rabbi, living in Seattle, whose career focused on building positive interfaith and interethnic relations in our community.

During his career, he served as program manager for Seattle University School of Theology and Ministry's Interreligious Initiative, as a hospice chaplain at the Kline Galland Home and a grant-writer for the Jewish Family Service of Seattle, as interim rabbi at Congregation Kol HaNeshamah, and as executive director of the Seattle Chapter of the American Jewish Committee and of Multifaith Works, a Seattle non-profit agency that served people with AIDS. He also directed the Seattle Jewish Federation's Community Relations Council. 

 He is the author of the cult classic Arguing with God; The Mystery of Suffering and the Meaning of God; Choosing Life After Tragedy; and his first (and probably only) novel The Forgotten Commandment. He co-authored with Dan Bridge, The Animals’ Lawsuit Against Humanity  and co-edited with Jordan Paper The Chinese Jews of Kaifeng.  

As a volunteer, Laytner serves as president of the Sino-Judaic Institute (www.sinojudaic.org) and edits its journal, Points East.  He is a past president of Northwest Interfaith and also served on the advisory board of End of Life Washington. He is an active supporter of the New Israel Fund and J Street.

Laytner has a BA, summa cum laude, from York University in Toronto, a Masters of Hebrew Letters (MAHL) and rabbinic ordination from Hebrew Union College, a Masters in Not-for-Profit Leadership (MNPL) from Seattle University, and an honorary Doctorate in Divinity from Hebrew Union College. 

Rabbi Laytner is married to Richelle Harrell. He has two living daughters, three sons-in-law and five grandkids.

For more information or to contact him, go to www.ansonlaytner.com.

Coalition Spotlight: Ríos Protegidos

Earth Law Center (ELC) is proud to announce joining the Ríos Protegidos initiative, which seeks to strengthen the protection of Chile’s rivers by applying existing tools, recognizing gaps and opportunities in river conservation and restoration, and promoting new legislation on protected and restored rivers.

On February 22, 2024, ELC’s Latin America Legal Program participated in a workshop to promote the conservation and permanent restoration of rivers in the Aysén region—a huge, sparsely populated area in southern Chile that is home to volcanoes, massive ice fields, and other natural wonders.

Coyhaique, Chile. Photo credit: Palicp. Public domain.

The Ríos Protegidos workshop, held in the regional capital of Coyhaique, took place with the support of Patagonia Chile. More than 50 people, including scientists, researchers, teachers, artisanal fishermen, and athletes, took part. An intersectoral panel, including Gabriel Benoit, an expert fly fishing athlete and ambassador of Patagonia, and Jaime Lancaster, a local community member and kayaker with more than ten years of experience, led the workshop. The panel also included expert environmental lawyers who are members of the coalition: Ricardo Frez, Director of the NGO "Defensa Ambiental"; Pía Weber, Freshwater Expert at the Pew Charitable Trust; and Bastián Núñez, attorney at ELC.

Left to right: Pía Weber, Freshwater Expert at the Pew Charitable Trust; Bastián Núñez, attorney at Earth Law Center; Ricardo Frez, Director of the NGO "Defensa Ambiental.”

The event began with a showing of this wonderful introductory video detailing the “Ríos Protegidos" initiative. Then, Ricardo Frez talked about NGO Defensa Ambiental’s experience working to protect rivers in the Ñuble and Biobío region, which face problems such as the extraction of aggregates from the river watershed, the construction of dams and hydroelectric infrastructure, the installation of thermoelectric projects, and more. Later,  Pía Weber explained the legal framework for protecting Chilean rivers and the mechanisms that authorities and the civil population demand to conserve their water quantity and quality of this riparian ecosystem.

The workshop set a collaborative dynamic, such that the audience participated in the analysis of case studies, contributing ideas for possible protection mechanisms based on their perspectives and connections with the Patagonian rivers. At the end of this activity, Gabriel Benoit and Jaime Lancaster emphasized the importance of caring for and developing the bond between Nature and society.

ELC celebrates the interdisciplinary work of the Ríos Protegidos. We support initiatives such as these, wherein we can hear the voices of the rivers through their riparian communities. Such collaborative explorations seek to unify forces and knowledge to promote legislative and policy transformations in order to adopt and implement effective mechanisms for the permanent protection of rivers.

Earth Law Center reaffirms its commitment, made at the 2024 UN Water Conference, to advance “Earth-centered legal initiatives [to] provide mechanisms to ensure that natural systems do not collapse… seeking the incorporation of standards and laws to guarantee the necessary support for the health of ecosystems in accordance with Nature's needs.”

Dam Removal 101: Why Earth Law Supports Free-Flowing Rivers

By Sandi Schwartz, Beth Styler Barry, and the ELC Team

Earth law—also known as ecocentric law or Earth jurisprudence—recognizes the interconnectedness of all life and seeks to protect the Earth’s ecosystems, including the preservation and restoration of free-flowing rivers. This view is rooted in a deep understanding of the vital role that rivers play in sustaining both natural ecosystems and human communities, and that rivers should be considered living entities deserving of legal rights and protections. 

Since Earth law highlights our moral and sacred obligation to prevent species extinction and catastrophic ecosystem degradation, it places paramount importance on the fact that free-flowing rivers are essential for maintaining healthy ecosystems and biodiversity. They provide critical habitat for numerous species of fish, birds, mammals, and other wildlife; facilitate the natural processes of nutrient cycling and sediment transport; help regulate climate and hydrological cycles; and mitigate droughts, erosion, and some types of floods. 

Juvenile Little Blue Heron hunting. Photo credit: Sam LeGrys.

Despite all these clear benefits, free-flowing rivers are increasingly threatened by human activities such as dam construction. In response to these threats, Earth law advocates for the adoption of legal frameworks that prioritize the protection and restoration of free-flowing rivers. This includes measures to recognize rivers as legal entities with enforceable rights, which will ensure the long-term health and vitality of these essential ecosystems.

The Earth law preference for free-flowing rivers is not an ideological position: clearly, there are instances where small dams, weirs, or other artificial riverine infrastructure is what’s best for ecological health or to balance ecology and human needs. Yet, in the U.S. and most countries around the world, that balance currently falls much too far on the side of preferring dams, especially in the case of massive dams that choke rivers and profoundly damage their natural life systems. 

But isn’t hydropower a good idea?

Hydropower, or hydroelectric power, is one of the oldest and largest sources of renewable energy, accounting for 28.7 percent of total U.S. renewable electricity generation and about 6.2 percent of total U.S. electricity generation. Over 9,000 dams throughout the country use the natural flow of moving water to generate electricity in what is often thought of as a green alternative to fossil fuels. 

While hydropower may seem positive at first glance, it has unfortunately caused well-documented harm to fish, wildlife, and humans. From the moment construction begins, dams disrupt river ecology, cause the loss of aquatic and terrestrial biodiversity, and impact people through displacement or damage to their food systems and agriculture. 

The National Hydropower Association presents hydropower as “a climate-friendly energy source, generating power without producing air pollution or toxic by-products.” To be deemed green, however, energy must be produced without emitting greenhouse gasses and in a way that protects the natural environment. Hydropower does not satisfy either requirement. 

Although dams provide renewable energy and store water to prevent flooding, they also worsen the impact of climate change by releasing greenhouse gasses and destroying carbon sinks in wetlands and oceans. Furthermore, they deprive ecosystems of nutrients, disrupt fish migration, destroy habitats, increase sea levels, waste water, and displace under resourced communities. Poorly maintained dams also create a flood risk, endangering lives and putting significant financial strain on local governments and industry.

Earth law takes climate change seriously, but, as documented in Environmental Protection Agency research and elsewhere, it turns out that large dams emit a huge amount of greenhouse gasses. When rivers are not able to flow freely, more carbon and methane are released into the atmosphere. See for instance this DamSense article on methane emissions from the lower Snake River dams.  

Scientists estimate that the world's free-flowing rivers transport 200 million tons of carbon to the ocean annually. Rivers dammed for hydropower are no longer part of that natural system that flushes carbon from land to the ocean, thereby reducing the amount of carbon that returns to the atmosphere in the form of heat-trapping carbon dioxide. [1]

Dam removal: major cases

Although it may seem drastic, dam removal is the most obvious and effective way to restore rivers to a free-flowing state. Since dams require ongoing maintenance and renovations, without which they threaten catastrophic unplanned breaches, dam removal can and should be considered as a viable option in far more circumstances than is currently the case. Here are a few of the major examples of completed or prospective dam removal in the United States. 

Elwha River 

The Elwha River is the site of one of the biggest dam removal and river restoration projects in history, with the federal government spending over $327 million to remove the Glines Canyon and Elwha dams and regenerate the river’s surrounding ecosystem. The Lower Elwha Klallam Tribe fought for decades to achieve dam removal, primarily to recover salmon populations. 

Despite these efforts, industrial logging in the region continues to impact the Elwha River, with trees being cut down sometimes within 1,000 feet of the river. Even though the river has been restored to be free-flowing, it will continue to suffer if there isn’t ecosystem restoration and if logging isn’t halted. Earth law advocates for holistic ecosystem restoration that continues long after a dam has been removed. 

Earth Law Center (ELC) is working tirelessly with community members and partners to raise awareness about logging in the Elwha River watershed and share the importance of legacy forests. Protecting the remaining 850 acres of unprotected legacy forest on Washington State lands is critical to the state’s climate change mitigation efforts and to bringing back the natural habitat in this watershed. 

On June 30, 2023, ELC, along with the Center for Whale Research and the Keystone Species Alliance, filed a notice of appeal to challenge the 150-acre “Power Plant” timber sale. The community group Elwha Legacy Forests, of which ELC is a founding member, simultaneously launched a crowdfunding campaign to buy out the extractive timber harvest lease by replacing the funds that beneficiaries would otherwise receive from the harvest. The combination of ELC’s community organizing, political pressure, and this lawsuit led to the cancellation of this sale in December 2023, with 69 acres slated for permanent protection—something almost unheard of for an already-sold tract. Learn more about our work by visiting ELC’s Elwha Legacy Forests page.

Klamath River

For nearly 100 years, dams on the Klamath River in Oregon and California have blocked salmon and steelhead trout from reaching more than 400 miles of habitat. The dams have also encroached on Indigenous cultures, and harmed water quality for people and wildlife. The Klamath Dam Removal, which began in 2023 and is currently underway, is one of the largest dam removal projects in history, aiming to restore the river to its natural state by removing four hydroelectric dams: J.C. Boyle, Copco 1, Copco 2, and Iron Gate. The decision to remove these dams was reached through a collaborative effort between Native American tribes, environmental groups, government agencies, and energy companies. 

The Klamath River has long been a vital life source for the region, supporting diverse ecosystems and providing water for agriculture, tribal communities, and recreational activities. But the construction of the dams resulted in severe consequences for the river’s health and biodiversity, including disrupting fish migration, degrading water quality, and contributing to the decline of salmon populations.

By removing the dams, the restoration of fish passage is expected to allow salmon and other migratory fish species to access their historical spawning grounds upstream. This will help in the recovery of salmon populations and the overall health of the river ecosystem. Additionally, removing the dams will improve water quality and sediment transport, benefiting both aquatic life and the communities that rely on the river for drinking water and irrigation.

The Klamath Dam Removal accords with the wishes of the Yurok Tribe, members of which led the fight for it to occur. In 2019, the Yurok passed a resolution on the rights of the Klamath River that gave it legal personhood under tribal law. The resolution establishes “the Rights of the Klamath River to exist, flourish, and naturally evolve; to have a clean and healthy environment free from pollutants; to have a stable climate free from human-caused climate change impacts; and to be free from contamination by genetically engineered organisms.”

Snake River

The Snake River dam removal initiative is a contentious and multifaceted issue centered around the potential removal of four dams on the lower Snake River in the Pacific Northwest region of the United States. These dams—Ice Harbor, Lower Monumental, Little Goose, and Lower Granite—were built in the 1960s and ‘70s primarily for navigation, flood control, irrigation, and hydroelectric power. Over the years, their environmental impacts have sparked significant debate and calls for their removal.

The primary concern for advocates of dam removal is the decline of wild salmon populations in the region, and, in turn, the decline of the Southern Resident Orca population, as the orcas depend on consuming salmon for their survival. Construction of the Snake River dams has obstructed salmon migration routes, leading to reduced spawning grounds and destruction of habitat. Removing the dams would potentially restore salmon habitats, improve water quality, and revitalize salmon populations. 

In 2020, the Nez Perce General Counsel passed a resolution, which ELC helped draft, recognizing rights of the Snake River. “The Nez Perce Tribe recognizes that the Snake River is a living entity that possesses fundamental rights, in accordance with longstanding Nez Perce tribal beliefs and practices,” states the resolution. “. . . The Snake River and all the life it supports possess the following fundamental rights, at minimum: the right to exist, the right to flourish, the right to evolve, the right to flow, the right to regenerate, and the right to restoration.”

Opponents of Snake River dam removal have raised concerns about the potential economic impacts on local communities and industries that rely on the dams. This project has been in litigation under the Endangered Species Act for about 30 years. So, it was significant when, in December 2023, the Biden administration announced its support for preparing to remove the four Lower Snake River Dams in the Columbia River Basin through an agreement with four tribal nations, two states, and several conservation groups. The agreement acknowledges that Lower Snake River dam removal is necessary to restore abundant salmon and commits to a package of federal actions to pave the way for dam removal. 

Yet, this drawn out pathway hinges on congressional authorization of the dam removals. In other words, we can continue to operate these relics of dominion over nature, knowing that they are a death-knell for endangered species, until Congress agrees it is time for them to go. Endangered salmon and orcas can’t wait the additional decade or two it is likely to take for Congress to act. It is our moral obligation—and really the highest law—to care for the Earth and all its species. 

ELC supports a growing cohort of advocates who see a pathway toward breaching the lower Snake River dams through immediate Executive Branch action, such as an Executive Order to create a new national monument or a directive by the US Army Corps of Engineers, which operates the dams, to halt their operation. ELC’s Director of Legal Advocacy, Elizabeth Dunne, Esq., authored a comprehensive law review article on this topic. In it, she quotes Naxiyamt´ama (Snake River-Palouse) elder Carrie Jim Schuster: 

Back on the Snake River where I was raised we lived with the fish and animals. There were lots of beavers living all over. They made pools in the streams to cleanse the water, trees grew along the river banks and cooled the water for the salmon, and we had safe places to play. But now our rivers and streams have become nothing but lifeless reservoirs and concrete canals. [2]

Can rivers have rights?

When evaluating hydropower and the use of dams through an Earth law lens, it is clear that many of the problems could effectively be addressed if rivers had rights. Certainly, hydropower plants fail to respect the rights established in the Universal Declaration of the Rights of Rivers (Declaration), signed by more than 100 organizations from over 20 countries as part of the larger Rights of Nature movement. The Declaration acknowledges that “rivers are essential to all life by supporting a wondrous diversity of species and ecosystems, feeding wetlands and other aquatic habitats with abundant water, delivering life-giving nutrients to coastal estuaries and the oceans, carrying sediments to river deltas teeming with life, and performing other essential ecological functions.”

Photo credit: Sam LeGrys.

There are three main reasons why rivers should have rights with respect to hydropower, according to the Declaration. 

Hydropower infrastructure deprives a river of its essential right to flow. According to the Declaration, “flows must, at minimum, follow natural flow patterns and be sufficient in quantity to maintain the ecosystem health of the entire river system.” Dams exist to block natural flow patterns.    

Also lost to a dammed river is the right to perform essential functions within its ecosystem.  These functions include “maintaining horizontal and longitudinal connectivity, flooding, moving and depositing sediment, recharging groundwater, providing adequate habitat for native flora and fauna, and other essential functions.” Critical river functions that significantly affect the natural dynamics of downstream freshwater and coastal ecosystems cease when rivers are dammed. 

Lastly, damming rivers strips them and their ecosystem of the right to native biodiversity. The global biodiversity crisis has caused an 83 percent decrease in the overall populations of freshwater species, and up to 30 percent of freshwater ecosystems have been lost. [3] Dams have a devastating effect on fish migration and significantly reduce the number and diversity of fish and other aquatic life that depend upon free-flowing freshwater. Fish migration, including that of threatened and endangered species, is brought to a halt when a river is dammed. Even when fish ladders or other “mitigation methods” are used, timely and effective upstream and downstream fish passage is drastically reduced. 

Conclusion

Decarbonization is critically important, but if we do it in a way that continues to put short-term human benefit miles ahead of everything else, we’ll continue to see biodiversity loss, including extinctions, as well as the degradation of more of our wild places. Using dams to produce hydropower, which in effect destroys the natural flow of rivers, is not the best solution to climate change, and only creates a loop of additional environmental problems for current and future generations if not addressed.  

What we have learned from the prolonged battles over dam removal is that US law lacks a voice for the river ecosystem itself. Unless changed, the legal system will continue to help maintain the status quo, to the peril of beloved and iconic endangered species such as salmon and the Southern Resident Orcas. While multi-stakeholder forums play an important role, they should not drown out the suffering of dying species and the health of entire ecosystems. If we recognize that these river ecosystems, too, have rights and that we, in turn, have a moral and sacred obligation to ensure their health and well-being, we will all thrive. Together.    

[1] Valier Galy, Bernhard Peucker-Ehrenbrink, Timothy Eglinton. “Global carbon export from the terrestrial biosphere controlled by erosion,” Nature, 2015; 521 (7551).

[2] Originally quoted in River Song, Naxiyamt´ama (Snake River-Palouse) Oral Traditions from Mary Jim, Andrew George, Gordon Fisher, and Emily Peone, collected and edited by Richard D. Scheuerman & Clifford E. Trafzer (2015) at Foreword, p. xiv.

[3] David Tickner et al., “Bending the Curve of Global Freshwater Biodiversity Loss: An Emergency Recovery Plan,” BioScience, Volume 70, Issue 4, April 2020, pgs. 330–342, https://doi.org/10.1093/biosci/biaa002.

Utah Advances Anti-Rights of Nature Bill with Implications for Artificial Intelligence

By Madeleine Debele and the ELC Team

The Utah state legislature has in recent months advanced the anti-Rights of Nature legislation H.B. 249, which now awaits the governor’s signature. The bill, known as the “Utah Legal Personhood Amendments,” would explicitly prohibit state governmental entities from granting legal personhood to bodies of water, land, plants, nonhuman animals, and other categories—including artificial intelligence. 

Florida, Ohio, and Idaho have taken similar anti-Rights of Nature stances in recent years, passing bills that preemptively reject localities within their states from passing Rights of Nature legislation or ordinances. The Utah legislative effort has prompted debate between proponents of a “Salt Lake Bill of Rights” and detractors. “I don’t want to live in a place where corporations can have legal personhood but living organisms cannot,” said Denise Cartwright, a founder of the group Save Our Great Salt Lake, in this article in Utah News Dispatch. By contrast, Utah representative Walt Brooks, who introduced the legislation, said, “This bill wasn’t intended about the Great Salt Lake at all when it first came up. It was just the sheer fact that state after state and all over the world, we’re seeing people abuse the situation of personhood to use it as a weapon.”

Earth Law Center (ELC), an advocate for the legal rights of ecosystems, stands in opposition to such anti-Rights of Nature laws. ELC upholds the importance of recognizing the intrinsic value of nature and emphasizes the possibility of acknowledging nature’s rights without the kinds of economic and legal harms these anti-Rights of Nature bills envision. 

The Landscape of Legal Personhood for Nature

Legal personhood for nature involves recognizing the rights of ecosystems, including giving them standing to bring legal actions via legal proxies or guardianship bodies. Municipalities, counties, and a few states around the U.S. have explored this avenue as a means of bolstering environmental protection, in some cases passing Rights of Nature ordinances or resolutions. For example, the town of Nederland, Colorado recently passed into law an innovative guardianship structure for Boulder Creek. 

Such legal initiatives show popular support in many areas, including Utah. According to a 2023 poll conducted by Utah State University, 60.1% of respondents “somewhat support” or “strongly support” the idea of changing water rights laws “to grant the Great Salt Lake its own rights to water to guarantee a consistent amount gets to it.” Nevertheless, Rights of Nature developments, such as the formation of grassroots groups and the passage of local ordinances, have provoked a backlash at the state level in Florida, Ohio, Idaho, and now Utah.

The Utah legislature’s rejection of legal personhood for nature is grounded in the belief that it could pose a threat to industries vital to the state's economy. As this legislative trend gains momentum, it sparks broader questions about the values that underpin our legal frameworks and the implications for the balance between economic prosperity and environmental well-being. In reality, Rights of Nature is not anti-business but instead seeks to harmonize business practices with the needs of nature in a way that benefits all humans and other species.  

ELC joins other ecocentric organizations in vehemently opposing Utah’s anti-Rights of Nature legislation and similar legislative efforts across the United States. By prioritizing human interests over the well-being of ecosystems, such legislation perpetuates the view that nature is merely a resource to be exploited, rather than a complex and interconnected system deserving of protection. The consequences of such aggressive anthropocentrism will continue to be dire.

Great Salt Lake May Disappear in Coming Years, Leaving Toxic Legacy

That a conservative legislature such as Utah’s would take an anti-Rights of Nature stand at this moment is vexing but not surprising, since it is responding to new waves of environmental activism. Save Our Great Salt Lake and other advocacy groups argue that according rights to the lake might be a necessary step to prevent its total disappearance. All that is necessary for that disappearance to happen is for the lake to continue shrinking at the rate it has been for many years now. In other words, maintaining status quo water usage amidst increasing levels of warming and drought in Utah likely ensures that the lake will be drastically reduced or gone in a matter of years.

“Scientists predict that the loss of the Great Salt Lake, driven by human activities that divert water away from replenishing the lake as well as drought, could catalyze cascading ecological changes affecting the viability of multiple species, from birds to aquatic life,” notes environmental journalist Katie Surma in this article for Inside Climate News. “As the lake dries out, particulate matter, arsenic and other toxins in the lake bed are released into the atmosphere, affecting local communities.”

Advocates for legal personhood for natural bodies emphasize that it offers a mechanism to protect the environment, giving nature a voice in legal proceedings. ELC contends that this perspective goes beyond mere recognition of the instrumental value of nature. Granting legal personhood is a transformative step toward acknowledging the intrinsic value of ecosystems, a recognition that can foster a more harmonious relationship between humans and the environment—perhaps ultimately saving threatened ecosystems like the Great Salt Lake.

Balancing Human Needs and Ecological Preservation

The debate surrounding legal personhood for nature encapsulates broader considerations about the balance between human needs and ecological preservation. Proponents of laws restricting legal personhood argue that these measures are necessary for economic growth, supporting industries vital to the well-being of communities. ELC and other critics, however, underscore the long-term consequences of prioritizing short-term economic gains over environmental sustainability.

This balancing act is not just a legislative challenge but a philosophical and ethical one. It requires a careful examination of our relationship with the environment and a recognition that the well-being of ecosystems is intertwined with human prosperity. Although advocates for legislation such as that currently being considered by Utah often caricature Rights of Nature as implausible or absurd—for instance, attempting to frighten people with the idea that they’ll be sued by their own pets or plants—this perspective fails to account for the current existence of competing rights.  For example, fundamental human rights recognized in the U.S. Constitution, such as the freedom of religion and free speech, often come into conflict and need to be processed in culture and at times adjudicated by the courts. There is no reason to think that such compromise and adjudication could not be extended to include Rights of Nature.

As a case in point, the legal development of Rights of Nature is perhaps more advanced in Ecuador than anywhere else in the world. Yet Ecuadorian environmental laws have not put a stop to economic development. Like with most laws that have give and take, the courts are working to strike functional balances between the interests and rights of differing parties, including nature. As Ecuadorian mining continues, so does litigation. There will always be push and pull, but current anti-Rights of Nature legislation advocates for push alone. 

Implications for Artificial Intelligence

As the legal landscape around the personhood of nature unfolds, it has begun bringing forth implications for artificial intelligence (AI) and its role in environmental management. The Utah legislation is the second (following Idaho), though likely not the last, anti-Rights of Nature bill to attempt to fold these issues together, denying personhood both to nature and to forms of artificial intelligence. Whereas such laws are responding to the already existing movement to accord personhood and rights to nature, the blockage of such moves for AI is at this point purely speculative. Very few AI experts claim that an artificial general intelligence has yet been created, much less that it should be accorded personhood and rights if and when it does.

Even so, AI personhood could become an increasingly relevant issue as the technology develops. Some people are worried about a range of societal challenges arising from AI—including, at its extreme, an existential threat faced by humans. (Whether preemptively stripping AI of access to personhood and any potential rights would reduce these risks is unclear. Some pundits argue that it could have the opposite effect, by creating an “us versus them” dichotomy that would work against humans in the future.) Others believe that humans should learn from the failures of our commodification of the natural world and change tack, establishing a reciprocal relationship with advanced AI rather than treating it as our property. This perspective is more open to ideas such as AI rights or personhood.

Regardless one’s perspective on AI, it seems that technologists, futurists, and Earth law advocates have become bedfellows as targets of state-level efforts to preempt the extension of legal personhood or rights to entities that currently lack them.

"Green Amendments" and the Right to a Healthy Environment

The right to breathe clean air, drink clean water, eat safe and healthy foods, and live in an environment that is clean, sustainable, and free from harmful pollution and chemical exposure already has legal and constitutional protection in the United States . . . right? 

You may be surprised to learn that federally, and within the majority of states, the human right to a clean, healthy, and sustainable environment is not an essential right afforded to the people. What can be done to change that?

In this article, we’re going to explore:

●      foundational elements of the right to a healthy environment

●      the basics of a “Green Amendment”

●      the current landscape of the right to a healthy environment in the U.S.

●      step-by-step instructions on how to create a Green Amendment

●      why you should utilize Earth Law Center’s free templates and models to encourage your local or state government to protect this essential right

What Is the Right to a Healthy Environment?

While there is no universal definition of the right to a healthy environment, there are widely acknowledged substantive and procedural elements of this right. The substantive elements include the right to clean air, a safe and stable climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study, and play, and healthy biodiversity and ecosystems.[1] The procedural elements include access to information, public participation, and justice and effective remedies.[2]

In October 2021, United Nations (UN) Human Rights Council resolution 48/13 recognized “the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.”[3] Following, in July 2022, the UN reaffirmed the recognition by the General Assembly that a clean, healthy, and sustainable environment is a human right.[4] 

These UN-level resolutions represent a landmark achievement in uplifting the human right to a healthy environment. That said, they are not legally binding, and so it is up to governments at various levels to legislate and implement the right to a healthy environment for their peoples. In the U.S. context, the state-level passage of “Green Amendments” is perhaps the most promising avenue toward both substantive and procedural protection of the right to a healthy environment.

What Is a Green Amendment?

Green Amendments are self-executing provisions, added to the bill of rights section of a constitution, that recognize and protect the rights of all people, including future generations, to pure water, clean air, a stable climate, and a healthy environment.[5] Green Amendments establish a constitutional mandate recognizing a healthy environment as an inherent, indefeasible, generational legal right of all citizens.[6]

Green Amendments put the right to a healthy environment on par with other rights protected in bills of rights, including free speech, religious liberty, trial by jury, and equal protection under the law.[7] Thus, the placement of the language in the bill of rights ensures the people have an inalienable right to a healthy environment.

As noted by the National Caucus of Environmental Legislators, “Green Amendments provide a backstop that can be used by community, public, government and even business interests to provide a check on government authority that overreaches and fails to protect environmental rights.”

How Is the Right to a Healthy Environment Protected in the U.S.?

As of February 2024, only three states have enacted Green Amendments. These are Pennsylvania, whose Green Amendment was established in 1971; Montana, established in 1972; and New York, newly established in 2021. Federally, this protection does not yet exist.

There are four other states—Hawaii, Rhode Island, Illinois, and Massachusetts—that have constitutional protection for the right to a healthy environment, but such language does not exist in their bills of rights, thus limiting the level of protection available to the people.

Then we have some states that include “protection” via their state environmental offices, the names of which vary, with Department of Environmental Quality (DEQ) being perhaps the most common. However, the protection falling under the DEQ does not, in any stringent way, protect the people's essential right to a healthy environment; rather, it simply encourages the maintenance of a healthy environment within the state.

Currently, there is proposed Green Amendment legislation happening in a number of states, including Arizona, California, Connecticut, Hawaii, Iowa, Kentucky, Maine, Maryland, Nevada, New Jersey, New Mexico, Tennessee, Texas, Vermont, Washington, and West Virginia. In Florida, while there is a Green Amendment on the table, it is limited to “the right to clean and healthy waters.” In Delaware, proposed Green Amendment legislation was tabled in October 2022.

Essential Criteria for a Green Amendment

The following step-by-step guide was generously provided by Maya van Rossum.

✔ ️ The provision must be placed in the Declaration of Rights/Bill of Rights section of the constitution and make clear that the rights enumerated are reserved rights that are inherent and indefeasible and belong to the people. This placement and language ensures your environmental rights are entitled to the same highest constitutional and legal protections afforded other fundamental rights.

✔ ️ The provision should clearly be grounded in response to environmental degradation that has occurred in the state. Clear legislative history about the origins of the amendment will help guide future legislative efforts and judicial interpretation.

✔ ️ The provision should mention specific environmental values to be protected such as pure water, clean air, ecologically healthy habitats, stable climate, healthy environment, etc.

 ✔ ️ The provision should include a broad holistic perspective on the values of protecting a healthy environment.

✔ ️ The provision must be self-executing so it does not require passage of laws in order for it to take effect and for the environmental rights of the people to be vindicated.

✔ ️ The provision should identify environmental rights as being rights of every individual, not just collective rights of the state as a whole. This helps to ensure that all people, regardless of race, ethnicity, or income, have the same rights that must be protected equitably.

✔ ️ The provision should be generational in focus. The language should explicitly acknowledge that the environmental rights enumerated and natural resources of the state belong to both present and future generations.

✔  The provision should recognize the government’s public trust duties, broadly defining the body of the trust to include natural resources and environmental values and not simply publicly-owned land, navigational waters, and/or tideland resources.

✔  The provision should ensure equitable protection of all people regardless of race, ethnicity, socioeconomics, or generation. Declaration of Rights/Bill of Rights placement, trustee language, and, ideally, a specific statement of the obligation to equitably protect environmental rights and natural resources help ensure this critical environmental justice value of the provision.

✔  The language should specifically use the word “trustee” to solidify the relationship between the government and the citizenry—the government is not the proprietor of the environment, but is the trustee with an obligation to protect the environment and natural resources for the benefit of the people, who are the beneficiaries of the trust. Using trustee language implicates well-understood trustee duties such as loyalty, prudence, impartiality, and providing the necessity for an accounting of the trust. Trust language is also important for ensuring environmental justice and generational protection. 

✔  The responsibilities to protect the environmental rights, values, and natural resources, including trustee obligations, should clearly apply to all branches and all levels of government.

✔  The provision should serve as a limitation on government action or inaction that would otherwise infringe on these rights.

✔  The provision should include both affirmative duties to protect the environment and prohibitory duties (i.e., governmental actors have an obligation to refrain from legislative enactments, executive action, permitting or otherwise encouraging the degradation, diminution, or depletion of public natural resources that would occur through direct government action or indirectly, because of the government’s failure to restrain the actions of others or its authorization of damaging activities that rise to a constitutional level).

✔ ️ The provision should be drafted so that it is on equal footing with other political rights such as property rights and freedom of speech. Placing environmental rights protections in the Declaration of Rights/Bill of Rights section of a Constitution helps achieve this goal.

✔  The provision should necessitate a pre-action analysis to ensure actions taken and decisions made do not infringe upon environmental rights.

✔  The provision should be written in such a way that the court can use the plain language of the provision for its interpretation and application​​—this means clear language that can be easily interpreted and applied without reference to other rules of statutory construction.

What Can You Do to Support Your Right to a Healthy Environment?

While it may feel overwhelming to learn that the right to clean water, air, and a healthy environment is not an essential right afforded to the majority of U.S. citizens, it’s important to know there are things you can do in your home state to build momentum toward enacting a Green Amendment. Eventually, we hope this momentum will lead to the affording of federal protection of the right to a healthy environment to all U.S. citizens.

To start, look to your local government to enact change. Whether it’s your township or county, contact the representatives that stand for environmental justice and pollution-free communities and share with them pre-written legal models to easily propose strong protections for a healthy environment.

Next, support your state efforts in pushing to have a Green Amendment passed. Find local organizations fighting for your right to a healthy environment, and share with your state representatives how important it is to have this essential right protected. 

Head over to the Earth Law Portal to find a comprehensive, step-by-step blueprint to creating a Green Amendment, as well as model Green Amendment language, both generously provided by Maya van Rossum of Green Amendments For The Generations.

[1] United Nations General Assembly (UNGA), Right to a healthy environment: good practices (2019) A/HRC/43/53

[2]  Ibid.

[3] UNGA Resolution, The human right to a clean, healthy and sustainable environment (2021) A/HRC/RES/48/13 

[4] UNGA, The human right to a clean, healthy and sustainable environment (2022) A/76/L.75

[5] Green Amendments for The Generations, Resources: https://forthegenerations.org/resources/

[6] National Caucus of Environmental Legislators, Green Amendment https://www.ncelenviro.org/issue/green-amendment/

[7] Bombard, Genevieve et al. The Precedents and Potential of State Green Amendments, July 2021. https://rockinst.org/wp-content/uploads/2021/07/CLPS-green-amendments-report.pdf

Earth Law Center Advocates for the Rights of Peru's Marañón River

Update:

March 18, 2024: In a landmark ruling, the Peruvian Court of Nauta has recognized the rights of the Marañón River and appointed a federation of Indigenous communities as its guardians. The Marañon River, a magnificent free-flowing river that runs for 1,600 miles from the snowy peaks of the Peruvian Andes into the heart of the Amazon, has thus become the first river in Peru to be declared as having rights. Read more about the ruling in this subsequent blog post.

Original article:

The Marañón River, long storied as the primary source of the Amazon River, has begun taking center stage in national and international discussions about the Rights of Nature and human environmental rights of Indigenous groups. A major court ruling on a case against Peruvian state oil company Petroperu, as well as the Regional Government of Loreto and other state entities, is expected soon. It has the potential to establish the river as a rights-bearing entity, which would make it the next in a growing list of rivers in Latin America and elsewhere around the world to have been recognized as having rights.

“If this is the case, we could say that a new stage in environmental law is opening in Peru,” said Constanza Prieto Figelist, director of Earth Law Center’s (ELC) Latin America Program.

With its headwaters about 160 kilometers northwest of Lima, the Marañón has been subjected to decades of adverse environmental impacts, including contamination from illegal gold mining, as well as dozens of oil spills from the NorPeruano Pipeline. Diverse Amazonian Indigenous groups, such as the Kukama Kukamiria, Awajún, and Wampis, have suffered the ecological and health effects of these spills and have led the effort to protect the river from further damages, including as plaintiffs in multiple lawsuits. “We have no other source of drinking water,” said Mari Luz Canaquiri Murayari, president of the Huaynakana Kamatahuara Kana (HKK), an Indigenous women’s Kukama federation with representatives from 29 communities, in this article by David Hill. “But there have been over 50 years of oil spills and they are killing us slowly.”

The river, like other Andean tributaries of the Amazon, now also faces the cumulative danger of numerous planned hydroelectric projects in its basin. These threaten an array of damaging impacts to resident Indigenous communities, aquatic life, and normal silt deposition, which is an important factor in both ecosystem stability and the functioning of the carbon cycle.

In order to support the campaign to protect the Marañón River and recognize its rights, ELC’s Latin America team has been working on multiple fronts of legal advocacy.

Amicus Curiae Brief in the Lawsuit for the Protection of the Marañon River

On November 9, 2023, in Nauta, Peru, ELC’s environmental policy and climate change expert Javier Ruiz was present as amicus curiae at the only in-person hearing on the case. Ruiz delved into the viability of judicially recognizing the river as a subject of rights and urged the judge to apply principles of international environmental law as the precautionary principle to resolve the case. The Kukama Kukamiria’s constitutional lawsuit, brought with support from ELC, Instituto Defensa Legal, and International Rivers, seeks to grant the Marañón rights including those to exist, to flow, to be free of contamination, and to the restoration and regeneration of its natural cycles.

ELC’s Javier Ruiz speaks at the in-person hearing on the case.

At the hearing, the Indigenous women defenders of the Marañón River, who are plaintiffs of the case, presented the damages they have incurred due to the continuous oil spills in the river, arguing that constitutional acknowledgment of the river’s rights is a necessary step to prevent the continuation of such harms. As noted in this article in El País, these women river defenders have “witnessed the many ways in which the pollution of the Marañón affects the lives of the Kukama, especially women: from skin diseases, pregnancies that end in spontaneous abortions, to cancer.”

Maritza Quispe Esq. and Juan Carlos Molleda Esq., both attorneys of the  Instituto Defensa Legal representing the plaintiff, HKK, presented the allegations of form and substance for which the Marañón River should be recognized as a subject of rights.

“As a subject of rights but unable to speak in its own defense, the river would need a guardian who would look after its interests,” notes this article on the case, co-authored by Ruiz, in Peruvian outlet La República. “In the lawsuit, the women of Huaynakana have asked the court to appoint the Kukama people as guardians of the Marañón.”

Escazú Agreement Trainings for Indigenous Women River Defenders

On November 4-5, 2023, in coordination with strategic partner NGO Defensa Ambiental, ELC conducted an in-person training workshop on the rights of access to information, participation, and justice in environmental matters for about 30 members of  the HKK of the Marañón River. 

HKK members display their signs expressing kinship and support for the Marañón River.

Over the two days, ELC’s Javier Ruiz facilitated discussions on environmental rights for women defenders of the Marañón River, including the Rights of Nature. The program, which has also been held with Indigenous communities in Chile, aims to connect these Indigenous women river defenders with rights under the Escazú Agreement, a regional treaty signed by some two dozen countries in Latin America and the Caribbean. Although Peru itself has not yet signed this agreement, the training helps empower the Indigenous women to advocate for the Peruvian government to join it.

The Escazú Agreement trainings are crafted to address barriers to environmental justice including: 

• the remote locations of many Indigenous communities, placing them far from political centers, courts, and ally groups 

• ethnic or cultural discrimination that creates barriers to their participation in environmental decision-making

• gender-based discrimination at both regional and local levels, which excludes Indigenous women from the education, mobility, and group coordination necessary to assert their rights participation and environmental justice

ELC’s Latin America team plans to expand the Escazú Agreement trainings to other interested Indigenous communities in the Amazon and beyond.

Nederland Appoints Guardians for Boulder Creek Watershed

The town of Nederland, Colorado, located in the mountains west of Boulder, has appointed two guardians on behalf of Boulder Creek and its watershed, whose rights they previously recognized via town resolution. This move is being celebrated as the first time people have been appointed legal guardians for Nature within the U.S.

Earth Law Center worked with our friends Save The World’s Rivers (formerly Save the Colorado) and Boulder Rights of Nature on the town's foundational Rights of Nature resolution, which passed in 2021 (with similar resolutions subsequently adopted by the Colorado towns of Ridgway, Grand Lake, and Lyons). Since then, Save the World’s Rivers Executive Director Gary Wockner and Nederland residents have been working to give the creek and watershed a voice in local governance, which is now put into effect.

The town’s board of trustees created a guardian subcommittee consisting of two individuals, the first two being local residents Alan Apt, an author and former board member, and Rich Orman, a retired lawyer. The guardians are tasked with writing a report at least once every 12 months “on the health and state of the Creek and Watershed,” to include summary indicators for the watershed such as water quality, wildlife habitat and corridors, recreation and visitor impacts, wetlands protection standards, native species and noxious weeds, stormwater management, and impacts of industrial and commercial activities on the creek and watershed.

The guardians are further tasked with including in their report “recommendations for advancing and ensuring the welfare and sustainability of the Creek and Watershed,” with reference to opportunities for:

● Improving water quality

● Enhancing healthy wildlife corridors and habitat, and wildlife protection

● Increasing wetlands protection and wetlands restoration

Having seen communities in Florida and Ohio pass Rights of Nature laws in recent years only to have them preempted by state-level legislation, Nederland decided to take a measured approach, in part by not giving the guardians the authority to sue or be sued on behalf of the creek or watershed.

“We’re working within the confines of the Colorado and U.S. legal systems, and nibbling away at them,” said Wockner in this Inside Climate News article on the new measure. “It’s absolutely a long game, but there are a lot of people who think this way.”

U.S. law has long recognized the need for legal guardians to represent the interests of, for example, children and incapacitated adults, and it has extended “personhood” to corporations and other non-human entities, but the Earth law application of these legal concepts in the U.S. has faced stiff headwinds. Nevertheless, the precedents set by other countries and Indigenous nations, as well as growing interest from communities in widely varying areas, demonstrates their workability and promise.

With endless possibilities of who can serve as a guardian or proxy for Nature, and how, in jurisdictions that acknowledge personhood or rights for Nature, one of the biggest takeaways from Nederland’s Boulder Creek guardianship structure is that we can learn by doing. We are excited to see where this goes and hope it inspires other governments in Colorado and beyond to take similar measures. 

Welcome to the Wonderful World of Earth Law

This is the first blog post in a new series, “Advice of Counsel,” by Earth Law Center’s general counsel and director of education, Tony Zelle.

Have you ever met an Earth lawyer? Since attending the World Economic Forum in Davos in 2023, I have been describing myself as an Earth lawyer. During the prior 7 years, I served as chair of the Earth Law Center (ELC) board. With Grant Wilson, ELC’s executive director, Herman Greene, founder of the Center for Ecozoic Studies, and Rachelle Adam, an Earth law practitioner and educator, we conceived of and published the first (and, as of this writing, only) coursebook on the subject of Earth law: Earth Law: Emerging Ecocentric Law—A Guide for Practitioners. I now serve as ELC’s director of education and its general counsel. 

My mission as an Earth lawyer and ELC’s education lead is to make Earth law and Earth lawyers. To that end, I invite you to read “Advice of Counsel,” my periodic contribution to Earth Law Center’s blog and newsletter. I also invite you to participate in ELC’s 2024 Summer Class and to ask questions about Earth law at info@earthlaw.org.

To begin our dialogue, I will share my answers to some frequently asked questions. Like the subject of Earth law itself, the answers to these questions are emerging and adapting to the constant changes of Earth and the Earth community. There are few, if any, who consider themselves an authority on the subject of Earth law. While I consider myself a practicing Earth lawyer, an educator, an entrepreneur, and a voice for the voiceless, it is with the utmost humility and gratitude that I share my ideas, which I am always interested in reconsidering.

What is “Earth law”?

Earth law is the emerging body of law that will protect, stabilize, and restore the functional interdependence of Earth's life and life-support systems at the local, bioregional, and global levels. Earth law may be expressed in constitutional, statutory, common law, and customary law, as well as in treaties and other agreements both public and private. 

Earth law is a practice of law that has sprouted from the principles of “Earth jurisprudence,” a term coined by cultural historian, poet, and geologian Thomas Berry, who is known as the “father of Earth jurisprudence.” The Gaia Foundation is a proponent of its development and explains What You Need To Know. Judith Koonz describes Earth jurisprudence as Key Principles to Transform Law for the Health of the Planet.

How is Earth law different from environmental law?

Environmental law has many definitions. For example, a body of law intended to protect the environment by regulating activities that cause pollution, such as fossil fuel emissions and the dumping of wastes; by prohibiting certain uses of land designated as protected by the landowner or sovereign, e.g., national parks, land conservation trusts; and by providing regimes of protection for endangered species.

Environmental laws that permit pollution and the degradation of Earth and Earth’s life-supporting systems conflict with Earth law principles.

What do “ecocentric” and “anthropocentric” mean?

“Anthropocentric” means centered on human beings. 

“Ecocentric” means centered on Earth's ecosphere, which includes the air, water, and land. In scientific terms, the atmosphere, hydrosphere, lithosphere, and biosphere comprise the ecosphere. The biosphere is the thin layer of Earth occupied by living organisms.

Earth law looks at anthropocentrism as the centerpoint of a metaphorical sphere held in balance by the relationships of all other life and life-support systems contained within the sphere, the outer perimeter of which is ecocentrism. Ecocentric law seeks to balance these interests. By way of illustration, when a river is the subject of a legal proceeding or legislative action, a purely anthropocentric viewpoint considers only the human needs for the water, such as to drink, use for irrigation of crops, use as a place to discharge waste, and/or conserve for aesthetic and recreational interests. An ecocentric viewpoint considers, in addition to human interests, the role of the river in its ecosystem and the sufficient minimum flows and water quality necessary to protect, stabilize, and/or restore the functional interdependency of the community of life (including human life) and life-support systems that comprise the ecosystem. 

How does Earth law relate to the Rights of Nature legal movement?

The terms “rights” and “nature” are both simple to understand and difficult to explain. They are expansive terms that are highly subjective. It is folly to attempt to define them without a context. To understand them in the context of Earth law, one must begin with the understanding that humans are nature. “Nature” may be defined as the world as it presently exists. It includes the human species and all that the human species has created. It is the state of Earth today, which includes human beings and our creations, as well as nonhuman nature, the rest of the Earth community of life and life-sustaining systems. Earth law rejects the ontology of separation, a concept that considers human beings to be above and apart from the web of nature that weaves together all that exists in the Earth community.

The concept of “legal rights” is relatively new in the history of humankind. Before law was defined by rights, it was defined by relationships. While rights-based legal frameworks currently predominate the fabric of law, from the local to the global, Earth law seeks to reinstill concepts of relationality and responsibility in the law and legal systems. Indigenous legalities, from cultures in the Amazon to Aboriginal Australia to Africa to the Americas, are based on relationality and responsibility.

Earth law distinguishes between rights conceived and codified by human beings and the inherent Rights of Nature, which include the rights to exist, to have a habitat, and to evolve as part of the Earth community. In the context of Earth law, “Rights of Nature” are defined by the human laws and legal systems that give nonhuman nature rights or compel nature’s interests to be considered. By way of example, in a judicial proceeding, to assert a legal right or claim protection from the violation of a right depends on “standing.” Standing is not an inherent right of humans or nature. In the United States, it is a right established by the Constitution. When written, the U.S. Constitution limited standing to white men who owned property. While the Supreme Court has extrapolated the constitutional meaning of “standing” to confer this legal right on women and nonhuman beings, such as corporations, government agencies, trusts, and inanimate objects such as ships, there continues to be strong opposition to conferring nature with standing.

In contrast, the constitutions of Ecuador and Bolivia recognize both procedural rights (such as standing) and substantive rights of nature that compel judges and lawmakers to consider nature’s interests. “Pachamama” is the term used in these constitutions. Typically translated as “Mother Earth,” in Bolivia, “Pachamama” is defined in law as “a dynamic living system comprising an indivisible community of all living systems and living organisms, interrelated, interdependent and complementary, which share a common destiny.” “Living systems” are defined as “complex and dynamic communities of plants, animals, microorganisms and other beings and their environment, where human communities and the rest of nature interact as a functional unit under the influence of climatic, physiographic, and geological factors, as well as production practices, Bolivian cultural diversity, and the worldviews of nations, original indigenous peoples, and intercultural and Afro-Bolivian communities.”

Constitutional recognition of Rights of Nature in Bolivia and Ecuador are examples of how Earth law relates to the global Rights of Nature movement. They are human laws at the constitutional core of their national legal systems that give nonhuman nature rights and compel nature’s interests to be considered.

In the context of Earth law, what is the role of planetary boundaries?

To determine whether law tends to protect, stabilize, and restore the functional interdependence of Earth's life and life-support systems, there must be criteria for decision-makers to consider. Among these criteria are the planetary boundaries established in 2009 by the Stockholm Resilience Center and dozens of collaborators. The planetary boundaries establish scientifically measurable standards for nine processes that regulate the stability and resilience of the Earth system. They are:

• Climate change

• Ocean acidification

• Stratospheric ozone depletion

• Interference with the global phosphorus and nitrogen cycles

• Rate of biodiversity loss

• Global freshwater use

• Land-system change

• Aerosol loading

• Chemical Pollution

Irrespective of any Rights of Nature that may be recognized by human law, the laws of nature that establish the planetary boundaries will determine the future of the Earth community. The pace of the development of Earth law will accelerate as human laws and legal systems pay increasing attention to the laws of nature.

How is Earth law related to climate change?

The development of Earth law will be an effective means to stem the changes in Earth’s climate, particularly those changes caused by human systems. However, because the law is itself one of those systems, its role in stemming changes in the Earth’s climate has thus far been quite limited. As laws and legal systems become more ecocentric, balancing rights and interests that are exclusively human with the interests of the Earth community, which is essential to support human life, they will more effectively address the causes and consequences of climate change. 

How can you contribute to the advancement of Earth Law?

Earth law is for everyone. We are all Earthlings. The world wide web is not just another name for the internet. It is all humankind, along with the flora and fauna of the forests, the oceans, the soils, and the sky. The world wide web is the gift of life and life-sustaining systems we have inherited from Mother Earth and Father Time. To contribute to the advancement of Earth law begins with gratitude. Our book, Earth Law: Emerging Ecocentric Law— A Guide for Practitioners, is dedicated to protect Earth, “in gratitude for the home you provide for us, the sustenance you give us, the magnificent beauty with which you surround us, and for your wondrous diversity of life and life supporting systems.”

This writing of Robin Wall Kimmerer is foundational in the advancement of Earth law. In her essay “Returning the Gift,” she writes: 

We are showered every day with the gifts of the Earth, gifts we have neither earned nor paid for: air to breathe, nurturing rain, black soil, berries and honeybees, the tree that became this page, a bag of rice, and the exuberance of a field of goldenrod and asters at full bloom . . . the job of a human person is to learn, “What can I give in return for the gifts of the Earth?”. . . 

For much of humans’ time on the planet . . . we lived in cultures that understood the covenant of reciprocity—that for the Earth to stay in balance, for the gifts to continue to flow, we must give back in equal measure for what we are given. Our first responsibility, the most potent offering we possess, is gratitude.

With gratitude, I welcome you to the wonderful world of Earth law and encourage you to wonder. Wonder is an essential element of an Earth lawyer’s practice, as are curiosity and imagination. That is how we can effect change, because we have to conceive the inconceivable and make the impossible possible.