Tag: Environmental Law

Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. Many instead expressed serious concerns about Breyer’s impact on environmental law were he to be confirmed, and openly questioned whether a Justice Breyer might be “hazardous to our health.” This Article considers whether, in light of Justice Breyer’s actual record over the past twenty-seven years on the Court, environmentalist concerns about him at the time of his nomination were realized. The Article concludes they were not. Justice Breyer was instead friendly to environmental protection concerns even if he fell shy of being an unqualified friend on the bench. In almost all of the most important environmental cases of the past twenty-seven years, he was a reliable vote joining the majority in the big cases environmentalists won—often providing the critical fifth vote. And although Justice Breyer on a handful of occasions was less a reliable vote in dissent with liberal justices sounding the alarm in the big cases environmentalists lost, in none of those cases was his vote dispositive of the outcome. For this reason, although environmentalist concerns at the time of Justice Breyer’s nomination were reasonable, and had the potential to cause the very problems environmentalists identified, they proved largely insignificant in actual application. Finally, Justice Breyer’s actual record on the Court suggests the wisdom of rethinking what it means to be a “dream” justice for environmental law. Most simply put, the best Justice for environmental law may not be a Justice who always votes in favor of the outcome favored by environmentalists in individual cases.

INTRODUCTION

Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. While Justice Breyer had his defenders, environmentalists mostly expressed serious concerns about Justice Breyer’s impact on environmental law were he to be confirmed. And some denounced him on that ground, worrying that he might be “hazardous to our health”—a concern strikingly similar to that which had been expressed a year earlier by attorneys advising President Clinton when the President had first considered Justice Breyer for a vacancy on the Court. Yet, ironically, although those concerns had abruptly derailed Justice Breyer’s nomination only hours before its expected announcement in 1993, they became a major reason why the President chose Justice Breyer over the President’s first choice for the nomination in 1994. Senate Republican leaders threatened to wage an all-out campaign against the President’s first choice, Secretary of the Interior Bruce Babbitt, because of his reputation as an unabashed environmentalist. And that same Republican leadership promised smooth sailing if Justice Breyer were instead the nominee because Justice Breyer had expressed concern about unduly costly environmental protection requirements and therefore was perceived, unlike Babbitt, as pro-business.

Justice Breyer’s recent retirement from the Court after twenty-eight years provides an opportune moment to reflect on his legacy for environmental law based on his actual record—as reflected in the votes he has cast and the opinions he has written. More specifically, this Article considers whether Justice Breyer’s record on the Court confirms or contradicts the expectations of his supporters and detractors more than a quarter century ago.

To that end, the Article is divided into three Parts. Part I reviews the events surrounding Justice Breyer’s nomination and the role that environmental law then played in securing both his nomination and confirmation. Part I includes discussion of previously undisclosed information long buried in the official archival papers of President Clinton related to the decision not to nominate Justice Breyer in 1993. Part II reviews Justice Breyer’s record in environmental cases before the Court, with special emphasis on opinions he wrote in those cases, whether majority, concurring, or dissenting.

Part III considers whether, in light of Justice Breyer’s actual record on the Court, environmentalist concerns—shared by some advising the White House—about Justice Breyer were realized. Although those concerns were understandable and pertained to the very problems that White House advisors and environmentalists identified in 1993 and 1994, they have proven largely insignificant in actual application. In the vast majority of environmental law cases heard by the Court during Justice Breyer’s tenure to date, Justice Breyer has both displayed heightened sensitivity to environmental protection concerns and voted in a manner sympathetic to environmentalists, without expressing any concern about environmental protection requirements being too demanding. And, in those relatively few cases in which his concern with unduly stringent environmental law was relevant to a legal issue’s resolution, Justice Breyer’s views made no difference to the outcome of the case, nor has he written an opinion of the Court in any of those cases, instead at most writing a separate concurring opinion of no legal effect. In only one relatively unimportant case that defied application of liberal or conservative ideology did he ever supply the decisive fifth vote against environmentalists, likely because the Court has been consistently dominated by at least five more conservative Justices ever since he joined the bench.

I.  WHITE HOUSE ADVISOR CONCERNS AND ENVIRONMENTALIST OPPOSITION TO JUSTICE BREYER’S NOMINATION

President Clinton’s decision to nominate then–First Circuit Judge Breyer to fill Justice Harry Blackmun’s seat in May 1994 was remarkable because only one year earlier, the President had decided at the last minute not to nominate Judge Breyer to fill Justice Byron White’s seat on the Court. In June 1993, Judge Breyer had been the expected nominee, bolstered by the strong support of Massachusetts Senator Ted Kennedy. But in what was dubbed by the New York Times as “A Surprise Choice,” Clinton instead tapped D.C. Circuit Judge Ruth Bader Ginsburg to fill the opening.

According to press accounts at that time, Judge Breyer’s nomination stumbled in the final day and hours because of reports that he had failed to pay Social Security taxes on the wages of a part-time housekeeper. Judge Breyer’s problem was an especially sensitive one for the White House because the President had recently suffered repeated embarrassment when his two successive choices to serve as the first female Attorney General were abandoned because of problems with their domestic household employees: the first had reportedly failed to pay taxes for a childcare provider and the other had failed to inform the White House that she had once hired an illegal alien as a household employee (although, in her defense, that hiring was not itself unlawful when it occurred). And, as much as the Clinton White House sought to distinguish Judge Breyer’s circumstances, the specter of excusing conduct from a man that resembled conduct that had only recently derailed two female cabinet picks apparently cratered Judge Breyer’s nomination. Judge Breyer also reportedly interviewed poorly with the President not long before Ginsburg was announced—which Judge Breyer’s supporters blamed on painkillers he was taking while recovering from a serious bicycle accident for which he had recently been hospitalized.

But what was not reported at the time is that White House concerns about Judge Breyer were also substantive in nature. In early June 1993, White House Counsel Bernie Nussbaum asked Joel Klein, a highly skilled and trusted D.C. private sector attorney, to conduct a confidential review of both Judges Ginsburg and Breyer to assist the President’s decision. Over the course of just a few days, Klein orchestrated detailed reviews of the record of both judges by forty lawyers at six law firms. And Klein provided Nussbaum a comparative analysis of the two judges in memos dated June 10 and June 11—precisely the time period when President Clinton pivoted away from Judge Breyer in favor of Judge Ginsburg, whose Senate confirmation Klein then championed in his new role as Deputy White House Counsel.

The reviews were devastating to Judge Breyer’s prospects. As summarized by Klein to Nussbaum, “Judge Ginsburg more closely meets the President’s articulated standards for the Supreme Court than does Judge Breyer.” Her “work has more of the humanity that the President highly values and fewer of the negative aspects that will cause concern among some constituencies.” “She has written more, and consistently, about the human condition and the plight of the disadvantaged, and she has done so with obvious conviction and commitment.” In a draft memo to Nussbaum on Judge Breyer, while describing Judge Breyer as “a brilliant jurist” with “the potential to rank with the most distinguished judges in our past,” Klein also described the “dispassionate” nature of his writing and how “he does not wear his heart on his sleeve.” Klein added that Judge Breyer’s views on government regulation such as environmental risk regulation were “conservative” and in a recent book he authored on risk regulation, he had proposed “a government-wide cost/benefit approach” akin to what Republicans then favored and to those regulatory reforms supported by the prior presidential administration.

Those attorneys who reviewed Judge Breyer’s writings for Klein stressed Breyer’s apparent lack of sensitivity to the human stakes of economic regulation and environmental protection requirements. In one memo dated June 8, and sent to Klein on June 9, two reviewers described the “bloodlessness” evidenced by Judge Breyer’s penchant for “analyz[ing] every problem he is considering within a framework [so] bounded by economic theory or rules of logic that the result seems devoid of emotion and even . . . humanity.” The reviewers harshly contrasted Breyer’s writings with those of Bruce Babbitt—the candidate favored by environmentalists who was then serving as Secretary of the Interior—which were described as “lucid, exuberant and wide-ranging.” A second memo, prepared on June 7, similarly described Judge Breyer as a “cold fish,” “bring[ing] no passion or insight” and as so “lack[ing] of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice.” The memo concluded that Judge Breyer was “certainly a judicial conservative” and “[c]onservatives will be thrilled if Judge Breyer is appointed. . . . Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court Justice.” “In no way is he a ‘man of the people,’ as some other candidates have been.”

These concerns had a clear impact. Then-Associate White House Counsel Ron Klain made an explicit reference to the concern in his June 11, 1993, memorandum to White House Counsel that listed the questions that the President could ask Judge Breyer in their interview. One question asked Judge Breyer to respond to the claim that his “writings suggest an over-emphasis on economics: putting a cost on lives, for example.” Another question more pointedly asked him to “respond to the criticism that his opinions are ‘bloodless.’ ” President Clinton’s interview with Judge Breyer that same day did not go well, and a few hours later, Klein called Judge Ginsburg to let her know she should be available for a meeting with President Clinton. She met with the President two days later, Sunday, June 13, and the President called her later that same night to offer her the job.

What resurrected Judge Breyer’s prospects a year later and secured President Clinton’s nomination was the President’s desire to avoid a Senate confirmation battle. Clinton’s apparent first choice in 1994, as it had first been in 1993, was Bruce Babbitt. Liberals in the Democratic Party strongly endorsed Babbitt, as did environmentalists, in 1994 because of his progressive views and his championing of environmental protection causes both as Governor of Arizona and Interior Secretary. Indeed, environmentalists had a year earlier been so enthusiastic about Babbitt that some had actually opposed his nomination to the Court to replace Justice White because they did not want to lose his leadership at Interior—in retrospect a decision they may well regret.

But it was that same environmentalist enthusiasm for Babbitt that ended up sinking his possible nomination to replace Justice Blackmun in 1994. When the White House let leak to the news media that the President had settled on Babbitt and would announce his nomination shortly, Republican Senate leadership preemptively announced that they would vigorously oppose Babbitt—because of his reputation as an ardent environmentalist. Simultaneously, the Republican Senate minority leader, Senator Bob Dole, predicted “smooth sailing” were President Clinton to nominate Judge Breyer instead. The President blinked, and Judge Breyer became the nominee. Judge Breyer also overcame Clinton’s earlier doubts, upon meeting him a summer before, that he lacked energy, by literally taking a run with the President along the Capital Mall to establish his physical stamina for the job. The White House’s concerns of a year earlier, regarding his lack of humanity and affinity for regulatory reform, apparently disappeared—these qualities had been transformed from a political liability into a political virtue.

Most liberal Democrats in Congress muted their displeasure with the Judge Breyer choice, presumably to avoid breaking publicly with their own President, following twelve years of Republican administrations. But some of the more progressive Democrats and hardcore environmentalists did not shy away from sharply criticizing the nominee, revealing their obvious frustration that the President had let pass a potentially historic opportunity to have an acclaimed environmentalist join the High Court.

The focus of their criticism was a common theme evident in Judge Breyer’s scholarship, work experience, and judicial opinions in favor of reform of excessively burdensome regulations. These were the same concerns that advisors to the White House had stressed in 1993. As counsel to the Senate Judiciary Committee, on leave from Harvard Law School in the late 1970s, Breyer had worked effectively in a bipartisan fashion with both Democrats and Republicans in support of legislation that deregulated the airline industry. He favored such deregulation on the ground that regulation imposed unnecessary costs on industry and impeded the operation of free market forces that could on their own lead to better products and services for lower prices than burdensome government regulation might achieve.

Indeed, Breyer had so impressed Senate Republicans with his support of regulatory reform that they endorsed President Carter’s nomination of Breyer to serve on the First Circuit even though that nomination occurred on November 13, 1980—a time when a nomination for a life-tenured position should have been dead on arrival in Congress. After all, the date of the nomination was only nine days after Carter had lost the Presidency to Ronald Reagan and the Democrats had lost the Senate to the Republicans. Confirming Breyer to the First Circuit during a congressional lame duck session would accordingly mean the elimination of an important federal appellate court vacancy that would otherwise have been available for a Republican President and Republican Senate to fill a couple months later. Yet, because of Senator Kennedy’s clout and significant Republican leadership support for Breyer, rooted in his work on regulatory reform as a Senate staffer, Breyer was confirmed as a federal appellate judge less than a month later in December 1980.

As an appellate judge, moreover, Judge Breyer continued to be a proponent of regulatory reform, including for environmental protection rules. In both his judicial rulings and his extra-judicial writings, Judge Breyer expressed concern about the possible harm caused by irrational environmental regulations with compliance costs that far exceeded their benefits.

One of Judge Breyer’s most prominent opinions for the First Circuit was United States v. Ottati & Goss, in which the court upheld a trial court ruling that had rejected the proposed remedy by the Environmental Protection Agency (“EPA”) to clean up a hazardous waste site on the ground that the public health benefits did not warrant the high cleanup costs. The ruling was remarkable at the time because it was so unusual for a court not to defer to EPA’s judgment about the extent of cleanup needed to reduce risks from hazardous wastes. Although the force of Judge Breyer’s opinion for the First Circuit was a bit muted because the appellate court was simply affirming the trial court’s ruling against EPA—concluding that “[w]e cannot say that the district court was ‘clearly erroneous’ or unreasonable”—his opinion seemed to join the lower court in ridiculing EPA’s decision to base its cleanup remedy on the proposition that a child would eat contaminated soil over a sustained period of time. And, while declining to impose sanctions on EPA, Judge Breyer’s opinion gratuitously took the occasion to “wonder about the government’s priorities in the face of other, apparently more serious, environmental demands for ‘cleanup’ time and effort.”

Judge Breyer, moreover, did far more than just author the opinion. Outside of his judicial role, he trumpeted its policy themes regarding how environmental risks should be regulated. He used the Ottati & Goss case as the basis for his 1992 Oliver Wendell Holmes Lectures at Harvard Law School, which he then published as a book entitled Breaking the Vicious Circle: Toward Effective Risk Regulation the following year. In that book, Judge Breyer identified why and how government regulation of risks, including environmental risks, had a tendency to require excessive expenditures to reduce the “last ten percent” of risks, here too referring to the facts of the Ottati & Goss case as an illustrative example. Judge Breyer more broadly proffered the question whether determining the acceptable level of environmental risk was best answered by a political process vulnerable to accommodating the public’s tendency to overreact to environmental risks. And, answering his own question, Judge Breyer concluded that such public policy questions were better answered by expert, technical agencies removed from the pressure of politics and popular opinion.

What simultaneously made Judge Breyer’s book so popular with the Republican Party and regulated business and so unpopular with Democratic Party progressives and environmentalists was its embrace of the rhetoric of regulatory reform. Regulatory reform had in fact been an express and significant part of the agenda of the administration of President Jimmy Carter and EPA when Judge Breyer first endorsed it in his work at the Senate in 1980. Regulatory reform then was a more benign political issue, and it enjoyed support on both sides of the political aisle. In March 1978, President Carter issued an executive order, developed in part by EPA leadership, that sought to “reform” the process for developing “significant regulations” in order to eliminate regulations that “impose unnecessary burdens on the economy.” Political appointees at EPA during the Carter administration favored opportunities to employ economic analysis to ensure that the Agency was directing its limited resources to the most serious environmental issues and taking advantage of market incentives to reduce pollution in general. The Reagan administration announced from the outset that it would similarly champion a regulatory reform agenda that took more account of the costs of environmental protection.

But by 1993, the term “regulatory reform” had become a highly partisan term, tainted by efforts during three Republican administrations to cut back on environmental protections under the guise of cost-benefit analysis and economic efficiency. Reagan administration officials at the Office of Management and Budget and EPA used the rhetoric of regulatory reform and cost-benefit analysis but in a wholly skewed fashion to justify deregulation based on exaggerated estimates of regulatory costs coupled with underassessments of the benefits of environmental protection. Environmentalists vehemently opposed those efforts. Even prominent supporters of President Reagan openly commented at the time that his environmental appointees had so bungled the regulatory reform effort that they had undermined it. The President’s own chair of the Council of Economic Advisors, a stalwart champion of regulatory reform, publicly declared: “We will be lucky if by January 1985, we are back where we were 1981 in terms of the public’s attitude toward” regulatory reform.

That is why Judge Breyer’s promotion of regulatory reform rhetoric in his 1993 book set off alarm bells throughout the environmental community, and to those reviewing his writings for the White House Counsel in 1993, to a degree that would not have happened in the late 1970s during the Carter administration. But, in light of how much the political debate had shifted since 1980 when Breyer was working on deregulation on the Senate Judiciary Committee, his 1993 publication was either politically tone-deaf or deliberately designed to position Judge Breyer for promotion as a justice with bipartisan support. With Judge Breyer, the former is a distinct possibility. However, whatever the actual motivation, the publication of Judge Breyer’s book coincided with the openings of two seats on the Supreme Court in successive years and played a central role in whether he would be nominated and confirmed.

Republicans and the business community became his cheerleaders while environmentalists expressed serious concerns. The latter’s criticism could be scathing. “[I]t is clear that [Judge Breyer] is no fan of health and environmental regulation.” If he “had been a member of Congress, he would not have supported many of the current health and environmental statutes.” They accused him of blithely accepting the economic
analysis of right-wing think tanks to belittle the risks addressed by government regulation, minimizing “the risks posed by toxic chemicals
in the environment,” “reject[ing] a policy of erring on the side of safety . . . because it leads society to spend too many dollars chasing after what he believes to be trivial risks,” failing to recognize the limits of cost-benefit analysis, and of “even accept[ing] the highly dubious ‘richer is safer’ argument against stringent regulation of activities that pose health and safety regulations.”

Consumer advocate Ralph Nader pulled no punches in testifying against Judge Breyer’s confirmation. Nader described Judge Breyer as an “extremist.” According to Nader, Judge Breyer was “ridden with fantasy” and “insensitive on the ground to the health and safety needs of the American people.” Judge Breyer, Nader concluded, “appears to seriously question many health and safety laws that he will be expected to interpret impartially as a Justice of the Supreme Court.”

There were, of course, supporters too. The renowned scholar Professor Cass Sunstein, a close professional colleague of Judge Breyer, casebook co-author, and the leading legal scholar in support of the central role of cost-benefit analysis for rational regulation, testified in favor of Judge Breyer’s nomination. More moderate legal academics contended that Judge Breyer would be a “friend” to environmental law and that, even though “in sheer numbers, his rulings against environmental groups probably exceed his rulings in their favor”—only because they lose most of their cases—the judge “ha[d] shown a sensitivity and appreciation for environmental issues.”

Only one environmental public interest organization affirmatively supported Judge Breyer’s nomination—the Conservation Law Foundation, headquartered in Massachusetts—perhaps because of his favorable ruling in a case they had brought to clean up Boston Harbor, because of geographic allegiance to Judge Breyer, or perhaps even more likely, because of institutional loyalty to his principal political sponsor, Massachusetts Senator Ted Kennedy. But even that organization’s letter was noticeably understated. It was only two paragraphs long and addressed merely “To Whom It May Concern.” The most the organization’s director could muster in his opening sentence was that “Stephen Breyer has fashioned a remarkable record on environmental matters that have come before the First Circuit Court of Appeals.” The word “remarkable,” is, of course, itself remarkable for what it does not say in a letter that purports to be an endorsement.

During his own Senate testimony, Judge Breyer plainly sought to assuage concerns by walking back from the deregulatory import of some of his writings. While conservative Republican Senator Strom Thurmond stressed how he “was pleased to learn of [Judge Breyer’s] concerns with excessive regulation,” Judge Breyer asserted that the “role of economics” was necessarily “much more limited” in application to “health, safety, and the environment . . . because, there, no one would think that economics is going to tell you how [much] you ought to spend helping the life of another person.” He also characterized the book as “a plea . . . not to cut back by 1 penny this Nation’s commitment to health, safety, and the environment” but only to “reorganize[e] that commitment” to ensure that money was spent on saving real lives rather than “on the statistical life that might not exist.”

The Senate voted overwhelmingly in favor of Judge Breyer’s confirmation to join the Court. Eighty-seven senators voted in favor, only nine were opposed, and four did not vote. And the only votes opposed were a smattering of conservative Senate Republicans. No liberal Democrat opposition challenged their own President’s nominee notwithstanding any misgivings they might have harbored.

II.  JUSTICE BREYER’S RECORD IN ENVIRONMENTAL LAW CASES BEFORE THE COURT

Justice Breyer’s environmental law record consists of his votes in individual cases and his written opinions in a subset of those cases. During the past twenty-eight years on the Supreme Court, Justice Breyer has written more than five hundred opinions: (1) about two hundred opinions for the Court; (2) approximately one hundred concurring opinions; (3) just shy of two hundred dissenting opinions; and (4) approximately thirty opinions dissenting and concurring in part.

The Justice has written relatively few opinions in environmental cases, mostly for the straightforward reason that the Court does not decide that many environmental cases. Environmental law is, at least numerically, a relatively small part of the Court’s docket so long as one defines “environmental law” more narrowly as I am doing for the purposes of this inquiry.

My narrower approach considers only those cases that arise in a fact pattern in which environmental protection concerns are at stake and those stakes are not wholly incidental to the legal issue raised. That definition sweeps in both cases involving the construction and application of classic environmental laws like the National Environmental Policy Act as well as those cases involving general cross-cutting legal issues such as the scope of congressional commerce authority in a case where environmental protection is at stake. A broader, and perfectly fair contrary approach would be to consider all cases that raise legal issues that, although not arising in an environmental protection setting in the case then before the Court, are likely to have significant implications in future cases that do. Consistent, however, with the author’s belief that there is a discernible “environmental” dimension to environmental law that is important for judges (and Justices) to consider, this Article relies on the narrower definition instead.

Based on that narrower definition, I have identified sixty-three “environmental law cases” decided by the Court during Justice Breyer’s tenure to date, in which he participated in sixty-one due to his recusal in two cases in which his brother, also a federal judge, participated in the case in the lower courts. This subset of cases fulfilled two conditions: (1) each case raised legal issues in the environmental protection context; and (2) that context was not wholly incidental to the legal issue being considered by the Court. For instance, I excluded from my sample a case like Alaska v. United States, a 2005 original action case in which the State of Alaska and the United States were disputing ownership over certain submerged lands in Glacier Bay. I also excluded the Court’s recent decision in BP P.L.C. v. Mayor of Baltimore, concerning the scope of judicial review of a district court ruling not to allow removal of a state court case to federal court. In neither of those cases, or those like them, do the environmental stakes play any non-incidental role in the Court’s resolution of the legal issue to be decided. But I included cases like Article III standing and regulatory takings cases because, as I have elaborated in previous scholarship, the environmental dimension of those cases should bear on the application of the relevant legal standards even if, as described below, individual Justices and sometimes a majority of the Justices too often fail to grasp its relevance.

A.  Justice Breyer’s Votes

In 2000, I published an article that tried to develop a rough quantitative basis for comparing how individual Justices voted in environmental law cases and for assessing whether certain Justices and the Court as a whole were more or less responsive to the need for environmental protection. The article argued more broadly in support of the thesis that there was a uniquely “environmental” dimension to environmental law relevant to judicial decision making—for instance, how such concerns might provide a proper basis for rethinking what constitutes a “concrete injury” for Article III standing purposes, a “property right” in natural resources for regulatory takings purposes, an “intelligible principle” for nondelegation doctrine purposes, an “economic activity” in Commerce Clause analysis, or the degree of judicial deference owed a federal agency in both technical assessments and statutory interpretations. While concluding that the Court overall had displayed “apparent apathy or even antipathy towards environmental law,” I concluded that some individual Justices had shown more sensitivity than others to how environmental protection concerns could be relevant to how the legal issues before the Court should best be decided.

My 2000 analysis relied on a scoring system somewhat analogous to that employed by the League of Conservation Voters in scoring members of Congress on environmental matters, but now applied to each Justice. A Justice was awarded one point for each outcome that I classified as “pro-environmental protection,” resulting in each Justice receiving an “EP score,” based on the percentage of pro-environmental votes the Justice cast out of those in the sample of environmental cases in which that Justice participated. Although nominally quantitative in its ultimate yield, I freely admitted at the time the “inevitabl[e] arbitrariness and sometimes downright foolishness in attempting any such ‘pro’ or ‘anti’ policy assignments to Supreme Court rulings, especially assignments that purport to be binary in nature.”

The problems are obvious. First, I defined as “pro-environmental” the legal position favored by environmentalists in each case. An environmental advocate, however, trying to win a particular case may in fact be making an argument that leads to a win in that case but to losses in other future environmental cases. For instance, the advocate may be arguing against deferring to an expert agency’s judgment because, in the case before the Justices, an argument against such deference may be needed to secure a win. But if the advocate prevails in that case, the precedent established may cause environmentalists in the future to lose far more than they win if it turns out that judicial deference to agency expertise is more advantageous to environmental protection concerns over the longer term.

Second, the legal position favored by environmentalists in a particular case may be very weak on the merits and warrant rejection. There is no necessary correlation between a legal argument favoring environmental protection and its being a meritorious argument. Not every argument in favor of environmental protection is necessarily a strong legal argument that a judge or Justice should accept.

Indeed, there is good reason to worry that the Justices tend to hear cases in which the legal arguments favoring environmental protection are disproportionately weaker. As I have detailed elsewhere, the Court’s decision-making at the jurisdictional stage for most of the past fifty years that define the modern environmental law era has been skewed against environmentalists. The vast majority of the cases in which the Court has granted review are cases in which the position favored by environmentalists prevailed in the courts below. The Court has taken relatively few cases in which the environmentalists lost and then sought the Court’s review, especially those in which the federal government was the prevailing party. The Court has, in effect, cherry-picked the cases in which environmentalists may have won based on potentially weak arguments while not being similarly ready to review cases in which business interests have won on weak grounds.

I accordingly warned in 2000 against drawing any conclusions based on EP scores apart from those at the two extremes—either very high or very low. Because of the obvious limits to such scoring, only such extreme discrepancies in scores might offer a fair basis for positing that the Justice in question was more or less “likely to rule in favor of or against an environmentally protective outcome because of that outcome’s environmental dimension.” Those same limits are also a reason not to be surprised when even the highest EP score is not that high—the potential result of a skewed merits docket.

In 2000, Justice Breyer had served on the Court for only six years, and his EP score back then of 66.6 after six years of service was in fact one of the highest of those then on the Court. It far exceeded Justice Scalia’s strikingly low score of 13.8 and the scores of Justices Thomas (20.0) and Kennedy (25.9). But, of course, his score came nowhere close to Justice Douglas’s, who retired from the Court in 1975. An environmentalist hero and former member of the Board of the Sierra Club, Douglas boasted of a score of 100—apparently no matter the legal issue presented, and perhaps even the relative strength of the competing arguments, Douglas always voted in favor of the outcome supported by environmentalists. Justice Breyer’s EP score of 66.6 was also higher than Justices Brennan (58.3), Marshall 61.3), Blackmun (58.3), Stevens (50.6), Souter (57.1), and Ginsburg (63.6) but not to any significant extent, especially because both Justice Breyer and Ginsburg had both served for far fewer years than Justices Brennan, Marshall, and Stevens and therefore reflected very different cases too. Justices Brennan, Marshall, and Stevens were accordingly being measured based on cases in which it might have been harder on the merits to vote for the side favored by environmentalists.

Two decades later, the number of environmental cases in which Justice Breyer has participated has naturally risen, and interestingly his new EP score (62.3) is essentially the same as before and as the two other Justices with high scores—Sotomayor (64) and Kagan (68). Yet Justice Breyer’s score is sufficiently higher than former Justices Scalia (23.4) and Kennedy (36.0) and current members such as Chief Justice Roberts (20), Justice Thomas (20.6), and Justice Alito (10.5) for their overlapping cases since 1994 to suggest significant differences in the application of law to environmental protection. Justice Alito’s score of 10.5 is astoundingly low. The only cases in which Alito voted on the side supported by environmentalists were in four cases that the Court decided unanimously in their favor.

On the other end of the spectrum, although former Justices Stevens, Souter, and Ginsburg’s scores in 2000 were a tad lower than Justice Breyer’s at that time, all of their scores became higher—Stevens (78.4), Souter (80.6), and Ginsburg (71.9)—than Justice Breyer’s for the cases on which they overlapped while serving on the Court. The gap between Justice Breyer and both Justice Stevens and Souter is not especially significant but arguably enough to suggest a potential difference in their respective willingness to consider how the environmental protection dimension of the case might be relevant to their resolution of the legal issue before the Court and, for Justices Stevens and Souter, in favor of a more protective outcome.

Finally, not all environmental cases are, of course, equally important, and the individual votes are more significant in some cases than in others. Some cases are far more significant in terms of their import for environmental protection. Whether EPA has authority to regulate greenhouse gas emissions under the Clean Air Act is clearly more important than whether a certain river in Alaska is “public land” for the purposes of the Alaska National Interest Lands Conservation Act. And, because in some of those more important cases the vote was also closely divided, the vote of any one Justice in the majority is outcome-determinative. In that distinct respect, the individual vote of any single Justice in a five-Justice majority is more significant.

Based on this criteria, Justice Breyer’s votes in several cases were especially significant, including Alaska Department of Environmental Conservation v. EPA, upholding the EPA’s authority to override Alaska’s issuance of a permit under the Clean Air Act; Kelo v. City of New London, sustaining a local government’s exercise of its eminent domain power to condemn residential property to promote commercial development; Massachusetts v. EPA, both upholding environmental-plaintiff standing and rejecting the EPA’s claim that it lacked authority to regulate greenhouse gas emissions under the Clean Air Act; and Murr v. Wisconsin, rejecting a regulatory takings claim against a local environmental restriction on residential development. Those are all, moreover, cases environmentalists won.

By contrast, in only one of the sixty-one environmental law cases in which Justice Breyer participated and environmentalists lost did he provide the critical vote against their position. Justice Breyer voted against the legal outcome favored by environmentalists on twenty-three occasions. In eleven of those cases, the Court ruled unanimously and in three others the vote was eight to one against the environmentalist position. Justice Breyer supplied the sixth and seventh vote for the majority in six cases and dissented in the last two. The only case in which Justice Breyer’s vote was outcome-determinative in a case that environmentalists lost during the past twenty-eight years was the Court’s ruling in June 2021 that the condemnation authority provided by the federal Natural Gas Act to recipients of a Federal Energy Regulatory Commission certificate of public convenience and necessity extended to the right to acquire state-owned property. Interestingly, the five-Justice majority was an unusual one, consisting of Justice Breyer, Chief Justice Roberts, who authored the Court’s opinion, and Justices Alito, Sotomayor, and Kavanaugh.

B.  Justice Breyer’s Opinions in Environmental Cases

Justice Breyer has written opinions in nineteen environmental cases, which is a disproportionately large number of the sixty-one environmental cases in which he has participated. He has written three majority opinions for the Court, six concurring opinions, and ten opinions either dissenting in full or in part. Although Justice Breyer’s majority opinions are clearly the most significant because they alone announce binding legal precedent, the concurring and dissenting opinions may well be the most personally revealing because they largely resulted from the Justice’s own decision to write an opinion expressing his views rather than, as with majority opinions, an assignment from the senior Justice in the majority to write the official opinion of the Court. The majority opinion, however, nonetheless can very much reflect the priorities and values of its author, especially whether the Justice chooses to write the opinion narrowly and tries to attract as many votes as possible or instead drafts the opinion in as sweeping a way as possible consistent with maintaining the bare minimum of five votes required for a majority.

1.  Justice Breyer’s Majority Opinions

Justice Breyer wrote the majority opinions in Ohio Forestry Association v. Sierra Club, Public Lands Council v. Babbitt, and County of Maui v. Hawaii Wildlife Fund. None is a headliner. Nor is that at all surprising, given that Justice Breyer remained the most junior Justice for his first twelve years on the Court, which does not lend itself to especially high-profile opinion assignments from his more senior colleagues. That status is also likely why it was not until 2019 that Chief Justice Roberts assigned Justice Breyer a moderately more important environmental case, County of Maui, though still far short of a blockbuster.

All three Court opinions by Justice Breyer evidence his essential pragmatism, a catchword that the White House promoted when he was nominated and that was accordingly captured in the first New York Times headline announcing his nomination. His pragmatism was similarly the theme of favorable testimony provided before Congress by one of his leading academic supporters.

Ohio Forestry is a classic opinion assigned to a junior Justice. Indeed, it might well be classified as one of the “dogs” of the docket that Term, a term of art the Justices use informally in referring to the kind of case no Justice has any particular interest in writing. At issue was whether the Sierra Club’s challenge to the Forest Service’s plan for managing the Wayne National Forest in Ohio was justiciable. The Court ruled unanimously that the lawsuit was not ripe for review on the ground that the plan did not itself create any adverse effects of a “strictly legal kind” because it did not purport to authorize any particular action within the forest. It would be far more sensible, Justice Breyer’s opinion for the Court reasoned, to wait until “the Plan is implemented” which would allow the reviewing court to benefit from “further factual development” of the issues.

Justice Breyer’s opinion for the Court evidences significant sensitivity to the administrative preferences of the federal agency and to the resources of the federal judiciary. The ruling that the case was not ripe emphasizes how allowing the Sierra Club’s lawsuit to proceed would have “require[d] time-consuming judicial consideration of the details of an elaborate, technically based plan . . . without benefit of the focus that a particular logging proposal could provide.” There is obvious force to the Court’s concern. But the opinion evidences no comparable consideration of the litigation resource challenges that a public interest organization like Sierra Club faces in trying to oversee a series of site-specific logging proposals over time. What the Court posits as the better approach may well be better in theory, but the challenges of such constant site-specific oversight may in fact be preclusive as a practical matter of any meaningful review of future logging decisions in a national forest.

To that same end, the Court declined to consider a series of other ways that the Forest Plan could immediately harm the Sierra Club and its members. The Court reasoned that Sierra Club’s argument “suffer[ed] from the legally fatal problem that it ma[de] its first appearance [before the] Court in the briefs on the merits.” That is a fair point, and the Court is not at all out of bounds in strictly applying administrative law exhaustion principles in denying consideration of Sierra Club’s argument. Yet, here too, the ruling ignores the practical limits of a resource-strapped public interest organization maintaining lawsuits in an effort to ensure other unrepresented interests are given voice. An organization like the Sierra Club is hard-pressed to monitor all the site-specific decisions that Forest Service personnel are making on a daily basis throughout a national forest. For this reason, the Club’s only practical recourse may be to persuade a court, as they tried unsuccessfully to accomplish in the Ohio Forestry case, to establish some guidelines for the exercise of Forest Service personnel discretion in the future. And the Court’s lack of sensitivity to that practical limitation contrasts unfavorably with the many ways that the Justices, in my experience both litigating for and against the United States, routinely allow the federal government to raise new arguments and bring to the Court’s attention new facts not considered below, because of the Justices’ awareness of the practical limits in the government’s ability to oversee all of its lower court litigation.

The Court’s providing such practical flexibility to the United States makes great sense. Otherwise, the Court would be making significant pronouncements of law affecting the country based on incomplete arguments and flawed factual assumptions. And, given the thousands of cases the federal government handles in the lower courts, it is exceedingly limited in its ability to ensure that all the best arguments are made in the timeliest manner. The Court, however, could demonstrate some sensitivity to the practical needs of environmental citizen suit litigants too. Justice Breyer’s opinion for the unanimous Court in Ohio Forestry evidences no such awareness of the problem.

Public Lands Council v. Babbitt was a logical sequel to Ohio Forestry. Again, Chief Justice William Rehnquist assigned the junior Justice Breyer the task of writing an opinion for a unanimous Court in another public lands administrative law case that was likely of little, if any, interest to the Justices. The major difference was that, rather than environmental plaintiffs challenging the Forest Service’s management of a national forest, it was commercial livestock interests challenging the Bureau of Land Management’s administration of grazing permits on public lands.

The basic result was the same. The Court concluded that the federal agency’s regulations governing the issuance of permits were valid under the relevant statutory language and that the commercial plaintiffs’ concerns that they might be harmed in how those regulations were applied in the future were largely premature. The plaintiffs should instead wait, not unlike the environmental plaintiffs in Ohio Forestry, until the federal agency actually applied the regulations in a specific factual context that harmed them. While the reasoning is similar is tone, there is still a significant practical difference between the two cases because the commercial party subject to a grazing regulation will naturally always know as soon as such harm happens in the future, which is not true for an environmental organization striving to learn of any possible site-specific decision to allow logging or other potentially harmful activity within a very large area of land such as a national forest.

It took twenty more years for Justice Breyer to write a third opinion for the Court in an environmental case, County of Maui v. Hawaii Wildlife Fund. And, reflecting his more senior status by that time, the case is far more significant than either Ohio Forestry or Public Lands Council. It is not a mere unanimous toss-off. County of Maui instead presents a rather thorny and important question of statutory interpretation under the Clean Water Act—the type of question that nicely lends itself to Justice Breyer’s proclivity to pragmatic solutions.

The precise legal issue raised in County of Maui concerns how direct or indirect an addition of pollutants into navigable waters must be to constitute a “discharge” of a pollutant into navigable waters requiring a pollution permit under the Clean Water Act. In County of Maui itself, the municipal sewage treatment facility seeking to avoid the permit requirement injected contaminated water into a well located about a half mile from the Pacific Ocean—but the discharge naturally reached the Pacific within a few months through the ground water. The facility contended that no permit was required unless the pollutants were directly introduced into a navigable water body like the Pacific, meaning that the pollution was exempted from the Clean Water Act permit requirement if it travelled even just a few inches through groundwater or over the surface land before reaching the ocean. The EPA agreed that any travel through groundwater placed the addition of pollutants outside the Clean Water Act but contrasted that any travel over surface land would depend on a more contextual analysis of directness.

In rejecting both those limits, Justice Breyer’s opinion for a six-Justice majority held that a Clean Water Act permit was required “when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.” The Court’s ruling displays Justice Breyer’s willingness to embrace a nuanced and accordingly ultimately vague legal test—such as “functional equivalence”—when he believes clearer legal rules fail to account for all the factors that should be relevant in solving a problem. The Court’s “functional equivalence” test rejects any hard-and-fast lines for when an addition of a pollutant is too indirect in favor of a multi-factor inquiry. The opinion candidly acknowledges that there are “too many potentially relevant factors applicable to factually different cases for this Court to use more specific language,” while both highlighting seven relevant factors and underscoring that “time and distance will be the most important factors in most cases, but not necessarily every case.” Interestingly, the Chief Justice expressed confusion at oral argument about what Justice Breyer’s “functional equivalence” test meant, when Justice Breyer then raised the possibility of such a test, but nonetheless subsequently chose Justice Breyer to write the Court’s opinion.

The County of Maui ruling is significant for environmental law. Although the Court nominally vacated the lower court’s judgment favorable to the environmental plaintiffs and remanded the case to that court for reconsideration in light of its ruling, the functional equivalent test amounted to a clear win for the plaintiffs. They will do well under that test, as will environmental plaintiffs in a host of cases across the country who have brought Clean Water Act citizen suits against sources that discharge to navigable waters in a proximate but still indirect water through groundwater and over land. For instance, in the immediate aftermath of the County of Maui ruling, environmentalists targeted leakage of coal ash into navigable water bodies from power plants. Although County of Maui does not rise to the front page headline status of a case like Friends of the Earth v. Laidlaw, expanding Article III standing for environmental citizen suit plaintiffs, or Massachusetts v EPA, establishing the EPA’s authority to regulate greenhouse gases under the Clean Air Act, the case will make a big difference in application to lots of factual circumstances and represents an increasingly rare environmentalist victory as the Court’s own bench becomes more conservative.

2.  Justice Breyer’s Concurring Opinions

As described above, Justice Breyer’s separate opinions are even more revealing because, unlike majority opinions that are assigned by the most senior Justice in the majority, one can be more confident that the Justice writing separately is expressing their own views. Justice Breyer wrote six concurring opinions, four of which both address significant legal issues and relate directly to the concerns raised by environmentalists when Justice Breyer was nominated. In each, Justice Breyer expressed views that promoted the very regulatory reform themes antithetical to many environmentalists. His doing so each time in a concurring opinion makes clear that these themes remained very important to him, just as environmentalists had feared at the time of his nomination.

First, in General Electric v. Joiner, decided in 1997, Justice Breyer wrote separately while also joining the majority ruling that upheld the trial court’s decision to exclude from jury consideration expert testimony proffered to demonstrate a link between the plaintiffs’ exposure to polychlorinated biphenyls (“PCBs”) and small-cell lung cancer. In his separate opinion, Justice Breyer stressed that “modern life, including good health and economic well-being, depends upon the use of artificial or manufactured substances,” presumably alluding to a chemical like PCBs, and the need for judges to use their gatekeeping authority to ensure that tort liability did not effectively “destroy” the “wrong” chemicals. Such a concern with the potential for excessive tort liability to harm businesses was in the late 1990s a major talking point for business leaders seeking to curb large tort liability awards.

In Whitman v. American Trucking Associations, decided in 2001, Justice Breyer’s concurring opinion was the one blight on an otherwise glorious day for environmentalists. In Whitman, Justice Scalia authored a unanimous opinion for the Court that repudiated what had been a major attack on the constitutionality of a central part of the Clean Air Act. The Court rejected the D.C. Circuit’s remarkable ruling that the Act violated the nondelegation doctrine by requiring the EPA to promulgate national ambient air quality standards requisite to protect public health without basing its determination of those standards on an intelligible principle such as cost-benefit analysis.

Scalia’s opinion not only rejected the notion that cost-benefit analysis was required to satisfy the nondelegation doctrine’s requirement of an intelligible principle, but it further ruled that the relevant provisions of the Clean Air Act barred the EPA from considering economic costs at all in promulgating the national standards. It was a sweeping win for both environmentalists and the EPA. But what made their victory even sweeter still was that it was unanimous and written by Justice Scalia, the Court’s leading conservative.

Justice Breyer’s separate concurring opinion fell far short of dampening the victor’s spirits that day, but his words were nonetheless chillingly expressive of some of the worst fears of environmentalists upon his confirmation. He disputed Scalia’s powerful statement that the EPA could consider compliance costs only if Congress’s textual commitment to such consideration was “clear.” According to Justice Breyer, “other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting [rather than] forbidding” regulatory agencies from adopting “rational regulation” that considered a proposed regulation’s adverse economic effects.

Even more telling, Justice Breyer conflated economic costs with public health, just as industry had long been arguing should be done. According to Justice Breyer, because an overly protective environmental protection requirement that returned society to the “Stone Age” would clearly not be “requisite to protect the public health,” “the EPA, in setting standards that ‘protect the public health’ with ‘an adequate margin of safety’” should be deemed to be able to weigh compliance costs against environmental benefits at least to guard against disproportionately high costs for only trivial benefits.

For environmentalists, Justice Breyer’s language sounded unsettlingly similar to the business community’s claims that a healthy society was a wealthy society and environmental protection laws that reduced business profitability were accordingly undermining rather than promoting public health. Had Justice Breyer authored his concurring opinion in any context other than a concurring opinion with no legal import and when environmentalists were otherwise enjoying an enormous victory, it might have garnered far more attention and concern. But, on a day of widespread relief and celebration, few paid attention to Justice Breyer’s concurrence.

Justice Breyer’s concurrence in Bates v. Dow Agriculture Sciences LLC, decided in 2004, strikes a similar concern about the adverse impacts of excessive government regulation. In Bates, however, the issue arose in the context of a federal preemption case, in which a pesticide manufacturer was arguing that federal pesticide regulation preempted state common law tort liability. The majority opinion, which Justice Breyer joined, rejected the manufacturer’s more sweeping preemption theories, concluded that some state tort law liability might not be preempted, and remanded the case back to the lower courts for further proceedings. Justice Breyer wrote separately to emphasize that the EPA, the federal agency charged with administering the federal pesticide statute at issue, enjoyed authority to promulgate regulations that effectively preempted state tort liability to avoid “a counter-productive ‘crazy-quilt of anti-misbranding requirements.’ ”

Finally, similarly sensitive to his perception of excessive environmental regulations was Justice Breyer’s separate concurrence in Coeur Alaska, Inc. v. Southeast Conservation Council in 2009, in which the Justice provided the more conservative wing of the Court with its sixth vote in a major loss to environmentalists. At issue in Coeur Alaska was in effect whether a gold mine that was discharging toxic slurry into a lake three miles away could avoid having to comply with section 402 of the Clean Water Act, which would likely have barred the activity, by characterizing their toxic slurry as “fill,” thereby triggering section 404 of the Act, which separately and less restrictively regulates the addition of fill into navigable waters. The gold mine had placed enormous volumes of toxic slurry into the lake, which was 51 feet deep, 800 feet wide, and 2,000 feet long. And the EPA freely acknowledged that the slurry would kill all of the lake’s fish and nearly all of its aquatic life.

To the environmental plaintiffs and the Ninth Circuit in its lower court ruling, the gold mine’s claim that it was “fill” rather than pollutant seemed like a blatant end run around the Water Act’s section 402 limitations on the addition of pollutants into navigable waters. But, relying on the EPA’s agreement that section 404 rather than section 402 applied, the Court ruled in industry’s favor. Justice Breyer agreed, declining to join Justice Ginsburg’s dissent, which both Justices Stevens and Souter joined. Exhibiting the same preference for deferring to expert technical agencies promoted by his 1993 book, Justice Breyer explained the reasons why he joined the majority: “I cannot say whether the EPA’s compromise represents the best overall environmental result; but I do believe it amounts to the kind of detailed decision that the statutes delegate authority to the EPA, not the courts, to make (subject to the bounds of reasonableness).”

The contrast between Justice Breyer’s willingness to defer to the EPA, notwithstanding the extreme results, and Justice Ginsburg’s dissent for herself and Justices Stevens and Souter was stark:

The Court’s reading . . . strains credulity. A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid material to raise the bottom of a water body, transformed into a waste disposal facility. Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards.

Justice Ginsburg, unlike Justice Breyer, was not willing to assume that the EPA would ensure this loophole was not abused in future applications, especially given the dissent’s view that it had been abused in the facts of the case then before the Court.

3.  Justice Breyer’s Dissenting Opinions in Part or in Full

Justice Breyer wrote separate opinions that dissented either in part or in full on ten occasions. In some, he concurred in part or in full with conservative majorities, and in others he dissented in part from liberal majorities. And on a few occasions, he dissented in full. The latter category tended to be those instances when Justice Breyer expressed views wholly favorable to the legal arguments of environmentalists. 

Two of the cases involved tort liability. In Norfolk & Western Railway v. Ayers, decided in 2003, Justice Breyer dissented from that part of the Court’s ruling that allowed tort plaintiffs who had been exposed to asbestos fibers and were suffering from asbestosis to recover for damages from their related reasonable fear of cancer. Justice Breyer acknowledged that the legal issue was “a close and difficult one.” But he dissented in part from Justice Ginsburg’s majority opinion because he was worried both about the “impossibility of knowing an appropriate compensation” for such fear and that compensating victims for their fear might leave too little money remaining later on for victims who ultimately suffered from cancer. On the other hand, in Exxon Shipping Co. v. Baker, decided in 2008, Justice Breyer dissented from a majority ruling limiting punitive damages from the Exxon Valdez Alaska oil spill based on his view that the punitive damages awarded the oil spill victims in that case need not be reduced.

Unlike in Norfolk and Exxon Shipping, in Winter v. Natural Resources Defense Council, Inc., Entergy v. Riverkeeper, and Utility Air Regulatory Group v. EPA, it was Justice Breyer’s partial concurrences with a conservative majority rather than his dissent from a liberal majority that were telling. In each, Justice Breyer’s separate opinion reflected his pragmatism and general desire to provide federal expert agencies with flexibility absent excessive judicial second-guessing.

In Winter, Justice Breyer declined to join Ginsburg’s dissent from the majority ruling overturning a lower court injunction of U.S. Navy exercises that the environmental plaintiffs alleged were harming marine mammals. Justice Breyer concurred in part with the conservative Justices who made up a majority and concluded that the plaintiffs’ evidentiary support was too “weak or uncertain” to justify the “seriousness of the harm” that the Navy maintained the injunction would do “to the Navy’s ability to maintain an adequate national defense.”

In Entergy, Justice Breyer returned most explicitly to his argument, reflected in his 1993 book and earlier concurring opinion in American Trucking, that cost-benefit analysis is essential in setting rational environmental protection standards. Justice Stevens, joined by Justices Souter and Ginsburg, dissented from the majority ruling that the Clean Water Act permitted the EPA to engage in cost-benefit analysis in deciding the extent to which a power plant’s cooling water intake structure must minimize its adverse environmental impact. Justice Breyer, however, agreed that such analysis was permissible, arguing that “an absolute prohibition would bring about irrational results.” While suggesting some limits on how demanding such a cost-benefit analysis could be, he also cautioned that “in an age of limited resources available to deal with grave environmental problems, . . . too much wasteful expenditures devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems.” 

In Utility Air Regulatory Group, Justice Breyer again concurred in part with a conservative majority but this time to a very different policy end. The majority opinion, authored by Justice Scalia, ruled that the term “any pollutant” under the Clean Air Act did not extend to greenhouse gas pollutants as applied to one significant part of the Act. Justice Breyer proffered a different approach that, like the majority, avoided the EPA’s being compelled to regulate sources that the EPA agreed would be administratively impractical, but by interpreting instead the term “any source” in a manner that would ultimately provide the EPA more discretionary authority to choose how best to regulate greenhouse gas emissions. As described by Justice Breyer, “[t]he Court’s decision to read greenhouse gases out of the [Prevention of Significant Deterioration] program drain[ed] the Act of its flexibility.” And Justice Breyer’s preferred approach “le[ft] the EPA with the sort of discretion as to interstitial matters that Congress likely intended it to retain.”

On the other hand, the Justice’s practical approach prompted him to dissent in full from the Court’s ruling in U.S. Fish & Wildlife Service v. Sierra Club, decided in March 2021, in favor of a federal agency’s decision not to release a document to environmental plaintiffs under the Freedom of Information Act. That Act requires agencies to release to the public final agency decision-making documents unless they are deliberative in nature, reflecting Congress tempering its desire for public disclosure with a competing desire not to unduly chill those candid internal exchanges of ideas that might not occur if the participants knew all their thinking would later be made part of the public record.

Pursuant to the Endangered Species Act, the Interior Department’s Fish & Wildlife Service and the Commerce Department’s National Marine Fisheries Service provide formal “biological opinions” to any federal agency whose proposed action may “adversely affect” an endangered or threatened species or its critical habitat. In U.S. Fish & Wildlife Service, the two Services were preparing biological opinions on a proposed rule by the EPA under the Clean Water Act to regulate power plant cooling water intake structures because of the potentially adverse impact of those structures on aquatic wildlife.

Had the Services provided the EPA with a final biological opinion, the parties would not have disputed that such a final opinion would have been subject to public disclosure. In the case, however, the two Services never submitted a final biological opinion because the EPA ultimately rescinded its initially proposed rule after receiving an early draft of the Services’ biological opinion that had not yet been formally approved by either Service for submission. In challenging the EPA’s final cooling water intake structure, Sierra Club sought a copy of the informal draft biological opinions on the original proposed rule, which it hoped to use to attack the final rule.

The majority easily concluded, based on FOIA’s text, that such draft biological opinions—especially ones never approved by the relevant officials of the two services—need not be disclosed because they lacked any formal legal status within the ESA: “The deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view—not a final decision—about the likely effect of the EPA’s proposed rule on endangered species.” Such preliminary assessments were, the Court concluded, “both predecisional and deliberative.”

In dissent, Justice Breyer naturally took a more practical approach, looking not at the formal name of the relevant document, but its function in the agency decision-making process. Because, Justice Breyer reasoned, “[t]he function of a Draft Biological Opinion finding jeopardy [of an endangered species] . . . is much the same as that of a Final Biological Opinion” and triggers the same process within EPA, the same reasons that justify public release of the final biological opinion apply with equal force to the draft. However, because it was not clear whether the biological opinions at issue in the record were “drafts” or merely “Drafts of Draft Biological Opinion,” because they had never been approved by all relevant officials in the two Services, Justice Breyer contended the case should be remanded back to the court of appeals to decide their status.

In short, in some instances Justice Breyer’s lack of commitment to formalism supports policy ends favored by environmentalists, as in U.S. Fish & Wildlife Service. But in other instances, as in Coeur Alaska, he frustrates environmentalists by allowing the government to avoid what seems, on the face of the relevant statutory language, to be a clear transgression of congressional purpose.

However, Justice Breyer’s support for the constitutionality of environmental restrictions has been unqualified in Fifth Amendment takings cases. He has participated in ten Fifth Amendment takings cases while on the Court. And he voted against the regulatory takings claim in nine of those cases and against a per se physical takings claim in the tenth case. In one of those regulatory cases, Palazzolo v. Rhode Island, he filed a separate dissent to underscore his agreement both with Justice Ginsburg that the case was not ripe and with Justice O’Connor that it was relevant to regulatory takings analysis whether the landowner was challenging a land use restriction that existed at the time of their purchase of the property. And in Cedar Point Nursery v. Hassid, Justice Breyer filed a dissenting opinion on the ground that the majority erred by analyzing the state regulation of land use as a per se physical taking rather than as a possible regulatory taking.

Finally, Justice Breyer also earned high marks from environmentalists for his support of environmental plaintiff Article III standing. Like regulatory takings, Article III standing has been a persistent issue in environmental law since the 1970s. Justice Breyer voted in favor of environmental plaintiffs in the two most important standing cases during his tenure on the Court, Friends of the Earth v. Laidlaw and Massachusetts v. EPA, and he authored the opinion for himself and three other Justices dissenting from the Court’s ruling against the plaintiffs’ standing in Summers v. Earth Island Institute in 2009. Justice Breyer took direct issue with the majority’s ruling that the environmental plaintiffs had failed to demonstrate a concrete injury in their lawsuit challenging the U.S. Forest Service’s salvage sale of timber from a national forest.

 III.  ASSESSING JUSTICE BREYER’S ENVIRONMENTAL LAW LEGACY: FRIEND OR FOE OF ENVIRONMENTAL PROTECTION?

Justice Breyer is likely the only Justice ever chosen because of his perceived views on environmental law. But, ironically not because he was viewed as an ardent environmentalist. Just the opposite. He was thought to be a Justice who would instead be more sensitive to business than to environmental protection concerns.

That is both why Breyer failed to secure the nomination to the Court in 1993 and environmentalists opposed his selection in 1994—strongly favoring Secretary of the Interior Bruce Babbitt. And it is also why Republican Senate Leadership, including the Senate Minority Leader Bob Dole and the Judiciary Committee’s Ranking Minority Member Orrin Hatch, informed the White House that they would fight Babbitt’s nomination and promised a smooth confirmation process for Judge Breyer. As described at this Article’s outset, President Clinton chose not to fight, notwithstanding environmentalists’ warnings that Judge Breyer would be bad for environmental law and even “hazardous to our health.”

So, which has Justice Breyer turned out to be—friend or foe? The answer seems relatively clear: friendly, if still shy of an unqualified friend. As reflected in a rough sense in his EP score, especially compared to those of his colleagues on the bench, Justice Breyer has voted in favor of results supported by environmentalists far more than most of the other Justices on the Court. And, in almost all of the most important environmental cases of the past twenty-eight years, he was a reliable vote joining the majority in the big cases environmentalists won—often providing the critical fifth vote—and no less a reliable vote in dissent with liberal justices sounding the alarm in the big cases environmentalists lost—as he did in West Virginia v. EPA, the very last environmental case decided by the Court when Justice Breyer was on the bench. These cases include major cases decided under framework environmental laws like the Clean Air and Clean Water Acts, as well as those involving major issues of constitutional law, such as Article III standing, congressional Commerce Clause authority, and regulatory takings. Justice Breyer has been a reliable, forceful vote for environmental protection in the biggest cases that mattered the most.

Environmentalist concerns about Justice Breyer’s support for regulatory reform proved overblown in application, but not because they were wrong about his views on the central role that cost-benefit analysis should play in setting environmental standards and his willingness to believe that such standards are unduly protective. They weren’t incorrect. Especially in his concurring opinions and in a scattering of his votes, Justice Breyer made clear, just as they feared, his belief in the essential role of cost-benefit analysis as well as his receptivity to concerns that environmental protection requirements may be so exceedingly expensive as to undermine, rather than promote, public health.

However, in no case did Justice Breyer’s distinct views make a difference. He never once provided the critical “fifth vote” in any case in which he expressed those policy preferences for cost-benefit analysis. And his concurring voice was of no legal effect at all. Of course, had the makeup of the Court when those cases were decided been tilted slightly more to the left, Justice Breyer’s vote might well have made a critical difference, just as environmentalists had worried it would. But that concern was never realized in almost three decades.

Justice Breyer has also proved far less dogmatic in his views than assumed by his detractors at the time of his nomination. While supporting EPA’s authority to use cost-benefit analysis in his separate concurring opinion in Entergy, Justice Breyer agreed with the environmental respondents that Congress had intentionally curbed EPA’s ability to rely on cost-benefit analysis in the Clean Water Act. Where Justice Breyer departed from the environmental respondents was his view that EPA nonetheless was permitted to take such analysis into account so long as the agency did so in a very limited way: to guard against costs wholly disproportionate to environmental benefits—a far more modest invocation of cost-benefit analysis than that sought by industry. Justice Breyer also later fully joined Justice Kagan’s forceful dissent in Michigan v. EPA, which criticized the majority for concluding that EPA was required to consider potential compliance costs in determining whether regulation of toxic mercury emissions from power plants was “appropriate.” Justice Breyer agreed with the other Michigan dissenters that Congress had instead instructed EPA to base its threshold determination of the appropriateness of emissions controls only on the extent of environmental harm posed by such emissions. None of the Justices, including the four dissenters, disputed that the Clean Air Act required EPA to consider control costs in subsequently determining the extent of emissions reduction subsequently required of power plants.

Finally, critics of Justice Breyer’s nomination to the Court failed to appreciate how Justice Breyer’s pragmatism and openness to consideration of regulatory costs and cost-benefit analysis might prompt the Justice to favor upholding EPA regulations those critics favored. In two very significant Clean Air Act cases, EPA v. EME Homer City Generation in 2014 and the recently-decided West Virginia v. EPA, EPA’s legal arguments in favor of the regulations at issue—the Clean Air Interstate Rule in EME Homer and the Clean Power Plan in West Virginia—were weakened by the absence of clear support in the relevant statutory text. But what strengthened each of those EPA regulations was that both sets of ambitious regulations justified their broad reading of that language by the extent to which it permitted the EPA to take costs and benefits into account. In short, the kinds of economic analysis Justice Breyer favored allowed EPA to adopt more, not less, demanding environmental protection requirements.

To be sure, Justice Breyer has been no Justice Douglas. He has not voted in favor of the position favored by environmentalists in all cases. But nor is it clear that the nation, including environmentalists, should necessarily want such a Justice on the Court. Such a Justice might be a very good environmentalist, but not an especially good judge.

As described above, in eleven of the twenty-three environmental cases in which Justice Breyer voted against the position favored by environmentalists, all the Justices voted the same way. None dissented, neither Justice Souter, Stevens, Kagan, nor Sotomayor. All the other most progressive Justices on the Court agreed that there was no, or at least too little, merit to the legal position favored by environmentalists. In three more of those twenty-three cases, environmentalists lost by a vote of eight to one. Perhaps a Justice who dissented in those cases could be credited with perceiving actual strength in legal arguments that the others were missing. But it is also quite possible that they would be engaging in the very kind of ideologically driven judicial decision-making that environmentalists correctly condemn in those Justices with very low EP scores like Justices Alito and Scalia. Even those of us who care deeply about environmental protection, and worry no less deeply about the failings of our elected branches of government, should not see a judiciary that decides cases strictly on personal ideology rather than fair consideration of the actual strengths of the competing legal arguments as the proper solution to those failings.

Finally, contrary to the predictions of those advising President Clinton in June 1993, Justice Breyer has not remotely proven to be a dispassionate, “bloodless,” “cold fish” Justice lacking any “innate sense of justice.” To be sure, Justice Breyer is no Justice Sonia Sotomayor—a Justice whose writings evince a compassion for victims of injustice without ready modern parallel. He is a committed pragmatist. But his striking pragmatism should not be mistaken for a lack of passion. He has proven himself deeply committed to social justice and the fundamental role of the judiciary in its pursuit. He has made that philosophy clear in both his judicial opinions and in his writings outside of the Court, especially his 2005 book, Active Liberty, in which the Justice contends that judges should not merely attend to the need to ensure that individuals are free from governmental coercion but also ensure they enjoy freedom to participate fully in government itself, including the right to vote.

CONCLUSION

Justice Breyer was certainly not environmentalists’ dream pick in 1994. And they had good reason to be concerned. But he has proved in actual practice to be an outstanding jurist for the nation and an excellent Justice for environmental protection law.

More fundamentally, Justice Breyer’s record on the Court suggests the wisdom of rethinking what it means to be a “dream” justice. Should it mean having a Justice who shares one’s ideological preferences on certain issues like environmental protection and will vote accordingly? Or should it mean having a Justice whose votes are rooted in a broader understanding of the proper role of the courts in interpreting law and deciding cases, including the central role our Constitution assigns to the judiciary to safeguard certain individual and collective rights? While the former Justice may reliably receive an EP score of 100, the latter is the better Justice, even if that means they sometimes will, as they should, rule in ways that disappoint.

APPENDIX A

ENVIRONMENTAL LAW CASES OCTOBER TERM 1994–OCTOBER TERM 2021

APPENDIX B

ENVIRONMENTAL PROTECTION (“EP”) SCORES OF SELECTED INDIVIDUAL JUSTICES

OCTOBER TERM 1994–OCTOBER TERM 2021

In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs so their interests may directly represented in court. In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and describe the current, burgeoning, widespread trend toward granting not just standing, but legal rights and legal personhood to rivers, mountains, and other natural entities. I analyze the ways in which courts and legislatures in New Zealand, Australia, Colombia, and elsewhere are addressing concerns similar to Stone’s with expansive, even radical results. I draw from multiple sources, including interviews I conducted with actors advocating for or implementing these legal initiatives. Stone eloquently describes how to rationalize and implement standing and other kinds of moral consideration for nonhuman entities, but he did not envision the diverse, expansive, paradigm-shifting, justice-altering ways such rights are being granted in diverse locales around the world. Various human communities have adapted lifeways that ensure their behaviors continue to sustain their environments so that their environments continue to sustain them; often they have been dispossessed from the legal right to manage their natural environment. When jurisdictions grant rights for rivers, they simultaneously honor the cosmologies and practices of those who are staking moral, historical, ecological, and now legal, claims to speak for nonhuman entities. The very notion—espoused by Stone and now inscribed in law around the world—that law should be rooted in ecological interrelationship is itself a paradigm shift that shapes our mindsets and thus our behaviors toward the natural world that is us.

INTRODUCTION

For one, the fact that we can bring a suit on behalf of loggerheads and leatherbacks is an affirmation of who we are, or may become, as a people. . . . But these happenings, together with the collapsing glaciers and vanishing frogs, are offered to us the way a sly God scatters omens—black cats and thunderclaps—to test whether a people is really worth saving, offering them a final chance, if they will only make the right interpretation, to mend their ways. It should not take an oracle to read the signs.

In his famous law review article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs to have their interests directly represented in court. In this Article, I revisit Trees and other writings from Stone through the lens of the current global movement to grant legal rights to rivers, mountains, and other nonhuman ecosystems.

For Stone, “standing” stood for more than whose interests count in the law. Writing (presumably) as a dutiful law professor who wanted to get published, Stone framed his original article around constitutional standing requirements, that is what would and should get an entity a hearing in court. But more profoundly, Stone was reaching for a new understanding of humans’ place on the planet. Standing was a vehicle for a disquisition on matters that were, as he wrote, “a bit unthinkable”—a holistic, radical (as in, from the roots) paradigm shift on humans’ place in the natural world, and our hubris in not seeing where our proper place should be. Stone later wrote that his “concern is not with moral and legal philosophy for their own sake. Rather, the animating concern is worldly: What sort of planet will this be?”

In this Article, I describe the current, burgeoning, widespread trend toward granting not just standing, but legal rights and legal personhood to rivers, mountains, and other natural entities. These legal moves leap beyond standing in ways Stone could not have anticipated fifty years ago and reimagine our relationship to the nonhuman world, as inscribed in the law.

In Victoria, Australia, the Yarra River Protection Act (Wilip-gin Birrarung murron) names the Yarra as “one living . . . natural entity.” The law creates the eleven-person Birrarung Council, including at least two Aboriginal traditional custodians, as well as representatives from environmental groups, and scientific, planning, and agricultural interests. They are the Voice of the River and now speak for the interests of the Yarra as the government charts a fifty-year plan to manage the river. Colombia’s highest court has drawn upon ecocentric philosophy to give rights to the polluted Río Atrato, while ordering the government to assemble a committee of local residents and government officials to determine what legal personhood means for the river. Following this lead, Colombian courts have declared that the Amazon, several other rivers, a high-altitude ecosystem, and the spectacled bear are legal persons. In New Zealand, the legislature has passed laws granting personhood—with “all the rights powers, duties, and liabilities of a legal person”—to the Whanganui River and to the Te Urewera mountain ecosystem on the North Island. In both cases, the legislation grants local Māori communities the rights to speak for the natural features; they have started by laying out the traditional community values that define their interrelationship with the natural entities for whom they will speak.

When, as the Māori express it, “Ko au te awa, ko te awa, ko au” (“I am the River and the River is me”), the river’s interests must be taken into account, based on a worldview that the river’s interests are our interests. In numerous locales, citizens, governments, legislatures, and courts are moving toward Stone’s idea of a “radically different law-driven consciousness,” and in so doing, this posture both reflects and evolves communities’ views of themselves. When the law turns from “we own the river” to “we are the river,” we redefine how the law understands “property.” At the same time, we create new legal paradigms that conceive of the human-nature relationship in novel ways and that empower different voices who speak for what that relationship should comprise, and why. In these nations, legislatures and courts are redefining who “we” actually are. These shifts in worldview also hack traditional power hierarchies, as those who have been disenfranchised from managing environmental resources gain legal control to say what the river or mountain (and therefore their own human communities) really need. These changes build upon and reflect Stone’s ideas, but they also transcend them in ways he might never have envisioned.

Ideas can act as forces of nature. Our evolving views of who we are and what nature needs shape our ethical precepts about these relationships; these ethical evolutions (re)shape the law. The law, in turn, shapes the natural world through what it permits and proscribes, and that remade nature, in turn, shapes our views and ethics. When a particular worldview prevails and ecosystems gain formal rights, the evolution has not been in the original views of those who have proposed such conceptions, now inscribed in law: the Māori, for example, have long believed in an indivisible relationship with the natural world around them. Instead, the ethics of the hegemonic cultures in some nations are evolving. When governments or courts grant rivers legal rights, they reflect and propel changing views both of human relationships with the natural world, and of dominant groups’ relationships with indigenous peoples or other disenfranchised subpopulations from whom the right to manage the natural world had been taken.

In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and analyze the ways in which courts and legislatures in Australia, Colombia, New Zealand, and elsewhere have addressed similar questions with expansive, even radical results. I draw from multiple sources, including interviews I conducted with actors advocating for or implementing these legal initiatives. Stone eloquently describes how to rationalize and implement standing and other kinds of moral consideration for nonhuman entities. But he did not envision the diverse, expansive, paradigm-shifting, justice-altering ways such rights are being granted in diverse locales around the world. When jurisdictions grant rights for rivers, they honor the cosmologies and practices of those who are staking moral, historical, ecological, and now legal, claims to speak for nonhuman entities. Various human communities have adapted certain lifeways that ensure their behaviors continue to sustain their environments so that their environments continue to sustain them; often they have been dispossessed from the legal right to manage their natural environment. The very notion—espoused by Stone and now inscribed in law around the world—that law should be rooted in ecological interrelationship is itself a paradigm shift that shapes our mindsets and thus our behaviors toward the natural world that is us.

I.  THE THEMES THAT ANIMATE CHRISTOPHER STONE’S WORK

By advocating for legal standing for rivers, mountains, and, famously, trees, Stone was really standing for an evolved view of humans’ relationships with the natural world to be inscribed in the law.

A.  Standing

Constitutional standing was the legitimated, law-professor-proper way to write about more radical ideas. Criticizing U.S. standing doctrine is a favorite pastime of some law professors. But Stone goes beyond the normal complaints. Standing, as he notes, “does nothing but get you through the courthouse door; it does not mean the case on behalf of the environment is won, or can even be argued intelligibly.” He decries that in environmental cases, nature—whales, trees, rivers, whatever—are the real objects of concern, even though the law does not treat them as such. Stone advocated that nonhumans should have direct legal rights, where an appropriate custodian could institute legal actions on the entity’s behalf.

When the law recognizes this, injury to the entity itself must be the focus of legal attention, and relief from injuries must flow to the entity’s benefit. For example, in the 1970s debate over Disney Corporation’s planned development in the Mineral King Valley of the Sierras, Stone advocated:

[W]hy not designate Mineral King, the wilderness area, as the plaintiff ‘adversely affected,’ let the Sierra Club be characterized as the attorney or guardian for the area, and get on with the merits? Indeed, that seemed a more straightforward way to get at the real issue, which was not what all the gouging of roadbeds would do to the club or its members, but what it would do to the valley. Why not come right out and say—and try to deal with—that?

In the resulting case, Sierra v. Morton, U.S. Supreme Court Justice Douglas cites Stone’s work (albeit in dissent): “Permitting a court to appoint a representative of an inanimate object would not be significantly different from customary judicial appointments of guardians ad litem, executors, conservators, receivers, or council for indigents.” Justice Douglas suggests that the suit should “be more properly labeled as Mineral King v. Morton.” But with the current state of the law, to get through the courtroom gates, an appellant had to argue that it is their human interests that matter. Stone pithily sums up his opinion on this state of affairs: “How grotesque.”

It is not that standing did not matter to Stone—it is just that the current state of standing is a symbolic surrogate for the misdirected ways we apply our environmental laws. For Stone, then, standing was a professorially suitable stand-in for much more. As he wrote, “My concern is not with moral and legal philosophy for their own sake. Rather, the animating concern is worldly: What sort of planet will this be?” But despite the expansive views Stone promoted, even in his later writings, I cannot see that he could have envisioned the bends and oxbows the flow of developments has taken in the current movement to give rights to nonhuman entities.

B.  Who Is to Say What the Natural Entity Wants?

Stone proposes, soundly, that apt “guardians” or “conservators” exist who have earned a place to speak for the needs of the nonhuman world. Writing as late as 2010, he does not envision the place-specific, justice-promoting answers of who will speak for nature that different rights-granting governments now envision, which I will detail below. Even if fitting guardians could be identified, Stone visualizes problems in what they would say about what the nonhuman world would actually want. He wrote extensively about how difficult it is to assess the needs and wants of nonpersons. He asks, “On what basis, and in what manner, might a nonhuman, a thing, be accorded legal or moral standing or considerateness?” While he dislikes that “[o]rthodox legal and moral theories provide nonhumans only a limited accounting, one that generally makes the claim on behalf of the thing directly dependent upon human interests,” he nonetheless continues that this “is particularly so when we turn to things like rivers that (unlike whales) have no interests or preferences of their own.” And thus, because the “lake itself being utterly indifferent to whether it is clear and full of fish or muddy and lifeless, when the guardian for the river gets up to speak, what is he or she supposed to say?”

Because “[n]onpersons . . . have no preferences[,] . . . [w]hat, then, could comprise a working solution” to those who would be granted standing to speak for those alleged preferences? As he goes on about how difficult it is to assess the needs and wants of nonpersons, Stone’s imagination fails him. When jurisdictions grant legal rights to nonhuman entities, they impute that the river is not indifferent, and neither are the communities that depend upon and speak for the river. The communities know and depend upon the river, and the law could thus allow the communities to speak for the lake and community symbiosis. Ecosystem entities may, indeed, tell us what they want. In his book, Wild Law: A Manifesto for Earth Jurisprudence, Cormac Cullinan writes:

Fortunately rivers communicate rather a lot about their essential natures. We know that they need to flow, tend to rush over rocks in a highly oxygenated, high-energy flurry in their upper reaches, and have a distinct inclination to meander languidly in their lower reaches. They create microclimate and Riverine ecosystems along their banks and they flood from time to time, compensating for what they destroy with rich silt and demarcating a flood plain as their territory. In other words, a flooding River is almost certainly acting in accordance with its nature.

       We will see that in granting rights to rivers and mountains, modern legal actors are coming to recognize that these entities might tell us what they need, and apt spokespersons exist for conveying these messages. At the same time, nature is becoming a fulcrum to leverage power for disparate actors who have been previously disenfranchised from speaking for nature or for managing the resources upon which they depend. In his writings, Stone does suggest scientists could be the guardians because of their “authoritative” opinions and could thus speak with “practical wisdom and humility.” Stone does not contemplate indigenous people who have been guardians (even if they would choose a different translated term) for natural objects.

C.  Property

Stone was also using standing as a disquisition on the nature of “property.” It is interesting that the star-making idea of his career—in his retelling, at least—came from an off-the-cuff series of thoughts at the end of a property class: “I sensed that the students had already started to pack away their enthusiasm for the next venue. (I like to believe that every lecturer knows this feeling.)” In class, he used “property” to illustrate that

[t]hroughout history, there have been shifts in a cluster of related property variables, such as: what things, at various times were recognized as ownable . . . who was deemed capable of ownership . . . the powers and privileges ownership conveyed . . . and so on. It was easy to see how each change shifted the locus and quality of power. . . . “So,” I wondered aloud, reading their glazing skepticisms, “what would a radically different law-driven consciousness look like? . . . One in which Nature had rights[.]” I supplied my own answer: “Yes, rivers, lakes, . . .” (warming to the idea) “trees . . . animals . . .” (I may have ventured “rocks”; I am not certain.) “How would such a posture in law affect a community’s view of itself?”

Around the world, governments, legislatures, and courts are moving toward this “radically different law-driven consciousness” and in so doing, this posture is both affecting and reflecting communities’ views of themselves and of what constitutes “property.” When we move from “we own the river” to “we are the river,” we enter into a new paradigm of what “property” is and who “we” actually are. But Stone does not quite go where some of the cultures and governments I portray here will travel.

Stone was reaching for a paradigm shift, a break with a worldview, reflected nearly universally in property (but also other forms of) law, that humans are apart from and not a part of the natural world. Even by the time he was writing, the Public Trust Doctrine had made its peripatetic way around the world for more than a millennium (connoting that certain natural features are so essential to human survival that the sovereign could not arrogate them to private interests). States and nations were beginning to pass environmental human rights resolutions, declaring that the right to a healthy environment (or some elements thereof) is essential to human well-being and dignity. That did not mean, however, that those who would vindicate those rights could find their way into court, or if they did, that the natural world upon which the appellant depended would benefit from a favorable ruling; nor did it change the nature of human ownership over the natural world.

Stone was reaching for not only a new worldview on what “private property” is and could be, although in a more limited way than the legal maneuvers I describe below will lead:

Wherever it carves out “property” rights, the legal system is engaged in the process of creating monetary worth. . . . I am proposing we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions, and privacy: make the violation of rights in them to be a cost by declaring the ‘pirating’ of them to be the invasion of a property interest.

The interest is held by the nonhuman entity itself and defendable by suitable guardians who will insure against unjust infringements on the property right. And so, for example, when the Endangered Species Act protects “critical habitat,” it is giving the listed species a kind of defendable property right.

Stone’s vision was both expansive (nature belongs to all of us and none of us for our stewarded, essential, interconnected uses) and circumscribed (expanding who might own a property right, but still the nature of property remained rooted in Western notions of ownership).

D.  Nature as Relationship

Even as he finds it difficult to discern how a “guardian” would speak for the desires of nonhuman entities, Stone still roots his views in our need to reconfigure our laws, so we recognize the fundamental interconnection between human and nonhuman. Ecological science should shape how we view our relationships with the nonhuman world, and thus how we shape our laws:

This learning to look at the world from the other thing’s distinctive standpoint is a major step toward respecting its moral worth . . . the growing recognition that we are all, even amidst so much conflict and competition, part of one fragile global community encourages rearranging the legal-moral framework so as to make more room not only for the infirm, insane, and infants, but for animals, plants—indeed, for the entire planet as an organic whole.

Specifically, he wished that we took these relationships more seriously, to treat those relationships as if our lives depended on it—because, of course, they do.

Perhaps the most remarkable aspect of the movement to grant legal rights to nature is the recognition in the law of the essential, interwoven relationship between humans and nonhumans, and that modern, Western law is simply catching up to what indigenous peoples and other communities dependent upon the natural world (but aren’t we all?) have long known. Stone notes:

Mankind is part of this organic planetary whole; and there can be no truly new global society, and perhaps in the present state of affairs no society at all, as long as man will not recognize, accept and enjoy the fact that mankind has a definite function to perform within this planetary organism of which it is an active part.

His underlying concern is that

[t]he problems we have to confront are increasingly the world-wide crises of a global organism: not pollution of a stream, but pollution of the atmosphere and of the ocean. Increasingly, the death that occupies each human’s imagination is not his own, but that of the entire life cycle of the planet earth, to which each of us is as but a cell to a body.

Similarly, “[b]ecause the health and well-being of mankind depend upon the health of the environment, these goals will often be so mutually supportive that one can avoid deciding whether our rationale is to advance ‘us’ or a new ‘us’ that includes the environment.” Below, we will see how courts and legislatures are redefining who “we” might be.

Clearly, Stone had a lot more on his mind than constitutional standing. He is trying to figure out how to fit the round peg of ecological science and ecological consciousness into the square hole of myopic legal doctrine. In standing, and in figuring out who would be appropriate guardians and what they should say when asked about nature’s needs, Stone states that “while the habitat may include higher animals, we may find ourselves wishing to speak for some value not reducible to the sum of the values of the habitat’s parts, the various things that the habitat sustains in relation.” Writing about Ecuador’s constitutional change that granted legal rights to nature, he notes this “may reflect a shift, in Ecuador at least, from an exclusively homocentric view of the environment to one in which some consideration of Nature itself constrains permissible levels of ‘resource’ exploitation.”

The legal rights that I describe below have disparate answers to how to name and prize and legalize these synergistic values.

E.  Ideas as Forces of Nature

As, I believe, Stone was aware, ideas act as forces of nature. He notes that “[h]ow we arrange our affairs so that the future we choose is the future that becomes the reality: that is the question of social institutions, of law.” Our ethical systems should be informed by our scientific understanding of how we are interconnected with the natural world. And our laws need to reform to reflect this evolved understanding. In so doing, the law would mold the natural world through permitted and proscribed human behaviors. Remade nature then molds our worldviews and our ethics and, eventually, our laws.

In the United States, our current limited standing doctrine represents a pronounced anthropomorphic (or even egocentric) view of our place in the natural world: it is my needs that count. And this limits the possibility for sustaining the natural world: when the benefits of a successful environmental legal battle fail to flow to protect and restore the harmed natural entity, nature continues to degrade. If we achieved what Stone was seeking—recognition that healthy human communities require healthy ecological communities—we would continue to restore and protect the natural world, whose contours would continue to shape our experiences of it. Below I describe what has happened when nations evolve their laws to reflect an evolved conception of the value of the human and nonhuman relationship.

II.  AUSTRALIA

A.  Introduction

The Yarra River flows 150 miles through the heart of the Australian State of Victoria, weaving through farms, vineyards, ranches, Aboriginal lands, national, state, and local parks, and, eventually, meandering through the heart of Melbourne and its sprawling suburbs. The Yarra is the state’s most vital resource, and everyone wants a part of it. The 2017 Yarra River Protection Act (Wilip-gin Birrarung murron, which translates to “Keep the Birrarung Alive” in Wujundjeri) describes the Yarra as “one living and integrated natural entity.” The Yarra River Protection Act is the first Australian law containing both English and an Aboriginal language. “Birrarung” translates to “river of mists and shadows.” Part of the Act’s Wujundjeri text reads (in translation):

The Birrarung is alive, has a heart, a spirit and is part of our Dreaming. We have lived with and known the Birrarung since the beginning. We will always know the Birrarung. . . . Since our beginning it has been known that we have an obligation to keep the Birrarung alive and healthy—for all generations to come.

B.  Who Is to Say What the Natural Entity Wants?

The Act provides one solution to Stone’s challenge to find appropriate spokespersons for what a nonhuman ecosystem wants or needs. The Birrarung Council, which the Act names as “the Voice of the River,” is an eleven-person body who will speak for what the river might require. Appointed by the Environment Minister, the council acts as an independent (meaning without government representatives) advisory body. Currently, the group comprises three Aboriginal elders (the Act requires at least two), an infrastructure expert, two members from a Yarra Riverkeeper NGO, a landscape architect, a farmer or rancher, and an environmental lawyer and legal scholar. This disparate group seeks to be independent, transparent, accountable, consultative, expert, and considered.

The council is not the Yarra’s official legal “guardian”; it serves as “the independent voice of the river” and reports to the Minister for Water, Planning, and Environment. The council is currently tasked with speaking for the river during a ten-year strategic plan and fifty-year community vision processes hosted by the state’s municipal water agency.

COVID-19 has delayed much of the council’s preparatory work during the past two years, but its first two annual reports have been about relationship building with key stakeholders and, especially, with local governments along the Yarra River. It has played a major role in getting the Yarra Strategic Vision completed, and it looks forward to playing a major role in holding responsible public entities accountable as they implement the plan.

As in several other grants of rights for nonhuman entities (see below), the answer to Stone’s investigation of who should be empowered to speak for the nonhuman world includes indigenous or local, ecosystem-dependent populations. Here, in addition to the Act requiring that Aboriginal elders serve, the Birrarung Council has framed its mission “[a]s a bi-cultural, independent and authentic voice of the Yarra, the Birrarung Council champions the interests of the river as one living and integrated natural entity, guided by the voice and knowledge of Traditional Owners as the custodians of the river and its lands.” The council describes that some of the initial work they are doing has included building “a collective Council understanding of Wurundjeri Woi-wurrung appreciation of the River and its corridor,” and notes that such “learning cannot occur just by sitting at the conference table but requires the council to physically engage with the River.”

The Wurundjeri Forward to the 2022 Yarra Strategic Plan acknowledges that the Act gives the people “a legislative mechanism and a formal process through which to engage with responsible public entities to work collaboratively and oversee the governance of the Birrarung and its lands as one living entity” and that “[o]ur inclusion in the Act was highly significant for the first time a legislative mechanism included a placed-based approach to the management of a waterway—pairing right Country with the right people—our people.” The Forward from the Bunurong people stresses the 35,000 year history (over 2,000 generations) of their ancestors as lending credibility to their right and wisdom to help speak for what the river might need; for them, “[a]ll of [their] Country is highly significant, every square inch, every rock, every leaf, every dune and every artefact.”

The ideas that Stone championed, decades ago and far away, now provide a fulcrum to leverage power for those who have been disempowered from stewarding their own resource base. And those people are using these ideas to advance their own rights to manage their own resource base according to their own traditional and modern concepts of what is right for the human and nonhuman community bond. For example, in the Kimberly of northwest Australia, Anne Poelina, a Nykina Aboriginal elder, is spearheading a movement to have the Fitzroy River (Martuwarra in local language) recognized as a living being with legal rights, with the local Aboriginal groups acting as the voice of the river. She wishes to translate Nykina lore into Australian law. Their Fitzroy River Declaration declares that “[t]he Fitzroy River is a living ancestral being and has a right to life.” Dr. Poelina and other scholars have published in Transnational Environmental Law, Recognizing the Martuwarra’s First Law Right to Life as a Living Being. The “Martuwarra RiverOfLife” itself is listed as the first author. The article draws upon other grants of legal rights to rivers as a basis for its own assertion that this River in the Kimberly deserves similar recognition, with the local Martuwarra Nations accorded the rights to speak for what the river and culture nexus requires.

The article decries the farming, ranching, mining, and fracking that is destroying the river (and the ancient cultures that depend upon it and have long depended upon it). They assert the right to speak for the river as “Traditional Owners” who “view Country as alive, vibrant, all encompassing, and fully connected in a vast web of dynamic, interdependent relationships; relationships that are strong and resilient when they are kept intact and healthy by a philosophy of ethics, empathy and equity.” Dr. Poelina and others (see below) are using our desire to find appropriate spokespersons for the human and nonhuman relationship, to sustain our natural environment, and to atone for past wrongs committed against indigenous people. Initiatives that include or devolve cultural and thus management authority to indigenous or local communities make compelling cases that these communities’ histories, worldviews, and ecological knowledge grant them the authority to speak for and thus regulate the ecosystems that sustain them. They assert that they will manage nature as if their lives depended on it, because their lives depend on it.

C.  Standing

It is not clear that the Birrarung Council would ever have formal legal standing to represent the Yarra River’s interests in a court proceeding. The Act grants the river its spokes-council, but it does not look like the Yarra has legal rights of its own that the council would be empowered to defend. That is to say, the Act recognizes that many, many entities have interests in the Yarra, and simply names a suitable entity to advocate for the river’s own needs when its waters are being allocated.

D.  Property

As a result of this Act, the river does not own itself, or own any rights to its own water. As Birraung Council member Erin O’Donnell has noted disapprovingly of all newly established legal rights for rivers, “None of the river persons has a legally recognised right to flow.” So while the Birrarung Act recognizes the vital force of the river in the life of Victorians, and provides voices to protect that force, it does not radically change the idea of who can own what ecosystem resource or what counts as “property” under the law.

E.  Ideas as Forces of Nature

The Birrarung Council has stated its vision grounded in relationship and respect: “For the Yarra River [Birrarung] and its lands to be forever protected as a living entity and kept alive and healthy for the benefit of future generations.” One of the council’s early ideas promotes the concept of “the Great Birrarung Parkland.” It aims to “champion the extension and greater recognition of this unique asset” to preserve more of the river and its riparian corridor for future generations. Furthermore, the council sees its role “to challenge conventional thinking about the nature of a ‘park’ as a parcel of land which exists for a public purpose.” Specifically, it advocates that Victoria take the “one living and integrated natural entity” language seriously, which should include the way we conceive of parklands not as disconnected parcels, but a continuous entity:

The narrative about the Parkland should convey that its significance is about more than just gazetted land, and relates to a combined landscape of all land parcels that form the river corridor landscape. Such an understanding would allow the public to more fully and respectfully experience the River, understand its cultural significance for all Australians and improve connection to the River.

The brand new Yarra Strategic Plan’s Aboriginal name—Burndap Birrarung burndap umarkoo—means “[w]hat is good for the Yarra is good for all.” The Yarra Strategic Plan proposes that “[c]ollaborative management of the river will rightly see Traditional Owners and authorities working together to manage Yarra River land.” Informed by the Birrarung Council, the vision is of a multicultural panel that represents various interests in sustaining the river. The Victoria government has empowered the council to speak for what the river needs because of both traditional and modern forms of wisdom. It sees the river as a vital entity that links ecology and culture, past and present in a seamless, flowing whole.

According to the Birrarung Council, recognition of the Yarra and other rivers as living beings “has been explicitly grounded in the relationship between the river and the people(s) who live along and near it.” The legally appointed “Voice of the River,” composed of diverse individuals with different access to different expertise, will speak for that relationship going forward. If the goals of the statute are realized, the river and its interrelated communities will be healthier in the future. We should continue to watch how the legally appointed “Voice of the River” uses its voice to speak for how the relationship should be sustained.

III.  COLOMBIA

A.  Introduction

While in Australia, answers to some of Stone’s challenges came through statute, in Colombia, those answers come from court decisions. In a 2016 case brought by Afro-Caribbean communities in the Chocó, “one of the most bio-diverse regions of the planet” and part of “mega-biodiverse” country of Colombia, the Constitutional Court declared that the Rio Atrato’s “basin and tributaries are recognized as an entity subject to rights [(which translates to ‘entidad sujeto de derechos’)] of protection, conservation, maintenance and restoration by the State and ethnic communities.” Following this decision, Colombian courts have declared that the Amazon, several other rivers, a high-altitude ecosystem, and the spectacled bear are legal persons. What is going on here, and what might Stone have made of all this?

B.  Who Is to Say What the Natural Entity Wants?

Unlike in Australia or New Zealand, where communities stake their claims to manage their environment in part due to cultural identities as indigenous peoples whose arrival and environmental stewardship long predated the colonizers, here the affected communities are marginalized—Afro-Caribbean residents whose ancestors migrated to this region a couple of centuries ago and who are dependent on and connected to the affected river.

To represent the river, the court orders the national government to “exercise legal guardianship and representation of the rights of the river,” designating one government minister to join a community-appointed guardian. These “legal representatives,” in turn, are tasked with designating a “commission of guardians of the Atrato River” guided by two NGOs who “have the necessary experience to guide the actions to take. This advisory team can be formed and receive support from all public and private entities, universities[,] . . . research centers on natural resources and environmental organizations (national and international), community and civil society wishing to join the protection project.” Each of seven river communities appointed one male and one female guardian to develop a plan to implement the court’s ruling. The members of the Collegiate Corps of Community Guardians are responsible comanagers for seeing that the order of the court is fulfilled as part of the Commission of Guardians of the Rio Atrato, consisting, as the court ordered, of representatives of government and affected communities.

Chief Justice Palacio informed me that it is not working as quickly as we all would like, but enormous efforts have been made to comply with it, especially by the Colombian Attorney General’s Office. The work has not been easy, with COVID-19 making a new model of environmental management even more difficult than it would otherwise be, as the most recent report of the committee acknowledges. The scope of work that the committee has taken on is impressive—that is, the judicial decision does seem to have prompted the remedial actions the government is now taking. Throughout the report, the rights of the river are addressed as the co-managers develop their expertise to say what the river might need.

The court proclaims that “the protection of a healthy environment of the black communities acquires special relevance from the constitutional point of view, since it is a necessary condition to guarantee the validity of their lifestyle and their ancestral traditions.” According to the court, “[t]he communities have made the Atrato River Basin not only their territory, but the space to reproduce life and recreate culture.” Chief Justice Palacio reiterated to me that these isolated, ethnic minority communities had been abandoned by the government as their environment was being destroyed and thus required special judicial intervention. The local Afro-Caribbean inhabitants require a healthy river, and they wish to help the river return to health through managing “according to their own laws and customs—and the natural resources that make up their habitat, where their culture, their traditions and their way of life are developed based on the special relationship they have with the environment and biodiversity.”

As in Australia and New Zealand, the law is highlighting a certain kind of relationship that gives those who would speak for nature legal authority to sustain that relationship. Although the communities are not indigenous per se, “since ancestral times,”

there is a close and intimate relationship between the individual and the river, which is observed in expressions such as “he does not like to leave his river” or “when I return to my river.” In this configuration the river represents a notion of home, a strong feeling of belonging full of symbolic, territorial and cultural values.

To answer Stone’s challenge for who ought to be empowered to speak for what an ecosystem might want, the decision contains a lengthy, learned analysis of “biocultural rights” founded on the interdependence of biological and cultural diversity. It is this connection that gives these communities the right to speak for what the river needs, because it is what the communities’ livelihoods and cultures need:

[T]he rights that ethnic communities have to administer and exercise autonomous guardianship over their territories—according to their own laws and customs—and the natural resources that make up their habitat, where their culture, their traditions and their way of life are developed based on the special relationship they have with the environment and biodiversity.

Inherent in the ecocentric philosophy articulated by the court is the idea that the ecosystem and its constituent parts have moral worth and legally recognized needs, and thus legal rights to meet those needs. The court does not say exactly what the river requires, but it names the associated, culturally and environmentally connected communities as the logical mouthpieces for what the river might need. The now-ongoing resulting work is aimed at cleaning up the Atrato and halting the illegal, damaging mining and logging that despoils the river.

C.  Standing

The Constitutional Court addresses the standing requirement:

In this case, the representative of the ethnic communities is claiming that the acción de tutela [(a writ for protection of constitutionally guaranteed rights in Colombia)] is necessary to restrain the intensive and large-scale use of various methods of mining and illegal logging. These methods include heavy machinery, such as dredgers and backhoes, and highly toxic substances, such as mercury, in the Atrato River (Chocó), its basins, swamps, wetlands and tributaries. The methods have been intensifying for several years and are having harmful and irreversible consequences on the environment, thereby affecting the fundamental rights of ethnic communities and the natural balance of the territories they inhabit.

The NGO (Tierra Digna) has standing to represent the special rights of the Afro-Caribbean communities who have special solicitude as indigenous and pluri-ethnic communities to have their rights protected.

As in the other cases I describe herein, it is not yet clear how the river or any of the other ecosystem elements now given legal rights will have their own rights represented in court. That is to say, Stone’s starting point—formal legal standing in court—remains to be explicated should the river’s ongoing injuries find their way to court.

D.  Property

The court notes that these communities have a notion of the river-as-community that diverges from the Western model of river-as-property: “[F]or the ethnic communities, the territory does not fall on a single individual—as it is understood in the classical conception of private law—but above all the human group that inhabits it, so that it acquires an eminently collective character.” However, in the resulting decision, while the river becomes the object of legal obligations, the community does not come to own the river, and the river does not own itself or the waters it contains.

But more so than in the other developments I portray, the court is influenced by, and seeks to promote, ecocentric philosophy. The river may not own itself, but its own needs matter in the law, even apart from the connected needs of the communities that depend on it. Chief Justice Palacio confirmed that his decision was influenced by his deep readings in ecocentric philosophy. The decision respects

other living organisms with whom the planet is shared, which are understood to be worthy of protection in themselves. It is about being aware of the interdependence that connects us to all living beings on earth; that is, recognizing ourselves as integral parts of the global ecosystem—the biosphere—, rather than from normative categories of domination, simple exploitation, or utility.

[The] ecocentric approach starts from a basic premise according to which the land does not belong to man . . . . According to this interpretation, the human species is just one more event in a long evolutionary chain that has lasted for billions of years and therefore is not in any way the owner of other species, biodiversity, or resources, or the fate of the planet.

E.  Ideas as Forces of Nature

Nonetheless, the court had no viable way to change the very nature of property in the Colombian legal system. Instead, the court notes that “the relationship between the Constitution and the environment [is] dynamic and in constant evolution.” Like Stone, the court here is looking for a new appreciation of the human interrelationship with the natural world, wishes that law would reflect this interrelationship, and takes steps toward this desired evolution. Beyond what Stone envisioned, the court finds that a new legal form is necessary to effect that evolution, one that grants direct rights to nature, with a reasonable answer for who should speak for those rights, meaning those communities most dependent on and knowledgeable about the river, in association with the government bodies best poised to stop the pollution destroying that river. Chief Justice Palacio told me that the decision was mean to “send the message: to preserve life. Not just the life of human beings, rather all of life on Planet Earth.” Ecocentric philosophy becomes instantiated in legal rights for an ecosystem; ecologically dependent, culturally rooted populations gain legal rights to speak for the river’s rights. Chief Justice Palacio hopes that if the court’s decision is implemented correctly, it would create a feedback loop remaking and revitalizing the river and the human communities that depend on it.

IV.  NEW ZEALAND

A.  Introduction

New Zealand is providing the most far-reaching, innovative answers to some of the challenges Stone posed. The government has passed statutes that grant the North Island’s Whanganui River and Te Urewera mountain ecosystem (formerly a national park) legal personhood, with Māori communities granted the right to speak for what the river or mountain will require going forward. A third ecosystem, Mount Taranaki, has also been granted legal personhood, with prepared arrangements for conservatorship shared between eight local Māori in the works. I believe the dimensions of these legal revolutions go beyond what Stone could have envisioned.

B.  Who Is to Say What the Natural Entity Wants?

Stone wrote extensively about who nature’s “guardian” could and should be, and what they might do once appointed. In Australia and Colombia, legislatures and courts have named appropriate guardians based upon ecological connection and expertise, and historical or cultural claims to have authority in resource management. In New Zealand, the Crown’s desire to remedy past colonial wrongs, and spiritual, cultural, and ecological connections to the ecosystem legitimated the Māori claims to say what the river or mountain wants.

Statutes grant that various Mãori communities now serve as guardians of the environment. Except, the communities themselves would not use the term “guardians.” Gerrard Albert, chief negotiator for the Whanganui Māori, reminded me that the term “guardian” (or anything similar) does not appear in the statute; more importantly, if anything, the Whanganui guards over the community. I think Stone himself would recognize that in some ways it turns reality on its head to say we are guardians for natural objects, as opposed (as Albert believes) that nature, in fact, guards us. We might need to assert a certain fiction in court, but the worldview underlying so much of environmental law is that functioning ecosystems make life possible.

The 2017 Whanganui River Claims Act, or “Te Awa Tupua” (“River With Ancestral Power”) grants legal personhood to the Whanganui River and deeds legal stewardship over the river to the local Māori, based on their longstanding relationship with the river. Under the Act, the river “is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.” The Act acknowledges “Tupua te Kawa,” as the “intrinsic values that represent the essence of Te Awa Tupua,” including that the river is a “spiritual and physical entity that supports and sustains both the life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū, and other communities of the River.” “Te Pou Tupua” is a newly enshrined governance entity; as newly named conservators of the river, “[t]he iwi and hapū of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.”

The Te Urewera Act turns a former national park (which had been the largest on the North Island)—a magnificent land of mountains, lakes, and rivers—into “a legal entity, and has all the rights, powers, duties, and liabilities of a legal person” with the local Māori given the duties to govern. The Act notes that “Te Urewera is ancient and enduring, a fortress of nature, alive with history . . . a place of spiritual value, with its own mana [status, prestige] and mauri [life force] . . . has an identity in and of itself, inspiring people to commit to its care.”

Stone had qualms that anyone could know what a nonhuman biophysical entity wants: “Even if moral obligations to a mountain are conceded to exist in principle, the question of how they can be discharged remains: How does one ‘do right by’ a mountain?” Operating “as the voice of the living personality of Te Urewera,” the Tühoe Māori have presented its guiding values “that inspirit wise and beneficial decision making” in a preliminary document, “Te Kawa.” They will know what the mountain wants because “[w]atching Te Urewera over many seasons and centuries reveals her moral conduct acted out in her interrelationships with all life that she has created.” So for example, “Papatūānuku” or “landscape,” means that “[w]e revere nature, we respect her ability in connecting us to all living things.” “Mauri,” or “her life” means “the living relationship between the forest the land and everything living within that relationship.” This means that “prioritized action” will include that “[w]e treasure our indigenous ecological systems and biodiversity through significantly reducing key existing pressures, enabling Te Urewera to a natural state of balance,” which means “we customise smart respectable ways to reduce known and potential pressures.” So, for example, Te Kawa notes that “[g]uards are effective against new or external pressures looking for a home within [Te Urewera].” A few initial controversies suggest how these values will enlighten knowledge about the mountain’s desires, as described below.

C.  Standing

It is not yet clear how or whether the empowered Māori communities will have formal legal standing to represent their associated ecosystems in court. For example, for the Whanganui, Te Awa Tupua “may participate in any statutory process affecting Te Awa Tupua in which Te Pou Tupua would be entitled to participate under any legislation”; it is not clear if that means formal legal standing. Albert told me that the Whanganui Māori prefer to stay out of court for the present time, choosing instead to build capacity within their communities around what the new laws mean and to build relationships with other neighbors of the Whanganui. He described an occasion shortly after Te Awa Tupua’s passage where the government began construction of a bike bridge over the river without discussing this with the Māori; rather than appeal to a court, Te Awa Tupua sought dialogue with the government agency to explain the new legal authority.

In Te Urewera, the Tūhoe rejected an oil-based asphalt sealant for a neighboring road, even though the delay could result in loss of funding. While the local government accused the Tūhoe of “hillbilly thinking,” the Tūhoe reject the “rape and pillage mentality . . . of unchecked tourism,” and plan, instead, to proceed with road construction that reflects Te Kawa’s environment-friendly values. Also in Te Urewera, the Tūhoe governing body delayed fixing a flood-damaged footbridge around Lake Waikeremoana that forms part of one of New Zealand’s tourist-friendly “Great Walks.” According to Tūhoe Chairman Tāmati Kruger, “[the Tūhoe] are wanting engineers to come in because the issue could very well be that the bridge is in the wrong place,” and perhaps Te Urewera did not want the footbridge there to start with. So we do not know how standing would play out should these skirmishes arrive in court; but we do see that newly empowered Māori communities wish to use their new legal powers to govern their ecosystems according to traditional precepts, merging traditional values with Western law.

D.  Relationship

When explaining that “Suits on Behalf of Nature Are Better Suited to Moral Development,” Christopher Stone wrote, “As I argue in the original Trees, the law has not merely an educative, but a spiritualizing role in our society.” I do not know what, exactly, he means by “spiritualizing,” but I do think I know what he means by moral development. And this is one place where the New Zealand experiment pushes us forward: it asks that the morality of how we treat the Earth embrace a relationship that has always existed and must exist, but which Western ethical systems, and the law that flows from those systems, tend to ignore. These grants of rights for nature and rights to protect that nature are sanctifying a certain kind of relationship, a web of mutually protective being. Te Awa Tupua and the Te Urewera Act grant the Māori the right to have their conception of relationship with rivers and mountains sanctified in the law, which simultaneously allows them to speak for the ecosystems on which they have always depended. These steps toward self-determination honor the saying “I am the River and the River is me,” reflecting a more capacious vision of “self” than the dominant cultures normally understand. As a New Zealand court has explained,

One needs to understand the culture of the Whanganui River iwi [tribe] to realise how deeply ingrained the saying ko au te awa, ko te awa, ko au [I am the River, the River is me] is to those who have connections to the river. . . . Their spirituality is their ‘connectedness’ to the river. To take away part of the river . . . is to take away part of the iwi. To desecrate the water is to desecrate the iwi. To pollute the water is to pollute the people.

I believe Stone was advocating for moral systems rooted in deep connection to the environment, even if he did not envision the particular arrangement advancing in New Zealand.

E.  Property

According to both Christopher Finlayson, then-Minister for Treaty of Waitangi Negotiations, and Albert, chief negotiator for the local Māori, the two sides negotiated cordially, and the government agreed to grant what the Māori wanted on their own terms that reflected their cosmology. Scholar Anne Salmond has called previous New Zealand arrangements that granted formal property rights to the Māori “ontological submission”: although they gained the right to control their relationship with the ecosystem around them, by accepting a Western version of legal property ownership, they had to violate their own cosmology that defined their relationship with the world around them.

As in the other nations discussed here, neither the river nor mountain own itself in New Zealand. The Māori themselves did not wish to own the ecosystem elements in any traditional, Western legal sense. The Māori traditional notions of “property” differ from the Crown’s conceptions, as you could not “own” that to which you belong, and the new statutes respect this notion of environment-as-relationship. The government did not wish to cede formal ownership of the Whanganui, and, as Albert explained to me, “ownership does not provide for the totality of the relationship.” In the negotiations, Albert said, his community “[d]idn’t want to change the dance—we wanted to change the music so people would dance a different way: what instrument can we play to change the music?” In Te Kawa, the initial governing guide for Te Urewera, the Tūhoe Māori explain that the

use of property rights by the western legal system has hidden from view the concept of nature; rendered her parts as natural resources now capable of rival priorities competing with other household choices. These human granted rights have displaced our devotion for Papatūānuku [landscape] with ownership now serving individual advantage . . . property rights do not give life nor do they encourage the connectedness of all living things for life . . . our fracturing of nature has sponsored our own fragmentation.

At the end of the day, the Crown still “owns” the entities. Still, for the Māori, the exact nature of “property” matters less than having their cosmology recognized in the law, their historical injustices mitigated, and their relationship with their environments back under their control.

It remains to be seen whether any new conception of “property”—in the formal ownership way Western law understands it—emerges. Absent formal ownership of the ecosystems, how far the Māori are able to take their new powers remains to be seen. The ultimate prize will be the 2040 relicensing of the Tongariro Power Scheme, which diverts eighty percent of the Whanganui’s water; Albert told me that the years leading up to 2040 will be about building his community’s and the government’s capacity to truly understand and respect the new vision of human and nonhuman relations, and the Tongariro Power Scheme will be the test.

F.  Ideas as Forces of Nature

In Should Trees Have Standing?, Stone mused on why we would use “rights” language to refer to nonhuman entities in the first place, given the ambiguities of what such rights might comprise:

In the case of such vague rules . . . . [t]hese terms work a subtle shift into the rhetoric of explanation available to judges; with them, new ways of thinking and new insights come to be explored and developed. In such fashion, judges who could unabashedly refer to the “legal rights of the environment” would be encouraged to develop a viable body of law—in part simply through the availability and force of the expression.

Rights exert moral suasion on all actors. In the New Zealand examples, the nation is moving way beyond the “right to a healthy environment” or similar grants that the majority of nations bequeath their citizens. These laws and constitutional provisions are still anthropocentric: I have the right to breathe healthy air or drink clean water. Through granting rights directly to rivers or mountains, New Zealand is designing a new idea of our relationship with the natural world, with new stewards of that relationship, inscribed in law.

Like Stone, Cormac Cullinan had some qualms about rights for nonhuman entities; he noted:

[E]ven if the law were to acknowledge that, say, a river had the capacity to hold rights, extending the language of rights and duties to relations with nonhuman subjects is potentially confusing. Terms such as ‘rights’ and ‘duties’ are infused with our experience of existing legal systems and burdened with the connotations of conflicts.

New Zealand imposes an entirely new conception of what it means to have rights, one the nation now must make more justiciable. If we are the river and the river is us, then the new ideas supporting these legal reforms are an eco-anthropocentric hybrid. The ecosystems still support human communities, but the humans who depend on the ecosystems also serve the ecosystems’ needs. Which is why, for example, in Te Urewera, the Māori community has started by naming what the values are that the mountain ecosystem holds. Anticipating judicial decisions, they have made contractual obligations contingent on attestations that those profiting from Te Urewera will first and foremost respect those values that flow from the right.

These agreements lend themselves to a broader understanding of how all New Zealanders (and those of us far from that enclave) relate to, and thus manage the ecological world around us. The New Zealand Office of Māori-Crown relationships has adopted a new name, “Te Arawhiti,” which means “The Bridge.” These reforms present a new vision for how law can reflect ecological reality and can change that reality. If the Māori succeed in cleaning up the Whanganui, changing the management regime of Te Urewera, and, eventually, shutting down the Tongariro Power Scheme, then a new hierarchy of whose ideas about nature count will have been remade into law, which will have remade nature.

CONCLUSION

When, as the Māori express it, “I am the River and the River is me,” we must take into account the river’s interests, based on a worldview that the river’s interests are our interests. Around the world, governments, legislatures, and courts are moving toward Stone’s idea of a “radically different law-driven consciousness” and in so doing, this posture both reflects and evolves communities’ views of themselves. When we move from “we own the river” to “we are the river,” we enter into a new paradigm of what “property” is, and who we actually are.

Stone opined:

The time may be on hand when these sentiments, and the early stirrings of the law, can be coalesced into a radical new theory or myth—felt as well as intellectualized—of man’s relationships to the rest of nature. I do not mean “myth” in a demeaning sense of the term, but in the sense in which, at different times in history, our social “facts” and relationships have been comprehended and integrated by reference to the “myths” that we are co-signers of a social contract, that the Pope is God’s agent, and that all men are created equal. . . . What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos.

In the scenarios I have portrayed here, that growing knowledge dovetails with, informs, and is informed by the lifeways of people who have long created and lived by “myths” that guide how they treat the world around them. Myth is not pejorative: where cultures have survived pre- and post- colonial invasion, they have survived because their myths kept them from undercutting the ecosystems that sustained them. When Western cultures grant nonhuman entities formal rights, the evolution in worldview has not been in the original views of those who have proposed such conceptions, now inscribed in law: Australia’s Aborigines or New Zealand’s Māori, for example, have long believed in an indivisible relationship with the natural world around them. Instead, the ethics of the hegemonic cultures in some Western nations are evolving toward the direction that nature-connected communities have long understood and implemented in their own lore, that is their own law. Stone muses that “[o]ne is certain to wonder how, in selecting the critical boundary variables or supplying content to the key ‘ideal’ (riverhood, habitathood), we can avoid being, on the one hand, totally arbitrary or, on the other, guilty of smuggling in whatever standard advances our own most ‘raw’ homocentric interests.” Thus who “we” are is going to matter a lot. In the models I have described here, governments have designated appropriate spokespersons for nature, who, it is hoped, will not simply smuggle in their own “raw” homocentric interests. When governments or courts in these nations grant ecosystems legal rights, they reflect and propel changing views both of human relationships with the natural world. In the examples I describe here, they also reflect and propel evolving views of dominant groups’ relationships with indigenous peoples or other disenfranchised subpopulations from whom the right to manage the natural world had been taken.

The legal evolutions I have described here go beyond what Stone imagined. Despite his foresight, in his writings, he is here, and the river is there: he is not the river. This makes sense. Stone’s worldview was rooted in the U.S. tradition; he was writing for U.S. audiences and was concerned with the intricacies of U.S. constitutional and statutory law. Stone dedicated much of one of his books to the idea of moral and legal pluralism; meaning, he espoused that no one size fits all as we seek to remake our cultural and thus legal relationships with the natural world. He advocated “a whole network of mutually supportive principles, theories and attitudes toward consequences.” The ideas he espoused find pluralistic fruition in the disparate ecological, historical, and cultural milieux I have described here, where previously subordinated groups have hacked the legal hierarchy to allow their views of human and nonhuman relationships to take legal precedence.

I am not a moral philosopher, and this is not a journal of moral philosophy. Laws, however, reflect our moral inclinations. And our moral inclinations—in Western philosophy and law—derive from how we see ourselves in relationship to the “other,” including the relative worth of the others in relation to other entities and in relation to ourselves. When a society gives rights to rivers or mountains, law is acknowledging that one way of knowing one’s place on the Earth is to see oneself as the Earth. It is the value of the indivisible relationship that gives rise to legal pathways that honor that relationship, with one entity in that relationship given priority to speak for and protect that relationship.

Ideas are forces of nature, acting with greater force when they are translated into law. Law—especially environmental laws—should be adaptive in the evolutionary sense; that is, they should evolve to fit the changing ecological matrix, and should evolve to protect and sustain that matrix, if communities and our species is to survive and thrive. As described here, law in some locales is acknowledging that one way of knowing one’s place on the Earth is to see oneself in a relationship with the Earth, or to see oneself simply as the Earth. We do not know whether or how any of these instantiations of Christopher Stone’s ideas will work to protect the ecological matrix that sustains the relationship between ecosystems and the communities who are being given new rights to speak for those ecosystems. We do not know whether or how nature will be remade, but newly empowered stewards for these experiments in “standing” and more may well improve on the way we have been managing the ecosphere up until now.