The Supreme Court’s 2022 decision in West Virginia v. EPA, along with other recent cases in which federal courts have grappled with the ongoing climate crisis, offers an opportunity to assess the role of the judiciary in helping the United States adopt effective responses to monumental threats such as the climate crisis. Courts reviewing legislative and executive actions must find ways to enforce constitutional limits without preventing the political branches from implementing effective policy responses to potentially catastrophic problems. Three relatively recent climate cases—West Virginia v. EPA, Utility Air Regulatory Group v. EPA, and Juliana v. United States—illustrate the need for courts to balance their competing obligations. In West Virginia and in Juliana, courts lost their balance, disregarding practical consequences in West Virginia and neglecting institutional limits in Juliana. Utility Air Regulatory Group, despite other shortcomings, emerges as the best example of a court striking the proper balance between its dual responsibilities. The fact that Justice Scalia, an ideologically conservative Justice, could write an opinion that constrained EPA’s regulatory authority without impairing the effectiveness of the agency’s policy supplies some basis for optimism that courts can play a constructive role in supporting the development of practical solutions to pressing problems. West Virginia, by contrast, provides a discouraging cautionary example of a court thoroughly out of balance.
Justice Breyer’s Friendly Legacy for 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.
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.
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.
ENVIRONMENTAL LAW CASES OCTOBER TERM 1994–OCTOBER TERM 2021
Case Name | Citation | EP Designation |
Dolan v. City of Tigard | 512 U.S. 374 (1994) | Dissent |
Babbitt v. Sweet Home Chapter Communities for A Great Oregon | 515 U.S. 687 (1995) | Majority |
Meghrig v. KFC Western | 516 U.S. 479 (1996) | Dissent |
General Electric v. Joiner | 522 U.S. 136 (1997) | Dissent |
Steel Company v. Citizens for a Better Environment | 523 U.S. 83 (1998) | Dissent/Concur |
Ohio Forestry Association v. Sierra Club | 523 U.S. 726 (1998) | Dissent |
United States v. Bestfoods | 524 U.S. 51 (1998) | Majority |
City of Monterey v. Del Monte Dunes at Monterey, Ltd. | 526 U.S. 687 (1999) | Concur |
Friends of the Earth v. Laidlaw Environmental Services, Inc. | 528 U.S. 167 (2000) | Majority |
Public Lands Council v. Babbitt | 529 U.S. 728 (2000) | Majority |
Solid Waste Agency of Northern Cook County v. United States | 531 U.S. 159 (2001) | Dissent |
Whitman v. American Trucking Associations | 531 U.S. 457 (2001) | Majority |
Palazzolo v. Rhode Island | 533 U.S. 606 (2001) | Dissent |
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency | 535 U.S. 302 (2002) | Majority |
Norfolk & Western Railway v. Ayers | 538 U.S. 135 (2003) | Majority |
Alaska Department of Environmental Conservation v. EPA | 540 U.S. 461 (2004) | Majority |
South Florida Water Management Dist. v. Miccosukee Tribe | 541 U.S. 95 (2004) | Majority |
Engine Manufacturers Association v. South Coast Air Quality Management District | 541 U.S. 246 (2004) | Dissent |
Department of Transportation v. Public Citizen | 541 U.S. 752 (2004) | Dissent |
Norton v. Southern Utah Wilderness Association | 542 U.S. 55 (2004) | Dissent |
Bates v. Dow Agrosciences | 544 U.S. 431 (2005) | Majority |
Lingle v. Chevron U.S.A., Inc. | 544 U.S. 528 (2005) | Majority |
Kelo v. City of New London | 545 U.S. 469 (2005) | Majority |
S.D. Warren v. Maine Board of Environmental Protection | 547 U.S. 370 (2006) | Majority |
Rapanos v. United States | 547 U.S. 715 (2006) | Dissent |
Massachusetts v. EPA | 549 U.S. 497 (2007) | Majority |
Environmental Defense Fund v. Duke Energy Corporation | 549 U.S. 561 (2007) | Majority |
United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority | 550 U.S. 330 (2007) | Plurality |
United States v. Atlantic Research Corporation | 551 U.S. 128 (2007) | Majority |
National Association of Home Builders v. Defenders of Wildlife | 551 U.S. 644 (2007) | Dissent |
Exxon Shipping Company v. Baker | 554 U.S. 471 (2008) | Dissent in part |
Winter v. National Resources Defense Council, Inc. | 555 U.S. 7 (2008) | Dissent |
Summers v. Earth Island Institute | 555 U.S. 488 (2009) | Dissent |
Entergy Corporation v. Riverkeeper, Inc. | 556 U.S. 208 (2009) | Dissent |
Burlington Northern & Santa Fe Railway Company v. United States | 556 U.S. 599 (2009) | Dissent |
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council | 557 U.S. 261 (2009) | Dissent |
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection | 560 U.S. 702 (2010) | Concurrence in part |
Monsanto Company v. Geertson Seed Farm | 561 U.S. 139 (2010) | Dissent |
American Electric Power Company v. Connecticut | 564 U.S. 410 (2011) | Dissent |
Sackett v. EPA | 566 U.S. 120 (2012) | Dissent |
Arkansas Game and Fish Commission v. United States | 568 U.S. 23 (2012) | Dissent |
Decker v. Northwest Environmental Defense Center | 568 U.S. 597 (2013) | Dissent |
Koontz v. St. Johns River Water Management District | 570 U.S. 595 (2013) | Dissent |
EPA v. EME Homer City Generation L.P. | 572 U.S. 489 (2014) | Majority |
Utility Air Regulatory Group v. EPA | 573 U.S. 302 (2014) | Concur/Dissent |
Michigan v. EPA | 576 U.S. 743 (2015) | Dissent |
Federal Energy Regulatory Commission v. Electric Power Supply Association | 577 U.S. 260 (2016) | Majority |
Sturgeon v. Frost | 577 U.S. 424 (2016) | Dissent |
United States Army Corps of Engineers v. Hawkes Company | 578 U.S. 590 (2016) | Dissent |
Murr v. Wisconsin | 137 S. Ct. 1933 (2017) | Majority |
Weyerhaeuser Company v. United States Fish and Wildlife Service | 139 S. Ct. 361 (2018) | Dissent |
Sturgeon v. Frost II | 139 S. Ct. 1066 (2019) | Dissent |
Virginia Uranium, Inc. v Warren | 139 S. Ct. 1894 (2019) | Majority |
Knick v. Township of Scott | 139 S. Ct. 2162 (2019) | Dissent |
Atlantic Richfield Co. v. Christian | 140 S. Ct. 1335 (2020) | All But Alito |
County of Maui v. Hawaii Wildlife Fund | 140 S. Ct. 1462 (2020) | Majority |
United States Forest Service v. Cowpasture River Preservation Association | 140 S. Ct 1837 (2020) | Dissent |
United States Fish and Wildlife Service v. Sierra Club | 141 S. Ct. 777 (2021) | Dissent |
Guam v. United States | 141 S. Ct 1608 (2021) | Majority |
Cedar Point Nursery v. Hassid | 141 S. Ct. 2063 (2021) | Dissent |
Hollyfrontier Cheyenne Refining, LLC v. Renewable Fuels Association | 141 S. Ct 2172 (2021) | Dissent |
PennEast Pipeline Company v. New Jersey | 141 S. Ct 2244 (2021) | Dissent |
West Virginia v. EPA | 142 S. Ct. 2587 (2022) | Dissent |
ENVIRONMENTAL PROTECTION (“EP”) SCORES OF SELECTED INDIVIDUAL JUSTICES
OCTOBER TERM 1994–OCTOBER TERM 2021
Justice | Number of Cases | EP Points | EP Score |
Breyer | 61 | 38 | 62.3 |
Scalia | 47 | 11 | 23.4 |
Stevens | 37 | 29 | 78.4 |
Kennedy | 50 | 18 | 36 |
Thomas | 63 | 13 | 20.6 |
Souter | 36 | 29 | 80.6 |
Ginsburg | 57 | 41 | 71.9 |
CJ Roberts | 40 | 8 | 20 |
Alito | 38 | 4 | 10.5 |
Sotomayor | 25 | 16 | 64 |
Kagan | 25 | 17 | 68 |
95 S. Cal. L. Rev. 1395
* Howard J. & Katherine W. Professor of Law, Harvard Law School. I would like to thank Professors Hope Babcock, Jonathan Cannon, Bill Funk, Steph Tai, and Susannah Weaver for their terrific comments on a preliminary draft of this Article. Kathryn C. Reed, Harvard Law School Class of 2022, provided outstanding research and editorial assistance. Although it has no bearing on my analysis, for the sake of disclosure I served as counsel for either one of the parties or an amicus in the following Supreme Court cases that fall within this Article’s scope of review: Dolan v. City of Tigard, 512 U.S. 374 (1994); Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302 (2002); Norfolk & Western Ry. v. Ayers, 538 U.S. 135 (2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004); S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370 (2006); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009); Monsanto Co. v. Geertson Seed Farm, 561 U.S. 139 (2010); and Murr v. Wisconsin, 137 S. Ct. 1933 (2017).
Should Humanity Have Standing? Securing Environmental Rights in the United States
While courts around the world are increasingly recognizing rights of nature or the rights of individuals or communities to a safe and healthy environment, American courts have been much more skeptical of environmental rights claims. This Article examines this growing divergence and identifies trends in American law that might account for it, including explanations deeply rooted in U.S. constitutional history as well as recent doctrinal developments such as the major questions doctrine. More importantly, this Article offers a way forward for American law in the face of critical environmental challenges, most notably climate change. Specifically, it presents constitutional interpretive methods that might advance the interests of nature and individuals facing pollution impacts. It also explores the potential role for states and state constitutions in protecting the environment. But given the obstacles—both jurisprudential and political—to a more robust environmental rights framework in American courts, this Article concludes that the best path forward might be a theory of negative environmental rights—namely, the right to be free from harmful pollution. Such a narrowly constructed commitment to an end to uninternalized environmental externalities might offer a practical and politically feasibly way to move past the pervasive concerns of American courts about positive rights, separation of powers, the political question doctrine, and appropriate modes of judicial relief.
In his landmark Should Trees Have Standing? article, Professor Christopher Stone posed the question of whether Nature could, and indeed should, have legally enforceable rights. Today, a handful of countries have granted rights—sometimes in the form of “legal personhood”—to Nature generally or to discrete geographic features, such as mountains or rivers. Many more countries recognize their citizens’ right to a healthy environment in one form or another. And a growing number of litigants across the globe—spurred on perhaps by the youth movement for climate change action—have used these rights to force governments or businesses to reduce greenhouse gas emissions. Courts in many nations around the world have been increasingly sympathetic to these claims, establishing the judiciary in many nations as an important point of leverage for moving society toward a more sustainable future in general and a more robust response to climate change in particular.
In the United States, however, such efforts have met with little success. Recognition of environmental rights remains limited and largely in the background of the American legal system. Such rights are rarely constitutionally defined (and only at the state level) and have gone almost entirely unrecognized by courts. Although Stone’s argument altered the environmental rights conversation in the United States (particularly after being cited in Justice Douglas’s dissent in Sierra Club v. Morton), it has not translated into strengthened environmental rights in American courts. Indeed, both federal and state courts across the country have expressly declined to entertain climate change litigation, rejecting a range of legal theories and assertions of environmental rights advanced by a diverse set of plaintiffs. The judges in these cases consistently suggest that the remedies sought by the plaintiffs go beyond what the judiciary can order.
This reality leads to the central puzzle of this Article: Why has the conception of environmental rights remained so crimped in the United States in contrast with other nations?
In seeking to answer this query, I also address another critical question: Are there legal avenues available to better secure environmental rights in the United States?
In Part I, I set the stage for these inquiries with a brief survey of environmental rights scholarship over the past fifty years, chronicling how such rights emerged from the human rights discourse and have now become constitutionalized in the vast majority of nations across the globe. I go on to document how environmental rights have become increasingly widely recognized in international law through treaties, resolutions, and declarations—including a 2022 United Nations (“U.N.”) General Assembly Resolution declaring access to a clean, healthy, and sustainable environment to be a human right. Given this universality of commitment to environmental protection, I argue that environmental rights should be recognized as natural rights that need not be granted by a constitution or a statute but rather understood to be inherent in what it means to be human. In this regard, the failure of U.S. courts to recognize environmental rights seems out of step with modern mores and legal thinking across the globe—setting up the puzzles noted above.
In Part II, I undertake a comparative review of national case law around the world, noting how courts in many nations have strengthened environmental rights in recent years—particularly in the context of the need to shift our economic activities onto more sustainable underpinnings and to address the rising risks of climate change. In analyzing the global march of environmental rights, I note that while the trend is toward broader protection of peoples across the world from pollution, each nation’s framing of environmental rights reflects the particular values, circumstances, and legal traditions of that society—with the United States in a relatively unique and lagging position.
I extend this analysis in Part III with a more detailed look at the reasons why environmental rights remain limited in the United States. I focus particular attention on the decisions in a number of recent climate change cases where courts have concluded that the judicial branch of government is not positioned to provide the relief that the plaintiffs sought. I go on to suggest that the narrow American view of environmental rights derives not only from the lack of a clear constitutional provision, but also from the U.S. judiciary’s tradition of restraint in the face of cases that present political or “major” questions that might be seen as within the purview of the legislative and executive branches of government. I also note that, unlike civil rights, which have relatively clear lines, environmental protection inescapably entails tradeoffs and multidimensional policy choices. This reality makes climate change and other environmental policy issues polycentric problems, which present competing claims and no clear framework for balancing the contesting interests. In the face of such difficulties, many judges and scholars have concluded (following the conceptual framing of Professor Lon Fuller) that such issues are inappropriate for courts to adjudicate and must be left to political processes. Finally, I note that the approach to evaluating competing interests embedded in the U.S. framework of pollution control law and regulation—centered on benefit-cost analysis with particular reliance on the Kaldor-Hicks model of net social benefits—effectively privileges economic activity and often treats individual environmental rights as inconsequential.
In Part IV, I argue that the sustainability imperative and the risks posed by climate change demand that U.S. courts revisit their hesitancy to vindicate environmental rights and respond to the need to address climate change and establish a more sustainable foundation for the American economy. I advance several legal theories and accompanying political strategies for expanding environmental rights in America—consistent with emerging norms across the country and around the world and the increasingly clear epidemiological and ecological evidence that deteriorating environmental conditions threaten the capacity of humanity to flourish in the years ahead. Ultimately, I argue that the key to progress might well not be found in the expansion of individual environmental rights per se, but rather in the emerging norm against uninternalized environmental externalities—the acceptance of which makes pollution spillovers unacceptable. Thus, the most promising pathway to expanded environmental rights in America might be through the assertion of the environmental rights of the people in a negative construct—that is, the right of individuals not to be harmed by pollution.
I conclude the Article with a reflection on the ongoing relevance of Christopher Stone’s 1972 vision of humanity’s moral development over time leading to the gradual extension of rights to those who (and that which) had previously been left out of legal personhood and thus the law’s protection. But rather than emphasize the value of extending legal rights to natural objects, I urge that human rights be understood to encompass a natural law right to a habitable environment—accomplishing through a different route Stone’s call for a “new conception of man’s relationship to the rest of nature . . . [as] a step towards solving the material planetary problems.” Rather than give trees standing, I propose a narrower path forward based on declaring an end to uninternalized externalities and asserting the right of each person to physical integrity and freedom from pollution. In doing so, we can give American citizens standing to challenge harmful emissions and stop the damage to the Earth systems that threatens to make the planet uninhabitable for humanity.
Environmental rights have increasingly been recognized as foundational to human rights. In recent decades, many nations have enshrined rights to a healthy environment in one form or another in their constitutions. The near-universal acceptance of environmental rights provides a starting point for the argument that the right to a healthy environment should be recognized as an element of natural law.
A. Environmental Rights as Human Rights
Over the past fifty years, much of the world has come to recognize environmental rights as fundamental to human existence—and therefore to be understood as natural rights that need not be expressly or specifically established by statute or governmental edict. While the 1948 U.N. Universal Declaration of Human Rights does not mention the environment specifically, it does recognize rights to life and to security. Moreover, just two decades later as environmental consciousness was rising around the world, the U.N. General Assembly adopted a resolution highlighting the relationship between environmental quality and human rights. In reflecting on this resolution and the momentum building for greater focus on environmental protection at the time of the 1972 U.N. Conference on the Human Environment, Janusz Symonides, a prominent Polish jurist and academic, observed that the right to a clean environment must be understood as a universal human right because the ability to enjoy other fundamental rights, including the right to life, depends on it.
The 1972 Stockholm Declaration on the Human Environment, which emerged from the U.N. Conference, strengthened this conclusion with a further observation: “Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights—even the right to life itself.” But the governments in Stockholm declined to specify what might be encompassed by this right, encouraging scholars and rights activists to develop their own definitions and conceptions. Most notably, Alexandre Kiss, a French diplomat and scholar, offered a series of publications that explored different dimensions of environmental rights centered on the theory that environmental protection is essential to what it is to be human. Kiss argued that Principle I of the 1972 Stockholm Declaration—asserting a “fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”—had become so well established as to be added to the category of fundamental rights, the enjoyment of which is guaranteed to all individuals. He further explained that these environmental rights create obligations (not only for states but also for individuals), duties to future generations, and “remedies in the event of environmental harm.”
As the world community prepared to gather in 1992 for the second Earth Summit in Rio de Janeiro, Professor Dinah Shelton further developed the argument for recognizing environmental rights as fundamental to human rights. She critiqued many of the theories of environmental rights that were common at the time, noting that none of them was “fully articulated.” Shelton ultimately concluded that an approach that viewed “human rights and environmental protection as each representing different, but overlapping, societal values” showed the most promise—and that a “clearly and narrowly defined international human right to a safe and healthy environment” could achieve objectives in human rights law and environmental law.
The breadth of support for the recognition of environmental rights has strengthened in recent years. In 2008, the U.N. Human Rights Council adopted Council Resolution 7/23, which affirmed the council’s view that “climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.” The 2022 U.N. General Assembly Resolution—adopted with 161 votes in favor (including the United States) and just eight abstentions—declaring access to a clean, healthy, and sustainable environment to be a universal human right represents the latest manifestation of this growing consensus. Momentum continues to build, as the fifteenth Conference of the Parties to the Convention on Biological Diversity adopted in 2022 a biodiversity conservation framework designed to accommodate the “rights of nature and rights of Mother Earth.”
B. Constitutional Recognition of Environmental Rights
The importance of environmental conditions to human flourishing is now so widely recognized and highly valued that 150 nations highlight the importance of the environment in their constitutions. More than 100 nations now have constitutions that expressly recognize a right to a healthy environment in some form. As David Boyd explains in his seminal study, The Environmental Rights Revolution, three concurrent waves of rights conceptualization in the second half of the 20th century contributed to the firm footing of environmental rights in constitutions today: (1) growth in democratic governance; (2) a global “rights revolution”; and (3) public awareness of severe environmental degradation. Against the backdrop of expanding rights discourse and ecological consciousness, over half of the world’s constitutions were written or re-written, with many of those doing the drafting seizing this opportunity to establish a legal right to a healthy environment. Indeed, over this period environmental rights have been the fastest-growing provision in constitutional revisions. While it may be difficult to establish a precise causal link, Boyd demonstrates a consistent correlation between a formal right to a healthy environment and strengthened environmental governance and results.
The extent to which nations have constitutionalized environmental rights depends on country-specific context. For example, some resource-rich countries explicitly connect environmental rights to public access to the benefits of the country’s natural resources. Many island nations, perhaps recognizing their vulnerability to ecosystem damage, instead highlight the government’s duty to preserve an “ecologically balanced environment.” And a number of countries formerly constituting the Soviet Union include specific protections for the public’s access to “information about the environment,” likely inspired by the Soviet Union’s tradition of state-sponsored disinformation and the specific failure to share critical facts about the Chernobyl nuclear crisis.
C. Environmental Rights as Natural Law
The increasingly universal recognition of environmental rights suggests that every person should have access to basic environmental amenities—including clean air to breathe, safe water to drink, freedom from exposure to toxic chemicals, and functioning Earth systems (including a stable climate) that provide a “safe operating space for humanity.” So fundamental is this right to human existence that it must be understood to have independent and intrinsic value—and not simply instrumental importance as a pathway to the fulfillment of other fundamental rights such as the right to life or health. Many legal commentators have thus concluded that the right to a healthy environment should be seen as an element of the universal moral principles that must be regarded as sacrosanct in all societies at all times.
Along with my colleague Don Elliott, I have argued that the U.S. Congress highlighted the existence of environmental rights at the time of the 1970 adoption of the National Environmental Policy Act (“NEPA”) when it declared: “The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” Note that the Congress did not establish this right, but rather recognized it. In doing so, the Congress suggested that NEPA was intended to provide mechanisms to vindicate a pre-existing natural law right to a “healthful environment” and to clarify the obligation of every American to protect the environment. But the central thrust of this Article is not to make the case for environmental rights as an element of natural law but rather to map the environmental rights terrain in search of an explanation as to why U.S. courts have been hesitant to accept such rights. Part II takes up this quest.
II. DEVELOPMENT OF AN ENVIRONMENTAL RIGHTS JURISPRUDENCE
In the face of the existential threat posed by climate change and a growing recognition that a commitment to sustainability must be a foundational feature of twenty-first-century life, courts around the world have advanced environmental rights in recent years and issued decisions that required both governments and corporations to address a diverse set of ecological and public health harms—including the risk of climate change from a build-up of greenhouse gases (“GHGs”) in the atmosphere. In their totality, these decisions by trial courts, appeals courts, and constitutional courts across the world make clear that environmental protection is now seen as a fundamental right in many societies. I begin in Section II.A with a discussion of the international and transnational legal framework that has underpinned many of these decisions—and explore the decisions of the European Court of Human Rights (“ECtHR”) in this respect. In Section II.B, I extract some common themes from the environmental decisions of national courts around the world.
A. Transnational Courts and Environmental Rights
In recent years, the belief that access to a healthy environment is essential to the fulfillment of other human rights has increasingly been upheld in international legal proceedings. For example, Justice Weeramantry of the International Court of Justice observed in his Gabcikovo-Nagymaros opinion that protection of the environment is “a vital part of contemporary human rights doctrine, for it is sine qua non for numerous human rights such as the right to health and the right to life itself.”
This jurisprudence is underpinned in large part by language in a suite of treaties, which provide further international undergirding for environmental rights. Most notably, four regional agreements establish a right to a healthy environment: the African Charter on Human and Peoples’ Rights, the Aarhus Convention, the San Salvador Protocol to the American Convention on Human Rights, and the 2004 Revised Arab Charter on Human Rights. Together, these treaties have 126 independent signatories, comprising a healthy majority of all sovereign states. While these treaties do not cover every nation—with the United States being one of the notable non-signatories—they bolster a global sentiment that humans have a fundamental right to a healthy environment.
Nowhere is the trend toward recognition of environmental rights more visible than at the ECtHR. Indeed, while the European Convention on Human Rights (“ECHR”) has no explicit reference to the environment, the ECtHR has developed “an elaborate and extensive body of case law which all but in name provides for a right to a healthy environment.” In fact, the ECtHR Registry (which acts as the administrative support structure for the Court) has produced an extensive “Guide to the Case-Law of the European Court of Human Rights” that explains ECtHR case law on environmental issues.
The ECtHR has an environmental history going back to noise pollution cases in the 1980s. In 1994, the court explicitly recognized that environmental harms may “affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely” as protected by Article 8 of the ECHR. The ECtHR has found ECHR Article 8 violations related to air pollution and other environmental risks, such as the proximity of a dangerous chemical plant, mines, or a waste treatment facility, as well as potential water contamination by a cemetery close to a home. The ECtHR has also invoked the right to life in Article 2 of the ECHR in a few cases when environmental harms posed a direct risk to someone’s life. But these cases remain rare and not central to the court’s environmental rights jurisprudence.
The court’s decisions suggest that governments retain a degree of flexibility in addressing environmental harms and weighing them against other interests, such as the country’s economic well-being. But the ECtHR has been clear that states have a positive obligation to take preventive measures to address environmental harms.
B. Environmental Rights Jurisprudence Around the World
An ever-growing list of countries around the world are seeing their courts act decisively in the face of environmental disputes. These courts have demonstrated a much greater willingness to make findings and order governmental action with regard to climate change and other sustainability threats than have American courts, as will be explored in Part III in greater detail. Many foreign courts have explicitly recognized substantive environmental rights and a governmental duty of care towards citizens with regards to environmental quality or climate stability, even if they have left the specific path forward to be defined by other branches of government.
A number of courts have questioned the adequacy of their government’s efforts to mitigate or adapt to climate change—especially in light of the nationally determined contributions to which they committed as part of the 2015 Paris Agreement. Courts around the world have held that their country’s respective governments had run afoul of their constitutional, statutory, or common-law obligations (in some cases, violating the plaintiffs’ individual rights to a healthy environment) because of the insufficiency of their plan to reduce GHG emissions. Many courts—including those of France, Germany, Pakistan, and the Netherlands—responded to these violations by ordering the governments to develop new frameworks for reducing greenhouse gas emissions—with Germany’s Constitutional Court ordering the federal parliament to adopt a new climate change mitigation plan.
Some courts have been willing to entertain claims raised against private companies—or against the government vis-à-vis its failure to adequately regulate a private actor. One of the first of such cases was the 2005 Nigerian case, Gbemre v. Shell Petroleum. In that case, several plaintiffs filed suit against the Nigerian government for failing to stop Shell Petroleum from gas flaring, which they argued had devastating environmental effects in their local community. The Federal High Court—akin to a federal district court in the United States—ultimately found an environmental right in the Nigerian constitution and the African Charter on Human and Peoples’ Rights, and it declared that Shell’s gas flaring violated these rights as well as other human rights to life and dignity, and that provisions of Nigerian law that allowed the gas flaring to take place violated the country’s constitution. In the Netherlands, the same district court that ordered the government to reduce its greenhouse gas emissions concluded in a separate case that Royal Dutch Shell had violated the environmental plaintiffs’ rights under the Dutch Civil Code and ordered Shell to reduce its GHG emissions by 45% by 2030 from the oil company’s 2019 baseline.
And while explicit rights for Nature remain rare in national constitutions or in global jurisprudence, developments in Colombia and Ecuador have bucked this broader trend. In Ecuador, the Pachamama (or “Mother Earth” to indigenous Ecuadorians) has been protected in its constitution since the late 2000s. In 2021, the Constitutional Court gave this protection real force in holding that mining undertaken by Enami, the state mining company, in an ecologically sensitive part of the rainforest was unconstitutional. It grounded its decision not only in the rights of nature—but also tied those rights to human rights to the environment. Judge Agustín Grijalva Jiménez wrote:
The concept of nature that the Constitution develops in Article 71 includes human beings as an inextricable part of nature, and of the life it reproduces and realizes in its breast . . . . In order to highlight this relationship, the Constitution in its preamble states that Mother Nature is vital for our existence. Here the Constitution perceives (or pays close attention to) the fact that humanity’s own existence is inevitably tied to that of nature, for he conceives it as part of himself. The rights of nature necessarily span to the rights of humanity as a species of nature.
In a similar case, Colombia’s Supreme Court accepted the claims of a group of youth plaintiffs who argued that their rights to a healthy environment were being debased by the government’s failure to end deforestation in the Colombian Amazon region. In its 2018 Future Generations decision, the Court declared that “fundamental rights of life, health, the minimum substance, freedom, and human dignity are substantially linked and determined by the environment” and ordered development of a plan to address the deforestation concerns brought forward by the plaintiffs. The Court also granted the Amazon Basin something akin to legal personhood, finding that it was a “subject of rights” and was therefore “entitled to protection, conservation, maintenance, and restoration.”
These decisions reflect the effect of international legal regimes in many countries around the world. Many of the decisions favorable to environmental rights have linked together generic rights in national constitutions—such as a general right to life—with more specific protections in transnational treaties or agreements to craft a right to a healthy environment. The remedies that have been developed in these countries have not always been terribly specific. The orders in several European courts that governments reduce greenhouse gas emissions left the governments space to design their own plans—though in some cases, the government remained under the supervision of the court as it developed a plan. Indeed, in Pakistan, the court-created Climate Change Commission was designed to facilitate cooperation among government officials—not to function as a judicially imposed policymaking force.
C. Conclusions from Survey of Global Environmental Rights Cases
Three broad conclusions can be drawn from this survey of the judicial response to environmental claims. First, environmental rights are being recognized ever more broadly across the world. Second, the frame and scope of these rights and the underlying legal theories advanced vary across the world—reflecting the individual circumstances, judicial traditions, values, and political dynamics of each society. Finally, the United States stands apart from the rest of the world with regard to the broad trend toward court recognition of environmental rights, clearly suggesting a distinct legal framework and tradition, which is the subject of Part III.
III. UNDERDEVELOPMENT OF ENVIRONMENTAL RIGHTS IN THE UNITED STATES
The pattern that emerges from Part II of expanding judicial recognition of environmental rights—except in the United States—requires us to delve into the issue of American judicial exceptionalism in the environmental context. Specifically, why are U.S. courts an outlier with regard to recognizing environmental rights? A number of explanatory factors are explored below in pursuit of a better understanding of the unique elements of America’s legal structure and traditions that translate into a more constricted view of environmental rights than exists in other countries, particularly other economically advanced democracies.
A. The State of Climate Litigation in the United States
Litigants in the United States seeking to enforce their environmental rights or advance the U.S. response to climate change have faced a skeptical judiciary. Of particular note in this regard, in the 2022 case of West Virginia v. EPA, the Supreme Court found that the EPA lacked authority under the Clean Air Act’s statutory framework to regulate greenhouse gas emissions from existing coal and gas-fired power plants via “generation-shifting”—a regulatory mechanism akin to a cap-and-trade system for greenhouse gases. In coming to this conclusion, the Court relied on a separation of powers argument and a refinement of its political question jurisprudence—advanced as a major questions doctrine.
In Juliana v. United States, arguably the most high-profile climate case in the federal courts to date, twenty-one youth plaintiffs, organized by an Oregon-based environmental group called Our Children’s Trust, asserted that their substantive due process rights to a life-sustaining climate system had been violated and, further, that the federal government had failed to uphold its public trust doctrine obligation to protect shared natural resources. The Oregon District Court initially ruled that the case could go forward based on the theory that “a climate system capable of sustaining human life” was a fundamental right under the Due Process Clause of the Fifth Amendment. But the Ninth Circuit, while conceding that the plaintiffs had demonstrated the risks of climate change and the federal government’s contribution to the build-up of GHGs in the atmosphere, declared that the plaintiffs lacked standing. The panel majority based this conclusion on a legal finding that the injury plaintiffs sought to have addressed was not “redressable” by the courts. More specifically, the majority opinion of the Ninth Circuit panel leans on separation of powers arguments and the limits of authority of Article III judges to suggest that, in providing equitable relief, courts are always constrained and can only act where they can identify “limited and precise” legal standards to follow.
Climate change litigants in state courts have faced similar hurdles. In 2020, the Oregon Supreme Court rejected public trust doctrine claims from a group of similar youth climate plaintiffs—including the lead plaintiff in Juliana—in Chernaik v. Brown. The court majority concluded that the doctrine applied only to the management of navigable waters and underlying lands—and should not be extended to include the atmosphere, nor does it require state action to address climate change as a potential source of damage to these resources.
In 2021, the Washington Court of Appeals rejected a similar claim in Aji P. ex rel. Piper v. State, in which youth climate plaintiffs asserted fundamental rights to a stable climate system. The court ultimately held that the claims presented non-justiciable political questions. The Supreme Court of Washington denied review of the appellate court’s decision, with two justices dissenting. While declaring that the “right to a stable environment should be fundamental,” the Court of Appeals leaned heavily on the logic of separation of powers and the political question doctrine as spelled out in the Supreme Court’s Baker v. Carr decision in dismissing the plaintiffs’ case.
The Alaska Supreme Court reached a similar decision in the 2022 Sagoonick v. State case. There, the plaintiffs advanced arguments similar to those of the plaintiffs in Juliana, Chernaik, and Aji P. But the court rejected their claims based on the conclusion that the plaintiffs raised non-justiciable political questions. Though the court acknowledged that, under the Alaska Constitution, it did have a role to play in supervising the state’s management of natural resources, those same constitutional provisions also “expressly delegated to the legislature the duty to balance competing priorities for the collective benefit of all Alaskans.” The court declined to intervene in the face of these political questions, but it noted that the plaintiffs had several alternative avenues for recourse, including the challenging of “discrete actions implementing State resource development and environmental policies,” pursuing a ballot initiative to codify their preferred policies, and lobbying state policymakers.
In finding that the relief requested by plaintiffs (a court order for more aggressive government policies to address climate change) has no judicially manageable standards and risks usurping the authority of the legislative and executive branches, the courts here followed a venerable tradition of judicial restraint within U.S. courts, but one to which the judiciary does not always adhere—as I explore further below.
B. No Environmental Provision in the U.S. Constitution
Perhaps the most obvious place to start the search for an explanation for the resistance of U.S. courts to assertions of environmental rights lies in the absence of any explicit environmental or public health provision in the U.S. Constitution. Indeed, in almost all of the international environmental rights cases reviewed in Part II above, courts make reference to provisions in the country’s constitution or other foundational legal documents (including reliance on the ECHR). But only in a minority of cases was the constitutional provision one that specifically mentions the environment. Much more often, courts read environmental rights into provisions for life or health. Of course, the U.S. Constitution does not make mention of these terms either.
But this explanation is not fully satisfactory. Other countries with constitutions that make no mention of the environment or related terms have seen the judiciary expand environmental rights and even extend legal protection to elements of Nature. In fact, my research suggests that thirty-seven other nations find themselves in a similar posture (see Appendix). But courts in many of these countries have advanced a broader view of environmental rights than is found in the United States. In fact, some of these nations have been trailblazers in judicial recognition of fundamental rights in support of environmental protection claims. In New Zealand, for example, where there is no constitutional provision for environmental rights, the Whanganui River has been given legal personhood with the Maori people who claim ancestral rights to the waterway acting in a trusteeship role to ensure the resource is protected. Likewise, although Canada lacks explicit environmental language in its constitution, its courts have repeatedly affirmed the authority of federal policies that regulate for the purpose of environmental protection. And multiple Canadian courts have assigned environmental rights to Aboriginal titleholders as well as Aboriginal title lands.
In other countries, the executive branches have asserted environmental rights in advancing pollution control and sustainability initiatives. In Kiribati, for example, despite an absence of constitutionally enshrined environmental rights, the government has developed an extensive right-based national policy focused on a healthy environment, and the nation’s political leaders have spoken at lengths on the global stage about the need to advance this right worldwide. Similarly, Japan’s legislature introduced a mandamus action within its Administrative Case Litigation Act in 2004, which the Japanese Supreme Court has interpreted as a rights-based obligation on the government to minimize damage to health from environmental pollution.
While the lack of explicit or implicit environmental provisions in the U.S. Constitution starts to explain the narrow view of environmental rights emerging from American courts, it cannot be seen as a full explanation given the divergent outcomes across the world in climate change cases and other legal challenges based on environmental rights.
C. Non-Justiciability and Judicial Deference to the Political Branches
In the recent U.S. court decisions dismissing environmental rights claims, the standing of plaintiffs to bring a case has almost always been rejected based on the legal theory that courts cannot provide the remedy being sought—notably, a court order mandating more vigorous climate change policies. This conclusion builds on the separation of powers, political question, and the recently articulated major questions doctrines, as well as the longstanding Baker v. Carr framework, which suggests that courts should only take up cases where there are “appropriate modes of effective judicial relief.” But as noted in Part II above, other courts around the world have not hesitated to declare government policies inadequate and order the remedies requested in similar circumstances. So why does the United States stand apart?
Perhaps the real explanation lies in the seriousness with which courts in the United States struggle with the issue of whether the injuries for which plaintiffs seek redress are within the power of the judiciary to address. In the Juliana case, the Ninth Circuit agreed with the district court that the plaintiffs had alleged particularized claims of injury from GHG emissions that could be linked to federal government actions (including leases and subsidies) in support of fossil fuel producers. But the court concluded that the plaintiffs had failed to meet the redressability requirement for standing. The majority opinion rejects the notion that courts could “order, design, supervise, or implement” the sort of climate change action plan that plaintiffs sought. The two-judge majority goes on to declare that the plaintiffs must take their concerns to the “political branches” of the government.
This line of reasoning fits into a long American tradition of courts steering clear of political questions that are deemed to be better resolved by the political branches of the government—including in a series of prior cases involving environmental claims. The Juliana majority notes that the transition to renewable energy requires “a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”
But is this outcome really mandated? Couldn’t the court have declared the government’s current climate change posture inadequate and ordered a ramped-up response to the build-up of GHGs in the atmosphere—while leaving the details of how to do so to the other branches? As Aharon Barak, former Justice of the Israeli Supreme Court, observes in The Judge in a Democracy, which analyzes the role of the judiciary, “[T]he separation of powers is not pure and . . . each branch performs some functions that belong to the other branches[] so long as they are intimately related to the branch’s primary function.” Barak goes on to argue that the principle of checks and balances stands alongside the separation of powers as a foundational element of a functioning democracy—thus requiring the judiciary to act if the other branches fail to uphold the law or otherwise perform their duties. He concludes:
The more non-justiciability is expounded, the less opportunity judges have for bridging the gap between law and society and for protecting the constitution and democracy. . . . [T]he court should not abdicate its role in a democracy merely because it is uncomfortable or fears tension with the other branches of the state.
As Part II demonstrates, courts around the world seem to follow this principle in their willingness to step into environmental controversies, including cases that require them to declare the policies of the government inadequate—and to order more robust responses, including but not limited to climate change policies, to the claims of a diverse set of plaintiffs.
But the U.S. judiciary has traditionally taken a much narrower view of its proper role—and concomitantly has been much more likely than courts elsewhere to declare a matter non-justiciable when confronted with cases that seem to present political questions—following the Supreme Court’s guidance and multi-factor test established in Baker v. Carr. In Juliana, for example, the Ninth Circuit concluded that the plaintiffs’ request for relief would have entailed handling an issue committed to other branches of government (Baker v. Carr factor 1), forcing them into establishing a remedy where there were no judicially manageable standards (factor 2), and requiring the court to make policy determinations (factor 3). In finding the matter non-justiciable, the majority declared that they were “bound ‘to exercise a discretion informed by tradition, methodized by analogy, and disciplined by system’ ” and that “the plaintiffs’ case must be made to the political branches,” noting further and somewhat curiously “[t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
But this restraint is not mandated, as the dissent in Juliana makes clear. The dissenting Ninth Circuit judge signals that she would not have found the requested relief non-justiciable and believes that a court order that the federal government take more vigorous action to address climate change would be efficacious, even if such a command were not likely to fully solve the problem. She rejects the majority’s “deference-to-a-fault” approach and highlights a “countervailing constitutional mandate to intervene where the other branches run afoul of our foundational principles.”
Similar separation of powers and political question arguments dominate Aji P., in which the Washington Court of Appeals found plaintiffs’ claims nonjusticiable based on four of the Baker v. Carr factors. Notably, the majority concluded that: (1) the issues on which the plaintiffs sought judicial relief were “constitutionally committed” to the legislative and executive branches of government; (2) there exists no “judicially manageable standard” for providing relief; (3) the legislature and executive agencies have established climate change policies (albeit ones that plaintiffs believe are inadequate); and (4) judicial intervention in this case would “disrespect[] the coordinate branches” of government. While the Court of Appeals decision was upheld by the Washington Supreme Court, the Chief Justice dissented and indicated that he would have allowed the plaintiffs’ case to go forward, observing that “the Court of Appeals decision unnecessarily expanded the political question doctrine” and that “considerable statutory authority” supports the plaintiffs’ claim of fundamental environmental rights.
Similarly, the decision in Sagoonick was decided by just one vote and was issued over a vigorous dissent by Justice Peter Maassen, who noted that the state’s public trust doctrine incorporated a “constitutional right to a livable climate.” Justice Maassen criticized the majority for failing to issue a declaratory judgment “recogniz[ing] a constitutional right to a livable climate—arguably the bare minimum when it comes to the inherent human rights to which the Alaska Constitution is dedicated.” Justice Maassen further noted that the court had been repeatedly presented with the same question and that declining to answer it on justiciability grounds “will not eliminate it but will only postpone our answer, in the meantime putting the burden of redundantly litigating it on plaintiffs, the State, and the trial courts.” He added that recognition of the right does not require the court to develop a remedy itself, to immediately and fully “answer every subsequent question” about how the right might be invoked, or to convert any policy that harms the climate in the slightest into a rights violation—but that the court had a duty to answer the question.
Although the outcome in the Chernaik case in Oregon turned on the court’s unwillingness to expand the reach of the public trust doctrine, dissenting Chief Justice Martha Walters expressly rejected the suggestion that a judicial declaration regarding climate change would be inappropriate and such matters should be left to the legislative and executive branches. In fact, she concluded that “the judicial branch also has a role to play.” The dissenting opinion turns aside the separation of powers argument for judicial restraint, citing Marbury v. Madison and declaring that one of the core functions of the judicial branch “is to determine the legal authority and obligations of the other two branches of government.” In addition, the dissent takes apart the suggestion that the relief plaintiffs seek lacks judicially manageable standards (citing Baker v. Carr) and would require the court to make “particular policy decisions.” In rejecting the need for the court to show deference to the other branches in the face of a “political question,” Chief Justice Walters makes it clear that a court invalidating a policy decision of another branch is not the same thing as the court itself making a policy decision—and explains that she would have stepped up to the “obligation to determine what the law requires” and ordered a more robust state response to the threat climate change poses for public trust resources.
Signs that the tide may be turning in U.S. climate litigation have begun to emerge. Most notably, a trial court in Montana recently allowed the legal challenge brought by a group of youth plaintiffs to proceed to trial. In this case, the plaintiffs argued that several state statutory provisions violated the Montana Constitution’s environmental rights provision, the public trust doctrine, and their right to a stable climate system. The state argued that the claims presented by the plaintiffs presented non-justiciable political questions. In 2021, the trial court partially granted the state’s motion to dismiss on all requests for relief—except for the plaintiffs’ request for declaratory judgment that the state had violated the plaintiffs’ rights. Accordingly, a trial will take place in 2023 on this question.
Judges and justices in other countries have not felt constrained by separation of powers or political question concerns—nor about the risk that ordering action on climate change involves decisions that have no judicially manageable standards. Scholars have similarly raised questions about the logic and advisability of declaring cases to be non-justiciable. Justice Barak, for instance, condemns the concept of normative non-justiciability (of the sort Justice Brennan develops in Baker v. Carr in concluding that there will be no judicially manageable standards for addressing some issues). He argues that every dispute has “criteria for its resolution . . . . There is no sphere containing no law and no legal criteria . . . . The mere fact that an issue is ‘political’—that is, holding political ramifications and predominant political elements—does not mean that it cannot be resolved by a court.” Justice Barak likewise rejects the notion of institutional non-justiciability. He declares Justice Brennan’s Baker v. Carr argument—that for a court to take up an issue that has been committed to another branch risks disrespecting a coordinate branch of the government or creating chaos with “multifarious pronouncements by various departments on one question”—to be “unconvincing.” As Justice Barak observes, “all of the issues that are considered in constitutional or administrative law” have been entrusted to political authorities.
The jurisprudence of non-justiciability—and the tradition of judicial restraint in the face of cases that raise separation of powers issues or political questions—clearly represents a distinct element of the American legal tradition. U.S. judicial norms in this regard stand apart from the legal frameworks in place in other nations—as the next section explores in more detail.
While the opinions in U.S. environmental rights cases and the related academic literature focus on various elements of the separations of powers and political question doctrine, what more notably underlies the U.S. legal framework and sets the nation apart from the practice of judges elsewhere in the world (and particularly in Europe) is the American constitutional emphasis on securing negative rights and wariness about assertions of positive rights—at least at the federal level. So while the commentary centers on non-justiciability and the various Baker v. Carr factors, what undergirds the American exceptionalism is a distinct approach to rights—building, of course, on a federal Constitution that emerged at a moment in time when the critical issue was protecting the citizen from an abusive state, therefore translating into a document that emphasizes negative rights.
1. Positive Rights in State Constitutions
In fact, the U.S. structure of rights is somewhat more complicated than just suggested. Notably, some U.S. state constitutions explicitly secure positive rights. Indeed, the Massachusetts Constitution (of 1780) establishes a right to education. Other states have also written positive rights into their constitutions with a number of states having constitutionalized rights to education, labor protections, and protections for arrestees and prisoners. Many other states have adopted expansive legal interpretations of their state-level equivalents to the Bill of Rights in the context of abortion, death penalty, and criminal justice litigation. And seven states have expressly defined environmental rights in one form or another—with New York amending its constitution in 2021 to add an environmental rights amendment.
2. Federal Positive Constitutional Rights
I note further that, while the federal Constitution largely takes the form of establishing rights against government intrusion on the liberties of the people, there are some exceptions where positive rights have been established. For example, American courts have come to recognize the right of an accused person to testify in court in their own defense. As my Yale colleague Akhil Amar notes, this reversal of the prior legal tradition came to be accepted because the old rules raised problems of “legal coherence.” Likewise, the advance of civil rights in the 1960s and gay rights in the 2000s might also be seen as the recognition of positive rights under the federal Constitution. The U.S. Supreme Court’s jurisprudence paints an inconsistent picture, however, of the legal logic the Court perceives itself to be advancing. A number of the Court’s civil rights opinions raise doubts about whether these rulings should be understood as advancing positive rights. Indeed, constitutional law scholars have criticized the landmark decisions in Lawrence v. Texas and Obergefell v. Hodges as rather imprecise in specifying the rights being extended.
3. European Tradition of Positive Rights with Horizontal Effect
European courts (and a number of other judicial systems around the world) have taken another tack. Not only have they been more willing to specify positive rights, they have increasingly moved toward giving human rights horizontal effect—meaning that the courts have been willing to define rights (including environmental rights) that create obligations not only for governments but also for other citizens and corporate entities. This tradition has resulted in a framework of environmental rights that are not just broader than in the United States, but also deeper in that they have direct effect on private parties—creating affirmative duties to which companies (and others) must adhere.
Most notably, the ECtHR requires the parties to the ECHR to “secure to everyone within their jurisdiction the rights and freedoms defined in . . . [the] Convention.” The ECtHR has declared that states have a positive obligation to protect the rights under the ECHR, including the adoption of an adequate regulatory framework and a duty to prevent indirect or horizontal effects caused by other citizens or entities. Note that while individuals cannot make a claim of human rights violations against other private individuals, they can call upon the state to enforce their human rights vis-à-vis private parties. In Pla and Puncernau v. Andorra, a case involving the interpretation of a will, the ECtHR famously stated:
Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.
E. Polycentric Problems and Judicial Overreach
The American judiciary’s hesitance to take up climate change cases reflects a further distinct legal tradition: a concern that polycentric problems—ones that involve balancing of interests and apportioning of costs—are particularly unsuitable for adjudication by the courts. This theory is often associated with Professor Lon Fuller, who analogized polycentric problems to a spider web, where a pull on one strand puts stress across the many other strands and leads to instability. Fuller thus argued that complex policy problems must be left to political processes and not resolved by the judiciary. His theorizing has had a broad impact within the Anglo-American legal tradition.
1. Environmental Issues as Polycentric Problems
Environmental problems generally, and climate change in particular, present just the sort of polycentric policy challenge that Fuller warned was inappropriate for courts to adjudicate. Not only does climate change policy involve many elements and choices—involving production processes, pollution control possibilities, transportation systems, power generation and energy strategies, clean technology development, and many other aspects of life in modern society—but it also involves multiple trade-offs in which environmental gains for some almost always imply environmental costs for others.
Thus, unlike assertions of civil rights, which will often present bright line choices with clear underlying moral imperatives, environmental rights seem much less clear—and indeed, potentially quite intricate and hard to specify with precision. In asserting a moral right and constitutional claim that Black citizens should have a right to vote, there is no balancing to be done nor really any legitimate other side to the argument. No one can claim a right to prevent Black citizens from voting. Likewise, when gay rights are asserted, those that might wish to prevent gay citizens from living their lives as they wish have no firm foundation on which to build. These rights are relatively absolute.
In contrast, assertions of environmental rights might seem to be relatively unbounded. Do my environmental rights extend to a pristine environment? To a habitable environment? How much money should society (or polluters) be forced to spend to vindicate my right? Do I have a right to experience Nature as it is? Does the fact that Nature is not static but rather in a constant state of flux change the scope of the rights? Simply put, if I have a right to a healthy environment, who owes me what duties and to what extent—and at what cost?
Moreover, the resolution of these questions is likely to have externalities on other citizens and private actors in society. A judicial order that a government adopt an emissions-reduction plan, while ostensibly requiring government action, will inevitably require private action to comply with the government regulations that follow. Courts may be more reluctant to order remedies that have these sort of economic impacts—as the Alaska Supreme Court in Sagoonick suggested. There, in rejecting the plaintiffs’ assertion of a right to a healthy environment and denying their requested relief, the court noted that the Alaska Constitution “directs the legislature (and not the judiciary) to manage and develop the State’s natural resources for the maximum common use and benefit of all Alaskans.” As the court made clear, the legislature is responsible for striking “the proper balance between development and environmental concerns,” and that the court “cannot, and should not, substitute [its] judgment for that of the political branches.”
While legal cases that require analysis of policy choices present challenges for the judiciary, a number of scholars, including Professor Owen Fiss, have pushed back on Lon Fuller’s arguments. Fiss suggests that the judiciary must not shy away from upholding fundamental rights even in the face of polycentric problems. He argues that “courts should not be viewed in isolation but as a coordinate source of governmental power, as an integral part of the larger political system.” In the American legal system, “the legitimacy of the courts and the power judges exercise in structural reform . . . are founded on the unique competence of the judiciary to . . . give concrete meaning and application to the public values embodied in an authoritative text such as the Constitution.” Cass Sunstein raises a parallel argument, that the task of judges in adjudicating disputes—even those seemingly governed by “some preexisting rule”—is intricate and necessarily requires value judgments. Moreover, it is a fiction that courts are not already making the sort of decisions that Fuller argues that they should not or do not. And as Abram Chayes argued, the scope and breath of injunctive relief—including that which is widely accepted in the American legal system—involves the precise sort of value judgments that courts theoretically ought to shy away from.
In the context of environmental rights, it is inapposite to suggest that the questions involve too many imprecise calculations or debatable values. If the judiciary is able to weigh the competing concerns of other rights, both those presently enshrined in the Constitution and those recognized in common law, which implicate nearly identical concerns, it is capable of doing so here. As the dissent in Juliana noted, if courts are skeptical of granting the kind of relief sought by plaintiffs—that is, a broad order to do something that requires a coordinated effort at all levels of government, likely needing to be overseen by individual judges or special masters—there is a readily available example in Brown v. Board of Education. There, “the Supreme Court was explicitly unconcerned with the fact that crafting relief would require individualized review of thousands of state and local policies that facilitated segregation.”
2. Politicization of the Judiciary
A related argument suggests that courts are obliged to steer clear of cases that require making policy choices for fear of politicizing the judiciary. Under this line of thinking, courts in the United States are more concerned about politicization or the political nature of climate policy questions than are courts of other nations, perhaps reflecting the deep partisan divides in American politics over environmental issues and climate change—rifts that do not exist to the same extent in most other nations. Concerns over judicial policymaking are arguably reflected in the Supreme Court’s recent invocation of major questions doctrine to invalidate proposed climate regulations which, in leaving significant policy choices to Congress, could be read as the Court declining to resolve questions with partisan overtones.
But the Court’s reliance on the major questions doctrine to steer clear of hot political questions—and the argument that the Court is hyper-protective of its legitimacy as an apolitical arbiter—hardly seem convincing in a post-Dobbs v. Jackson Women’s Health Organization world. Justice Alito opens the majority opinion of Dobbs, in fact, with an acknowledgement that the issue of abortion is “a profound moral issue on which Americans hold sharply conflicting views.” The majority opinion recognizes the criticisms that a “decision overruling Roe would be perceived as having been made ‘under fire’ and as a ‘surrender to political pressure,’ ” but it concedes that political or politicized responses to the decision are immaterial in the Court’s eyes: “We do not pretend to know how our political system or society will respond to today’s decision. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.” In other words, fear of politicization was expressly waved away by the Supreme Court in Dobbs. That climate change also represents a profound moral or political issue (or that there would no doubt be partisan backlash to a judicial decision demanding governmental action in the face of climate change) does not seem immediately distinguishable from the Court’s eagerness to take up arms in Dobbs.
Besides, concerns over politicized climate-related decision-making beg the question of whether adjudicating political matters relating to climate change would threaten the legitimacy of the judiciary to the extent that critics claim. The presumption of grave risk seems overstated. In “invalidating actions by other branches of the state . . . the court does not criticize the internal logic or practical efficiency of such political considerations,” instead solely focusing on the legality of the action taken. In this respect, it is entirely possible for a court to assert a right, and hold that a legislature’s action violates that right, without actually infringing on the legislature’s policymaking discretion. In Robinson Township v. Commonwealth, for example, the Pennsylvania Supreme Court invalidated portions of an oil and gas regulation passed by the legislature on the basis that it violated the plaintiffs’ state constitutional right to a healthy environment. In response to arguments that the plaintiffs’ claims presented non-justiciable political questions, the court had a forceful response. It noted that a court’s review of policy choices made by the legislature “does not challenge [its] power” to set policy; “it challenges whether, in the exercise of the power, the legislation produced by the policy runs afoul of constitutional command.” “[T]he political question doctrine,” it added, “is a shield and not a sword to deflect judicial review.” Thus, the idea that judicial restraint is to be applauded when courts face a case with political overtones should be questioned if not rejected outright, especially in the face of fundamental threats to society, such as those posed by climate change.
While it is understandable that the deep political divides that now riven America have pushed U.S. judges to be extra cautious about taking up political questions, there are good arguments to suggest that this posture is not just inappropriate but constitutionally incorrect. To the contrary, it may be that with regard to the most political issues—where the legislative branch is too divided to act—courts have a special obligation to step into the breach. In fact, in explaining when the Ninth and Fourteenth Amendments provide a foundation for unenumerated rights that should be acknowledged by courts, Akhil Amar notes that such rights are most easily recognized when there exists clear national support and particularly when Congress has recognized such rights. But he goes on to say courts may need to secure fundamental rights even without these signals of broader support because the judiciary has a “role as a critical backstop in the event that Congress ever fails to act with proper vigor.”
F. America’s Benefit-Cost Approach to Environmental Regulation
One further explanation for the U.S. judiciary’s exceptionalism on environmental rights might be found in the relatively unique structure of American environmental law and regulations. In particular, American regulatory practice has developed around a law and economics approach to environmental protection that permits powerplants, mines, factories, and other entities to pollute (literally issuing these facilities permits) so long as the benefits to society of the economic activity exceed the emissions harms created by the enterprise. As Don Elliott and I explain, this net social benefits approach to pollution control—which builds on a Kaldor-Hicks economic efficiency logic (rather than a Pareto optimization that would require compensation to those suffering the pollution impacts)—results in significant unabated emissions in many instances. In privileging economic activities over environmental rights, this environmental policy framework could be read as a signal that America’s political branches have established a mechanism for balancing the competing interests discussed above and concluded that environmental rights should give way to economic growth and jobs as the priority. Such an observation might well lead U.S. judges to conclude that they should not take up cases that tread on this policy domain—particularly to the extent that the environmental arena is one of contested rights and divergent values.
IV. THE SUSTAINABILITY IMPERATIVE AND PATHWAYS TO SECURING U.S. ENVIRONMENTAL RIGHTS
Perhaps the most curious aspect of the recent environmental-rights-based climate change decisions across several federal and state courts is the broad recognition that the problem plaintiffs seek to address is both real and significant. The Juliana majority says, in particular: “There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change.” They further suggest that a more vigorous climate change policy response is “a matter of national survival.” Yet the court declines to act.
This paradox raises several important questions: Does the political dispute and ongoing contestation over environmental policy really justify the U.S. judiciary’s dodging of questions involving fundamental rights to a habitable environment? Is the judiciary’s restraint still justified if responding to climate change is seen as a matter of national survival? Or, to turn these questions around, what is the path forward that might allow environmental rights to be secured in the current U.S. political context? How might courts be positioned to respond to the threat posed by climate change and the need to put American society onto more sustainable footings?
In addressing these questions, the starting point must be the fact that climate science has established beyond any credible doubt the threat posed to humanity by the build-up of GHGs in the atmosphere. More generally, society has begun to recognize a sustainability imperative that derives from the ever-more-clear findings of ecosystems science, which suggest the need to restructure our economic activities to ensure that they do not create environmental impacts that transgress critical planetary boundaries in a manner that might destabilize the Earth systems on which all life depends.
Policy emphasis on sustainability is not new. A commitment to sustainable development that “meets the needs of the present without compromising the ability of future generations to meet their own needs” (the Brundtland Commission’s definition in the 1987 report, Our Common Future) has been a core commitment of the world community for decades and understood to require limits on pollution and natural resource depletion. The foundational importance of sustainability as a core principle for life in the twenty-first century has recently been reiterated with the adoption of the U.N. Sustainable Development Goals and the 2015 Paris Agreement on Climate Change, as well as the 2021 Glasgow Climate Pact, under which 197 nations (including the United States) committed to net-zero GHG emissions by mid-century.
I have argued elsewhere that sustainability (by its very definition) requires a changed foundation for business and our economic life centered on bringing an end to uninternalized environmental externalities. In this light, Part IV explores how environmental rights to a sustainable future might be established in the American political context.
A. Reading Positive Environmental Rights into U.S. Constitution
While the U.S. Constitution does not explicitly recognize environmental rights nor even rights to life or health, the Supreme Court has built upon the Due Process Clauses of the Fifth and Fourteenth Amendments a set of protections for fundamental interests of American citizens including the right to marry, maintain a family, and choose one’s own occupation. These fundamental rights have been judicially defined and as such “may not be submitted to vote; they depend on the outcome of no elections.” In citing these cases and the pathway by which these rights were recognized, the dissenting judge in the Juliana case observed that the judiciary need not stand by in the face of climate change and allow a “calamity.” Rather, courts could secure a fundamental right to a habitable environment in a similar fashion.
Finding constitutional space for new rights has been done in a variety of ways in other circumstances. For example, unenumerated rights can be found in the “penumbras” and “emanations” of the Bill of Rights as Justice Douglas observed in his Griswold v. Connecticut opinion that established a constitutional right to privacy. Although the Supreme Court is increasingly strict in gatekeeping the Due Process Clause through the “deeply rooted” test on which it has relied in recent cases, there may be significant foundations upon which to build upon in securing environmental rights. Notably, the Preamble to the Constitution declares the purpose of the document to be promotion of “the general welfare.” For a court ready to take up the challenge of combating climate change, this phrase offers a foundation for an assertion of rights to a habitable environment, especially in the face of the threat to humanity posed by climate change. The Constitution should also be read in light of the natural rights beliefs that undergirded the American Revolution and the intentions of the Founders as expressed in the Declaration of Independence with regard to inalienable rights to “Life, Liberty, and pursuit of Happiness” and the insistence that the “new Government” should be designed to “effect” the “Safety and Happiness” of the people—all of which could be read as requiring courts to secure the environmental rights needed to avoid catastrophic climate change or “implicit in the concept of ordered liberty.”
As Akhil Amar suggests, unenumerated rights can alternatively be discovered in the “lived practices and beliefs of the American people.” As an example, he cites Justice Harlan’s concurring opinion in Griswold as offering a better basis for inferring a right to privacy than the majority opinion provides. Amar adds that such unenumerated rights are most easily advanced when they align with other “canonical sources” such as the Declaration of Independence or state constitutions—factors that might well now argue for recognition of environmental rights. Moreover, the facts that (1) polling suggests that a very substantial majority of Americans now support a more comprehensive response to climate change; and (2) businesses of all sizes and across virtually all industries across America have adopted net-zero GHG emissions targets perhaps opens the way for U.S. courts to define the right to a habitable environmental as constitutionally protected—as made clear by the expectations and values of the people as expressed in both their daily and professional lives.
While there are solid constitutional foundations for securing environmental rights in America—especially for a judiciary that understands its obligation to act in the face of an overarching threat and inaction on the part of the political branches—political reality means a high hurdle must be overcome to get U.S. courts to recognize positive environmental rights.
B. Rights for Nature
Another path forward would be to heed Chris Stone’s call to give Nature legal personhood. But in the United States, the argument for extending legal rights to natural objects is seen by many as “radical” and has thus not gotten much traction—with one exception. In 2019, the citizens of Toledo, Ohio, voted to grant Lake Erie a “Bill of Rights,” which included “the right to exist, flourish, and naturally evolve.” But this initiative was quickly struck down in federal court, with the judge ruling that the proposed legal rights for the lake were unconstitutionally vague. The court asked, “What conduct infringes the right of Lake Erie and its watershed to ‘exist, flourish, and naturally evolve’?” It went on to say, “The line between clean and unclean, and between healthy and unhealthy, depends on who you ask.”
While the Toledo court was perhaps too quick to dismiss the idea of rights for Lake Erie, the revered environmental law professor Joseph Sax decades ago offered a logic for not trying to advance “rights for objects” as Stone proposed. In a review of the standing issues addressed in the Supreme Court’s Sierra Club v. Morton decision, Sax noted: “If Stone is saying only that we should take account of diffuse citizen interests not routinely represented,” then ascribing the rights to Nature is “verbal overkill.” What is really required, observed Sax, is “a more spacious view of the right of citizens” to ensure that courts take seriously the “risks of long-term, large scale practically irreversible disruptions to ecosystems”—thus specifying five decades ago the path forward that this Article seeks to advance.
As discussed in Part III, seven U.S. states have provisions that establish environmental rights in one form or another. Although these rights have not yet yielded promising outcomes for litigation to implement broad-based climate change policies, it may well be that vindication of these rights in state courts will provide a basis for mandating greater government action in the years ahead. State courts might also require a more vigorous climate change response by corporate entities, which could have implications more broadly across the national marketplace. If more states were to adopt New York’s recent example and adopt environmental rights constitutional amendments (a process that is much easier at the state level than the national one), this trend might be a further signal of changing values of the American people—therefore justifying the recognition of positive environmental rights by federal judges.
State experiences with rights to public education provide a theoretical, if incomplete, model of how an expansion of environmental rights might unfold driven by state leadership. In 1973, the Supreme Court held that education was not a fundamental right—and rejected claims brought regarding unequal funding of schools in Texas. But because many state constitutions provide a right to public education, state-court litigants have been successful in vindicating these rights—either by themselves or by linking the right to education with state-level equal protection analogs. As Professor Rob Klee has noted, it’s possible that this strategy could prove viable with environmental rights, as well.
Success at the state level could be critical to nudging federal courts to take similar action. Robinson Woodward-Burns observes that state constitutional change is “a steady, constant, quiet background process in American politics, the heretofore unnoticed channel for most American constitutional development.” He argues that “[n]ational outcomes attributed to the federal courts may instead be caused by state constitutional reform,” pointing out that prior to the Supreme Court’s decision in Harper v. Virginia Board of Elections, all but four states had already abolished poll taxes through constitutional amendments. Indeed, in the long tradition of ideas getting tested out in the laboratory of the states, it might well be that the state-level experience will demonstrate that environmental rights can be judicially managed—thus stripping away one of the core concerns federal judges have advanced for declining to take up cases where positive environmental rights are being asserted.
D. Establishing Negative Environmental Rights: End Uncompensated Pollution Spillovers
Rather than seeking to establish a broad-based right to a healthy or habitable environment, it might be easier within the U.S. constitutional framework to secure negative environmental rights—specifically a right not to be harmed by pollution. Requiring an end to pollution spillovers or full compensation for all harms from residual emissions (mandating, as economists would say, an end to uninternalized environmental externalities) would simply align America’s environmental law and policy framework with long-standing principles of the common law. Indeed, the right not to be harmed by pollution goes back at least four centuries in the Anglo-American legal tradition to the 1610 decision in Aldred’s Case, which established an English plaintiff’s cause of action against the stench from his neighbor’s pigs. And the government’s obligation to protect shared natural resources has an even longer history insofar as the origins of the public trust doctrine can be traced not only to old English law but also ultimately to Roman law before that.
1. Securing a Right to Be Free from Harmful Pollution
Establishing a right to be free from harmful pollution—to each of us as individuals and to the resources on which we depend for life—might be seen by American judges as more consistent with the negative rights tradition of the U.S. Constitution. This kind of negative right would be consistent with the widely accepted principle that people have affirmative duties not to harm others—a concept key to modern tort and property law. A duty not to harm others has been justified and explained by many scholars, including John Stuart Mill in On Liberty—in which he outlined the argument for a “harm principle”—and more recently by William David Ross.
Not only is such a conceptualization consistent with legal developments in the Anglo-American legal traditions, but the narrow frame of a right to be protected from damaging pollution impacts might also be seen as more judicially manageable and thus less of a worry with regard to the separation of powers and political question doctrines. As I have explained in some detail elsewhere, establishing such a right would not necessarily translate into no pollution. But an environmental rights framework that forbids uninternalized environmental externalities might require emissions reductions to the extent feasible—and full compensation to be paid for any residual harms.
A degree of scientific knowledge and expert analysis would still be required to determine which pollutants cause damage and at what scale—and thus what the harm charge for unabated pollution should be. While such calculations might require a redeployment of resources within the U.S. Environmental Protection Agency, the enormous base of epidemiological and ecological information that has been developed in recent decades along with advances in valuation methodologies makes the task manageable—especially if one excludes from the calculus de minimis levels of pollution that produce no real harm.
2. Horizontal Effect but Narrow Framing Consistent with Emerging American Norms
While a right to be free from harmful pollution would have a horizontal effect—establishing duties for private parties as well as the government—it would do so in the most constitutionally protected domain: the right of individuals to the sanctity of their person, their home, and the necessities of life. Framed as a right against harmful pollution intrusions, these negative environmental rights would be seen as offering a bright line that keeps courts clear of the polycentric problem of trying to engage in setting policy goals, allocating costs, or making tradeoffs.
Even more usefully, the idea that pollution spillovers should not be countenanced has already gained widespread support—and would be seen as consistent with emerging public expectations and business ethics. Evidence of this new reality can be seen, for instance, in the widespread adoption of net-zero GHG emissions targets. Not only have governments around the world—including the U.S. government—committed to net-zero emissions by 2050, but this target and timetable has cascaded to the business community where thousands of companies have made net-zero GHG pledges.
Growing public expectations of corporate transparency and reporting on sustainability performance more broadly has helped to reinforce the sustainability imperative framework. These new expectations around emissions disclosure reinforce corporate commitments to reduce pollution and end environmental externalities. Emissions disclosure, in turn, also provides the data needed to identify pollution spillovers that might be subject to legal action by a right to be free from harmful pollution. The finance world has added momentum to this trend with a growing number of investment advisors demanding expanded ESG (environmental, social, and governance) disclosures from the companies in their portfolios. Likewise, a sweeping array of Wall Street leaders and finance experts from around the world have declared their support for net-zero GHG emissions as a corporate target across all industries and for commitments to internalize externalities more generally.
In a similar vein, the Business Roundtable, a collection of 200 CEOs of America’s largest companies, has announced its support for full GHG pricing, which, if implemented, would effectively bring an end to uninternalized externalities in the climate change context. The Roundtable has also declared an end to the era of shareholder primacy (sometimes framed as the Friedman doctrine, which suggested that corporate leaders should seek to maximize the profits of their enterprises in any manner they could within the bounds of the law). Instead, these CEOs of the Business Roundtable have committed their companies to a mission of stakeholder responsibility in which companies have obligations beyond their owners to their customers, suppliers, employees, the communities in which they operate, and society as a whole (which would almost certainly include a duty not to inflict environmental harms on people or the planet). Simply put, private gain at public expense is increasingly seen as an inappropriate and unacceptable business model. Again, the emergence of what might be seen as a transformed base of business ethics makes a right to be free of uninternalized environmental externalities more of an incremental step than it might otherwise appear to be.
The momentum for net-zero GHG emissions and the broader movement away from a world where corporate pollution was seen as unavoidable has given way to a new reality where any company whose profitability depends on externalizing environmental costs faces ever greater scrutiny. Viewed cumulatively, these trends make clear the breadth of support for the new norm against uninternalized environmental externalities—making it ever easier for courts to adopt as a legal obligation what is already a pervasive business practice.
To draw the obvious conclusion: a right not to be polluted is not the same as having a right to a healthy environment. But the implication of a prohibition on harmful pollution spillovers is that individuals have environmental rights—albeit more narrowly defined. This backdoor into securing environmental rights in the United States might not be the full victory that some environmental advocates would have hoped for, but it is the most expedient path forward given America’s legal traditions and political realities.
CONCLUSION
Fifty years ago, Christopher Stone launched a debate about environmental rights—and opened a conversation that has not yet come to an end, at least in the United States. This Article does not purport to bring the discussion to a close, but it offers a direction that might be taken up to ensure that U.S. courts are positioned to play an appropriate judicial role in addressing the threat of climate change and putting America on a trajectory toward a sustainable future.
I believe that there is ample basis for concluding that environmental rights should be understood as an element of natural law—meaning, as Dinah Shelton proposes, that a narrowly crafted right to a safe and healthy environment should be recognized as an element of human rights and respected in all nations at all times. But to advance this agenda in the United States, the most promising path forward appears to me to be a focus in the federal context on securing negative environmental rights—defined concretely as a right not to be harmed by pollution. In advancing a right centered on enforcing an end to uninternalized environmental externalities, U.S. judges would be able to respond to climate change litigation and other sustainability-related cases in a thoughtful, serious, and tightly focused manner that steers clear of concerns about the separation of powers, the political question doctrine, and appropriate modes of effective judicial relief. Simply put, a narrowly constructed right to be free from harmful emissions would give pollution victims in America standing, which might just be enough to save the planet.
APPENDIX: ENVIRONMENTAL RIGHTS PROVISIONS BY COUNTRY
National Constitution |
International Treaty |
|
|
National Constitution |
International Treaty |
|
Afghanistan |
N |
N |
|
Liechtenstein |
N |
N |
Albania |
N |
Y |
|
Lithuania |
Yi |
Y |
Algeria |
Y |
Y |
|
Luxembourg |
N |
Y |
Andorra |
N |
N |
|
Madagascar |
N |
Y |
Angola |
Y |
Y |
|
Malawi |
Y |
Y |
Antigua and Barbuda |
N |
N |
|
Malaysia |
Yi |
N |
Argentina |
Y |
Y |
|
Maldives |
Y |
N |
Armenia |
N |
Y |
|
Mali |
Y |
Y |
Australia |
N |
N |
|
Malta |
N |
Y |
Austria |
N |
Y |
|
Marshall Islands |
N |
N |
Azerbaijan |
Y |
Y |
|
Mauritania |
Y |
Y |
Bahamas |
N |
N |
|
Mauritius |
N |
Y |
Bahrain |
N |
Y |
|
Mexico |
Y |
Y |
Bangladesh |
Yi |
N |
|
Micronesia (Federated States of) |
N |
N |
Barbados |
N |
N |
|
Monaco |
N |
N |
Belarus |
Y |
Y |
|
Mongolia |
Y |
N |
Belgium |
Y |
Y |
|
Montenegro |
Y |
Y |
Belize |
N |
N |
|
Morocco |
Y |
N |
Benin |
Y |
Y |
|
Mozambique |
Y |
Y |
Bhutan |
N |
N |
|
Myanmar |
N |
N |
Bolivia (Plurinational State of) |
Y |
Y |
|
Namibia |
Yi |
Y |
Bosnia and Herzegovina |
N |
Y |
|
Nauru |
N |
N |
Botswana |
N |
Y |
|
Nepal |
Y |
N |
Brazil |
Y |
Y |
|
Netherlands |
N |
Y |
Brunei Darussalam |
N |
N |
|
New Zealand |
N |
N |
Bulgaria |
Y |
Y |
|
Nicaragua |
Y |
Y |
Burkina Faso |
Y |
Y |
|
Niger |
Y |
Y |
Burundi |
Y |
Y |
|
Nigeria |
Yi |
Y |
Cambodia |
N |
N |
|
North Macedonia |
Y |
Y |
Cabo Verde |
Y |
Y |
|
Norway |
Y |
Y |
Cameroon |
Y |
Y |
|
Oman |
N |
N |
Canada |
N |
N |
|
Pakistan |
Yi |
N |
Central African Republic |
Y |
Y |
|
Palau |
N |
N |
Chad |
Y |
Y |
|
Panama |
Yi |
Y |
Chile |
Y |
N |
|
Papua New Guinea |
N |
N |
China |
N |
N |
|
Paraguay |
Y |
Y |
Colombia |
Y |
Y |
|
Peru |
Y |
Y |
Comoros |
Y |
Y |
|
Philippines |
Y |
N |
Congo |
Y |
Y |
|
Poland |
N |
Y |
Costa Rica |
Y |
Y |
|
Portugal |
Y |
Y |
Cote d’Ivoire |
Y |
Y |
|
Qatar |
N |
Y |
Croatia |
Y |
Y |
|
Republic of Korea |
Y |
N |
Cuba |
Y |
N |
|
Republic of Moldova |
Y |
Y |
Cyprus |
Yi |
Y |
|
Romania |
Y |
Y |
Czechia |
Y |
Y |
|
Russian Federation |
Y |
N |
Democratic People’s Republic of Korea |
N |
N |
|
Rwanda |
Y |
Y |
Democratic Republic of the Congo |
Y |
Y |
|
Saint Kitts and Nevis |
N |
Y |
Denmark |
N |
Y |
|
Saint Lucia |
N |
N |
Djibouti |
N |
Y |
|
Saint Vincent and the Grenadines |
N |
Y |
Dominica |
N |
N |
|
Samoa |
N |
N |
Dominican Republic |
Y |
N |
|
San Marino |
N |
N |
Ecuador |
Y |
Y |
|
Sao Tome and Principe |
Y |
Y |
Egypt |
Y |
Y |
|
Saudi Arabia |
N |
Y |
El Salvador |
Yi |
Y |
|
Senegal |
Y |
Y |
Equatorial Guinea |
N |
Y |
|
Serbia |
Y |
Y |
Eritrea |
N |
Y |
|
Seychelles |
Y |
Y |
Estonia |
Yi |
Y |
|
Sierra Leone |
N |
Y |
Eswatini |
N |
Y |
|
Singapore |
N |
N |
Ethiopia |
Y |
Y |
|
Slovakia |
Y |
Y |
Fiji |
Y |
N |
|
Slovenia |
Y |
Y |
Finland |
Y |
Y |
|
Solomon Islands |
N |
N |
France |
Y |
Y |
|
Somalia |
Y |
Y |
Gabon |
Y |
Y |
|
South Africa |
Y |
Y |
Gambia |
N |
Y |
|
South Sudan |
Y |
N |
Georgia |
Y |
Y |
|
Spain |
Y |
Y |
Germany |
Yi |
Y |
|
Sri Lanka |
Yi |
N |
Ghana |
Yi |
Y |
|
Sudan |
Y |
Y |
Greece |
Y |
Y |
|
Suriname |
N |
Y |
Grenada |
N |
N |
|
Sweden |
N |
Y |
Guatemala |
Yi |
Y |
|
Switzerland |
N |
Y |
Guinea |
Y |
Y |
|
Syrian Arab Republic |
N |
Y |
Guinea-Bissau |
N |
Y |
|
Tajikistan |
N |
Y |
Guyana |
Y |
Y |
|
Thailand |
Y |
N |
Haiti |
N |
N |
|
Timor-Leste |
Y |
N |
Honduras |
Y |
Y |
|
Togo |
Y |
Y |
Hungary |
Y |
Y |
|
Tonga |
N |
N |
Iceland |
N |
Y |
|
Trinidad and Tobago |
N |
N |
India |
Yi |
N |
|
Tunisia |
Y |
Y |
Indonesia |
Y |
N |
|
Turkey |
Y |
N |
Iran |
Y |
N |
|
Turkmenistan |
Y |
Y |
Iraq |
Y |
Y |
|
Tuvalu |
N |
N |
Ireland |
Yi |
Y |
|
Uganda |
Y |
Y |
Israel |
N |
N |
|
Ukraine |
Y |
Y |
Italy |
Yi |
Y |
|
United Arab Emirates |
N |
Y |
Jamaica |
Y |
N |
|
United Kingdom of Great Britain and Northern Ireland |
N |
N |
Japan |
N |
N |
|
United Republic of Tanzania |
Yi |
Y |
Jordan |
N |
Y |
|
United States of America |
N |
N |
Kazakhstan |
N |
Y |
|
Uruguay |
N |
Y |
Kenya |
Y |
Y |
|
Uzbekistan |
N |
N |
Kiribati |
N |
N |
|
Vanuatu |
N |
N |
Kuwait |
N |
Y |
|
Venezuela |
Y |
N |
Kyrgyzstan |
Y |
Y |
|
Vietnam |
Y |
N |
Lao People’s Democratic Republic |
N |
N |
|
Yemen |
N |
Y |
Latvia |
Y |
Y |
|
Zambia |
N |
Y |
Lebanon |
N |
Y |
|
Zimbabwe |
Y |
Y |
Lesotho |
N |
Y |
|
TOTAL |
110 |
126 |
Liberia |
Yi |
Y |
|
|
|
|
Libya |
N |
Y |
|
|
|
|
* Yi indicates implicit constitutional language. Adapted from Boyd et al., supra note 43, at 50–55.
95 S. Cal. L. Rev. 1345
* Hillhouse Professor of Environmental Law and Policy, Yale Law School and Yale School of the Environment. The author thanks Andrew Follett, Isabella Soparkar, Kirsten Williams, Zack Steigerwald Schnall, Jan-Baptist Lemaire, and Sara Gomez for their research assistance—and Professors Don Elliott and Quinn Yeargain for conversations that helped to shape the argument presented.
Standing for Rivers, Mountains—and Trees—in the Anthropocene
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
95 S. Cal. L. Rev. 1469
* Professor of Law, University of California Hastings College of the Law, San Francisco. J.D., University of California Hastings College of the Law; LL.M., University of London, School of Oriental & African Studies; B.S. (Biology), M.A. (History & Philosophy of Science), & Ph.D. (Science & Technology Studies), Cornell University. I may be reached at takacsd@uchastings.edu. I thank the people who took the time to speak with me about this project: Gerrard Albert, Christopher Finlayson, Ian Hicks, Michelle Maloney, Erin O’Donnell, Claudia Orange, Jorge Iván Palacio, and Anne Poelina. For intellectual contributions, I also thank Hadar Aviram, Larry Carbone, Ming Chin, James May, Michelle Maloney, Dave Owen, Michael Pappas, Zach Price, Reuel Schiller, Linda Sheehan, Jodi Short, Michael Pappas’ Online Workshop for Environmental Scholarship, and the Green Bag group at the University of Tasmania Law School. Final thanks to the excellent editors at the Southern California Law Review.
Fish, Whales, and a Blue Ethics for the Anthropocene: How Do We Think About the Last Wild Food in the Twenty-First Century
One of the lesser celebrated threads of Christopher Stone’s scholarship was his interest in the ocean—especially international fisheries and whaling. Fish and whales are among the “last wild food”—that is, species that humans take directly from the wild for food purposes. While whales are primarily cultural food, fisheries remain important contributors to the human diet globally. Indeed, the food security issues surrounding marine foods are increasingly being recognized as an important international and domestic component of human well-being and equity. These concerns helped to spur the fall 2021 launch of the Blue Foods movement and the conscious incorporation of aquatic foods into the pursuit of the United Nations’ sustainable development goals.
At the same time, changes in the ocean resulting from climate change and other anthropogenic forces are making the commercial harvest of marine wild foods increasingly unsustainable, simultaneously undermining ocean ecosystem function, marine biodiversity, and human food security. Humanity’s continued engagement in industrial-scale commercial marine fisheries is thus both factually uncertain and ethically suspect.
This Article explores the multilayered ethical issues surrounding Blue Foods in the Anthropocene, drawing from Stone’s work in environmental ethics and “Moral Pluralism.” Finding a balance between protecting the world’s marine ecosystems and appropriately promoting the ocean’s contribution to global food security remains an important policy challenge for the twenty-first century, but it is one that nations can meet by privileging indigenous and local fisheries while simultaneously carefully expanding the more environmentally benign forms of marine aquaculture, particularly shellfish and kelp aquaculture.
Food security is a global issue garnering increasing attention from academics and policymakers alike. For example, Martin Barry Cole, Mary Ann Augustin, Michael John Robertson, and John Michael Manners noted that “[f]eeding the world sustainably is one of our society’s grand challenges” and that “[i]n 2050, it is estimated there will be 9.7 billion people, and we will require about 70% more food available for human consumption than is consumed today.” After a period of improvement, global food insecurity is increasing, exacerbated over the last two years by the coronavirus pandemic and attending economic stress. According to the United Nations Food & Agriculture Organization’s (“FAO”) 2021 food security report, “Nearly 2.37 billion people did not have access to adequate food in 2020—an increase of 320 million people in just one year”; 720 to 811 million people faced actual hunger in 2020. Among other impacts, the pandemic exposed “the fragility of our food systems,” with the result that 30 million more people will likely be dealing with hunger in 2030 than if the pandemic had not occurred. Impacts have been worst in Asia and Africa and among children. “[B]old actions” are needed to achieve the goal of eradicating world hunger by 2030, prompting the FAO to offer both a pragmatic and an ethical vision of future food systems. In its summary, food systems “need to provide decent livelihoods for the people who work within them,” “need to be inclusive and encourage the full participation of Indigenous Peoples, women and youth,” and need to “ensure that children are no longer deprived of their right to nutrition.”
The recognition that achieving food security has an ethical dimension, while not new, has gained force over the last decade, in part because of increasing acknowledgement that food insecurity derives from multiple drivers, many of which require redress of larger social inequities. Over the last five years, for example, the FAO has documented that “[c]onflict, climate variability and extremes, and economic slowdowns and downturns (now exacerbated by the COVID-19 pandemic) are behind recent rises in hunger and slowing progress in reducing all forms of malnutrition,” while “high and persistent levels of inequality” and inability to pay for healthy food exacerbate these drivers. For example, “More than half of the people who are undernourished and almost 80 percent of stunted children live in countries struggling with some form of conflict, violence or fragility.” As for climate, “Hunger is significantly worse in countries with agri-food systems highly sensitive to rainfall and temperature variability and extremes, and where a high proportion of the population depends on agriculture for livelihoods.” Economic insecurity leads to multiple negative impacts on food security and nutrition, including increased hunger, consumption of cheaper but less nutritious foods, reduced nutrition, and food insecurity. Finally, healthy diets are often not the cheapest diets, and “[t]he unaffordability of healthy diets . . . is associated with increasing food insecurity and all forms of malnutrition, including stunting, wasting, overweight and obesity.” Given these multiple drivers and influences, the FAO identified six combinable pathways toward ethical, sustainable, and resilient food systems.
Pathway 6—strengthening food environments and changing consumer behavior to promote the environment as well as human health—is the most relevant to both Christopher Stone’s vision of an “Earth Ethics” and this Article’s pursuit of a “Blue Ethics.” By “Blue Ethics,” this Article refers to how we think about and modify human use of the ocean in the twenty-first century in order to keep ocean ecosystems resilient to the Anthropocene while still meeting critical human needs. Among the most pivotal of humans’ uses of the ocean in terms of promoting a new Blue Ethics is food supply.
What the FAO’s food security report largely left to one side is foods from the ocean and other aquatic systems, now dubbed Blue Foods. That elision is not unusual; the oceanic component of human food supply is often left out of food security discussions, including the ethical dimensions of food security. This Article seeks to begin filling that near void by sketching an ethical path forward for humanity’s continued dependence on Blue Foods.
This Article proceeds in four parts. Part I details humanity’s continued reliance on the ocean for food. Part II explores the issue of whether humanity should continue to engage in wild-caught fisheries, sketching out a Blue Ethics at the same time. Part III establishes that attitudes toward the ocean and its importance are already changing in ways that support a Blue Ethics, while Part IV concludes by arguing that humans can pursue Blues Ethics and Blue Food security simultaneously through a measured and careful investment in marine aquaculture.
I. Human Food Security and Blue Foods
As the FAO is well aware, marine foods are a significant part of the global food security equation. Worldwide, total consumption of food fish has increased at a rate almost double the rate of human population growth and about 50% faster than the increasing rate of consumption of other animal protein. Indeed, “In 2017, fish consumption accounted for 17 percent of the global population’s intake of animal proteins, and 7 percent of all proteins consumed.” Around the world, 3.3 billion people consume 20% of their animal protein in the form of fish, and that number can reach “50 percent or more in countries such as Bangladesh, Cambodia, the Gambia, Ghana, Indonesia, Sierra Leone, Sri Lanka and several small island developing States (SIDS).”
Importantly, despite the increase in aquaculture globally, wild capture fisheries still outstrip Blue Food production in aquaculture, particularly with respect to marine fish. In 2018, the latest year for which global data are available, freshwater and marine wild capture fisheries together produced 96.4 million tonnes of fish, seafood, and algae, while freshwater and marine aquaculture produced 82.1 million tonnes. The shares from the ocean, in contrast, were 84.4 million tonnes and 30.8 million tonnes, respectively. In other words, almost three-quarters of the human food taken from the ocean still comes from wild-caught fisheries. These marine fisheries mostly target fish. Indeed, “Finfish represent[] 85 percent of total production” in wild capture fisheries, with anchoveta, Alaska pollock, and skipjack tuna leading the lists of species caught. Seven countries account for almost 50% of this wild harvest: China (15%), Indonesia (7%), Peru (7%), India (6%), the Russian Federation (5%), the United States (5%), and Viet Nam (3%).
Of potential relevance to the ethics of fishing, much of this wild Blue Food is not of particularly high value. Indeed, three of the four most valuable wild-caught groups of species—cephalopods (octopus and squid), shrimps, and lobsters—are not finfish. The most valuable group of finfish species, perhaps not surprisingly, is tuna.
Given humanity’s dependence on Blue Foods, when the FAO noted in 2020 that “as we approach a world of 10 billion people, we face the fact that since 2015 the numbers of undernourished and malnourished people have been growing,” it also emphasized that capture fisheries and especially aquaculture will play a “crucial role in global food security.” However, most other food security researchers and food policymakers ignore the ocean, instead focusing on land-based crops and livestock. For example, Alexander Y. Prosekov and Svetlana A. Ivanova discuss food security in terms of “[g]rain and cereals, vegetable and animal fats, and meat and dairy products.” Other researchers focus solely on agriculture and crops. As such, the role of Blue Foods in global food security remains an underacknowledged issue for law, policy, and ethics.
Nevertheless, the world’s dependence on marine foods raises real, if underappreciated, food security concerns. Simultaneously, however, the continued dependence on wild-caught fisheries also raises several ethical concerns, particularly in terms of preserving and enhancing marine biodiversity and the resilience of ocean ecosystems to climate change and other anthropogenic stressors. Part II will explore these concerns in more detail.
II. Blue Ethics and Wild Capture Fisheries: Should We Keep Fishing the Ocean?
Commercial exploitation of wild fisheries stocks in the ocean has plateaued, despite increased fishing effort, raising important ethical questions about the continued pursuit of these wild foods. The desire for a more ethical path forward regarding humanity’s dependence on ocean food gave birth to the Blue Food Assessment, an emerging movement seeking to ensure that all food policies, including the environmental and climate policies surrounding food, take account of the importance and potential benefits of aquatic foods—fish and shellfish, both marine and freshwater, together with more culturally specific aquatic delicacies such as kelp and sea cucumber.
The Blue Food Assessment launched September 16, 2021. It focuses on using aquatic foods to help bring about the transformation of the global food system to end hunger while increasing sustainability. As its report announces:
There is growing recognition that food systems must be transformed—that achieving the U.N. Sustainable Development Goals (SDGs) requires shifting toward a system that is more diverse, resilient and just, as well as healthier. “Blue foods”—foods derived from aquatic animals, plants and algae cultivated and captured in freshwater and marine environments—have much to offer in that transformation.
Like the FAO, therefore, the Blue Food Assessment seeks to promote a
new ethical approach to food security as well as more comprehensive food management policies and assessments. For example, one of its key
platforms is the need to “[c]ommit to human rights in policy and practice— . . . empowering in every part of the food value chain women, Indigenous groups, marginalized communities and youth.”
Another goal of the Blue Food movement is to consider the impact of Blue Food harvest on the environment itself—a critical component of Blue Ethics. As such, an ethical approach to Blue Foods must start by considering what industrial-scale commercial fishing of wild marine species does both to those species and to their attendant ecosystems.
A. The Current Harvest of Wild Marine Species Is Unsustainable
The FAO maintains the most reliable and comprehensive sets of data about how the world supplies itself with aquatic food, and roughly every two years it publishes a State of the World Fisheries and Aquaculture report. According to the 2020 report, in 2018 the world produced (from all sources, including fishing and freshwater aquaculture) about 179 million tonnes of fish, crustaceans like crab and lobster, mollusks like clams and oysters, and other aquatic animals, worth $401 billion. Of that total harvest, 156 million tonnes, or over 87%, were used for human food.
The world’s taste for fish and seafood, however, comes at a cost. Wild capture fisheries in the ocean leveled off in the late 1980s and 1990s. Moreover, wild marine fisheries are becoming increasingly unsustainable:
The state of marine fishery resources, based on FAO’s long-term monitoring of assessed marine fish stocks, has continued to decline. The proportion of fish stocks that are within biologically sustainable levels decreased from 90 percent in 1974 to 65.8 percent in 2017 (a 1.1 percent decrease since 2015), with 59.6 percent classified as being maximally sustainably fished stocks and 6.2 percent underfished stocks. The maximally sustainably fished stocks decreased from 1974 to 1989, and then increased to 59.6 percent in 2017, partly reflecting improved implementation of management measures. In contrast, the percentage of stocks fished at biologically unsustainable levels increased from 10 percent in 1974 to 34.2 percent in 2017. In terms of landings, it is estimated that 78.7 percent of current marine fish landings come from biologically sustainable stocks.
Not coincidentally, marine aquaculture industries have been growing rapidly since 1986 to close the gap in global seafood demand.
Christopher Stone provided as succinct a summary as anyone of the perils facing the ocean:
The oceans—over 70% of the planet’s surface—are in trouble. The omens are everywhere. Marine catches have stagnated in almost every region, even in the face of intensified harvest efforts. The wetlands and coastal nurseries vital to maintain the stocks are vanishing under the pressures of commercial development and a siege of sewage and waste. We are dousing the seas with chemicals, and seasoning them with millions of tons of stubbornly persistent litter. Periodic red tides, kelp and coral afflictions, and major die-offs of marine mammals such as harbour seals and dolphins, may be early warning signs of worse to come.
The succeeding two decades since his summary have made clear that the “worse to come” is climate change and its “evil twin,” ocean acidification, which are wreaking havoc on marine ecosystems. In particular, ocean warming is driving marine species poleward, but not at uniform rates, disrupting marine food webs and shifting the concentrations of increasing numbers of important fisheries across management boundaries.
These current and future changes to the ocean resulting from climate change and ocean acidification will only exacerbate the global insecurity of wild-caught marine fisheries. From a global perspective, the Intergovernmental Panel on Climate Change (“IPCC”) concluded in 2019 that, already, “[c]hanges in the ocean have impacted marine ecosystems and ecosystem services with regionally diverse outcomes, challenging their governance (high confidence).” While, at the moment, these changes are both enhancing and undermining food security, depending on the exact community involved, the impacts on ecosystem services already “have negative consequences for health and well-being (medium confidence), and for Indigenous peoples and local communities dependent on fisheries (high confidence).”
For example, coral reef ecosystems produce critical fisheries for island peoples, but they are increasingly vulnerable to both increasing temperatures and ocean acidification. In addition, increasing ocean temperatures are already causing many marine species to shift their ranges—and those range shifts are already complicating fisheries management. For example, a 2018 study of 686 marine species indicated that species along the Pacific Coast of North America could shift ranges as much as 1,500 kilometers (more than 930 miles), while those on the Atlantic Coast could shift more than 600 kilometers (more than 370 miles). As the researchers noted, “In the United States, fisheries are managed regionally, including species that are managed by individual states and federally managed fisheries that are governed by regional councils with representatives from neighboring states,” and their projected range shifts are more than sufficient to move commercially important fish stocks across regulatory jurisdictions within the United States, from the United States to Canada, from Mexico to the United States, and, on the Pacific Coast, from Canada to the United States and Alaska. Other management challenges include “shifts in fishing locations, conflict over regional allocation of fisheries quota, displaced fisherman, and changes in stock boundaries.”
Future changes to the ocean, including species migration and food web simplification, pose even greater threats to global food security, fisheries governance, and even national security—including for the United States. Moreover, the decreasing supplies of seafood are also likely to be less safe because of elevated concentrations of mercury and other toxics in marine plants and animals and increasing contamination, especially of shellfish, by both Vibrio pathogens (the family of bacteria that include cholera and the flesh-eating Vibrio vulnificus) and harmful algal blooms like red tides. “These risks are projected to be particularly large for human communities with high consumption of seafood, including coastal Indigenous communities (medium confidence), and for economic sectors such as fisheries, aquaculture, and tourism (high confidence).” In addition, while climate-adaptive management can in some circumstances delay the collapse of fisheries, tipping points are still likely at about 2.0°C of warming.
Thus, in light of overexploited fisheries and worsening impacts from climate change and ocean acidification, enlightened self-interest alone counsels humanity to reconsider its current reliance on wild-caught Blue Foods and commercial marine fisheries. Blue Ethics adds the additional consideration of preserving marine biodiversity and increasing the resilience of marine ecosystems.
B. Blue Ethics: From Food to Ecosystems and Biodiversity
Enlightened self-interest only goes so far toward increasing the planet’s chances of retaining high levels of marine biodiversity and functional ocean ecosystems. As Christopher Stone noted repeatedly, getting courts and legislatures to protect these values can be difficult, leading him to propose that natural objects and places—like the Mineral King Valley in California—should have standing to represent their own interests in court. While the U.S. Supreme Court disagreed, the problem of protecting larger natural values remained, a problem Stone found particularly vexing for whales:
[A]s long as the judges . . . remain within the bounds of conventional international and U.S. legal principles, with no accounting for invasion of the whales’ interests, the “harvesting” will continue. An argument truly on behalf of the whales has as its starting point not the sanctity of treaties and regard for “political questions,” but respect for whales.
To account for the value of whales (and trees and mountains and functional ecosystems), he eschewed “Moral Monism”—the positing of one theory of ethics, such as utilitarianism, to resolve all ethical dilemmas—in favor of Moral Pluralism. Moral Pluralism
invites us to conceive moral activities as partitioned into several distinct frameworks, each governed by distinct principles and logical texture. We do not try to force the analysis of good character into the same framework as for good acts; nor are our obligations to the spatially and temporally remote subject to exactly the same rules that relate us to our kin, on the one hand, or to species, on the other.
From this pluralistic framework, whales and other natural entities are entitled to moral considerateness even if they are not legal persons, such that “killing a whale is prima facie wrong: one is obligated in a fairly strong sense not to do so.”
However, as Stone immediately noted, the strength of that obligation can vary by the exact moral context from which we evaluate the issue, and the Inupiat occupy a different moral framework with respect to whales than a twenty-first-century Angelina who teaches at the University of Southern California (and who has absolutely no interest in eating whale meat, it should be emphasized). Expanding on Stone’s point, the Inupiat’s moral duty to the whale may be not to waste whales, or, as was true of the Makah Tribe in the U.S. Pacific Northwest, to forebear whale hunts for cultural purposes when other food is sufficient and the whale species in question is endangered. Conversely, increasing numbers of studies confirm that one key to both food security and better health for indigenous communities is access to traditional foods—including Blue Foods and, when culturally and ecologically appropriate, even whales.
Moral Pluralism thus allows for a Blue Ethics that takes multiple values into account simultaneously while still demanding a moral conversation about humans’ uses of the ocean that goes beyond mere human utility. Applying this Blue Ethics to Blue Foods, if one method of getting the Blue Foods essential to human food security imperils marine biodiversity and ocean ecosystems, while another available method not only avoids those impacts but also contributes to the ocean’s resilience to climate change and other stressors, the choice between these two Blue Food security pathways is not an amoral one. As with Stone’s example of killing whales, a Blue Ethics for the twenty-first century must posit that the first path—specifically, the continued reliance on industrial-scale commercial wild-caught fisheries—is simply “prima facie wrong,” and “one is obligated in a fairly strong sense” to switch to the second pathway to achieve Blue Food security.
C. Marine Biodiversity Is at Risk—and the Primary Legal Tool to Protect Marine Biodiversity Conflicts with Fishing
1. Overfishing Is a Threat to Marine Biodiversity
Fishing clearly has an impact on the species caught, and multiple case studies—perhaps most famously, the collapse of the cod fishery in Canada—have documented how overfishing can semi-permanently render the target species commercially extinct. However, ecosystem and biodiversity impacts extend beyond the fished species, in part because fishers initially target the largest members of the largest species, effectively removing apex predators from marine ecosystems. As a result, wild-caught marine fisheries at commercial scale have also pervasively altered marine ecosystem function and ocean biodiversity. Indeed, in 2001 a large group of marine biologist luminaries concluded that “[e]cological extinction caused by overfishing precedes all other pervasive human disturbance to coastal ecosystems, including pollution, degradation of water quality, and anthropogenic climate change.” Moreover, “Any fishing tends to alter biodiversity at some or all of its levels, from genes to ecosystems,” and the “fishing . . . of the largest animals results in alteration of age structure, population size, relative abundance of predators and prey, food webs, and ecosystems.”
Thus, overfishing has long been considered a primary threat to marine biodiversity and ecosystem function, and “since the advent of industrial fishing . . . the sequential depletion of coastal, then offshore populations of marine fish has become the standard operating procedure.” Indeed, a whole vocabulary has developed to describe these impacts. “Ecological extinction” is the elimination of a species’ ability to function as it should in an ecosystem, even if it is not entirely biologically extinct. “Fishing down marine food webs” describes how fishers move from the most desirable fish to lower trophic levels—for example, from apex predators like tuna and swordfish to herring—as they exhaust the initial target species. “Bycatch,” in turn, encapsulates the incidental catch of nontarget species, such as marine mammals, turtles, and seabirds, and “[f]isheries bycatch has been implicated as an important factor in many population declines, including Pacific loggerhead . . . and leatherback . . . sea turtles, North Atlantic harbor porpoises . . . , vaquita . . . in the Sea of Cortez, Mediterranean striped dolphins . . . , the wandering albatross . . . and white-chinned petrel . . . of the Southern Ocean.” Finally, Daniel Pauly coined “shifting baseline syndrome” to describe how each generation of fishers accepts an increasingly impoverished ocean as normal.
2. Climate Changes and Ocean Acidification Are Also Significant Threats to Marine Biodiversity
Fishing is no longer the only primary threat to marine biodiversity; climate change has become its equal. A 2015 meta-analysis of 632 peer-reviewed studies related to ocean biodiversity concluded that warming ocean waters will likely increase primary production in the ocean (phytoplankton growth) while simultaneously disrupting marine ecosystems overall and starving both herbivores and carnivores farther up marine food chains. Although specific results will likely vary by location, in general,
We find that ocean warming and acidification increase the potential for an overall simplification of ecosystem structure and function, with reduced energy flow among trophic levels with little scope for acclimation. Ocean acidification per se appears to have the potential to bring penetrating modifications to ecological systems through changes in ecosystem processes and shifts in species community structures.
Similarly, the United Nations’ May 2019 biodiversity report concluded that “almost 33% of reef-forming corals and more than a third of all marine mammals are threatened” with extinction, and the planet has already lost about 30% of seagrass meadows and 50% of coral reefs—two highly productive marine habitats—since 1970 and 1870, respectively. By the end of the century on the current trajectory, primary production in the ocean could decrease by 10% and total fish biomass by 25%.
The IPCC concurs that, by 2100, we likely will not recognize the world’s ocean. Even under a low emissions scenario, ocean heat waves will likely occur twenty times more often than they do now; under a business-as-usual scenario, they will likely occur fifty times more often. Most coastal ecosystems, including kelp forests, sea grass meadows, and salt marshes, face an increasing risk of destruction as a result of this heat, ocean acidification, and sea-level rise. By mid-century, on our current trajectory, oxygen loss will occur to depths of 600 meters (almost 1970 feet) in 59% to 80% of the ocean. Extreme sea-level events that used to occur once per century will be occurring once a year by 2050 in many locations, especially the tropics, and the rate of global average sea level rise will continue to accelerate to centimeters per year. By the end of the twenty-first century, again assuming business as usual, 60% of the ocean will be experiencing all five of the IPCC’s drivers of ecosystem change—surface warming, acidification, oxygen loss, nitrate pollution, and change in net primary production (growth of marine plants and zooplankton).
3. Protecting Marine Biodiversity Leads to Fisheries Conflicts
Between climate change and fishing, fishing is by far the easier anthropogenic stressor to ocean ecosystems to control immediately through regulation. The primary legal tool for protecting marine biodiversity and promoting the marine resilience are marine protected areas (“MPAs”). MPAs legally set aside a specific area of the ocean and restrict at least some uses of that area. The most protective MPAs, generally referred to as marine reserves, significantly restrict or prohibit all resource extraction from the area—especially fishing.
As such, MPAs and especially marine reserves often impose tradeoffs on coastal communities: the health of local biodiversity, and often of the local fisheries themselves, may depend on leaving large swaths of the ocean unfished. In this classic environmental law conflict between short-term economic gain and longer-term ecological (and often economic and personal) health, time after time, existing fishers protest the creation of these areas. For example, virtually no marine reserve created for biodiversity purposes has come into existence in the United States without significant opposition, often from fishers or indigenous groups. These conflicts manifest as political machinations, litigation, or lengthy negotiations and collaborations. Nevertheless, however they arise legally, they evidence some of the practical difficulties of balancing Blue Food security with ocean health.
D. Nevertheless, Blue Ethics Requires Recognition that Not All Fisheries Are Equal
As already hinted at with respect to indigenous whaling, the Blue Ethics assessment, based on Moral Pluralism, shifts frameworks when the focus moves from reducing or eliminating large-scale commercial fishing to regulating indigenous, local community (subsistence), or artisanal fishing. While the terminology is fluid, these types of fisheries are usually much smaller in scale than even small-scale commercial fisheries, generally have fewer impacts on marine ecosystem function, provide food and economic security to communities that often have few other resources, and often are deeply ingrained into local and traditional culture. They also employ a much higher proportion of women than industrial fisheries.
To be sure, these smaller-scale fisheries are not all the same in terms of their cultural and food security importance, nor does a twenty-first-century Blue Ethics require that all existing small-scale fisheries continue unaltered. The point, rather, is that not all fisheries important to food security operate at an industrial scale, and the Blue Ethics frameworks for evaluating their continuing morality may be different.
As one example, a context of redressing the harms of colonialism may require a different framework for assessing the morality of a marine reserve. The Māori of New Zealand, for example, have strong traditions in both fishing and coastal management, and much of the early reconciliation focus and implementation of the Treaty of Waitangi in New Zealand focused on the redistribution of fishing rights. Nevertheless, New Zealand’s impulses toward reconciliation clashed with its desires to protect the Kermadec Islands, “one of the most pristine and unique places on the planet,” located halfway between New Zealand and Tonga. Christopher Finlayson, a former member of the New Zealand Parliament who was instrumental in according the Whanganui River personhood rights and Māori co-management, notes that “[t]he legislation to give effect to the Sanctuary is still stalled in the New Zealand Parliament because of objections of the indigenous people of New Zealand (The Māori) who say that the proposal will breach a historic settlement reached with them in 1992.” Specifically, “The complaint of Māori about the Kermadecs is that if the Crown can unilaterally alter the system it entered into as a condition of the Fisheries Settlements of 1989 and 1992, it has the capacity to alter any Treaty Settlements on its own political whim. That could undermine the entire historical settlement framework.” As a result, he concludes, national efforts to protect marine ecosystems from overfishing “depend[] on the circumstances and in particular the history, the expectations of the indigenous people, and the relevant legal framework.”
Similar conflicts are occurring in the United States in Hawai’i, where marine reserve establishment threatens subsistence fishing and privileges (or at least appears to privilege) the non-indigenous tourist sector. As a result, Native Hawaiian fishers on the Big Island of Hawai’i protested on these grounds “the establishment of the Ka’ūpūlehu Marine Reserve, the island’s first initiative to put a reef off-limits to fishing,” which sought to impose a ten-year moratorium on all taking of fish while a subsistence plan was being drafted for Ka’ūpūlehu Bay coastline.
At the same time, it is important to emphasize that the Moral Pluralism underlying Blue Ethics is not moral relativism. As Stone elaborated, “Pluralism conceives the realm of morals to be partitioned into several planes. The planes are intellectual frameworks that support the analysis and solution of particular moral problems, roughly in the way that algebra and geometry provide frameworks for the problems to which they are respectively suited.” Concrete examples will help to illustrate the difference.
Moral relativism evaluates the morality of a given action or decision according to the ethical framework of the actor. Under this approach, the morality of hunting whales varies according to the ethics of each group proposing to hunt them. Notably, even under moral relativism it is fairly simple to conclude that the Makah Tribe acts ethically when its members hunt non-endangered eastern gray whales, but the nations that are signatories to the International Whaling Convention and who voted for its commercial whaling moratorium act unethically when they authorize their non-indigenous citizens to kill whales to sell. The different ethical rules that the Makah and signatory nations impose upon themselves still mandate different answers to the question: Is it ethical to kill a whale?
A Blue Ethics based on Moral Pluralism, however, identifies different ethical frameworks independently of what individuals or specific groups believe. With respect to Blue Foods, for example, three of the relevant frameworks might be Mass Production of Seafood for Global Trade, Blue Foods as Cultural Preservation, and Indigenous Subsistence Fishing. Within the first framework, the moral considerateness of both whales and marine ecosystems is particularly strong, such that killing whales is prima facie wrong and large-scale capture fisheries become ethically suspect because of their impacts on marine biodiversity. Within the second framework, which encompasses the Makah Nation’s whale hunt, the moral considerateness of the whales is still strong, but it must be balanced against the cultural and legal rights of the Makah. As a result, the species’ ecological status becomes ethically relevant, and application of Blue Ethics can allow limited indigenous hunting of non-endangered eastern gray whales at levels unlikely to harm the species but prohibit any hunting of still-endangered western gray whales. Within the third framework, the survival and food security of individual community members is potentially at stake, reducing still further the moral considerateness of whales and other marine species needed for food security—but only if more ethical substitutes are not readily available.
Thus, Moral Pluralism requires Blue Ethics to distinguish among types of wild-capture marine fishing rather than embrace an outright ban on all versions of wild-capture fisheries in all locations, while still creating a presumption that there are more ethical pathways to Blue Food security than large-scale commercial marine fishing. The next question is whether the larger cultural context surrounding the ocean and the laws that govern human use of it will allow for this nuanced shift away from wild-capture fisheries, a question to which Part III now turns.
III. A Blue Ethics for the Twenty-First Century Can Emerge: Evolving Attitudes Toward and Understanding of the Anthropocene Ocean
Blue Ethics requires seeing the ocean with a new morality that makes species, marine biodiversity, and ocean ecosystems ethically and legally considerate—essentially valuing the ocean as a complex adaptive planetary life support system, not just as a grocery store. Importantly for the future success of any Blue Ethics project, nations increasingly value these larger systemic functions over fisheries.
Marine tourism provides an important example. Coral reefs are some of the most valuable ecosystems on the planet, contributing over $375 billion each year to the global economy. Many of these benefits derive from tourism. For example, the economic benefits from recreation on Australia’s Great Barrier Reef alone have been valued from $700 million to $1.6 billion. A study in the Maldives calculated that each shark that tourists can see when diving or snorkeling is worth $33,500, while a similar study in Palau calculated that each shark was worth $1.9 million over the course of its lifetime in reef tourism revenue—far exceeding its paltry value in a fishery. In Indonesia, shark and ray (such as manta rays) tourist diving was worth at least $22 million in 2017, dwarfing the export value of the entire Indonesian shark fishery ($10 million) and expected to increase dramatically over the next decide if Indonesia invests in these species’ conservation. More comprehensively, a study in support of marine spatial planning in Wales found that “the economic importance of non-extractive recreational uses of marine biodiversity,” such as “diving, kayaking, wildlife watching from boats and seabird watching,” “is comparable to that of commercial fisheries for the same region,” arguing that these interests should be given equal weight to fishing in marine planning.
Marine recreation is a form of ecosystem service, and identifying and valuing these ecosystem services more generally is another means of articulating the morality of protecting the ocean’s systemic functions. The Millennium Ecosystem Assessment defined ecosystem services broadly as “the benefits people obtain from ecosystems.” More specifically, according to Gretchen Daily, “Ecosystem services are the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life.” In 1997, Robert Costanza and several colleagues estimated that the world’s ecosystem services were worth $16 to $54 trillion each year, underscoring the economic importance of ecosystem services to human well-being.
The ocean provides a significant portion of the Earth’s ecosystem services. As the IPCC summarized in 2019, In addition to their role within the climate system, such as the uptake and redistribution of natural and anthropogenic carbon dioxide (CO2) and heat, as well as ecosystem support, services provided to people by the ocean and/or cryosphere include food and water supply, renewable energy, and benefits for health and well-being, cultural values, tourism, trade, and transport.
In their 1997 Nature article, Costanza and his colleagues estimated that about 63% of the total world value of ecosystem services—about $20.9 trillion—comes from marine environments, and about 60% of the value of marine ecosystem services derives from coastal ecosystems. These researchers emphasized that the ocean is particularly important for the gas regulation, disturbance regulation, nutrient cycling, biological control, habitat, food production, raw materials, recreation, and cultural services it provides. As one often-undervalued example, the ocean provides oxygen production. Tiny plants that float near the ocean’s surface around the world, known as phytoplankton, produce this oxygen. Some of the oxygen remains dissolved within the ocean itself, where fish and other marine animals (but not marine mammals or sea turtles, which breathe atmospheric oxygen) use it. Most of the oxygen, however, is released into the atmosphere. In fact, marine phytoplankton produce half of the world’s atmospheric oxygen—the oxygen upon which terrestrial animals, including humans, depend.
Reflecting the greater moral consideration that the ocean thus deserves, many nations have shifted to ecosystem-based or resilience-based management of their marine resources. Indeed, ecosystem-based management (“EBM”) has become the dominant approach for governing marine ecosystems as ecosystems. The National Oceanic and Atmospheric Administration (“NOAA”), for example, has adopted EBM for many of its programs in the United States, describing that approach as follows:
Ecosystem-based management (EBM) is an integrated management approach that recognizes the full array of interactions within an ecosystem, including humans, rather than considering single issues, species, or ecosystem services in isolation. EBM is a broad resource management approach that considers dynamic, cumulative effects on marine environments using data and indicators . . . . EBM supports working across sectors to consider tradeoffs between marine resources, ultimately sustaining both diverse ecosystems as well as the services they provide to humans.
Moreover, The overarching goal of EBM is to sustain the long-term capacity of marine ecosystems to deliver a range of ecosystem services, such as seafood, clean water, renewable energy (e.g., wave, tidal, and biofuels), protection from coastal storms, and recreational opportunities, with a focus on both ecosystem health and human well-being.
Most recently, an ever-broadening systems view of the ocean has led to the increased adoption of resilience-based marine management. There is little debate that the ocean is a complex adaptive system containing multiple linked complex adaptive ecosystems. Specifically, it is a complex of marine ecosystems, and “marine ecosystems are complex adaptive systems linked across multiple scales by flow of water and species movements.” The many calls for increased use of EBM arose in part because, “[d]espite their adaptive character and often redundant linkages, marine ecosystems are vulnerable to rapid changes in diversity and function.” “In short, marine ecosystems are in trouble, indicating that many previous attempts to manage individual threats in the absence of a system-wide approach have not worked.”
The concept of ecological resilience is important for the systems approach to ocean law. Ecological resilience and resilience thinking acknowledge that ecosystems and social-ecological systems are dynamic—not, as prior theories had assumed, inherently stable systems tending toward an equilibrium. “Resilience,” as a concept, recognizes that, in fact, there are at least three ways in which ecosystems experience and respond to changes. The first and most common understanding of resilience refers to an ecosystem’s ability to resist change or bounce back from system disturbances. Sometimes referred to as “engineering resilience,” this sense of resilience refers to “the rate or speed of recovery of a system following a shock.” The second aspect of resilience acknowledges that ecosystems can exist in multiple states rather than stabilizing around a single equilibrium state; as a result, changes and disturbance can “push” ecosystems over thresholds from one ecosystem state to another. This second sense of resilience, ecological resilience, “assumes multiple states (or ‘regimes’) and is defined as the magnitude of a disturbance that triggers a shift between alternative states.” Finally, resilience thinking also acknowledges “the surprising and discontinuous nature of change, such as the collapse of fish stocks or the sudden outbreak of budworms in forests.” The long-time persistence of an ecosystem (or collection of multiple ecosystems) like the Gulf of Mexico in an apparently stable, productive ecosystem state is absolutely no guarantee that humans can continue to disturb (abuse) the system and expect only a gradual or linear response. Indeed, sudden regime shifts have been documented for a number of marine ecosystems, including Jamaican coral reefs (caused by the combined impacts of overfishing, hurricanes, and disease) and Alaskan kelp forests (caused by sea otter hunting and predation).
A complex systems and resilience-based approach to ocean management provides a governance framework that can operationalize Blue Ethics in the twenty-first century because this perspective changes the very goals of marine management. Increasing numbers of marine scientists are concluding, for example, that because it is no longer possible to completely control or prevent change in ocean systems, “the goal of management should be to maintain ecosystems in a healthy, productive, and resilient condition so that they can sustain human uses and provide the goods and services humans want and need.” Among these scientists, the adoption of a complex systems view of the ocean, including ecological resilience and the potential for regime shifts, has led to calls for a new approach to management: resilience-based management (“RBM”). “Resilience-based management is defined as using knowledge of current and future drivers influencing ecosystem function (e.g., coral disease outbreaks; changes in land-use, trade, or fishing practices) to prioritize, implement, and adapt management actions that sustain ecosystems and human well-being.” These prioritized actions include threat mitigation (“controlling pollution, sedimentation, overfishing”), actions that support ecosystem processes (for example, improving water quality), and strengthening the abilities of communities dependent on particular marine ecosystems to adapt to the changes occurring in those ecosystems, including by changing how people earn their livelihoods. RBM seeks not to maximize the goods that humans can extract from the ocean but rather to cope with the changes that overfishing, marine pollution, climate change, and ocean acidification are bringing to the ocean, simultaneously “acknowledg[ing] that humans are capable of driving change, adaptation, and transformation.”
Resilience-based management effectively promotes Blue Ethics by prioritizing the reduction of anthropogenic stressors to ocean systems. These stressors, as noted, include commercial fishing. The question then becomes whether we can shift humanity’s dependence on Blue Foods from commercial fishing to something else. As the next Part explores, that “something else” is likely to be certain kinds of marine aquaculture.
IV. Toward a Blue Ethics for Blue Foods: Replacing Fisheries with Marine Aquaculture
Blue Ethics requires that the pursuit of human food security not impoverish the rest of the planet, particularly in terms of worsening biodiversity loss and the impacts of climate change. Certain forms of marine aquaculture hold the promise of not only increasing food global security but also global planetary health and—if done with attention to access and the special needs of indigenous and small coastal communities, women, and children—equity.
However, this transition in Blue Food production and consumption patterns has two components. First, laws and policies need to de-incentivize, if not outright prohibit, large-scale marine commercial fishing. Christopher Stone had much to say on this subject. Simultaneously, however, nations need to recognize both that a replacement source of Blue Foods—marine aquaculture—exists and that not all forms of marine aquaculture are equally ethical. This Part explores both sides to implementing a more ethical approach to Blue Foods.
A. Tools to Decrease Wild-Caught Fisheries: Christopher Stone’s Five-Step Program for the Twenty-First-Century Ocean
Christopher Stone recognized that global wild-caught fisheries were plateauing. He noted the longstanding clash between biologists and economists on how to calculate optimum yield from a fishery, but he also underscored the need to consider bycatch and habitat destruction, as well. In so doing, he made seabirds, sea turtles, and benthic habitat morally considerate in fisheries management—and he championed a multipronged approach to give that moral consideration real-world impact.
1. End Commercial Fishing Subsidies
According to Stone, the fishing “industry has been the historical beneficiary of public subsidy. Subsidization lowers private costs at public expense, thereby increasing the investment in fishing beyond the level that market signals would warrant.” Government subsidies to fishers, he concluded, have “been a crucial culprit in over-fishing,” promoting an increase in commercial fishing instead of its reduction. “Hence, the first step in restoring the health of the oceans is to wean the industry from subsidies,” a task that Stone thought international trade law was well-suited to address.
2. Improve and Extend Resource Management
According to Stone, reducing fishing subsidies, “by reducing interest-group pressures in the political and regulatory environment, would enable the managers to do their jobs.” However—and again emphasizing international trade law as an enforcement mechanism—Stone also argued that global fisheries management also needs to be enhanced through stronger regional fisheries organizations and better management of the high seas. Notably, with regard to the high seas, the United Nations is currently drafting a new treaty to protect marine biodiversity in the high seas, rendering large portion of the open ocean marine reserves protected from fishing.
Stone also advocated that, rather than rely (solely) on command-and-control catch limits and gear restrictions, governments or fishery managers charge for fishing, in the form of either a landings tax or a royalty. “A charge raises the cost of fishing to the fisher,” and the goal would be
to create cost conditions that result in the fleet extracting fish at the revenue maximizing level of effort that would be employed by a sole owner. Such a sole owner would stop fishing when the landed value of a marginal stock reduction equalled the marginal cost of catch (including congestion costs and any impairment in future yield).
Specifically, and consistently with making impacts to marine ecosystems and biodiversity morally and legally considerate, this charge would go beyond the recovery of management costs and seek “to confront the fisher with (ideally) the marginal costs of harvest rivalry, stock depletion and environmental damage.”
4. Establish an Ocean Trust Fund
Revenues from the fishing tax, in turn, would fund the Ocean Trust Fund that Stone proposed. This fund “could support”
the monitoring of fishing regulations; this could include expansion of satellite programmes, on-board inspectors, etc; defending, restoring, even purchasing wetland and nursery areas; carry-over payments for investors and workers to compensate for tie-up losses required by stock rehabilitation; gathering and analysis of stock data; fisheries health services, including monitoring health effects of mariculture on coastal quality and safeguarding against incursions of exotic species.
Thus, in addition to making fishing itself more expensive, the fishing tax would make fisheries enforcement more effective, protect marine habitat, transition fishers to other jobs, improve fisheries science, and protect marine ecosystems more generally. Again, Stone was already effectively practicing a Blue Ethics, incorporating the greater health of the ocean into the economics and regulation of fishing.
At the heart of Stone’s Earth Ethics was a quest to give the environment a legal voice that could press at least a legal advantage (as opposed to a legal right) of intactness. That voice would often come in the form of a legal guardian, because “Nonpersons such as whales, . . . while possessing interests and even preferences, are at best restricted in their capacities to express them.” Similarly, for the ocean, “while we cannot orient the law to a Thing’s welfare, we can orient it to some ideal state of the Thing,” and the guardian can urge action consistent with that legal orientation. Viewed in this light, guardians for the ocean could also operationalize a Blue Ethics in marine fisheries by articulating the ideal of healthy, resilient marine ecosystems free from the stresses of large-scale commercial marine fishing.
B. The Ethical Promise of the More Environmentally Benign Forms of Marine Aquaculture
The last step for a Blue Ethics agenda is to substitute a more ethically sound Blue Foods production system for commercial wild-capture fisheries—and that substitute is already emerging. Given the plateauing of wild fisheries, marine aquaculture industries have been growing rapidly since 1986 to close the gap in global seafood demand. Indeed, for most categories of fisheries, aquaculture production has already exceeded that of wild commercial fisheries:
Based on time-series data of major species groups, world aquaculture production has progressively surpassed that of capture fisheries. The “farming more than catch” milestones were reached in 1970 for aquatic algae, in 1986 for freshwater fishes, in 1994 for molluscs, in 1997 for diadromous fishes, and in 2014 for crustaceans. However, despite the increasing output from global aquaculture, farming of marine fishes is unlikely to overtake marine capture production in the future.
Aquaculture production of marine animals has grown from an average of 6.3 million tonnes per year between 1986 and 1995 to almost 31 million tonnes in 2018, a growth rate of 489% over about 35 years. While, overall, finfish aquaculture dominates aquaculture production, most of that production occurs inland, in freshwater. In contrast, “[i]n 2018, shelled molluscs (17.3 million tonnes) represented 56.3 percent of the production of marine and coastal aquaculture. Finfish (7.3 million tonnes) and crustaceans (5.7 million tonnes) taken together were responsible for 42.5 percent, while the rest consisted of other aquatic animals,” including sea turtles and marine invertebrates such as sea cucumbers.
However, food animals are not the only aquacultured marine species of global importance. In 2018 the world produced 32.4 million tonnes of aquacultured algae (kelp, seaweed) worth $13.3 billion and 26,000 tonnes of ornamental seashells and pearls worth $179,000. Seaweeds dominate the aquacultured algae, and while tropical seaweed aquaculture in Southeast Asia has decreased in recent years, seaweed aquaculture in temperate and cold waters—like those that surround most of the United States—continues to grow, albeit at a slower pace than marine animal aquaculture.
As such, aquaculture, both freshwater and marine, already plays an increasing role in preserving Blue Food security. The issue is whether this global expansion of marine aquaculture is also an example of Blue Ethics. The answer, perhaps unsurprisingly, is “sometimes.”
As both the FAO and the Blue Food Assessment have recognized, sometimes an ethical approach to food security requires shifting consumer demand. For Blue Foods, the more ethical approach must include a careful expansion of marine aquaculture—but not in the form of the most common finfish aquaculture, Atlantic salmon. Instead, that expansion should focus on marine algae (seaweed) and bivalves such as clams, mussels, and oysters. “[A]cross all blue foods, farmed bivalves and seaweeds generate the lowest stressors” to the environment, making them the most ethical choice of Blue Foods.
1. Marine Aquaculture and Climate Change
On the whole, Blue Foods are better for the environment than terrestrial foods, and most forms of marine aquaculture are better for the environment than wild-caught fisheries. The multi-author article entitled Environmental Performance of Blue Foods appeared in the journal Nature to accompany the launch of the Blue Food Assessment. It provides a standardized evaluation of the environmental impacts of twenty-three species groups of blue foods across several parameters, including greenhouse gas emissions, water and land use, and nutrient pollution, all conveniently compared to chicken production. Importantly, both environmental impacts and human nutritional values vary considerably across marine foods, whether wild-caught or farmed (aquaculture). To take greenhouse gas emissions as just one example, the authors found that “[a]cross assessed blue foods, farmed seaweeds and bivalves generate the lowest emissions, followed by small pelagic capture fisheries, while flatfish and crustacean fisheries produce the highest.”
As the authors note, “fuel use drives capture fisheries emissions.” Even so, the greenhouse gas emissions from several wild capture fisheries remain lower than emissions from terrestrial chicken production when assessed by weight of edible food produced. These fisheries include herring, sardines, anchovies, cods, hakes, haddocks, salmon, trout, and smelts; in addition, fisheries for tunas, bonitos, billfishes, squid, cuttlefishes, and octopuses are about equivalent in greenhouse gas emissions, on average (albeit with a wider range of variation) to domestic chicken production. Nevertheless, tradeoffs abound—including with respect to impacts on marine biodiversity. For example, finfish fishing practices that reduce greenhouse gas emissions, such as use of gill nets and entangling nets, simultaneously increase risks to marine mammals.
Seaweed and bivalve marine aquaculture avoid greenhouse gas emissions because neither seaweed nor bivalves need to be fed. “For fed aquaculture, feed production is responsible for more than 70% of emissions for most groups.” While seaweeds are technically not plants, like plants they rely on chlorophyll and sunlight to grow—but, unlike land crops, they do not require fertilizer. Bivalves, in turn, are filter feeders and rely on small plants and animals in the water column, known as plankton, for their food.
More impressively, seaweed aquaculture has the potential to actually sequester carbon dioxide, the most ubiquitous greenhouse gas. As noted, kelps and marine algae photosynthesize, meaning that they take in carbon dioxide. However, while the potential for terrestrial plants, especially forests, to mitigate climate change as carbon sinks is well recognized and promoted, the same has not been true for seaweed aquaculture. Indeed, although “[t]he world production of marine macroalgae, or seaweed, has more than tripled, up from 10.6 million tonnes in 2000 to 32.4 million tonnes in 2018,” only recently has seaweed aquaculture been “gaining increasing attention to be promoted and monitored for climate and environmentally friendly bioeconomy development.” Nevertheless, seaweed aquaculture’s potential contribution to climate change mitigation is significant. Marine kelps generally have been left out of world “blue carbon” (ocean-based climate mitigation) strategies until recently because, unlike seagrasses and salt marshes, they grow on rocks, not in submerged soil, raising questions about their ability to sequester carbon dioxide for long periods. However, more recent investigations indicate that natural seaweeds do indeed sequester carbon in the deep ocean (eventually becoming, somewhat ironically, petroleum).
Given the sequestration capacity of natural seaweeds, researchers have proposed that seaweed aquaculture could also significantly contribute to climate change mitigation. In particular, seaweed aquaculture “should prove to be expandable to the offshore environment and the open sea, . . . unlocking a capacity to greatly increase carbon capture in biomass. This approach has been termed Seaweed Carbon Capture and Sink (‘Seaweed CCS’; analogous to terrestrial Carbon Capture and Storage).”
2. Marine Aquaculture and Nutrient Pollution
Bivalve and seaweed aquaculture can also help to address marine nutrient pollution. Water flowing over and from farms, in the forms of both irrigation return flows and runoff from rain or snowmelt, carries excess fertilizer (mostly nitrogen compounds) to the ocean. Nutrients also reach the waters through atmospheric deposition, such as from the burning of fossil fuels. Once there, nutrients induce large blooms of marine plants—phytoplankton and algae. Algae are marine plants, many of which are beneficial to marine food webs. Marine algae include both the large marine seaweeds and kelp and the nearly microscopic algal forms of marine phytoplankton. However, the small phytoplankton forms of algae can create an “algal bloom,” which “is a rapid increase in the population of algae in an aquatic system,” which often “may be recognized by discoloration of the water resulting from the high density of pigmented cells.” This discoloration can give algal blooms common names, such as “red tides.” Increasing nutrient concentrations are the usual cause of algal blooms, because, like terrestrial plants, marine phytoplankton respond to nitrogen and phosphorus compounds as fertilizers.
Algal blooms impact both marine ecosystems and human health. At the ecosystem level, as the blooms die off, their decomposition consumes all the oxygen in the water column, leading to hypoxic (low-oxygen) conditions that make large areas of the ocean uninhabitable by marine animals. In the United States, the largest of these so-called “dead zones” occurs seasonally in the northern Gulf of Mexico at the mouth of the Mississippi River and can reach the size of Massachusetts or New Jersey—over 7,000 square miles. However, dead zones are now common throughout the world’s coastal regions. The number of dead zones in the world’s seas has doubled every decade since 1960 as a result of increasing marine pollution, and a 2008 study identified more than 400 dead zones throughout the world. Perhaps most disturbingly, dead zones are missing biomass compared to what would be expected, suggesting that the oxygen deprivation that algal blooms cause can have long-term effects on the region’s biodiversity and productivity.
In part because of these aquatic impacts, researchers have concluded that nutrient pollution (along with biodiversity loss)—not climate change—actually poses the greatest current risk of pushing planetary systems across potentially irreversible thresholds. Will Steffen, Johan Rockström, and their colleagues at the Stockholm Resilience Center first identified their nine planetary boundaries in 2009. Planetary boundaries “are human-determined values of the control variable” to keep the planet from crossing thresholds and entering into transformations that represent existential threats to current social-ecological systems. The nine boundaries identified represent systems operating at a global scale, either directly or cumulatively, and include climate change, ocean acidification, stratospheric ozone depletion, atmospheric aerosol loading, biogeochemical flows (phosphorus and nitrogen nutrient pollution), global freshwater use, land system change, biodiversity loss, and chemical pollution. The researchers’ 2015 update article moderated those conclusions by working with risk zones instead of hard boundaries but nevertheless concluded that genetic biodiversity loss and both nitrogen and phosphorus pollution had crossed into red zones, while climate change remained in the yellow (lesser) risk zone.
As the FAO has emphasized, mollusks like clams and oysters are filter feeders, meaning that aquacultured mollusks do not need to be fed. Similarly, seaweeds grow through photosynthesis. As a result, “[m]arine bivalves, filter-feeding organisms that extract organic matter from water for growth, and seaweeds, which grow by photosynthesis by absorbing dissolved nutrients, are sometimes described as extractive species.” These species can reduce nutrient pollution in marine environments, regardless of whether the pollution comes from fed finfish aquaculture or other sources, such as fertilizer runoff from upstream agriculture.
Thus, shellfish and kelp aquaculture can improve marine water quality as well as feed human beings. For example, “In the U.S., oysters are the largest grossing marine species group for U.S. aquaculture, valued at $192 million in 2016.” Oysters are also particularly good at filtering water. Statistically significant water quality improvements have been measured in and around oyster farms in Virginia’s portion of the Chesapeake Bay, and the U.S. Geological Survey (“USGS”) and NOAA have determined that “[a]ll of the nitrogen currently polluting the Potomac River estuary could be removed if 40 percent of its river bed were used for shellfish cultivation.” In the Maryland portion of Chesapeake Bay, oyster aquaculture removes nitrogen pollution associated with farm runoff, allowing oyster aquaculture (and clam aquaculture) to potentially participate in nutrient trading programs under the federal Clean Water Act.
Kelp aquaculture can also improve water quality. For example, some species of kelp can remove up to 94% of ammonia pollution and up to 61% of phosphorus. Similar studies along the northeastern (Atlantic) coast of the United States have “demonstrat[ed] that nutrient bioextraction through seaweed aquaculture can be an effective coastal nutrient management tool in urbanized estuaries.” Moreover, the nutrient extraction benefits potentially multiply when marine aquaculture facilities grow kelp and shellfish together.
C. Ethical Transitions to Shellfish and Seaweed Aquaculture
Careful attention to Blue Foods could improve both the environmental impacts of human food security and human nutrition. For example, “blue foods provide the highest nutrient richness across multiple micronutrients (for example, iron and zinc), vitamins (for example, B12), and long-chain polyunsaturated fatty acids (for example, EPA and DHA) relative to terrestrial animal-source foods.”
More specifically as discussed above, marine aquaculture, particularly kelp and shellfish aquaculture, is a key component of a more ethical Blue Food future. On the whole, both aquacultured kelp and “bivalves have a low environmental impact per gram of protein produced, compared with finfish aquaculture, most capture fisheries, and terrestrial livestock.” Moreover, FAO data indicate “that 70 percent of people involved in aquaculture production are women,” suggesting that marine aquaculture is already promoting gender equity in Blue Food production.
There are, of course, other ethical considerations, such as how to transition fishers to new jobs and finding ways to support communities that transition from fishing to aquaculture. Access to the new industry needs to remain equitable, and sometimes contentious issues regarding how to locate new businesses and infrastructure in crowded coastal zones will require resolution—although marine aquaculture is increasingly moving into deeper ocean waters, and co-location with offshore renewable energy facilities can save space. In other words, the transition to more ethical Blue Food security will require work, careful planning, new laws and policies, and probably some money, either from governments or investors.
The Anthropocene requires humanity to continually adjust law and policy to meet basic human needs—like food and water—without sacrificing the rest of the biosphere in the process. Although Christopher Stone is now most strongly associated with the Rights of Nature movement (as other articles in this volume make clear), he also recognized that progress was also possible through a new Earth Ethics that gives Things and Nonhumans in nature—like whales and coral reef ecosystems—both legal advantage in court and moral considerateness in policymaking while still stopping short of giving nature actual legal rights.
This more limited ethical framework, and the Moral Pluralism that Stone developed to support it, provides a workable framework for reconsidering the ethics of humans’ dependence on Blue Foods for our overall food security. Under this new Blue Ethics, the choice of how to procure Blue Foods is not amoral; instead, giving full moral considerateness to ocean species and marine ecosystems requires consciously shifting Blue Food production away from industrial-scale commercial fishing to the most environmentally benign forms of marine aquaculture, generally involving aquaculture of bivalves and kelp. At the same time, adopting Moral Pluralism provides a principled basis for using multiple frameworks and analyses to evaluate the continued morality of other kinds of wild-caught fisheries, particularly subsistence fishing among the world’s indigenous communities.
The transition from large-scale marine fishing to increased aquaculture will not be easy in all, or even most, locations. Moreover, the details of how to first define and then shift among relevant ethical frameworks without devolving into moral relativism and its political manifestations will require careful thought and intimate situational wisdom, as well as a strong commitment to improving the ocean’s resilience. However, the result could be both increased food security and improved health for many coastal communities and an ocean with more capacity to adapt to climate change and ocean acidification, extending the many non-fish ecosystem services it provides to future generations.
95 S. Cal. L. Rev. 1307
* Robert C. Packard Trustee Chair in Law, University of Southern California Gould School of Law, Los Angeles, CA. My thanks to the editors of the Southern California Law Review for including me in the Christopher Stone Symposium on Environmental Law. I may be reached at rcraig@law.usc.edu.
Identifying Contemporary Rights of Nature in the United States
The Rights of Nature movement is at the precipice of watershed social changes. Leaders of this international, Indigenous-led movement call upon the public to radically reimagine the human relationship with nature. This Article comes at a crucial moment when some leading environmental law scholars are questioning the potential Rights of Nature within the United States. This Article responds by building upon the ideas of Christopher Stone to chart the theoretical and doctrinal pathways that breathe life into the legal framework of Rights of Nature. It sketches the present status of Rights of Nature in the United States and links this overview to environmental, animal, and natural resources law literatures.
Most scholarly discourse about the Rights of Nature focuses on a few well-known examples outside of the United States, such as constitutional rights in Ecuador or New Zealand and Australia granting rights to wind and rivers. In fact, the United States has a growing body of diverse Rights of Nature that legal scholars have largely overlooked. For example, in six federal statutes, natural resource damages have resulted in over ten billion dollars of tort remedies that benefit nature. Indigenous governments located throughout the United States—including the Band of Ojibwe, Ho-Chunk Nation, Navajo Nation, and Ponca Nation—have created legal personhood, statutory personhood, and constitutional provisions in tribal government. Additionally, wildlife holds many rights hidden in federal statutes, as with bald eagles claiming property rights superior to those of humans in the Bald and Golden Eagle Protection Act. Collectively, this diffuse and innovative set of laws forms a body of existing Rights of Nature, showing that such rights exist in the United States today—examples that deserve discussion, consideration, and potential extension.
This Article seeks to uncover and elevate these rights, thus promoting, amplifying, and calling attention to many diffuse efforts to capitalize upon their collective potential to reshape the human relationship with nature and address the environmental problems of our time. It links popular discourse on the Rights of Nature with its theoretical foundations and well-established statutory systems of environmental law. It seeks to help and inspire legal thinkers in disparate fields to collectively co-create a more robust role for Rights of Nature—within the United States and beyond.
INTRODUCTION
“Rights of Nature” recognize natural objects (such as trees, rivers, and wind) as having some legal rights, including them in our system of law and government. The Rights of Nature movement is international and Indigenous-led. It is part of a broader effort to displace anthropocentric conceptions of the human relationship with nature with an alternative worldview that prioritizes the needs of all parts of an ecosystem.
Famous international examples of governments recognizing natural objects as rightsholders have captivated public attention. Despite this public yearning to reimagine our relationship with nature, U.S. environmental law scholars were long slow to embrace the idea. Some have defined the idea narrowly, presupposing that Rights of Nature are narrowly confined to unenforceable constitutional provisions. Others have yet to engage the idea, thinking of it as orthogonal to environmental law, as it is conventionally understood as a set of statutes enacted in the 1970s (such as the Clean Air Act). This Article makes the novel claim that Rights of Nature not only exist but are actually widespread and can be found in many contemporary U.S. laws not conventionally understood as affording legal rights to natural objects. Further, it links conventional environmental law to the Rights of Nature movement, showing how merging these fields can revitalize environmental law to address pressing problems that presently narrow definitions of the field leave untouched. (This builds upon prior work in which I link Rights of Nature to animal law and animal rights literatures.) This Article suggests that we, collectively as a community of scholars continuously co-creating the field of law governing the human relationship with the environment, should use our collective talent, time, and skills to identify, amplify, and extend Rights of Nature because they hold considerable potential to forward new legal pathways to much-needed ecological objectives.
After a slow start, the Rights of Nature movement is quickly gaining momentum. Christopher Stone was influential in the creation of the Rights of Nature. Stone challenged conventional Western understandings of how law interacts with nature by considering affording standing to natural objects. Since then, Stone’s thinking has influenced a large and growing international consortium of lawmakers, activists, and scholars in granting objects natural rights.
Yet, scholars and commentators may not have yet developed a shared understanding of what “Rights of Nature” are. Precision matters at this precarious moment, when an enthusiastic international group of legal scholars are beginning to seriously engage with the concept. There exists a danger that some scholars might ascribe the term a narrow definition—such as constitutional provisions—with understanding that they link to others—such as natural resource damages—which could lead commentators and courts to prematurely dismiss Rights of Nature. Thus, substantive outcomes result from the terminological definition—making proper understanding and definitions of critical importance.
Moreover, the early-stage practical challenges of forging new legal pathways give some leading environmental law scholars cold feet about the administrability of natural rights. For example, Mauricio Guim and Michael A. Livermore are self-described skeptics of the idea, noting “rights for nature are unlikely to provide the solution that frustrated environmentalists seek.” Although I have tremendous respect for these talented environmental thinkers, I think they dismiss the idea too quickly. Every legal movement is messy at first, needing many iterations to develop and mature into a well-functioning regime. Narrowly defining Rights of Nature and looking at early efforts to actualize it may produce too much skepticism for something that has the potential to provide a much-needed shakeup to the status quo. A broader definition of the Rights of Nature—the vision outlined in this Article—shows that, in fact, they already exist and are functioning quite well in natural resource damages statutes and Indigenous governments within the United States—two sources of Rights of Nature that Guim and Livermore do not contemplate in their valuable paper.
Despite the domestic origins of these ideas in contemporary legal structures, some U.S. scholars have dismissed the Rights of Nature as unworkable in our legal structure. That is beginning to change, with a wave of new scholarship on the Rights of Nature taking a more optimistic tone. Yet, even among this growing body of work, U.S. scholars have not created a typology of Rights of Nature or mined existing domestic law to uncover examples of these rights with an eye towards reforming domestic environmental law. As a result, some scholars are engaging with a superficial subpart of Rights of Nature as if it were the whole, dismissing that subpart and with it the entire idea. The problem is that the concept of Rights of Nature does not match the narrow definition that some scholars are ascribing to it. As a result, some are quickly dismissing the important movement as the latest iteration of the attractive-but-meaningless concept of “sustainability.”
I believe that definition matters a great deal here—that defining the Rights of Nature in a broad and multifaceted way for an audience of legal scholars can save this vital movement from being dismissed as unworkable before it really starts. This Article seeks to bridge the gap between the popular discourse on the Rights of Nature and law. It lays a very modest foundation for lawyers, commentators, and judges to situate the Rights of Nature within the legal context.
This Article begins to explore the idea that the Rights of Nature are not only viable within the U.S. legal structure but are, in fact, already in existence. It begins by creating a novel typology of Rights of Nature, which is sometimes used in different ways in international discourse. Then, having briefly set forth types of rights, it maps this typology onto domestic laws to see whether—and where—there are Rights of Nature within our existing legal structure.
In doing so, this Article begins to reimagine how we define the field of environmental law—a definition that erodes the existing boundaries of the field as a set of statutes from the 1970s and takes a broader, more expansive approach. Reframing environmental law as laws that govern the human relationship with nature represents a profound, much-needed shift in the field—one that may hold the potential to address the issues of inclusion and rapid geophysical change that we so sorely need at this moment.
Environmental law scholars may have underestimated the potential of existing laws by confining our understanding of the field to federal statutes. This underestimation has caused us to believe that our hands are tied to address environmental issues, that we must wait for Congress to enact new laws to address the many colliding crises of our time to save us as they once did in the 1970s. But this is not the case. Environmental law scholars can find threads running through black letter law that may create legal pathways for new ideas. Reframing environmental law through the Rights of Nature provides a new solution to pressing environmental problems. It also serves to fill a gap between how most people feel about nature and what law on the books states. A more expansive view of environmental law serves to integrate these values—and the long-marginalized populations who hold them—into the canon of environmental law.
This Article proceeds in three Parts.
Part I defines environmental law and the Rights of Nature. Until now, the field of environmental law has been largely understood as a subset of administrative law, focused on federal agency administration of statutes that Congress enacted in the 1970s with very little subsequent updating. This disappointingly narrow conception of the field falls short of the legal tools society must wield to stem climate change and biodiversity loss. Rights of Nature is an Indigenous-led effort to ascribe legal meaning to the rights of natural objects within government. Some hope that Rights of Nature represents the most important shift in environmental law since the health-based statutes of the 1970s, which form the canonical version of environmental law. This analysis foreshadows not only the pluralistic descriptive analysis of the Rights of Nature in the United States but also foregrounds the need for new worldviews.
Part II explains that environmental crises highlight the need for alternative worldviews to inform the human relationship with nature. This begins by challenging the received wisdom of a legal and economic system that excludes natural interests—a human-created construct that erases the interests of nonhuman animals and plants. It advocates for readers to radically reimagine the human relationship with nature; it urges legal thinkers to forge creative pathways between the status quo and where we need to go.
Part III provides a typography of Rights of Nature, then compares this framework to existing laws within the United States today (inclusive of Indigenous governments). By mapping the origins of the term and its legal actualization in positive law in the United States today, I show that the concept is much broader than it is sometimes assumed to be. This analysis reveals that there are, in fact, widespread Rights of Nature for natural objects in the United States today. The conclusion considers the implications for Rights of Nature to revitalize environmental law. It briefly flags how some of the most pressing problems of our time—those that statutes alone are failing to address—can, and should, be addressed through innovative tools that integrate the interests of nonhuman rights-holders. This Article reveals that Rights of Nature extend beyond the narrow, commonly understood idea of affording legal personhood to nature in constitutions.
This Article concludes by calling for a change in what counts as environmental law. Students sign up for environmental law courses to learn how to protect pandas and save the world. They are so disappointed when they realize environmental law is mostly about pollution control. An unspoken secret about environmental law is that it is a tremendously narrow field. At the time the classic environmental law statutes (such as the Clean Air Act and Clean Water Act) were created, they were revolutionary. Today, they are clearly not enough to meet public demand. Why, then, do scholars and practitioners in the field accept the narrow constraints of current law? As a relatively new field, a living generation of environmental scholars and advocates built the field of environmental law from scratch. Early actors fought for legitimacy. They worked hard and earned it. Now, it is time to think of new and bold ideas. Rights of Nature hold the potential to revitalize and reconceive environmental law. This Article suggests that following the path of Rights of Nature—the theories undergirding it and its statutory and doctrinal framework—provides a path to a new iteration of environmental law that is more inclusive, relevant, and expansive.
I. Rights of Nature in Environmental Law
In a recent TED talk, Kelsey Leonard introduced the Rights of Nature to an international audience, suggesting that we should treat “water [as] a living relation and grant[] it the legal personhood it deserves.” Over three million people watched Leonard’s talk. Rights of Nature enjoy widespread popularity—most people like the idea of treating rivers and animals well in the abstract. But how do Rights of Nature intersect with the legal system?
Understanding the nexus of current federal policy and the Rights of Nature begins with two interrelated questions: What is environmental law? And what is the Rights of Nature movement? The answer to both revolves around human relationships with nature. At present, the field of environmental law is largely anthropocentric—focusing on the needs of humans while largely ignoring those of other species. Many (although not all) of our laws are focused on constraining human uses of natural objects (such as airscapes and rivers) so that they do not degrade to the point that they no longer satisfy human needs for clean air and drinking water. The premise of protecting the environment to satisfy ongoing human use of it is a centerpiece of much of the field.
In contrast, the fundamental premise of the Rights of Nature movement challenges this anthropocentric view. It suggests that other living things—rivers, wild rice, wind, animals—also have interests in the environment, which human uses should not fully degrade. Asserting rights on behalf of nature within contemporary human legal systems expands law beyond serving humans, creating a more expansive vision of our legal systems as navigating the human relationship with nature. Notably, this is not a new worldview. Many religions and cultures across time and history, including in much of the world today, reflect this ethos: the idea that the Earth and its resources are shared between its inhabitants, and humans ought not take more than our share from other creatures or destroy natural environments. Through legal formalities and corporate structures, the legal functionaries administering Western systems of law, government, and commerce have often pretended away the idea of nonhuman interests as worthy of equal consideration under the law—separating law from ecological morality.
The remainder of this Part shows how Rights of Nature may resolve some of the shortcomings in current environmental law. Section A describes environmental law as a field of study and practice area. Section B shows that Rights of Nature provide an alternative worldview to existing environmental law, one in which nonhuman interests are formally recognized.
A. Environmental Law
Environmental law as a field is generally understood as a set of statutes enacted in the 1970s, such as the Clean Air Act, Clean Water Act, Endangered Species Act, and National Environmental Policy Act. These laws have largely sat stagnant since then—rarely amended with very little new environmental legislation. As a result, existing environmental laws are not addressing ecological vicissitudes including climate change, wildfire policy, factory farming, and biodiversity loss. Environmental laws are sorely out of date.
In the fifty years since the environmental laws were enacted, astonishing shifts have occurred in scientific understanding, showing many imbricated challenges that the statutory framework does not begin to address. Climate change, biodiversity loss, wildfire smoke emissions, and factory farming are modern environmental disasters. The worldview undergirding current laws are out-of-step with updated understandings of nature as part of an interconnected world.
While we have learned more about the natural world, so too has society shifted since the environmental laws were created. First, an understanding of intergenerational, systemic racism has shown how racist institutions have created environmental justice problems that intersect with climate change, wildfire, and biodiversity in troubling ways. Second, Indigenous governments worldwide are innovating new laws that draw on traditional ecological knowledge to address environmental issues. Third, Wicca and Paganism are quickly growing religions, emerging from the ashes of European and domestic genocide of people (generally identifying as women) who advocated on behalf of nature. Fourth, animal law scholars have advanced a new agenda for radically reimagining a legal system focused on interspecies equity and expanding the law to make nonhumans co-participants in our systems of governance.
Environmental law statutes have failed to keep pace with these social shifts. Laws that represented colonial perspectives and were largely developed by non-inclusive groups of lawmakers are still on the books. Scholars, lawyers, legislators, and judges should broaden environmental law to keep up with the times. New laws, tools, and approaches are desperately needed from more diverse voices. The crucial question is how to update the field to incorporate new perspectives. Relying solely upon a narrow, statutory approach—by enacting more federal law—is insufficient to the intertwined challenges of natural and social concerns.
This is where the Rights of Nature come in—offering an opportunity to radically reimagine the human relationship with nature in ways that reflect both ancient worldviews and modern scientific understandings. The Rights of Nature is an international, Indigenous-led movement to update the law to recognize the legal rights of natural objects.
B. Rights of Nature
The term “Rights of Nature” describes affording legal rights to nonhuman natural beings and objects. Rights of Nature incorporate nonhumans into human legal systems. Affording rights to a river, for example, allows the river to independently assert its interests to legal institutions through human trustees. A constitutional provision may allow citizens to sue on behalf of natural objects. This removes the need for a human plaintiff to assert adequate standing—providing built-in access for natural entities to the judicial process.
The Rights of Nature is also a movement—an international effort for governments worldwide to fold nature into systems of law and government. Rights of Nature seek to reinfuse pre-colonial values of human-nature relationships into legal and economic institutions in the United States and beyond. It is sometimes described as decolonization of property or the natural world. The movement challenges anthropomorphic conceptions of the world by folding nature’s interests into man-made institutions of law and markets.
The “Rights of Nature” are once new and ancient. Legal scholars often credit Christopher Stone’s canonical article Should Trees Have Standing? with giving birth to each of these ideas. Three central features define Stone’s conception of affording legal rights to natural objects: (1) the standing to sue for a legal remedy in court; (2) the opportunity to obtain a legal remedy, such as money damages or an injunction; and (3) the opportunity to directly benefit from the legal remedy provided. The effect of giving nature legal rights is to allow natural objects to collect damages, reallocating the cost of damaging nature as it presently is (costless, in economic terms) to having a value (the harm caused to nature through its damage). This essentially shifts an externality to the person creating it, a form of the “polluter pays” principle. In his seminal article, Stone argued that conferring rights on nature would impose economic costs on the value of nature that people had harmed. Granting legal rights to nature also reduces the damage to nature by encouraging precaution to protect against harm, the cost of which is not justified under a system in which the harm is not paid for.
Environmental law scholars tend to credit Stone’s canonical article Should Trees Have Standing? with giving birth to the Rights of Nature. Surely, Stone’s work is of vital importance to the legal actualization of Rights of Nature, which is credited as an influence by European and South American scholars. For example, influential scholar Delphine Misonne has meticulously traced the influence of Stone’s writings on international legal developments, showing that his ideas were foundational to a number of international efforts to afford nature rights, which might otherwise appear scattered but—thanks to the work of Misonne—are instead rightfully linked to Stone’s influence.
Yet, world-changing ideas rarely come to one person at one time; instead, they are things that people have always believed. Stone’s writing might be understood as an excellent modern legal interpretation of similar concepts found in other cultural traditions, past and present. The genesis for humans acknowledging the right of natural objects is present in cultural and religious ideas throughout time and history. Indeed, Western culture might be unique for creating legal and economic constructs that erase nature. The Rights of Nature movement merely seeks to reincorporate natural interests in legal regimes that erased them. For these reasons, Rights of Nature can be understood as either a modern legal invention or a return to pre-colonial ideas of rules governing human interactions with nature, which some cultures have held uninterrupted since time immemorial.
Today, Rights of Nature are a burgeoning area of environmental law scholarship. Yet, existing scholarship overlooks the extent to which damages are already being collected for human harms to nature and the extent to which they have (or have not) deterred additional harm. Scholars tend to focus on the question of standing, debating the possibility (or impossibility) of natural objects seeking legal remedies in court. This Article takes a different approach. It starts by looking at remedies obtained by natural objects in practice. In this way, this Article shows that the Rights of Nature are neither wholly theoretical nor confined to international examples; they are embedded in a variety of laws. But first, I briefly highlight the importance of searching for Rights of Nature in domestic law by outlining why they might serve to incorporate vitally needed diverse perspectives into our field and practice.
II. Infusing Diverse Worldviews into Environmental Law and Policy
A radically different model of envisioning human relationships with nature requires finding alternatives to the dominant discourse that frames environmental law in scientific and economic terms. This Part briefly overviews alternative inputs that could inform our field, drawing upon a body of my work that engages environmental values from diverse perspectives. This opens the door to more pluralistic worldviews that—directly and indirectly—are informing the Rights of Nature movement and could be incorporated into environmental law.
Dramatically increasing the diversity of inputs into ecological policymaking is crucial to course-correcting our current, disastrous environmental trajectory. One way to understand the myriad overlapping environmental problems is through a relational perspective, understanding the human relationship with nature as frayed. Humans are acting badly in our relationship with Earth and the other living creatures on it. From this perspective, the key to solving problems like climate change or factory farming is not merely practical (reduce CO2 emissions), but also philosophical (live sustainably). Sustainable living within the confines of a living world is not a value system embedded in dominant Western capitalist perspectives. Indeed, the values undergirding the dominant social views are what landed us in our current crisis. It follows, then, that backing away from the crisis cannot be achieved through the policies that landed us in this predicament, nor by the people whose decision-making is informed by worldviews that have landed us there. To do better and differently in our relationship with the natural world requires new understandings of our perspectives and obligations to it. For this, diversity is sorely needed—not for the sake of diversity alone (which would be valid), but also because our current mindsets have proven limited and problematic.
In recent work, I note, “I believe that marginalized members of society—those most absent from academic discourse and positions of federal policymaking—hold the insights that are key to our collective survival.” Without adapting our existing property laws and environmental statutes to incorporate other perspectives, we are doomed to continue unknowingly replicating the flaws in the code of our laws. Only rethinking the underlying mindsets—which requires engaging with voices left out in prior iterations of federal statutory decision-making—will point out the problems in our perspective that led to too-narrow, ineffective, and dated laws.
Fortunately, legal scholars in related fields are shedding light on how to update common law and statutory fields to reflect more diverse perspectives. We can learn from the reckoning happening in administrative law and property law. Administrative law professor Bijal Shah suggests that “[t]he core models of analysis in administrative law are inflexible and entrenched, and the scope, quality, and materiality of administrative law scholarship has stagnated as a result.” Shah advocates for introducing critical legal study of administrative law in order to invigorate the field. Relatedly, in property law, K-Sue Park notes that “[a] growing body of legal scholarship suggests that erasure of the histories of conquest, slavery, and race is widespread across doctrinal areas.” Park advocates for scholars to review the historical development of legal doctrines through a presumption of erasure and a close look at buried material. Shah and Park both point to the work of scholars who have done important, critical work that speaks to administrative law, property law, and—by extension—environmental law.
Animal law scholars are calling for interspecies equity and shifts in the legal status of nonhuman animals. Maneesha Deckha is leading an international coalition of scholars in considering how Indigenous and eco-feminist perspectives might transform anthropocentric systems into more pluralistic spaces. An Ecuadorian court recently found that the Rights of Nature protects individual nonhuman animals.
Environmental law scholars are considering perspectives outside of the mainstream environmental status quo, considering concepts like decolonization and unsettling. Rights of Nature provides one of many opportunities to engage these concepts within Western legal structures. Learning from pluralistic worldviews about the ways in which Rights of Nature provides insight into how environmental law scholars can and should engage our body of law amidst personal examination and institutional critiques about diversity, equity, and inclusion.
III. A Typology of Rights of Nature Applied to U.S. Law
This Part provides an overview of Rights of Nature. Section A provides a typology of Rights of Nature, which applies to domestic and international law. Section B explores domestic law, comparing existing laws outside environmental law that nevertheless map on to Rights of Nature. Section C suggests that natural resource damages might constitute the best-developed Right of Nature in the United States, although it has not previously been considered as such. Section D outlines three crucial next steps to expanding existing legal instruments to more fully accommodate a Rights-of-Nature approach.
A. Typology of Rights of Nature
This Section sketches a very rough typology of the legal instruments to actualize Rights of Nature. At present, various sources of positive law exist under this broad term, which lacks the requisite exactitude for legal purposes. Concretely identifying the legal meaning of Rights of Nature requires taking a broad view of possible sources of rights, sifting through potential applications, and delineating various sources of rights.
The inquiry in this Section proceeds in three steps. First, it draws upon actions by Indigenous communities worldwide, which have been forerunners in granting a variety of rights consistent with traditional ecological knowledge. Second, it draws upon emerging definitions that international law scholars are giving to Rights of Nature, such as constitutional provisions in some South American countries and tort remedies for repairing nature under French law. Third, it looks to law—treaties, constitutions, cases, statutes, regulations, and ordinances. From these diverse sources, I link the ephemeral concept of right to concrete legal instruments.
Two brief disclaimers are necessary. First, mapping a quickly emerging area of law runs the risk of overlooking an important component. Therefore, I present this list tentatively as a modest first step, with the assumption that subsequent scholarly discussion will refine and better it. Second, it is necessary to note a technical point: rights can overlap. For example, a constitutional provision could also create legal personhood. Therefore, this is a rough typology and not a perfect mapping, which ideally will emerge collaboratively as the field matures.
This Article identifies various legal meanings of “the Rights of Nature,” including constitutional provisions, standing, tort remedies, the right to own property, equitable consideration under the law, and rights-based personhood. This novel typology seeks to provide a legal framework for the many different meanings that scholars and commentators are assigning to the Rights of Nature.
Constitutional provisions provide perhaps the best-known Rights of Nature. International bodies, national governments, states, and Indigenous constitutions can (and do) create positive, written rights to nature in their constitutions. This can be anthropocentric—guaranteeing citizens a right to nature—or eco-centric—making an independent right of nature exist. Over one hundred governments provide some variation of a right to the environment. Some well-known examples include the constitutional provisions in Ecuador and the Navajo Nation.
Legal personhood allows defined natural objects the opportunity to participate in the legal system by suing in court. A crucial question embedded in this is standing, or whether—and by whom—legal remedies can be sought on behalf of nature. Potential intermediaries include government entities, Indigenous communities, and nongovernmental organizations. Broader considerations of personhood include communities and governments granting natural features legal personhood, as with communities that have declared the Whanganui River or Klamath River legal persons. Standing can be granted statutorily, with Congress explicitly allowing standing through statute. Courts can also grant legal personhood, creating a “jurisprudential paradigm shift.” Tribal, state, and local laws are also being used.
Equitable consideration means a court considering the fairness of a particular outcome on a nonhuman animal. This is most evident in the growing number of states in which judges engage in a “best interest of all involved” standard to determine the custodial interests of pets—a degree of judicial consideration previously confined to human children.
Tort remedies provide a judicial remedy for a court to order that a person who harms nature pay money damages to compensate for that harm. French scholar Matthieu Poumarède asserts that making humans pay to fix nature when they hurt it is one form of a Right of Nature. This is essentially saying that nature deserves to be free from harm—much as tort law suggests that people should not be harmed—and to receive damages when it is harmed.
Property rights describe nature, or natural elements such as trees, having the right to own property for its benefit. The federal natural resource damage fund is an example of this: hundreds of millions of dollars that can only be spent to restore nature. More recently, philosophers and legal scholars are considering extending the ability to own property to nature, including wildlife.
Right to Exist confers rights on nature equivalent to those enjoyed not only by people but also by corporations. “[N]ature has certain rights as a legal subject and holder of rights[,] . . . such as the rights to exist, to survive, and to persist and regenerate vital cycles.” Philosophers urge the distinction between moral and legal rights. For example, we may believe animals have a right to dignity, but that is not legally enforceable.
International agreements are also creating Rights of Nature. In 1982, 111 countries signed a United Nations (“U.N.”) Charter for the Rights of Nature declaring rights for all living things. Also, in September 2012, the fifth World Conservation Congress of the International Union for Conservation of Nature (“IUCN”) passed a resolution on “[i]ncorporation of the Rights of Nature as the organizational focal point in IUCN’s decision making.” Former U.N. Special Rapporteur to the Environment, John Knox, advocates for a U.N. provision recognizing a right to a clean environment.
Having sketched out a very rough typography of Rights of Nature, the next Section considers whether such rights exist within the United States
B. Mapping Current Rights of Nature in the United States
This Article makes a surprising claim: the United States, in fact, already partially recognizes the Rights of Nature. This survey of U.S. law setting aside the legal elements of the Rights of Nature reveals a surprising overlap. Familiar examples include the Endangered Species Act providing a right-to-exist for plants and wildlife. The National Environmental Policy Act affords procedural protections—and attendant dignity—to government actions on viewsheds.
At its core, Rights of Nature allow human advocates to bring suit to collect damages for ecosystems or their component parts. Rights of Nature can be found in various sources of law, ranging from constitutional provisions to federal statutes, but they always involve a focus on natural objects or systems.
The Rights of Nature exist in many forms. For example, a nongovernmental organization may sue for a legal remedy on behalf of an animal. A whale can sue the United States, asking the government to stop sonar testing that damages the whale’s vital organs and interferes with important biological behaviors such as feeding and mating. A monkey can sue a photographer, asserting that he owns a copyright for a picture that he took using the photographer’s camera. A pet, represented by a trustee, can inherit millions of dollars from her owner. Similarly, a government can sue as a trustee for damages that someone causes to public lands or resources. If an oil spill kills a bird, the government must sue the oil company for the cost of restoring the habitat so more of that species can live there.
Unlike human litigants, natural objects do not sue on their own behalf. The monkey does not stand in the courtroom and seek to convince the judge that the picture is his. A human trustee must stand in for the natural object. Many legal thinkers get stuck on this point of standing—who may rightfully stand in for an animal, when, and how? As scholars debate these questions, nature continues to participate in the legal system—collecting billions of dollars in damages, amassing countless funds in inheritance, and benefiting through tort deterrence of natural action.
Below, this Article begins to tentatively chart how legal advocacy for Rights of Nature occurs in practice, studying the activist lawyering that is expanding the margins of the legal Rights of Nature and the little-known federal statutes that form the basis for collecting damages on behalf of natural objects, as Stone imagined. It begins by setting aside the questions of standing and focuses instead on the remedies garnered. This reveals a large, previously unseen set of laws in place, from which one can trace back the questions of standing. This analysis provides insights that reframe our understanding of how, in practice, litigation for nature occurs.
Table 1. Rights of Nature in U.S. Law | |
Legal Aspect | Analogy in U.S. Law |
Constitutional Provision |
|
Legal Personhood |
|
Standing |
|
Human Rights |
|
Tort Remedy |
|
Dignity |
|
Property Rights |
|
Sources: a Constitución de la República del Ecuador, Oct. 20, 2008, art. 7. b Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (2000). For critiques of this approach, see Richard A. Posner, Animal Rights, 110 Yale L.J. 527, 539–40 (2000); Richard Epstein, Animals as Objects, or Subjects, of Rights (Univ. of Chi. John M. Olin Law & Econ., Working Paper No. 171, 2002). For a summary of efforts in court, see Bradshaw supra note 58, at 812, 812 n.10. c Bradshaw, supra note 58, at 823–30.
Of the potential Rights of Nature outlined above, perhaps the remedy most closely tracking Stone’s conception are the natural resource damages statutes, which are discussed in greater detail below.
C. Natural Resource Damages as Rights of Nature
This Article links the existing environmental law tort remedy of natural resource damages to the Rights of Nature. This account radically reframes legal discussions of nature’s rights, showing them to be far more tangible and well-developed than the nascent rights that scholars and commentators generally describe them as. This advances scholarly discourse about the Rights of Nature beyond whether they should exist to sophisticated discussions of how they have been already operating in practice for decades at the highest levels of federal and international law. Conceptualizing Rights of Nature as including natural resource damages has important implications for environmental law activists and scholars—it charts new pathways for pursuing Rights of Nature.
Natural resource damages are a tort remedy that require tortfeasers that harm public lands or natural resources to pay money damages to fix them. Tort remedies provide a judicial remedy for a court to order that a company, agency, or individual who harms nature must pay money damages to compensate for that harm.
Six federal statutes provide nature with a natural resource damages remedy. Natural resource damages are collected by the government under the public trust doctrine. Teams of environmental lawyers employed by the government seek natural resource damages on behalf of the federal trusts. The damages can only be used to restore nature to a pre-incident baseline condition; they are not a fine or penalty, nor are they used for clean-up. This remedy has produced over ten billion dollars in the past thirty years. It is best known as the vehicle through which British Petroleum (“B.P.”) paid for the restoration of the gulf coast following the Deepwater Horizon oil spill.
Although widespread in practice, natural resource damages are relatively rarely studied. Until recently, environmental law scholars largely overlooked natural resource damages. In 2012, Sanne Knudsen provided an outstanding introduction to the remedy, describing it as protecting ecosystem health and serving as a limitation on environmentally detrimental uses of private property. In 2016, I published a descriptive article that provided a longitudinal mapping of the various statutes in which the remedies arise and reported the collection activities by the thirteen federal and resource management agencies.
Despite not yet being understood as conceptually linked, natural resource damages may be the best-developed actualization of Rights of Nature in the United States. The United States has quietly and unwittingly charted a novel path for statutory Rights of Nature. This is a departure from the splashier continuation of all recognitions afforded Rights of Nature in other countries and tribal governments. Situating natural resource damages among other, international efforts to advance the Rights of Nature paves the way to revitalizing environmental law.
Courts and commentators alike underestimate the importance of tort damages for nature. This leads courts to rubber stamp settlements, which in turn allows overstretched agencies to settle for cents on the dollar. Parties, in turn, rely upon agencies’ inability to litigate cases to push hard for aggressive settlements that do not satisfy the fix what you broke nature of the statute. For example, the agencies in Deepwater Horizon were reliant on B.P. to provide early-stage funding to mitigate damage and assessment costs. This creates an inherent conflict for agencies, which must threaten to sue the party funding the science underlying the settlement. Understanding natural resource damages as Rights of Nature revitalizes the statutes and agencies, providing outside attention to offset the financial interests of responsible parties. Agencies should be increasingly comfortable taking more aggressive settlement and litigation positions if courts and outside commentators—such as environmental nongovernmental organizations—are playing an active role advocating for nature through these statutes. In other words, to realize the potential of natural resource damages, courts and commentators must realize its intellectual hook to Rights of Nature.
Advocating for legal acceptance of the Rights of Nature is at once prosaic and radical. Pragmatically, this Article proceeds in the established model of environmental law by pointing towards six federal natural resource damages statutes in the United States. In 2016, a longitudinal research project revealed that Congress has enacted six statutes that clearly give natural objects legal rights, under which federal agencies, tribes, and states have collected over ten billion dollars. This Article links natural resource damages to the canonical legal thinking on affording nature rights, linking the law with the theory. This effectively ends the conversation about whether Rights of Nature could possibly exist in the United States. They can, and they do.
Rights of Nature—as they presently exist in federal law—elevate the legal status of nonhuman animals, plants, and natural objects on public lands as protected by law. If a party (person, company, or government entity) harms nature, they must pay tort damages. Those damages can only be used to actively repair the harmed object. If an oil spill kills songbirds, government agencies will sue the vessel that spilled the oil and use the money damages to restore songbirds. This might mean buying land in Costa Rica where the songbird nests, devoting that land to the songbirds, and rebuilding the population to the point that the songbirds return to the California coast. This is one example of hundreds of well-documented cases in which federal agencies used statutes to collect money damages on behalf of nature, then used those funds to restore natural objects that humans had damaged. This is the actualization of Christopher Stone’s idea in Should Trees Have Standing?—his vision has come to fruition. If we believe that natural resource damages give nature legal rights, then one could argue that Rights of Nature have existed in the United States for at least forty years.
Theoretically, Rights of Nature shift environmental law from an anthropocentric to eco-centric perspective. Nature deserves to exist outside of its uses to humans. Courts might apply the Endangered Species Act to outline the economic purposes of the songbirds—for tourists to see, for hunters to shoot. The Rights of Nature take a dramatic step, suggesting that the public trust doctrine invests in public land and resources a shared, communal right to the continued existence of the resources. Songbirds should exist because they are part of nature, which is part of the American public. Tribal and international examples take a step further still, citing the independent right of natural objects to exist, showing how existing examples of Rights of Nature might evolve in U.S. law over time.
D. Expanding the Rights of Nature
Despite widespread public enthusiasm for reimagining the human relationship with nature, desire and discourse are insufficient to create lasting change. Legal and political institutions translate public will into law. Scholars, lawyers, and law students can act quickly to leverage public will for protecting nature into a powerful, enduring, and meaningful set of legal instruments. I identify three core steps for doing so as the Rights of Nature develop: establishing trusteeship; institutionalizing sound governance models; and innovating legal routes to institutionalize emerging, continually evolving notions of Rights of Nature.
1. Trustees
The first and most urgent step is to institutionalize the early gains of legal personhood by establishing appropriate trustees. Who can be a trustee for a river? Federal, state, local, or tribal governments? What about trustee claims by nongovernmental organizations, corporations, trusts, or individuals? Who is best situated to advocate for, establish, protect, and manage the Rights of Nature?
These are urgent questions. Public will has outpaced legal answers. There already exist rivers and lakes in the United States that are legal persons. Now, environmental law theorists owe it to the efforts of hard-working environmental advocates to take the baton of shepherding these rights through the legal system. This means providing solid legal analysis and advice for institutionalizing early gains. Nongovernmental organizations are surely working on them, but they should not work alone.
Lessons from the history of environmental law can shape the answers to these questions. For example, a body of extremely valuable recent work by Jessica Owley, tracing the development of conservation easements, can provide valuable lessons for this emerging tool.
2. Institutionalizing Governance
The second task is to consider the institutional features of adjudicating trust responsibilities. Environmental law scholars can bring to bear the cumulative lessons of fifty years of environmental history to craft well-reasoned governance mechanisms. As a default, courts are responsible. Judges have deep expertise in the procedural questions of trusts. They are generally less expert, however, on scientific topics—a reason for the substantial deference generally afforded agencies. Perhaps a system of private governance should exist to answer the scientific management question of natural rights (an argument I make specifically with regard to wildlife property trusts elsewhere).
Trustees, unlike agencies, are not responsive to public will and lack democratic legitimacy. As such, I argue, it is vital that a unified system of private governance emerges, composed of a certifying body representing diverse expertise including scientists, animal advocates, sociologists, and persons with traditional ecological knowledge. Here, too, we find an analogy in land trusts: the Land Alliance is a certifying body to which many reputable trusts remain. History from sustainability certifications, however, warn of the danger of look-alike certifications with less stringent objectives. To avoid this, I argue, the certifying body should follow the model of Administrative Conference of the United States—a federal government agency that is composed of public and private members. The imprimatur of the federal government will add legitimacy to the proposal; the private element guards against capture.
3. Expanding the Rights of Nature
The broader task of environmental law is to integrate its current narrow framing with the Rights of Nature and environmental justice to create a meaningful, evolving, substantive area of law. This means looking beyond the statutory confines of environmental law. It means listening to what members of the public want for the environment and figuring out how to actualize it. It also means, as a field, engaging in robust debate.
Much as lawyers are called “deal killers” in corporate transactions because they spot the potential problems, so too must we bring skepticism to this project, however aligned we might be with its aims. Some ideas that sound good initially may prove ultimately detrimental. What is the worst that could happen? How could it be guarded against? Lessons learned from environmental law should also apply. If we impose on rural and landowner interests without consultation, they might derail even the clearest of laws. If elite legal architects discount the perspectives of underrepresented voices of women and people of color, our environmental law will not reflect our social values.
The difficult balance of brainstorming, experimentation, and debate may change the nature of the field. Environmental law scholars have long been aligned with one another, assessing the risk from the outside, and thus perhaps not pushing and challenging ideas far enough. But two crucial things have changed since the advent of environmental law. Public sentiment is increasing, and our field has matured. Unification in the fight for legitimacy is no longer necessary; in fact, it holds back the potential to create debate within the field that differentiates a field of scholarship from advocacy. We are ready for that leap; the world needs it. Boldly setting forth new ideas is essential. We can preserve the enviable norms of our field for supporting junior scholars, actively welcoming and encouraging women and people of color. But environmental law scholars must also look for vital and undeniable links between our fields and Indigenous law, animal law, health law, and corporate law.
Conclusion
Indigenous communities and nongovernmental organizations are investing heavily in creating Rights of Nature. Environmental law scholars might collectively choose to answer that call by taking the idea seriously and charting the theoretical and doctrinal pathways to breathe life into it. Although it is simpler to continue forward without critical examination of the past, our present environmental crises warn that is not enough. It is time for a radical reimagining of the human relationship with nature, a shift that must take place through law.
Environmental law scholars need not be the “deal killers” of bold, new ideas. Instead, it is our task to find throughlines in black letter law that create pathways to give legal life to social ideas. This Article strives to do just that—linking popular discourse on the Rights of Nature with its theoretical foundations and well-established statutory systems in the United States. It argues that Rights of Nature have become embedded in seldom-explored cracks and crevices of the law, waiting to be discovered and mined for ideas and new approaches.
This Article links the passion for Rights of Nature to the existing legal framework, providing a novel theoretical analysis and charting doctrinal pathways to institutionalize and actualize Rights of Nature in the United States. Desire and discourse are necessary but not enough. Legal and political institutions translate public will into law. Scholars, lawyers, and law students must act quickly to leverage public will for protecting nature into a powerful, enduring, and meaningful set of legal instruments. I identify three core steps for doing so: establishing trusteeship, institutionalizing sound governance models, and innovating legal routes to institutionalize emerging, continually evolving notions of Rights of Nature. Reframing environmental law like this expands the available remedies in a way that can respond to increased environmental challenges such as climate change, which existing statutes alone cannot address.
It could be the chosen task of a new generation of environmental law scholars to find the Rights of Nature, explore them, and expand them. The public enthusiasm behind Rights of Nature provides precisely such an opportunity. We are not confined to a dozen leading environmental law statutes or to history; our collective scholarly effort should not be limited to merely building upon what is, but also searching out what could be. The Rights of Nature are playing out across hundreds of seldom-explored sources of law in many courtrooms. Identifying them, creating typologies, and assessing outcomes—this is work worthy of the minds available to do it.
Environmental statutes, although vital, may have been a scaffold to build toward a more sophisticated reconciliation of capitalist and environmental values. At this moment in history, we have the combination of the urgent need, public will, and legal pathways to actualize sweeping change. Both the will and tools exist. We have the matches and the kindling—environmental law scholars can collectively choose to build the fire. I hope we do.
95 S. Cal. L. Rev. 1439
* Professor of Law and Mary Sigler Research Fellow, Sandra Day O’Connor College of Law, Arizona State University. Senior Sustainability Scientist, Global Institute for Sustainability, Arizona State
University. Faculty Affiliate, Classical Liberal Institute, New York University Law School. I am thankful for the comments provided by attendees at the University of Southern California Law Review Symposium, Christopher Stone: Assessing the Influence of “Do Trees Have Standing” (2022), the Rights of Nature: Opening the Academic Debate in the European Legal Context, University of Toulouse, IEJIJC, France, and Sustainability Conference of America Legal Educators, Arizona State University (2022). This Article benefitted greatly from comments by, and conversations with, Robin Kundis Craig, Michael
Livermore, Delphine Misonne Julien Betaille, John Knox, Hendrik Schoukens, Guillaume Chapron, and Jan Darpo. I am thankful for the outstanding research assistance of Sarah Brunswick, Caitlin Doak, and Clayton Kinsey
Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA – Note by Ha Chung
Note | Environmental Law
Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA
by Ha Chung*
From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 307 (2020)
Keywords: California Environmental Quality Act, Environmental Review Requirement
Although CEQA plays an important role in protecting communities from significant adverse environmental impacts, its self-executing nature allows it also to be used as a tool to halt or impede development for the wrong reasons. While many CEQA disputes are based on legitimate environmental concerns, CEQA litigation is also used to prevent development for discriminatory or nonenvironmental reasons. CEQA litigation is an attractive vehicle for this purpose due to overly broad standing requirements, unpredictable judicial results, extreme remedies, and attorney’s fees awards. Projects impeded by CEQA litigation include multifamily residential projects, homeless housing, health clinics, youth centers, and a multitude of other quasi-public uses. Since CEQA lacks uniform standards, local governments and developers must resort to costly overcompliance and guess work when confronted with the threat of litigation. To remedy the problem of CEQA abuse and unpredictability, this Note proposes moving away from judicial enforcement of CEQA and creating a state or regional agency dedicated to regulation, enforcement, and adjudication of CEQA.
Part I of this Note reviews CEQA processes, the history of exclusionary and discriminatory land use policies, and evidence of CEQA’s misuse for discriminatory and nonenvironmental reasons. Part II of this Note explores why CEQA is such an attractive tool for people to oppose development projects for exclusionary or nonenvironmental reasons and concludes that the judicial system is unsuitable for primarily enforcing CEQA. Part III proposes a dedicated agency that would handle adjudication, enforcement, and legislation under CEQA and discusses how the agency may fit into the broader environmental review process.
*. Senior Submissions Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.S. Environmental Science 2014, University of California, Los Angeles. I would like to thank Professor Robert H. Freilich for valuable guidance and feedback on earlier drafts of this note. In addition I would like to thank the staff and editors of the Southern California Law Review for their excellent work.
The Climate Crisis Is a Human Security, Not a National Security, Issue – Postscript (Comment) by Maryam Jamshidi
Postscript | Environmental Law
The Climate Crisis Is a Human Security,
Not a National Security, Issue
by Maryam Jamshidi*
Vol. 93, Postscript (November 2019)
93 S. Cal. L. Rev. Postscript 36 (2019)
Keywords: Climate Change, National Security
Climate change is one of the first issues in recent memory for which there has been public debate about treating a pressing matter as a national security concern. As recently as the September 20, 2019 Climate Strike in New York City, for example, activist Greta Thunberg described the climate crisis as an “emergency.”[1] Like much of the grassroots rhetoric on climate change, her demand gestures toward the sort of existential threat national security is designed to address. It is but one amongst a host of good reasons for treating the climate crisis as a security concern. Indeed, in the past, the U.S. government appeared to have recognized this and treated climate change as a national security issue as a result.[2] There were and continue to be equally good reasons, however, to worry about applying the national security label to climate change, which have largely been absent from public debate. These reasons include various threats to liberal democracy endemic to the national security sector, such as broadening and bolstering executive authority, reducing government transparency, increasing government secrecy, eroding civil liberties, and marginalizing disadvantaged groups. They also include the limited effectiveness of traditional national security solutions, which emphasize military-oriented strategies that adapt to rather than tackle the underlying causes of climate change.
This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change.[3] While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.
Part I of this Article briefly examines calls to treat climate change as a national security issue, specifically from within the grassroots climate change movement, and canvasses the benefits of doing so. Part II explores the downsides to securitizing climate change and demonstrates how a human security approach resolves these concerns. Overall, this Article accepts the view that a security-oriented attitude towards climate change is vital to meaningful action on the issue. It takes the position, however, that this approach must both align with liberal democratic values and facilitate solutions for mitigating the climate crisis. These changes to the prevailing security paradigm are unlikely to come from the state itself, which is invested in maintaining a state-centered view of security. It must, instead, be led by civil society—particularly the climate change movement, which has the most incentive to take action on these issues.
I. Climate Change as a National Security Issue
Over the last decade, various citizen-led groups, including 350.org, the Sunrise Movement, and the Extinction Rebellion, have drawn attention to climate change and focused on pushing corporations, governments, and intergovernmental institutions to act on the issue.[4] In raising the alarm bells, these and other groups have often used the crisis, war-framing rhetoric associated with the national security sector. Though they have not specifically invoked the term “national security,” various climate campaigners, like Bill McKibben and Naomi Klein, have described climate change as an extreme crisis requiring immediate action.[5] Other members of the climate movement have more explicitly aligned themselves with a national security framework. In 2015, the Sunrise Movement’s Twitter account tweeted: “‘The Pentagon says that #climate change poses immediate risks to our national security. We should act like it.’ #WaronClimateChange . . . .”[6] The 350.org website has applauded the U.S. military’s decision to securitize climate change and pushed for other government branches to do the same.[7] Still, other groups have urged application of particular national security laws and policies to climate change. The Youth Climate Strike organization has, for example, called for a national emergency declaration on the climate crisis.[8]
Both a normative and practical logic supports these demands. Most obviously, a national security approach is appropriate given the scope of the problem and the resources required to address it. According to an October 2018 report from the U.N.’s Intergovernmental Panel on Climate Change (“IPCC”), the impact of 2.7 degrees Fahrenheit of warming, which could be reached in as little as 10 years,[9] would lead to rises in sea levels, increases in ocean acidification, species loss and extinction, pervasive drought in some regions, and heavy precipitation in others.[10] The report predicts increased warming will erode human health, contribute to poverty, exacerbate food and water shortages, and negatively impact global economic growth.[11] To address these issues, “pathways limiting global warming to 1.5°C with no or limited overshoot . . . require rapid and far-reaching transitions in energy, land, urban, and infrastructure . . . . These system transitions are unprecedented in terms of scale . . . .”[12]
Treating climate change as a national security matter also creates legal opportunities for streamlining government responses. Among other things, it expands presidential authority to plan and invest in climate change adaptation within the United States, specifically at military installations.[13] More broadly, it gives the president latitude to respond to overseas humanitarian crises created by climate change, organize the military to deal with future climate threats abroad, and enter into sole executive agreements, like the 2015 Paris Agreement, that Congress is unlikely to ratify for partisan reasons.[14]
Finally, focusing on the national security dimensions of climate change may yield support from those holding stronger feelings about national security than the environment.[15] As scholars have argued, one of the most effective ways of generating attention is to describe an issue in national security terms; this often leads to increased “public focus, institutional power, and mobilization of resources . . . .”[16]
Despite the good reasons for treating climate change as a security issue, the conventional national security frame also has a number of downsides, including various threats to liberal democracy and conceptual presumptions about the best strategies for addressing the climate crisis. Human security can help mitigate these failings by placing people, instead of the state, at the center of climate initiatives, as discussed in the next section.
II. Securitizing Climate Change: Mitigating Costs through Human Security
When it comes to national security’s downsides, the erosion of democratic principles tops the list. Generally, over the last seventy years, national security has become synonymous with increased executive branch power, and diminished judicial and Congressional authority, all of which has harmed American democracy and the rule of law.[17] It has led to pervasive government secrecy;[18] the creation of secret evidence, secret law, and secret courts;[19] increased militarization of domestic government activities, including law enforcement;[20] and substantial restrictions on human and civil rights that have had adverse consequences for minority and immigrant communities. The government’s recent climate change policy, which has been defined by a national security framework, has been shaped by these trends. It has been almost exclusively dominated by intelligence gathering and various military initiatives dealing with climate-related issues.[21] In fact, in responding to recent natural disasters caused by climate change,[22] federal and state governments have relied on secrecy and militarized strategies,[23] which have had negative effects on marginalized communities. After Hurricane Katrina in 2005, for example, various government officials depicted minority black and brown communities as the enemy, used this rhetoric to justify government failures to meet their needs, and kept secret information vital to these communities in exercising their rights.[24]
On top of these democratic downsides, a traditional national security approach also exacerbates the disparities created by climate change. The concept of national security developed in response to national threats, like nuclear weapons, that had roughly the same impact on all people. Climate change, by contrast, has and will continue to have disparate impacts on different populations.[25] In particular, within the United States, climate change will have some effect on all regions,[26] but is expected to have the most negative consequences for poor and minority populations.[27] With its emphasis on the nation as a whole, as opposed to individual communities, a conventional national security framework is unlikely to address these differential costs.
Finally, national security places conceptual limitations on addressing climate change. Most solutions to national security problems prominently feature a militarized or military-focused approach. These strategies are less suited to the global coordination, as well as social, economic, and political transformations, necessary to mitigate climate change. When it comes to tackling the crisis, a mix of policies relating to human well-being, economic development, and environmental protection must be adopted by all states.[28] A predominantly military approach is more likely to emphasize armed conflict and the security of military installations over these development-oriented policies.[29] In particular, a national security framing increases the chances military force, not diplomacy, will be used against countries that are recalcitrant in addressing the climate crisis[30]—a result that undermines, rather than bolsters, coordination between states.
The concept of human security avoids these disadvantages while preserving the benefits of securitizing climate change. Initially articulated by the U.N. in 1994, human security has two main components.[31] First, it requires that states protect people from chronic dangers, like hunger, disease, oppression, and environmental degradation.[32] Second, it demands that governments work to reduce substantial disruptions to people’s daily lives.[33] This “durable” approach emphasizes the inter-relationship between various components of security, including economic, food, health, environmental, personal, community, and political security.[34] A human security framework places the onus on governments to work towards achieving all these elements of security.[35] This obligation extends to meeting the human security needs of the international community, more broadly.[36]
Rather than blunting the benefits of a security frame, human security strengthens them by connecting security directly to people’s survival and flourishing. As a result, a human security paradigm is likely to sustain and even increase public attention to security-related issues, as well as the institutional focus and resources that come with it. It also rectifies national security’s many shortcomings. This includes challenging assumptions that security is best and most effectively achieved through unilateral executive action. Of course, human security does not entirely prohibit these sorts of activities, which are reflected in various laws facilitating presidential engagement on climate change. Nevertheless, it challenges assumptions that the president should always have exclusive authority over national security matters. It suggests, instead, that security is something inter-governmental and non-governmental organizations, as well as grassroots civil society actors, social movements, and influential individuals, have a role in creating and sustaining.[37] To facilitate this public involvement in national security decisionmaking, human security privileges government transparency over secrecy.
Significantly, human security can help mitigate national security’s civil and human rights problems. In the national security context, derogations from these rights are often considered permissible for security’s sake.[38] At times, governments have even used national security to justify emergency measures typically disallowed in liberal democracies because of their threat to individual liberty.[39] Under a human security approach, by contrast, human and civil rights are paramount.[40] Focusing on the rights of people, both as the objects and providers of security, challenges the notion that states of emergency and other suspensions of liberal, democratic norms are the best or only way of achieving security.[41]
As for national security’s strategic limitations, a human security approach yields three distinct benefits. First, unlike national security, human security de-emphasizes military strategies and emphasizes investment in development initiatives. In particular, it promotes reductions in military budgets and reallocation of funds to development work. Though human development and security are distinct, poverty and social inequality undermine the physical, material, and political wellbeing of individuals.[42] In many countries, like the United States, military spending eats up resources necessary to tackling these pressing issues.[43] By linking security to sustainable development, rather than to the military’s might, human security points dollars toward the former.[44]
Second, human security facilitates the integrated, interstate solutions necessary to address climate change. When it comes to tackling the climate crisis, experts agree that richer states must shoulder more of the economic burden and provide a range of support to poorer states.[45] Domestically, a similar redistribution of resources is necessary to realize environmental justice and ensure the most vulnerable are protected from climate change.[46] These cooperative strategies are precisely the sort of activities supported by human security, which emphasizes the connections between people and their responsibilities to one another.
Third, human security’s people-centered approach provides a basis not only for top-down, but also bottom-up approaches to climate change.[47] Addressing climate change requires both government regulation and decentralized action by citizens. As Naomi Klein has argued,
[t]here is a clear and essential role for national plans and policies—to set overall emission targets that keep each country safely within its carbon budget . . . . But if these transitions are to happen as quickly as required, then the best way to win widespread buy-in is for the actual implementation of a great many of the plans to be as decentralized as possible.[48]
Of course, to be meaningful, a human security approach to climate change must be reflected in government policy. Even with a change of administration, achieving that goal will require overcoming multiple challenges. They include confronting intra-government actors invested in taking a military-first approach to climate change; building substantial political will within government to take public demands about climate change’s securitization seriously; and ensuring those demands remain rooted in a cosmopolitan notion of human security, rather than a nationalistic or nativist one.
The first step, however, is to understand how human security leads to better outcomes than a traditional national security framework, both for democracy, as well as for efforts to solve the climate crisis. The climate change movement would be well-served to prioritize this issue sooner rather than later—lest its calls to treat climate change as a serious security threat are accepted and government policies are adopted that do more harm than good.
[*]. Assistant Professor of Law, University of Florida Levin College of Law. For helpful comments and conversations, I am grateful to Sarah Bishop, Seth Endo, Anastacia Greene, Andrew Hammond, J. Benton Heath, Merritt McAlister, Paul McGovern, Mark Nevitt, Aziz Rana, Andrew Winden, and Ehsan Zaffar. Thank you to the editors at the Southern California Law Review for their thoughtful review of this piece. All errors are my own.
[1]. Kalhan Rosenblatt, Teen Climate Activist Greta Thunberg Delivers Scathing Speech at U.N., NBC News (Sept. 23, 2019, 9:28 AM), https://www.nbcnews.com/news/world/teen-climate-activist-greta-thunberg-delivers-scathing-speech-u-n-n1057621 [https://perma.cc/975U-JWFB].
[2]. Mark P. Nevitt, The Commander in Chief’s Authority to Combat Climate Change, 37 Cardozo L. Rev. 437, 443–44 (2015). The administration of President Donald Trump has moved away from treating climate change as a national security issue. Michael T. Klare, The Surprising Ally in Fighting Global Warming, Daily Beast (Sept. 21, 2019, 5:07 AM), https://www.thedailybeast.com/the-surprising-ally-in-fighting-global-warming-the-pentagon [https://perma.cc/N67W-LM6G].
[3]. While some have advocated for treating climate change as a human security issue, they have not considered competing arguments in favor of a national security framing. See, e.g., Karen O’Brien, Asuncion Lear St. Clair, & Berit Kristoffersen, The Framing of Climate Change: Why It Matters, in Climate Change, Ethics, and Human Security 3, 4 (Karen O’Brien et al. eds., 2010). In particular, they have failed to consider the costs and benefits of each approach, a gap which this Essay attempts to fill.
[4]. “Falter”: In New Book, Bill McKibben Asks If the Human Game Has Begun to Play Itself Out, Democracy Now! (Apr. 15, 2019), https://www.democracynow.org/shows/2019/4/15 [https://perma.
cc/8GRE-6PH5].
[5]. A Natural Solution to the Climate Disaster, The Guardian, (Apr. 3, 2019, 1:00 AM), https://www.theguardian.com/environment/2019/apr/03/a-natural-solution-to-the-climate-disaster [https://perma.cc/7SVZ-S3LW].
[6]. Sunrise Movement (@sunrisemvmt), Twitter (Jan. 20, 2015, 6:55 PM), https://twitter.com/
sunrisemvmt/status/557733287649882112 [https://perma.cc/97QG-CXH7].
[7]. Anna Goldstein, Climate Change and National Security: The Low Down on the National Security Strategy, 350.org (Dec. 21, 2017), https://350.org/climate-change-national-security-the-low-down-on-the-national-security-strategy [https://perma.cc/97SZ-BMPP].
[8]. Youth Climate Strike, Action Network, https://actionnetwork.org/event_campaigns/youth-climate-strike [https://perma.cc/57MG-S4T5].
[9]. Intergovernmental Panel on Climate Change, Global Warming of 1.5°C, Summary for Policymakers 6 (2018), https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_
SPM_version_report_LR.pdf [https://perma.cc/8SVL-QTKB] [hereinafter 2018 IPCC Report].
[10]. Id. at 9–11.
[11]. Id.
[12]. Id. at 17.
[14]. Id. at 477–83, 499–502.
[15]. Sarah E. Light, Valuing National Security: Climate Change, the Military, and Society, 61 UCLA L. Rev. 1772, 1778 (2014).
[16]. Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1705 (2011).
[17]. David Rudenstein, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order 7 (2016).
[18]. Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within, 115 Yale L.J. 2314, 2319 (2006).
[20]. Lisa Grow Sun & RonNell Anderson Jones, Disaggregating Disasters, 60 UCLA L. Rev. 884, 917–18 (2013).
[21]. U.S. Dep’t of Defense, 2014 Climate Change Adaptation Roadmap (2014), http://ppec.
asme.org/wp-content/uploads/2014/10/CCARprint.pdf [http://web.archive.org/web/20170127042339/
http:/ppec.asme.org/wp-content/uploads/2014/10/CCARprint.pdf]; Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879, 881, 906 (2014);
[22]. Amina Khan, Fires, Droughts and Hurricanes: What’s the Link Between Climate Change and Natural Disasters?, LA Times (Dec. 5, 2017, 11:25 AM), https://www.latimes.com/science/sciencenow/
la-sci-sn-climate-change-natural-disasters-20170907-htmlstory.html [https://perma.cc/ZS6F-XFMY].
[24]. Id. at 942.
[25]. 2018 IPCC Report, supra note 9, at 20; David Wallace Wells, The Uninhabitable Earth: Life After Warming 132 (2019); Michelle Melton, Climate Change and National Security, Part II: How Big a Threat Is the Climate?, Lawfare (Jan. 7, 2019, 12:45 PM), https://www.lawfare
blog.com/climate-change-and-national-security-part-ii-how-big-threat-climate [https://perma.cc/J2FC-NJKS].
[26]. Leah Burrows, From Sea to Rising Sea: Climate Change in America, Harv. U. Ctr. for Env’t (Sept. 19, 2017), https://environment.harvard.edu/news/faculty-news/sea-rising-sea-climate-change-america [https://perma.cc/5EK5-TM2C].
[27]. Douglas Fisher, Climate Change Hits Poor Hardest in U.S., Sci. Am. (May 29, 2009), https://www.scientificamerican.com/article/climate-change-hits-poor-hardest [https://perma.cc/QTE4-VE7L].
[29]. Donald Wallace, Introduction: Security and Global Climate Change, in Climate Change, Policy and Security: State and Human Impacts 1, 10–11 (Donald Wallace & Daniel Silander eds., 2018).
[30]. Id. at 25–26.
[31]. United Nations Dev. Programme, Human Development Report 1994, at 22 (1994), http://hdr.undp.org/sites/default/files/reports/255/hdr_1994_en_complete_nostats.pdf [https://perma.cc/
9Z3J-FUJK] [hereinafter Human Development Report 1994].
[32]. Id. at 23.
[33]. Id.
[34]. Id. at 24–25.
[35]. Giorgio Shani, Introduction: Protecting Human Security in a Post 9/11 World, in Protecting Human Security in a Post 9/11 World 1, 6-7 (Giorgio Shani et al. eds., 2007).
[36]. Rep. of the High-Level Panel on Threats, Challenges & Change, A More Secure World: Our Shared Responsibility, U.N. Doc. A/59/565, at 21–22 (Dec. 2, 2004).
[37]. David Andersen-Rodgers & Kerry F. Crawford, Human Security 15–16, 44–49 (2018).
[38]. Id. at 41–42.
[41]. See id. at 21–30.
[43]. Id. at 50.
[44]. Id. at 58–60.
[45]. Larry Elliott, Do More to Help Poor Nations Cope with Climate Change, IMF Tells Rich Countries, The Guardian (Sept. 28, 2017, 1:49 AM), https://www.theguardian.com/business/2017/
sep/27/do-more-to-help-poor-nations-cope-with-climate-change-imf-tells-rich-countries [https://perma.
cc/4TXK-8P8G].
[46]. Environmental justice focuses on addressing inequalities created by environmental protection efforts in low-income and minority communities. James M. Van Nostrand, Energy and Environmental Justice: How States Can Integrate Environmental Justice into Energy-Related Proceedings, 61 Cath. U. L. Rev. 701, 702 (2014).
[47]. Yoichi Mine, Downside Risks and Human Security, in Protecting Human Security in a Post 9/11 World, supra note 35, at 64, 67.
[48]. Naomi Klein, This Changes Everything: Capitalism vs. the Climate 133 (2014).