Granting Nature the Status of Legal Person
In the last decade, the environment and a number of water bodies have been given the rights and granted the status of legal personality through legislations or through court decisions. The personification of nature is not new. Humans have long considered their environment or some of its main components are living creatures or even gods. These components, however, were outside or above the law.
Despite all the laws and treaties adopted to protect the environment, the environment is deteriorating. Humans now feel that the environment should be granted rights and status not just for their sake but for the environment’s own survival. This promoted humans to grant nature the status of a legal person like corporations, public agencies, or civil associations.
The rights to nature have been granted either by legislations or through the judicial process. In the United States, municipal ordinances recognizing the right of nature to exist, thrive and evolve have been adopted since 2006 in several states through grass-roots initiatives spearheaded by the Community Environmental Legal Defense Fund. Latin America was next to adopt legislation on the rights of nature by recognizing the rights of the Vilcabamba River. A number of courts around the world have also taken steps to recognize the rights of nature in the absence of enabling legislation. In 2016 the constitutional court of Columbia recognized the Atrato River as a legal person. [i]
Recently in February 2019, Lake Erie, situated on the International boundary between Canada and the US, was granted its own environmental bill of rights by the City of Toledo. The bill was modeled after the Community Environmental Legal Defense Fund’s proposal for a rights to nature law. The bill introduced that Lake Erie has the right to “exist, flourish and naturally evolve”.
Background of Lake Erie Bill of Rights
Lake Erie is the main source of water to approximately 11million residents in both Canada and the US. In the mid 20th century, history of the water quality problems started due to the increase in the number of harmful algal blooms in Lake Erie which is mainly attributed to the Maumee River watershed which drains into Lake Erie.
The Maumee River is highly polluted due to agricultural activities that drain excessive fertilizer and manure into Maumee River, contributing Nitrogen and Phosphorus pollution into the Maumee River that feeds the harmful algal blooms in the Lake Erie.
Several collective policies by Canadian and US governments were adapted like the Clean Water Act, 1972; the Great Lakes Water Quality Act, 2015 which receded the levels of harmful algal blooms in Lake Erie. But in mid-1990s algal blooms returned and accordingly the Great Lakes Water Quality Act was amended in 2012. But the main reason which prompted the passing of the bill was the 2014 drinking water advisory which left 500,000 people on lake Erie without tap water for days. The advisory was a result of unsafe levels of the algal toxin, largely caused by runoff pollution. [ii]
Rights of Lake Erie as a Legal Person
A legal person is the recognition of a specific entity as being capable of bearings rights and duties in law, and although it is a profound statement about who matters to the law, it does not necessarily confer any moral worth.
Legal rights are not the same as human rights. Legal personhood typically confers these specific rights:
- The right to sue and be sued ;
- The right to enter into and enforce contracts;
- The right to own and deal with the property;
- Right to exist; and
- Right to evolve naturally
The right to sue and be sued is commonly referred to as legal standing and is seen as the most important right which enables the Lake Erie to take legal action to protect itself, without having to demonstrate harm to human users of the lake.
The legislation empowers citizens to advocate for the above rights when they are violated, like bringing legal suits against polluters. [iii]
Arguments in Support of Lake Erie Bill of Rights
The supporters of the bill argue that nature has inherent value, having moral significance independent of the use of human beings. Implying that the supporters value the intrinsic qualities of nature rather than its instrumental value to humans.
Supporters advocate that granting the status of personhood to natural entities provides many benefits. In fact, many national and state governments have successfully passed legislation extending rights to nature that stood the test of time. For example, the U.S. federal government has enacted a number of environmental and health and safety laws that grant residents the right to file litigation when the government authorities fail to protect natural ecosystems. But for launching the litigation the residents and environmental groups usually have to be granted standing to bring action and often have to prove humans or endangered species have directly suffered (or will suffer in future) an injury. This is where legal experts expect that the creation of a new separate legal personality for Lake Erie will help the most. [iv]
Moreover, the regulatory authorities are often slow to prosecute due to many reasons like political pressure, budget constraints, understaffing, etc. These failures have led to increased levels of algal blooms in Lake Erie.
Thus granting lake Erie a separate legal personality will allow the residents and environmental groups to bring an action on the behalf of Lake Erie without having to rely on the regulatory authorities or prove humans have directly suffered an injury.
Arguments Against the Lake Erie Bill of Rights
Those who oppose the bill believe that how can humans decide what is best for the natural entities and how it will be determined that whose opinion will prevail?
Since the formation of the earth for around millions and millions of years and over the course of that time, an infinite number of species have become extinct due to a number of reasons one of which was lack of evolution. Some species are just simply better suited for survival. Therefore some argue that the same thinking should be applied today. If a species is not able to evolve to meet the challenges of the living world dominated by human activity and its side effects, the humans owe no more to that species. The struggle for existence is seen fundamentally natural, something that humans should not attempt to interfere with. [v]
Moreover, it is believed that there is no need to create a new separate legal personality as the same purpose could be served by slightly modifying the conventional laws so as to provide humans new rights to protect the natural environment. In fact, the citizens of Toledo explicitly stated that obtaining this right to a healthy environment was one of the main motivations for extending Lake Erie’s legal rights.
Lawsuit on Lake Erie Bill of Rights
A lawsuit was filed by local farmers against the passing of the Lake Erie Bill in the U.S. District Court alleging that the bill is unconstitutional and unlawful, and puts them at massive liability and financial risk.
On February 27,2020 US District Court Northern District of Ohio, struck down the Lake Erie Bill of Rights on the grounds that the bill was unconstitutionally vague and cited that it may trap the innocent by not providing fair warnings and may lead to arbitrary enforcement by prosecutors, judges and juries. [vi]
