Andrew Cliburn

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“[W]hy do men persist in destroying their habitat?”[1] Enlightenment theories situating the human species outside its habitat have been so successful that we persist in meaning “nature” to be something other-than-human.[2] This way of viewing our habitat as something out there, and not here, surely enables our exhaustive—indeed accelerating—destruction of Earth.[3] The rights of nature movement has emerged from an anti-Enlightenment jurisprudence as one pathway to address this dilemma.

The rights of nature movement argues that legal systems should grant natural entities “personhood” with such basic rights as legal standing and constitutional liberty protections.[4] Many people may find the notion that the law might consider a river or a forest as a legal person absurd.[5] However, the dominant culture once considered giving legal rights and granting personhood to slaves, juveniles, “incompetents,” Chinese immigrants, women, corporations, trusts, and ships “unthinkable.”[6] Before granting legal personhood, the dominant group thought of the entity as mere property.[7] Moreover, to the extent we take for granted today that a corporation enjoys the full range of legal rights, we perhaps forget that Chief Justice Marshall once dryly remarked that corporations are “immaterial.” [8] Natural entities, on the other hand, we  know from experience, have the consequence of being both material and living. However, to date, efforts to get the law to recognize natural entities as legal persons have been largely unsuccessful because courts in the United States have very restrictive standing requirements.[9]

What if, instead of waiting for the courts, we—as citizens—established a living paradigm by weaving together international peoples’ tribunals, Indigenous cultural knowledge, and recent developments in New Zealand, India, and Ecuador to propose extra-judicial court “proceedings”? These peoples’ tribunals would take place under the aegis of democratic engagement.[10] Consequently, this Note builds upon the famous rights of nature theorist Dr. Michelle Maloney’s call to establish more citizen tribunals to hear rights of nature cases.[11]

This Note argues that peoples’ tribunals can bring rights of nature to local communities throughout the United States without requiring either the state or federal judiciary—at least at first. Part I will discuss the catastrophic conditions we have created and describe how rights of nature has emerged as a legal paradigm to address it. Part II will discuss examples of analogous human rights tribunals from around the world, and the growing number of rights of nature legal mechanisms fully incorporated into law. Part III will weave the diverse strands together from Part II into a coherent description of an extra-judicial body whose purpose is to adjudicate the rights of natural entities as if the results were binding. Part III will argue that this mechanism can move swiftly enough to slow down the destruction of our habitat. Waiting for the courts and legislatures to catch up has so far not worked, and there is no reason to believe they will change quickly enough to avoid disaster.

[1] Paul Shepard, Nature and Madness 1 (1982).

[2] Cormac Cullinan, Wild Law 44 (2^nd ed. 2011).

[3] See Stockholm Resilience Centre, The Nine Planetary Boundaries (Sept. 17, 2009), https://www.stockholmresilience.org/research/planetary-boundaries/planetary-boundaries/about-the-research/the-nine-planetary-boundaries.html (describing nine planetary boundaries that, once crossed, represent uncontrollable tipping points accelerating catastrophe).

[4] Christopher D. Stone, Should Trees Have Standing?: Law, Morality, and the Environment 1–2 (2010).

[5] Id. at 2 (“Throughout legal history each successive extension or rights to some new entity has been, theretofore, a bit unthinkable.”).

[6] Id.

[7] Id. (describing how United States Supreme Court could “straight-facedly” in Dred Scott declare Bill of Rights protections not available African-Americans because they were “a subordinate and inferior class of beings, who had been subjugated by the dominant race.”).

[8] Id. (recounting Justice Marshall’s rhetorical question in Bank of United States v. Deveaux, 9 U.S. 61, 86 (1809), can a suit be brought in the name of “[t]hat invisible, intangible and artificial being, that mere legal entity[?]).

[9] Id. at 1 (“The world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnership, an nation-states, to mention just a few.”); see also Massachusetts v. E.P.A., 549 U.S. 497, 535–36 (Roberts, C.J., dissenting) (“I would reject these [state climate disaster] challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists . . . This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here . . .  not [appropriate for] the federal courts.”); see also Lindsay Fendt, Colorado River ‘Personhood’ Case Pulled by Proponents, Aspen Journalism (Dec. 5, 2017), https://www.aspenjournalism.org/2017/12/05/colorado-river-personhood-case-pulled-by-proponents/ (reporting that case brought on theory that river had Fifth and Fourteenth Amendment due process rights voluntarily dismissed on pain of threat of sanctions against counsel of record).

[10] See generally Vandana Shiva, Earth Democracy: Justice, Sustainability, and Peace 4 (2005) (laying out new approach called Earth Democracy grounded in eco-feminist and post-colonialist critiques in which communities retake sovereignty—particularly with respect to agriculture—from nation-states and predatory international capitalist enterprises).

[11] Michelle Maloney, Building an Alternative Jurisprudence for the Earth: The International Rights of Nature Tribunal, 41 Vt. L. Rev. 129, 131 (2016).