[In my 26feb14 post on 'The Rights of Nature' I invited Ms Robin Milam of the Global Alliance for the Rights of Nature to respond.  She has kindly submitted the following response to the points I raised, and expanded on a number of other issues that are salient to incorporating the rights of nature into our lives and how we are to be governed.  I thank her for the following thoughtful and thorough essay, and hope that RR readers will gain greater insight to the structure, magnitude, and direction of this movement. gjr]

Robin R Milam, Global Alliance for the Rights of Nature theRightsofNature.org

In response to George Rebane’s February 26, 2014 Rebane’s Ruminations – The Rights of Nature  http://rebaneruminations.typepad.com/rebanes_ruminations/2014/02/the-rights-of-nature.html

Preface and underlying assumptions

Our legal systems frame how we as a society relate to each other and to our planet. A predominant underlying assumption in legal systems of today's industrialized world is that humans are separate from nature and the natural systems that sustain life.  Our legal systems treat natural ecosystems as property to be bought, sold and consumed. A second underlying assumption is that our planet has unlimited natural resources to feed an economic system that assumes and encourages a continuum of perpetual growth. The reality is we as a human race are part of a tightly interrelated, interdependent Earth community and our planet does have a finite carrying capacity to support life as we know it. Our legal structures and economic systems are designed for humans to dominate the natural world rather than encourage the natural balance inherent in our interconnectedness.

Since the Industrial Era began, human activity has had an increasing effect on pollution of fresh water sources, climate change, extinction of plant and animal species, acidity of the oceans, toxic waste contamination as well as other environmental impacts.  We have instituted a plethora of Environmental Protection Laws – the Clean Air Act, the Clean Water Act, and similar state laws to limit the negative impact of our society. Rather than preventing pollution and environmental destruction, these laws instead codify it by setting acceptable pollution limits.  In addition, under commonly understood terms of preemption, once these activities are legalized by federal or state governments, local governments are prohibited from banning them. Thus in spite of the improvements afforded by these laws, our planet today is in worse condition than it was 40 plus years ago when the Environmental Protection Acts were first enacted.  The system is not working.

The Rights of Nature movement proposes that to address the significant issues of our time including the condition of our planet, we need to re-examine the fundamental assumptions about our human relationship with the Earth Community and realign our legal and social systems accordingly.  In pragmatic terms a growing number of US communities are asserting a community rights-based approach to addressing specific threats to the quality of life, health, safety and welfare of their communities. They are finding that recognizing rights of natural systems, in partnership with limiting the overreaching hand of a dominant corporate arm, has provided a legal tool for protecting the rights of their community and a stepping stone for realigning legal structures.  Later in this document I provide examples of communities who have implemented rights-based ordinances.  First let’s establish a common base for what we mean by rights and rights of nature.

What are Rights?

Our country’s Declaration of Independence asserts, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men.” 

In your segment on Rights and Privileges (updated 13apr2010) you outline distinctions regarding rights because, as you note, rights and privileges is an area that is misunderstood.  The concepts related to rights is an area that is highly debated among authors of many disciplines particularly philosophy, law, political science, logic and deontology or moral obligation.  It is not a debate that will end here. 

I will address a few distinctions that hopefully we can agree on.  With respect to: "Searching for the prime distinctions from the foregoing in order to render a succinct definition, we understand that 1) the grantor must be a collectively founded agency with an established and widely accessible social code, and 2) the granting agency must commit itself to and actually carry out the enforcement of the rights that it grants its individual members."  Our ultimate goal is that the granting entity is a legal entity i.e. a community, county, state or national/federal government. 

Our laws are the codification of societal values, customs, and norms.  Our understanding and interpretation of rights is likewise based on our society's customs, laws, and statutes. With rights of nature we are starting with the premise of a natural (universal, more or inalienable) right.  The intention is to codify the natural inalienable rights of nature in much the same way we have codified the inalienable rights of humans, thus recognizing the natural right as a legal right when recognized by a governing legal system. 

The question becomes one of not what is a right but who/what is entitled to be recognized as a subject of rights according to the law and can that right be granted equally.  One of the rights that our legal systems grant relates to having “standing” or “locus standi” in a court of law, i.e. to be a subject of the law and have ones rights be defended.

Rights of Nature and Underlying Assumptions

Albert Einstein, theoretical physicist and one of the great thinkers of modern time, wrote “A human being is a part of the whole, called by us "Universe," a part limited in time and space. He experiences himself, his thoughts and feelings as something separate from the rest—a kind of optical delusion of his consciousness.”  The New Quotable Einstein by Alice Calaprice (Princeton University Press, 2005: ISBN 0691120749), a letter dated February 12, 1950, p. 206.

With Rights of Nature, the fundamental underlying assumption is that we humans are an interrelated, interdependent integral part of the “Universe”.  Without the life giving elements of water, air, earth, plants, and integral cycles such as photosynthesis, human life would cease to exist. And, just as we hold to the truth that humans have a right to life, liberty and the pursuit of happiness, recognizing rights of nature acknowledges that natural communities including humans, have a right to life:  more specifically the right to exist, to regenerate, and to maintain their integral cycles.

Through the codification of these rights, an ecosystem itself can be named as a rights bearing subject with standing or locus standi in a court of law. In contrast, most current legal systems treat ecosystems as an object of the law with no standing. Furthermore, we as human society have the legal authority and responsibility to enforce these rights on behalf of our earth's ecosystems. Humans serve as guardians for natural systems in much the same way humans act as legal guardians for children.

Moreover, Rights of Nature is not about granting rights to a tree or to a single animal.  It is about recognizing the rights of the whole in the context of our Earth Community. Just as humans have the right to life, so does the broader Earth Community and her integral ecosystems.  If we are to truly recognize our inalienable right to life as humans, we must recognize the right of the life-sustaining elements without which we humans cannot survive. As such our rights as humans are deeply intertwined with the rights of nature. 

Broader Rights Movement

Let’s go back to our legal system and the legal framework of rights for a moment. As a human society, our values and social norms are evolving.  The United States continually updates our laws and regulations.  At certain points in time it becomes necessary to amend our Constitution in order to realign it with our social norms and values.  It was a position held by Thomas Jefferson who in a letter to James Madison, stated “Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right.” Thomas Jefferson to James Madison, 1789. ME 7:459, Papers 15:396

The statement in the Declaration of Independence about inalienable Rights starts with the assertion “We hold these truths to be self-evident, that all men are created equal.”  At the time of their ratification, the Constitution and its Bill of Rights Amendments did not in fact treat all men or all humans in the same way. Jefferson wrote those words as a brilliant statesman who was also a white, male, slave and plantation owner. At that point in our history, slavery was both legal and a primary tenet of the US economy, especially in the South.

The constructs our Founding Fathers built into the Constitution reaffirmed equality for white males, most of whom were land owners.  Their wives were not granted the right to own property in their name, to keep their own wages, or even to vote.  For a significant number, the people who toiled in their fields and nursed their children were slaves owned by the landowner.  Slaves had no right to own property and no vote or say in the social systems that dictated their fate. They were bought and sold at the whim of their owners; families were separated for breeding or whatever financial purpose their owner was pursuing.

Eighty years after ratification of the US Constitution, it took a civil war before slaves were freed and black men were given the right to vote.  The 13^th, 14^th and 15^th Amendments were followed by more than a century of a prominent Civil Rights movement to guarantee and expand their rights. 

For women, a married woman could not own property in her own name or keep her own earnings until mid-1800 in some states and until 1900 in all US stares.  It was not until 1920 – over 130 years – that the 19^th Amendment granted women the right to vote. 

The point in reviewing the rights movement in our country is to acknowledge that the changes we are proposing will not happen overnight.  The debates are heated and the subject highly contested – as has been the case through the broader rights movement.  Nonetheless they do represent the fact that our values and sense of moral ethics evolve over time. 

Fundamentally, today, we treat life-sustaining natural systems in much the same way we once treated slaves.  Just as social values have shifted over the course of the last 250 years, we are in a new transformational period in our thinking especially with respect to our relationship with earth.  Industrialization has propagated a globalized economic system that is out of balance.  As a result we have created social structures that propel us into extraction systems that are exceeding the carrying capacity of our planet and degrading precious life giving resources. 

As were look to restoring balance, I submit that it is important, appropriate and healthy to reexamine the fundamental values and tenets that frame how we as a society relate to each other and our larger earth community. At the core is the recognition of our interdependencies.  The survival of future generations is dependent on our not just recognizing, but deeply owning, that other forms of life have a comparable right to life and to maintain their vital cycles as we humans have.

Sample Cases in the United States

A growing number of communities throughout the US working with the Community Environmental Legal Defense Fund (CELDF) have adopted local rights-based ordinances which affirm the community’s right to self-governance combined with the recognition of the rights of natural communities and limits to overreaching corporate personhood rights.  Across the US the issues vary.

Sewage Sludge Ordinance – Tamaqua Borough, PA

The first recognition of Rights of Nature occurred in 2006 when the township of Tamaqua Borough, PA asserted its right as a community to say no to the land application of sewage sludge by large corporate agriculture in order to protect the health and safety of its citizens, land and rivers via the Tamaqua Borough Sewage Sludge Ordinance.    

According to the ordinance "In 1994, eleven-year-old Tony Behun from Rush Township, Centre County, Pennsylvania, died from a staph infection shortly after being exposed to sewage sludge. The following year, seventeen-year-old Daniel Pennock from Reading, Pennsylvania, died from a staph infection shortly after being exposed to sewage sludge. The U.S. Environmental Protection Agency (EPA) recognizes staph as a potential pathogenic component of sewage sludge.

In spite of these risks, Tamaqua Borough has been rendered powerless by the state and federal government to prohibit the land application of sewage sludge by persons that comply with all applicable laws and regulations."

The intent of the ordinance is to recognize a legal means whereby Tamaqua Borough can ban land application of harmful sewage sludge in order to protect the health, safety and the general welfare of the citizens and environment of Tamaqua Borough.  Key provisions include the recognition that:  “Borough residents, natural communities, and ecosystems shall be considered to be “persons” for purposes of the enforcement of the civil rights of those residents, natural communities, and ecosystems.” (Section 7.6)

Compensatory and punitive damages paid to remedy the violation of the rights of natural communities and ecosystems shall be paid to Tamaqua Borough for restoration of those natural communities and ecosystems. (Section 12.1) 

And “Any Borough resident shall have standing and authority to bring an action under this Ordinance’s civil rights provisions, or under state and federal civil rights laws, for violations of the rights of natural communities, ecosystems, and Borough residents, as recognized by sections 7.6 and 7.7 of this Ordinance.”  (Section 12.2)

Tamaqua Borough Corporate Waste and Local Control Ordinance

A second, similar ordinance is the 2007 Tamaqua Borough Corporate Waste and Local Control Ordinance.  A coal mining operation in an immediately adjacent neighboring community was converting its mine plant to a toxic waste dump site.  The issue confronting Tamaqua Borough was that the dump site was outside the community but presented a serious threat of contamination to the air, land and water systems within the Borough.  The ordinance prohibits the storage and dumping of dredged material, coal ash, sewage sludge, construction and demolition (C&D) waste, radioactive material, and other waste deemed by the Borough to be hazardous, toxic, or dangerous.”  Provisions of the Corporate Waste and Local Control Ordinance reaffirmed the rights of the community to a healthy environment, the rights of the natural communities, and limits to corporate personhood which had preempted individual and community rights.

Numerous other communities throughout the Midwest and Northeast have implemented similar ordinances. Hydraulic fracking has become the focus of many community rights ordinances which include rights of nature as a tool for protecting community aquifers and regional ecosystems.

Western Nevada County Local Application

Residents of North San Juan and Western Nevada County are protesting the proposed opening of the San Juan Mining Corporation.  When the mine was in operation as Siskon Gold in 1996, local wells of residents, Grizzly Hill School, and North Columbia Schoolhouse Cultural Center went dry.  While Siskon deepened and replaced the wells, poor water quality required treatment and filtering of a number of these wells. The concern with the proposed mine opening is that additional wells will go dry and that mining operations threaten to further contaminate local wells. A local community rights based ordinance could provide an additional legal tool for the community to assert their right to protect the quality and volume of water in wells on their personal property as well as community property such as Grizzly Hill School and the Cultural Center and the broader aquifers which extend well beyond the community boundaries.

Rio+20 and United Nations Advocacy

As for our advocacy directed toward the United Nations and the Rio+20 Earth Summit, aka United Nations Conference for Sustainable Development, members of the Global Alliance of the Rights of Nature have directed energies toward influencing UN policy for a very specific reason.  Whether or not we agree with the decisions and direction of the UN, we recognize that the United Nations is a highly influential global force in today’s world. 

Promoting dialogue through the UN has had significant impact on world views and societal norms.  In December 1948, the UN adopted the Universal Declaration of Human Rights.  That Declaration is the universal “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,”

While that aspirational document was not legally binding, the Human Rights Declaration has inspired legally binding human rights treaties around the world.  According to the UN, “the UDHR has inspired more than 80 international human rights treaties and declarations, a great number of regional human rights conventions, domestic human rights bills, and constitutional provisions, which together constitute a comprehensive legally binding system for the promotion and protection of human rights.”    

A formal United Nations endorsement would accelerate an expanded global examination of Rights of Nature and what a society grounded in Rights of Nature looks like. For this reason, colleagues and I have participated in selected UN hosted assemblies in order to advocate endorsement.  

In Summary

In proposing the recognition of Rights of Nature, are we charting new territory and figuring it out as we go, as one of your readers has accused? Yes of course … But then that is exactly what the international banking system, economists, politicians, corporate executives, and others at the helm of globalization are doing as well. 

Certainly the earth and all elements of the earth community are in a constant state of change and evolution. Human life and the life of any species on our planet will ultimately disappear regardless of what actions we as human society take.  But we do have choices about our contribution to the rate at which we accelerate the loss of species on our planet. Many of us will argue that the earth will take care of herself.  And regardless of our actions today, at some point in time, the human race, like dinosaurs and so many other species will cease to exist.

As an intelligent citizen of the industrialized modern world, I feel a responsibility to myself and to future generations to engage in a deliberate examination of the value systems which are shaping how we relate to each other and to our planet.  Ours is a complex world, there are no easy answers. In the face of many issues related to the human condition and the condition of our planet, examining the case for recognizing that other forms of life on Earth share the right to life that we claim as humans is an important and worthy endeavor.