“In Descent of Man, Darwin observes that the history of man’s moral development has been a continual extension in the objects of his ‘social instincts and sympathies’. Originally, each man had regard only for himself and those of a very narrow circle about him; later, he came to regard more and more ‘not only the welfare, but the happiness of all his fellow men; then ‘his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed, and other useless members of society, and finally to the lower animals . . .’”¹

Law has developed in much the same manner. In the primordial family, little trust was accorded anyone outside the family. Even particular members of the family, children for example, did not have a full complement of rights. In our “enlightened” society, however, the rights of previously rightless classes are well established, and constantly expanding. Nor are rights in today’s society confined to the homo sapiens. The Marine Mammals Act of 1972 grants particular sea creatures certain “rights”. Nor are rights limited to living entities. Trusts, limited partnerships, municipalities and countless other organizational forms possess a legal status,

Scholars were first faced with the problem of conferring rights on inanimate objects centuries ago. The State and the Church were two original such problems. Legal history has often been punctuated by previously unthinkable extensions of rights to certain entities. For example, consider the situation today in contrast to that in the nineteenth century when

“the Highest Court in California explained that the Chinese had not the right to testify against white men in criminal matters because they were a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point. . .”²

or when

“the first woman in Wisconsin who thought she might have a right to practice law was told she did not, in the following terms: ‘The law of nature destines and qualifies the female sex for the bearing and nurturing of children of our race and for the custody of the homes of the world . . . (A)ll life-long callings of women, inconsistent with these radical and sacred duties of the sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it . . .’”³

The granting of rights to previously rightless objects is made more difficult by the circular logic employed by opponents: they see no value to an object by itself, yet that object usually has little value until it receives at least a few “rights”. The case for giving the environment “rights” is similar in many ways to these just mentioned.

Certainly, the environment is not to be expected to receive the same set of rights that belong to every American. just as corporations cannot plead the Fifth Amendment and juveniles cannot vote, the rights of natural objects must be specifically tailored to the situation. Three conditions must be met for an entity to be a true holder of full legal rights.⁴ First, the rights-holder must be able to institute legal proceedings at its behest. Second, when a court takes legal relief into consideration, the injury to the rights-holder must be taken into account. Third, the relief must be to the benefit of the rights-holder.

Natural objects are virtually rightless. A stream cannot take legal action on its own behalf if it is being polluted - rather, a person downstream can file a complaint that his rights to clean water are being interfered with. Nor is the actual injury to the stream taken into account when the offender is punished. No reference is made to the poisoning of stream life or the destruction of the stream chemistry;. reference is only made to the request of the complaintant. Finally, the stream itself does not receive any benefits from the settlement to repair the damage to itself - restore the stream chemistry, replace the stream life. We see, in fact, that natural objects have none of the three requirements necessary to be a holder of true legal rights. Natural objects have traditionally been something for man to “conquer”, just as Pizarro “conquered” the Incas.

It is no more reasonable to say that natural objects should not have rights because they are not “intelligent” than it is to make the same argument for corporations. In fact, many natural objects are alive, as opposed to corporations. Lawyers could handle affairs for natural objects just as they do for corporations. The idea of “natural law” is no more ridiculous than “corporate law” was three centuries ago. A guardian, conservator, trustee, etc. could be appointed for a particular natural object which appeared to be endangered, just as one is appointed for completely senile or incompetent persons or for bankrupts. Friends of the Earth, Natural Resources Defense Council, and many other organizations would be likely candidates for declaring natural objects “endangered” and for supplying the “natural lawyer” team.

Measuring the damages to the environment is not always an easy task, but legal precedent provides us with a possible solution: just as the responsible party in an automobile accident must pay the injured party’s medical expenses, “environmental offenders” could be required to provide (for) whatever services are necessary to make the environment whole once again.

One of the reasons for making the environment a beneficiary in its own right is to prevent the plaintiff from “selling out” rather than requiring restitution be made to the environment. Another reason is that it would be possible to put the proceeds into a trust fund which could be used to pay for: legal fees; policing; research and development of pollution control equipment and pollution cleanup equipment; damage assessment; and of course restoring the environment to the state in which it existed before being made a rights-holder.⁵

Thus far, we have suggested that the environment be able to bring actions on its own behalf, that damage to the environment itself be assessed, and that the environment be a beneficiary of any legal awards. But one more important aspect needs to be considered: rights in substance. Certain individual rights may be taken away, but only after due process; other rights are never abrogated. For the environment, the National Environmental Policy Act, a landmark environmental legislative document, describes the “due process” required to deprive the environment of those rights which may be abridged:⁶

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action (iv) the relationship between the local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved . . . and shall accompany the proposal through the existing agency review processes;

(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(E) recognize the world-wide long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s environment;

(F) make available to states, counties, municipalities, institutions, and individuals advice and information useful in restoring, maintaining, and enhancing the quality of the environment . . .

While most environmental rights may be abridged (after due process has been affected) there may be some rights which may never be abridged. These might include irreparable damage to unique, truly significant, environmental processes. Any threats of such irreparable damage should receive the closest scrutiny at the highest level, just as in the human rights paradigm certain actions (such as the imposition of the death penalty) are always reviewed by the appeals courts. Where do we stand today?

“How far are we from such a state of affairs, where the law treats environmental objects as holders of legal rights, I cannot say. But there is certainly intriguing language in one of Justice Black’s last dissents, regarding the Texas Highway Department’s plan to run a six-lane expressway through a San Antonio park. Complaining of the court’s refusal to stay the plan, Black observed that ‘after today’s decision, the people of San Antonio and the birds and animals that make their home in the park will share their quiet retreat with an ugly, smelly stream of traffic . . . Trees, shrubs, and flowers will be mown down’. Elsewhere, he speaks of the ‘burial of public parks’, of segments of highway which ‘devour parkland’, and of the parks’ heartland. Was he, at the end of his great career, on the verge of saying - just saying - that ‘nature has rights on its own account’? Would it be so hard to do?”⁷

NOTES
¹ Stone, p. 3.
² Stone, p. 7.
³ Stone, p. 7.
⁴ Stone, p. 11.
⁵ Stone, p. 33.
⁶ 92 USC 4332 (1970).
⁷ Stone, p. 54.