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  Ecosystems, such as lakes, valleys, and forests, are treated by the courts, for the most part, in the same way that animals or species are, when it comes to legal standing to sue. (See our recent posts: Do Animals Have Standing? parts 1 & 2)  That is to say, individuals or organizations have standing to sue to protect injured or threatened species and ecosystems under laws such as the Endangered Species Act and  the Clean Water Act, but the ecosystems themselves have not.

In the language of the Endangered Species Act (ESA), enacted in 1973, “The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” and “a program for the conservation of such endangered species and threatened species.”   16 USC s.1531(b).

The U.S. Supreme Court case, Sierra Club v. Morton, 405 U.S. 727 (1972) was an early attempt to protect an ecosystem (one year before the Endangered Species Act came into effect). The Sierra Club sued to protect the entire Mineral King Valley in the Sequoia National Forest in California from development into a ski resort by The Walt Disney Company. The court ultimately rejected the Sierra Club’s standing to sue, since the club alleged no specific injury to itself, but it was this case for which Justice William O. Douglas wrote in his famous dissent that “public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation…So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.” (p.742-743)  The court also hinted at how the Sierra club could amend its complaint for a more successful outcome by showing that at least one of their members, for example someone fond of hiking there, would be personally injured by the alteration of the landscape.

In the case Northern Spotted Owl, et al. v. Lujan, 758 F. Supp. 621 (W.D. Wash. 1991), twenty-two environmental organizations filed suit against the Secretary of the Interior, the U.S. Fish and Wildlife Service, and other federal defendants. Citing the Endangered Species Act, the Plaintiffs moved the Court to order the federal defendants to designate “critical habitat” for the northern spotted owl.  Logging in national forests that contained the Northern Spotted Owl was stopped by a court order.

The ESA, however effective, does not provide absolute protection against extinction when strong economic or political forces are at play.  The struggle to preserve the habitat of the snail darter fish is a classic example.  In the case Tennessee Valley Authority v. Hiram Hill et al., 437 U.S. 153 (1978), Hill (a law student) and others sued to stop a dam that would destroy the habitat of the endangered snail darter. The Supreme Court ordered the dam stopped. Later in 1978, Congress amended the ESA to allow the TVA’s dam; i.e., they created a committee with the authority to grant exemptions to the absolute prohibition of Section 7 of the ESA. The Endangered Species Committee is often referred to as “the God Squad”, since it has the power to allow an action that could lead to a species’ extinction. [For the law about  this committee, see especially 16 U.S. Code 1536(e) & (h).] (Actually, the committee decided not to give the dam an exemption, but then the Congress passed the Energy and Water Development Appropriation Act for FY1980 which directed that the dam be completed “notwithstanding [the Endangered Species Act] or any other law”, and President Carter signed it. The dam became operational on Nov. 29, 1979.)

Attempts at citing an ecosystem as a plaintiff in a case for its own protection have been unsuccessful in establishing standing for the ecosystem.  [For example, in the case of Byram River v. Village of Port Chester, 12 E.L.R. 20186 (D. Conn., Aug. 21, 1974), there was no decision on the river as a plaintiff, the river was accompanied by other human and corporate plaintiffs, and the case was eventually settled.]

A notable recent exception is the case of Lake Erie.  After a series of serious environmental disasters, voters in the city of Toledo, Ohio, passed a ballot initiative on February 26, 2019 to add to their city charter a Lake Erie Bill of Rights.  This establishes the “Rights of Lake Erie Ecosystem, which include the rights of Lake Erie and its watershed to exist, flourish, and naturally evolve.”  It says, in part: “The Lake Erie Ecosystem may enforce its rights through an action prosecuted by the City or a resident in the name of the Ecosystem.”  This is the first time in the United States that an ecosystem has been given legal status as a “person”.

However, this story is not yet over. A day after the vote in Toledo, the Drewes Farm Partnership filed suit, claiming that the Lake Erie Bill of Rights is unconstitutional; one of the issues is that this constitutes a change to Toledo’s city charter, but Lake Erie is overseen by four states and two countries—so can the city of Toledo alone claim such expansive jurisdiction?

By the time this blog goes to press, the case may be resolved. (One can follow its progress.)

Other countries have already given ecosystems legal personhood.  For example: Ecuador has enshrined the rights of nature in its constitution (in 2008).  A High Court in Uttarakhand in India recognized the Ganges and Yamuna Rivers (traditionally goddesses in Indian religion) as legal persons, along with glaciers and other ecosystems (2017). In 2018 the Columbian Supreme Court recognized the Columbian Amazon rainforest as a ‘’subject of rights”. A complete ongoing list may be found at Community Environmental Legal Defense Fund’s Advancing Legal Rights of Nature Timeline.  This list includes some instances in the year 2019 in the U.S. state of New Hampshire, and elsewhere.

 

For further reading, see:

Gregor I. McGregor, Massachusetts Environmental Law, 4th ed., 2016, looseleaf with supplements.

Kenneth M. Murchison, The Snail Darter Case: TVA vs. the Endangered Species Act, 2007.

Shannon Petersen, Acting for Endangered Species: the Statutory Ark, 2002.

Christopher D. Stone, Should Trees Have Standing? and Other Essays on Law, Morals and the Environment, 1996.

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