In the new decade American environmental law will likely expand to include you being sued by the trees. I don’t mean being sued by the Lorax or someone else who “speaks for the trees” but rather the trees will have standing to sue to confront environmental degradation and the like.
This movement to empower nature is the single most impactful trend in environmental law.
This is much more than the currently proposed amendments to state constitutions, across the country, seeking to establish that every “person” has the right to a certain clean and healthy environment. Many of those bills do seek to establish that the state’s natural resources are the common property of every person, but they only expand standing for people.
A party to a lawsuit must have standing, that is they must be authorized to participate in the action. Standing means that a party has a sufficient stake in a controversy to be able to obtain judicial resolution of that controversy. Most state law traditionally has limited standing to a person that is “aggrieved” by an action or decision.
The idea that nature can have standing is not new. Justice William O. Douglas’ widely quoted dissent in the U.S. Supreme Court case, Sierra Club v. Morton, 405 U.S. 727 (1972) described 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.”
And we are now seeing that legal doctrine legislatively implemented such that Mother Nature is now a proper person to pursue adjudication. In 2019, Toledo residents voted to approve the Lake Erie Bill of Rights, within the City’s charter “which include the rights of Lake Erie and its watershed to exist, flourish, and naturally evolve.”
This may be the first time in America that an ecosystem has been given the legal status of a “person.”
Under the amended City charter, the Lake Erie ecosystem may enforce its rights through an action prosecuted by the City or any resident in the name of the ecosystem. Damages are the cost of restoring the ecosystem to its status previous to the acts that caused the injury. And significantly there is no defense for an issued permit or claim of preemption by other state or federal laws.
Drewes Farm Partnership filed a lawsuit in federal court the day after the charter amendment passed in an overwhelming voter referendum. The partnership’s complaint asks the court to declare the voter enactment unconstitutional on several grounds and also claims it violates a variety of state laws. The City of Toledo consented to a preliminary injunction and the case is proceeding. While any interpretation of the preliminary pleadings is premature, there is an argument that this type of creation of a new right is more correctly done at the state level (versus at by a city). Spurred by Toledo, it is possible Florida and New Hampshire will each give standing to nature, from the spotted owl to the polar bear, in 2020.
Most major current federal environmental laws were passed in the 1960s and 1970s, including the Clean Air Act, the Endangered Species Act, and the Clean Water Act, and it is unlikely the current government in Washington DC will enact any new sweeping environmental statutes. The planet is also not best protected by local and state government legislative bodies enacting hodgepodges of new statutes, including this year’s trendy legislation banning plastic from straws to bags, based on junk science and ignoring the key facts that the alternatives are not much better if not worse.
The courts, as a coequal branch of government can and are better to assume their proper role in enforcing tort law and more, to stop environmental harm done by bad actors.
So, now conferring standing on objects in nature, from lakes to trees, to sue for their own environmental preservation, an idea that has percolated for decades is gaining popularity and will in this new decade of the Roaring ‘20s be the order of the day. This rocket scientist thinking is the next step in American environmentalism. It is the opportunity to increase efficacy of existing court tested environmental laws, from modern statutes to the common law, many of which have hit bumps, by broadening who can enforce those laws without negatively impacting the current worldwide economic boom.
Thought leaders largely agree we need a better way of protecting the environment and enabling the trees to seek judicial redress is good public policy coming to a courtroom near you.