We the people, and the river: a possible future for environmental law

Loja Province, Ecuador. From http://commons.wikimedia.org/wiki/File:Monta%C3%B1as_en_Macar%C3%A1.JPG

The river won in the end.

Consider the name of the court case in which it happened: Vilcabamba River v. Provincial Government of Loja, Ecuador.

In this case, a river was granted legal standing in court to sue a local government for harm suffered by the river. This was possible under article 71 of the 2008 constitution of Ecuador, which explicitly grants nature and its ecosystems certain constitutional rights. These include "the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution."

Thus, when the local provincial government began dumping broken concrete and rubbish from road construction into the Vilcabamba river, the river sued. Represented in court, as any non-human entity would be (like a government or corporation), by human lawyers.

The river won. The provincial court of Loja ruled in 2011 that the provincial government had violated the constitutional rights of the river. It issued an injunction ordering the government to make restitution to the injured party, by repairing the damage.

It all sounds so remote, doesn't it? Surely nothing like this could happen in the United States. Under the Constitution of the United States, nature is considered property. Nothing more. Just like women and black people once were as well. Surely the property status of nature will never change. Just as the property status of women and black people, viewed from the days of Jefferson and Madison, would never change.

Surely.

Since 2006, more than two dozen municipal governments in the United States have passed laws recognizing nature and its ecosystems as entities entitled to inherent legal rights. One of the communities to pass such a law is Pittsburgh, Pennsylvania.

You can read more about this at the website of the Community Environmental Legal Defense Fund.

Last night, I attended a talk by the executive director of this organization, Thomas Linzey. His group advised the assembly that drafted Ecuador's constitutional provisions on the rights of nature. The CELDF works with U.S. towns and cities to give similar aid, helping them draft ordinances and conduct lawsuits against environmental abuses by transnational corporations.

The long-term aim of such work is to mobilize a coalition of U.S. city governments favoring fundamental revision of state constitutions. The goal of those revisions would be to end various legal powers corporations wield to destroy local environmental protections.

In his talk last night, Linzey was extremely blunt about the extreme hardship (political, legal, personal) that his organization's strategy entails, both for his group and for the local communities seeking its aid. Nevertheless, Linzey makes a convincing case that the conventional legal and policy approach to environmental protection has failed. The condition of planetary ecosystems, he points out (echoing this blog's obsession on the subject), is deteriorating ever more rapidly. Local communities around the world are beginning to feel the effects. And, in many cases, to connect those effects to a basic, underlying cause: the political and legal power of transnational corporations.

Linzey admits that his strategy for constitutional change will take decades to bear fruit, if it ever does. But he believes there is no realistic alternative. National and international legal and political approaches are essentially pointless, given the power of the existing corporate-dominated structure of government. And the ecological situation grows ever more desperate, although many policy-makers and advocates are not yet able to see this.

It will become clearer as the vice begins to tighten, Linzey believes. As do I.