Should trees have standing?

Forty-five years on from Christopher Stone's proposal

*Author's note - Since writing this essay, New Zealand's Whanganui River became the first natural object to be granted legal personhood, through the passing of the Whanganui Iwi Deed of Settlement in March 2017. This decision came following a 170-year battle between the Whanganui Iwi people and the New Zealand government. The Whanganui River will be jointly represented by one member appointed by the Maori community, and one member appointed by the government. This grant of legal personality to the Whanganui River is not considered throughout this essay.

An introduction

At the current horrifying rates of environmental degradation, we are heading towards a ‘major planetary catastrophe’. In an anthropocentric manner, humankind continues to devastate its surroundings in order to progress, despite being able to comprehend the disastrous consequences of doing so. As such, significant change is needed; however, how radical this change must be is where the great debate arises. Perhaps one of the earliest proposals for dramatic change was introduced by Christopher Stone’s seminal article, ‘Should trees have standing? Toward legal rights for natural objects’, published in 1972. Despite being written over four decades ago, Stone’s article remains relevant and provocative today. The question that was introduced – whether or not natural objects within the environment should be granted legal standing, will be discussed throughout this essay, along with its subsequent criticisms. There is no doubt that determining the answer to this question is not easy. There is certainty, however, in knowing that without some alterations to current national and international legal systems, the natural world will only continue to deteriorate.

The law as it stands

Legal standing refers to a party’s ability to demonstrate they have a sufficient nexus to and harm from a particular law or action, to support that party’s participation in litigation. Without this right, that party lacks the ability to go to court, even with what they may believe is a well-founded complaint. At present, natural objects within the environment – such as trees, streams and mountains, have no legal rights. The objects themselves cannot initiate proceedings in their own name, and they cannot be awarded the benefit of damages.

If a stream is polluted, a court may order for that pollution to stop, and award compensation as a result. However, this compensation will be received by the landowner only, not the stream. Thus, the stream itself is ‘fundamentally rightless’. Despite having its very own self to lose, the natural object is unable to plead its own case. This idea of natural objects lacking legal rights may at first instance seem obvious, and many will disregard the possibility of it being otherwise. However with further explanation – particularly aided by Christopher Stone, the concept becomes less and less ‘unthinkable’.

A historical trend of granting rights

Throughout the history of law and society, every extension of rights to a new entity has been considered ‘unthinkable’, ‘frightening’, and even ‘ludicrous’. Consider for a moment how far we have progressed. Historically, children, foetuses, women, Jews, the incompetent, prisoners and people of colour, had few - if any, legal rights. A child was less than a person – they were essentially an object which fathers had the power of life and death over. When a woman in 1875 argued in court that she was entitled to practice law, she was told that the law of nature destines females for the bearing and nurture of children, and for the custody of our homes. Any voluntary departure from this was considered ‘treason’ against the order of nature. Fortunately, society and the law has progressed immensely since 1875, with a positive trend of granting rights to subgroups that were once denied any legal and moral consideration. Not only have human subgroups become recognised as possessors of rights, but also abstract entities and bodies such as corporations, trusts, universities and municipalities. A comparison can be drawn to the proposal of granting natural objects with legal rights. It is arguable that trees too, need legal representation, just like children, the incompetent, and corporations. Naturally, the majority of those within society will be hesitant to extend rights to anything non-human. Stone describes this reaction well, stating that ‘there will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet, it is hard to see it and value it for itself until we can bring ourselves to give it “rights”’. The idea that history has demonstrated a pattern of extending rights to objects other than humans should be at least thought-provoking to those who are most dubious. Despite this potential justification for granting natural objects with legal rights, many will still question the practicalities of this concept. To start off with – trees, rivers and mountains cannot speak. Or can they?

A Guardian for the natural world?

According to Stone, it is no answer to say that natural objects cannot have legal rights because they are voiceless. Why? Corporations, infants, foetuses and municipalities cannot speak either. Instead, lawyers speak for them, just as they do for ordinary citizens. A ‘Guardianship’ concept is therefore proposed: a specialised lawyer or environmental group is designated with the authority to handle the legal matters of those natural objects without a voice, just as lawyers have done so for other voiceless right-possessors in the past. In order to prevent the floodgates from opening from numerous Guardians being established, only one Guardian would be appointed as the sole representative of that natural object in all litigation concerning it.

This Guardianship concept is not completely foreign, and has been utilised in countries across the globe. Certain regions in Germany have created environmental groups to act as legal guardians for specific forests. In 2008, Ecuadorian constitutional provisions were promulgated to recognise ‘the right of any person or organisation to defend, protect, and enforce those rights on behalf of nature’. This forms part of the recent ‘Rights of Nature’ movement, which will be discussed in further detail below. Despite the Guardianship proposal sounding like a simple solution, there are a multitude of limitations that may challenge its implementation.

Limitations and criticisms

Financial

One obvious query quickly comes to mind. Who will fund the Guardianship program? Whilst some lawyers may be extremely passionate about protecting the environment and all it is worth, it is highly unlikely they will concede to a lifetime of volunteering. In ‘Should trees have standing?’, Stone suggests that Guardian and legal fees would come out of the awarded damages flowing from successful litigation. However, what if the case is not successful, and no damages are awarded? Who will fund the other party’s legal costs? Who will fund the Guardian itself? Guardianship funds would most likely be sourced from the pockets of tax-paying citizens, which, as history has shown in other instances, is likely to cause a stir.

Legal

Alongside the financial limitations, there are numerous legal issues surrounding the grant of legal rights to natural objects. The first of these relates to the award of damages and compensation for harm. If the natural object itself was to be the beneficiary, how is it possible to put a quantifiable price on its environmental injury?

For example, what is the worth of a commercially invaluable species, or the destruction of a wilderness area? Each of these environmental injuries are not measurable in monetary terms, and as such, would present challenges if litigation was to proceed in the environment’s name. Stone addresses this point by arguing that our current legal systems make estimates of intangible injuries all the time – like when a court puts a monetary value on the pain and suffering resulting from the loss of an arm, or the losses flowing from a copyright breach. However, each of these injuries are generally economically measurable against some financial indicator, such as current market worth, or suspected income trajectory. Environmental values, on the other hand, are priceless. Stone himself, admits this.

A second limitation of utilising a Guardianship to grant natural objects legal rights is the argument that we, as humans, cannot judge the needs of the voiceless environment. Again, Stone presents a rebutting argument, one that is perhaps a little more convincing. On a daily basis, competent humans, such as lawyers, make decisions on behalf of and in the purported interests of those less competent. Take infants for example, or the mentally disabled. Whilst these right-possessors are voiceless, the Guardian generally knows what is in their best interests. The needs and desires of the voiceless can often be communicated through signals and cues. A metaphor that Stone uses describes the dryness and yellowing of blades of grass which need watering. However, whilst these basic needs may be comprehensible in the human mind, others will not.

When Stone revisited his question in 2012, he conceded that ‘we cannot put ourselves in the banks of a river, pondering how it would feel to be trout-less’. Consequently, perhaps humans cannot judge the exact needs of the environment, therefore shining doubt on a Guardianship arrangement.

One additional factor which may challenge the grant of legal standing to natural objects is the extreme diversity of such objects. Legislators would find it very difficult to implement a single legal framework suitable for all of the environment. Even our own understandings of the same environmental objects can greatly differ from culture to culture, time to time and person to person. Therefore, the use of a generalised law could be regarded as ‘fatuous’. In a recent edition of ‘Should trees have standing’, Stone applied his proposal to the global issue of climate change, asking if climate change itself should have standing. Clear legal difficulties arise with such a radical suggestion - one being the difficulty of determining the causation of climate change with certainty. The legal challenges surrounding the extension of rights towards natural objects may prove to be unachievable.

A further limitation, which may have its foundations in philosophy rather than law, is a simple question of how far the law should extend the definition of a legal ‘person’. As discussed above, the law now includes abstract entities such as corporations and municipalities. John Finnis, a legal philosopher, would struggle with this inclusion, alongside any extension to include natural objects. Finnis believes that the ‘law must capture and reflect the truth of what we are as humans’, which incorporates containing a human soul – something which trees and rivers obviously do not possess. Stone desired for a loosening of who and what a ‘person’ may be in the eyes of the law. One author criticises and contends that the law should only ‘capture the nature or quality of life’ when it personifies something into a legal being. Yet environmental objects are indeed full of life and natural being – perhaps even more so than corporations and trusts, hence this author’s argument is easily rebutted.

Religious, social and philosophical

More can be said for the philosophical, religious and social obstacles in the path of extending legal rights to natural objects. According to one criticising author, two religious and social subgroups will continue to block any attempts of departing from anthropocentricism. Secular rationalists and conservative Christians are arguably the two most influential groups which promote a human-centred society, leaving little room for loosening our conceptions of the human person. These two groups, and other groups alike, will undoubtedly show resistance towards setting aside their human-focused concerns.

Additionally, a strong argument against Stone’s proposal is founded in the theories of philosophers Peter Singer and Jeremy Bentham. Despite these two figures proving to be quite progressive in most instances, their concept of ‘sentience’ appears to work against the granting of legal rights to natural objects. Bentham and Singer believe that all sentient creatures, and only those, have interests. Unlike animals, natural objects such as trees and rivers lack sentience. Consequently, according to Singer, ‘if a tree is not sentient, it makes no difference to the tree whether we chop it down or not’. Following this view, the lack of sentience may remove the potentiality of natural objects being granted standing, thus limiting their access to justice.

Political

If a Guardianship were to exist, controversial political questions would undoubtedly arise. How great a role should the Government play in designating a Guardian? Should Guardians be selected solely by the court? Considering governments themselves can be a main contributor to environmental devastation, many would object to any government involvement at all.

Yet, this may be inevitable if a regulatory framework is to be put in place. Will greater involvement of political creatures only harm the environment further?

Environmental

Lastly, a challenge stemming from an environmental viewpoint is presented in Stone’s article, yet is left unanswered. Stone proposes that to address the difficulties in measuring damages, the amount payable should be that which is required to make the environment ‘whole’ again. As discussed in the article, this would result in preserving natural objects - some which are useless, and thus effectively freezing the quality of the environment in a steady-state. In a time where environmental development is essential, such an effect is undesirable. Despite these limitations however, the argument that the environment should be granted standing has become evident in some litigation.

The influence that Stone has had

Whilst it may not be fully established in international law, Stone’s article has had some influence in environmental litigation, particularly within the United States where it was first published. In Sierra Club v Morton in 1972 – the same year in which the article appeared, three justices of the Supreme Court endorsed Stone’s proposal in their dissenting judgments. Justice Douglas in particular, stated that legal standing ought to be conferred on environmental objects, for the sake of their own preservation. Since then, the concept has been evident in the obiter of other decisions, yet mainly those concerning animals rather than natural objects.

In Palila v Department of Land and Natural Resources, the Court granted injunctive relief in the name of the Palila – an endangered bird species. Whilst this appears to be a progressive litigation tactic, a human has almost always been jointly named as a plaintiff as a back-up argument. However, in a 1995 case, a Court held that an action requiring beachfront regulation could continue solely on the basis of sea turtles being listed as the plaintiffs. A similar opinion was seen in Marbled Murrelet v Babbitt, where the Court held that a protected species had standing to sue ‘in its own right’. Therefore, it seems that Stone’s article has played in the minds of certain justices within the American legal system. Nonetheless, it is still contentious whether granting natural objects legal standing is indeed the required approach.

Moving forward

One recent legal trend may have diminished the need of resorting to legal fiction. Since 1972, standing requirements across the globe have generally liberalised. It is now considerably easier for environmental groups to initiate proceedings for environmental matters. Major treaties such as the Aarhus Convention in Europe further allow environmental non-government organisations to act as guardians of nature, by deeming them to have a ‘sufficient interest’. Therefore, is granting standing to the natural object itself really necessary to give greater access to justice? Arguably, the environment’s capacity to access justice would not dramatically change.

When Stone revisited the issue in 2012, he recognised that ‘standing in the name of natural objects has become strategically less advantageous’, due to the relaxed standards of harm that human plaintiffs must now show in order to come to court.

Along with this, the environmental movement is still on the rise. Standards of environmental protection and sustainability are reasonably well-established in most countries of the world, and there is growing advocacy for the ‘Rights of Nature’ through numerous influential environmental groups, such as Greenpeace and Friends of the Earth. In some countries – even those less developed such as Bolivia, these ‘Rights of Nature’ have been enshrined constitutionally. Government expenditure towards the environment is also increasing. As such, whilst it is certainly favourable to recognise that natural objects have interests worth taking into account, granting them legal standing may be a stretch too far, particularly with the challenges that this entails.

Conclusion

Whilst legal standing may be too difficult to grant for now, there is no doubt that humans must take a step away from the anthropocentric mindset and towards ecological thinking. Far-reaching social changes are required in order for us to reconsider our consciousness for environmental protection. This change in thinking is not just one for lawyers or activists, but one that needs to be faced by everyone. Traditionally, natural objects have been viewed as ‘resources’ for humankind to master and utilise, for our own benefit. It is this attitude which needs to alter – just as it has towards women and people of colour.

The interests of trees, streams, mountains and all natural objects must be considered in each of our daily lives to the best of our ability, not merely for the sake of human survival, but for survival of the environment at large. Forty-five years on from 1972, it appears that Stone’s idea may be too difficult to implement in international environmental law. Nonetheless, beneficial changes have been made - for which we have provocative questions such as Stone’s very own, to thank.

Reference List

Articles

Code, Lorraine, ‘Ecological Responsibilities: Which Trees? Where? Why?’ (2012) 3 Journal of Human Rights and the Environment 84

Fluker, Shaun, ‘Book Review: Christopher Stone, Should Trees Have Standing? Law, Morality and the Environment, 3rd end (Oxford University Press, London 2010) 248 pp’ (2011) 2 Journal of Human Rights and the Environment 246

McDougal, Luther, ‘Review: Should Trees Have Standing? By Christopher D. Stone’ (1974) 49 Tulane Law Review 265

Naffine, Ngaire, ‘Legal Personality and the Natural World: On the Persistence of the Human Measure of Value’ (2012) 3 Journal of Human Rights and the Environment 68

Sands, Philippe, ‘On Being 40: A Celebration of ‘Should Trees Have Standing?’ (2012) 3 Journal of Human Rights and the Environment 2

Stone, Christopher, ‘Should Trees Have Standing? – Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450

Stone, Christopher, ‘Should Trees Have Standing? Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective’ (1985) 59 Southern California Law Review 1

Stone, Christopher, ‘Response to Commentators’ (2012) 3 Journal of Human Rights and the Environment 100

Warnock, Mary, ‘Should Trees Have Standing?’ (2012) 3 Journal of Human Rights and the Environment 56

Books

Bentham, Jeremy, ‘An Introduction to the Principles of Morals and Legislation’ (first published 1789) (Oxford University Press, Oxford 1823 – reprinted in 1907).

Singer, Peter, ‘Practical Ethics’ (Cambridge University Press, Cambridge 1979).

Singer, Peter, ‘Ethics across the Species Boundary’ in NS Low (ed), The Global Ethics of Environmental Justice (Routledge, London 1998).

Smith, Mick, ‘An Ethics of Place: Radical Ecology, Postmodernity, and Social Theory’ (State University of New York Press, Albany 2001).

Cases

Cetacean Community v Bush, 386 F.3d 1169 (9th Cir. 2004)

In re Goodell, 39 Wis. 232 (1875)

Loggerhead Turtle v County Council of Volusia County, Fla, 896 F Supp 1170 (MD Fla 1995)

Marbled Murrelet v Babbitt, No C-93-1400-FMS, slip op at 9, n 4 (ND Cal Sept 1, 1993)

Massachussets v Environmental Protection Agency, 549 U.S. 497 (2007)

Palila v Department of Land and Natural Resources, 639 F.2d 495 (9th Cir. 1981)

Sierra Club v Morton, 405 U.S. 727 (1972)

Conventions

UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) signed on 25 June 1998 in Aarhus, Denmark

Essays

Finnis, John, ‘The Priority of Persons’ in J Horder (ed), Oxford Essays on Jurisprudence (4th series, Oxford University Press, Oxford 2000)

Reports

United Nations, ‘World Economic and Social Survey 2011, The Great Green Ecological Transformation’ New York

Websites

Brendan Sydes, Stand Up for Standing (9 September 2015) Environmental Justice Australia <https://envirojustice.org.au/blog/stand-up-for-standing>

Rights of Nature, Australia Earth Laws Alliance <http://www.earthlaws.org.au/what-is-earth-jurisprudence/rights-of-nature/>

Image: Amelie Scalercio