An orca whale has the right of way in the path of a NOAA research vessel — but will rights to thrive and otherwise flourish be extended to nature on a broader scale? An Indigenous-led movement is underway to secure legal status for rights to exist and to thrive. (NOAA image)
Tired of constantly battling to protect nature, Abi Ludwig, cofounder of the Olympia group Rights of Nature Initiative (RONI) said they’re “going on the offense.”
“We’re at that point where nature has to fight back and we’re ready to take that on from the community level,” said Rachel Kurtz, president and cofounder of RONI.
Kurtz and Ludwig are part of a growing movement to establish rights for nature to exist and thrive.
The idea has picked up support around the state where local governments including Jefferson County, San Juan County and the cities of Burien, Port Townsend and Gig Harbor have issued proclamations recognizing the Southern Resident killer whale population’s right to exist, thrive and flourish. A resolution to acknowledge the rights of Southern Resident orca whales is on the July 11 Whatcom County Council agenda.
But according to Thomas Linzey, special legal counsel in Spokane for the Center for Democratic and Environmental Rights, it’s important to understand what those proclamations are not.
“We’re always careful about the dilution that takes place, sometimes inevitably, with new ideas,” Linzey said. “It’s not to say those resolutions don’t have a place, especially if they are moving toward another step, but the next step has to be a binding law.”
To build this movement, organizations and coalitions are looking to direct democracy and citizens’ initiatives as tools to move from supportive statements to legislation with enforcement power.
Change, but still falling short
“Changes are happening even if we are not currently winning in the courts,” Ludwig said. “We will. I think the Rights of Nature is the way we’re going to protect nature and our ecosystems.”
In April, the Sauk-Suiattle Indian Tribe filed a civil lawsuit against the City of Seattle in tribal court on its own behalf and as a representative for the Skagit River’s “Tsuladxw” — its salmon.
The action sought a declaratory relief to recognize salmon’s “inherent rights to exist, flourish, regenerate and evolve, as well as inherent rights to restoration, recovery, and preservation.”
The suit was settled, and Jack Fiander, lawyer for the tribe, said in a press release that the settlement established “a roadmap for the creation of a fish passage system to return salmon to their native ecosystem and restore the lifeblood of the tribes” by getting the city to include a fish passage program in its hydropower license renewal application.
“We’re not there yet, on record, to a true recognition of the rights of nature,” Fiander said. “It’s a legal theory that is probably one or two generations from being a mainstream accepted theory.”
For Fiander, the settlement falls short of recognizing the rights of salmon.
“Implicitly, I think the settlement acknowledges that, from Seattle’s perspective, how we treat nature should be recognized because of the effect it has on us humans, rather than the effects it has on nature itself,” Fiander said.
At Orca Conservancy, a nonprofit in Seattle advocating for Southern Resident killer whales, Director of Development Tamara Kelley said one of their organization’s biggest hurdles is holding agencies responsible and accountable in orca protection.
“I’d like to see this develop a lot more because I do think that it would be beneficial and it would really help the work that we do as well,” Kelley said. “It’s not unattainable, but I do think it’s going to be an uphill battle, just from the experience that I’ve had, our organization has had, in the work that we’ve already done so far.”
Orca Conservancy is not involved in the development of rights of nature. However, Kelley said, in the long term, having such laws included in the system that protects the environment and its species would be beneficial to their work in overcoming lobbying and special interests in these issues.
Indigenous-led
While some communities and municipalities are getting involved in support of nature’s rights, the movement remains mostly initiated and led by Indigenous communities’ leadership and stewardship throughout North and South America.
“It’s an Indigenous concept in its totality, which is now being driven into this Western system of law,” Linzey said. “Indigenous communities talk about rivers and nature as living beings and relatives. It’s all intertwined into that cultural imperative for Indigenous communities.”
The first country to adopt Rights of Nature to its constitution was Ecuador in 2008. Bolivia has also been a world leader and submitted its Universal Declaration on the Rights of Mother Earth to the United Nations in 2010.
“The belief and reliance on Rights of Nature as having credibility will increase exponentially because the world is on fire right now,” Fiander said. “It’s going to be just a necessity, whether you call it rights of nature or not, we’ve got to stop warming our rivers and warming the oceans.”
Linzey said the Sauk-Suiattle case settlement can make a difference in people’s minds, but not as a strictly legal precedent.
“I don’t think it’s going to have that kind of presence, certainly not as jurisprudence because it’s not a ruling,” Linzey said.
‘Wrong turn’
In the recent paper “A Wrong Turn with the Rights of Nature Movement,” Noah Sachs, assistant professor at the University of Richmond (Virgnia) School of Law, presents several arguments for skepticism of the concept.
Sachs writes that nearly every rights of nature ordinance challenged in court has been overturned, usually on vagueness or pre-emption grounds.
Linzey said that, while this argument is mostly true regarding pre-emption, it doesn’t account for tribal courts that have issued decisions based on valid tribal laws recognizing these rights.
“A big part of our work is with tribal governments and courts,” Linzey said. “We think tribal courts are a better place to bring rights of nature enforcement action than regular courts.”
In another article “Laboratories of the Future: Tribes and Rights of Nature,” Elizabeth Kronk Warner and Jensen Lillquist argue that, “Tribes can serve as ‘laboratories’ for environmental change given their tribal sovereignty and environmental ethics.”
They wrote that, “by comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities.”
Nature and the law
“It’s one of those issues that is very apparent,” said Sen. Liz Lovelett (40-Anacortes). “We have not been elevating the rights of nature as being part of our decision-making process. But it’s also not clear as to what the legal landscape is [and] what it means when we do pass legislation or laws that relate to it.”
“This is about harnessing the legal system to drive rights of nature into law,” Linzey said. “The river doesn’t have rights until we give it to the river.”
Procedurally, Linzey said rights of nature allows natural entities like rivers or species to appear in court as real parties and interests to be plaintiffs, represented by legal trustees and guardians. Substantive rights recognize the rights of a river, for example, to flow, to be free of pollution, to exist, thrive and flourish.
In his paper, Sachs argued that one of the problems with these rights is they are rarely defined, or they are defined in vague terms that are not legally implementable, making them unlikely to protect nature effectively.
Linzey said constitutional-type standards are always vague because they have to shift and flex with the times.
“Ecuadorian courts haven’t had any problems at all with vagueness of the constitutional standards there,” Linzey said. “They’ve applied the standards in a variety of situations — situations in which conventional environmental laws wouldn’t have worked — like in the Los Cedros cloud forest case which wouldn’t have been decided favorably without those rights of nature standards.”
Citizens’ initiatives
In forming their organization earlier this year, Kurtz and Ludwig are working to become a coordinating center for rights of nature initiatives in Washington.
“Having grassroots activism around the concept and building momentum at the local level and at the grassroots organizing level is the way to get … a stronger message to the Legislature,” Lovelett said. “That’s really the path forward because what’s been challenging is that there’s only a handful of us that even really understand the concept let alone have the drive to try and pursue it.”
Developing citizens’ initiatives is another way RONI is looking to help people understand their local process and make it easier for communities to self-determine their local laws.
“It is democracy at its essence, using the democratic process,” Ludwig said.
“It should be something that citizens can do,” Kurtz said.
Lovelett said this was how the state started on the paths to gun safety and legalizing cannabis.
“We’ve had so many great citizens’ initiatives that have really helped lay the groundwork for the legislature to do the right thing,” Lovelett said. “That is often challenging to do absent that stamp of approval from the public.”
As a former activist within the cannabis legalization movement, Ludwig said rights of nature can have a similar path ahead.
“We believed in democracy so much that we were using its tools to do what democracy is supposed to do and continually evolve to what the citizens want,” Ludwig said. “This initiative process is a really important principle of citizen empowerment within democracy.”
“These concepts and constructs that we have, that we think are so concrete and insurmountable, it’s funny that in the end, they don’t mean anything,” Ludwig said.
Resonant with the young
“The children who face future consequences get it,” Fiander said. “But it’s a hard sell to us, older people, who have grown up treating nature as property with value or something to exploit.”
“There’s no principle more embedded in Western law than nature as property,” Linzey said. “It’s going to take some time to get judicial recognition.”
Linzey said eventually, rights of nature will become the default way that we protect the environment.
“It will strengthen and in some places supplant existing environmental laws which have proven themselves ineffective in stopping the kinds of environmental crises that we see today, including climate,” Linzey said.
Kelley said Orca Conservancy the idea of rights of nature is a concept the organization could support.
“It’s definitely something that we notice is building momentum and are curious to learn more about or even get involved,” Kelley said. “Conservation and rights of nature seem that they would align and go hand in hand.”
Regarding concerns that the rights of nature movement could hinder environmental regulations and protections already in place, Linzey said rights of nature aren’t meant to replace them.
“It’s just got to be that those regulations are a floor and not a ceiling,” Linzey said. “The rights of nature have the capacity to catch everything that gets through that regulatory process.”
For Washington, Lovelett said passing right of nature laws wouldn’t conflict with environmental laws in place.
“Broadly, so much of the work we’ve done over the last decade has really been to articulate one step at a time that we do feel that nature has a right,” Lovelett said.
She referenced the recent bill to establish mandatory distance requirements from Southern Resident orca whales.
“That’s giving whales a say, so to speak, in what they need to survive and thrive,” Lovelett said. “I think we’ve made a lot of legislative work in that direction.”
Kurtz and Ludwig hope the rights of nature can also break the logjams of seemingly insurmountable obstacles.
“It’s a righteous movement,” Ludwig said. “It needs to happen.”
— Reported by Clifford Heberden