Forests Are People Too: A Comparative Analysis of Environmental Personhood Across International Jurisdictions

Introduction

Environmental personhood, a legal concept that bestows basic rights to natural environments such as rivers, forests, and nature preserves, was pioneered in the early 1970s by the late United States Supreme Court Justice William O. Douglas and University of Southern California Law Professor Chrsitopher Stone [1]. Though the term ‘environmental personhood’ has only emerged recently as a concrete legal theory, the roots of the concept can be traced back to ancient indigenous conceptions of the natural environment. Across the globe, many cultures, creeds, and ethnic groups — from Native Americans, to the Inca, and the Māori people of New Zealand — regard nature as a living, sentient entity, entitled to the same rights and privileges as any human being [2]. In recent years, states around the globe have enshrined environmental personhood in their respective legal systems as a means of combating climate change, regulating deforestation, and protecting waterways from pollution, albeit to varying degrees of success [3]. This article thereby explores the variances in the functionality of environmental personhood across five countries: The United States, India, New Zealand, Bolivia, and Ecuador. I categorize these nations into three groups: those that have failed to implement environmental personhood altogether, those in which the theory may obstruct or impede the green energy transition, and those in which personhood has been successfully operationalized, albeit facing minor procedural barriers. I propose three factors which indicate a sound cultural, political, and legal environment for the implementation of personhood: indigenous and cultural backing, compatibility with long-term energy goals, and constitutional or statutory support underlying the enactment of the theory. Finally, I conclude with a brief case study of Ecuador which demonstrates that should socio-political conditions permit, environmental personhood may serve as a valuable tool in countering the existential threat of climate change.

What is Environmental Personhood?

At its core, environmental personhood is a legal theory that designates features of the natural environment as legal persons entitled to rights and privileges similar to those reserved by humans. Environmental personhood can be established in two main ways — via direct legislation that enshrines the theory in a state’s constitution or civil code, or by common law, wherein the theory gradually gains a foothold in legal tradition through favorable judicial precedent [4]. Environmental personhood represents a profound departure from the anthropocentric nature of the global legal tradition, constructing a new ecocentric canon of law where nature, in and of itself, is entitled to basic rights and immunities [5].

In practice, environmental personhood enables citizens and NGOs to sue governments, individuals, or corporations on behalf of environmental features that have been severely damaged as a consequence of human activity — including excessive GHG emissions, overly invasive infrastructure projects, and pollution. Without the pretense of environmental personhood, litigants in non-personhood, rights-based climate litigation cases, must establish legal standing indirectly, based on (1) injury, (2) causation, and (3) redressability — forcing courts to navigate a complex web of logical corollaries to link a defendant’s actions to environmental damage, and, subsequently, human injury [6]. However, using environmental personhood, plaintiffs need only prove that the defendant has directly caused a redressable harm to the environment, making it easier to establish standing, and increasing the justiciability of environmental claims [7].

In nations that have not implemented environmental personhood, state administrative and regulatory agencies front the majority of the responsibility for enforcing environmental protection statutes. Personhood, in theory, serves as a means of lightening the duties of commonly overburdened regulatory agencies, enabling citizens to take de facto regulatory action themselves [8]. In Ecuador, courts apply personhood to “unregulated [matters], fill[ing] in … gaps” in enforcement [9]. Justice William O. Douglas, a forefather of environmental personhood, famously opined in Sierra Club v. Morton that personhood could complement administrative agencies that are also “notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations” [10]. As such, even in states that have an expansive environmental protection regime, environmental personhood may function as an important legal tool to optimize environmental outcomes by reducing gaps in statutory enforcement brought on by overburdened (or corrupt) bureaucratic institutions.

Degrees of Dysfunctionality of Environmental Personhood

Of the countries that have attempted to implement environmental personhood, nearly all have faced legal and political barriers that jeopardize the long-term viability of personhood to effectively protect against environmental damage [11]. Understanding the obstacles nations have faced in enacting environmental personhood is critical to identifying the optimal sociopolitical factors most conducive to a successful enactment of environmental personhood.

A. Failure to Implement: India & the US

After initial implementations of environmental personhood, both India and the U.S. have failed to uphold the theory after judicial intervention. In India, a 2012 Supreme Court case expanded the scope of Article 21 of the Indian Constitution — a provision that guarantees the right to life — to “non-human animals” [12]. Building on this decision, in 2017, the subordinate Uttarakhand High Court granted full personhood to the Ganga River Basin, a decision rooted in the Hindu conception of the Ganges as a sacred, living goddess [13]. However, within the year, the Supreme Court reversed the lower court’s decision, declaring the ruling “legally unworkable” [14]. Because the Ganges Basin traverses multiple Indian states, in the aftermath of the Uttarakhand Court’s decision, confusion arose regarding the legal status of the river in other jurisdictions [15]. The Supreme Court further opined that environmental personhood cannot be established by courts and instead requires direct legislative action [16]. Currently, environmental personhood stands in a purgatorial state in India, as legislators struggle to pass the National Ganga Rights Act, which would codify the legal personhood of the Ganges in Indian federal law [17].

Similarly, in the U.S., litigators and legislators have attempted to establish environmental personhood using both common law and legislation. Legal movements in favor of environmental personhood in the U.S. were largely catalyzed by Citizens United v. FEC, a Supreme Court case that integrated corporate personhood into the American legal tradition [18]. As strategic litigators attempt to test the limits of this theory, the U.S. judiciary has not viewed environmental personhood nearly as favorably as its corporate counterpart. In 2020, the Lake Erie Bill of Rights (LEBOR) — passed by the local municipality of Toledo, Ohio — was struck down by federal judge Jack Zouhary and declared “unconstitutionally vague” [19]. In 2017, a case attempting to establish personhood for the Colorado River was dismissed with prejudice by a federal district court [20]. According to the ruling, the representatives for the river had failed to establish the waterway’s standing, leading the court to consider sanctioning the plaintiff for violating Rule 11 of Federal Civil Procedure, which prevents lawyers from filing frivolous claims [21]. While other smaller localities in the U.S. have also implemented forms of environmental personhood, if challenged in court, they are likely to be struck down in light of stare decisis or other relevant legal doctrines present in America’s highly litigious jurisprudence [22].

B. Limitations in Efficacy: New Zealand

In 2014, the government of New Zealand designated the Te Urewera forest and national park as a legal person under the auspices of the Te Urewera Act [23]. The legislation was heavily influenced by the beliefs of New Zealand’s indigenous Māori tribe, who maintain an “intricate, holistic and interconnected relationship with the natural world and its resources,” perceiving themselves as part of the natural ecosystem [24]. The Māori also believe that “a particular river or mountain might be an ancestor (tupuna),” inherently linking the concept of environmental personhood to indigenous conceptions of the environment [25].

Firmly enshrined in national law, the Te Urewera Act of 2014 has not been struck down in court and remains in effect. In fact, New Zealand further expanded personhood to protect the Whanganui River in 2017. Nevertheless, environmental personhood has become a barrier to New Zealand’s green energy transition, hampering the fight against climate change. The nation’s long-term energy stratagem relies heavily on hydropower; since the implementation of environmental personhood, new hydropower projects on protected rivers “would be unlikely to [receive] regulatory approval” [26]. One dam on the Whanganui River powers roughly 30,000 homes across New Zealand, but may be forced to “leave the river entirely” when its regulatory license expires in 2039 [27].

New Zealand already derives 81 percent of its total energy output from renewable sources [28]. However, environmental personhood could, in fact, be counterproductive in meeting green energy goals ex post facto, calling the legality of pre-existing renewable energy sources into question.

C. Post-Implementation Procedural Hindrances: Ecuador and Bolivia

Bolivia and Ecuador have quickly emerged as “nations on the hill” that represent successful implementation of environmental personhood. Ecuador enshrined the rights of nature in its legal system in 2008 via a constitutional amendment [29]. Articles 71-74 of the Ecuadorian Constitution personify the environment as Panchama — the word for “nature” in the indigenous language of the Quichua and Aymara tribes — guaranteeing its right to “to be restored when destroyed” and “exist, maintain, and regenerate vital cycles, structures, functions, and evolutionary processes” [30]. Unlike India, the U.S., and New Zealand, Ecuador has granted personhood to all components of nature, rather than only select features of the environment [31].

Soon after Ecuador, Bolivia affirmed the rights of nature in 2010 with National Law 071, titled the Rights of Mother Earth of 2010 [32]. Though Article 33 of the Bolivian Constitution already guarantees the populace’s right to a healthy, clean environment, the 2010 framework law expands the essence of Article 33 to nature, conferring a competing set of rights to the environment in order to “strip [humans] of their dominance” over natural ecosystems [33].

Like New Zealand, both Ecuador and Bolivia’s movements towards personhood were backed by indigenous communities, as well as their conceptions of the natural environment. However, unlike New Zealand, Ecuador has heard at least 24 cases invoking the rights of nature, underscoring the efficacy of the theory in protecting the environment [34]. In spite of this growing body of cases, standing concerns have still arisen in at least one Ecuadorian personhood-related claim; moreover, in another case — Vilcabamba River vs. Provincial Government of Loja — plaintiffs were forced to fund reparative measures for the damaged river themselves (even after winning the case), highlighting the limited power of courts in granting remedial redress and enforcing injunctive orders [35].

Preconditions for a Functional System of Personhood

A. Indigenous Backing for Environmental Personhood

While analyzing the successes and failures of five countries in operationalizing environmental personhood, indigenous and cultural backing emerges as a key prerequisite for successful implementation. In New Zealand, the theory’s connection to the Māori tribe was useful in circumventing political discord and normalizing the concept among the populace, “giving [environmental personhood] simultaneous legal and cultural heft” [36]. Furthermore, in both Bolivia and Ecuador, the rise of the rights of nature “coincided with a rise in political power for indigenous groups” [37]. Even in India, the rise of personhood can be attributed to traditional conceptions of the Ganges in Hindu spirituality. In the U.S., conversely, Native Americans living on reservations are politically disenfranchised, exhibiting the lowest voter turnout rates of any racial or ethnic group in the nation [38]. Conclusively, indigenous backing for environmental personhood, as well as a strong presence of indigenous culture and political influence within a nation (as is prevalent in New Zealand, Bolivia, and Ecuador), may help accelerate the implementation of the theory.

B. Compatibility with Long-Term Energy Goals

Although New Zealand was successful in implementing environmental personhood, the theory is at odds with the country’s long-term energy agenda. Renewable energies, especially solar and wind farms, often require large swaths of cleared land, sometimes necessitating extreme deforestation — which environmental personhood is supposed to prevent [39]. Upon the implementation of personhood in Ecuador and Bolivia, the theory’s compatibility with the nations’ energy goals may have presented less of an issue, as both countries have been slow to join the green transition, deriving 70 to 80 percent of their energy from oil and gas [40]. Fortunately, in Ecuador, it appears as if environmental personhood has not limited infrastructure projects to the same extent that it has in New Zealand; instead, Ecuadorian courts have encouraged new construction to take place in harmony with the rights of nature [41]. Nonetheless, when discerning whether or not to implement personhood, it is crucial that countries consider whether or not the theory will conflict with future green energy projects; if so, personhood may prove to be, on balance, counterproductive in combating climate change.

C. Legal Technicalities and Conditions for Implementation

When enacting environmental personhood, countries must consider a number of legal technicalities needed to maximize the functionality of the theory. First, all countries that have succeeded in implementing personhood have done so using direct legislation, as opposed to relying on courts and common law to gradually ingrain the theory in a given nation’s jurisprudence [42]. In India, the Supreme Court explicitly ruled that personhood could not be granted by courts, and instead required legislative action from parliament [43]. To circumvent similar concerns over standing that arose in the U.S., the Ecuadorian Constitution specifies that “absence of a legal regulatory framework” cannot be used to justify the ignorance of the rights of nature, meaning that, in Ecuador, claims involving environmental personhood “are directly justiciable” [44]. Instituting personhood in the form of a constitutional amendment may make the theory virtually immune to legal challenges, “augmenting the social and legal legitimacy” of environmental rights [45].

A further examination of the legal systems of the nations that have attempted to enact environmental personhood indicates that the theory may be better suited to civil law traditions, as opposed to common law frameworks. In the U.S. and India, where personhood has already been struck down multiple times in federal courts, a judicial implementation of environmental personhood would require the overturning of precedent, which many courts are unlikely to do, given the strong presence of stare decisis in common law jurisdictions. Thus, in common law states, stare decisis may discourage litigators from bringing personhood-related claims in court [46]. Nevertheless, the stare decisis doctrine does not exist in civil law jurisdictions (such as Bolivia and Ecuador), empowering litigators to bring cases on behalf of environmental entities without the fear of setting bad precedent for future cases [47]. The legal structure underlying personhood is of the utmost importance, as it may give the theory “actual heft” and transform the ways in which courts uphold environmental law [48].

Ecuador: Environmental Personhood as a Means of Combating Climate Change

Ecuador’s growing body of litigation related to the rights of nature suggests that environmental personhood could prove to be a valuable tool to fight climate change — but only in jurisdictions where the three aforementioned criteria are met. To ensure personhood remains fully operational and efficacious in the future, Ecuador should pay particular attention to personhood’s compatibility with long-term energy goals, and potentially create exceptions within its rights of nature regime to allow for the construction of new green energy projects. In Ecuador, not only have twenty four lawsuits been filed to protect the rights of nature, but many are winning in court [49]. Though the Vilcabamba case has experienced some procedural hiccups with disbursements for environmental damages, it is likely that these will slowly be ironed out as Ecuadorian courts gain more experience with personhood-based suits. Vilcabamba also provides an excellent framework for courts to resolve the tension between green infrastructure projects and deforestation. The case — which decided whether or not a new road could be built within a protected ecosystem — did not prohibit the construction of the road altogether, but ordered that it be built with specific respect for the rights of nature [50]. Similarly, it is feasible for courts to weigh a state’s interest in combating climate change through renewable energy against, for example, harming a certain forest, permitting the construction of green infrastructure even in jurisdictions where personhood is in effect. The relative efficacy of environmental personhood in Ecuador notwithstanding, approximately 39 percent of Ecuador's GHG emissions still come as a result of deforestation [51]. By protecting forests, environmental personhood may become a useful tool to diminish deforestation-driven emissions, especially as personhood-based lawsuits grow in numbers. Without natural carbon sinks, net-zero emissions goals will prove to be impossible to reach, absent extreme advancements in carbon capture technology. Though it is too early to say how much carbon Ecuador’s system of environmental personhood has prevented from entering the atmosphere, personhood constitutes a promising mechanism to help Ecuador meet its emissions targets. To reverse “the current course of accelerating [global warming],” it is critical that the “law adapt, radically if required;” environmental personhood has emerged as one way that “the law can answer that call” [52].

Conclusion & Global Implications Environmental personhood — if enacted with indigenous backing, implemented via constitutional amendment in a common law system, and compatible with a nation’s green energy goals — is a valuable tool to preserve natural carbon sinks and dampen the effects of climate change. Where state administrative agencies struggle to uphold environmental regulations, personhood empowers any member of a state’s population to sue on behalf of nature, closing enforcement gaps, and improving environmental outcomes. Environmental personhood is likely to grow in popularity and experience a ‘ratcheting-up’ effect in the coming years, with states “[undertaking] a comparative analysis of other jurisdictions” to “[use] them as precedent” when implementing personhood in their own legal systems [53]. Environmental personhood is also quickly expanding into the realm of international law; recently, prominent jurists of the International Criminal Court (ICC) have produced a draft amendment to the Rome Statute — the founding document of the ICC — which outlines a legal definition of “ecocide,” implicating the intrinsic rights of nature [54]. As personhood becomes increasingly prevalent, states will adopt a transformative canon of ecocentric jurisprudence, one that is well-equipped to protect natural carbon sinks from deforestation, air pollution, and excessive GHG emissions alongside pre-existing climate commitments.

Bibliography: [1] Sanket Khandelwal, “Environmental Personhood: Recent Developments and the Road Ahead,” Jurist, April 24, 2020.

[2] Gwendolyn Gordon, “Environmental Personhood,” Columbia Journal of Environmental Law 43, no. 1 (2018): 55.

[3] Ibid. at 50-52.

[4] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 348, 355.

[5] “Nature’s Rights Go to Court: Emerging Issues: Sustainable Business Network and Consultancy,” BSR, July 2022.

[6] See: Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992).

[7] Matthew Miller, “Environmental Personhood and Standing for Nature: Examining the Colorado River Case,” The University of New Hampshire Law Review 17, no. 2 (March 15, 2019): 359.

[8] Angus Nurse, “Contemporary Perspectives on Environmental Enforcement,” International Journal of Offender Therapy and Comparative Criminology 66, no. 4 (October 22, 2020): 332.

[9] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 350.

[10] Sierra Club v. Morton, 405 U.S. at 727, 729, 745.

[11] Ashley Westerman, “Should Rivers Have Same Legal Rights As Humans? A Growing Number Of Voices Say Yes,” NPR, August 3, 2019.

[12] Gwendolyn Gordon, “Environmental Personhood,” Columbia Journal of Environmental Law 43, no. 1 (2018): 55.

[13] Ibid. at 58; M Willems, T Lambooy, and S Begum, “New Governance Ways Aimed at Protecting Nature for Future Generations: The Cases of Bangladesh, India and New Zealand: Granting Legal Personhood to Rivers,” IOP Conference Series: Earth and Environmental Science 690, no. 1 (2021): 6.

[14] Katelyn Weisbrod, “Indian Court Rules That Nature Has Legal Status on Par With Humans—and That Humans Are Required to Protect It,” Inside Climate News, May 4, 2022.

[15] M Willems, T Lambooy, and S Begum, “New Governance Ways Aimed at Protecting Nature for Future Generations: The Cases of Bangladesh, India and New Zealand: Granting Legal Personhood to Rivers,” IOP Conference Series: Earth and Environmental Science 690, no. 1 (2021): 7.

[16] Ibid.

[17] “National Ganga Rights Act,” Ganga Action Parivar | Clean Ganga. Green Ganga.

[18] Gwendolyn Gordon, “Environmental Personhood,” Columbia Journal of Environmental Law 43, no. 1 (2018): 51.

[19] Nicole Pallotta, “Federal Judge Strikes Down ‘Lake Erie Bill of Rights,’” Animal Legal Defense Fund, May 4, 2020.

[20] Matthew Miller, “Environmental Personhood and Standing for Nature: Examining the Colorado River Case,” The University of New Hampshire Law Review 17, no. 2 (March 15, 2019): 359.

[21] Lindsay Fendt, “Colorado River ‘Personhood’ Case Pulled by Proponents,” PostIndependent, December 4, 2017; Amanda Pampuro, “Group Ends Quest Seeking Personhood for Colorado River,” Courthouse News Service, December 5, 2017.

[22] Stare decisis refers to the tendency of courts in common law systems to rule in accordance with prior case precedent. See: “Stare Decisis,” Legal Information Institute.

[23] “If the Hills Could Sue: Jacinta Ruru on Legal Personality and a Māori Worldview,” The Spinoff, November 27, 2017.

[24] Hannah Prior, “Environmental Trusteeship of the Global Commons: Can New Zealand Take the Lead?,” New Zealand Journal of Environmental Law 22 (2018): 39.

[25] Gwendolyn Gordon, “Environmental Personhood,” Columbia Journal of Environmental Law 43, no. 1 (2018): 56; Joanne Clapcott et al., “Mātauranga Māori: Shaping Marine and Freshwater Futures,” New Zealand Journal of Marine and Freshwater Research 52, no. 4 (October 19, 2018): 459.

[26] Nick Perry, “New Zealand River’s Personhood Status Offers Hope to Māori,” The Associated Press, August 15, 2022.

[27] Ibid.

[28] Ibid.

[29] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 335.

[30] Constitution of the Republic of Ecuador, Oct 20, 2008, arts. 71-74; Cassandra Roxburgh, “Environmental Personhood: A Radical Approach to Climate Justice,” Nonprofit Quarterly, March 7, 2022.

[31] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 353.

[32] Law of the Rights of Mother Earth, Law 071, art. 5 (2010) (Bol.).

[33] Constitucion Politica Del Estado [Constitution], Feb. 7, 2009, art. 33 (Bol.); Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 337.

[34] Ibid. at 336.

[35] Ibid. at 373.

[36] Gwendolyn Gordon, “Environmental Personhood,” Columbia Journal of Environmental Law 43, no. 1 (2018): 87.

[37] Cassandra Roxburgh, “Environmental Personhood: A Radical Approach to Climate Justice,” Nonprofit Quarterly, March 7, 2022.

[38] Patty Ferguson-Bohnee, “How the Native American Vote Continues to Be Suppressed,” The American Bar Association, February 9, 2020.

[39] Peter Enevoldsen, “A Socio-Technical Framework for Examining the Consequences of Deforestation: A Case Study of Wind Project Development in Northern Europe,” Energy Policy 115 (April 2018): 138–47.

[40] Hannah Ritchie and Max Roser, “Bolivia: Energy Country Profile,” Our World in Data, 2022; “U.S. Energy Information Administration - EIA - Independent Statistics and Analysis,” U.S. Energy Information Administration (EIA), 2021.

[41] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 354.

[42] Ibid. at 376.

[43] M Willems, T Lambooy, and S Begum, “New Governance Ways Aimed at Protecting Nature for Future Generations: The Cases of Bangladesh, India and New Zealand: Granting Legal Personhood to Rivers,” IOP Conference Series: Earth and Environmental Science 690, no. 1 (2021): 7.

[44] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 336.

[45] Ibid. at 334.

[46] Stefanie A Lindquist and Frank C Cross, “Stability, Predictability and the Rule of Law: Stare Decisis as Reciprocity Norm,” University of Texas School of Law, 2010, 1.

[47] Ibid. at 350.

[48] Gwendolyn Gordon, “Environmental Personhood,” Columbia Journal of Environmental Law 43, no. 1 (2018): 87.

[49] Nicola Pain and Rachel Pepper, “Can Personhood Protect the Environment? Affording Legal Rights To Nature,” Fordham International Law Journal 45, no. 2 (December 14, 2021): 325.

[50] Ibid. at 354.

[51] Ibid. at 324.

[52] Ibid. at 377.

[53] Ibid. at 363.

[54] “Nature’s Rights Go to Court: Emerging Issues: Sustainable Business Network and Consultancy,” BSR, July 2022.