Nature’s Personhood and Property’s Virtues
29 Pages Posted: 19 Feb 2020 Last revised: 11 Mar 2020
Date Written: March 13, 2020
In The Colorado River Ecosystem v. State of Colorado, plaintiff asked a federal district court to find that the Colorado River ecosystem is a legal person, arguing that, “[t]he dominance of a culture that defines nature as property enables its destruction.” Plaintiff’s principal claim rested on the assumption that legal personality could do something for the river that a system of property cannot. In making its case, plaintiff relied on the emergence of what it called a “new kind of environmental law,” pointing to examples where nature had been extended elements of personhood by courts and legislatures in India, New Zealand, Ecuador and Colombia. In this essay, we evaluate the basic strategy of claiming personhood for the Colorado River and other natural objects as a way to advance environmental goals in the legal domain. We explore the normative foundation of the claim — elements of nature are legal persons — and the work personhood is being asked to do by plaintiff and other environmental activists. We identify three possibilities: procedural, substantive and rhetorical. Of those, we suggest plaintiff’s strongest case is rhetorical. But we say this not only because it will likely be difficult to convince a judge to extend standing or substantive rights to a natural object, but because we are unconvinced that personhood would achieve the ends desired by plaintiff and other rights of nature advocates. We contrast the rights of nature movement cases with strategies used by plaintiffs in another case, Juliana v. the US, and conclude that existing legal tools rooted in the law of property offer a more certain, and therefore more promising, pathway to achieving many of the goals articulated by rights of nature advocates in the United States.
Keywords: Colorado River, legal person, personhood, rights of nature, progressive property, property law, public trust doctrine, Juliana v. U.S., constitutional standing
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