Should a river have legal rights of its own? Should it be able to thrive, and even evolve naturally, without human interference?
Those are the deep questions asked in a precedent-setting federal lawsuit filed in September in which the Colorado River, as an ecosystem, seeks federal legal rights to exist and to flourish. It is the first action of its kind in the United States.
The plaintiff in the case is the Colorado River itself, with the organization Deep Green Resistance acting as a “next friend” on its behalf. A next friend is a common-law term, referring to a person representing another who is unable to maintain a suit on their own behalf.
The suit was filed in United States District Court in Colorado, naming the state and its governor as defendants. Among other things, it seeks recognition by the court that the state has exploited the river and violated its basic right to survive and lead a healthy existence. The state has countered by filing a motion to dismiss the lawsuit on the grounds that the plaintiffs don’t have legal standing.
The Community Environmental Legal Defense Fund, a nonprofit public-interest law firm, is serving as a legal adviser for the plaintiffs in the case. The legal fund, based in Mercersburg, PA, has taken part in a number of legal actions around the world to establish rights for rivers and ecosystems. To learn more about the Colorado River case, Water Deeply recently spoke with Mari Margil, director of the group’s International Center for the Rights of Nature.
Water Deeply: Why are you focusing on the Colorado River with this case?
Mari Margil: There’s been significant organizing and activities to try to protect the Colorado River for years and years, of course. What we see is, this is an ecosystem that has been used up, if you will. Every drop of water in the Colorado has been allocated – and even more than allocated. You have an ecosystem that simply can’t support itself as a result of how we’ve been treating it.
So it was understood, this was an ecosystem that touches so many lives, so many species that depend upon it, that it needs a new kind of protection. And that’s a recognition of its rights to exist and to thrive and have the kind of protection and laws that come with that – to make sure our human activities don’t impact the ability of this incredibly impressive ecosystem to provide for the species and people that depend on it.
Water Deeply: And why did you choose this kind of action?
Margil: After 40 to 50 years of our major environmental laws, people in communities and even governments are coming to a place where they realize our existing environmental legal framework – in the U.S. as well as in other countries – is premised on this idea that nature is property under the law. It’s considered essentially an item of commerce. Laws that are based on that regulate how we use that property.
Such laws have proven to be inadequate to protect nature. And by most every environmental statistic, today we see the decline of nature under these legal frameworks: ocean acidification, coral reefs dying, species extinction rates more than 1,000 times natural background rates. We’re finding that legal systems that treat nature as rights-less are proving unable to protect nature, unable to achieve anything close to sustainability.
There is a growing movement to fundamentally change the relationship humankind has with the natural world by providing it the highest possible protection that we have in our laws. That protection is the recognition of legal rights.
Water Deeply: Where in the U.S. have communities taken action to recognize the rights of nature?
Margil: The Colorado River lawsuit is the first of its kind. So we don’t yet know what a court will determine with regard to that case. It would be precedent-setting. But it builds on not only the lawmaking that’s occurring in the U.S. but also the court decisions that have come out of other countries.
We have more than three dozen local communities which have enacted laws recognizing the legal rights of nature. We also have several states, including Colorado, which have made efforts to advance such rights into the state constitution. And several communities stopped activities such as fracking and privatization of water systems, sewage sludge dumping and other kinds of activities, through laws which recognize community rights and the rights of nature.
Water Deeply: Have principles like these been recognized in federal law?
Margil: Not in the U.S. In Ecuador, the rights of nature have been enshrined into the constitution. In Bolivia, they have a law recognizing the rights of Mother Earth, the right to thrive, the right to regenerate and be restored. In Colombia, a recent constitutional court decision declared the Rio Atrato and its river basin have recognized legal rights. In India, a state high court has found the Ganga and Yamuna rivers also have recognized rights.
Water Deeply: It’s been reported that what you seek with this lawsuit is ‘personhood’ status for the Colorado River. Is that accurate?
Margil: It’s really about recognizing that the river itself has rights. Today, to have the capability of holding rights, our legal system requires you to be recognized as a person. And that legal personhood is what’s described in the lawsuit. It’s really about recognizing the river itself has rights to exist, to thrive, to flourish, to be able to naturally evolve. In order to do that with the legal system that we live under today, that means the river has to be recognized as a legal person.
Water Deeply: We’ve already granted that recognition to corporations, haven’t we?
Margil: Unfortunately, yes. That came about because railroads and other corporations have sought to use the law to protect themselves, to protect their industries from competition and from interference from government. And they have successfully gone into court, over and over again, to not only have certain rights of corporations recognized but really a full scope of protections, as well.
So today, corporations can protect themselves by claiming protections intended for natural people like you and me. Corporations enjoy those same rights and protections today.
Water Deeply: What’s the likelihood that you’ll win this case?
Margil: I think we’ll have to see – it’s a new area of law. What’s been really impressive is seeing how courts in other countries have had the need to look beyond their own country borders to see how the law is progressing in other places in order to protect nature. Perhaps the court will have to do the same here.
Water Deeply: If you’re successful, what effects will the case have on water management in the Colorado River, and on its dams?
Margil: The court, in finding rights exist for the Colorado River, I imagine would determine some sort of process, or direct government to establish a process, whereby our impact on the Colorado River ecosystem is reviewed to determine how do we bring it into consistency with the rights of the river.
As for the effect on dams, similarly I think those would need to be evaluated to determine how they are impacting or affecting the health and well-being of the river. With that review done, whatever steps need to be taken with regard to the health of the river would need to be taken.
We’re seeing something similar play out right now in Colombia. In November 2016, the constitutional court there declared that the Rio Atrato has rights, and now has set up a process to essentially fulfill those rights – to determine how the Indigenous people who live in that region are affected, to restore the river and uphold those rights. How do we bring human activities in line so they don’t interfere with the ability of the river to be healthy, to thrive? I suspect we have lessons to learn there.
Water Deeply: Is there any link here to prior freedom movements in the U.S.?
Margil: It’s a similar conversation that was had during past people’s movements. So, for example, during the abolition movement, in which the goal was to end slavery, there was a very similar conversation about how you would begin to recognize the rights of those who are not considered to be citizens, not considered even to be people – that is, slaves. How can they possibly have rights, how can they possibly have the use of the law, essentially?
Similarly with women. Women were treated as property under the law – property of their father, property of their husbands. Rape was considered to be a property crime, and if they were raped damages were paid to their father or husband as a kind of property damage.
It’s very hard for us to imagine what that was like today. I think we’re having a similar conversation today about nature.