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Voices Crying in the Wilderness: The Legal Rights of Nature

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tom R. Hulst
February 26, 2021

The question of the legal rights of nature—or standing of inanimate objects to sue—was perhaps first raised in an article in 1972 by Christopher Stone, in the Southern California Law Review, titled Should Trees Have Standing? Toward Legal Rights of Natural Objects. The article was subsequently referenced in a celebrated dissent by Justice William O. Douglas in the Supreme Court case Sierra Club v. Morton, 405 U.S. 727 (1972). At that time, the Mineral King Valley occupied an area of superb beauty in the Sierra Nevada Mountains near Sequoia National Park in California. In 1965 the Disney Company won the right to develop a ski resort in the valley. The Disney plan featured a $35 million complex that included utilities, motels, swimming pools, parking areas, ski lifts and trails. The Sierra Club objected to the Disney plans and filed an action in the U.S District Court. The District Court granted the request for an injunction and Disney appealed to the U.S. Court of Appeals of the Ninth Circuit. The Court of Appeals reversed the District Court and ruled that there was, “No allegation that members of the Sierra Club would be affected by [the respondents] other than the actions are personally displeasing or distasteful to them.”

The case was heard by the United States Supreme Court in 1971 and in a 4-3 decision it affirmed the opinion of the Ninth Circuit. It held that club members did not establish that they had “standing” to sue, personally. In a bold dissent, Justice William O. Douglas proclaimed an extraordinary principle of law: that inanimate objects ought to have standing to sue. He wrote in Sierra Club v. Morton that, “Inanimate objects are sometimes parties in litigation. A ship has a legal personality . . . the ordinary corporation is a ‘person’ for purposes of the adjudicatory processes . . . So it should be as respects valleys, alpine meadows, rivers, lakes and estuaries…  [t]he river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, deer, elk, bear and all other animals, including man, who are dependent on it for its sight, sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”

At the time of his dissenting opinion, William O. Douglas, from Washington state, had been on the Supreme Court since his appointment by President Franklin Roosevelt in 1939. He was a devotee of Rachel Carson and Aldo Leopold and quoted Leopold in his own book, A Wilderness Bill of Rights. “The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals or collectively: the land. . ,” wrote Aldo Leopold in the Sand County Almanac; “A land ethic changes the role of homo sapiens from conqueror of the land community to plain member and citizen of it. It implies respect for his fellow-members and respect for the community as such.” The ideas in Douglas’s dissenting opinion, moreover, embodied the beliefs of biocentrism—rather than human exceptionalism—and, “Democracy of the species,” long held by Native Americans of this country.

While a Supreme Court majority did not concur with Douglas’s dissent, the Disney Company in the end, won the battle but lost the war. The publicity surrounding the case aroused substantial public sentiment and energized congressional action against the project. In 1978 Congress linked the Mineral King area to Sequoia National Park, thus ending Disney’s plans to develop a winter resort in that valley. 

The Douglas jurisprudential legacy lives on in the new century. While Douglas’s dissent has not achieved universal legal currency in the United State in the years since, significant advances in the law have occurred in other nations around the globe. In New Zealand, the Whanganui River was recognized as a legal person in 2017; and Mount Taranaki, a volcano sacred to the Maori, achieved the same status in 2018. According to M. Margaret McKeown, Judge on the Ninth Circuit Court of Appeals, in an article in the Journal of Supreme Court History titled, The Trees are Still Standing: The Backstory of Sierra Club v. Morton, “Ecuador’s constitution, the first of its kind in affording rights to nature, now grants legal rights to rivers, forests and other natural entities. Similar provisions are being developed in Brazil, Argentina and Nepal.”

Conflict concerning public lands, biodiversity and climate science continues to engulf the nation and the world. It is incumbent upon policymakers and citizens to heed the legal doctrines and moral principles Justice Douglas advocated. “I speak of spiritual values akin to those one experiences when the sunset is riot with color,” William O. Douglas wrote in A Wilderness Bill of Rights—”The sense of wonder at snowcapped peaks, the restfulness which comes from being in an alcove in the woodland, the roar of wind on a high wild ridge and its soft music in a pine forest in the valley, the immense solitude of a trackless forest [and] the feel of rapids against a canoe. . . ”

Author: Washingtonian Tom R. Hulst received an MA in public administration from Washington State University, was policy advisor to Governor Daniel Evans, administrator in the State Office of Public Instruction, and superintendent of Peninsula School District. He published The Footpaths of Justice William O. Douglas in 2004, been a long time ASPA member, and currently teaches politics at Tacoma Community College. 

Email: [email protected]
Twitter: @thulstlivecom

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