Literature Review

The Rights of Nature Movement, a global political movement that seeks to expand the legal rights traditionally granted to humans and corporations to natural entities like lakes, rivers, and ecosystems, is becoming more mainstream. In the United States, the movement has had successes in passing local ordinances that grant lakes and rivers the right to exist and flourish. The most high-profile of these victories for the movement was the Lake Erie Bill of Rights, an ordinance that passed in Toledo, Ohio, in February of 2019. This Note explores the Rights of Nature Movement in the United States. The ordinances that have been enacted by various local governments generally establish the right of a river or lake to exist and flourish, and some ordinances strip corporations of their rights under state and federal law. While some saw the Lake Erie Bill of Rights ordinance as a big victory for the movement, a federal district court invalidated the ordinance in February of 2020. This Note analyzes that district court case and uses it as a foil to explore the weaknesses of the movement. This Note argues that the movement should stop focusing on local governments, and instead seek more nuanced policies at the state level, including a guardianship scheme for entities like lakes and rivers.

An international consensus of scientific experts is now demanding “immediate action” in response to the environmental, climate, and biodiversity crises. But are our legal and regulatory frameworks equipped to respond to the rapid pace of environmental degradation, biodiversity loss and climate change? What incidence is there, transnationally, of laws that seek to protect the Earth from the humans that inhabit it? In the past few decades, there is a growing social, legal, and political movement towards more ecocentric regulation of the planet, where new laws and institutions seek to protect natural resources for their own intrinsic value. In this paper, I consider recent efforts to protect the rights of rivers in the U.S. and Mexico, which are novel and emerging attempts to discover new pathways for enhanced protection of vulnerable waterways. These attempts are being pragmatically driven from the bottom up to the highest levels of the legislature or judiciary as local communities (and sometimes Indigenous Peoples) become increasingly frustrated with apathetic and complacent governmental responses to environmental challenges, using whatever legal tools and processes are available to them. However, rather than an Earth-centred revolution, efforts to protect the rights of nature are distinctly “human”; as communities appeal to human rights laws, and their enhanced constitutional status, to upset the status quo. There are important lessons to be learned from these experiences in other countries in terms of the ability to entrench transformative environmental protections via constitutional hierarchies and the potential for the rights and interests of humans to be both an enabler of, as well as a threat to, nature’s rights.

Around the world, the legal standing of nature is gaining ground. Since the 2008 precedent-setting case in Ecuador, where the Rights of Nature were written into the Ecuadorian Constitution, a number of cases around the world have resulted in the recognition of the legal standing of nature. The growing number of Rights of Nature cases suggests a new legal precedent could be forming. The legal standing of nature, therefore, could increasingly become an instrument for Indigenous rights to be realised, while at the same time operationalising commitments made by states to climate change action and international treaties. In the context of rapidly accelerating climate change, it is likely only a matter of time before extractive industries operating in Canada must address the rights of Indigenous peoples, but also consider the legal standing of nature. This commentary explores how the Rights of Nature could influence the duty to consult with First Nations in Canada in the context of climate change.

This report provides a synthesis of information on the current state of development of climate change litigation in Europe (the European Union and European countries outside the EU). It was written for the European Forum of Judges for the Environment (EUFJE) Annual Conference, which took place in October 2022. The report draws on three key sources of information: (i) the national reports provided by EUFJE members summarising developments in their domestic jurisdictions; (ii) the annual Global Trends in Climate Litigation reports published by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science; and (iii) the global climate change litigation databases maintained by the Sabin Center for Climate Change Law at Columbia University with support from the Grantham Research Institute and others. Further information on these data sources can be found in Box 1.

A growing number of jurisdictions throughout the world have recognized some type of legal rights of nature. This jurisprudential trend has thus far made few inroads in Europe. However, its apparent absence is misleading. In this article we argue that, explicit or not, nature as protected by European Union (EU) law already has certain legal rights in the Hohfeldian sense because other entities have legal obligations towards it. Moreover, we argue that recent decisions of the Court of Justice of the EU can be interpreted to support our claim that nature, as protected by EU law, already enjoys some legal rights that cannot be trumped by mere utilitarian interests, and that these rights can in turn be recognized and applied by national courts. We further suggest that public interest litigation can contribute to developing rights for nature in Europe, even absent any explicit recognition of these rights in EU law or in national legislation.

Following a popular initiative, the Spanish Parliament granted legal personality to the lagoon of Mar Menor and gave the right to everybody to defend the lagoon’s rights in administrative or judicial action. The contribution presents the new Spanish legislation, places it in the context of global trends to give rights to parts of the natural environment and points to some aspects, which the new legislation raises.

We are far beyond the limitations of the planet and we have to face the simple fact that the approach that we had before to set up specific environmental legal texts is simply not working. It's not that we don't have the best or the proper regulation in the system but perhaps the problem is with the system itself. Clearly the current decision making structures and the structure of environmental law can manage certain externalities, as mentioned, and some effects of production and consumption – but it's not really challenging the basis of the problem. Forty years ago it was already on the table – do we create an overly complex un-understandable system of environmental law – or do we simply give rights to Nature?

Over the past decade, the debate on Rights of Nature as a promising novel discourse within the ever-changing context of environmental governance has gained considerable traction. An increasing number of countries, amongst whom New Zealand and Ecuador, has moved to explicitly grant legal personhood to nature, with some national courts following suit. Underlying this trend is the need to correct the prevailing instrumentalist approach to nature, which sees nature merely as an object. For now, the idea of giving certain procedural and substantive rights to nature has passed relatively unnoticed in the European Union (EU), which prides itself over its set of progressive environmental directives and regulations. This paper, which is published in two parts, posits that a rights-based approach to nature might be relevant for the EU as well, seeing that anthropocentric frames are still permeating many of the EU’s environmental strategies.

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 settled the longest-running litigation over Maori land claims in New Zealand history. The Whanganui river is New Zealand’s longest navigable river, stretching from Mount Tongariro in the North Island to the Tasman Sea. The settlement, and the 2017 Act which implements it, confers legal personality on the river system, giving it a unique legal status that recognises not only the need to protect the ecosystem it represents, but also to provide a legal forum in which to implement Maori cultural and spiritual attitudes to the relationship of land and people. It can be argued this marks a new and innovative approach to protecting the environment, focusing at the ecosystem level and incorporating spiritual values in a manner unknown in environmental law in most Western legal systems. This is not, however, the first time that an approach based on principles found in the 2017 Act has been used in a New Zealand context. This article will consider the 2017 Act and its principal objectives, and set the legislation within the very distinctive context of the legal culture within which environmental law in New Zealand sits. It highlights differences of approach from those adopted in English law to similar problems of ecosystem management, and concludes by considering whether (and what) lessons can be drawn from this innovative approach for the wider environmental governance of the natural environment.

Transboundary issues – from (chemical) pollution, land-use change to unsustainable levels of exploitation – have been eroding natural sites across Europe, reducing biodiversity in the process. In light of this, this paper analyses the comprehensiveness of EU environmental law, appraising its underlying ethos in the process. Additionally, it explores whether a Natureship Framework Directive at the European Union (EU) level, which establishes legal personality for natural sites, can deliver a ‘change of course’ with respect to the anthropocentric view underpinning environmental law as a pressing thought experiment. It constructs a (fictive) law which grants natural sites substantive and procedural rights, conceptualising how such an instrument may take shape. One finding is that an EU Natureship may be a robust tool to address flaws within EU environmental law. For example, the attribution of legal personality to natural sites alongside the appointment of formal representatives can significantly relieve the burden for NGOs and the European Commission, which may suffer from limited resources when it comes to judicial enforcement of environmental norms (or, alternatively, ecological rights). Other benefits pertain to nature management, which may be less complex and more politically stable under the approach put forward in this paper. An EU Natureship, therefore, may provide a vehicle to shift EU environmental law from the anthropocentric to the ecocentric.

A global movement to give legal rights to nature is slowly gaining momentum in the face of the ongoing biodiversity crisis that is hitting our planet. At its core, the concept of rights of nature presupposes a novel template for ecological governance, which is aimed at prioritizing nature’s right to exist and to flourish through a societal and legal reform. This chapter makes two separate arguments. First, it argues that rights of nature constitutes a powerful new paradigm for ecological governance. Second, it demonstrates the difficulties and opportunities encountered when operationalizing this emerging concept within the existing legal order through a case study on the interplay between nature’s rights and the existing EU legal order. In spite of the identified alignment between a more rights-based approach to nature protection and the existing EU environmental law, several long-standing defects of the existing EU legal order seem to block a further operationalization of rights of nature. Against the backdrop of the relatively strict case law at EU level with respect to standing in environmental cases before EU courts and the persisting anthropocentric nature of many EU environmental directives, this chapter concludes that the recognition of rights of nature at the national level, either through strategic litigation or legislative amendments, is to be approached as the most realistic pathway to the short-term operationalization of ecocentrism in the EU.

Environmental law has long sought to protect the interests of nature and all of its elements. Sometimes this has been framed as beneficial to human health and wellbeing. Sometimes it has involved commodification of natural resources or systems in the form of market mechanisms. Rarely has it involved a recognition of an aspect of nature as a living entity with rights of its own equivalent to human rights. This is what a recent agreement between the Maori of the Whanganui River and the government of New Zealand pledged to do on 30 August, 2012. This essay recounts the history behind the agreement of an indigenous struggle for environmental sovereignty amounting to the longest-standing legal battle in New Zealand. Then it highlights the accomplishments of that agreement, namely recognition of the Whanganui River in its entirety as a living being and legal entity. It also recognises the enduring indigenous struggle by Maori tribes in New Zealand to maintain control of their lands and rights, representing the rights of nature, and of a continual process to decolonise both nature and peoples.