When rivers go to court

Imagine a river taking her case for the legal rights of rivers to court. Arriving in her smooth, flowing robes, reflecting the blue of the sky, a shimmering train brushing the floor as she walks. Everywhere light is glinting, from her silver hair to her silver shoes. Her skin is sometimes the color of the mirrored moon, sometimes the color of the mahogany tannins she carries from the forests she flows through.

She speaks in a deep, contralto voice. Her tone holds great authority. She knows her depths, knows the source of her power and energy, knows she is fed from innumerable streams, from the sky itself. No one, listening to her, would doubt her word for an instant. It would be impossible to ignore what she says. And we all know exactly what she would say. 

Stop! she would call out, her voice shaking the room. Stop the poisons. Undo the dams. Protect the lands that feed me. Don’t use me for greed. I am not here to absorb your waste or your delusions. I am not here for you. I have been here for billions of years. I have cut deep canyons through sheer rock. I have carried rain from one end of the world to another.

In me flow innumerable sacred fish. Birds nest on my banks. Plants grow in my shallows. None of this was put here for you. I am here because I am here, part of the living, breathing earth that formed me. I exist because the universe called me into being.

Behind her are the deep voices of her brothers, the mountains, testifying that they are not here to be blown up for profit. Then come the trees, aghast at our wholesale disposal of their forests and savannahs. Flowers come from meadows all over the world, declaring, in their silken tones, that they cannot grow through asphalt.

The piping voices of birds tell the judge what it’s like to see three billion of their relatives die in the last fifty years. The deep, mournful voices of whales and elephants, the soft buzz of bees, the whisper of butterflies wholeheartedly agree. The snarling, angry roars of the great cats describe losing their homes as the wild, ancient forests are felled.

If only! We would never be the same again. If even just once the rivers and trees and jaguars could talk to us in a language we all understood, we would be unable to go forward one more day as we have been.

But it’s not to be, at least at this stage of evolution. However, some people do understand their languages, and they can show up in court on nature’s behalf. The difficulty, in our current legal system, is that these guardians can only sue after demonstrable, often extensive damage has been done to a person or people. 

At that point, the ongoing destruction may stop, but the existing harm is not necessarily mitigated. If fracking destroys a town’s water supply, stopping the fracking will not restore the water. If an oil pipeline leaks 400,000 gallons of oil, plugging the leak doesn’t pull the spilled oil out of the ground.

I grew up on the Hudson River. In 1977, General Electric, after decades of dumping 1.3 million pounds of toxic polychlorinated biphenyls into the water, was forced to stop the discharge. It took another 30 years for a clean-up to even begin. Now, 40 years later, it still goes on. Every person, animal, and plant, from north of Albany to New York Harbor, has PCBs in them.

What if the Hudson River had had rights on its own to go to court? To speak through a guardian, to refuse to have poisons dumped in its waters, refuse to have its ecosystem polluted? Those rights have been granted to the Ganges River and its main tributary, the Yamuna River. In March 2017, the high court in the Indian state of Uttarakhand ruled that from that day forward both rivers would be “legal and living entities having the status of a legal person with all corresponding rights, duties, and liabilities.”

In other words, they will be treated as persons in the eyes of the law. Harm to the rivers would be the same as harm to a human being. 

The judges in that case cited the Whanganui River in New Zealand. It had just been declared not only a living entity but kin to the Whanganui iwi, the indigenous Maori people of the area. They had fought for 140 years to gain this status for a river they consider to be their ancestor. Legally, harm to the river is now the same as harm to the Maori themselves.

This was the first river in the world to gain personhood in the eyes of the law. But New Zealand had already granted such rights to the Te Urewera forest in 2014. In 2017, along with the Whanganui River, the same rights were established for Mount Taranaki. 

2017 was a banner year for the rights of nature. In addition to the Ganges and the Whanganui, Columbia announced biocultural rights for the Atrato River. The Constitutional Court agreed that the best way to protect the rights of indigenous communities is to preserve biodiversity and restore ecosystems. Australia passed the Yarra River Protection Act. Like similar legislation, protecting the Yarra River meant acknowledging Indigenous rights and relationships to land that has always been part of their lives and history.

Speaking to the parliament, Wurundjeri elder Alice Kolasa said: “The state now recognizes something that we, as the First People have always known, that the Birrarung is one integrated living entity.” The act was written in both the English and Woi-wurrun languages. In August 2017, Australian experts on environmental law recommended shifting the focus of law to a rights of nature approach.

In the US, rights of personhood were established for the Klamath River in Northern California and southern Oregon. The law was created by an indigenous nation, the Yurok, and reflects their view of the river as not a resource, but a living entity holding rights.

This may be easier to do in tribal governing bodies and courts. Rights of nature easily fit, and indeed arise from, the indigenous view of nature as a web of intimate relationships into which we are all embedded. “We can trace our genealogy to the origins of the universe,” said Gerrard Albert, who was the lead negotiator for the Whanganui iwi.

Significantly, many of these early rights of nature pioneers are considered sacred by the communities that have lived in and alongside them for millennia. Though I can find no mention of it, Lake Erie, vast and teeming with fish, was undoubtedly considered sacred by the various indigenous nations that lived on its shores and saw its existence as sustenance for body and spirit.

The arrival of Europeans began centuries of industry and farming, the filling in of wetlands, the building of ports and docks. Now pollution, agricultural runoff, and a warming atmosphere have combined to produce algae blooms so vast they can be seen from space. And so toxic that the water becomes undrinkable, the fish no longer safe to eat. 

Citizens of Toledo put Lake Erie’s rights of personhood on the ballot. It declared that it  “has become necessary that [we] reclaim, reaffirm, and assert our inherent and inalienable rights, and to extend legal rights to our natural environment to ensure that the natural world, along with our values, our interests, and our rights, are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.”

It passed by 61%. The Ohio state legislature, in a move reminiscent of the bans on boycotts during the Civil Rights movement, then voted to ban all such laws. Their law was written by the Ohio Chamber of Commerce. 

Following the ban, another community promptly began to gather signatures to put protection of their aquifer on the ballot. That’s the spirit that needs to greet all setbacks. There have been a few of those, but the very first community-passed rights of nature ordinance in the world is still going. In the early 2000s, a small borough in Pennsylvania wanted to prevent the state from giving permits to dump toxic sludge in their town.

They reached out to a relatively new organization for help: the Community Environmental Legal Defense Fund. I’m planning to devote a future post to CELDF and I would not be writing this essay if it weren’t for their work. They have been involved in most of the rights of nature movements around the world, including the Ganges and Lake Erie.

Giving these waters standing in court is only the beginning of solving their problems. Every day, 400 million gallons of raw sewage and 132 million gallons of industrial toxins are discharged into the Ganges. The ruling that gives the Ganges and Yamuna rights came from a state, not the national government.

Between poverty and civil war, the illegal mining devastating Columbia’s Atrato River is difficult to stop. There is a plank guaranteeing a clean environment in the Pennsylvania constitution. But the state’s Department of Environmental Protection sues local communities to force them to allow fracking. In 2008,

Ecuador included the rights of nature in its new constitution. The government still parcels out the rainforest to oil and mining companies. Many of the advances in rights have not yet been tested in court. Even when they are, enforcement can fall on ill-equipped local communities. Complexities are everywhere. 

Nevertheless, it’s an amazing start. The Ganges itself can now sue to stop pollution. It’s happening worldwide: Bolivia, Ecuador, India, Nepal, United Kingdom, Australia, New Zealand, Brazil, Uganda, Sweden, Cameroon, Mexico, and the United States. The Florida Democratic Party has included rights of nature in its platform. Pope Francis preaches environmental rights. 

This year the National Lawyers Guild in the US amended its constitution. They included the revolutionary statement: “Human rights and the rights of ecosystems shall be regarded as more sacred than property interests.”

Despite setbacks, there have been wins in court. Every step is worth celebrating. All different ways of thinking are resisted until they’re not. This year, Bangladesh became the first country in the world to grant all their rivers personhood rights.

Gerrard Albert, the Maori leader quoted above, went on to say “Rather than us being masters of the natural world, we are part of it. We want to live like that as our starting point. And that is not an anti-development, or anti-economic use of the river but to begin with the view that it is a living being, and then consider its future from that central belief.”

That idea changes everything. Would we dump raw sewage or toxic chemicals into a human being? Would we harvest all the valuable organs from a living being? Would we bury it alive? Would we injure a living being and walk away from their gaping wounds?

These are things we do. Blast mountains. Bury wetlands. Throw all manner of toxins into waterways. Clearcut forests. We do them in the name of efficiency and profit. Because we believe these entities are inert, unimportant except as they provide resources for us. Now, slowly but increasingly, they can go to court on their own behalf.

As one of the Australian legislators said of the Whanganui, “The river itself has the right not to be polluted, it has the right not to be degraded. It has the right not to be overdrawn before it can replenish itself.” These are such simple, basic ideas. But they hold the power to change how we look at and operate in the world. And, once we see ourselves as guardians instead of users, how we look at ourselves.

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