Should nature have standing to sue?

Even today, the natural world needs a co-plaintiff: us.

  • The marbled murrelet, northern spotted owl, and humpback whale have all been involved in court cases with help from humans.

    Jenna Cragg
  • The marbled murrelet, northern spotted owl, and humpback whale have all been involved in court cases with help from humans.

    Rhett Wilkins
  • The marbled murrelet, northern spotted owl, and humpback whale have all been involved in court cases with help from humans.

    NOAA
 

In 1965, the Sierra Club sued to stop a ski development in Sequoia National Forest, California, arguing that Walt Disney Enterprises’ proposed resort would constitute an injury to Mineral King Valley. In 1972, the Supreme Court rejected the club’s reasoning, unwilling to accept that natural objects had standing to sue in court. Instead, the court urged the Sierra Club to amend its complaint to show how the club’s members, rather than the valley, would be injured. The club did so, and the ski resort was stopped.

However, one justice, William O. Douglas, was persuaded by the Sierra Club’s original reasoning. His passionate dissent in Sierra Club v. Morton marks a pivotal point in environmental legal battles, one that still shapes advocacy today and points the way toward a potentially different way of thinking about nature.

Douglas’ views were inspired by his own experiences in the wild. He grew up in Yakima, Washington, hiking the foothills and peaks of the Cascade Range, and he sang the praises of nature throughout his life. “When one stands on Darling Mountain, he is not remote and apart from the wilderness; he is an intimate part of it,” he wrote in a typical passage from his memoir, Of Men and Mountains. “Every ridge, every valley, every peak offers a solitude deeper even than that of the sea. It offers the peace that comes only from solitude.”

An intellectually restless man who wrote and traveled extensively, Douglas published five environmental books between 1960 and 1967. One of them, A Wilderness Bill of Rights, argued for a “Bill of Rights to protect those whose spiritual values extend to the rivers and lakes, the valleys and the ridges, and who find life in a mechanized society worth living only because those splendid resources are not despoiled.”

In his dissent in the Sierra Club lawsuit, Douglas advocated for a federal rule that would allow for litigation “in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.” The proper labeling of the case, he argued, should have been Mineral King v. Morton.

 It wasn’t a huge leap from other legal precedents. Douglas pointed out that both corporations and ships had long been parties in litigation, despite being artificial and inanimate. “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life,” he wrote. Extending standing to the real party at risk of harm — the environment — would preserve “priceless bits of Americana” before they become “forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment.”

Douglas recommended accepting nature’s rights — allowing nature’s own voice to be heard in the courtroom — as a lasting way to shield wild places and processes from the ever-accelerating threats they faced.

His passionate plea didn’t persuade his practical-minded judicial brethren, even if fellow dissenter Justice Harry Blackmun called it “eloquent” and insisted that Douglas read it from the bench. Yet Douglas’ opinion influenced and inspired environmentalists at the time and ever since. The Wilderness Society published the “stirring” dissent, and Roderick Nash in his history of environmental ethics, The Rights of Nature, said that Douglas had “located the conceptual door to the rights of nature.” Michael Nelson, an environmental philosopher at Oregon State University, sees Douglas’ dissent as “the cornerstone of a new environmental ethic, one premised upon empathy with the human and non-human world alike.”

In the years since then, environmental groups have been able to sue on behalf of nature by demonstrating group members’ legitimate interest in conservation issues or in places like Mineral King, a concept called associational standing. But despite Douglas’ efforts, nature still finds itself marginalized in courtrooms. Much as a Catholic’s confession must go through a priest, nature needs a mediator, a conservation organization.

Where all this leads is unclear. The courts themselves have never fully embraced the idea of nature’s standing, but they’ve come close in the years since Douglas’ dissent. This has been particularly true for endangered species like the marbled murrelet, the northern spotted owl and the coho salmon — all of which found themselves in court cases as co-plaintiffs alongside humans. Nature has yet to stand alone in court, however.

Douglas recommended accepting nature’s rights — allowing nature’s own voice to be heard in the courtroom — as a lasting way to shield wild places and processes from the ever-accelerating threats they faced.

A decade ago, the 9th Circuit Court faced a test when a lawyer sued the president and secretary of defense on behalf of marine mammals, without a co-plaintiff — essentially the approach that Douglas had promoted. In Cetacean Community v. Bush (2004), the court emphatically rejected the species’ legal standing, finding no evidence that Congress intended whales or dolphins to have it. The court found nothing preventing the legislative branch from deciding to grant animals statutory standing, however. Still, the prospect of today’s Congress acting along those lines seems unlikely on ideological, political and practical grounds, and it’s equally unclear that others — judges or policymakers — would agree that the notion passes constitutional muster.

And so it seems unlikely, at least for now, that Douglas’ vision of nature as an entity with the right to sue will manifest in our courts. But does that matter? It depends on your criteria. The aftermath of the Supreme Court’s decision in Sierra Club v. Morton helped establish standing for environmental organizations, thus facilitating environmental litigation. The court’s opinion did not extend that right to natural objects, but Douglas’ dissent nudged the courts toward recognizing nature’s rights. This perspective pointed the way, according to legal scholar Christopher Stone, toward a new “level of consciousness” for the courts. 

And so the debate about nature’s standing then becomes a broader philosophical debate about law and what it can and can’t, or should or shouldn’t, do. Law is not intended to transform levels of consciousness or morality; it is a pragmatic discipline. As a practical matter, extending standing to natural objects may simply be unnecessary.

As a moral matter, however, the failure to acknowledge nature’s rights frustrates legal and environmental activists and surely would have disappointed (though not surprised) Douglas, who retired from the Supreme Court in 1975, after a debilitating stroke, and died five years later.

Today, global climate change, biodiversity losses and habitat fragmentation are creating unprecedented social and ecological problems. Environmental crises require serious changes in governance and legal systems and, arguably, in morality. When organizations such as the Earth Law Center work to “advance legal rights for ecosystems to exist, thrive and evolve,” or when Ecuador declares in its 2008 Constitution that nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes,” they are paying homage to Douglas’ -vision and implementing it in governing structures where law and morality may intersect.

“The idea that what many take to be inanimate objects (such as trees),” Nelson says, “or abstract ideas and the places we apply them to (such as wilderness) or even a ‘symbol’ (such as a river) can be wronged in some way, and therefore can be represented or spoken on behalf of, is brave and thoughtful. And the idea that those who know most about something and care most for it should be the spokesperson seems wise and helpful as we think about the future and what kind of people we need to be or create (a society) that can and should speak about tough natural resource issues in the uncertain future we all face.”  

Toward the end of his dissent, Douglas noted that well-meaning advocates often flock to the environmental issue du jour, an understandable tendency but one that cannot sustain environmental protection over the long run. “That is why these environmental issues should be tendered by the inanimate object itself,” he wrote. “Then there will be assurances that all of the forms of life which it represents will stand before the court — the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.”

Douglas’ day may still come. In the meantime, though, we humans, or at least our organizations, will have to serve as -acceptable stand-ins.

Adam Sowards is an environmental historian at the University of Idaho. He is the author of several books and essays, including The Environmental Justice: William O. Douglas and American Conservation and the editor of Idaho’s Place: A New History of the Gem State. 

This story was originally titled "Law and nature" in the print edition.