Climate change will fundamentally change the environment. Rivers, the lifeblood of the earth, will dry up, leaving barren riverbeds. Desertification will overtake forested areas. Biomes that were once rich in biodiversity are being devastated by the ensuing environmental catastrophe.
Human impacts are most commonly used as a lens to describe the devastation that climate change has wreaked. In the climate justice discourse, there is little recognition of the broader impacts on the whole of natural existence. The growing case law on environmental personality offers a unique perspective to re-contextualize the effects of climate change.
Environmental personality is a legal term that gives environmental entities the status of a legal person. The concept recognizes that nature has rights and that a court should enforce those rights. This gives the environment, regardless of its connection to human interests, robust and far-reaching legal protection.
Christopher Stone first introduced the idea of environmental personality in Should there be trees? Towards Legal Rights of Natural Objects. Stone argued that if an environmental organization obtains a legal entity, it cannot be owned and has the right to appear in court. However, when he first put forward the idea that forests and rivers should have a voice in court, it was met with derision.
Until recently, environmental personality was a fringe doctrine of jurisprudence. However, the principle has recently experienced a kind of revival. Its growing relevance in contemporary environmental justice is inseparable from the influence of indigenous perspectives on the relationship between people and the world. Global legal developments bear witness to the influence that indigenous peoples have on the discourse on environmental protection.
A global movement is gaining ground
In 2008, Ecuador made history. It was the first country to change its constitution to reflect rights for nature. Bolivia quickly followed in 2010. Both sets of legislative changes coincided with an increase in political power among indigenous groups. In both countries, the influence of indigenous worldviews was evident in the meaning of Pachamama– “Nature” in the language of the indigenous Quichua and Aimara groups.
According to Article 71 of the Ecuadorian Constitution, nature has the right “to endure, conserve, conserve and regenerate its life cycles, its structure, its functions and its evolutionary process”. Every person and community has the right to care for nature. Nature eludes direct personification in the constitution. Instead, nature is the bearer of rights – a defined entity distinct from human interests.
Bolivia’s legal protections work similarly. Legal recognition of nature is in the collective public interest. Mother Earth’s law of rights deprives humans of their dominion over nature. The law creates a holistic legal basis to protect nature as a system, rather than protecting individual features such as forests, rivers, glaciers, etc.
In New Zealand, a different approach was taken, but one that was still rooted in expressing how indigenous communities view their relationship with nature. For example, for a Maori tribe (iwi), sub-tribe (hapu), or extended family group (whanau), a particular river or mountain might be an ancestor (tupuna). This is a crucial part of their worldview. This worldview was influential in giving personality to the Whanganui River and Te Urewera Forest.
The assignment of personality to discrete natural characteristics is becoming increasingly relevant.
In 2014, India’s Supreme Court allowed Article 21 – the right to life – of the Indian Constitution to be extended to non-human animals. In 2021, the Canadian government recognized the legal rights of the Mutesheku Shipu (Magpie River). Environmental Personhood is becoming a global movement that recognizes both indigenous rights and the rights of nature.
Beyond human interests
The movement plays a valuable role in the goals of climate justice and represents a radical way of speaking about the environment. The dominant language when talking about environmental and climate justice concerns human interests. For example, Switzerland has a constitutional provision that recognizes that the rights of individuals are related to human dignity and security. The provision dates back to Ecuador’s constitutional amendments regarding the rights of nature, but Ecuador’s amendments represent a revolutionary way of recognizing the rights of nature as independent of human interests.
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The codification of the environment with human interests represents an anthropocentric view of the environment built on extractive values. In friction, Anna Lowenhaupt Tsing sheds light on how people describe nature as full of resources that are ready to be exploited by human hands. We clearly delineate land ownership and describe how we can use the land and how we should protect it from environmental degradation.
Arguments for protecting the environment follow similar patterns – such as giving people opportunities to experience nature, reducing the damage done to the food chain for human consumption, or controlling how economic development can take place. These arguments are rooted in the same goals: the protection of human life and health. It is an approach to environmental protection that is embedded in the ecological philosophy of the 19th and 20th centuries: Nature should be used for human exploitation.
However, as we wade through the current climate crisis, anthropocentric perspectives rooted in human exploitation are shifting towards more practical, long-term views of environmental conservation. The goals are based on the focus on protecting the earth for future generations. Arguments for immediate climate action are often justified by the fact that we are stewards of the earth our children will live on.
This approach springs from noble intentions, but as Laurence Tribe observed in 1974, a sense of duty to the environment that leads to some effort to act on its behalf is “translated into the terminology of human self-interest”. Therefore, a nature-based approach to protecting nature is preferable to a human-centric one. This gives a voice to a previously voiceless entity. Developments to bestow personality on individuals place nature on the same legal level as other legal entities (such as corporations). In addition, it establishes a number of rights outside the realm of human rule.
A challenge to extractive capitalism
The environmental personality possesses the ability to disrupt the capitalist legal framework. It represents a collective ontological project to rebel against the human tendency to turn nature into an exploitable resource. At the heart of this concept is nature’s striving to become an actor in social history. Environmental Personhood tries to find connections between nature and culture. It recognizes that humans are part of nature; We cannot exist without nature. But in the abstract way we engage with nature, reducing it to something marginal, we lose sight of our connection to nature.
Environmental personality has a practical value for climate justice outside of its ontological value. The rights of nature can be used as a basis for climate lawsuits. According to the Global Climate Litigation Report: 2020 Status Review, few climate change cases invoke nature’s rights. In an April 2021 decision by the Supreme Court of Pakistan, the court recognized the need to protect nature’s rights, stating that “the environment itself must be protected”.
The impact of these cases is currently unclear. Results typically vary depending on how the claim is worded. However, the growing number of lawsuits is creating a precedent for national and local governments to act on climate change by opposing projects that could destroy a given ecosystem, mainly due to the future impact of rising greenhouse gas emissions. In addition, the lawsuits contextualize the damage that climate change poses to marginalized communities, particularly indigenous communities whose livelihoods and cultural and spiritual practices depend on the unique ecosystems in which they live.
The realization that the earth is a living system of which humans are a part – rather than human property to be owned and destroyed – is a fundamental departure from the climate capitalism that pervades global trade, environmental policies and treaties worldwide. Environmental Personhood represents a solution to climate change where we stop treating the earth as a commodity. The current system of climate capitalism cannot sustain and regenerate life because it is built on a flawed foundation of ceaseless industrial extraction and pollution. Moreover, it is defined by the privatization and commodification of nature.
Climate capitalism treats the environment as exploitable property. Companies engage in greenwashing in their climate protection campaigns and release CO2 emissions into the atmosphere. They use reforestation as a badge to declare themselves carbon neutral while creating systems that increase inequality and accelerate ecosystem destruction.
The recognition of the rights of nature recognizes that human activities must not impair the ability of ecosystems to absorb their impacts, their natural capacities to regenerate, and to thrive and develop. It requires those responsible for the destruction – including corporate actors and governments – to be held fully accountable.
It is a radical legal change that collides with the existing legal system. Ecological Personality requires us to uproot established Western concepts of property rights, individualism, and endless economic growth. However, such conflicts are necessary and urgent if we are to achieve radical action on climate change soon.