‘Rights of nature’ heads back to federal court

By Ellen M. Gilmer | 09/13/2016 07:40 AM EDT

A green group’s unconventional campaign to secure legal rights for the environment may get a second wind in federal court.

A green group’s unconventional campaign to secure legal rights for the environment may get a second wind in federal court.

The Community Environmental Legal Defense Fund yesterday went to the 3rd U.S. Circuit Court of Appeals to challenge a lower court’s refusal to let a grass-roots group and an ecosystem join a federal lawsuit over oil and gas development.

In litigation over whether northwest Pennsylvania’s Highland Township has authority to ban oil and gas wastewater disposal, CELDF attorney Lindsey Schromen-Wawrin represented the local water authority, a grass-roots environmental group and the Crystal Spring ecosystem in a motion to join the case on the township’s side.


That last intervenor, the Crystal Spring ecosystem, is highly unusual — a fact that’s not lost on Schromen-Wawrin.

"By recognizing ecosystems as legal persons we’re trying to change this, to recognize legally that the earth has rights and is not merely property," he said in an email. "That means, of course, that we’re going up against at least 1,000 years of dogma in western law. That’s not going to be easy, but at the same time we need to make some fundamental shifts in how we relate to the earth in short time."

The effort is part of the "rights of nature" movement, which has gained attention but little traction in recent years as CELDF promotes the idea in small communities seeking to block oil and gas development. Under the doctrine, parts of the environment would have legal standing in court. The forests, rivers and other parts of nature would still be represented by human lawyers but, unlike environmental groups, would not have to show that a challenged action ultimately harms people.

Industry lawyers have derided the idea as absurd, and mainstream environmental lawyers have called it far-fetched (EnergyWire, Jan. 7, 2015).

CELDF first attempted to push the issue in another Pennsylvania lawsuit, seeking to intervene on behalf of the Little Mahoning Creek in a dispute over a drilling ban in Grant Township, west of Pittsburgh. In that case, Magistrate Judge Susan Paradise Baxter sidestepped the question of legal standing for the watershed and instead broadly found that the township adequately represented its interests (EnergyWire, Oct. 16, 2015).

Baxter again reviewed the issue in the Highland Township case and again avoided weighing in on the ecosystem’s legal status. Schromen-Wawrin is hoping the 3rd Circuit has no choice but to consider the matter head-on in yesterday’s appeal, which focuses on whether the lower court erred in cutting the proposed intervenors out of settlement negotiations between the township and an oil and gas company.

In an appeal of the Grant Township case, the 3rd Circuit agreed that the watershed’s interests were well-represented and did not address the legal standing issue, except in a brief footnote that said the court was "not convinced" the Little Mahoning Creek met the criteria for standing under the Federal Rules of Civil Procedure.

According to Schromen-Wawrin, the new Highland Township case will have better odds at a ruling that addresses the meat of the legal standing question. That’s because the township has since settled with Seneca Resources, so no argument can be made that the township is representing the ecosystem’s interests.

"So with the appeal in Seneca v. Highland, we have a much better chance of getting past the adequate representation question and actually reaching the issue of ecosystem standing," he said. "But we also know we’re going into hostile territory, as the 3rd Circuit recently said, in dicta, that it doubts that ecosystems can be parties in court.

"I think the lesson is it will take a lot of popular pressure for courts to recognize ecosystems as legal persons rather than property," he added.