Speaking for the trees, lawyer pushes unconventional doctrine

By Ellen M. Gilmer | 01/07/2015 08:13 AM EST

Attorneys for a Pennsylvania energy company were baffled when they reviewed a November court filing seeking to intervene in the company’s lawsuit against a township government.

Though industry lawyers are accustomed to involvement from conservation groups and others affected by alleged environmental harms, this was far from a standard intervenor motion. The filing came from the environment itself — the Little Mahoning Creek and all the water and land ecosystems that feed into it.

The motion — which also lists a more traditional party, the grass-roots East Run Hellbenders Society — invokes "rights of nature," a doctrine that purports to give certain legal rights to elements of nature, including trees, mountains and entire ecosystems.

As quickly as environmental lawyers could hail the approach as monumental, industry lawyers derided it as absurd. Both sides agree the motion will test the limits for community opposition to oil and gas development.

At issue in the Pennsylvania lawsuit is whether Grant Township, 80 miles west of Pittsburgh, was justified in enacting a law that bans oil and gas wastewater wells. Pennsylvania General Energy Co. had plans to convert an existing oil and gas well to a disposal well when the ordinance took effect, so it challenged the ban.

The intervenor motion claims the environment has a major stake in the case and is entitled to legal standing independent of the township, thanks to a measure in the township’s new ordinance that guarantees rights of nature.

"Thus, for the ecosystem’s rights to be defended, the ecosystem must be present in this litigation," attorney Lindsey Schromen-Wawrin wrote in a brief accompanying the request to intervene. "The Little Mahoning Watershed’s interests would necessarily be impaired if it is not allowed to intervene, because its rights could not be defended."

Schromen-Wawrin represents the Community Environmental Legal Defense Fund, a small but influential nonprofit making waves across the country by helping local governments draft community "bills of rights" that seek to block oil and gas development and establish rights of nature, among other things. Grant Township’s bill of rights explicitly protects the rights of ecosystems to "exist, flourish and naturally evolve."

CELDF Executive Director Thomas Linzey, who is both defending Grant Township in the litigation and coordinating the intervenor motion, has hailed the rights-of-nature approach as a revolution made necessary by the quick spread of hydraulic fracturing and other industrial activities.

"When an injection well comes in or a frack site, the adverse impacts caused by that project are not only to the community of humans but also to the natural environment," Linzey told EnergyWire. "For the last 1,000 years, nature has been treated as property rather than something with rights."

But granting legal rights to nature is considered a wild idea, even within the environmental community.

"Call me an old-fashioned anthropocentric, but I prefer defending protections for natural systems and the environment on the ground that such protections are good for people," wrote environmental compliance attorney Seth Jaffe after the intervenor motion was filed.

Linzey contends traditional environmentalism — focused on how environmental harm affects people — simply does not work.

"Taking off my lawyer’s hat, how’s that working for you?" he said of the traditional human-centric approach. "We are trapped in a regulatory model. Moving from that regulatory system to a rights-based system is, to us, the only thing that has any hope of protecting or conserving the environment."

Critics have expressed outrage at the concept, calling it far-fetched at best and dangerous at worst.

"A watershed lacks consciousness, intelligence, cognition, communicability, or agency," wrote Pennsylvania General Energy lawyers in response to the intervenor motion. "The Watershed cannot decide to intervene, cannot accept representation or engage with counsel as a client, and cannot appear in court or testify."

Oil and gas law scholar Bruce Kramer raised even starker concerns.

"People who propose this and say that these are valid ordinances are coming close to engaging in legal malpractice," he told EnergyWire. "It’s crazy."

Unthinkable doctrine?

Advocates aren’t surprised by the pushback. The rights-of-nature doctrine has been controversial since its inception.

The idea first gained traction in 1972 when University of Southern California law professor Christopher Stone published the groundbreaking "Should Trees Have Standing? — Toward Legal Rights for Natural Objects." The article, published in the Southern California Law Review, notes that many modern legal norms were once considered unthinkable.

"The fact is, that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable," Stone wrote, noting corporate rights and civil rights for women and minorities.

He added that the environment should not have every legal right held by humans but should be entitled to defense beyond the sort offered by standard environmental laws.

"Natural objects would have standing in their own right, through a guardian," Stone wrote. "Damage to and through them would be ascertained and considered as an independent factor; and they would be the beneficiaries of legal awards."

The concept gained more credibility that same year in a famous Supreme Court dissent. In Sierra Club v. Morton, a case involving a proposed Disney ski resort near Sequoia National Park, Justice William Douglas issued a dissenting opinion citing Stone’s essay. Douglas argued that legal standing for natural objects would not differ significantly from rights granted to companies in corporate law or ships in maritime law.

"The critical question of ‘standing’ would be simplified and also put neatly in focus," Douglas wrote, "if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers, and where the issue is the subject of public outrage."

Without such a federal policy, the protection of natural rights has mostly remained theoretical and conflicted in the United States. When environmental lawyers tried to include an endangered bird on a list of plaintiffs in a Hawaii lawsuit, for example, a federal judge promptly ordered the bird to be removed, as it did not qualify as a person with legal rights.

Lawyers for Pennsylvania General Energy pointed to this ruling in its response to the intervenor motion.

"The Watershed offers no legal support for its absurd attempt to intervene as a party to this lawsuit," PGE said in a December filing. "Clearly, if an animal is not considered a ‘person’ under [federal law], then a natural condition, such as a watershed, cannot be deemed to be a ‘person’ with standing to sue."

In separate cases dealing with another Hawaiian bird and the northern spotted owl, however, judges have allowed the animals to remain captioned as plaintiffs. But the cases failed to include in-depth analysis of rights of nature, leaving the issue as undecided as ever.

Linzey is hopeful that courts are ready to explore the issue after years of evasion and waffling.

"It’s past due," he said. "Rights of nature has an interesting pedigree and legacy of the United States. It’s not as crazy as it sounds."

Modern tests

For now, all eyes are on Grant Township, which could serve as one of the first modern testing grounds for the rights-of-nature doctrine.

According to Schromen-Wawrin, the key to Grant Township’s argument is that the local government there actually provided a legislative platform to establish legal rights for the environment through the township ordinance.

In its complaint, PGE challenged the ordinance’s ban on injection wells but did not specifically oppose the establishment of rights of nature. Without a challenge to that aspect of the ordinance, advocates say PGE implicitly recognized its validity, and the judge is likely to allow the intervention from the watershed. The rights-of-nature provision would remain in effect even if the ban were struck down.

Still, supporters’ predictions for the case do not guarantee any robust discussion of the doctrine. For that, litigation may be brewing in other jurisdictions where Linzey and other CELDF attorneys have made their mark.

Mora County, N.M., for example, passed an ordinance last year granting rights of nature. The ordinance is already facing two legal challenges, but the county’s natural resources are not currently party to any litigation. Broadview Heights, Ohio, also passed a rights-of-nature ordinance, but activists there have not yet attempted to test legal standing.

That’s a relief to Kramer, the oil and gas law scholar, who says any attempts to test the issue in court are ill-conceived.

"That’s a policy position," he said. "It shouldn’t be a legal position."

But Linzey and others are holding out hope.

"Our system changes, but it changes very slowly," he said.