Do trees have legal standing?

Climate Justice

Do trees have legal standing?

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Acknowledging the legal standing of non-human “things” is a key climate solution

We are inescapably dependent upon the environment. However, human beings have long struggled to define our ethical responsibilities to this physical world. As early as 600 BCE, Ezekiel called for humans to care for the land. Unlike his peers, Ezekiel knew that wisdom lies in tending not dominating the Earth.

What would it mean if there was a universal ethic so that all things — not just humans — were protected by the laws governing that society? This is hardly an extreme or uncommon view. In fact, a “land ethic” has been part of  Indigenous cultures for thousands of years. But in today’s industrialized world, nature is “owned” as property, to be exploited, dominated, and destroyed. 

Today, most international legal definitions separate humans and nature, including the UN Stockholm Declaration in 1972. What if how we adjudicated justice required that we give legal standing to all things, and not just humans?

The movement to recognize the rights of nature 

We are beginning to find out. In fits and starts, international legal definitions are subtly shifting to dissolve the separation of humans and nature, as the laws that govern man’s actions are moving toward the recognition of “environmental personhood.” In traditional western thought, this represents a radical reformulation where until now, people, not “things,” have had all the rights. But for this shift to happen, nature must have “legal standing.” 

Nature’s right to legal standing

To understand “legal standing,” a bit of history on “standing” helps. The basic idea is simple: If you are not a legal person alleging injury, you generally cannot access legal systems around the world. In the U.S., for example, Article III of the Constitution describes persons and entities that can sue to protect their rights and seek justice in a courtroom. This access has been extended to corporations and other non-human entities. But nature is among a long list of those that have been prohibited in the past from seeking redress in courts: conquered slaves, women, the religiously oppressed, people of color and animals, who have at one time each been considered property with no legal rights or “standing” in courts of law, including in the U.S. 

Nature is among a long list of those that have been prohibited in the past from seeking redress in courts.

The emergence of “environmental personhood”

More is needed. Nature should have legal standing through “environmental personhood.” Once the realm of philosophers, the idea of environmental personhood was revitalized in 1972 by Christopher Stone in his seminal book Should Trees Have Standing? He advocated that legal standing should be extended to elements of our environment — to the air, water, land and trees. At that time, U.S. rivers were literally on fire from contamination and debris. With the public galvanized by photos published on the cover of Life magazine in 1969, Congress passed new Federal environmental laws, most with overwhelming bipartisan support that we can only dream of today.

Should Trees Have Standing? also formed the basis of a passionate and now iconic dissent in the Supreme Court by Justice William O. Douglas, proposing that trees, rivers and other natural entities should be granted legal personhood and defend themselves in court through the public. The Court rejected the notion of standing for environmental entities and also denied standing to the Sierra Club to sue on behalf of the environment being threatened. But Chief Justice Blackman was so moved by the dissent that he asked Justice Douglas to read it from the bench.  

Douglas’ ideas of environmental personhood went nowhere in part because the passage of environmental laws at that time were thought to provide adequate protection; proponents did not think it was important to take the next step and extend rights directly to nature. But with a climate crisis escalating exponentially, there is a new move afoot to adapt laws to allow elements of nature (trees, rivers and the like) the ability to sue for human harm to the environment. 

Demonstrating legal standing for environmental harm through humans can be difficult. Under existing law, economic harm traditionally requires that a human suffers injury, not nature. Law based on, or acknowledging, a land ethic would need to require that injury to the environment, not human injury, be established. Then, a land guardian — nature’s advocate — might ask, for instance, “If rivers have legal standing, does the U.S. Army Corps of Engineers have the right to dredge them?” 

The rise of environmental personhood 

More promising is the arena of international law, where environmental personhood is developing. At least eight countries grant the environment legal rights — Ecuador was first, in its Constitution, and the others, including Colombia, Bolivia, Chile, New Zealand, Bolivia, Bangladesh and India, have declared through legislation or the courts that rivers and other environmental entities have legal rights independent of people. Numerous Indigenous tribes in the Americas have also granted legal rights to nature or natural objects. For example, in 2016 the Grizzly Treaty, recognizing bears’ rights to exist in a healthy ecosystem, was signed by more than 200 U.S. and Canadian tribal nations. 

Law based on, or acknowledging, a land ethic would need to require that injury to the environment, not human injury, be established.

These advances are part of the International Rights of Nature Movement. The international movement is influencing the U.S., encouraging localities to grant rights to water entities in their jurisdictions, including Philadelphia and Toledo. The UN’s’ “soft law” inclusion of rights for the environment and sustainable development goals over several decades has furthered this effort. 

Do animals have standing?

Interestingly, a number of endangered species have also been granted legal standing, and case names include the species’ name as the plaintiff. These include the palila (a bird), spotted owl and the Mt. Graham red squirrel Naruto. In one case, a monkey gained standing and sued — and lost — for copyright infringement because the monkey could not establish a cause of action for rights to a selfie he took with a photographer’s camera that the photographer subsequently published.

But the law remains spotty. Standing was denied to a Hawaiian crow under the U.S. Endangered Species Act and to Kama, the dolphin, under the U.S. Marine Mammal Protection Act. And in June 2022, Happy the elephant was denied legal personhood in a suit brought on her behalf to free her from the Bronx Zoo to an elephant refuge. 

For the most part, despite very close connections between humans and animals — there are felony provisions in all 50 U.S. states for intentionally killing a cat or dog — our laws essentially treat animals as property. 

Pablo Escobar’s hippos

The law of human personhood in the U.S. is slowly changing, ironically initially thanks to a narco-terrorist. In 2021, a U.S. court, for the first time, recognized an animal as a legal person. The animals are hippos, descendants of animals imported by Pablo Escobar to Colombia. Colombia has a statute giving animals standing to bring lawsuits to protect their interests. A U.S. court, hearing the case for pursuing discovery to use in a foreign proceeding, applied the Colombian statute granting animals standing. This case illustrates, under U.S. law, that personhood is a continuum, with different rights and duties granted to each natural entity. 

How do we understand nature? 

But there remains a fundamental challenge to giving nature legal rights. How are we to discern the true wishes of another species, or a river, tree, mountain or ecosystem, if we cannot communicate with them?  

One step is to listen. And here, technology is helping. Non-human entities may not speak our language, but as Karen Bakker details in The Sounds of Life, they do communicate, and the richness of this communication is now better understood through advances in bio- and ecoacoustics. Consider the song of a whale. Or the different voices of a waterway and forest. Or the complex sounds of a healthy coral reef.

How are we to discern the true wishes of another species, or a river, tree, mountain or ecosystem, if we cannot communicate with them?  

See our related story Reading Time Ahead

Another step is to give non-human entities a voice by continuing to interpret in our language their needs, injustices, contributions and aspects of wonder, then bring their voice before the public and the courts. A third step is to acknowledge finally the ethical standing of all things. Then, to give things teeth, acknowledge their standing and rights. And finally, to be more deliberate about broadening “harm” to more than economic harm to humans.

Adapting to universal ethics

It is no surprise that a process that has taken thousands of years to explore and codify human behavior in the law would present a challenge for millions of other species and environmental beings. But our legal system must learn and appreciate wide ranges of behavior and biological, chemical and geologic processes, as well as universally inclusive ethics, to adjudicate with justice,  a daunting but nevertheless essential investment in the physical and moral capital of our Earth.

It is also no surprise that “all things have standing” comes into our ken now. It appears out of recent appreciation for ancient wisdom and advancements in Western philosophy and psychology, out of new understandings of both ontology — what we mean by “being” — and human motivation. Universal ethics is at the foundation, not just of the law, but of human thought. This idea may bring us to the verge of environmental solutions and even, perhaps, to a way of living in harmony with our Earth, other species and even smart machines as we learn to celebrate the differences. 

If we persist, we are poised to achieve environmental personhood and legal standing that matches the ethical standing for all things. By giving nature legal standing and through justice in law, we move closer to the virtue, empathy and caring that is the hallmark of ethics, with sensibilities compatible with a sustainable environment. 

Our test: Will we evolve the law at a pace that keeps up with rapidly changing environmental conditions and challenges of justice in our world? 

To do so, we will need to think more like a mountain. 

Written by

Kathy Robb and K.B. Miller

Kathy Robb is an environmental lawyer and principal of Robb Water Partners LLC, a water law and policy consultancy. She can be reached at K.B. Miller is co-creator of Spark Hunter and All Things Have Standing®, an exploration of the philosophical and psychological issues suggested by this discussion.