A Response to The Colorado River Ecosystem v. State of Colorado
Like Rivers, Humans Are Nature
The natural environment is vital to human existence. We rely on it for oxygen, sustenance, and shelter. We crave it for sports, hobbies, and relaxation. Humans cannot live without nature because we are a part of it. Nature endured long before the evolution of homo sapiens. Yet we often treat the environment as the “other”; we act as though it is something apart from us rather than something with which we co-exist. Isn’t it time we accord to nature the rights we accord ourselves? Deep Green Resistance, an environmental grassroots organization, certainly thought so and even took legal action to make these rights a reality.
River Rights
Deep Green Resistance and several of its members sued Governor John Hickenlooper of Colorado in 2017 on behalf of the Colorado River and its surrounding ecosystem in The Colorado River Ecosystem v. State of Colorado. Their goal was to establish rights of nature—quite literally, giving rights to nature—in Colorado through this first-of-its-kind case. Not only did the plaintiffs argue that the River itself had a right to “exist, flourish, regenerate, and naturally evolve,” but the State’s pollution of the River was proving detrimental to both human and non-human life across the American Southwest. After all, the Colorado River provides water to cities such as Denver, Los Angeles, and Salt Lake City. However, the case had a major problem: there existed no rights of nature law on which the plaintiffs could rely, making their claims appear frivolous rather than legitimate.
Map of the Colorado River (Source: Wikipedia Commons)
As such, the Colorado Attorney General’s Office threatened to sanction the plaintiffs’ attorney, Jason Flores-Williams, for bringing this lawsuit without the backing of actual law. Mr. Flores-Williams felt pressured by this threat and asked the court to dismiss the case, which the judge ultimately did.
The outcome of Colorado River Ecosystem does not mean the State of Colorado did not pollute the Colorado River and potentially harm the American Southwest. Not at all. The outcome merely reinforces that no law giving rights to nature—i.e., to the River and its ecosystem—exists, making it difficult to sue for protection of those rights. Although a different lawsuit potentially may be brought using existing environmental statutes, the results of such a suit will not be as far-reaching because the available remedies under those statutes are narrower than they would be under a “rights of nature” constitutional amendment.
Rights of Nature as a Constitutional Amendment
The Colorado River Ecosystem plaintiffs likely would have succeeded if they could have relied on a federal constitutional amendment that gives rights to nature. A rights of nature amendment would allow people to bring lawsuits on behalf of the environment under the amendment alone, rather than using multiple environmental statutes with strict requirements. Plaintiffs suing under a rights of nature amendment would only have to prove harm to the environment, rather than, for example, having to prove that the environmental damage was significantly harming them. The purpose of environmental legislation is not to protect only human health but to protect the environment as well. A rights of nature amendment will satisfy both of these goals. In Colorado River Ecosystem, the plaintiffs had already proven that the government was polluting the River (and consequently, the surrounding ecosystem). Thus, the lawsuit would have likely been successful if the plaintiffs could have sued under a rights of nature amendment.
Will Pebbles Have Standing?
Nature, of course, consists of animate and inanimate things. The Colorado River is more than flowing, non-living water. It is part of a vast ecosystem that allows for myriad forms of life. The value or significance of the water is not diminished just because the water itself is inanimate. But must all inanimate things in nature have standing under a rights of nature amendment? Of course not.
The purpose of a rights of nature amendment is about big-picture environmental problems and solutions that will significantly and directly benefit people and the environment. In the words of Mr. Flores-Williams, such an amendment is meant to preserve the “dynamic systems that exist in the ecosystem upon which we depend.” We cannot exist without using the environment, but we also cannot exist if we continue to exploit and destroy the environment. Bringing a lawsuit on behalf of a few stepped-on pebbles, or any other ordinary environmental occurrence, is not the purpose of a rights of nature amendment.
And even if someone attempted to sue on behalf of stepped-on pebbles, that person would likely be unsuccessful. Remember, attorneys may be sanctioned for bringing frivolous lawsuits. An attorney representing stepped-on pebbles will probably be sanctioned before a judge even hears her arguments. So, no, pebbles will not have standing.
The Big Picture Following Colorado River Ecosystem
As Colorado River Ecosystem demonstrates, the United States needs a rights of nature constitutional amendment to ameliorate and prevent environmental harms caused by people. That lawsuit only failed because the court was unwilling to establish rights of nature through case law. But if rights of nature had already existed when that case was brought, imagine the positive changes that would have ensued: a cleaner river, a healthier ecosystem, and thousands of people no longer affected by polluted water. The next time you go to take a sip of water, ask yourself, “Just how clean is this water?” And remember that without a rights of nature amendment, that water may remain questionable for years to come.