S1, Ep2 | Who Speaks for the Trees?

[00:00:00] Amy: Last time on damages. You heard a little bit about how wild rice got rights,

[00:00:06] Tara Houska: It's part of who we are. I know it's one of those fundamental core pieces of our identity.

[00:00:11] Dale Greene: we're part of that creation.

we're, we're part of that, that thing that gives us some, something had to give us substance, something has to, they give us substance and the agreement was we would remember, and, you know, I can look at water and see a spirit there.

[00:00:38] Archival: The unique case names, wild rice, which is sacred. And . As the lead plaintiff, the lawsuit in white earth tribal court is the first rights of nature enforcement case brought in a us tribal court

[00:00:52] Amy: And look, I realize that for some folks, that might sound pretty weird. How can rice have the same rights as me? Or you a thinking, feeling human? I'm saying that because I had that reaction when I first started digging into rights of nature, I'm not native and I didn't grow up with the idea of nature as a relative, as equal to humans.

I grew up catholic, a religion that comes with two approaches to nature. Both of them pretty human centric. One is stewardship, the idea that it's our job to take care of nature, because it's a gift to us from God. The other is dominion. This gift of nature has been given to us and it's ours to do with, as we please.

I've challenged. Most of the beliefs I grew up with over the years, but hadn't really faced this one head on. So when I heard about the wild rice case or the Ganges in India, getting rights and a guardian to protect those rights, even. It, you know, it sounded cool, but it also sounded a little out there.

[00:02:00] Amy Westervelt: Nice for poetry maybe, or a ritual, but not something that could work in an actual courtroom. And then someone asked me a question, one of those super simple questions that just shifts your perspective at an instant, they asked. Yeah. But

Is it any weirder to give nature rights than it is to give a corporation?

[00:02:23] Ruth Bader Ginsberg: Mr. Olson, are you taking the position that there is no difference in the first amendment rights of an individual, a corporation after all is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings?

[00:02:53] Ted Olson, Gibson Dunn: For purposes of campaign finance, what the court has said in the first amendment context, New York times versus Sullivan gross Jean versus the associated press.

And over and over again is that corporations are persons entitled to protection under the First Amendment.

[00:03:10] Amy Westervelt: Back in 2010, conservatives won a long running campaign to grant corporations the complete rights of humans. The citizens United case was that final win, with the Supreme court granting first amendment rights to corporations, including the right to political speech and to donate money anonymous. That one court decision has been credited with sparking a huge amount of dark money in politics.

So, yeah. Is it any weirder to grant rights to an ecosystem than it is to protect the free speech of a, not at all living organism like a corporation? That's the question we'll grapple with today. I'm Amy Westerveldt and this is Damages. In the United States, the push for rights of nature started with of all things.. Disney.

[00:04:03] Disney Archival: wonderful world of Disney. .

[00:05:01] Amy: In the 1970s, Walt Disney productions wanted to build a ski resort in Sierra national forest. They were sued. That case went all the way to the Supreme court and our reporter Meg Duff is going to bring us that story right after the break.

[00:05:20] Christopher Stone: the odd thing about this thesis is it didn't come out. Environmental thinking and environmental law class, it initiated the the thesis initiated in a property class.

I was teaching the basic property class, the introductory property class. So the class you can teach without knowing a lot of the technical details.

[00:05:40] Meg Duff: That's Christopher Stone. He was an environmental lawyer and law professor at the university of Southern California for over 50 years. He actually passed away last may. So I wasn't able to talk with him, but I was able to find a lecture he gave back in 1996 in it. He's talking about a class he taught more than 20 years early.

[00:06:03] Christopher Stone: it was getting towards the end of the hour. And anyway, a lot of profs in here. No, it has end of the hour that you are aware as the students are so looking around and figuring, you know, uh, now let's do real estate investment trust or something like that.

And I was trying to think of what would a radically different consciousness that would be law linked. And I said, and someone might've asked me that I think I said it would be where nature had rights trees warming to it, rivers and the place broke. It's pandemonium the place, just excuse me, at the end of the hour, thank goodness students where this is like enough.

[00:06:44] Meg Duff: And I walked out into the hall and I was not exaggerating at all. I said to my, I, I don't usually put myself in the third person since stone. What have you done now? Stone had just proposed an idea that even he thought was bonkers. The idea that nature itself could have rights, but to defend his honor, he rolled with. That decision would sink Stone's reputation, inspire hate poetry and put the rights of nature smack in the middle of a massive Supreme court battle with Walt Disney productions on one side and Sequoia national park on the other.

[00:07:19] Educational Video: The largest tree and the largest living thing on the face of the earth.

uh, early ancestors are the giant Sequoia ranged over the Northern Hammond.

now the big trees, natural arrange is restricted to the Western slope of the Sierra, Nevada and California skipped 260 miles long in 15 months. Only here in isolated groves is a Sequoia able to reseed and regenerate itself by nature.

[00:08:17] Sierra Club v. Morton: Mr Selna, you may proceed

Mr. Chief justice Berger. And may it please the court, the Sierra club brought this proceeding against the secretaries of agriculture and interior and their assistance to establish that their plans to authorize a huge private recreational development that mineral king in Sequoia national game refuge, and for a state highway across the koi national park to reach that development were illegal.

[00:08:46] Meg Duff: That's the Sierra club's lawyer Leland Cellnet Jr. Arguing before the Supreme court in November, 1971, just a month before in October, Walt Disney world opened in Florida. And now Disney was planning another resort and mineral king valley in the giant sequoias range.

mineral king is located in the Sierra Nevada.

Approximately 225 miles north of Los Angeles. It is a portion of a 15,000 acre game refuge, which Congress created in 1926, the 15th, 2000 acres, the large areas that you've got outlined, or is it the point

[00:09:26] Meg Duff: That's former chief justice Warren burger

The area that is in white is 15,000 acres, quite national parks around it on three sides.

the road that you're concerned with will perhaps from left to right into the road.

Uh, the smaller road is an existing road, the road that is in heavier. Uh, that much has proposed to connect the state highway here, cross the financial part here that end at mineral king here. And when you say that it serves no purpose, you lean that it is its only purpose is to serve the white area, which is not part of the park.

That's correct. Mr. Chief justice merely an accident. That's correct.

Well, Disney productions has described mineral king and I'm quoting from the appendix at page 53, a as unsurpassed and natural splendor, perhaps more similar to the European Alps than any other area in the United States and generously endowed with lakes, streams, cascades, caverns, and matchless maps. In 1969, the forest service accepted a proposal from Disney for a huge resort development at mineral king Disney would construct hotels, lodges, restaurants, and other permanent facilities.

So the 14,000 persons could ski at mineral king at one time.

[00:11:01] Meg Duff: to get there though Disney would have to build a busy highway through the heart of Sequoia national.

[00:11:06] Sierra Club v. Morton: to solve the problem of transporting 14,000 persons. At one time to mineral king was the, uh, was a problem. And the state of California agreed to construct a high standard freeway to dead end had been ruled king provided that it could cut across the park.

[00:11:22] Meg Duff: It might sound weird, but the ideal for the road actually came from the forest service. They'd been hoping to make mineral king, a more accessible recreation area for more than 20 years. So it's good for the forest service and it's good for Walt Disney productions and it's probably even good for the local economy who it's not good for our, the hikers and the tree.

[00:11:45] Educational Video: excess human curiosity and affection for the big three. However, presented the threat from Trump and it's young and damaging it's fragile to,

and finally there was a threat of. Not too much. The two little fire for millions of years, lightning set fires have been part of the life cycle of supporting

a long standing policy of suppressing fire in Sequoia groves has tended to frustrate the trees adaptations to its environment and doing danger.

[00:12:26] Meg Duff: If Californians have learned anything in the past few summers, it's that building and fire prone areas makes natural fire cycles difficult to maintain. And this disputed road would lead to a ski resort, which creates a huge conservation problem. That's one reason the Sierra club filed suit. The question is, does the Sierra club really have any right to speak for the tree? Solicitor general Erwin Griswold said no

[00:12:53] Sierra Club v. Morton: this case in a very real sense is the ultimate case on standing.

If the petitioner here has standing, then I believe it's fair to conclude that anyone who was searching Andrews in the controversy has.

[00:13:13] Meg Duff: standing means you need to be able to show that you were hurt in some way. It's the thing that allows you to file a case. Griswold is saying no injury, no case.

[00:13:24] Sierra Club v. Morton: It did not allege that it had any financial interest in the controversy. It did not allege the ownership of any property involved or any interference with any activities that is conducting. It did not even alleged a special interest in mineral king.

[00:13:41] Meg Duff: The solicitor general is saying really it's none of their business. If we let the Sierra club plead this case, things could really spiral.

I don't think there's any magic in the fact that the Sierra club was a club or that has members or a long and distinguished history. Many of which members may well share the underage, which its management now advances, if it is the fact that it is a group that gives it standing, how big a group must've.

Three members or five or 50 or 50,000. What reason is there for picking any number, if any group has standing because it has an intellectual or emotional interest, does it not inevitably follow that? Any individual who was searching embers? Likewise has standing to raise these legal questions. If the Sierra club has standing as Mr.

Justice Blackman suggested would not. John Muir have standing

Just one month before that Supreme court argument, Christopher Stone was just a few hundred miles south of Sequoia national park at the university of Southern California in Los Angeles, teaching his intro to property law class.

[00:15:04] Christopher Stone: And I was trying to think of what would a radically different consciousness that would be law linked. And I said, and someone might've asked me that I think I said it would be where nature had rights

[00:15:18] Meg Duff: What stone had just done was questioned one of the most fundamental taken for granted premises in Western law:

that nature is property and that it exists to be used.

[00:15:30] Colin Jerolmack: the phrase is whoever owns the soil, it is there is up to heaven and down to hell.

[00:15:36] Meg Duff: Environmental sociologist Colin Jerolmack is an expert on the intersection of property rights and nature. And he says that in the U S this idea goes back to the colonial period.

[00:15:48] Colin Jerolmack: And so England had the strongest property rights before the United States. And there's a huge caveat though, to that, to that, uh, whoever, you know, owning the soil down the hell part, which was that the crown retained anything valuable underneath the surface.

So you technically own the soil, but any gold silver oil, uh, precious metals gas that was there, belong to the crown. And so, you know, the United States inherited property law as an inherited many other forms of law from England, but there was a very conscious decision. when the so-called founding fathers, you know, won the revolutionary war to get rid of those caveats.

And this was explicitly consciously pulling on John Locke, who exerted incredibly strong force on the American constitution who made this argument, that it is only through labor. That nature becomes valuable and labor belongs to the individual. Therefore, whatever they transform with the labor should belong to them.

[00:16:48] Meg Duff: This argument was also used to take native American land.

[00:16:53] Robert Miller: early Americans were afraid of the wilderness and they said, if we leave Indian peoples in, in ownership, They will just waste it as wilderness

[00:17:04] Meg Duff: That's Robert Miller.

[00:17:07] Robert Miller: I'm a citizen of the Eastern Shawnee tribe of Oklahoma. And I'm a professor at the Sandra Day. O'Connor college of law, Arizona state university. I primarily teach in our Indian law classes. I am also a tribal judge for several tribes and have spent most of my career researching and writing about Indian law, historical and legal issues.

John Locke's theory was to Put land to its best and highest use. And in American society, that seems to be, make the most money off it. As you can plundered for its resources. If there's water, use it, use it, even if you use it up or befalling.

If there are, if there's oil or trees or minerals, it's strip mine until you have it all and then leave it and walk away.

something, I tell my classes more than ever different cultures might see.

Different definition of the best and highest use a native culture. Who's already lived here a thousand years and hopes to live here for another thousand might be a little more in tuned, preserving the. Not cutting every tree, not killing every animal then would corporate America.

[00:18:20] Meg Duff: When stone said in his law school class, that nature could have rights. He was echoing ways of thinking about the land that are not actually. In doing so he was rejecting centuries worth of this colonial idea that nature only has value once humans have extracted value from it.

[00:18:38] Robert Miller: The justification was Christianity and civilization.

that God wanted European Christians to own these lands and that the Christian God intended that.

And somehow Christian Europeans were superior to everyone around them.

[00:18:54] Meg Duff: That's the idea behind what's called the doctrine of discovery.

It goes all the way back to the crusades and says that land not owned by another Christian states like land occupied by indigenous people, for example, or by Muslim or Jewish or Hindu or any non-Christian people. I was up for grabs.

[00:19:13] Robert Miller: Europeans assumed that if lands empty, they assumed it's worthless.

[00:19:17] Meg Duff: In his college class. Stone was suggesting the opposite: that nature could have value in and of itself.

He was saying something that goes against all of Western property law. That nature could be a subject rather than an object to be owned. Legal subjects can be injured. If you can be injured, you can get standing in court and you can plead your own case.

[00:19:40] Christopher Stone: In traditional law. If there's an upstream or up river polluter, a factory is polluting and someone down river called Jones is, suffering the effects of the pollution.

The pollution goes down so that the land value of Jones is being diminished. Jones can bring a suit against the polluter

What would ha what would the law have to look like to correspond to a state of affairs in which the river had rights? I said one, the suit would have to be brought or bring a bowl in the name of the river. The river would be the plaintiff.

Secondly, it would be the damage to the river. That would have to be the focal point of interest in the legal system. The attention and the proof in the legal system would be the damage to the river, not the damage to Jones. You see in terms of the loss property value, but the focal point would at least be the loss life that the damage, the ecosystem.

And third, if relief were awarded, the relief would be. To the would run to the river. Now, of course, the river couldn't couldn't couldn't decide to negotiate. The river would have to have a guardian people have guardians all the top.

[00:20:49] Meg Duff: Stone called the USC law library stone called the USC law library to ask if any other cases like this had been brought before they told him about the Sierra club and the Disney ski resort

[00:21:01] Christopher Stone: And I got so excited. I couldn't finish the phone conversation,

[00:21:04] Meg Duff: stone realized that the Sierra club didn't have standing. But what if mineral king valley itself did? What if instead of Sierra club versus Spartan, it was mineral king versus more.

Now, remember this is October, 1971, and the Supreme court is set to hear this case in November. So stone only has one month to figure out a way to somehow smuggle this idea that nature could have rights into the. And the arguments are already set. There is no way he can put this idea into the mouth of the Sierra club's lawyer.

His best bet is to get it straight to a judge. So stone starts laying out the argument in an article for the USC law review, where it just might be read by justice Douglas, the most liberal voice on the bench,

[00:21:58] Christopher Stone: And as we begin to write it and leaked out to my colleagues, what I was doing, and they all came by to talk me out of it. I've got Mike Levine is terrific. A guy lived the Dean of the Yale school of management said, uh, you know, Chris, you know, trees canceled.

I thought, well, I said, yeah, Mike, but corporations can speak. They have somebody speak for them. The lawyer will have a lawyer appointed for the trees. And then my wife Anne who's here, uh, cornered me in the bathroom when I don't know whether you're put up to it by my colleagues, but said now, um, what if the true, you know, what if, uh, nature caused damage?

What if it was sort of a flood, uh, could people collect against.

And then we rushed this thing out to print.

but justice Douglas, um, came out in the first paragraph saying I essentially, I agree with.

[00:22:43] Meg Duff: but justice Douglas wasn't writing the ruling. He was writing the. The Sierra club loses the case.

Although the ski resort never actually gets made in California, rethinks the highway to nowhere. The important thing from Stone's point of view is that justice Douglas writes a dissent. Now this wild idea that nature could have her day in court is out in the world from the pen of the esteemed justice himself.

[00:23:10] Monica Feria-Tinta: people that are not strong connections with this world,

so indigenous perspectives, eh, think, uh, you know, about what was perhaps the first time that they came across this ideas and they think, okay, it was a book that was written in the United States, you know, about whether trees have rights.

That would be Stone's book. Should trees have standing? Monica is a lawyer in London. She says that while stone may have popularized the idea of the rights of nature, it has a much longer history

[00:23:44] Monica Feria-Tinta: but it's not, not really, you know, the origin is not really the rational Western mind that came up with these ideas.

You know, it is actually those individuals living in harmony with environment. So we are talking about, I'm not just in Latin America, but all around the world. Um, one confined. You know, the same approach when it comes to indigenous peoples. And in my experience, let's say representing some of these indigenous peoples where they are in the Pacific, whether they are the first nations in Australia or whether they are, you know, um, um, indigenous communities in Colombia or in GRU or, or in the Amazon, you know, they have very similar approaches to, to nature and the natural world, uh, where they don't see that the human being is, is, is more important or, or that there is a hierarchy where we're human life let's say, you know, is, is, uh, More important that, um, um, these natural ward, because they see themselves as part of this natural world and they see themselves dependent also, um, on this natural world.

So let's not forget that Latin America has Cosmo visions

[00:25:06] Meg Duff: Cosmovision meaning worldviews

[00:25:09] Monica Feria-Tinta: and visions that come from other cultures and not the mainstream Western culture, but, but from the indigenous cultures, um, and who have never really seen individuals, um, having more rights than a, you know, a mountain or threes or, you know, actually, um, in, in, in some of these indigenous cultures is rather the opposite even, um, that reverse.

Um, sources of water and mountains are, are regarded as sacred. And, um, and, and to be given protection and actually, you know, individuals have seen rather as, um, eh, um, sentence interview, as you know, that we'll be here for a while and then we go, but, but the land and, and the mountains and the weavers and the trees stay for the future generations to enjoy.

So it is a different, if you want an understanding of the place of human beings in the world

[00:26:15] Meg Duff: in a sense, Western ideas about nature have been playing catch up.

[00:26:19] Craig Kaufman: I think what's important to remember is that, so today's legal system is based on a mechanistic view of the world that really emerged during the scientific revolution of the 16th and 17th centuries, which views nature is like a machine composed of fragmented independent parts.

[00:26:36] Meg Duff: That's Craig Kauffman.

[00:26:37] Craig Kaufman: I'm an associate professor of environmental politics at the university of Oregon.

[00:26:41] Meg Duff: And according to Kaufman, our law is lagging far behind our science. The foundations of our legal system really haven't changed much since the 18th century during the enlightened.

[00:26:53] Craig Kaufman: and at that time, lawyers replaced the previous view of the world as a living organism or a community of life. Uh, and this was replaced with a new view of the world as sort of like stocks of independent resources that could be taken and manipulated and exchanged and so forth and so on. Um, And it also emphasized the idea that humans are separate and apart from nature.

Right. And so it can be sort of like the masters of the machine.

And so how has that, that mechanistic view of the world been working out for us?

Not well, uh, right. Uh, you, you know, so it turns out if you move rivers there's consequences, right? If you destroy the forest that are like the lungs of the world, um, there's consequences, you know, scientists now understand that the world is not really a collection of discrete parts, but rather.

It's better under stood as a dynamic and fluid interconnected community of life. That's probably best understood in terms of patterns and relationships. So each piece is dependent on all the others, uh, but for what we might think of as Western or industrialized cultures, our legal systems really have not been updated to keep pace with scientific advancements.

[00:28:05] Meg Duff: Monica told us that much of international human rights law came into being after world war two, but most environmental protections didn't start to come until the sixties and seventies. And the two didn't quite mash. Coffman says people started to realize that rights for nature. It could be a sort of hack of fitting, a different way of thinking about nature into our creaky old Western legal system.

Exactly the kind of consciousness shift that stone was proposing.

[00:28:36] Craig Kaufman: in many Western societies, we like, you know, we, we think in terms of, we value things that we value in by giving them rights. Um, and so that's just the way our system works.

And so you sort of adapt it, you know, you, you fit with the culture that you have.

So in our particular legal system in the United States, for example, um, corporate property rights are really king.

[00:29:29] Meg Duff: What Kauffman told me was a story about fracking. Fracking is how we get natural gas. And if you own land where fracking is done, you can make a lot of money off the mineral rights to that land. But it can also poison well water.

[00:29:45] Craig Kaufman: there are communities where these wealth systems are their only access to clean drinking water.

[00:29:51] Meg Duff: Um, and you know, and people start getting sick, they lose access to potable water, And with fracking, people started to realize that giving nature rights could solve for way more than the Sierra club's worries about aesthetics and conservation.

It could fight childhood cancer

[00:30:11] Craig Kaufman: in our legal system, if you to get, have, if you wanted to Stu to say the fracking company, to force them to stop, you have to show standing in court, you have to show and to do that, the burden of proof is really high.

And you have to show that you specifically were harmed in some very tangible, concrete way.

And it's often really difficult to do that, um, in a way that that meets the standards of the law.

so a family will come and say, um, you know, my child and, you know, the X percent of the people now have cancer rates that have skyrocketed and these other disease.

And my child has this problem. And the lawyer for the fracking company will say, well, how do we know that this problem was caused by the fracking wastewater? Um, it could have been genetic, it could have been secondhand smoke. It could have been like, and it's virtually impossible to draw a direct line of causation.

That's sufficient to overcome a very high bar to show legal standing, but scientifically it's very easy to show. Um, the direct harm caused to the functioning of the watershed ecosystem. By injecting this. So if you legally recognize the ecosystem as a subject with rights to maintain the functioning and up to their cycles, to be restored when damaged, you know, so forth and so on.

And then you empower the local community members to speak on behalf of the watershed ecosystem, then it's much easier to show standing and, and then get your court in.

so it's in some communities in the United States that's seen as a tool to expand community rights.

[00:32:15] Meg Duff: in the U S some communities have started writing the rights of nature into their town charter. They haven't yet won at the federal level, but one case in grant township is currently before the Pennsylvania Supreme court federally recognized tribes are also writing the rights of nature into tribal law.

Using the rights of nature as a legal strategy is actually happening around the world.

[00:32:43] Everywhere Montage: So in the United States, it tends to be framed as community rights and democracy like local people should have the ability. Democracy means local people should have the ability to have a say over what happens in the ecosystems that they depend on for their life and wellbeing. Right. Um, in other countries, uh, it could be framed, you know, in, so in New Zealand it tends to be framed.

And according to Maori, Cosmovision about kinship relationships between Maori tried iwi, uh, and, and the ecosystems in which, you know, that's their ancestral territory. Uh,

we have seen also this movement also taking, um, Uh, place a bit in India, you know, in Columbia, we've seen some actions for courts trying to protect the weavers and even forests, uh, in Africa tends to be, um, again, framed by, um, Local communities, according to traditional ecological knowledge, as like sake, protecting sacred natural response sites and a responsibility to be a good custodian for these sacred natural sites.

Um, and Europe, it tends to be framed more in terms of eco side. So again, responsibility being, um, Emphasized over rights per se. Uh, and so eco side, the idea there is that humans have a responsibility to live within the boundaries of ecosystem functioning. Uh, and if you don't do that, that should be considered a crime and punished in Ecuador.

It's framed as a tool for promoting, um, uh, you know, a post Neo liberal, uh, alternative approach to development. That's not rooted in extraction of natural resources. You know, it's, it's, it's quite unique in the world. The constitution in Ecuador has this acknowledgment, that nature has rights. Something that doesn't exist in other, in other constitutions, we are witnessing a few, uh, uh, parents, you know, to, to, to ensure that the law can have that understanding.

And in Mexico, they already. I have, um, uh, started, you know, to consider introducing the right device of nature into the constitution. I wouldn't be surprised that in Peru, you know, it's going to be the same, you know, there is already, eh, um, discussions about whether a new constitution should be put in place.

And if so, whether the protection of environment and vice of nature should be, um, included,

it's all over the place.

Yeah, but the common, the common knowledge among all of them is this idea that we have to recognize that, uh, you know, there is this order to the world, then that we, you know, our wellbeing. We are part of the ecosystems in which we are embedded. We are part of nature, not separate from it, and that we have to learn to live within the rules within nature's rules.

[00:36:02] Meg Duff: Next things are about to get weird, both for stone and for the legal system itself. That story after the break I'm Meg Def, and this is damages.

First came the poetry LA poetry published in the journal of the American bar association.

[00:36:24] Christopher Stone: if justice Douglas had has his way, oh, come, not that dreadful day.

We'll be sued by lakes and Hills seeking, ever address of ills. Great mountain peaks of name prestigious will suddenly become litigious. Our Brooks will babble in the courts seeking real damages for torts. How can I rest beneath a tree? If it may soon be suing me or enjoy the playful porpoise while it's seeking habeas Corpus,

Okay. Poem was written by a lawyer named John Naff. And he has no interest in changing the way we understand nature in the legal system, because if nature is no longer a property, if it's a legal subject, then if we harm it, we might have to feel guilty. Gross!

[00:37:09] Christopher Stone: Every beast within his paws will clutch in order to show.

Cause the courts besieged when every hat with a crown will crowd with suits by chunks of land. Uh, but vengeance will be sweet since this must be a two-way street. I'll probably Sue my neighbor's tree for shedding all its leaves.

[00:37:25] Meg Duff: take that tree huggers! If something has rights, shouldn't it also have responsibilities in Western law.

The idea of holding nature responsible is ridiculous. That's why contracts have that section weaving liability for acts of God for nature's whims, but something about Stone's argument took hold

[00:37:46] Christopher Stone: suits the, began to come up around the country

[00:37:48] Meg Duff: and around the world. And sometimes they were even succeeding, but stone was having second thoughts. See, he had been out to prove a point.

His article had been about a legal question, a theory.

[00:38:03] Christopher Stone: It's a legal thesis about the, how we can fit non-humans into a legal system.

[00:38:10] Meg Duff: His question was could we, he argued that we could, but now that his argument was out in the world, there was a different question. Not could we, but should we.

[00:38:21] Christopher Stone: The problems are rich and wonderful.

I mean, there are difficulties, it make this harder than a lot of people who readily embraced it saw. And I was more worried about this. For example, if you suppose you have a nuclear plant that is. Um, a river because the water runs through the cooling water runs through the nuclear plant and warms the river.

What effect does this have with ecosystem? Well, it raises the temperature of the water. Is this good or bad for nature? Well, of course immediate becomes a silly question, a difficult question, some parts of nature that were thriving before don't do as well. See manatees, it turns out, uh, love the higher water

so how do you run the stoniest? With difficulty because you have a guardian for the manatees, say, this is fine. You don't need a guardian for other parts of the ecosystem. There are the, you know, what do you look to, and, and there, do we look to sort of an ecosystem stability, uh, uh, what degree of redundance and resilience is there?

[00:39:18] Amy: So not could we, but should we, and if so, how the thing is that question is not theoretical anymore. Rights of nature has been written into the constitution of several countries now, and while it hasn't made it into the U S constitution, it has been written into tribal treaties for a long. And as we learned last episode, those treaties are being used to at least try to protect ecosystems today.

For the most part, whether we're talking about the U S or other countries, we're talking about indigenous ideas about justice being integrated into colonizer courts with very different values and ideas. Every country that has embraced the rights of nature has had to figure out how to meld the. How to fit rights of nature into existing legal systems and how to decide who exactly gets to speak for nature and why in the next few episodes, we're going to look at how some of those countries have faced these challenges.

Beginning at the beginning with Ecuador, the first country to write rights of nature into its constitution, all the way back into that. That country's Supreme court just heard its first rights of nature case in 2020.

[00:40:38] Melissa Troutman: the big spotlight that everybody in the movements, uh, watching right now is Ecuador, right? Because in Ecuador, Ecuador was the first country to. Established rights of nature and its national constitution back in 2008.

And for about 10 years after that, there were a couple of cases that went before the constitutional court in Ecuador. Um, and, but the, those, the, the judges at the time, um, didn't seem to prioritize rights of nature. So it didn't. Nothing much happened there, but as of 2019, there is a new panel of judges on the constitutional court and Ecuador.

And this, um, this particular court has prioritized rights of nature specifically, and they have selected a few cases to. To concentrate on so that the parameters of rights of nature, how it is applied in practical ways, the scope of the law, um, is worked out. And one of those cases before the constitutional constitutional court of Ecuador is, um, a case to protect low Cedrus forest.

From mining, it's a very, very ecological, really diverse, um, forest that will be gone if, um, concessions for mining, um, put forth by the Ecuadorian government go through.

[00:42:19] Amy: That story next time.