Monday, Oct. 16, 2017 | 2 a.m.
The river in danger
Why did environmentalists choose the Colorado River as the guinea pig for this rights-of-nature lawsuit?
The Colorado is one of the most heavily developed rivers in the world, or as Will Falk of Deep Green Resistance prefers to describe it, “the most endangered river in the United States.”
In 1922, the Colorado River Compact began the formal process of dividing the river’s water among seven states — Nevada, Wyoming, Colorado, Utah, New Mexico, Arizona and California. Allocation amounts have been set through subsequent compacts, rulings by the Supreme Court and an international treaty that brought Mexico into the mix.
The original compact set a river capacity standard of 15 million acre-feet, but the average capacity of the river between 2000 and 2016 has been only 13 million acre-feet. That has led to over-allocation issues that states, corporations and environmental organizations have been fighting over for decades.
“Drought and the legal system that encourages people to use the water or lose the water are seriously damaging the river,” says Thomas Linzey, executive director of the Community Environmental Legal Defense Fund.
All that strain on the river will eventually catch up to the nearly 40 million Americans who rely on it for water, environmentalists say. The river already dries up entirely before reaching its natural endpoint in the Gulf of Mexico.
“How do you restore ecosystems that have been degraded?” asks Linzey, before answering: “Give them their right to life — more holistic protections.”
Frustrated by what they perceive as a failure of existing environmental law, advocates are exploring a new strategy to protect natural resources: asking federal district court to recognize the Colorado River as a person.
Yes, a person — with inalienable rights to “exist, flourish, regenerate, and restoration.”
The Colorado River is seeking the judicial recognition of “legal personhood” in a lawsuit filed Sept. 25 against the governor of Colorado in federal court (the first hearing is scheduled for Nov. 14). A favorable ruling would not only affect Nevada and the six other states with direct ties to the 1,450-mile-long river; it would spark a significant shift in environmental preservation nationwide.
The Community Environmental Legal Defense Fund, a nonprofit public-interest law firm and a leader in the push for “rights of nature,” is adviser on the lawsuit. Executive Director Thomas Linzey says existing environmental laws focus on damage to people and their property.
“Climate change is presenting itself in full force,” Linzey says. “People are beginning to understand that environmental law is falling short. Something new is needed. … This emerging system is about recognizing that ecosystems need to be protected in the plenary sense — not just to benefit humans.”
Individuals from the nonprofit organization Deep Green Resistance have been designated as “next friends” who act as surrogates on behalf of the river. The concept is similar to guardianship in cases involving minors or people considered too mentally incompetent to vocalize their own interests.
Representing the river is Jason Flores-Williams, a civil rights lawyer known in Colorado for filing a class-action lawsuit on behalf of Denver’s homeless population.
The Colorado River case is the first of its kind to be filed in United States federal court; however, the concept has been successful at the municipal level, as well as in countries such as India and Colombia.
Most notably, Ecuador incorporated rights of nature directly into its constitution when it was written in 2008. The extreme move came after international oil companies did tremendous ecological damage to the Amazon rainforest, and by extension the indigenous people. Since then, at least one river in that country has had its day in court. (The judge ruled in favor of the river.)
In the United States, Tamaqua Borough in Pennsylvania’s coal country became the first municipality to recognize the legal rights of nature. It did so to protect the environment from toxic sludge pollution. That was in 2006. Since then, more than three dozen other municipalities, including Pittsburgh, have passed similar ordinances.
CELDF worked with Ecuador, Tamaqua and others on policies. Linzey says one common denominator is that any damages won in a lawsuit filed on behalf of nature are automatically returned to it through restoration efforts.
“Ten years ago, when we talked about rights of nature, (people) used to laugh,” he adds. “Now, it’s not a funny concept. … There is a shift happening.”
There’s also a legal foundation, he argues.
Personhood for nonhuman entities already exists in the United States in the form of corporate personhood. At its most basic level, the designation is what allows a business (as opposed to its owners) to enter contracts or sue. On a larger scale, it’s what prohibits the government from taking goods produced by private businesses without just compensation, a right established for citizens by the Fifth Amendment. It was also the grounds for the landmark Citizens United case, which gave corporations, nonprofits, labor unions and other associations the right to make certain political expenditures. That right is protected for people through the freedom of speech clause within the First Amendment.
The establishment of corporate personhood has created institutional problems within the legal system that allow ecological and environmental concerns to be overlooked, says Will Falk, an attorney and one of the “next friends” designated by Deep Green Resistance.
“(These) need to be addressed for the natural world to have a chance,” he says.
Falk explains that, if courts or lawmakers wanted to adopt significant environmental protections for the Colorado or adjust its water allocation to help revive a place currently struggling because it doesn’t receive enough water, a corporation could sue the government and cite lost profits as proof of suffering. Courts would consider the plaintiff’s argument, as well as that of the government and affected third parties. But missing from that conversation would be what is best for the river.
“At the very least, if corporations have personhood, then the ecosystems that have sustained life deserve it,” Falk says. “It’s a way for American courts to respond to the urgency of the current environmental situation.”