To Conserve Nature, Recognize Its Rights

On January 27, 2021, President Biden pledged via an executive order to preserve 30 percent of U.S. land and waters by 2030. The executive order stipulates that Secretary of the Interior Deb Haaland must submit a report to the task force detailing “steps that the United States should take,” in collaboration with “key stakeholders,” to achieve this goal. This report, titled “Conserving and Restoring America the Beautiful,” was released in May last year.

The executive order and the report raise the question of what the 30×30 goal (as it’s known in conservation circles) would look like—how would it manifest in the United States? What kind of landscapes does it conceive? Are they desirable, and if not, what would be?

The 30×30 goal exemplifies one part of a larger movement to preserve vast swaths of the Earth, which can be traced back to the ecologists Eugene and H. T. Odum’s 1972 paper “Natural Areas as Necessary Components of Man’s Total Environment,” in which they conclude that “it would be prudent” to conserve half of the environment in a natural state. It’s a movement that is gaining steam lately. Jeff Bezos’s Earth Fund announced in December 2021 that it had dispersed $261 million in grants toward advancing 30×30 initiatives (the Earth Fund has pledged $1 billion to 30×30 overall). A Global Deal for Nature, which includes a 30×30 component, will be discussed at the UN Biodiversity Conference in Kunming, China later this year.

Notably, these conservation goals as they manifest today no longer necessarily prize a depopulated, “pristine” nature alone. Many advocates for 30×30 or other large-scale conservation efforts believe that some portion of protected lands can include human communities in conjunction with sustainable land use.

This description of 30×30 is promising—it suggests a mode of addressing the extinction crisis that avoids a neocolonialist conservation in the guise of wild nature preservation. Deb Haaland’s record of support for environmental justice further suggests that 30×30 in the United States could avoid the racist manifestations of past U.S. conservation efforts.

Promising aesthetics and ideologies aside, Haaland and the Department of the Interior are enmeshed in very unpromising dynamics with unpromising tools. Haaland’s 2019 bill, the ANTIQUITIES Act (which stands for “America’s Natural Treasures of Immeasurable Quality Unite, Inspire, and Together Improve the Economies of States”), illustrates this point. Relying on the definition of “wilderness” as enshrined in the Wilderness Act of 1964, the 2019 act sought to enhance existing national monuments and establish other wilderness areas, framing these goals as ultimately an economic good. Commenting on the ANTIQUITIES Act, New Mexico Representative Ben Ray Luján (who was a co-sponsor of the bill) said, “The preservation of our public lands and waters is a fundamental American value. In New Mexico, public lands contribute to our outdoor economy, generating over $10 billion in consumer spending each year and employing over 100,000 New Mexicans.” 

The Department of the Interior’s 2021 report, “Conserving and Restoring America the Beautiful,” continues in this instrumentalizing vein when it values the contribution of outdoor recreation to the national economy at $460 billion and when it articulates a conservation approach whose core pillars include respecting private property rights and job creation. As the report puts it, “Over the past century, the breathtaking beauty of the American landscapes and coastlines emerged as their own economic engine.” For the U.S. government, the economic productivity of a healthy environment is a core impetus for its conservation.

The ANTIQUITIES Act and the 2021 report demonstrate the bind that Haaland is in: she must operate within neoliberal dynamics, in which the only possible ways to treat the land all involve alchemizing value from it. Rather than contesting the destructive way humans relate with the land, U.S. conservation politics tends to rely on contesting the kinds of economies that will emerge—extractive industries exploiting natural resources or recreation capitalizing on wilderness. It’s worth mentioning here that recreation is not an innocent industry, even compared to archetypal villains like fossil fuel corporations. While the destructiveness of oil and gas development or industrial agriculture is well-known and even intuitive, the damaging effects of recreation are comparatively unrecognized, though not undocumented. A 1995 study co-authored by the ecologist Elizabeth Losos found that recreation is the second leading driver of biodiversity loss on public lands. As Ana Cecilia Alvarez wrote in Real Life, “The system of national parks meant to conserve nature’s ‘naturalness’ has also, paradoxically, spurred its development.” For U.S. environmentalists, it seems all roads lead to exploitation.

This catch-22 resonates with what Community Environmental Legal Defense Fund organizers Markie Miller and Crystal Jankowski, writing about attempts to stop pollution in Lake Erie, call the “regulatory fallacy.” They argue that the environmental regulatory system offers little to no protection, as evidenced by the failure of the Environmental Protection Agency to act in the face of severe algal blooms in the lake. For conservation policy in the United States, on the other hand, even action like designating a new protected area typically constitutes an illusory sort of protection, in which protection is only a different means to capital accumulation.

The Rights of Nature

One exit from this conundrum may involve efforts like the Lake Erie Bill of Rights (LEBOR)—that is, the granting of legal rights to ecosystems like the Lake Erie watershed. The notion of granting rights to ecosystems within western legal frameworks has its origins in law professor Christopher Stone’s 1972 article “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” The first enshrinement of the rights of nature in law did not take place until 2006, however, in Tamaqua Borough, Pennsylvania. Two years later, Ecuador became the first country to recognize the rights of nature in its constitution.

Throughout its development and gradual enactment, the rights of nature framework has garnered many comparisons to Indigenous cosmologies because of its ecocentric approach—comparisons that rely on an assumption that Indigenous ontologies are ecocentric in the first place. Political ecologist Mihnea Tănăsescu argues that ecocentric philosophies, rather than embodying the relationality characteristic of Indigenous ontologies, tend to center around a “totalizing, universal nature that stands above any one being. Amerindian ontologies are not ecocentric in this highly modernist sense.”

Indigenous interests nonetheless often intertwine with the enactment of the rights of nature. The Ecuadorian constitution, for instance, was drafted in consultation with Indigenous leaders of Ecuador, and the rights of nature articulated in this document was heavily informed by the Kichwa concept “sumak kawsay” (often translated as “good living” in English). This is not to say that the rights of nature are categorically an opportunity for Indigenous peoples to exert political authority—Tănăsescu notes that this legal strategy is “a potential straitjacket for Indigenous emancipatory politics.” Still, it offers an opportunity to unsettle the way humans inhabiting a liberal society relate to land. As Mari Margil of the Center for Democratic and Environmental Rights observes, “Law today divides the world into two categories: persons, capable of having rights; and property, unable to possess rights.” At the very least, the rights of nature reveals a crack in the status quo, leading toward a world in which the land is no longer treated as property.

LEBOR Organizing

LEBOR, as the Toledoans for Safe Water assert, “does not simply give Lake Erie rights, it recognizes the rights we have long violated and ignored.” This strategy destabilizes the prevailing conceptions of the other-than-human, characteristic of other political options available to environmentalists, that transmute them into property. People can have legally recognized relationships with nonhumans with rights, as opposed to using them.

The rights of nature is a promising alternative to development-oriented policy options, but there are steep obstacles to its widespread achievement. In the United States, many efforts to grant rights to nature are taking place in local-level governments, like townships and municipalities. In general they do not have a good track record of standing up in court, but a couple of examples may demonstrate the conditions in which they can succeed. 

First, LEBOR. This initiative, passed by voters in Toledo as a response the lack of political action to deal with harmful algal blooms, granted rights to all of Lake Erie and its watershed (including the terrestrial ecosystems contained within that watershed), which encompasses parts of Ohio, Michigan, Indiana, Pennsylvania, New York, and Ontario. Unsurprisingly, a federal judge struck it down, in part because it “exceed[ed] the power of municipal government in Ohio.”

Second, Grant Township, Pennsylvania. Grant Township passed a community bill of rights that granted rights to nonhumans solely within the township as a means to prohibiting Pennsylvania General Energy (PGE) from building a fracking wastewater injection inside the township. A federal court ruled that unconstitutional, so the next year the township passed a home rule charter made possible by a state law passed in 1972 that gave municipalities the power to adopt such charters. In 2020, the Pennsylvania Department of Environmental Protection revoked the permit it had granted to PGE in 2017, citing that home charter. 

In both instances, the community bill of rights failed. Grant Township succeeded because of the power granted to it by a state act—a power nonetheless disputed for years by the Pennsylvania DEP—and also, I argue, because of its focus on a discrete piece of land bounded by jurisdictional borders. There is a basic exigency apparent here that a community vying for its rights and the rights of its nonhuman kith has to obey: “Stay in your lane.” If there’s no law granting additional power to municipalities, as in Pennsylvania, tough luck. The Community Environmental Legal Defense Fund is organizing efforts to pass laws and constitutional amendments in other states that would grant greater power to municipalities, creating similar conditions to that of Pennsylvania, but with little success. 

Beyond the Local

Evidently, movements focusing on the local (whether that refers to amorphous communities or more concrete jurisdictional boundaries) are, at the moment, rather ineffective. Their success depends on state and federal law. To overcome this issue, efforts beyond the local are necessary, like the state constitutional amendments CELDF helps organize. On the federal level, rights of nature–style legislation could be integrated into the Green New Deal.

The geographer Levi Van Sant’s proposed land reform additions to the Green New Deal, for instance, could integrate a land ethic acknowledging the rights of the other-than-human. Van Sant’s implication that land reform would involve abolishing private landownership suggests the emergence of conditions conducive to respecting the rights of land. Pursuing the rights of nature is worthwhile because it challenges the treatment of land as exploitable property, but property and rights of nature are not necessarily mutually exclusive, and those rights would struggle to survive in a social order that remains organized around private property.

Another response to the Green New Deal, the Red Nation’s Red Deal, already incorporates a change in treatment of the land. Indigenous people have long approached the land as kith rather than property, which is apparent in the Red Nation’s demand in the Red Deal for the protection of “nonhuman relatives.” As part of the Red Deal’s program of decolonization (which involves return of Indigenous land and restoration of Indigenous lifeways and forms of governance), the rights of nature offers a register for dealing with settler states in a way that advances Indigenous sovereignty. For instance, the ʔEsdilagh First Nation in present-day Canada used a rights framework to help advance their form of governance over their land.

The examples offered here are just a few paths out of many toward the widespread implementation of the rights of nature, which itself is just one strategy for a different kind of environmentalism. The point is not necessarily to fetishize “nature” but to work toward abolishing the conditions that inevitably degrade land and nonhumans. Environmental conservation, as it is currently framed and touted by politicians, only reproduces those conditions. 30×30 in the United States may not—but given the lines U.S. environmental conservation tends to follow, it seems likely it will.

At the same time, 30×30 poses an opportunity to experiment with the rights of nature. In comparing the rights of nature encoded in the Ecuadorian Constitution and the 2014 Te Urewera Act of Aotearoa, New Zealand, Tănăsescu notes that the New Zealand act designated a bounded area as a legal entity, while the Ecuadorian constitution designated legal personhood to all of the Earth’s nature. Inauguration of a legal entity assigned to a specific subject rather than a universal subject modeled on a liberal conception of a personhood allows for greater hybridization of Indigenous and western ontologies. This is, again, not to declare the rights of nature as an end goal that heals the ongoing damage done by settler colonialism and finally grants Indigenous peoples sovereignty. But it offers a template in which the 30 percent of land and waters protected is 30 percent designated as a legal entity that Indigenous peoples represent. That seems a lot more promising than enclosing 30 percent of the Earth in protected areas.

---

Featured image: Pyrocumulus clouds from wildfires in Yellowstone, the first national park in the U.S. Photo by Brocken Inaglory, 2008.

Austin Miles is an environmental scientist from southeast Ohio who researches the science and politics of environmental restoration. He has written for SPAM zine, the New Farmers’ Almanac, and the Columbus Free Press. Contact.