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Who Speaks for the Trees?

On the corner of South Finley and Dearing Streets in Athens, Georgia, the small college town where I grew up, there is a tall white oak, and a small weathered stone plaque that reads: 

For and in consideration of the great love I bear this tree and the great desire I have for its protection, for all time, I convey entire possession of itself and all land within eight feet of the tree on all sides.

—William H. Jackson

The Tree That Owns Itself is a beloved local landmark, one I visited many times as a child. Standing under its branches provoked a subtle awe, a respect not usually granted to mere plants. The Tree was imbued with rights, not an object but a subject, animate, existing with a kind of inviolability and autonomy. It had also achieved that elusive quality that so many self-possessing humans desire: fame. 

The Tree got its first taste of notoriety in a front-page Athens Weekly Banner article published on August 12, 1890, under the headline “Deeded to Itself,” although in truth, the Tree had been in self-possession for more than half a century by that time. Another half-century after the Banner article was published, the original oak, so beloved by Mr. Jackson, fell after an unusually strong storm. The community rallied to plant a seedling cultivated from one of the Tree’s acorns; the new oak has thrived in the same plot since 1946. Thus, as noted on another small plaque, the Tree That Owns Itself is technically “the scion” of the Tree That Owns Itself. Nevertheless, the Scion of the Tree inherited its parent’s unusual claim to independence. This claim is not necessarily binding, because Georgia common law, like that of all other states, does not recognize the capacity of trees to hold property, since plants, like nonhuman animals, have the legal status of things and thus lack the right to have rights. Yet the Tree’s self-possession is an accepted part of local identity and lore and has never been challenged in court. In the minds of Athenians, the Tree owns itself and its plot.

Perhaps in the near or distant future, the Tree That Owns Itself will not be regarded as a charming curiosity but as a political pioneer, the embodiment of an imaginary and ethical leap that foreshadowed what will seem, from the future’s transformed vantage point, the inevitable and necessary expansion of rights to the natural world. In 1972, law professor Christopher Stone provided a sketch of what such a future might look like in a groundbreaking scholarly essay, written on a whim after he found himself arguing “the unthinkable” in a class lecture. Still widely read more than forty years later, Should Trees Have Standing? doesn’t go so far as to contend that all flora should be given a deed to the soil in which they are planted—like our arboreal outlier in Athens—but it does systematically and dispassionately make the case for granting baseline “legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment—indeed, to the natural environment as a whole.” 

It’s not as strange as it may sound, for the uncanny entity that is the nonhuman “person” is already omnipresent. “The world of the lawyer is peopled with inanimate rights-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to mention just a few,” Stone reminds us. Corporations were granted legal personhood in 1886—and oddly, it happened in an almost backhanded way. The Supreme Court did not directly rule on the matter. In a headnote that wasn’t part of the formal opinion in Santa Clara County v. Southern Pacific Railroad Co., the court reporter (who had sympathies with the railroads) noted that chief justice Morrison Waite affirmed the personhood of corporations under the Fourteenth Amendment in a passing comment as proceedings began. Of course, railroad attorneys and business interests had been opportunistically demanding for years that the “equal protection” clause of the amendment designed to secure equal rights for former slaves be twisted to apply to corporations. The Santa Clara trial affirmed their Gilded Age aspirations as fact, even though the suit was decided on other grounds: “defendant Corporations are persons within the intent of the . . . Fourteenth Amendment.” Later cases built on that thin precedent. Today, corporations are entitled to an ever-expanding array of constitutional protections, from the Fourth Amendment ban on warrantless search and seizure to the First Amendment guarantee of free speech.

“Convincing a court that an endangered river is ‘a person,’” Stone acknowledges, “will call for lawyers as bold and imaginative” as Southern Pacific Railroad’s counsel—and, one might add, considerably less mercenary. That’s because extending rights to other forms of nonhuman life entails fighting to counteract the rights of corporations and the remarkable power personhood allows profit-seeking ventures. The intrepid lawyers and citizens who have taken up this gauntlet challenge our legal and economic systems, while chipping away at the moral framework of human separateness and superiority that has evolved and solidified over millennia. 

The Right to Flourish

Grant Township is a tiny community of seven hundred citizens that sits in Indiana County in western Pennsylvania. Should you drive through, you might not realize you were there: it boasts no downtown, no stores, no traffic lights, no public sewage, and few jobs. But there is land and water, and there are trees and animals, king among them the eastern hellbender, North America’s largest aquatic salamander—and all of this natural richness is vested with rights. According to a Community Bill of Rights Ordinance issued June 3, 2014, and adopted by the residents, “Natural communities and ecosystems within Grant Township, including but not limited to, rivers, streams, and aquifers, possess the right to exist, flourish, and naturally evolve.” With a single vote they became rights-holding entities, potential legal persons.

Extending rights to nature entails fighting to counteract the remarkable power personhood allows profit-seeking ventures.

Grant Township adopted this ordinance as a direct challenge to the Pennsylvania General Energy Company (PGE), which wants to create a seven-thousand-foot “Class II” injection well within the township’s border, pumping fracking waste into empty boreholes. That toxic fluid threatens to seep through rock formations into local aquifers, poisoning drinking water and ecosystems with hazardous chemicals and radioactive materials. More than one hundred communities in Pennsylvania have taken the unusual step of embracing some version of the same Community Bill of Rights, including rights for the environment, to oppose various kinds of polluters, but Grant Township has taken the struggle further than most. They have done so, township supervisor Stacy Long told me, not because they are a bunch of Gaia-worshipping hippies but because they have run out of options—at least within the boundaries of the law as it is written. 

Like many battles, Grant Township’s began with a bureaucratic formality. In August 2013 a small notice appeared in the local paper saying the Environmental Protection Agency (EPA) was hosting a public hearing about the planned well. On the scheduled evening, EPA officials stood shoulder to shoulder with gas company representatives and assured residents all would be fine; the residents, knowing better, had come to the hearing prepared, naively assuming their research and reasoned arguments about the dangers inherent to the project would prevail. It quickly became evident that the EPA, failing to live up to its name, intended to rubber stamp the plans. At a later meeting with township supervisors, PGE employees were blunt: the state has complete authority in these matters; the township has no say; we are going forward with the well whether you like it or not. “We had no leverage,” Long told me. “We were sitting ducks.” For the people of Grant Township, disillusionment morphed into open rebellion. 

Re-Gaming the System

Like it or not, PGE was fundamentally correct. The law was indeed on the utility’s side, representatives of the Community Environmental Legal Defense Fund (CELDF), a nonprofit law firm, confirmed when Long and others connected with them. Once permits were secured, disposing of hazardous materials on property abutting people’s homes was the corporation’s right. It didn’t matter that in 2014 a Government Accountability Office report found that, as consequence of underfunding, the “EPA is not consistently conducting two key oversight and enforcement activities for class II programs”; it didn’t matter that an earlier investigation by the journalism nonprofit ProPublica found that the EPA didn’t know how many wells existed or the volume of waste pumped into them and that it failed to keep the records required by the Safe Drinking Water Act; it didn’t matter that many scientists have warned about the potential dangers of injection wells due to “waste migration” and water contamination; it didn’t matter that PGE, one of the state’s top polluters, had a history of environmental violations; it didn’t matter that injection wells have also been linked with earthquakes in Ohio, Oklahoma, and Texas. The only recourse, CELDF explained, was for Grant Township to change the rules of the game, to tilt the playing field in the residents’ and ecosystem’s favor. That’s what the township did by implementing the Community Bill of Rights.

“‘What are you going to do?’ company officials said. ‘Take a jar of creek water and put it on the stand and have it testify?’”

According to CELDF organizer Chad Nicholson, the fundamental issue is less environmental than political: “It’s about who has more rights, who has the authority to legislate and make decisions.” Community control may not be desirable in many cases—if a suburb wanted to segregate its schools, say—but state and federal laws also do things like blocking towns from protecting the health and safety of residents, and that’s what CELDF’s ordinances are designed to challenge. The group’s radical, rights-based approach is relatively new. For over a decade, beginning in 1994, CELDF was a conventional environmental law firm, working with communities to painstakingly appeal industrial permits. CELDF attorneys would often win the first round, perhaps having identified some clerical error or deficiency in the application, and would celebrate over a beer, but the company would eventually successfully resubmit. Though it won accolades, including from the White House, the organization had an existential crisis. “The bitter irony,” Nicholson explained, “is that we were helping corporations build better permits and helping the corporate lawyers, who got to bill another round while the company got to write off the expense.” 

Predictably, PGE wasted no time in suing Grant Township, asserting that the Community Bill of Rights ordinance was unconstitutional and in violation of the corporation’s rights under the First and Fourteenth amendments, in addition to the Commerce and Supremacy Clauses of the U.S. Constitution. A judge found that the municipality had indeed exceeded its authority. The ruling stripped out most of the ordinance, including the rights of nature—which only caused the town to escalate the rebellion. Within weeks, a majority of the residents voted in a “home rule charter,” essentially changing their local form of government to override the judge and reinstate their Bill of Rights. In the interim, CELDF had the local watershed—the Little Mahoning Watershed, which includes a 4.3 mile stretch of stream that is home to fish, freshwater mussel, aquatic insects, and the aforementioned hellbender salamander—join a motion to intervene in PGE’s lawsuit, seeking to “defend its legally enforceable rights to exist and flourish.” The lawsuit is ongoing.

Grant Township and its litigious watershed will likely lose the case, which means the township, facing millions of dollars in damages and legal fees, may go bankrupt. Long, who as a supervisor has access to the books, assured me that the township has no wealth or real tax base. “What are they going to do?” Long asked. “Take our garbage? Our public sewage? We don’t have either. We don’t have anything to give.” And that, she continued, is why PGE came to them in the first place—because the township’s citizens are poor. “Rural areas like ours are the sacrifice zones for the gas industry.”

Trump v. Octopus

What are rights anyway? We invoke them all the time, but they are not easy to define and rarely if ever absolute, as anyone who has spent time pent up in a “free speech pen” at a protest knows too well. A right is not “some strange substance that one either has or has not,” Stone points out in Trees. “One’s life, one’s right to vote, one’s property, can all be taken away. But those who would infringe on them must go through certain procedures to do so; these procedures are a measure of what we value in society.” The right to remain silent or to bear arms is as irrelevant to a chimpanzee as it is to a human infant, but the latter still has certain inalienable rights, and the former could use some. One former Supreme Court justice described rights as “trump cards.” Of course, that doesn’t mean government, corporations, and private citizens can’t or won’t violate them routinely—we know they will. But few of us who feel our rights are imperfectly conceived or protected would give them up.

That we think of rights as something we individually possess is arguably part of their fundamental weakness. That was the position of Karl Marx, who in 1843 wrote:

None of the so-called rights of man, therefore, go beyond egoistic man, beyond man as a member of civil society—that is, an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community. In the rights of man, he is far from being conceived as a species-being; on the contrary, species-life itself, society, appears as a framework external to the individuals, as a restriction of their original independence. The sole bond holding them together is natural necessity, need and private interest, the preservation of their property and their egoistic selves.

The last thing we need is to further privatize our world by granting plants and animals egoistic fiefdoms. But that is not what the expansion of rights to nonhuman life has to mean, proponents say. Ecosystems are too complex for natural rights to mean that no tree could ever be felled. Instead, CELDF’s Nicholson insists, giving rights to nature provides a way to push back on self-interested, acquisitive personhood, opening legal space for humans to recognize themselves as part of the environment, not separate from it, while providing a way to argue that the environment, as a rights-holder, has a value that is not purely economic. Under this framework, a creek or a forest in a poor, rural area has grounds to refuse being sacrificed to private profit, even if its health and thriving provide no immediate measurable financial benefit to humans living nearby. 

The last thing we need is to further privatize our world by granting plants and animals egoistic fiefdoms.

There is also, always, the question of where rights come from. The 2016 Republican Party platform stipulates “that man-made law must be consistent with God-given, natural rights.” The God the drafters refer to is one widely believed to have given mankind dominion over the natural world, not one who would deign to give the natural world rights. To give rights to oceans or octopi, then, would be to privilege—quite reasonably!—actually existing life over the alleged dictates of a imaginary and typically wrathful man in the sky, and it would also be an affront to the “natural right” to property best personified today by the Republican Party’s new leader, real estate mogul Donald Trump.

The citizens of Grant Township, meanwhile, are seizing new privileges for themselves, whether God intended them or not. This spring they took the dramatic step of legalizing civil disobedience undertaken to prevent the injection well. “Any natural person may . . . enforce the rights and prohibitions of the charter through direct action,” a new ordinance states. Challenging the legitimacy of the system that has completely dismissed them by legalizing resistance to what they believe are unjust laws “was a warning shot, a shot over the bow,” Long said. “If the judge says something we don’t like, we are not going away.” The environment, however, will never be able to seize rights or ask politely for them, which means human allies will have to do that work, however fraught it may be.

Personhood Without People

The Little Mahoning Watershed is not the first natural habitat to seek legal redress. With guidance from CELDF, the rights of nature were included in Ecuador’s 2008 constitution, and cited to halt two industrial projects. This July a former national park in New Zealand became a person in the eyes of the law, and a river may soon be granted the same exceptional status. Over the years, a variety of cases naming environments and animals as plaintiffs have come before U.S. courts, mainly in response to the Endangered Species Act. Byram River v. Village of Port Chester, Loggerhead Turtle v. County Council of Volusia, and Coho Salmon v. Pacific Lumber Company have all raised the issue of nonhuman personhood and legal standing, though none have had unequivocal success on that particular front. All these cases used additional human co-plaintiffs, which lawyers typically include as a kind of insurance that a claim will be heard. In these proceedings, asserting the rights of trees blurs into asserting the rights of ecosystems blurs into asserting the rights of species blurs into asserting the rights of individual nonhuman animals.

While “animal rights” may be a common enough refrain in our culture, those who invoke the phrase rarely mean it; what they are actually referring to is animal welfare, because they are against unnecessary cruelty. Even the philosopher Peter Singer, who is known as the “godfather of animal rights” and author of the 1975 classic Animal Liberation, does not put rights for nonhuman creatures front and center—as a utilitarian, his emphasis is on reducing suffering. Likewise, the statutes protecting animals today, including the Animal Welfare Act and the Endangered Species Act, regulate the use and abuse of animals but do not challenge their fundamental legal status.

In contrast to the welfarists, Steven Wise, founder of the Nonhuman Rights Project, has spent thirty years building the legal argument that some nonhuman animals—great apes such as chimpanzees, bonobos, orangutans, and gorillas, as well as dolphins, orcas, belugas, and elephants—should be granted legal personhood on account of their advanced cognitive abilities. “Legal personhood,” he writes in his book Rattling the Cage, “is the frame upon which we stretch fundamental immunities that block abuses of power, whether that power is rooted in precedent, policy, principle, or prejudice.” While Wise relies on detailed affidavits provided by scientists and researchers to make his case that these species possess self-awareness and autonomy, the idea of exceptional animal intelligence is hardly a stretch for laypeople these days thanks to social media. Our digital portals teem with videos of crows solving complex puzzles and dogs breaking out of cages. But as much as we might enjoy procrastinating by gawking at animal ingenuity, granting nonhuman agents the status of “legal persons” with a baseline array of rights remains a major stretch. And though few among us would describe crows or dogs, gorillas or elephants as things, that’s what they remain according to the law. 

How can a legal thing sue to challenge its thinghood?

Wise’s approach tries to provide an answer to a paradox: How can a legal thing sue to challenge its thinghood? Wise eventually found inspiration by looking back at the history of slavery, specifically the famous Somerset v. Stewart case. James Somerset, a black slave purchased in Virginia, accompanied his owner, Charles Stewart, on a journey to England, where slavery was less entrenched than in America. Somerset tried to escape but was captured and returned to his owner; as property, he could not sue for his release. In 1772 the English abolitionist Granville Sharp, serving as a legal proxy, filed a writ of habeas corpus in his stead, which the justice, Lord Mansfield, upheld against the commercial interests of slaveholders. A precedent was set, as a man who was formerly property became a free person. (Britain abolished the slave trade in 1807 and gave all slaves in the empire their freedom in 1833.)

A recent documentary directed by Chris Hegedus and D. A. Pennebaker follows the Nonhuman Rights Project team on its quest to inch forward the march toward nonhuman personhood by suing on behalf of three chimpanzees—Tommy, Leo, and Hercules—to gain their freedom. (Tommy was kept in a small cage on a property in upstate New York, Leo and Hercules in a laboratory at the State University of New York, Stony Brook.) With cameras rolling, Wise passionately makes his case in numerous courtrooms; one judge refuses to entertain the controversial analogy between slavery and animal oppression, advising him to move on to other lines of reasoning, while others appear more open-minded. Wise understands that the law does not progress in a straightforward or linear fashion—it advances and regresses; judges disagree, then agree, then disagree again; legal precedents are vague or conflicting. His goal is to create the first small chinks in the legal wall that deems animals worthy of welfare but not rights; it will be up to others to keep chipping away until the barrier disappears. The habeas corpus cases for Tommy, Leo, and Hercules are currently being appealed, and Wise will soon file writs on behalf of multiple elephants—with other species to come. 

The Court of the Absurd

Propounding the rights of nature raises countless philosophical and practical riddles. Should invasive species have equal protections? What about the rights of prey against predators? Where does a watershed end if all ecosystems are interconnected? To the common question of whether rights for nature require some kind of corresponding duties, the standard answer is no; after all, human children and some mentally disabled people have rights without responsibilities. While corporate persons can be prosecuted for crimes, a tree that falls on someone’s home should not be liable. No need to revive the tradition, routine in the Middle Ages, of bringing animals accused of crimes to trial and punishing them by torture and death. (Some were granted clemency on the basis of their good character—an eighteenth-century French female donkey, embroiled in a bestiality case, was acquitted when prominent members of the community signed a certificate testifying that she was known to be virtuous and “in all her habits of life a most honest creature.”) But more unsettling questions remain: How do human advocates know what is best for the rights-holders they aim to help? In Trees, for example, Stone recounts a case in which the rights of two dolphins were asserted after a pot-smoking lab assistant liberated them from their tanks into the Pacific Ocean. On being charged for theft (the dolphins were lab property), the assistant countered that he was saving two jural “persons” from slavery. Unfortunately, marine biologists testified that the captivity-bred dolphins would not last long in the wild. The assistant got six months in jail, and the dolphins were never seen again.

In a 2008 suit to stop the Navy killing whales, the direct harm to whales, beings invisible in the eye of the law, had to be tiptoed around.

What Stone, Wise, and CELDF’s Nicolson all maintain is that, however many absurd scenarios one can imagine arising from giving nature rights, the current system is already preposterous in ways non-lawyers don’t realize. To improve their chances of winning, environmental lawyers are often forced to frame their arguments around far-fetched injuries or financial inconveniences to humans—the diminishment of property values or reduced business revenue. (Likewise, only humans are eligible to be compensated for damages, not ecosystems in need of restoration.) The environment is an afterthought, of indirect importance as lost profits, an externality subject to a cost-benefit analysis. Cases of habitat destruction or animal abuse have been filed in terms of tragically limiting a human plaintiff’s “aesthetic enjoyment” or annoyingly impinging on future vacation plans. A 2008 suit to stop the Navy from killing whales included testimony from tourists about the fulfilling “opportunity to observe and interact with marine species” and the bottomless disappointment they felt knowing they wouldn’t be able to “see whales spout as often.” The direct harm to whales, beings invisible in the eye of the law, had to be tiptoed around—and the real grievances advocates sought to remedy left unstated because the actual victims lack rights. 

For now, those who resist such legal contortions are frequently ridiculed. Long told me that the gas company mocked the people of Grant Township for imparting rights to the environment (“What are you going to do?” company officials said. “Take a jar of creek water and put it on the stand and have it testify?”), while also taking the threat seriously enough to sue. Wise and his team, too, have encountered their fair share of scorn, and Stone’s treatise inspired other scholars to reply in jeering verse (Our brooks will babble in the courts, Seeking damages for torts). It is true that their efforts seem quixotic at first blush, whimsical or absurd or offensive, but over the last three decades, their arguments have made measurable headway. We have been through revolutions of rights before, they remind us: slaves, free black citizens, indigenous people, women, children, the disabled, and refugees have all had to fight for basic recognition as members of the rights-holding community. Why should we assume that we live at the end of history and all entities worthy of rights or legal personhood have already been identified?