#ColoradoRiver: Should Nature Have the Right to Sue in Court? — Patrick J. Kiger #COriver

The Colorado River, not far below the Utah-Colorado state line, and flowing toward the lower basin.

From How Stuff Works (Patrick J. Kiger):

A federal lawsuit filed in September against the state of Colorado seeks to have the Colorado River ecosystem recognized as “possessing rights similar to a ‘person,'” including “certain rights to exist, flourish, regenerate and naturally evolve.”

The litigation, filed by Denver attorney Jason Flores-Williams, actually names the river ecosystem as the plaintiff in the suit. Environmental groups Deep Green Resistance (DGR) and the Southwest Coalition and several individual activists also are participating as the role of “next friends” acting on behalf of the river to bring the lawsuit. DGR activist Will Falk explained in a San Diego Free Press article that the lawsuit is an effort to counter a system that “currently defines nature as property.”

Flores-Williams has significant experience representing homeless people in class-action litigation against the city of Denver and city officials. He says that that previous work inspired the river lawsuit. “The only thing more homeless than homeless people is nature,” he says.

Flores-Williams says that after researching legal efforts to protect the environment, he came to the conclusion that even those “heroic” lawsuits hadn’t prevented environmental conditions from worsening. One reason, he says, is that “many environmental cases are dismissed for a lack of standing, because you can’t show what somebody, or a corporation or a state, is doing is of immediate harm to a human being.”

“It’s a real problem, a procedural defect,” says Flores-Williams.

If the river lawsuit is successful, Flores-Williams says that it would enable groups to act on behalf of the river, and make their case by showing that a defendant is damaging the waterway, without the need to prove that humans are being hurt.

The idea of nature having legal rights isn’t a new idea. Back in 1972, Supreme Court Justice William O. Douglas, in his dissenting opinion in the case of Sierra Club v. Morton, argued that environmental issues might be put in better focus if lawsuits could be filed “in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers, and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”

Douglas cited legal scholar Christopher D. Stone, whose book “Should Trees Have Standing?” made the case that natural objects could have legal rights, which would be exercised with the assistance of appointed guardians.

Since then, an international movement has sprouted to confer legal rights on nature, and recently, several countries have afforded such status to rivers. In March 2017, for example, after long negotiations with indigenous people, the New Zealand Parliament passed legislation that declared the Whangagui (Te Awa Tupua) River to be “a legal person” with all of the rights, powers, duties and liabilities that any other New Zealand resident might have.

Shortly after the New Zealand decision, a court in the northern Indian state of Uttarakhand ruled that the Ganges River and its main tributary, the Yamuna River, also deserved the same legal status as human beings.

Even so, the Colorado River lawsuit may face a difficult legal road. Reed Benson, chairman of the environmental law program at the University of New Mexico, told the New York Times that he considered it “a long shot in more ways than one.”

But Flores-Williams doesn’t seem deterred by the challenge, or by worries that some might take a dim view of a river being granted rights similar to those of a human being, or of a corporation.

“I wish people would get hung up on the idea that our environment is being diminished,” he says. “The river should have a right to exist.” Additionally, he says, “anyone knows that if the Colorado River is extinguished, it would cause an injury to us all.”

The office of Colorado Gov. John Hickenlooper declined to comment on the suit itself, but, via email, spokesperson Jacque Montgomery defended the state’s efforts to protect the river.

“Colorado and countless partners have long understood the significance of the Colorado River system and the need to balance our needs for water with conservation and enhancement of the river ecosystem,” she wrote. “This extends from efforts to protect — and improve habitat for — endangered fish in the river over the course of decades to the recent development of Colorado’s Water Plan. That plan’s very essence is about working together to ensure sufficient water supplies for agriculture, cities, recreation and the environment as our state continues to grow. The Colorado River, and its protection, has been a fundamental focus of Colorado as a state, but also of local governments and water utilities who themselves depend upon the river’s health and function as necessary for their own success.”

Flores-Williams says that activists in other states have expressed interest in filing similar suits

From the Colorado River District:

Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado, Case No. 17-cv-02316, U.S. District Court, Colorado.

Information only.

Board members may have read recent news reports about a novel lawsuit that seeks to declare the Colorado River ecosystem as a “person” with standing to bring a lawsuit on its own behalf. The lawsuit was filed by the environmental group, Deep Green Resistance, as a “next friend”1 of the Colorado River Ecosystem. The complaint seeks a declaration from the court that the Colorado River Ecosystem is a “person” with standing to sue in court to protect its right to “exist, flourish, regenerate, be restored, and naturally evolve.” Additionally, the complaint alleges that the State of Colorado can be held liable for violating the River’s rights.

The premise of this lawsuit is certainly unique in Colorado (as well as the nation) but it is not completely without precedent. As noted in the complaint, Ecuador has amended its constitution to recognize the rights of ecosystems. Likewise, jurisdictions in Columbia and India have found rivers to have certain rights that warrant protection.

If successful, the lawsuit would be precedential not only in Colorado but throughout the country. Thus, we expect the State of Colorado will receive lots of help from others in opposing the lawsuit (we have already offered the River District’s help). A ruling granting the requested relief could totally upend environmental litigation. A key question would be why any specific group of individuals should be entitled to serve as an ecosystem’s “next friend” as opposed to any other group of individuals, organizations, municipalities, or States. The fights over the right to be appointed “next friend” status alone would be chaotic – not even taking into consideration the unique claims that could be asserted. The Attorney General’s Office will be taking the lead on Colorado’s behalf. We will continue to be in contact with the AG’s office as it prepares Colorado’s defense of the lawsuit – hopefully with a swift and successful motion to dismiss.

From The Las Vegas Sun (April Corbin):

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.

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