The Puzzling Persistence of Nature's Rights

The American experience of rights of Nature—the legal recognition of the rights and personhood of natural phenomena—presents a puzzle. On the one hand, no court has ever recognized such rights. Rights of Nature laws are routinely struck down and have proven impossible to enforce. On the other hand, dozens of communities, including municipalities and Native American tribes, continue to enforce them while scholars debate them endlessly. Why do rights of Nature persist? Through analysis of 119 laws and 32 interviews with rights of Nature activists, I offer the first empirically-grounded answer to this question. Rights of Nature persist because of their value as political resources in legal mobilization, trading on deeply held myths embedded in American legal culture. Most rights of Nature activists have specific, local environmental objectives, and hope to use Nature’s rights to block development, assert local power, and build a movement. Sometimes, they succeed. Litigation plays an important role in pursuing these objectives, even though advocates rarely expect to win. Like many other rights, the rights of Nature are best conceived of as movement resources rather than a formal litigation strategy. Nevertheless, the movement finds itself at a crossroads. It can remain a primarily negative movement, offering a framework for opposing development projects or critiquing environmental law. Or it can evolve into an alternative and concrete paradigm for environmental governance. The tension between these two objectives is the key challenge facing the rights of Nature movement.