Nature’s Personhood and Property’s Virtues

32 Pages Posted: 19 Feb 2020 Last revised: 12 Feb 2021

See all articles by Laura Spitz

Laura Spitz

University of New Mexico - School of Law; Thompson Rivers University - Faculty of Law

Eduardo M. Penalver

Cornell University - Law School

Date Written: March 13, 2020

Abstract

In The Colorado River Ecosystem v. State of Colorado, plaintiff asked a federal district court to find that the Colorado River ecosystem is a legal person, arguing that, “[t]he dominance of a culture that defines nature as property enables its destruction.” Plaintiff’s principal claim rested on the assumption that legal personality could do something for the river that a system of property cannot. In making its case, plaintiff relied on the emergence of what it called a “new kind of environmental law,” pointing to examples where nature had been extended elements of personhood by courts and legislatures in India, New Zealand, Ecuador and Colombia. In this essay, we evaluate the basic strategy of claiming personhood for the Colorado River and other natural objects as a way to advance environmental goals in the legal domain. We explore the normative foundation of the claim — elements of nature are legal persons — and the work personhood is being asked to do by plaintiff and other environmental activists. We identify three possibilities: procedural, substantive and rhetorical. Of those, we suggest plaintiff’s strongest case is rhetorical. But we say this not only because it will likely be difficult to convince a judge to extend standing or substantive rights to a natural object, but because we are unconvinced that personhood would achieve the ends desired by plaintiff and other rights of nature advocates. We contrast the rights of nature movement cases with strategies used by plaintiffs in another case, Juliana v. the US, and conclude that existing legal tools rooted in the law of property offer a more certain, and therefore more promising, pathway to achieving many of the goals articulated by rights of nature advocates in the United States.

Keywords: Colorado River, legal person, personhood, rights of nature, progressive property, property law, public trust doctrine, Juliana v. U.S., constitutional standing

Suggested Citation

Spitz, Laura and Penalver, Eduardo Moises, Nature’s Personhood and Property’s Virtues (March 13, 2020). UNM School of Law Research Paper No. 2020-1, 45 Harvard Environmental Law Review 67, Available at SSRN: https://ssrn.com/abstract=3538522 or http://dx.doi.org/10.2139/ssrn.3538522

Laura Spitz (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States

Thompson Rivers University - Faculty of Law ( email )

900 McGill Road
IB2008
Kamloops, BC V2C 5N3
Canada

Eduardo Moises Penalver

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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