We’ve had Corporate Personhood for a decade…what about ecosystem personhood?

Oil and gas companies are getting nervous about an increased push worldwide for laws governing the rights of nature.

by | Apr 10, 2021


A waterfall in Los Cedros Reserve, Ecuador. (photo credit: Andreas Kay)

In our last narrative season, La Lucha En La Jungla, about the decades-long fight over oil pollution in the Ecuadorian Amazon, I mentioned something unique about Ecuador’s constitution. It includes a provision for the rights of nature. Ecuador rewrote its constitution in 2008 to include a chapter called Rights for Nature. Other countries have toyed with this idea since then, and it freaks a lot of people out, especially people running large multinational corporations, mainly because it challenges one of the core tenets of capitalism: private property. Rather than treating nature as property under the law, rights for nature articles acknowledge that nature in all of its life forms has the right to exist, persist, maintain and regenerate, and that we, the people, have the legal authority to enforce those rights on behalf of ecosystems. Here’s Natalie Green with the Global Alliance for Rights of Nature, explaining how the concept works in Ecuador.

“Well, Ecuador in 2008 rewrote its constitution and it was passed by the majority of Ecuadorians. And what we decided is that we don’t want to follow a model for development like a socialist model or capitalism model, because all those models were proven to be wrong. And we decided to recognize something that is that we are going to fight for and we’re going to be working for a model based on well-being. What’s what’s established in the Constitution is a model based on well-being and what is well-being, or bien vida in Spanish? It will be this notion of living in harmony with nature.”

And here is a handy explainer from the Community Environmental Legal Defense Fund, which has been leading a lot of the fights for rights of nature in the US.

“Under the current system of law, nature is considered to be property when something is considered property that often gives the property owner the right to damage it. Therefore, those who own these natural communities are largely allowed to use them however they wish, even if that includes destroying it. Rights of nature is honoring and recognizing that nature has the right to exist, flourish and thrive. Laws recognizing the rights of nature change the status of these ecosystems to being recognized as rights bearing entities.”

In late 2020, the Ecuadorian Constitutional Court heard a rights of nature case for the first time. It’s called the Los Cedros case. And here’s what it’s about, in broad strokes: With the country’s oil revenue decline in 2017, the Ecuadorian government opened up public lands for mining concessions—six million acres, including at least 68 percent of Los Cedros, a protected cloud forest. The idea was that those mining profits would make up for lost oil revenue…the long shadow of oil colonialism. But because there was that rights of nature provision in the Constitution, citizen groups were able to sue the government for this move. They called it unconstitutional. And a couple of the justices on that court wrote about it ahead of time, saying how important the forest was to protect and how eager they were to think through the application of rights of nature. Their decision hasn’t come down yet, but when it does, it’s going to have a major impact all over the world.

Meanwhile, communities in the U.S. have started to embrace this idea, too. And no surprise, their biggest opponents are oil and gas companies. There’s a concerted effort underfoot, supported by the American Petroleum Institute to pass laws that would preempt rates of nature laws from ever being passed.

I’m joined today by Joshua Boaz Pribanic and Melissa Troutman. They’re the co-founders of the great independent journalism outlet Public Herald. They’ve done a lot of the work on fracking and the impacts of that industry on Pennsylvania and Ohio and on water in general. They made a documentary about rights of nature called Invisible Hand. It takes a look at the push for rights of nature laws in the U.S., particularly in two spots in Ohio and Pennsylvania. The film came out in 2020. Here’s a preview of it:


Melissa and Josh talked about how they came to follow the rights of nature, how they’ve seen it play out on the ground in Pennsylvania and Ohio, and why the idea has an unlikely opponent, big environmental groups.

Listen to the episode:


TRANSCRIPT:

Melissa Troutman: I get Google Alerts for rights of nature in my inbox every day, and it’s there’s constantly new news about rights of nature all over the globe, particularly in the United States. What’s happening right now is there’s a growing movement to establish rights of nature in Florida to protect the fragile ecosystems down there, particularly from the effects of climate change.

Amy Westervelt: Interesting

MT: And there’s also some news just that I just read today that there’s a convention on biological diversity and that’s an international environmental treaty. And they just convened in Colorado a couple of days ago and signed the first international environmental treaty to advance the rights of nature. This is a milestone for the global environmental movement and that that will be voted on at their next meeting in China. So. There’s a lot more happening worldwide, the the big case, the the big spotlight that everybody in the movements are watching right now is Ecuador. Because in Ecuador, Ecuador was the first country to establish rights of nature and its national constitution back in 2008. And for about 10 years after that, there were a couple of cases that went before the constitutional court in Ecuador. And but the those the the judges at the time didn’t seem to prioritize rights of nature. So it didn’t really nothing much happened there. But as of twenty nineteen, there is a new panel of judges on the constitutional court in Ecuador. And this this particular court has prioritized rights of nature specifically, and they have selected a few cases to concentrate on so that the parameters of rights of nature, how it is applied in practical ways, the scope of the law is worked out, and one of those cases before the Constitutional Constitutional Court of Ecuador is a case to protect Los Cedros Forest Reserve from mining. It’s a very, very ecologically diverse forest that will be gone if concessions for mining put forth by the Ecuadorian government go through.

Joshua Pribanic: Well, I think we should speak to some of the updates in the film too. You have the Lake Erie Bill of Rights, which is one of the stories that’s covered in the film that’s an International Waters case. So you do have these conflicting territorial resolutions about, you know, how much water is going to be taken out of the lake, for instance. I mean, you’re dealing with, you know, basically treaty type situations where you’re trying to come to an agreement between the two international borders. But those confrontations and that kind of court case and negotiation seems to be something that’s going to happen here in the future. There’s certainly a lot of discussion about, you know, toxic trespass, the idea of Canada or somebody else introducing pollution from one country into another and holding them accountable. But I think that in the cases with Lake Erie, rather than the regulatory agency being the people who take over that decision-making process about what’s going on with the lake and its health, the local community is able to gain the kind of power and authority that they need, through the rights of nature, if Toledo’s able to make that sacrosanct in the city. So that way they’re dealing with Canada or somebody else across the table when it comes to negotiations about Lake Erie. And they’re doing it on behalf of Lake Erie. Not on behalf of these regulators who, you know, have basically polluted that lake to the point where it’s unswimmable, undrinkable, is killing a massive number of of species just due to the way permits have been handed out on that west side of the Lake Erie Basin. And just recently, the city is negotiating whether or not to pay out $200,000 in attorney costs. And basically for this this, you know, bill that they passed that they had to argue in front of the court. And the, you know, the prosecution’s asking for payment of two hundred thousand dollars. So they’re negotiating whether or not to pay that. So if you want to take action, you can either help, you know, Toledoans for Safe Water raise funds to contribute to that fight over there. Or you can contact Toledo directly and tell them not to participate in this, you know, egregious request to make the city pay this $200,000 for a democratically elected bill.

AW: I’m curious about what your hopes are for this documentary in terms of raising awareness or where it might help to take the story.

MT: Well, Joshua and I, since cofounding Public Herald in 2011, we’ve come into this work through water, our initial projects were investigations of water contamination, the cover up of water contamination related to fracking, development in protected watersheds in Pennsylvania. And it was it’s over the past 10 years that we’ve discovered I mean, it didn’t take 10 years, but that we’ve discovered that the system of law that is in place, of environmental law, that is supposed to protect things like our water, which is essential for life, of course…they fail. And an examination of why they fail brought us to create this documentary, Invisible Hand. And with this film, I see it as just the beginning of continued coverage of how people confront the systemic fundamental flaws in our legal system and in our society, which is built on these same legal foundations, but also our value system as we struggle with climate change, with racism, with ecocide. I mean, all of these problems stem from the same fundamental flaw for me, which is a disconnection from the laws of nature which govern the universe and keep everything in balance. I think that the film is just the beginning of covering this debate, and really it’s the film is about the the movement that itself is in its infancy and in terms of the way that movements go. So my hope is that this film introduces the concept to a level of detail to people who may have never heard of it or who just heard in passing and shows how communities actually implement this and how brave and resilient they are in this fight, because it’s a really, really hard one. I mean, you’re talking about shifting a paradigm which is not just our legal system, but also also our civilization and the way we live. That is a huge, huge deal. But as big and complicated as that struggle is, it’s also very, very simple. Because the laws of nature are simple.

AW: I’m glad that you used all the clips of the people saying this is some silly this is ridiculous. In contrast with, like, the woman explaining what it actually does because people do they talk about it as like, oh, what do you want a tree to be a negotiating these treaties, you know, and say, no, no, we’re talking about community control over the resources that the community depends on, which they don’t have otherwise.

JP: Truly, truly, they don’t have. And Grant is a perfect example of that. And so is Toledo and then some of the other people that we. Yeah. Included in the film. And yeah, you’re right. I mean, it was really nice to hear from these these antagonists and what they have to say about it, because, you know, when you listen to those arguments about basically why life shouldn’t have rights, they sound pretty obscene. And they get to kind of the core of the problems with capitalism and with, you know, libertarianism or other things like that, which have created this enormously selfish situation that relies on a completely utopian fantasy that we will have unlimited resources provided by the earth forever.

AW: I wonder if there are thoughts that you have on the media side of this coin and sort of how these stories do or don’t get amplified in the broader media sphereI’m sure you have many!

JP: It was so bad. We were… alright Melissa and I have nothing but the best intentions when it comes to sharing a story. You know, Public Herald is not some kind of profit machine where we’re just focused on our bottom line. Our goal is to, you know, to tell the story the way it is, rather than allow these propaganda machines to keep operating and basically either diffuse stories or just lie and tell false stories. I remember we were talking about this and we had a documentary that we thought of called The JournoNation, which was the mix between journalism and public relations, because so much of the journalism that we expected to work with across the state had been infiltrated by this public relations fallacy of balanced journalism, that they were just…they were shooting themselves in the foot. Every time they tried to publish a story, you know, we would send them a story like, say, for instance, we sent a newspaper, a story that was that first complaint story that we did in 2014, which was on The Daily Show. And it’s this like really grainy, you know, look at how a complaint happens from day one to like day forty five when the investigation is concluded. And you’re reading this story and it’s happening in real time, you know, as you’re reading it, you know, you’re on day 31, you’re reading it like as it’s happening. So we’re including all the sources and everything. And we give this to another newspaper to publish a print version of it locally. And they weren’t able to do it because they weren’t able to balance the story by calling the state and the industry PR groups to provide a positive spin on all of this negative shit that was happening.

MT: On people being without water for months. Because there’s something positive in there…

JP: I’m like, you guys are editorializing these stories. You understand that, right? You think you’re creating a balance, but you’re not actually including what’s happening with just the primary sources and just the people involved. You’re trying to to paint this reality with these outsiders and bringing their voices in to shroud the seriousness of what these people are facing and and the fact that the state doesn’t want to comment like that’s what the state doesn’t want to do. So that’s what you publish. You don’t know that? You can’t publish the story until you get a comment? You’ve got all the state’s emails and everything else. So this happened everywhere. This happened with our relationships with NPR. You know, we tried to do some stories with NPR and and that just went totally south. And they got stuff way wrong. We published this giant report about state misconduct with layers of evidence just thrown throughout the whole thing about specific cases where the

MT: Well not so much thrown as strategically placed…

JP: Ha, right. You know, looking at water contamination. And so we’re like, hey, you guys, we we just worked on this for three years. We really want you to cover this story about the state misconduct, and the attorney general’s investigating it. Like we’ve talked to the attorney general, they’re out in the field. They’re talking to people. They’re like, well, we can’t write a story until the attorney general tells us that they’re investigating it. And I’m like, it’s the attorney general…?

AW: Right. They don’t do that. You know the AG is investigating something when they file a suit.

JP: Right! Like…they’re investigating you dipshits. Go out there and publish it. So that’s been like the constant wall of trying to to take these stories that are so important and that are people are suffering with and get them into the mainstream media. And the mainstream media just has this amazing wall that they don’t let anything through, which it’s not such a big deal for us because we have a huge readership. Right. So it’s not like, you know, we haven’t fallen short on that side of it. We we utilize things like Google ads. We utilize things like social media, you know, and all these different advertising platforms and public.

MT: And the films. The films themselves have really built our audience. But the issue with not getting into mainstream is that we’re not getting to their audience. And these these are people who need to be informed about what’s actually going on. You know, if we have an election coming up and people are voting and. Yeah, and if you don’t know the truth about everything, if you have this picture in your mind of what’s happening with fracking, for instance, in Pennsylvania, which is the second largest producer of natural gas in the country, if you know, if you have this picture of things as if they’re balanced, which is what the mainstream media tends to report, including people like NPR, then. People think things are OK, and that is very, very much not the case.

AW: Yeah, we actually covered this in a Drilled season, like, exactly how the whole false equivalence thing was created mostly by oil and gas companies, and how the woman who is in charge of the Corporation for Public Broadcasting right now was one of the key architects of that and of climate denial and in fact, came up with the fucking term clean coal. So yeah, I’m not surprised that NPR does a bad job…

MT: Wow.

AW: Yeah. I’m curious what you’re actually seeing on the ground with people in Pennsylvania and how fracking regulation plays there.

JP: I have my own version of that, Melissa do you wanna go first?

MT: No, no you start and then I’ll talk about my experience living on the front lines.

JP: Okay, so I went to college and studied comprehensive planning and zoning. And I saw a lot of that work happening in Pennsylvania with regards to controlling fracking and keeping it in specific zones. And, you know, working with Food and Water Watch to create a zoning plan that will protect your community from oil and gas and these kinds of things. And here you have a Grant [Grant Township] and Grant is doing the exact opposite. Grant is saying for you to tell me that I have to zone things in my area and then make sure that there is a place for waste in our community to make sure there’s a zone for waste in our community, that…that’s fucking unconstitutional. And we’re not going to do that. We’re going to pass home rule. And this home rule will have a bill of rights which says what our laws are and what you must follow when you’re in our community. It will not be these unconstitutional mandates that we have to accept waste or we have to accept fracking in our community. And that’s something that Pennsylvania allows.

Now, the problem is with banning fracking in Pennsylvania and why you don’t see Grant and 100 other communities like you did in a place like New York is the entire green movement in Pennsylvania, every single organization I’ve ever talked to about this, no one is focusing on passing home rule bans inside of communities except for CELDF [Community Environmental Legal Defense Fund]. CELDF is the only one I know who’s, like, created a platform for communities to actually ban fracking or ban infrastructure or ban landfills or ban anything, you know, through something like home rule, because they’ve said this is the most powerful part of the law and this is where we’re going to help you pass if you want to pass.

And they’re not going to push any of that on you. They’re just suggesting, you know what it is that they see. However, the the environmental organizations have completely lost track of how to deal with this with this problem. And they are entirely invested in zoning and ordinance plan plans, entirely invested. So they’re taking communities who are in dire straits, who want to ban fracking so it doesn’t happen next to a school or they want to ban fracking and they don’t want these wells or they don’t want injection wells like Plum Township. And they’re taking these communities. They’re saying, well, we’ll help you build these really strong zoning and ordinance laws and that’ll make everything OK. And I don’t have an example of where that’s OK. All I ever see with Melissa and I filming this stuff, and we have been to I cannot tell you how many of these boring ass zoning meetings where it’s a hearing and we’re there for four hours. The whole damn thing, watching every attorney talk. I mean, so many times did we do this for this film to try and find one positive piece to stick in there about zoning and ordinance? We couldn’t get a shred of it. It was just a total, total failure. So on the banning side and that whole situation, there is not good communication in Pennsylvania about your opportunities to ban fracking locally with home rule. And that’s something that as reporters, I feel really important to share with communities because other newspapers have said, you know, Grant Township will not win. Grant Township as a case of home rule, they won’t win and this isn’t going to work. And then they win. And I’m like, are you going to go back and retract your statement in your paper? Like, do we need to send you corrections for this? Because you just misled a lot of readers about what they’re supposed to do with fracking and basically told them that what Grant’s doing, which is the exact same thing that Pittsburgh did, which has a ban on fracking, isn’t going to hold up in court when in fact, it has. So, yeah, it’s a really confusing situation on that front now.

You know, Ohio’s different. Ohio lost that control. Their state Supreme Court stripped them of local control. So they need to go at the state level and kind of work their way down. But, yeah, it’s a really dynamic story. And I wish somebody would write about it, but we just don’t have the capacity right now.

MT: Yeah. I mean, the environmental groups in Pennsylvania have…there’s no campaign to ban fracking, and yet even though as as you’re seeing in the polls, Amy, the majority of people in Pennsylvania support a moratorium at the least. And so it’s it’s a bit of a mystery to me why that is. I don’t know if it’s because a lot of the environmental organizations are based in cities and there’s no fracking in cities. So I work remotely and I live my family on the front lines of fracking. We live on a road that has essentially become the driveway for a fracking wastewater facility. So there’s radioactive for those radioactive fracking waste being given over top of our water supply facility. Radioactive fracking waste is being trucked over our water supply every day.

AW: Wow.

MT: And right, the environmental community does not get behind the rights of nature community rights movement. In fact, when I’ve brought it up with environmental groups, their response is that, well, if we allow communities to decide what’s right for them, then some of them will choose what’s wrong. They’ll choose to enact laws to promote bad things like more fracking. And I try to explain that’s not exactly how it works. I mean, community rights work as an addition of increased protection. It doesn’t steal… you can’t pass a local law that’s going to poison the next community over. That’s not the purpose or the meaning of it all is. So I think that fear is very unfounded.

AW: But that’s interesting. Do you think that also with the larger national environmental orgs that it’s some kind of playing politics thing, too, that they’ve bought into this this story, that a fracking ban is untenable to voters?

JP: 100%. Food and Water Watch is a fracking ban organization. But in Pennsylvania, that push does not exist. It is a zoning and ordinance organization. And I’ve confronted them on this because we showed Invisible Hand earlier at one point. And the community wanted to use home rule. They wanted to ban fracking and Food and Water Watch wouldn’t come to the show. They wouldn’t show up at the show, even though they have field agents in that community, because it wasn’t a zoning and ordinance situation. It was a home rule, ban fracking situation. And that kind of you know, I felt an obligation there, as a journalist, to make that clear. So I did publish my own editorial in regards to the mayor of Pittsburgh’s statements about home rule and why they felt that home rule was the only thing that would stop fracking in Pittsburgh rather than zoning ordinance laws, which it has up to this point. Against what I was being told by the food and water rights organization in Pennsylvania, which was that, you know, the better route to take was to try and push fracking to the edges of the community through zoning, which if you’ve ever been involved in a case with a corporation under zoning laws, they will find a way, one way or another, to change the zone so they can put their well pad there. If they don’t do it this year, they’ll do it four years down the road, which is exactly what they did in this community who wanted to have home rule and ban oil and gas infrastructure because a natural gas power plant from Invenergy was proposed to be built there. And it is, you know, right now getting its air quality permits outside of Pittsburgh in Elizabeth Township. And it will increase dramatically all these different particulates and air pollution that’s happening in the Pittsburgh region. And that could have all been stopped had green organizations created some kind of mobility and support for a community who had, you know, a dozen or more people organized to go out, collect signatures, get home rule passed and ban the power plant. But instead, you know, they were left on their own. They were ostracized by bigger green organizations for taking this position. I mean, it’s astonishing treatment of the good intentions of a community trying to protect themselves.

AW: That’s really interesting.

MT: I mean, all of these environmental organizations are funded by philanthropic foundations. And, yes, many of these foundations, their priority is to make the system that’s in place work better. The fundamental piece that’s missing is that the system is working precisely as it’s supposed to. And we can dicker and play whack a mole to rearrange words on pieces of paper that are always meant to treat nature as property and always meant to prioritize commerce over basic life. And the problem that remains the same, you know, is that our laws are designed to serve an economic paradigm that treats nature as property and as a commodity. And that paradigm…our environmental laws come from that system, and that’s why they have failed and they are going to continue to fail until we see nature as something else, until we see nature as what it really is. The rights of nature movement that we’ve come to cover after covering all of this environmental degradation and this infighting about how to protect ourselves and, you know, do we pass home rule laws or do we zone it to the outskirts of our community…which is incredibly unjust, by the way. Our way of life and our system of law are constantly extracting from the outskirts of the marginalized people and places. And the environmental groups are wrapped into that system, they’re part of the capitalist system, the colonial system that has created this problem and will continue to until we manage to fundamentally shift the structure of law and our value system.

You mentioned the technologists that think that we can we can techno fix our way out of this problem…

AW: Yeah

MT: But that is absolutely absurd because technology…you don’t just wave a wand and create a piece of technology out of thin air. It has to be extracted from somewhere. And it’s usually composed of pieces and parts and materials that are extracted from those marginalized communities that have sacrificed for hundreds of years now to the industrial revolution. And so to techno fix our way out is just to perpetuate more of the same harm. But what we need to do, and I’m not saying that technology isn’t part of our solutions moving forward, but we have to put at the center of our decision-making processes, nature and the laws of nature. We have to start there. We have to design our future systems and redesign our way of life and redesign our legal system with the laws of nature at the center, we have to before we switch to one hundred percent renewable energy. We need to ask ourselves how to do that in alignment with the laws of nature and that’s that’s just how we have to do it moving forward. It’s not about you can never cut down a tree or you can never drive a car. It’s about how we do that as communities. As interconnected communities of people and living other non-human relatives. You know, maybe it’s not that we can’t drive a car, it’s that we have to share cars. It’s not that we can’t cut down a tree. It’s that we have to acknowledge that we share forests and for one corporation to take a forest like Los Cedros, or a mining company to in Ecuador, for them to get a concession to decimate an entire forest. That kind of activity, that kind of economic paradigm, that kind of social value system needs to absolutely end. It’s suicide if we don’t. And instead, the decisions that we make moving forward about whether it’s to mine lithium for electric car batteries or cut down trees for housing material, those decisions need to be made as communities, not as, you know, corporate entities that can sit at the top of the priority list for our legal system.

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Amy Westervelt is the editor-in-chief of Drilled News, creator and host of the Drilled podcast, and founder of the Critical Frequency podcast network, named AdWeek's Podcast Network of the Year in 2019. An award-winning print and audio journalist, Amy has contributed to The Guardian, The Wall Street Journal, and The Washington Post, as well as KQED, The California Report, Capital Public Radio, and many other outlets. She is the 2015 winner of the Rachel Carson award for "women greening journalism," and a 2016 winner of an Edward R. Murrow award for her series on the impacts of the Tesla Gigafactory in Nevada. In 2019, the Drilled podcast won the Online News Association's "Excellence in Audio Storytelling" award.