Eulogy for Christopher Stone: Should Trees have Standing? 2021-05-19

“Nature should have its own voice…,
even though nature can’t speak.
Corporations can’t speak.
Nation states can’t speak.
They hire a counsel to speak for them.”

Christopher D. Stone said that in 2013, revisiting a legal theory he pioneered in 1972.

He died May 14, 2021, and there is a lengthy eulogy. Emily Langer, Washington Post, 2021-05-19, Christopher Stone, environmental scholar who championed fundamental rights of nature, dies at 83.

But first, hear the professor speak.

[Christopher Stone Revisits
 "Should Trees Have Standing?" -USC Gould School of Law 2021-07-30]
Christopher Stone Revisits “Should Trees Have Standing?”

Here is the video by USC Gould School of Law:

He describes a situation that seems eerily familiar:

Walt Disney Enterprises had proposed to develop Mineral King Valley. By develop meaning put in motels, restaurants, and things of that sort. The Sierra Club challenged the permit, permitting this to go on. And the case went up to the Ninth Circuit. And the Forest Service said, look, you don’t have standing, you the Sierra Club don’t have standing. Maybe this is a wrong to issue the permit, but you are not injured, you as a club are not injured.

That scenario is familiar for two reasons.

Early on, Walt Disney World was intended to be in Lowndes County, Georgia, as recounted by numerous local people here who remember when it happened. This actually makes more sense as a location than Orlando, because it would have been next to I-75 and not far from I-10, with easier road access from more of the U.S. population than Orlando. It didn’t happen because local big landowners would not sell. There are stories of other potential locations, including St. Louis and New Orleans. Apparently the local powers that were didn’t want it there, either.

We need to enlist local people in nature conservation. Actually, often that is already happening.

Chris Mericle testifying
WWALS board member Chris Mericle testifying, with Merrillee Malwitz-Jipson of Our Santa Fe River (OSFR) on the bench. Even Merrillee couldn’t qualify as a witness, despite her nine years of activism through OSFR and numerous other organizations.

Second, when in 2015 WWALS contested a permit for the Sabal Trail fracked methane pipeline to drill under the Suwannee River in Florida, the judge said WWALS Watershed Coalition Inc. had no standing. Even though we produced four members who owned property that the pipeline would run directly through, the judge said that was not enough. If such an organization with conservation and stewardship of the Suwannee River in its mission does not have standing, who or what does? Apparently nothing and nobody. We need to change that. People need to be able to stand up for nature.

Back to Prof. Stone:

When I saw that case, I thought, this is in a way sort of silly. This is an important decision, as to whether to develop Mineral King Valley in this way. I’m not sure how it should come out. But at least it should be heard. And if the problem of it being heard is that this club was not injured, suffered no injury, why not just say look, the injury is suffered by Mineral King Valley. And when the case came down, the Supreme Court majority agreed with the Ninth Circuit that there was, no standing had been pleaded.

But Justice Douglas said in his dissent, why not just essentially follow Stone’s position, and let Mineral King be the plaintiff. Let’s call it Mineral King vs. against Department of Interior.

This caused an immense amount more publicity… I think partly there was a sort of opinion that this is a sort of zany professor, and by gum he’s roped in three members of the U.S. Supreme Court. The reception it got surprised me more by how warm it was. That people liked the idea that we should be speaking for nature. That nature should have its own voice. And when they understood that a guardian, nature should have its own voice…, even though nature can’t speak. Corporations can’t speak. Nation states can’t speak. They hire a counsel to speak for them.

I can’t place “Trees” in any causal chain. Ideas flip-flop around and skeeter here and there, back and forth among the society. But somewhere along the line, more people are concerned about the environment….

The professor is modest. Others place his seminal law article right at the beginning of a timeline of Rights of Nature.

This is the article: SHOULD TREES HAVE STANDING?-TOWARD LEGAL RIGHTS FOR NATURAL OBJECTS, Christopher D. Stone, Southern California Law Review 45 (1972), 450-501,

In it, he provides many examples of non-humans with rights.

Nor is it only matter in human form that has come to be recognized as the possessor of rights. The world of the lawyer is peopled with in-animate right-holders: trusts, corporations, joint ventures, municipal-ities, Subchapter R partnerships,12 and nation-states, to mention just a few. Ships, still referred to by courts in the feminine gender, have long had an independent jural life, often with striking consequences.13 We have become so accustomed to the idea of a corporation having “its” own rights, and being a “person” and “citizen” for so many statutory and constitutional purposes, that we forget how jarring the notion was to early jurists. “That invisible, intangible and artificial being, that mere legal entity” Chief Justice Marshall wrote of the corporation in Bank of the United States v. Deveaux14—could a suit be brought in its name? Ten years later, in the Dartmouth College case,15 he was still refusing to let pass unnoticed the wonder of an entity “existing only in contemplation of law.”16 Yet, long before Marshall worried over the personifying of the modern corporation, the best medieval legal scholars had spent hundreds of years struggling with the notion of the legal nature of those great public “corporate bodies,” the Church and the State. How could they exist in law, as entities transcending the living Pope and King? It was clear how a king could bind himself—on his honor—by a treaty. But when the king died, what was it that was burdened with the obligations of, and claimed the rights under, the treaty his tangible hand had signed? The medieval mind saw (what we have lost our capacity to see)17 how unthinkable it was, and worked out the most elaborate conceits and fallacies to serve as anthropomorphic flesh for the Universal Church and the Universal Empire.18

It is this note of the unthinkable that I want to dwell upon for a moment. Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable. We are inclined to suppose the rightlessness of rightless “things” to be a decree of Nature, not a legal convention acting in support of some status quo. It is thus that we defer considering the choices involved in all their moral, social, and economic dimensions. And so the United States Supreme Court could straight-facedly tell us in Dred Scott that Blacks had been denied the rights of citizenship “as a subordinate and inferior class of beings, who had been subjugated by the dominant race.”19

12. INT. REV. CODE of 1954, § 1361 (repealed by Pub. L. No. 89-389, effective Jan. 1, 1969).

13. For example, see United States v. Cargo of the Brig Malek Adhel, 43 U.S. (2 How.) 210 (1844:). There, a ship had been seized and used by pirates. All this was done without the knowledge or consent of the owners of the ship. After the ship had been captured, the United States condemned and sold the “offending vessel.” The owners objected. In denying release to the owners, Justice Story cited Chief Justice Marshall from an earlier case: “This is not a proceeding against the owner; it is a proceeding against the vessel for an offense committed by the vessel; which is not the less an offense … because it was committed without the authority and against the will of the owner.” 43 U.S. at 234, quoting from United States v. Schooner Little Charles, 26 F. Cas. 979 (No. 15,612) (C.C.D. Va. 1818).

14. 9 U.S. (5 Cranch) 61, 86 (1809).

15. Trustees of Darmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819).

16. Id. at 636.

17. Consider, for example, that the claim of the United States to the naval station at Guantanamo Bay, at $2000-a-year rental, is based upon a treaty signed in 1903 by Jose Montes for the President of Cuba and a minister representing Theodore Roosevelt; it was subsequently ratified by two-thirds of a Senate no member of which is living today. Lease [from Cuba] of Certain Areas for Naval or Coaling Stations, July 2, 1903, T.S. No. 426; C. BEVANS, 6 TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES 1776-1949, at 1120 (U.S. Dep’t of State Pub. 8549, 1971).

18. O. GIERKE, POLITICAL THEORIES OF THE MIDDLE AGE (Maitland transl, 1927), especially at 22-30. The reader may be tempted to suggest that the “corporate” examples in the text are distinguishable from environmental objects in that the former are comprised by and serve humans. On the contrary, I think that the more we learn about the sociology of the firm—and the realpolitik of our society—the more we discover the ultimate reality of these institutions, and the increasingly legal fictiveness of the individual human being. See note 125 and accompanying text infra.

19. Dred Scott v. Sandford,. 60 U.S. (19 flow.) 396, 404-05 (1856). In Bailey v. Poin-dexter’s Ex’r, 56 Va. (14 Gratt.) 132, 142-43 (1858) a provision in a will that testator’s slaves could choose between emancipation and public sale was held void on the ground that slaves have no legal capacity to choose:

These decisions are legal conclusions flowing naturally and necessarily from the one clear, simple, fundamental idea of chattel slavery. That fundamental idea is, that, in the eye of the law, so far certainly as civil rights and relations are concerned, the slave is not a person, but a thing. The investiture of a chattel with civil rights or legal capacity is indeed a legal solecism and absurdity. The attribution of legal personality to a chattel slave,—legal conscience, legal intellect, legal freedom, or liberty and power of free choice and action, and corresponding legal obligations growing out of such qualities, faculties and action—implies a palpable contradiction in terms.

Rivers, swamps, ponds, and forests are currently considered chattel, property, maybe of the state, but property nonetheless. It is no longer unthinkable that they, perhaps in conjunction with the people who inhabit them or frequent them, should have rights.

The example of Guantanamo Bay Naval Station in footnote 17 is particularly amusing. If people long dead can still encumber a piece of an island, why not enable people now living to speak for air, water, and land now?

Prof. Stone goes on to give numerous other examples. But I think you get the picture.

Nature having rights, especially in conjunction with the people intertwined with it, is no longer unthinkable.

Riddle me this: of what use is nature as chattel if we the owners destroy it, and our own food, drink, and oxygen along with it? Of what use is white paint if strip mines destroy or even damage the Okefenokee Swamp and the Suwannee River? Of what use is Georgia’s constitutional right to hunt and fish if the fish have no clean water and the wildlife no place to live?

Perhaps we should think in terms of human rights to air, water, and land. As is already the case in Pennsylvania since the 1970s and on the ballot this year in New York State. For every human, and organizations, too, to be able to sue on behalf of rivers, swamps, forests, animals, plants, or air, with no further enabling legislation. And with local landowners, hunters, fishers, boaters, swimmers, etc., and those who visit, all having responsibilities of conservation and stewardship so that what little is left of nature can be conserved and to some extent restored.

Is that really so unthinkable?

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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