The Gainesville Sun: ‘Rights of nature’ would erode rights of individuals

February 10, 2020 | By MARK MILLER
AdobeStock 4407125

Alachua County environmental activists seek to do something never successfully done in American law: They want to give the Santa Fe River a “right of nature” to sue anyone that injures it. If that sounds crazy, you’re not alone: No American court has recognized the “rights” of natural resources to sue.

If the activists succeed, it will erode the only rights courts should recognize — the rights of individuals. That’s why our state legislators should put a stop to their effort.

To be sure, a “right of nature” law in favor of the river has superficial appeal. Who does not want a clean river? But if the activists believe our rivers, lakes and other precious resources are not clean enough, then they need to take that to the Legislature, the executive agencies charged with protecting our natural resources or the courts through statutes that allow for citizen suits — like the Clean Water Act. Moreover, if they suffer concrete injuries because of pollution, the activists may seek relief in court.

But this new activist scheme differs from those legitimate strategies. The activists hope to use this gambit to create ambiguous, new, limitless “rights of nature” through the courts. This novel gimmick confuses and conflates the roles the judiciary and other two branches of government play in our American system of governance. It also misunderstands the nature of rights altogether.

James Madison explained that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” Thus, to avoid tyranny our founders broke up the powers of government among these three branches.

The legislature writes the law, the executive branch enforces the law and the judiciary interprets the law. But the “rights of nature” activists ignore this defense of individual liberty and implicitly invite the judiciary to write the law by fleshing out what the “rights of nature” are, then interpret those rights and enforce them against individuals — according to how the activists want them enforced.

Judges are not free to cobble together “rights of nature” on behalf of a river, lake, body of water, tree, mountain or pebble in a manner that would turn judges into unelected, one-person legislatures and de facto executive officials. That’s not the system our Founding Fathers created; the system that makes our nation the envy of the world.

To do what these activists want would allow them to ignore and overrule the law written by elected legislators in favor of whatever whim du jour the activists feel like taking up in the name of the river. These are the activists who, according to the “rights of nature,” will be the ones suing in court in the Santa Fe River’s name.

How could the activists ever know what the river wants? They can’t, of course — it’s an inanimate object. Yet they’ll use this legal fiction (in other words, make stuff up) to sue private parties and put the activists’ interests above the interests of the people, as expressed through the legislators the people sent to Tallahassee to do the people’s business.

Only individuals are endowed with rights. Just ask Thomas Jefferson. The activists’ effort to give nature “rights” is cover for their effort to grab unlawful power for themselves.

The system our Founding Fathers created works, and environmentalists should trust it. Don’t take my word for it: Look at Gov. Ron DeSantis’s recent actions to protect the Everglades.

When a private property owner, Kanter Realty, took lawful steps to develop an oil well in the Everglades, and the courts properly deemed the plan lawful, DeSantis and his administration responded by offering to purchase the land and set it aside for conservation.

The governor did so to protect the Everglades from any risk — legitimate or not — posed by the project. The two parties reached an agreement which allowed the state to respect both private property rights and the environment, and to do so without forcing one branch of the government to act outside its proper role.

Nobody had to give the Everglades the “right to sue” to protect it.

Ignoring the separation of powers — as the activists wish to do via this “rights of nature” movement — won’t protect the environment, but it will do violence to the proper roles each branch of government plays in governing. That’s why our legislature should reject it.

Mark Miller is a senior attorney with Pacific Legal Foundation and manages its Florida office in Palm Beach Gardens.

This op-ed was originally published by The Gainesville Sun on February 10, 2020.