Background

Existing Environmental Laws Treat Nature as Property

By most every measure, the environment today is in worse shape than when the major U.S. environmental laws were adopted over thirty years ago.  Since then, countries around the world have sought to replicate these laws.  Yet, species decline worldwide is increasing exponentially, global warming is far more accelerated than previously believed, deforestation continues unabated around the world, and overfishing by corporate trawlers in the world’s oceans is pushing many fisheries to collapse.

These laws – including the Clean Air Act, the Clean Water Act, and similar state laws – legalize environmental harms by regulating how much pollution or destruction of nature can occur under law.  Rather than preventing pollution and environmental destruction, these laws instead codify it.  In addition, under commonly understood terms of preemption, once these activities are legalized by federal or state governments, local governments are prohibited from banning them.

In the U.S., title to property carries with it the legal authority to destroy the natural communities and ecosystems that depend upon that property for survival.  In fact, environmental laws in the U.S. were passed under the authority of the Commerce Clause, which grants exclusive authority over “interstate commerce” to Congress.  Treating nature as commerce has meant that all existing environmental law frameworks in the U.S. are anchored in the concept of nature as property.

Moving from a Property, to a Rights Framework to Protect Nature

The Legal Defense Fund has assisted communities in the United States to craft and adopt new laws that change the status of natural communities and ecosystems from being regarded as property under the law to being recognized as rights-bearing entities.  

Those local laws recognize that natural communities and ecosystems possess an inalienable and fundamental right to exist and flourish, and that residents of those communities possess the legal authority to enforce those rights on behalf of those ecosystems.  In addition, these laws require the governmental apparatus to remedy violations of those ecosystem rights.

In essence, these laws represent changes to the status of property law in the U.S., eliminating the authority of a property owner to interfere with the functioning of ecosystems and natural communities that exist and depend upon that property for their existence and flourishing.  They do not stop development; rather they stop development and use of property that interferes with the existence and vitality of those ecosystems.