In When Nature’s Rights Go Wrong, Professors Mauricio Guim and Michael Livermore offer much needed analytical clarity to a significant, yet still understudied, field: rights of nature. After centuries of adopting a predominantly human-centric perspective, a more biocentric outlook is now coming to the fore.
Much like property rights, nature’s rights award control over clusters of natural resources. However, unlike traditional property rights, in the case of nature’s rights—as the name suggests—the right holders are non-human. What’s more, they tend to attach to a broader and more general natural entity, such as an ecosystem or a class of species, rather than a more crisply defined right-holder.
This carries profound implications for nature’s rights function and ability to achieve their environmental or climate-related goals. Analyzing nature’s rights is therefore especially important at present, as mounting evidence suggests our current legal mechanisms are insufficient to tackle the climate crisis.
The significance for property scholars is two-fold: first, Guim and Livermore underscore important conceptual difficulties that arise with regards to nature’s rights. The same challenges may arise with regards to property rights. After all, both utilize a similar mechanism – awarding right holders with control over chunks of natural resources. Property scholars should therefore pay close attention to the rights of nature discourse.
Second, this analysis also enhances the property-climate connection and builds further on the growing understanding that the two fields can and must work together to benefit from mutual synergies.
Guim and Livermore make three key arguments, which are conceptual, empirical and normative. First, the conceptual analysis shines a light on the challenges associated with defining the holders of nature’s rights. These holders of rights of nature will often be complex aggregates, like ecosystems, landscapes or species.
Defining these aggregates (in a way that is sufficiently clear to work with as a legal right holder), in short, is difficult. Nature is, by its nature, continuous and interconnected. Any attempt to slice it into bright-lined packages, is bound to run into analytical difficulties. In essence this is a problem for any attempt to draw a bright-line distinction through a continuous variable or resource.
The same is true for property rights. In fact, property rights have been doing just that for centuries: think of a property right one could have in a meadow, a river, or a wooded area. All of these likewise impose crisp lines on what is otherwise a continuous and interconnected resource. What is novel with regards to rights of nature is that the right holder is non-human. What’s more, the right holder could (and often is) also the subject of the right as well.
Put differently, there is a fundamental definitional challenge: how to draw crisp lines around messy clusters. Property rights constantly face this challenge when it comes to defining the “thing” at the heart of property, the subject matter of the right.
Nature’s rights, however, face a double definitional challenge – both with regards to defining the subject matter of the right and with regards to defining the right holder. This double definitional standard complicates things significantly. Adding to the complexity, beyond the physical and biological interconnectedness, there are also moral, social, political and economic considerations intertwined.
There is a further conceptual challenge: how can we offer an analytically coherent framework for evaluating the tradeoffs involved in defining and enforcing rights of nature? The basic problem, as Guim and Livermore underscore, is that making comparisons across entities adds another layer of complexity to the (already complex) analysis of rights.
Why? Because one of the dominant ways of analyzing the policy tradeoffs in the US (whether it be protecting rights or enacting legislation) involves comparing social welfare functions. That kind of analysis, which is inherently human-based, doesn’t work when trying to evaluate the welfare of non-human entities such as species, ecosystems and landscapes. Without a coherent and consistent framework for evaluating the tradeoffs involved, argue Guim and Livermore, decision-makers don’t have solid criteria through which they can resolve disputes that arise with regards to the rights.
The second contribution of the article is empirical. Using the experience gained with nature’s rights in Ecuador as a case study, Guim and Livermore show that in the few cases where rights of nature have been applied, the results have been analytically inconsistent.
The third and final contribution of the article is normative. To achieve the potential of nature’s rights, Guim and Livermore propose to tweak the way nature’s rights are framed: rather than defining the right-holder as an amorphous, fuzzy entity such an ecosystem, to instead award rights to people and organizations who seek to advance a healthy relationship with the environment. First, because doing so will mitigate the conceptual complexities that currently exist in the definition of nature’s rights. Second, because a comparative constitutional analysis suggests that awarding rights to people who seek to promote broader policy goals is more likely to achieve the desired results. This suggestion will likely be of interest to trust law scholars, who may find echoes of the relationship between a trustee and a beneficiary in this context.
Rights in nature, and all its glorious resources and species, have a significant role to play in the protection of the environment and in achieving our climate goals. Guim and Livermoe’s thoughtful piece invites both scholars and policymakers to rethink the ways in which rights in and of nature can be crafted and utilized, to better achieve these crucial goals.
