Does This Tree Have Rights?

In 2014, an algae bloom polluted Lake Erie so badly that local authorities advised residents in Toledo, Ohio, to avoid drinking tap water and bathing in a tub or shower. The pollution was so unhealthy that a group of citizens organized to bestow on Lake Erie the same rights as a legal person or corporation.

According to the Guardian, in 2019, the Lake Erie Bill of Rights granted “personhood status” to the lake in a referendum that passed with a majority of 61 percent. The citizens were recognized as “the guardian of the body of water” so it may “exist, flourish, and naturally evolve.”

The newspaper also reported that Ecuador declared that “all nature” possessed legal rights in an amendment to its constitution. New Zealand had earlier granted legal status to a forest and India to the Ganges and Yamuna rivers. Colombia did the same to the Amazon.

In 2022, science writer Elizabeth Kolbert reported in The New Yorker that a Florida lake was shrinking so badly under severe pressure by developers that it sued in Florida state court along with other endangered lakes to halt development. Their suit claimed development would “adversely impact the lakes and marsh who are parties to this action,” causing injuries that are “concrete, distinct, and palpable.”

Kolbert also reported that organizations like the Nonhuman Rights Group have gone to court to claim legal rights for Happy, an elephant who lives at the Bronx Zoo (she was named for one of the seven dwarfs). According to the group, because she could recognize her reflection in a mirror, she must possess sufficient self-consciousness that she should reside in an elephant sanctuary. The group filed a habeas corpus petition, seeking her release.

In June of 2022, the New York State Court of Appeals rejected the petition. The court noted that “while no one disputes the impressive capabilities of elephants, we reject petitioner’s arguments that it is entitled to seek the remedy of habeas corpus on Happy’s behalf. Habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.”

Kolbert noted that other cases have been brought by entire species. The Palila, a critically endangered bird, successfully sued Hawaii’s Department of Land and Natural Resources for allowing feral goats to graze on its last remaining bit of habitat. A judge ruled in 1988 that “the bird has legal status and wings its way into federal court in its own right.” The Palila “has earned the right to be capitalized since it is a party to this proceeding.”

Some use the term “new animism” to give a name to the ascribing of personhood to inanimate objects like rivers and trees and to nonhuman animals, a perspective becoming more mainstream. Derived from the Latin anima, the term refers to breath, spirit, soul, or life. Its origins lie in anthropology, going back to Edward Burnett Taylor’s nineteenth century study of Indigenous peoples, Primitive Culture: Researches into the Development of Mythology, Philosophy, Religion, Art, and Custom. It is now applied to nonhumans.

The goal of those who practice animism and support the rights of non-human natural entities is to preserve the natural world of the planet, now in a downward spiral of climate change and degradation: increased floods and wildfires, extreme temperatures of heat and cold, more and worse storms, air pollution. Supporters of the rights of animals, plants, bodies of water, and the like are seeking to prevent ecocide.

And what about trees?

Scientific investigations have demonstrated that trees communicate with one another. In an extensive account at the end of 2020, The New York Times Magazine reported that a scientist at the University of British Columbia, Suzanne Simard, “discovered that fungal threads link nearly every tree in a forest — even trees of different species. Carbon, water, nutrients, alarm signals, and hormones can pass from tree to tree through these subterranean circuits.”

Communication skills like these enhance the argument for tree rights. Trees warn one another of threats to their existence. As the Times revealed, “resources tend to flow from the oldest and biggest trees to the youngest and smallest. Chemical alarm signals generated by one tree prepare nearby trees for danger.”

This thinking has entered popular culture. In his 2019 Pulitzer-Prize winning novel, The Overstory, Richard Powers writes that “trees take care of each other. … Seeds remember the seasons of their childhood and set buds accordingly. … Trees sense the presence of other nearby life. That a tree learns to save water. That trees feed their young and synchronize their masts and bank resources and warn kin and send out signals to wasps to come and save them from attacks. … A forest knows things. They wire themselves up underground. There are brains down there, ones our own brains aren’t shaped to see. Root plasticity, solving problems, and making decisions. Fungal synapses.”

Ecologist Robin Wall Kimmerer, in her bestselling book Braiding Sweetgrass, concludes that “trees act not as individuals, but somehow as a collective. Exactly how they do this, we don’t yet know.  But what we see is the power of unity. What happens to one happens to us all. We can starve together or feast together.”

This thinking is also not new. Two major arguments advocating tree rights appeared fifty years ago. University of Southern California law professor Christopher D. Stone titled a law review article, “Should trees have standing — toward legal rights for natural objects.” In it, he contended that “the world of the lawyer is populated with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, 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.” Why not trees too? He concluded, “I suspect that a society that grew concerned enough about the environment to make it a holder of rights would be able to find quite a number of ‘rights’ to have waiting for it when it got to court.”

A second early argument appeared in a Supreme Court dissent by Justice William O. Douglas, an early advocate for conservation of the environment. The Sierra Club opposed the development of a ski resort by Walt Disney Productions on sensitive land in California. The organization lost. But Douglas’s dissent in Sierra Club v. Morton cites Stone, arguing that “contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. … Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.”

Happily, the Disney ski area was never built, thanks in no small part to opposition by preservationist groups like the Sierra Club. The land on which it would have been constructed is now part of the Sequoia National Park.

Catholic theologian and scholar Thomas Berry was a highly influential advocate for the rights of nature as they relate to the rights of all beings. In his 1999 book The Great Work, Berry argues that just as human beings possess rights, “trees have tree rights, insects have insect rights, rivers have river rights, and mountains have mountain rights.”  

Stephanie Kaza of the University of Vermont credits Berry with observing that “the primary political divisions in today’s world are between those with an ecological or environmental worldview and those with a human-centered, developmental worldview.” She says Berry reconciled the two by viewing the natural world as a united entity on the cusp of environmental collapse. She notes that his view of the seriously degraded condition of the Earth reflects “a deadening or paralysis of some parts of human intelligence and also a suppression of human sensitivities.”

Questioning the new animism

Some arguments against the new animism are expressed as questions along the lines of: If a branch of a large tree falls and destroys the roof of a house, may the homeowner sue the tree? If a river floods a town, may the mayor and town council sue the river? And what recourse do they have? And of course, there was the ruling against Happy the elephant (though the court allowed her to be moved to a sanctuary, anyway). 

Law professor Anna Grear of the University of Cardiff in the U.K. wonders whether applying human legal rights to plants and animals makes sense. She advocates moving beyond Christopher Stone’s fifty-year-old idea of granting rights to trees. She suggests that “the law needs to develop a new framework in which the human is entangled and thrown in the midst of a lively materiality — rather than assumed to be the masterful, knowing center, or the pivot around which everything turns.”  

In short, courts must recognize nonhumans on their own terms, and not as a reflection of human beings and their legal rights. She concludes that “laws and rights — for too long tools of human privilege and exceptionalism — need to be reimagined if they are to play a full role in human/nonhuman struggles for a future worth living.”

If human beings are to protect what is left of our environment — our trees, rivers, and nonhuman animals — we must immediately reform the law and grant them the rights they need to go on existing — for us, for themselves and each other, and for the future. And we can all join conservation and ecology organizations and get involved in educating our fellow citizens about this critical matter. We can advocate for changes that will stimulate others to help maintain the quality of our natural environment for future generations.

Want to read more?

Check out Braiding Sweetgrass and The Overstory, (both available at online bookstores).

Visit our story The Ancients Among Us, about the Gathering Growth project which photographs and documents champion trees across the country.