The EPA Has Abandoned Its Duty To Protect the Environment. ‘Rights of Nature’ Laws Can Fill the Void
Kai Huschke and Simon Davis-Cohen
Authoritarian governments often prepare laws they wish to pass and have them “ready to go” when opportunity strikes. That’s what Fionnuala Ni Aolain, a United Nations Special Rapporteur on Counterterrorism and Human Rights, recently told the New York Times.
“They draft laws in advance and wait ‘for the opportunity of the crisis to be presented,’” Ni Aolain explained.
It’s clear to us that greed-fueled bad actors are taking this pandemic as just such an opportunity. Corporate lobbies have quietly pushed through laws criminalizing fossil fuel protests. Congress approved an unprecedented and unnecessary handout to corporate America. Pipeline companies want to classify new pipelines as “essential,” including TC Energy, which got the green light and began constructing the infamous Keystone XL pipeline. The federal government appears to be mulling a bailout for the fossil fuel industry. And, last but not least, the Trump administration ordered the Environmental Protection Agency to stop enforcing anti-pollution laws in some cases, removing what anemic oversight the EPA once held over corporate polluters, effectively suspending the agency while taking action to roll back some environmental protections permanently.
The EPA’s response to the Covid-19 pandemic ― effectively ceasing enforcement of federal environmental laws ― will, regardless of the motivations for this unprecedented decision, negatively impact peoples’ lives. This means that many communities, and the life-giving ecosystems they depend upon, are on their own.
In this moment, many people are in shock, and for good reason. For others, however, this pandemic has not caused system failure but merely exposed it. Innumerable communities across the U.S. know from first-hand experience that federal and state “regulations” do not safeguard water, public health, and the ecosystems they rely on. Critically, they also understand the system of pollution “permits” are a tool for the repression of democracy.
State and federal environmental laws have failed to avoid mass species die offs, cancers, public health catastrophes, pervasive pollution, and the climate emergency.
Under this system of law, communities are forced to accept activities that are “permitted” by “environmental” law. The democratic powers of such communities to govern corporations are superseded by federal and state regulations and judge-made laws, like corporate “personhood,” that function to both legalize things that harm people and the environment and prevent communities from protecting themselves.
Native nations, as well, have been assaulted by “environmental” laws that “permit” and “regulate” pipelines through sacred land. For decades, such permits have always superseded the self-determining authority of these nations, often enshrined in treaties, to say “no.”
Part of the problem is that old environmental laws treat ecosystems as property and function to legalize the status quo. They offer polluters a shield of legal protection through the “permit” process.
Rights of Nature
For years, many communities who have experienced this system firsthand have felt abandoned by their federal and state “environmental” regulators. Many have taken their destiny into their own hands and stepped outside the modern paradigm of environmental law. We must follow their lead.
In the past decade, multiple Native nations and dozens of United States municipalities have passed enforceable Rights of Nature laws. Arguably, 2019 was the movement’s biggest year in United States history. Here’s a rundown of what happened this past year:
The residents of Toledo, Ohio adopted the Lake Erie Bill of Rights, the first law in the U.S. to secure legal rights for a specific ecosystem.
Residents of Exeter and Nottingham, New Hampshire enacted laws elevating the rights of ecosystems above the rights of corporate polluters.
The Yurok tribe in the U.S. recognized legal rights of the Klamath River.
The High Court in Bangladesh recognized legal rights of rivers.
The National Lawyers Guild amended its constitution to include the rights of ecosystems.
A New York assemblyman proposed a law to recognize the rights of Lake Erie.
The Youth Climate Strike included Rights of Nature (and respect for indigenous sovereignty) in their list of demands.
Rights of Nature bills were introduced in Australia and the Philippines.
In Colombia, the Plata River was recognized as a “subject of rights.”
Quietly, 2020 is shaping up to be another historic year.
Just ahead of the EPA announcement, for the first time in U.S. history, a community successfully pressured a state to enforce a local Rights of Nature law.
After seven years of community activism, the Pennsylvania Department of Environmental Protection (DEP) revoked a permit for a frack waste injection well in Grant Township, Pennsylvania. DEP officials cited Grant Township’s Home Rule Charter, which banned injection wells as a violation of the Rights of Nature, as grounds for their reversal.
“Grant Township’s Home Rule Charter bans the injection of oil and gas waste fluids,” the DEP wrote. “Therefore, the operation of the [waste injection] well as an oil and gas waste fluid injection well would violate that applicable law.”
Our colleague Chad Nicholson worked with Grant residents on the measure.
“This decision,” he said in a statement, “does not validate the actions of the DEP, but rather vindicates the resistance that communities like Grant have engaged in to force governmental agencies into doing the right thing.”
Time to Scale Up
We live in a moment when multiple and radically different futures are possible. Some believe the pandemic is a once-in-a-generation opportunity to remake society and build a more just and sustainable future. Meanwhile, authoritarians and corporations are taking advantage of the moment to concentrate power and secure their future profits.
In conjunction with new enforceable human rights to water, Rights of Nature is a “ready to go” peoples’ paradigm shift. It is time to scale it up — crucially — such that those rights nullify the property rights of corporations when there is a conflict.
We are talking about a course correction whereby the authority of human communities to govern the purpose and behavior of corporations is recognized and enforced. It means changing the very purpose of the law that binds us together. It means thinking about what is really “essential,” and driving that life-centered ethic into the law.
Communities across the country have already begun to rethink how human law treats the ecosystems our societies depend on. This new paradigm is long overdue.