Where Nature’s Rights Go Wrong
UVA Law Faculty Affiliations
There is an increasing push by environmentalists, scholars, and some politicians in favor of environmental rights stated in very general terms, sometimes referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights of nature into the Ecuadorian constitution in 2008. However, there are reasons to be skeptical that general environmental rights will have the kinds of transformative effects that are anticipated by their most enthusiastic proponents. From a conceptual perspective, a number of difficulties arise when rights (or other forms of legal or moral consideration) are extended to non-human biological aggregates, such as species or ecosystems. There are two very general strategies for conceiving of the interests of such aggregates: a “bottom-up” model that grounds interest in specific aggregates (such as particular species or ecosystems), and then attempts to compare various effects on those specific aggregates; and a “top-down” model that grounds interests in the entire “biotic community.” Either approach faces serious challenges. Nature’s rights have also proven difficult to implement in practice. Courts in Ecuador, the country with the most experience litigating these rights, have had a difficult time using the construct of nature’s rights in a non-arbitrary fashion. The shortcomings of nature’s rights, however, do not mean that constitutional reform cannot be used to promote environmental goals. Recent work in comparative constitutional law indicates that organizational rights have a greater likelihood of achieving meaningful results than even quite concrete substantive rights. Protection for the role of environmental groups within civil society may, then, serve as the most effective way for constitutional reform to vindicate the interests that motivate the nature’s rights movement.