Homogenizing Community, Homogenizing Nature: An Analysis of Conflicting Rights in the Rights of Nature Debate

In less than half a decade, the idea that nature possesses inalienable rights akin to human rights has gone from a strictly theoretical concept to the basis for policy changes in several countries and U.S. municipalities. This paper explores the tensions between community decisionmaking and the rights of nature by focusing on how the implementation of these theories has played out in Ecuador and how similar laws might function in the city of Spokane, Washington. On one hand, the laws assume that local communities will act in the best interest of society and the environment, without acknowledging the heterogeneous interests and power dynamics within communities and between nonlocals and a given community. On the other hand, the laws assume that nature’s needs are always compatible with community needs and that nature itself is a homogenous entity rather than a complex ecosystem of competing interests. Together, these bifurcated oversights represent the existential tension of rights discourse in which community, societal, and environmental needs come into conflict. This paper seeks to explore the tensions of current initiatives and inform alternative framings for future initiatives in Spokane and elsewhere. so c ia l s c ie n c e 7 rule that allowed environmental issues to be litigated...in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers, and where injury is the subject of public outrage” [iv]. Rights of nature advocates have wistfully held up Douglas’ dissenting opinion for multiple decades as a representation of what might be possible. However, only over the last four years have rights of nature moved from theory to practical recognition and enforcement. The 2008 Ecuadorian Constitution was a bold and exceptional affirmation of both nature’s inherent value and indigenous worldviews. It recognizes rights belonging to Pachamama (the Quechua world correlating to Mother Earth) including those to “integral respect for its existence,” “maintenance and regeneration,” and “restoration.” In addition, Article 73 states that “the State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.” Article 74 states that “persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living [life in harmony]” [v]. While these provisions are certainly significant, there are several important subtexts to the Ecuadorian case. First, the rights of Pachamama are surrounded by a laundry list of other rights, including those to “nutritional food, preferably produced locally,” “universal access to...communication technologies,” “the practice of sports and free time” “tax exemptions for elderly persons,” and the free “develop one’s personality” [vi]. The inclusion of such a wide spectrum of rights risks a complete inability to prioritize the enforcement of these rights, diminishing the urgency of the entire list. The fact that most of these rights are being violated in continual and significant ways suggests that the list is more of a national vision statement than a State obligation. Second, the new constitution is Ecuador’s twentieth since its independence in 1822. The rapid turnover rate suggests that each constitution is given relatively less significance and that the current version may not last past the current presidential term [vii]. Community Rights and Rights of Nature in Spokane, WA Emboldened by the recent constitutional changes in Ecuador, the movement in the U.S. to add rights of nature to city and town charters is growing. Spokane, Washington is an interesting case study as it has attempted to pass several different rights of nature proposals [viii]. As the result of a multi-year partnership between neighborhood advocates, labor union locals, and community activists, a group called Envision Spokane placed the first Community Bill of Rights (titled Proposition 4) on the 2009 municipal ballot. The initiative, though not quite as expansive as the Ecuadorian Constitution, had nine main provisions including the subordination of corporate rights to community rights, rights for nature, and enhanced rights to neighborhood decisionmaking. In respect to the rights of nature, the initiative included a fairly expansive definition of nature and its rights: Ecosystems, including but not limited to, all groundwater systems, surface water systems and aquifers, have the right to exist and flourish. River systems have the right to flow and have water quality necessary to provide habitat for native plants and animals, and to provide clean drinking water. Aquifers have the right to sustainable recharge, flow and water quality...Enforcement actions shall [include] restoration of a damaged ecosystem. [ix] The long list of rights without any clear plans for enforcement and the broad definition of ecosystem mirror the expansiveness of the Ecuadoran Constitution. Despite its lofty goals, or perhaps because of them, Proposition 4 was soundly defeated at the polls by over 75 percent of voters. Envision Spokane put forth their next attempt in November 2011. The 2011 Community Bill of Rights (Proposition 1), was much more focused than the previous version and included only four provisions: the right of neighborhoods to approve all development-related zoning changes, the right to healthy water systems, the subordination of corporate rights to community rights, and worker’s rights to constitutional protections in the workplace. The first three provisions are the most salient to the current discussion. In regards to environmental rights, the provision was significantly narrowed: “The Spokane River, its tributaries, and the Spokane Valley-Rathdrum Prairie Aquifer possess inalienable rights to exist and flourish, which shall include the right to sustainable recharge, flows sufficient to protect native fish habitat, and clean water.” The latest version of the bill, which will be most likely be on the 2013 ballot, has no significant changes, except for adding language that guarantees the right of Spokane residents to sustainably use water resources [x]. The limitation to particular water systems, the removal of the right to restoration, and the elimination of several provisions were probably factors in the relative success of Proposition 1 and explain why is being introduced with very few changes in 2013. This accomplishment is even more surprising given that Proposition 1 (as with Proposition 4) was supported by only two businesses in Spokane and that opponents of the initiative outspent the proponents by over 5 to 1 [xi,xii]. Even the campaign director for the initiative said that he was expecting to receive only 35 percent of the vote (Huschke K, personal interview, Nov 22, 2011). Although there are certainly many factors that may have affected the bill’s surprising success, the increasing support for the initiative indicates that the concepts of nature’s rights and community-based decision-making are gaining ground. However, as these ideas become more mainstream, it is important to look not only at the underlying objectives, but also at how these provisions play out in the real world. Not In [Nature’s] Back Yard: NINBYism as a cover for NIMBYism One of the most pressing practical conundrums in implementing rights of nature proposals is who should act as nature’s representative, given that nature cannot represent itself in the legal system. As rights of nature have gone from theory to practice [xiii], the trend in Ecuador and Spokane has been to grant standing to everyone, regardless of whether or not they suffered direct harm (the typical standard in a lawsuit), while naively assuming that the provisions will be used primarily by idealized communities that have nature’s best interest at heart [xiv]. However, open standing (actio popularis) is not as democratic or unequivocally good for an ecosystem’s best interests as it may seem. Because anyone, including foreigners, people unfamiliar with the local environment, and corporate interests can sue on behalf of nature under an open standing doctrine, there is the