Standing in the environment: new fashion grassroots and old fashion court advocacy in the time of Trump

Abstract

Justice Douglas called for judicial standing for the land, wildlife, and aesthetic vistas in the US environment independent of human or organizational actors (Sierra Club 1972, 741–751). In the 48 years since the Douglas dissent, the federal institutions have failed to expand any legal standing to elements of nature. Any environmental protection has been based on current property law theory of nature as the property of humans, to be managed or used. A nascent “Rights of Nature” movement proposes a new way of considering the environment based not on human values and concerns but viewing nature endowed with independent rights and legal standing. Advocates for this Earth Jurisprudence policy image have used local venues of direct democracy, town councils, and citizen ballot initiatives to protect local environmental treasures. The countermobilization of powerful interests at the state level has blocked the Rights of Nature movement. Existing court strategies under current jurisprudence continue to be necessary to offer some hope for protecting pro-environmental gains against negative actions in the executive. The paper proposes a model for predicting the possibilities of success by the Rights of Nature movement in local attempts to protect natural resources. Finally, the paper calls for Congressional and Constitutional actions to protect the right of nature to speak for herself.