Mari Margil: Giving Nature the Legal Rights it Deserves

Update: June 22, 2020

We learned today that the Lake Erie Bill of Rights legislation was overturned by a federal judge in February 2020. The city of Toledo appealed in March, but dropped the appeal in May. This article over at Civil Eats describes the history of the legislation and the hurdles it faced over the past few years. In lieu of legislation, it appears the H2Ohio program will attempt to incentivize conservation practices on farms.

Although the exciting legislation this Rootstock Radio podcast highlighted appears to be dead, we hope you will still consider tuning in. Mari shares a wealth of important information about water quality and conservation that remains important and valid today.

Today on Rootstock Radio, Mari Margil—of the International Center for the Rights of Nature out of the Community Environmental Legal Defense Fund—makes a case for nature’s legal rights.

At different times in our history, women, children, indigenous peoples, immigrants and others have been—and sometimes still are—denied legal rights, which was of course wrong. Mari says that the rights of our environment are no different. It’s only that Planet Earth can’t speak for itself.

Mari and her team at the Community Environmental Legal Defense Fund are committed to defending the rights of our environment under the law. Already they have assisted the first places in the world to secure Rights of Nature in law, including in Ecuador, where these rights are now written into the country’s constitution. Recently, the organization was instrumental in advocating for the rights of Lake Erie to be protected against agricultural pollution, which has also been polluting the water of Toledo, Ohio, residents. In February, Ohio voters passed the “Lake Erie Bill of Rights” law, a first-of-its-kind measure that could set a positive precedent for other Rights of Nature laws.

Tune in to hear about:

• How our environment can, and should, have a lawyer.
• The case for the legal rights of nature, both here in the U.S. and around the world.
• Why our current legal system is not able to protect nature adequately.
• The Lake Erie Bill of Rights: what it is and why it’s important.

Listen at the link below, on iTunes, Stitcher, Google Play, Spotify, or wherever you get your podcasts.

Transcript: Rootstock Radio Interview with Mari Margil

Air Date: June 3, 2019

Welcome to Rootstock Radio. Join us as host Theresa Marquez talks to leaders from the Good Food movement about food, farming, and our global future. Rootstock Radio—propagating a healthy planet. Now, here’s host Theresa Marquez.

THERESA MARQUEZ: Hello, and welcome to Rootstock Radio. I’m Theresa Marquez, and I’m here today with Mari Margil. Mari leads the International Center for the Rights of Nature of the Community Environmental Legal Defense Fund. Welcome, Mari.

MARI MARGIL: Thank you.

TM: Wow, when I first read the title, “Rights of Nature,” and a legal defense fund for the rights of nature—maybe you could start off by just saying a little bit about, what does it mean? How can nature have a lawyer?

MM: We used to ask the same questions about women and children and indigenous peoples and others who weren’t considered to have legal rights under the system of law at the time. And we’ve seen, over generations, throughout the history of the United States and of course in other countries, movements that have struggled to expand the body of legal rights—that is, who had protection under the law. And those have been contemporary movements that we still have going on today, and of course past movements such as for women’s rights and suffrage, in which people pushed back against systems of law that essentially treated people as something other. And that meant that women, for example, didn’t have legal protection under the law, they didn’t have legal rights under the law, and they had to struggle and fight for those.

Today we find ourselves in a position, as I’m sure your listeners are aware, there’s just cascading and overlapping environmental crises, you know, with climate change, with accelerating species extinction, with collapse of coral reefs and other kinds of ecosystems. And that’s causing people to question, how does the law treat nature itself? Meaning, we have so many environmental laws—why aren’t they protecting the environment, or why are they not seeming up to the job? And that’s really where much of our work began, with questioning how the existing system worked and why it didn’t seem to be able to protect nature in a way that we thought it needed to be protected.

And that really led to the development of this movement that we’re seeing growing globally, to recognize, to earn protections for nature, and particularly legal rights—legal rights being the highest level of legal protection we have under the law.

TM: Well, you know, it’s so interesting, we just finished celebrating Earth Week, or Earth Month, if we want to talk about it that way; I know it started out as Earth Day. And it really struck me that next year is the fiftieth anniversary of Earth Day. And wasn’t the Environmental Protection Agency started then, just with the notion of protecting the environment? I mean, it is called the EPA.

MM: Yes. In the United States we have the national, federal EPA, Environmental Protection Agency. In each of the states there’s an equivalent state agency, such as in Pennsylvania, the Department of Environmental Protection. And people in Pennsylvania will tell you that instead of the Department of Environmental Protection they tend to call it the Department of Everything Permitted, meaning that our environmental laws in Pennsylvania and other states allow and authorize things like fracking and drilling and blowing the tops off of mountains, corporate agriculture, and a whole wide range of other kinds of activities which harm the environment. And corporations are getting permitted, literally, to conduct these activities in our communities. And it works similarly at the federal level, of course, that we see industry going to the EPA and other federal agencies for permission, literally, to conduct certain activities which bring known harms to the natural environment and known harms to the public health.

And increasingly our partner communities and partner organizations in different communities and states across the United States are saying, wait a minute—that’s not what we think the Environmental Protection Agencies should be doing. They shouldn’t be authorizing and permitting industry to actually conduct environmental harm. That seems completely contrary to what the intention was. And so there’s a lot of questioning that’s going on about not only what are these “environmental” agencies for, but what are our environmental laws for? And when we look at that and we ask those sorts of questions, we start to peel back essentially the camouflage that covers these things, and we see that our environmental laws are actually regulating how we use the environment. That is, they regulate uses of the environment. They regulate and authorize fracking of the environment, they authorize the use of millions of gallons of freshwater at a frack well, and a wide range, of course, of other corporate and industrial activities.

The difficulty, of course, is that this use of the environment is leading us down to a path where using the environment, treating it as existing really solely for human use, the consequences of that are polluted air, polluted water, polluted soils. As I mentioned before, we’re seeing just an incredible cascade of environmental problems that are just coming down on us. And I think you know the one that’s getting the most focus now, I think, is climate change, and it’s as a result of all these kinds of industrial activities being legally authorized by the national Congress, by state legislatures and other governments, and permitting industries to conduct these wildly harmful activities.

TM: Well, you know, when we think about having a legal defense fund for the environment, and what the rights of nature are, I see community as a big, big word in that as well: Community Environmental Legal Defense. So it’s these things that happen to nature impact communities. And you mentioned Toledo. Ohio, which is a very agriculture-intensive state, it has huge corn, soy, and pork and poultry production. And yet Toledo actually, when you mentioned it earlier, had a very excellent fight—I’m not sure it’s over yet—and they passed something called the Lake Erie Bill of Rights. You were involved in that. That is, the Environmental Legal Defense Fund, the Rights of Nature, was involved in that, Mari?

MM: Yeah. So in February of this year, 2019, the people of the city of Toledo in Ohio, which sits on the banks of Lake Erie, they voted to pass a law called the Lake Erie Bill of Rights, which recognizes that the lake has certain rights such as the right to exist, the right to thrive, the right to naturally evolve, and that the lake and the people of Toledo have the authority to enforce and defend those rights. This is the first ecosystem in the United States to be recognized as having actual legal rights, enforceable rights, under the law. And there have been other places in the United States, other communities which have recognized the rights of nature on the whole. And that means that laws, such as in the city of Pittsburgh that has a law that we helped them to develop, that recognizes that nature across the city of Pittsburgh has rights.

The Lake Erie Bill of Rights recognizes specific rights of a particular ecosystem—that is, Lake Erie. And the people there were motivated by several forces. One, as you mentioned, corporate agriculture, which is causing these incredibly damaging algae blooms in Lake Erie, which several years ago cut off the drinking water for the people of Toledo, which is, as you can imagine, not having drinking water is incredibly frightening but also incredibly damaging.

TM: So their drinking water comes from Lake Erie.

MM: Yes, their drinking water comes from Lake Erie and they couldn’t use it. And we still consider, of course, see these algae blooms continuing—I mean, they talk about having algae bloom season. Much like in the West of the United States, we now have fire season in the summertime, now they have algae bloom season in Toledo, when they know that algae blooms are going to be caused. And it’s all this runoff from these corporate agriculture that is in large part responsible for it. And they didn’t see their state EPA or the federal EPA or industry taking any meaningful steps to stop it, to restore the lake, as well as stop this kind of pollution that causes this harm.

And so the people looked at existing environmental laws, existing environmental agencies, and said, we’re not finding any help here. It’s time that we need to do something ourselves, and we need to break away from this conventional use of the environment to something else in which we actually recognize that the lake itself, nature itself, needs to have a certain level of protection—that is, legal rights—that it currently doesn’t. And making this real transformation in our relationship with the natural world is really what it’s been born from. And it’s been birthing into really a global movement to transform how nature is treated under legal systems around the world, such that it’s recognized as having legal rights of its own.

(10:41)

TM: Well, you know, when you think about the lake and saying this lake has rights, but clearly it’s so deeply connected to the impact of the people who live near that lake as well.

MM: Yes, you’re absolutely right. And the Lake Erie Bill of Rights, like a law, recognizes not only that the lake has certain rights as a lake ecosystem, but the people also have a right to a healthy environment, clean, pure water. So it’s those two things are really married together within the laws, both the human right to a healthy environment as well as the right of the environment itself.

TM: You know, thinking in terms of the UN dire release of “twelve years and things are irreversible” was chilling. And so we still, though, have this pitting, you might say, or there’s the environment and the health of nature, the rights of nature, the rights of communities to be part of that nature in a harmonious way, and then we have this flip side: “Well, what about the corn growers or the pork producers? What will they do for a living? And you’re ruining their career.”

And you see that kind of juxtaposition of it’s either one or the other. How do you all both answer it and/or work with that kind of them/us, pitting one against the other, situation?

MM: It’s incredible how powerful this fear is that industry tries to paint these really just hellscape ideas about what’s going to happen if we actually protect the environment. And what they’re doing is they’re acknowledging that their industrial activities are harming the environment and that they’re using the law to protect them. And that people in places like Toledo and elsewhere in the States and around the world are saying enough is enough. We have the technological capacity and ability to move toward a sustainable agricultural industry, to move to a sustainable energy industry. I mean, we see states like the State of Washington legislature now is passing legislation about moving to a completely renewable energy system over the next fifteen, twenty years.

So the capacity, the ability is there. It’s industry which has been and continues to resist that kind of change because they want to keep things as they are. They want to maintain their profit levels as they are, they want to be able to…they want to be in control of what our energy policy looks like, what our agriculture policy looks like. And people are beginning to say no, we reject that; that we as people should be able to make these decisions, and our decision is we need to move toward sustainability, we need to move toward true environmental protection.

And it’s not like this is a luxury. It’s impossible to live in a place if you don’t have pure, clean drinking water. It’s impossible. It’s impossible to have jobs if there isn’t clean drinking water. People can’t live in a place, can’t work in a place, if you don’t have that. And Toledo didn’t have it because of industrial activity. And we see within the conversations that the people of Toledo have had, they have not seen meaningful action on behalf of their elected leaders, on behalf of industry, to actually make the shift that is necessary. It’s not a luxury—it’s absolutely necessary. And if industry wants to be able to [unclear 14:15] somewhere, that means that they have a responsibility to make sure that they’re not harming the environment there, because otherwise people can’t live there and people can’t have jobs there. And that’s the reality.

And so people are saying, we have been living under these fear-based tactics of corporate America, multinational corporations telling us there won’t be jobs, we won’t have the ability to sustain ourselves if we try to protect the environment. And it’s a false narrative. The moment you hear that, it’s a red flag for industry not wanting to give anybody else the ability to decide what happens. And the people of Toledo rejected that; people in other communities are rejecting that. And increasingly, fortunately, we’re beginning to see shifts in how the law treats nature, the kind of decision-making that people are being given in places like Toledo in which they’re able to actually make the key decisions that directly affect their lives, rather than at corporate headquarters thousands of miles away.

So it’s this real shift that involves not only recognizing that nature itself has rights, so transforming how we treat nature under the law, but also shifting who gets to make decisions like this. So it’s both a democratic and environmental rights movement that’s really under way.

(15:51)

TM: If you’re joining us, you’re listening to Rootstock Radio, and I’m Theresa Marquez. And I’m here today with Mari Margil, who leads the International Center for the Rights of Nature of the Community Environmental Legal Defense Fund. We’ve been talking about the rights of nature and about the Lake Erie Bill of Rights.

Well, you know, and I think I just read today about different states passing laws that actually trump environmental laws. Do you see them all over, in your international work as well as your work here in the U.S.?

MM: What we have seen is essentially an increasingly blatant effort by industry, whether it’s big ag, big energy, big otherwise, to control how their industries are regulated under the law. And as part of that, they have a very concerted effort to prevent communities, to prevent activists, from doing anything that may interfere with their ability to conduct their industrial operations as they see fit.

So you have communities, such as in Colorado, you have communities that have passed laws prohibiting or putting a moratorium on fracking. Colorado has just been invaded by the fracking industry for oil and gas, and it brings significant harm to the environment, to water, to public health. And so you see communities resisting that, to try to protect themselves from fracking. And as a response, the State of Colorado sued its own communities to overturn their protections against fracking. So you have the situation in which industry is going into state legislatures as well as into the federal U.S. Congress to pass laws which would preempt lower levels of government from being able to interfere as they did with their industry.

So at the state level you see laws, such as in Colorado, in Texas, in Pennsylvania, in other places, in which the energy industry has gone to the state legislature to pass this preemption law which preempts communities from doing anything that they think would interfere with their ability to expand fracking or expand gas pipelines or otherwise. In places like Oregon, and with big ag, as you mentioned, there were efforts by communities to protect themselves from things like GMOs, and as a result you saw big ag go into the Oregon legislature and have the legislature pass a law preempting communities in Oregon from being able to do anything on GMO seeds, such as ban GMO seeds. The Oregon legislature stripped away the right of communities from being able to do anything on GMOs. And that was on the behalf and at the behest of big ag.

And we see this in all other kinds of industries in which industry is using the law to prevent communities, prevent people from deciding what is farming going to look like in our community? What is our energy system going to look like in our community? They’re stripping that power away from people through these preemption laws, not only at the state level but at the federal level as well. And it’s a very, very powerful tool that corporations are able to use to force their way of the world into communities.

TM: Well, you know, as you speak, and I was trying to think of Ecuador in South America, where it just seems that a whole country came together and tried to give constitutional rights to ecosystems. But I’m just wondering, in Ecuador, that was challenged, I’m sure, in the courts, but it was upheld. So they don’t have those kinds of preemption laws, do you think, in Ecuador, in Bolivia, and in other places that might be working with this idea of the rights of nature.

MM: Well, as you can imagine, there are significant forces at work trying to prevent this move to a harmonious relationship with the natural world. So in places like Ecuador, for example, where they have constitutionalized the rights of nature, you had a national presidential administration under President Correa, who was in office at the time that the new constitution was put into place, and he did not embrace the rights of nature in the constitution. And so he essentially tried to thwart it by prohibiting, for example, national implementing legislation going into place. And so, as a result of that, people in Ecuador essentially stepped into the void, stepped in where government failed to do so. And so they’ve, stepping into that void meant going into court to enforce the rights of nature on behalf of certain ecosystems.

And what we have seen over the past ten or so years since the constitution has been in place is increasing numbers of court cases in which courts in the country, at the highest level on down to the lowest, affirming that nature has constitutional rights, that the rights of nature need to be considered when we’re looking at different activities that might impact nature. And you’ve seen cases such as the first case, the Vilcabamba River case, in which the court found that certain government activities were interfering with the natural capacity, the natural flow of the river, and that certain steps needed to be taken to restore the river and to prevent that activity from occurring in the first place.

And so we’re starting to see the “rights of nature” constitutional provisions being able to be used to protect nature in the way that it was intended. So there’s beginning to be a shift. As I’m sure your listeners know, this kind of change, this transformational change, takes real time, and you need to have the people demanding not only that the change be put into law but that it actually be exercised and enforced once it is a law.

(22:38)

TM: Well, I want to make sure that our listeners know that they can get a lot more information on the Community Environmental Legal Defense Fund and the Rights of Nature at CELDF.org, the Community Environmental Legal Defense Fund. I’m just struck with this idea that this feels like an assault on our democracy. Here we have to fight for the laws of nature or for protecting nature or for protecting our drinking water against people with a tremendous amount of power who seem to get their way so fast. Is this a democratic issue?

MM: At its heart it’s a democratic issue. That is absolutely right. We teach something called Democracy Schools, these weekend trainings with communities and elected officials and others, in which we examine how it is we got to this place where we don’t have the authority to make really key decisions in our own communities, that it seems that we have this myth that we live in the greatest democracy in the world, that is the United States—you know, we have this mythology about what kind of country that we are, and that we have to debunk that; that the U.S. Constitution, for example, is a really quite undemocratic document, that the founders were not real fans of democracy. And our communities today in the United States, and in other places around the world as well, are finding that they don’t have the authority and the ability to make the kind of critical decisions to protect nature. And so this is very much about a democracy movement and an environmental rights, rights of nature movement. Those two things really go hand in hand, because the people who today have the ability to make decisions about nature are making decisions to harm and damage nature. Their interest is making profit, not in protecting the natural world.

TM: I find it so sad that you mentioned fear. You have farmers saying, “Don’t take our tools away; what are you going to do about our jobs?” and things like that, and it seems like we have this divide-and-conquer kind of manipulation going on. I’m also so interested in how we talk to the agricultural community, because they’re having the same problems of polluted water, and actually, here in the Midwest, worse. The cancer is out of control, reproductive problems and so on. Are there strategies that you’re working with other partners or communities on how we can reach out or build bridges to people in the agricultural world to see that maybe we all have the same problems?

MM: Yeah, this idea that we all have the same problems, I think, is really important and something that we talk about in Democracy Schools, meaning that we have a tendency to break ourselves apart by issue. So people facing big ag or people facing fracking or people facing other things, that we have a tendency to think of these as separate and distinct problems. But in fact they’re really the same, meaning that at our state and our federal levels, they treat ag and energy and other things all the same. All they’re doing is passing “environmental” laws that authorize the uses of nature in order to further industrial corporate activities. So the law legalizes factory farms, it legalizes GMOs, it legalizes sludging of farm fields, it legalizes fracking. And all of these laws work the same way to deny people in their communities the ability to say no to them—and, importantly, to be able to say yes to sustainable agriculture, yes to sustainable energy, yes to sustainable jobs that are not dependent on polluting the very water and air that we need to drink and to live.

And so this idea that communities are now, through this building democratic community rights movement—you know, we’ve worked with over two hundred communities across the United States to pass these community rights laws in which people in communities are starting to essentially assert their own right, their own democratic right to decide what happens, because people are saying, we can’t live under these kinds of laws that are legalizing harm to nature and harm to people. That’s not sustainable. We can’t live in our communities if we don’t have clean water to drink. And it doesn’t matter if it’s industrial agriculture or industrial energy production, fossil fuel development, and so on. The law treats all those things the same way and treats communities and nature the same way under them, preventing us from being able to protect the places that we live.

And that’s where people are saying the shift needs to happen. It’s not just we need to regulate factory farming better. It’s we need to move beyond this idea that we need to have industrial food and agriculture in order to eat, but also we need to move beyond this idea that we have to live unsustainably in order to feed ourselves. We need to transition to a sustainable kind of living, whether it’s food and energy and otherwise. And our legal system needs to shift to make sure that that happens. So we’re moving beyond trying to regulate really harmful activities a little bit better, to saying we need to move past those activities and move towards sustainable energy, sustainable water, sustainable food, and so on.

TM: Excellent, Mari. Well said, and thank you so much. Listeners, CELDF.org. And also, Mari Margil has co-authored a couple of books also that I have a feeling will be very revealing: The Bottom Line or Public Health, and Exploring Wild Law: The Philosophy of Earth Jurisprudence. And once again, thank you so much for the good work that you’re doing.

MM: Thank you, Theresa.

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