New publication: Science and the legal rights of nature

Yaffa Epstein et al., Science and the legal rights of nature. Science 380, eadf4155 (2023). DOI:10.1126/science.adf4155

BACKGROUND

Over the past 15 years, legal rights for nature have gone from a fanciful idea to legal fact in a growing number of countries. To date, these laws have had the greatest legal impact in the Global South, where Indigenous activism, political conflicts, and lack of effective environmental laws have provided opportunity and incentive for legal experimentation, but they have also been enacted at the local level in North America. In late 2022, Spain enacted the first rights-of-nature law in Europe, establishing the legal personhood of the Mar Menor lagoon.
Rights-of-nature laws have reached a critical point at which they may either be normalized or marginalized. They have captured the public imagination, leading to growing advocacy for, and enactment of, these laws. Some of these laws have succeeded in protecting the environment, often with the aid of engagement from scientists who have helped to interpret and implement them. Others have failed, often not because of the concept that nature can have rights but due to lack of clarity—scientific or otherwise—about how the law should be applied. The engagement of scientists with these laws as they are enacted, implemented, and enforced has been a key factor in judges’ ability to apply them.

ADVANCES

Rights-of-nature laws have been enacted in Ecuador, Bolivia, New Zealand, Uganda, Panama, Spain, and US and Canadian localities, among others. Courts in other jurisdictions including Colombia, Bangladesh, and India have also recognized rights of nature based on legal principles within those jurisdictions. These laws and court decisions necessarily reference scientific concepts in defining new right-holding entities and new rights for these entities. While some of these laws are so new that they have yet to be applied by courts, there have been dozens of court decisions in the past 5 years interpreting rights of nature laws. Ecuador is a prominent example: Judicial application of nature’s constitutional rights has resulted in court decisions delineating rights for species, ecosystems, waterways, and even individual animals. Scientific concepts pertaining to rights of nature laws analyzed by courts include life cycles, evolutionary processes, ecological flows, and species, among many others. The level of judicial engagement with natural science in making these analyses has varied. While the Ecuador Constitutional Court has actively worked to involve natural scientists in its legal decision-making about the rights of natural entities, US courts have thus far declined to engage with scientific aspects of rights-of-nature laws, holding in one case that a natural entity’s rights to “exist, flourish, and naturally evolve” were unconstitutionally vague. Spain’s Mar Menor legal personhood law is being challenged in the Spanish Constitutional Court on similar grounds.

OUTLOOK

When courts have difficulty interpreting scientific concepts used in law, the law’s ability to reach legislative goals is hindered. We identify areas where future research is needed. Because legal decision-makers alone may not have the expertise to understand what nature’s legal rights entail, interdisciplinary research is urgently needed if these laws are to be meaningful. Legal and natural scientists should examine legal-scientific concepts such as the right to evolutionary processes in particular legal contexts, to clarify what type of scientific input is needed to protect this right for different types of natural entities. By contributing to interdisciplinary analyses of rights-of-nature laws before disputes arise, scientists can help contribute to the effectiveness of these laws. The availability of credible scholarly analysis of legal-scientific terms used in law would make these rights more tangible and accessible to the judges whose role it is to apply them. Although scientific uncertainty often cannot be eliminated, it’s reduction in turn reduces legal uncertainty and thus helps meet the objection that rights-of-nature laws are too vague to be applied. Another type of interdisciplinary scholarship that would assist the functioning of rights-of-nature laws would be the examination of the duties of nature. Although some rights-of-nature laws grant rights for nature without corresponding duties, others equate nature to a legal person with both rights and duties. Uncertainty over liabilities and duties of nature has been an impediment to implementing some rights-of-nature laws. Scientists can help legal systems comprehend nature’s potential legal obligations (e.g., “ecosystem services”), and what environmental protection measures may also be legally required to ensure natural entities can continue to fulfill these obligations.