Can Rivers Have Rights, Too?

| 10/31/2017 3:08:00 PM

Tags: river rights, Clean Water Act, Whanganui River, Atrato River, Gages River, Darlene May Lee,

 Amazon River by Yann Arthus Bertrand

My old apartment enjoyed a great view of the Hudson River, and when I walked along the river, I’d often see kayakers splashing around. I knew the river used to be polluted, but I didn’t realize that riverside factories dumped garbage and industrial waste into the Hudson for decades. The Environmental Protection Agency (EPA) declared a 200-mile stretch of the river as a Superfund site in 1983, one of the largest hazardous waste sites in the US. Thanks to dredging and removal of contaminated soil (funded by General Electric (GE) to the tune of $460 million), the Hudson River has recovered so much that a humpback whale was spotted in 2016 – the first whale to be seen in the Hudson River for 100 years.

But while in many ways a success story, the Hudson River also demonstrates the limits of environmental law. Another century of cleanup may be required to fully heal the river from decades of PCB contamination, and the US EPA has lagged in compelling GE to finish the job. The Hudson also suffers from new sources of pollution, especially storm water runoff. Our environmental laws, while promising “fishable and swimmable” rivers (Clean Water Act) and liability for hazardous waste substances (CERCLA), have proven slow to act and difficult to fully enforce.

Recognizing the shortcomings of these and other laws protecting our rivers, activists, judges and others across the world have turned to a new model: rights of nature – that is, granting rivers legal personhood rights. This evolution of the legal system recognizes that rivers are legal entities – no longer mere property – whose rights are enforceable in a court of law.

In 2017, the Whanganui River made headlines as the world’s first river to have legal rights, after a 140-year legal battle by a Maori tribe. The tribe has such a deep spiritual connection to the Whanganui that a local proverb states “I am the river and the river is me.”[1] The settlement also included a USD21 million fund to enhance the health and well being of the river.

Lest you think that’s an exceptional case, just five days later, a high court in India granted the Ganges River and its largest tributary the Yamuna River legal rights. The Atrato River followed suit in May 2017, also gaining legal rights recognition in the courts. The Indian court Justices noted that "the extraordinary situation has arisen since the rivers Ganga and the Yamuna are losing their very existence".[2]

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