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]
Soon, the Colombia Constitutional Court followed suit, recognizing the rights of the Atrato River, which suffers from pollution associated with illegal gold mining. As noted by the court:
“(I)t is the human populations that are interdependent of the natural world – and not the opposite – and that they must assume the consequences of their actions and omissions with the nature. It is a question of understanding this new sociopolitical reality with the aim of achieving a respectful transformation with the natural world and its environment, as has happened before with civil and political rights…Now is the time to begin taking the first steps to effectively protect the planet and its resources before it is too late…”[3]
Earth Law Center (ELC) is now working to secure rights for other rivers worldwide. As a first step, ELC’s Directing Attorney, Grant Wilson, drafted a Universal Declaration of River Rights, which recognizes the following for all rivers:
1.The right to flow;[4]
2.The right to perform essential functions within its ecosystem;[5]
3. The right to be free from pollution;
4.The right to feed and be fed by sustainable aquifers;
5.The right to native biodiversity; and
6.The right to restoration.
Additionally, to put theory into practice, ELC now partners with several local organizations – including Cuatro Al Cubo and its member organizations, Organi – K, and others – to secure fundamental rights for rivers in Mexico. These waterways include:
The Magadalena River in Mexico City; The Atoyac River in Puebla and Tlaxcala;The San Pedro Mezquital in Durango, Zacatecas and Zarate.
This campaign aims to be the first to achieve fundamental legal rights for waterways in North America, setting a powerful precedent for other rivers. ELC will also work to secure one or more legal guardians for these rivers to ensure full enforcement of their rights.
Interested in joining the movement to recognize the rights of rivers?
If you want to learn how you can campaign for legal rights for a local river or else support an existing “river rights” campaign, contact Earth Law Center at info@earthlaw.org. Or visit us at www.earthlawcenter.org to find which of our other latest initiatives most engages you. Also consider donating at www.earthlawcenter.org/donate/.
[4] Flows must, at minimum, be sufficient to maintain the ecosystem health of the entire river system. In addition, rivers – not people – own the water that flows within them.
[5] These include flooding, moving and depositing sediment, recharging groundwater, providing adequate habitat for native flora and fauna, and other essential functions.
Darlene May Lee is Executive Director of Earth Law Center, which works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. She works to build a force of advocates for nature’s rights at the local, state, national, and international levels. Connect with Earth Law Center on Twitter, Facebook, and Link
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