Discover the transformative idea of granting natural entities--including water--legal personhood as we sit down with Professor James Salzman, a leading voice in environmental law. This episode takes you beyond traditional environmental regulation, where nature typically plays a supporting role to human interests, and into the realm of the rights of nature movement. Listen in as we discuss the emergence of this groundbreaking concept and its implications on environmental law and policy, including how it diverges from the well-known animal rights movement.
Wade through the legal intricacies of water law with us as we reflect on the monumental Mono Lake case and its impact on the public trust doctrine. Professor Salzman guides us through the judicial waters where the State of California's duty to protect its natural ecosystems hints at a shift toward recognizing nature's rights. This conversation navigates the complexities of water rights, the role of the prior appropriation doctrine, and the balance between human and environmental needs, raising essential questions about the future of water policy and environmental governance.
Environmental Justice has evolved from its nascent stages to a cornerstone of environmental protection, and in this episode, we examine its intersection with the rights of nature movement. We delve into the potential for this movement to reshape our legal landscape, the roles played by activist groups, and the anticipated pushback against stricter environmental regulations. Join us as Professor Salzman shares his insights on the strategic push to integrate environmental values into new legal frameworks, inspiring a reflection on how the rights of nature movement may shape the future of water.
#water #WaterForesight #strategicforesight #foresight #futures @Aqualaurus
Discover the transformative idea of granting natural entities--including water--legal personhood as we sit down with Professor James Salzman, a leading voice in environmental law. This episode takes you beyond traditional environmental regulation, where nature typically plays a supporting role to human interests, and into the realm of the rights of nature movement. Listen in as we discuss the emergence of this groundbreaking concept and its implications on environmental law and policy, including how it diverges from the well-known animal rights movement.
Wade through the legal intricacies of water law with us as we reflect on the monumental Mono Lake case and its impact on the public trust doctrine. Professor Salzman guides us through the judicial waters where the State of California's duty to protect its natural ecosystems hints at a shift toward recognizing nature's rights. This conversation navigates the complexities of water rights, the role of the prior appropriation doctrine, and the balance between human and environmental needs, raising essential questions about the future of water policy and environmental governance.
Environmental Justice has evolved from its nascent stages to a cornerstone of environmental protection, and in this episode, we examine its intersection with the rights of nature movement. We delve into the potential for this movement to reshape our legal landscape, the roles played by activist groups, and the anticipated pushback against stricter environmental regulations. Join us as Professor Salzman shares his insights on the strategic push to integrate environmental values into new legal frameworks, inspiring a reflection on how the rights of nature movement may shape the future of water.
#water #WaterForesight #strategicforesight #foresight #futures @Aqualaurus
Aqualars. This is the Water Foresight podcast powered by the Aqualars group, where we anticipate, frame and shape the future of water through strategic foresight. Today's guest is Professor James Salisman, who is the Donald Brenn Distinguished Professor of Environmental Law, with joint appointments at the Brenn School and UCLA Law School. He's authored over 12 books and more than 100 articles, ranging from environmental law to other environmental topics of interest. He's also the author of the book Drinking Water A History. Professor Salisman, welcome to the Water Foresight podcast.
Speaker 2:Thank you for having me.
Speaker 1:I am fascinated about some of these articles that address this issue or notion of rights of nature. What does this mean? What is rights of nature all about? Is it a new law? Is it a paradigm, a movement or something else?
Speaker 2:Yes, so it's the new new thing and it means different things to different people in different places, I think the best way to frame it so when you were growing up, you had some Dr Seuss right? Yes, do you ever read the Lorax?
Speaker 1:Yes.
Speaker 2:The Lorax. Basically, for those of you who had deprived childhoods, the Lorax is a Dr Seuss story about essentially this kind of thing, a Seussian creation that seems to live inside trees. It's called the Lorax and he's trying to protect his forest and the wildlife in the forest and the waters and such. He says, I'm the Lorax, I speak for the trees. That, in essence, can be what rights of nature is about. The idea more technically, is the notion of giving legal personhood to natural things Interesting. Yes, so we're used to. If someone rear-ends your car, you're going to sue. Right, you have legal personhood. There's no question about that. We'll talk a bit later. I think about companies, but if I defame a company or I steal something from a company, they may sue me. They have legal personhood. It starts getting a little more difficult once you move away from that in terms of who can get their day in court and what kind of laws are protecting them.
Speaker 2:The thing that I find most interesting about rights of nature is that it is, in some respects, it's a very old idea, but it's been getting an enormous amount of attention. It's been getting attention for a remarkable series of failures. There's never yet been a successful rights of nature lawsuit in the US. There's never been yet successful rights of nature legislation in the US and yet there are articles about it in the New Yorker New York Times. A lot of folks are talking about it. It's a different story overseas, which we'll talk about a bit later. I think it's an emerging thing. It's the most accurate way to describe an article probably get into what are the different parts of it, but it definitely is on the rise.
Speaker 1:That's interesting, maybe your example of being in a car accident. Would my vehicle, my damaged vehicle, have rights? Yes, now there's not just a personal injury lawyer to represent me for my injuries, we have a car lawyer who now sues the other car owner and says I represent the vehicle.
Speaker 2:Well, something to say in that regard, because there's a parallel movement that's been happening in the law that people oftentimes conflate with rights of nature, and they're quite different. That's animal rights. For example, you may have heard about Happy the Elephant. Jill LePore wrote a popular article about that in the Atlantic a few years ago. This was an elephant and a habeas petition was filed on behalf of the elephant. We have animal cruelty laws that prohibit humans from acting in cruel ways. We're animals but we don't yet have the right for animals themselves to sue. But there are a lot of lawyers who are trying to change that. That's different. That's basically. That's not a right of nature, that is more an individual. In animal rights. They're saying this particular donkey, this particular horse, this particular elephant has a legal right.
Speaker 1:Yes, one of the things that I wanted to ask you is, for those of us that have been in the environmental world or practiced environmental law, it seems to be somehow connected thematically perhaps with, say, clean Water Act or the Safe Drinking Water Act or NEPA or the Endangered Species Act, or maybe there's some common law provisions, the Public Trust Doctrine, or this person who's a natural resource trustee over at a superfund site, or even citizen suits. How do these notions that we might learn in law school, in environmental law class? How do they compare to this rights of nature discussion?
Speaker 2:They're pretty different. Let's take the Clean Water Act or NEPA. The goal of those laws is not protection of nature as an end in itself. Nepa is basically designed intentionally to give decision makers more information about the impacts of their decisions on the environment. It'd be good to know if there are more or less impactful actions you can take. Clean Water Act, as you know, the basic threshold is harms to human health. It's the same thing with the Clean Air Act. There are secondary standards that are more concerned about the environment, but that's not what's animating these laws.
Speaker 2:Even the Endangered Species Act is not really a rights of nature law. In other words, the Endangered Species Act does not protect so-called pests that eat agricultural commodities. There are limits to what we protect there, as well as we protect some things and not others in some communities and not others. I think that the key thing in all of those laws is with perhaps the exception of the Endangered Species Act we can talk about that more, but they're basically anthropocentric. They're basically what's in it for Homo sapiens? Rights of nature reverses that and says what's in it for this natural body, natural, whatever. I've got rights too, I can protect myself. Common law really is nothing that addresses this. The closest probably would be Nusent's law undertoward. But Nusent's law focuses on what you might call negative impacts. Your activities are interfering with the use and enjoyment of my property.
Speaker 1:Yes, You've taken my cow. You've hurt my cow, trespassed to my animals, if you will.
Speaker 2:Yes, so there's trespass. There's conversion pollution would be sometimes trespassed, more often Nusent's, which basically is I can't use my property the way I want to.
Speaker 1:All these laws, it's the government, human beings saying we're going to make up the rules until you snail-darter what your rights are.
Speaker 2:That's right, I'll protect you. It's a process. We decided which species get certain rights, which species don't. Even for the species that are listed, there's an exemption procedure. This is called God Squad, where basically a high-level group can say yeah, yeah, the Endangered Species Act actually is not going to apply in this particular circumstance, or with the border wall the border wall basically. There was legislation passed that exempted all environmental laws from slowing up the border wall construction.
Speaker 1:Well, you alluded to this earlier, but does the notion of rights of nature exist within the United States? I think you said no, but what about other?
Speaker 2:countries. Let me go back a second and talk about within the United States, because it's sort of there, sort of isn't. I think the history, I think, is pretty interesting. So the story in the US basically starts with 1972 or three, I forget the exact year in a law review article by Chris Stone, who was a professor at University of Southern California, usc, and he was actually a corporate law person and a legal philosopher, and so he wrote this article called Should Trees have Standing, which for those of you who are lawyers know that it's a lame pun, because in order to get into court you need to have what's called legal standing, you have to show actual injury case or controversy, those types of things. And the origin of the article was a lawsuit that had been brought against Disney. They wanted to develop a ski resort and an area called Mineral Ten, and the case was going up to the Supreme Court. And so Stone got this idea about a kind of rights of nature notion. He didn't call it rights of nature, but that was the basic idea and so the forward for the Law Review article.
Speaker 2:The Law Review volume was being written by Justice William Douglas, who was a very progressive, pro-environmental member of the Supreme Court. So Stone thought that Douglas might actually read the introduction because he was gonna have to write. He was gonna have to write something about the the piece, and so Stone got it out quickly and his argument was basically this which is, if you look at the sort of history, the Anglo, the Anglo-American history of rights, what you see is a trend which is where legal rights are granted successively more broadly and more broadly. So Magna Carta right extends the rights from the king to the nobles. Declaration of Independence extends rights to white property owning males right. The abolition right extends rights to former slaves, emancipation right. Basically, you know, give them the right to vote, etc. Etc.
Speaker 2:And he's saying, look, you know, we see this expansion of legal rights and it's time to think about extending legal rights to natural things as well, like mountains, like forests, like rivers. Now the obvious sort of rebuttal to that is to say, yeah, but all the examples you use are people right, and all these examples. You know different groups of people got more rights. But you know, a forest is not a person. Stone was a smart guy, you know the corporate lawyer, and said, yeah, but we have no problem giving legal rights to corporations and they are about as nonhuman as one can imagine. And so if we're perfectly fine with this legal fiction for a corporation representing itself in a court of law, in corporations, of many more rights now than they did when Stone was writing, why can't we go ahead and give rights to a mountain or to a river? And you know that was the sort of sort of rhetorical twist that he used to really have people say, huh, you know, maybe there's, maybe there's something to that.
Speaker 2:Now, a lot of this, of course, turns to the question of, well, who speaks for the trees and how we're going to figure that out. So that's by way of background. I think it might be useful for the, for the listeners, and so you know you asked where have we got rights of nature in the US today? And I think there's sort of three places to look. In terms of the law, the best example we have is something called the public trust doctrine, and I know this is a water, a water podcast, so I assume your listeners may be familiar with that. So I don't know how much you want me to describe sort of the origins of that and how it plays out, or not. So I need some guidance here. Sure, go ahead.
Speaker 2:Okay, so public trust doctrine is this idea that goes way back to Roman times and probably earlier, and the the Justinian, the Justinian code goes, you know, back to Roman times basically said that there's some things that are held in common to all the rivers, the streams, shores. That's not a quote, but that's basically the idea. And so there was this notion, really back in Roman times and earlier, that there's something special about shorelines that we need to think differently about. And so this evolves into sort of English law and something that was the public trust doctrine and it comes across to the to the United States, and it becomes a big deal in an 1880s case called the Illinois Central Railroad case, supreme Court case. And what happened in that case is that the Illinois legislature which was as corrupt then as it allegedly has been in recent years they basically sold or approved the sale of the city of Chicago's waterfront, the Illinois Central Railroad, and it was called the Lakefront Steel at the time. So the city refused to receive the money, obviously as a corrupt transaction. The legislature changes, changes parties, and the little legislature basically tries to countermand, to revoke, rescind the contract. In Illinois Central says what are you talking about? You know you're breaching the contract. Now we at least want to remedy.
Speaker 2:It goes up to the Supreme Court and what's interesting is the Supreme Court doesn't say the contract is void because of corruption or this or that. What they say was it was never a valid contract because the state of Illinois never had the authority to sell the land in the first place. How could that be? It can be because the court says, essentially there is this trust obligation, the fiduciary obligation of the government to the people to ensure that there is shoreline access. Why shoreline access? Well, you know, this was a period where it wasn't sunbathing and surfing. This is because a lot of commerce happened to the shoreline right Movement of goods, fishing, shell fishing, piers, all of that. And the idea, basically, is that this is an obligation, it's a trust obligation. You can't simply sell it. Could they have sold the land with a lease, maybe? Could they have sold part of the land, maybe? But you can't give up entirely this trust obligation. So Illinois Central is kind of the most famous example of this at the Supreme Court level. So how does this tie into rights of nature?
Speaker 2:Well, over time, and particularly in the 60s and 70s and then in the 80s, there are a number of cases in states the public trust doctrine really doesn't exist anymore at the federal level. It's a state level doctrine where basically the breadth of the trust responsibility is extended to wetlands in some cases, and it's a very famous case that happens with Mono Lake, which is this amazing lake on the eastern side of the Sierra Nevada, it's basically just on the eastern side of Yosemite, and it's a sort of saline lake. In these two-foot towers it's very you can imagine a Star Trek episode being filmed, in fact probably the worst Star Trek episodes that were filmed there. It's a very otherworldly kind of place. The city of Los Angeles, which essentially is a giant sponge sitting in the southwest United States, had water rights to a lot of the streams that fed Mono Lake and the state water board gave them a permit to divert the water to Los Angeles, a bit of a kind of Chinatown Echo of Chinatown.
Speaker 2:And the state water resources control board was sued basically by friends of Mono Lake, by people, and the argument was they gave a lot of arguments but the argument that the court settled on was that the public trust obligation of the state of California extends to the ecology of Mono Lake. Right, so think about that for a moment, right? So basically, mono Lake's not suing, but what the court is saying is state of California, you have a non-delegable, you can't abdicate this. You have an obligation to protect the ecosystem, and the big concern was that there's a huge amount of bird nesting that takes place and there are these islands that are protected from predators. But because the water level was dropping, the islands are becoming penicillus and there's some of the changes in the ecology as well.
Speaker 2:So essentially, the court says you know, to the Water Resources Control Board, you need to craft a remedy here, a solution that both gives water to Los Angeles but also protects the ecosystem. So it's not called rights of nature, but it's about as close as you can get. Where the court is saying that the state government has an obligation not to harm certain ecosystems. Now, I should say this was an extraordinarily controversial decision. Right, because essentially what it's saying is that the courts, right, the third branch, they are going to decide what are the obligations of the government when it's not written out anywhere. Right? Some states have a public trust doctrine, the state constitutions, others don't, and so in many respects, the Mono Lake decision, so to speak, is the high watermark of public trust doctrine. It's been extended in a few other states, but not to the extent that you see in the Mono Lake decision.
Speaker 1:A lot of people would say well, mono Lake, no pun intended, the high watermark, right, but what or who is next right? The Salton Sea, you know, lake Tahoe, that may be a bad example, but it could be if it's getting polluted right, yeah, yeah.
Speaker 2:So because the public trust doctrine is so open-ended and because judges are not supposed to be political, many judges are really gun-shy about about entertaining public trust doctrine arguments. Now there has been you know, I know this is a podcast about water there's been a lot of action to try to extend the public trust doctrine to the atmosphere and basically say climate stability is an obligation of the state as well. Those cases have been unsuccessful to date but there's been a lot of litigation for that.
Speaker 1:Interesting. It seems that the Mono Lake example you gave really connects this notion of rights of nature to water and through probably the permitting, if you will, lens, but possibly also enforcement. I don't know if you would maybe think about how this could intersect with water rights which you know some of our listeners are east of the Mississippi and some are west and some are international, but imagine rights of nature impacting the whole discussion over the lower Colorado River, where you know where could that go?
Speaker 2:Yeah, so this actually is a very common feature of water loss. So I taught at Duke until 2015 and I'm an Easterner and I moved out west to teach the University of California and there's a verb that I had never heard of before. I taught drinking water on the east but really was a focus more on drinking water and such and Clean Water Act and there's a verb called to dewater to dewater a stream and I was thinking what does dewater mean? And dewater literally means dewatering a stream, and the prior appropriation doctrine in some states, the classic version, is intended to dewater streams.
Speaker 2:The goal is to put as much water as possible to beneficial use, and so one of the huge questions that's been in the center of water rights and water law more generally west of the Mississippi for many years is well, what about in stream flows? What about the flow for the fish, for the muscles, for the environment? And there are different ways to get at that, and I would say it's one of the most dynamic and possibly overlooked parts of water law. So you know some states of what's called the public interest standard. My review of the cases is that's more observed in the breach than in the practice, but strictly speaking, there should be a minimal flow in the public interest that goes to the stream. But of course then the argument well, who's the public?
Speaker 1:Right, how much should we leave in the stream? How much?
Speaker 2:And how much we leave in the streams, and when there's a drought, are you really going to protect the fish against the farmers? This is part of the climate story that's been going on for a very long time, and so part of it turns on how broadly you want to think of a rights of nature idea.
Speaker 1:Well, there are plenty of smart lawyers out there that are going to make some of these arguments into the future, and hence the reason for this discussion with you to think about these opportunities to change what we think today. The law will be on the rights of nature, and what does it mean for the executive director of a not-for-profit, what does it mean for a drinking water utility or wastewater utility, or even a legislator or someone running water policy for a governor? Are we thinking we're going to have to play defense or do we want to go on offense? But as you kind of look at these cases, law review articles, how does and maybe I should frame it this way what are the features of this rights of nature paradigm, if you will? There are different features.
Speaker 1:We just talked what's the extent of it and who gets to decide. There's still this anthropocentric component to it. A tree never asked me how or told me how it wanted to be protected, right. Or a stream never came to me and said gurgling, I would like this type of treatment. And then are these offensive rights defensive rights and who gets to choose? Who represents the stream right? Those are just some general questions. We can go through them as you see fit.
Speaker 2:Yeah, I mean. So. There have been a lot of law review articles written talking about just what a terrible litigation strategy the rights of nature would be in practice, and you pointed out a few of the issues, right. So, obviously, who speaks for the trees? How do we know what the trees really want? What's the appropriate remedy right? What kind of natural species, population, ecosystem, habitat, who gets these rights right? There are all kinds of huge, huge questions, and so I actually I think it's a mistake to focus narrowly on rights of nature solely as a litigation strategy.
Speaker 2:There's never been a successful rights of nature lawsuit in the US. I have my doubt. Framed as rights of nature, I have my doubts there will be one in the next 10 to 20 years. Now, as I said, there are rights of nature light, yeah. So, for instance, I think the monolake decision could be framed as a rights of nature decision. You have to protect the ecosystem. Well, that's pretty close to that, but again, those aren't that frequent. There are, though. So that's sort of rights of nature. And again, I'm focusing on the US. Once you look abroad, especially in Latin America, there actually are quite a few examples New Zealand as well we can talk about if you'd like, but focusing solely in the US, you're not going to find rights of nature lawsuits that are successful. I think that's going to continue Doesn't mean they're not important, though, so let me tell you a story.
Speaker 2:So Toledo, ohio, right Big city on the banks of Lake Erie, and they just faced terrible, terrible problems over 10, 15 years with pollution flowing into Lake Erie, particularly where they are, and they had these dead zones. They had huge algal blooms. Cyanobacteria got into drinking water in 2014. They couldn't use drinking water for three days because of toxics from the cyanobacteria that got into the drinking water. It was awful, and the city government and the state government just wasn't getting the job done. And so there is a ballot initiative and a lot of litigation Can you put on the ballot? Can't you put on the ballot?
Speaker 2:Eventually, there's a ballot initiative that is put on the ballot that's very, very short and essentially says should we give Lake Erie legal rights? And it became known as the Leigh Board, the Lake Erie Bill of Rights. When you read the law that resulted from the ballot initiative, it's clearly unconstitutional. I mean, my law students in the first week would know it's unconstitutional. For one thing, the law says that it cannot be preempted by state, federal constitutional law and that, actually, that plays our legal system exactly upside down right. It's the local laws that are most vulnerable and they say, well, not us, right.
Speaker 2:And so this is what I think of as sort of performative rights of nature right. They know that this is not going to hold up in court. So why are they doing this? And the reason they're doing it is that this is part of rights of nature as a campaign, as a political vehicle, and what happens is that the state creates a program called H2O, hio which, as I understand it, focuses on wetlands and such, trying to sort of use the ecosystem service as water purification, water purification basically to prevent a lot of the nutrients from getting into Lake Erie. The idea is the rights of nature law and the rights of nature litigation. The folks who are playing the inside games. They know that's not going to succeed, but it's very effective at raising the public profile and, frankly, humiliating, embarrassing the political actors and sort of basically pushing them to do something.
Speaker 1:Yeah, that is interesting. I can think of some other stories where that played out in society. I'll save them for later. But Do you find it troubling that we have to find people to decide what the rights are of nature? And then how do we battle? If we are successful establishing rights of nature, who is the individual or the firm that gets to represent the piece of nature, the water, the tree, the swamp? Is that a battle in and of itself in the future? You've got the Chamber of Commerce rushing to beat World Wildlife Federation to figure out who gets to represent the interests of the lake. I'm just trying to figure out how that would work in the future.
Speaker 2:Yeah, so who's Lorax? It's a basement story what you're asking. Yeah, that's an obvious problem. I'm less concerned about that.
Speaker 2:I think more of the rights of nature approaches are most useful in that regard as thinking about well, how do we think more generally about governance of resources. So think just for a moment. So if you had a bunch of folks sitting around a table who were deciding how to manage the Colorado River, for example, the discussion would be different if the river was sitting at the table. Yeah, so in other words, we think about sort of resource management as satisfying different stakeholders' interests, and there's no interest that is truly identified. It's truly the same as the natural body itself. Environmental groups may come close, but they're complicated beings as well and they've got their own internal incentives and such, and obviously not all NGOs speak with the same voice. And so I think of the rights of nature example you gave more broadly as a governance question. All right, so how do we change our governance decisions so that there's a greater focus on what that particular natural resource needs, if that's even a way to put it. In the past, how have we done that? Well, as you talked about, with the Superfund sites and more generally, rain pollution, oil pollution. We have these natural resource trustees. Their role, I think, is more sort of liability. They're supposed to collect the money and then figure out how to spend it, to try to restore and get back to where we were. Is that a right of nature, maybe? Maybe it's basically trying to place the resource back to where it was. It's almost a contract remedy Right. Place it where it would have been, but for the harm.
Speaker 2:Some Native American tribes are trying to move more toward co-governance. There's a lot of interest in the Department of Interior with that at the moment, the big push, particularly around the Grand Canyon. For that Do they speak for the river, maybe more than other groups, but they're a political body themselves. They've got their own concerns, their own interests, and so, when you look at the way we govern these things now, there really is no voice specifically for nature.
Speaker 2:So then, the question you're raising, which I think is a key one, is well, who could that be? Who could basically represent the voice? And what I like to think of is not only that, but what about future generations? We've been talking about this sort of issue for a very long time now, really since 1992, and the rise of sort of sustainable development, as we think about management and we say we shouldn't manage our activities today to sacrifice the interests of future generations, well, who speaks for that Right? I think it's a very similar problem. We don't say that the idea is intellectually bankrupt because it's hard to figure out who gets to do that, but it's a practical challenge. But I think there's been a lot of thought about that and people, I think, pretty much accept that it's reasonable to think about the interests of future generations.
Speaker 1:Where there's been less success.
Speaker 2:I think, is where the question you're asking as well who speaks for the future generations?
Speaker 1:Yeah, and another nuance may be. I'm a farmer with a private lake on my property and I'm gonna sound like Vrpanos here but is it hydraulically connected to some other interstate water body? And so can someone take a position to represent the rights of my private pond?
Speaker 2:And now what do I do? Yeah, you can play out a whole. You can be a law professor, you can do a whole parade of horribles on this. But my view is I take a step back. I mean, no one seriously thinks that the rights of nature is going to supplant our regulatory system. I think it's actually the reverse. I think there's interest in the rights of nature because there's frustration with our current regulatory system and the feeling is we haven't done well enough protecting Lake Erie, right from unification, addressing climate change slowing down and then loss.
Speaker 1:It's a philosophical red herring that's used to drag our existing institutions more toward the position that these people want to see.
Speaker 2:I think red herring is a bit strong.
Speaker 1:So the quickest thing I could come up.
Speaker 2:Yeah, there's something to that in the sense that I think that the people who are really pushing this litigation they say that they think these are going to succeed. I think, deep down, if you were to give them truth serum, I think they might be a little more cautious, but they've got to. Basically, they've got to run campaigns and they've got to get people excited. So I understand where that's coming from, but I think the way to think about it is to think about it as part of a much larger strategy, and the larger strategy would be, for example, the current politics and the current laws and regulations are not protecting Lake Erie nutrients. It's just not. So what do we do? Well, let's try a different strategy. Let's go rights of nature and what do you know? People are really excited about that. Very, very similar thing happened in Spain with an estuary called Mar Menor, m-e-n-o-r. Very similar strategy that was successful in a similar way. It's more recent, but I think it's going to have a similar impact.
Speaker 1:It's kind of like filing a lawsuit and asking for all this money and compensatory and punitive damages, knowing that, well, maybe not get punitive damages, but you're sending a signal, maybe you'll get better numbers on the compensatory damages.
Speaker 2:Yes, and it's the kind of lawsuit that gets people excited.
Speaker 1:Yeah, oh, this is new. We want to try this in our state.
Speaker 2:Yeah, I mean rights in nature has a certain resonance, yeah, but the problem is that once you sort of do what you've started to do, which is say, okay, let's take this very seriously and accept it on its own terms, you immediately get a lot of practical problems.
Speaker 1:Yeah.
Speaker 2:Right. You know, how far does this extend? Is it fundamentally undemocratic? I mean, there are a lot of issues that come up once you really, if you take it to its logical extreme, which is why it's not going to go to its logical extreme.
Speaker 1:Yeah Well, what you know, let's do the fun parade of harbors. I mean what you know. First, the future of rights of nature in 20 years. I think you've said your position putting a stake in the ground. Look, I don't think it's going to really go anywhere. I think it is a. It's a tool, a vehicle to encourage people to strengthen existing environmental policies, not supplant them, if you will. But what happens, if you know, you and I are in the old folks home, as I like to say, in 20 years, and we pick up the paper and lo and behold, there's a decision by some federal district court or state Supreme Court, mm-hmm, you know, some sort of transformation scenario. What does that look like?
Speaker 2:Yeah. So I want to be clear because this is being recorded. I don't think it's going nowhere. I think that the right to date it hasn't gone anywhere. I wouldn't be surprised to see occasional lawsuits that get somewhere.
Speaker 2:Yeah, so, for example, in Montana, the health case you know that was a right to a healthy environment. So it's not quite the same. That's more sort of human, human based. But you can, you know, argue there's a rights of nature aspect to that. We could see some more public trust doctrines. We could see some more in stream flow cases. So I do think I wouldn't be surprised at all to see cases over the next 20 years that are the equivalent of a form of rights of nature.
Speaker 2:I think the notion that natural bodies themselves will get legal personhood, I think that's you know. I think that's more than more than 20 years off. But you know where. I do think you may see a lot of action where rights of nature is recognized as rights of nature is in governance right, governance of resources. I could definitely see that happening and I think, to a certain extent, you know, when you're talking about co-governance with the Indian tribes, that's starting to move, I think, in that direction, in the sense that it's moving away from this solely sort of top down expert agency. We're going to tell you the way this is going to be.
Speaker 1:Yeah, I do see the what's the phrase we need to. You know, listen to the indigenous knowledge that many of these nations have not. Just, as you put it, you know, top down, where the technocrats, let's get out our rulers and tape measures and tell you what it is. I see that opening, I see that signal of change. It remains to be seen where it will go. But and you make a good point, because every state's different in their constitutions, in their statutory provisions.
Speaker 1:And I can remember, you know, let's go back 30, 40 years to this paradigm of environmental justice. Looking at, you know, title VI of the 1964 Civil Rights Act, who would have thought that the kind of the coalescing of civil rights and environmental protection would take us to where we are today, where we have some states that have laws in the books. Or, you know, we have executive orders by the federal government and just you know, people back then said, oh, this is just another fad. But here we are today with some meaningful outcomes that maybe people weren't paying attention to. And, as I think you said, maybe it's 20 years, maybe it's beyond 20 years that we see aspects of this rights of nature coming to fruition.
Speaker 2:Yeah, I mean, I think that's a very apt analogy. I remember back in, you know, 1990, 1991, I didn't think that EJ was going to sort of stick and, as you said, you know it basically now I think it's fair to say it's a dominant paradigm of modern environmental protection and you know, 30 years isn't that long, and so I guess you know where I see this. I mean, I think of environmental protection like this more generally, which is oftentimes you will have the groups like the Greenpeace, of the Sierra Club, who are, you know, calling for big change, much more than the political systems willing to give. But they've got a gravitational force and you know they can. You know, if they get popular enough, they can sort of pull the center toward them. And I think I can easily see rights of nature playing a similar kind of role.
Speaker 2:And it's when we think about these sort of pollution regimes, governance regimes, are we really thinking about what this is doing to this particular body of water, for example, differently than we used to? Yeah, right, we remember that. I mean our laws that are applying to these cases. They were passed mostly in the 70s, right, and we live in a very different world. And so a lot of times when I teach environmental law or natural resources law, I tell my students we're essentially trying to serve soup with a fork right. The 21st century issues we're trying to manage we're using 20th century tools and they weren't designed for that. Climate change is the most obvious example. The Clean Air Act was not written with climate change in mind, and so you know it's our go ahead.
Speaker 1:No, I'm sure that I think it's the preamble to the Federal Water Pollution Control Act that says everything's going to be fishable swimmable by 1982. Is that?
Speaker 2:right. Ten years later, 83.
Speaker 1:Ten years later, and you know no, no, no.
Speaker 2:Rutkelshaus said famously at least they're no longer flammable.
Speaker 1:He has his stands on the Cuyahoga River. But you know, I mean, it just makes me think about when people say, well, that'll never happen. Sometimes things do happen, maybe not in the way that we intended, but this is fun to think about. What about the other scenario where, instead of it maybe taking off it and you alluded to this earlier but people are they feel like this is being jammed on their throat. And boy, these crazy environmental people? You know they're just regulating my bathroom now and my yard and you know there's a backlash. Could you see that kind of scenario occurring in the next 20 years?
Speaker 2:Oh yeah, easily. I mean if there is a successful rights of nature lawsuit, and we've seen it happen with public trust doctrine right. So after the monolake decision a number of Western states changed their state constitutions to say there is no public trust doctrine in our state.
Speaker 1:Wow.
Speaker 2:Also for sure, yeah, yeah.
Speaker 1:And I mean I could see a future where and I'm a bit biased as a recovering environmental enforcer where you have a state or federal government agency in an enforcement context and encourage or have an agreed order with a company or with even a municipality where they, as part of the agreement, engage some of the precepts of rights of nature on a kind of a you know I'll call it voluntary basis and it becomes a maybe a surreptitious way to begin to explore how this might work in the real world.
Speaker 2:I mean maybe I mean we've sort of had that before with supplementary environmental projects, and so I mean, to a certain extent, I don't think rights of nature is revolutionary and that we can find aspects of it throughout environmental law. It's just rights of nature. Just, you know, ow in your face says forget about public trust auction, forget about natural resource trustees, you know, forget about these other things that get us close. I'm a river and I want, you know, a seat, whatever that means, at the table.
Speaker 1:Yeah, but does it go too far? When people think well, it says even forget about humans.
Speaker 2:Of course that's you know, that's where you start the parade of horribles, right? So you know what extent I mean. Environmental law ultimately is about balancing, is about tradeoffs. Yeah Right, we actually don't want a pollution. Free environment, all right, we actually want, we want pollution, we want economic development, we want jobs, right? The question is, what's the right balance, right? What's the level? The level of pollution is enough pollution is good pollution, so to speak. How much pollution is a bad pollution?
Speaker 1:Right, yeah, I remember there's a quote, I think, by former governor Wallace. He smelled the pollution and said you know, that's the smell of progress, or something like that.
Speaker 2:Yeah, All the way up old right.
Speaker 1:He said a stump was our measure of progress, oh yeah Well, my final question is this seems to be anchored in values, and do you have any thoughts on how our values as individuals may shape the positions we take on the rights of nature going forward? Do you think that society's values, worldviews, are changing their behavior, the way they value certain things over others? You think that's a trend that's going to accelerate or dampen this idea of rights of nature?
Speaker 2:I think you put your finger on the fundamental issue Right Rights of nature. In my view, rights of nature approaches are popular because of a frustration with the inadequacy of our current environmental protection regimes, because the values of stronger environmental protection are not being realized. And so the folks who are pushing rights of nature are strategic right. They're opportunistic, and rights of nature may be a way to get at where they would like environmental law to go, either because environmental law should be enforced and it's not being forced adequately, or there's a gap in what our laws can do with water rights and dewatering and such, and the rights of nature is a way to get us there. And, as with all these things, what ultimately drives our laws and regulations is values right.
Speaker 2:It's ultimately a question of political will. How much are we willing to give up in order to get environmental protection there? Ultimately is a trade-off and those things change over time. Yeah, and there's no question. With my students I've been teaching since the mid-90s. My students are much more. There's always been a lot of interest in the environment. I would say my students today are much more aware and focused on the scale of the environmental challenges than they have in the past.
Speaker 1:Wow. Well, professor Salisman, I want to thank you for being a guest today on the Water Foresight podcast. Tell our listeners where they can contact you if they have any questions, and don't forget to tell them about the book you wrote on drinking water.
Speaker 2:I will. So I'm a professor both at UCLA, but look me up at the University of California, santa Barbara Brent School of the Environment that's where I live, although I also teach at UCLA, and so you can just find me on the faculty page. I wrote a book called Drinking Water A History, which is a popular book about the history of drinking water. If you like salt, if you like cod, if you like books that basically tell the history of the world to the prism of a commodity, that's the book for you. I also wrote a popular book called Mine Exclamation Point how the Hidden Rules of Ownership Control Our Lives, which has a fair amount in it about water. Very similar kind of take on the different ways we own things and how that determines who gets what and why.
Speaker 1:Wonderful. I'm looking at my book of drinking water right now on my bookshelf. It's wonderful. I enjoyed it.
Speaker 2:I hope, I hope well-thumbed.
Speaker 1:I encourage everyone to pick up a copy. It is very accessible, very well-written, thank you. Thank you for listening to the Water Foresight podcast powered by the Aqualars Group. For more information, please visit us at Aqualarscom or follow us on LinkedIn and Twitter.