Can Trees (and other parts of Nature) Sue?

It was my great privilege to be sworn in as a member of the bar by United States Supreme Court Justice William O. Douglas in 1974. Justice Douglas was a larger than life personality. Appointed to the Court by FDR, he was the longest serving Supreme Court justice in history (1939 - 1975). He was a strong advocate for individual and environmental rights. He was from Washington state, and an avid outdoors man; a peripatetic. He was married four times. As a young liberal lawyer, he was a hero of mine. One of his most famous opinions is his passionate dissent in Sierra Club v. Morton (1972), where he argued that nature should be entitled to sue for injury. Given the various posts and comments regarding Earth Day, it is worth reading some of his dissent.

The Sierra Club was formed and acted to protect and conserve the national resources of the Sierra Nevada Mountains. It sued the U. S. Forest Service to block development of a ski resort by the Disney company. The District Court held that the purpose of the Sierra Club made it "sufficiently aggrieved" to have "standing" to sue on behalf of Mineral King (the area to be developed). The Supreme Court, however, rejected the lawsuit on the basis that the Sierra Club lacked “standing.” To have standing under the Constitution, a party must allege a specific injury to a legal interest it has in order to maintain the suit.

In his famous dissent, Justice Douglas argued that trees should have standing. Douglas advocated for a federal rule that would allow for litigation “in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.”

“Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes…. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents, and which are threatened with destruction.”

Inanimate objects still do not have standing, but environmental litigation proceeds if they have a co-plaintiff with a legitimate legal interest.

Week's postings:

On 4/19, posted comment to discussion question

On 4/19, posted comment on Phil’s post on Battered Bastards

On 4/19, posted comment to Jamil post on A. Finn

On 4/19, posted comment to discussion question

On 4/22, posted Science + Religion on blog

On 4/22, posted as a comment to Science + Religion

On 4/22, posted Can Trees Sue? on blog

On 4/22, posted reply to Earth Day comments