Should Trees Have Standing?

reviewed by Deborah A. Sivas

"I speak for the trees, for the trees have no tongues."
-The Lorax by Dr. Suess

The publication of Christopher D. Stone's new essay collection, Should Trees Have Standing?, could not be more timely. Expanding on his 1972 law review article of the same name, Stone wanders far and wide in the collection but ultimately returns to the question of whether nature itself should have enforceable legal rights. Stone, a law professor at the University of Southern California, readily acknowledges that this intriguing idea raises difficult practical, legal, ethical, and philosophical questions, and he spends some time trying to craft concrete answers to them. Those answers do not wholly satisfy, but one thing is certain: The Deepwater Horizon oil spill disaster in the Gulf of Mexico graphically illustrates why these issues are as relevant today as they were 35 years ago.

The new collection opens with a reprint of Stone's original essay, which feels somewhat dated after more than three decades of intervening Supreme Court jurisprudence on standing but nevertheless serves as a reminder of where the law stood - or didn't stand - at the dawn of the modern environmental movement. Back then, nascent conservation groups were casting about for ways to establish judicial standing under new statutes such as the National Environmental Policy Act and the Clean Water Act. Stone's provocatively titled article suggested one approach: Let nature sue on its own behalf. But as the book's more recent chapters explain, courts ultimately proved unsympathetic to the concept that birds and fish and turtles, let alone mountains and rivers and forests, have legal rights. But early concerns about access to the courts have been largely ameliorated by the evolution of liberal environmental standing precedent - over Justice Antonin Scalia's continuing objections - that allows humans to sue for injury to their aesthetic and recreational interests in particular animals or places.

Still, Stone's overarching point remains salient. He devotes several chapters to the most pressing environmental issues today: global warming, dying oceans, and unsustainable agriculture. Though these broad-ranging discussions are chock full of interesting and disturbing facts, they seem at first blush somewhat out of place. However, Stone eventually weaves these pieces into his main theme when he argues that environmental groups and courts cannot adequately remedy such vast "tragedies of the (global) commons" under current standing jurisprudence.

As was true of his original essay, Stone ultimately raises more questions in this collection than he answers. But in the face of, at best, mixed judicial reaction to novel "rights of nature" arguments, he attempts to put some more meat on the bones of the concept. Several of the newer essays call for the creation of natural resource guardians or trustees, financed by environmental trust funds, to advocate for the rights of nature and the rights of future generations, somewhat like guardians ad litem.

The idea of an environmental trust fund is hardly a new one, of course. BP, for instance, agreed in June to establish a $20 billion claims fund for Gulf disaster relief and restoration, to be administered by an independent trustee. But a guardian who actually speaks for the trees - or in the case of the Gulf, for the turtles and jellyfish and zooplankton - is a more ethically fraught notion. Who is the beneficiary or client? How does the guardian know what is best for a species or, especially when there are conflicts between species, for an entire ecosystem? How does nature's lawyer decide what strategies to pursue when the client cannot speak for itself? And how do the rights of future generations factor into these decisions?

To his credit, Stone does not shy away from these morally and legally troublesome issues. He confronts them head-on, often at length, and even takes his best stab at resolving some of them. Although this book does not provide all the answers (nor could it), it does give the reader plenty to ponder.

Deborah A. Sivas is an environmental law professor at Stanford Law School and director of the Stanford Environmental Law Clinic.

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