Tuesday, March 20 , 2018, 12:50 pm | Mostly Cloudy 63º


Wayne Mellinger: Fracking and the Rights of Nature

Our present environmental legal framework is grounded in traditional legal concepts of property rights and responsibilities and is ill-suited for the global ecological collapse we are facing.

Despite the rhetoric of “sustainable development,” we continue to think about the environment as just another resource for human consumption. Nature's value rests primarily on what “we” can use “it” for. Even our language reinforces the perceived great divide between the environment, on the one hand, and humans on the other.

Our anthropocentrism would not matter if our planet was not suffering so severely — environmental degradation, climate change and species extinction accelerate beyond our wildest fears.

Elsewhere I have briefly explored the “community rights” approach to banning fracking in Santa Barbara County. Through this approach, a local community passes an ordinance asserting its right to not have “hydraulic fracturing” in its jurisdiction.

The community rights approach is an act of civil disobedience in which a locale boldly negates the state's preemptive right to legalize this heavily polluting form of oil and gas extraction; 120 communities across the United States have already done this.

Passing a law recognizing the rights of nature is another tool that the citizens of Santa Barbara County have that could protect our environment from these invasive threats. Such a law could keep fracking out of our communities.

This pursuit of the rights of nature has sometimes been called “Earth Jurisprudence,” and it pushes us to develop a new philosophy of legal thinking so that we might use law to protect the environment.

The Earth and her life systems have inherent rights. These are not mere legal protections granted by humans to our personal possessions — these are bold declarations of the integral worth of the whole Earth community.

Western legal systems have emerged with a worldview that legitimizes the unrestrained exploitation of our planet with the premise that humans rule supreme. We as a species often wrongly claim omnipotence and often think we can do as we wish with the planet.

In his pioneering treatise Wild Law (2003), Cormac Cullinan, a practicing environmental lawyer in South Africa, calls for a complete revision of legal and governance systems so that they are consistent with the rights of the Earth. The natural world is thus seen as having an inherent right to exist to fulfill its role in the vast web of existence.

The universe itself can be seen as the primary source of law because it is the great environment in which all activity occurs. In the natural world, the intimate connection between all things determines the orderly patterns upon which all these elements depend and from which they are formed. To be valid human laws should be constructed to correspond with these natural laws so as to make mutually enhancing relationships.

The relationship between humans and our natural worlds has been grossly disturbed. Our existing legal systems have not prevented nor lessened the loss of biodiversity, pollution, deforestation, climate change and other forms of planetary degradation. Instead, the Earth is treated as a “resource” and valued only as such.

Earth Jurisprudence seeks to re-examine the legal relationship between humans and their natural environment, recognizing that our planet is an organism that sustains all forms of life. If the reciprocal character of the human/nature relationship is recognized, our well-being can be enhanced.

Nature deserves to be valued for its own inherent worth, not just because it has value for human beings.

Traditionally, people whose lives are rooted in nature can treat nature with deep respect and reverence, living their lives without permanently damaging the natural world. Many indigenous people still live in these ways. They do not think in terms of nature having “rights.” Because the natural reciprocal relationship has been destroyed in modern societies the need to think in terms of “rights” has emerged.

The rights-based approach seeks to repair the rift between modern humans and nature.

Earth Jurisprudence is a sharp break with the norms of modern legal thought. For the bulk of modern environmental law, nature exists to be exploited for human needs, but may need to be protected when ecological ruin threatens human interests or survival.

By contrast, Earth Jurisprudence begins with the assertion that nature is inviolable and proceeds to consider when it is acceptable to depart from that principle.

Promoting the rights of the Earth is a way to give legal recognition to the inherent worth of the natural world by recognizing what is already there.

Oceans have rights to be oceans. Bees have rights to be bees. And humans have rights to be human. Earth Jurisprudence also defines the responsibilities of human beings toward nature and seeks to restrain human action to re-establish and maintain a healthy reciprocal relationship.

Our social world, including its structures of law, has been created with a colonial mindset that places humans above and apart from nature. Because the law is an essential way in which we express and implement our values, it is important to stop treating nature as mere human property to be owned and destroyed as we wish.

In 2008, Ecuador became the first nation to constitutionally enshrine the rights of nature. Across the globe, other communities are working to envision a future for ourselves no longer based on the exploitation of nature. The Global Alliance for the Rights of Nature is a leading organization in these struggles, as is Global Exchange, and I invite you to explore their web pages and give generously!

On April 9, the Santa Monica City Council voted 7-0 to adopt California’s first Bill of Rights for Sustainability, directing the city to “recognize the rights of people, natural communities and ecosystems to exist, regenerate and flourish."

If Santa Barbara passed such an ordinance, it would empower both the city and its residents to bring suit on behalf of local ecosystems. It could stop property owners from being able to destroy the ecosystems that exist upon their properties. Of course, wise development would still be allowed, but development that destroys ecosystems would be stopped.

— Wayne Mellinger, Ph.D., is a social justice activist living in Santa Barbara and social worker for the homeless. He is on the board of Clergy and Laity United for Economic Justice (CLUE).

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