Thursday, 28 September 2017

Legal personality for the environment: be careful what you wish for

Good news!

My PhD has been passed, and I am now officially Dr O'Donnell!

The full thesis is available for download, and the short version is: 
In 2010, the Victorian government created the Victorian Environmental Water Holder (VEWH) to be ‘the single voice’ for environmental water rights in Victoria. The VEWH is one of many ‘environmental water managers’ (EWMs) operating around the world. EWMs use a variety of legal forms to establish legal personhood to participate in water markets to acquire and manage water for the aquatic environment. The creation and operation of EWMs raises the question: what happens when the environment is constructed in law as a legal person? I use the example of the EWMs in Australia and the USA to develop a new conceptual framework to understand how the environment is constructed in law, and how the multiple constructions can interact in unintended ways. In particular, I find that there is an apparent paradox in the creation and operation of the EWMs: they are a regulatory tool intended to increase the legibility of the environment to law, and increase the rights and powers of the environment in law, but in doing so, they reframe the environment as a mere participant in a market, which can weaken the cultural narratives that support environmental protection.

The even shorter version: be careful what you wish for. Granting legal personality to the environment is a powerful legal tool, but it fundamentally reshapes the relationship between humanity and nature. Whilst giving nature the power to stick up for itself, and to fight back against pollution and degradation, can be important and useful, it can also leave people feeling that now they don't have to look after the environment. Even worse, because the environment is now a competitor for access to resources, people start to wonder whether they have recourse against the environment when things go wrong.

One of the most common responses to my articles documenting the legal rights for rivers that have emerged in 2017 has been: great, so can we sue the river when it floods our land?

In fact, one of the reasons that the State Government of Uttarakhand appealed the High Court ruling that granted legal rights to the Ganges and Yamuna Rivers in India is that they were concerned that they, as guardians for the river, would be held liable for the actions of the river. They were worried that people would sue them when the rivers flood in future.

Legal rights for nature advocates have long thought that placing nature on a level footing with people in the eyes of the law would transform our understanding of nature, changing it from a resource to be exploited, into a partner and equal. Turns out, this may have been a bit optimistic. 

But all is not lost. I think the solution to this challenge is to keep talking about why environmental protection matters, and why it matters to all of us. We don't have to let legal rights undermine our willingness to protect nature, but as environmental advocates, or policy-makers, or new organisations who speak for the environment, we do need to actively keep building trust and support throughout the community.

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