Should Trees Have Standing?

Julio Torres, Intern

At the very end of Dr. Seuss’ The Lorax, after the forest has been destroyed and the pond has been drained, a boy is given a seed that will potentially bring renewal to the now tree-less land.

The story was published in 1971. A year later, Christopher D. Stone, J. Thomas McCarthy Trustee Chair in Law at the University of Southern California, published Should Trees Have Standing?, a work that very much speaks for the trees.

His book became a cornerstone of the environmental debate, but since this is an ongoing struggle without quick remedies, this real life Lorax has updated his book, now with a 21st urgency and mindset.  Stone makes a case for the voiceless trees, oceans, wildlife and environment, arguing they should have legal rights.

The following excerpt discusses the case of an 80s oceanic catastrophe in Germany, and how in the long run, advocating for the environment paid off. In his chapter conclusion, he argues that an institution like the Global Commons Trust Fund is best fitted to get results for cases like these.

As Dr. Seuss wrote, “UNLESS someone like you cares an awful lot, nothing is going to get better. It’s not.” Words to keep in mind as you read the excerpt below.

A case in Germany invoked the guardianship concept in a case with global implications. In 1988, approximately 15,000 dead seals mysteriously washed up on the beaches of the North and Baltic Seas. Widespread alarms were sounded, amid considerable concern that the massive deaths were portent of an impending ecological disaster. The most flagrant insult to the North Sea’s chemistry was widely considered to be titanium and other heavy metals that were being produced by incineration and dumping on the high seas by permit of the Western German government.

Conceivably, any of the states bordering the sea might have tried to challenge Germany’s action. But recall that, so long as the harm was being done on, or affecting life only in, the high seas, the authority of any nation to sue was (and is) doubtful. For Poland, say, to trace through a legally compensable injury would have been nearly hopeless. From the point of view of national fishing interests, the reduction—even elimination—of the seals might even have been regarded as an economic benefit. (The harbor seals involved, unlike fur seals, are themselves commercially valueless but compete with fishermen for commercial fish stocks.) Moreover, all the sea-bordering nations were contributing to the pollution, and thus, had any of them objected their case might have been met by Germany with an “unclean hands” defense: “you can’t complain, because you’re as guilty as we are.”

Who, then, was to speak for the seals—and, in so doing, represent all the elements of the ecological web whose hazarded fortunes were intertwined? In comparable situations in the United States, courts have shown willingness to interpret the Administrative Procedure Act and other laws as giving a public interest group standing to challenge the government’s actions. German law, however, is much more stringent about allowing “citizen’s suits.”

The solution was for a group of German environmental lawyers (with the encouragement and advice of the author) to institute an action in which the North Sea seals were named the lawsuit’s principal plaintiffs, with the lawyers appearing essentially as guardians, speaking for them. And what better plaintiffs? No one could accuse the seals, surely, of unclean hands (or flippers). And the injury to them did not appear as problematical as—it was one step less removed from—the harm that the other littoral nations might have raised.

The German administrative law court rejected the seal’s standing on the grounds that seals were not “persons’ and no specific legislation had authorized standing on their behalf. There were two lessons. First, the very filing of the case and the attendant news media coverage was considerable and favorable. When the time came for the government to renew the ocean dumping permit, the authorities who initially gave their permission were forced by a kindled public opinion to revoke it. Germany has committed to constrict or phase out disposal of heavy metals in the North Sea. The seals lost the battle in court, but won the war.

Second, the seals lost because the guardianship application was ad hoc. Any system for commons Guardians should be institutionalized in advance. When local (Länder) statues so provide, even German courts will allow especially designated environmental groups to challenge forest-threatening actions in the international context, formal recognition of Commons Guardians could be achieved through reforms within existing legal frameworks—for example, appropriate amendments of the charters of the United Nations and of the International Court of Justice.

The institutionalization of Guardians would have the virtue of designating one responsible voice for each part of the environment. There is at least one drawback that grows out of that virtue, however. The more power a Guardian were to have, and the more exclusively his voice were made to be the voice that counted, the greater would be the political pressures to compromise his scientific and legal integrity.

Furthermore, while a system of Common Guardians would be a step forward, it would be no panacea for biosphere degradation. Those commons areas that were elevated to a legal and diplomatic standing or a par with a sovereign. But, unfortunately, under present law the powers even of sovereign states are limited when it comes to protecting themselves from transfrontier pollution. Hence, the success of a guardianship regime would depend not only upon legitimating and institutionalizing Guardians as legal representatives, but upon significant changes in the substantive law the guardians would be empowered to invoke—for example, conventions proscribing levels of pollution hazardous to sea life. The oceans not only need their own independent voice; they need the world community to adopt mote diligently protective standards.

…

II. Conclusion

It is true that the CGTF, by focusing on the global commons, would leave unaffected many pressing problems that occur wholly within sovereign boundaries. The answer is that these “internal” problems, bad as they are, are better attended to by existing institutions. In fact, the International Development Agency (a subsidiary of the World Bank) has had no trouble collecting a $3 billion “increment” to provide virtually free grants to help poor nations protect their internal ecological systems. To some extent, the relative disadvantage of the commons is a question of out of sight, out of mind. And partially, while dolphins may have friends in Greenpeace, they don’t vote or form potentially irksome alliances. For both reasons, the commons goes, once more, to the end of the line.

The guardianship proposal would help fill the void. It would establish a “police” mechanism for the global commons areas—an international public service for an international public good. The GCTF is the mechanism to pay for it. The Global Commons Trust Fund is not merely a roundabout scheme to take wealth from the rich nations and redistribute it to the poor.  It simply seeks from uses of the Global Commons a reasonable fee so as to apply it back to the commons, for their maintenance and repair.  What could be more reasonable? Or, given the afflictions of our planet, more crucial?