The Rights of Nature and the Power(lessness) of Law

The Rights of Nature and the Power(lessness) of Law

Editor’s note: The first Rights of Nature lawsuit in the US was filed on September 25, 2017, in Denver, Colorado.  The full text of the complaint can be found here.

     by Will Falk / Deep Green Resistance Great Basin

In the war for social and environmental justice, even the best lawyers rarely serve as anything more than battlefield medics.

They do what they can to stop the bleeding for the people, places, and causes suffering on the front lines, but they do not possess the weapons to return fire in any serious way. Lawyers lack effective weapons because American law functions to protect those in power from the rest of us; effective legal weapons are, quite literally, outlawed.

Nonetheless, understanding the limits of the law to affect change through my experiences as a public defender, I recently helped the Colorado River sue the State of Colorado in a first-in-the-nation lawsuit — Colorado River v. Colorado — requesting that the United States District Court in Denver recognize the river’s rights of nature. These rights include the rights to exist, flourish, regenerate, and naturally evolve. To enforce these rights, the Colorado River also requests that the court grant the river “personhood” and standing to sue in American courts.

Four of my comrades in the international environmental organization Deep Green Resistance (DGR) and I, are listed as “next friends” to the Colorado River. The term “as next friends” is a legal concept that means we have signed on to the lawsuit as fiduciaries or guardians of the river. I also serve, with the brilliant Deanna Meyer, as one of DGR’s media contacts concerning the case.

Several times, I’ve been asked whether I think our case is going to win. We have provided, in the complaint we filed, the arguments the judge needs to do the right thing and rule in our favor. In this sense, I think we can win. And, if we do win, the highly endangered Colorado River will gain better protections while the environmental movement will gain a strong new legal weapon to use in defense of the natural world.

But, when has the American legal system been concerned with doing the right thing? While every ounce of my being hopes we win, if we lose, I want you to know why. I want you to be angry. And, I want you to possess an analysis that enables you to direct your anger at the proper targets.

***

The Community Environmental Legal Defense Fund (CELDF) does incredible work to demonstrate how the American legal system is stacked against us.  CELDF began as a traditional public interest law firm working to protect the environment. They fought against industrial projects like waste incinerators and dumps only to encounter barriers in the legal system put in place by both government and corporations.

According to CELDF, government and corporations “developed a structure of law which – rather than focused on protecting people, workers, communities, and the environment – was instead focused on endless growth, extraction, and development.” This structure is “inherently unsustainable, and has, in fact, made sustainability illegal.”

The current structure of law forces us into what CELDF calls the “Box of Allowable Activism.” The Box is formed by four legal concepts that have so far proven to be unassailable. Those concepts are state preemption, nature as property, corporate privilege, and the regulatory fallacy. State preemption removes authority from local communities by defining the legal relations between a state and its municipalities as that of a parent to a child. Local communities are not allowed to pass laws or regulations that are stricter than state law.

Currently, nature is defined as property in American law. And, anyone with title to property has the right to consume and destroy it.

As CELDF notes, “this allows the actions of a few to impact the entire ecosystem of a community.” To make this worse, corporations – who own vast tracts of nature – are granted, by American courts, corporate rights and “personhood.” Corporate personhood gives corporations the power to request enforcement of rights to free speech, freedom from search and seizure, due process and lost future profits and equal protection under the law.

Finally, CELDF explains that “the permitting process, and the regulations supposedly enforced by regulatory agencies, are intended to create a sense of protection and objective oversight.” But, while water continues to be polluted, air poisoned, and the collapse of every major ecosystem on the continent intensifying, we must conclude that this protection is not happening.

Regulatory agencies give permits. By definition, they provide permission to destructive activities. CELDF states, “When they issue permits, they give cover to the applicant against liability to the community for the legalized harm.”

***

I went to law school at the University of Wisconsin-Madison and became a public defender in Kenosha, WI because I thought I could push back against the institutional racism of the American criminal justice system. Just like CELDF learned working through traditional environmental law, I learned quickly that my hands were tied by the legal structure, too.

Something similar to CELDF’s “Box of Allowable Activism” exists in criminal law. Prosecutors overcharge. For example, I represented a single mother of three charged with six counts of theft despite the total value of what she was accused of stealing amounting to less than $30 — one count for the bag of rice, one for the butter, one for the salt, one for the pack of chicken breasts, one for the onion, and one for the garlic.

Then, prosecutors offer plea deals taking advantage of a defendant’s rational self-interest and fear. In my previous example, the prosecutor offered to dismiss four of the six counts of theft and recommend 30 days in jail if my client pled guilty to two counts, the rice and chicken. When the prosecutor made her offer, she reminded my client that not taking the deal meant facing a long trial process while risking conviction on all six counts and being exposed to two years in jail.

Defense attorneys are ethically bound to defer to their clients’ desire to take a plea deal. Meanwhile, public defender offices are woefully underfunded. And, with the majority of criminal defendants so poor they qualify for court-appointed counsel, public defenders are notoriously overworked producing mistakes that lead to their clients’ incarceration.

Credit: Wikimedia Commons

Deep ecologist, Neil Evernden, connects the problems facing lawyers fighting institutional racism and lawyers fighting ecocide in his book “The Natural Alien: Humankind and Environment.” Evernden asks us to imagine we are lawyers defending a client who is black in apartheid South Africa or the Jim Crow American south.

He asks, “What would you do if faced with a trial judge who denies your client any rights and who, after hearing your case, simply says: ‘So what — is he white?’”

Everndem claims that we only have two options in this situation. We can demand that the judge recognize the rights and dignity of our client and risk condemning our client to execution. Or, we can play by the rules, reinforce problematic law, contribute to its precedence, and detail our client’s genealogical records at length “to try to prove our client white.”

Evernden correctly notes that too often when environmentalists are challenged to justify their declarations on behalf of the living world, they proceed to try to prove their client white. Evernden writes, “Rather than challenge the astonishing assumption that only utility to industrialized society can justify the existence of anything on the planet” the environmentalist “tries to invent uses for everything.” But, “the only defense that can conceivably succeed in the face of this prejudice is one based on the intrinsic worth of life, of human beings, of living beings, ultimately of Being itself.”

We want our lawsuit, specifically, and the rights of nature framework, generally, to be legal arguments for the intrinsic worth of life and of living beings like the Colorado River.

We are attacking two of the walls forming the Box of Allowable Activism. We seek to overturn the concept that nature is only property, and we seek to erode corporate power by giving the source of corporate power (nature) rights to stop corporate exploitation. These arguments are not currently accepted, but neither was the argument that “separate is inherently unequal” when Thurgood Marshall argued this and ended school segregation in Brown v. Board of Education.

This is all well and good, but we are still forced to construct our argument only with currently acceptable legal language. We seek “personhood” for the Colorado River, for example. But, the river is much more than a person. The river is an ancient and magnificent being who carved the Grand Canyon, who braved some of the world’s most arid deserts on her path from the Rocky Mountains to the Gulf of California, and who facilitates countless lives, human and nonhuman.

I am afraid, that in seeking personhood for the Colorado River, people will mistake our arguments as trying to prove the Colorado River a “person” while reinforcing the notion that a being only has value as far as that being resembles a human.

***

Evernden only contemplated two options. We can prove the Colorado River a person, or we can demand recognition of our client’s dignity. But, there is a third option: Dismantle the power stacking the legal system against communities and natural ecosystems.

To fight this power, we must understand how power works. Dr. Gene Sharp, who CNN has called “a dictator’s worst nightmare” and the “father of nonviolent struggle,” is the world’s leading theorist of power.

Sharp identifies two manifestations of power – social and political. Social power is “the totality of all influences and pressures which can be used and applied to groups of people, either to attempt to control the behavior of others directly or indirectly.” Political power is “the total authority, influence, pressure, and coercion which may be applied to achieve or prevent the implementation of the wishes of the power-holder.”

Sharp lists six sources of power: authority, human resources, skills and knowledge, intangible factors, material resources, and sanctions. Interfering with these sources of power is the key to a successful resistance movement.

The powerful know where their power comes from and they protect the sources of their power. It is one thing to protect these sources with brute force. But, why use brute force when you can persuade the oppressed that there is nothing they can do to affect the sources of power? Or, when you can mislead the oppressed about where those sources of power are?

In this spirit, the powerful do everything they can to convince the oppressed that the current arrangement of power is inevitable. They seek to convince us that the legal system exists to protect communities and the environment. They teach us to look back through history to view our few victories as the result of a system devoted to justice.

These few victories are held up as proof that sooner or later the courts always make the right decision. We are pacified with assurances that if our lawyers are clever enough, if they work hard enough, if they articulate the truth eloquently enough, judges will recognize the brilliance of our lawyers’ arguments and justice will be served.

Justice for the natural world has rarely been served. CELDF names the final blockade to justice the “Black Hole of Doubt” and teaches, “We think we’re not smart enough, strong enough, or empowered enough – we literally do not believe we have the inalienable right to govern.” Sharp says, “Power, in reality, is fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue.”

Any resistance movement aspiring to true success must engage in shrewd target selection to undermine sources of power. Taking Sharp a step further, it is possible to prioritize which sources are more essential to the functioning of power than others. Corporate power is maintained through the exploitation of the natural world. There is no profit without material products. There are no material products without the natural world. If corporations lose access to ecosystems like the Colorado River, they will fail. If corporations fail, they can no longer control our system of law.

We may win in court and corporations will have to respect the Colorado River’s rights to exist, flourish, regenerate, and naturally evolve. We will also gain a foothold for other ecosystems to assert their own rights. We may fail in court, but that does not mean the fight is over.

In many ways, our failure would simply confirm what we already know: the legal system protects corporations from the outage of injured citizens and ensures environmental destruction. If we fail, we must remember there are other means — outside the legal system — to stop exploitation.

Regardless of what happens in our case, we encourage others to employ whatever means they possess to protect the natural world who gives us life.

To repost this or other DGR original writings, please contact newsservice@deepgreenresistance.org

Lawyer representing Chevron dismisses indigenous victims of oil contamination as “irrelevant”

By Amazon Defense Coalition

A lead Chevron lawyer has made the preposterous claim that the 30,000 Ecuadorian victims of the oil giant’s contamination are “irrelevant” to the court case that led to an $18 billion judgment against the company.

Doak Bishop, a Chevron lawyer from the American firm King & Spalding, said the following before a panel of international investment arbitrators on February 15th:

“The plaintiffs are really irrelevant. They always were irrelevant. There were never any real parties in interest in this case. The plaintiff’s lawyers have no clients… There will be no prejudice to [the rainforest communities] or any individual by holding up enforcement of the judgment.”

Meanwhile, the Huffington Post published over a dozen photos of Ecuadorians who have died or have severe medical problems resulting from Chevron’s contamination. See here for photos, taken by Lou Dematteis.

By arguing that no Ecuadorians had been harmed or were in danger of being harmed, Bishop was trying to convince the panel of arbitrators that they should block the Ecuadorians from enforcing their judgment against Chevron in other countries, a strategy that has failed for multiple reasons.  See here.

Chevron has a long history of trying to dehumanize the Ecuadorians by denying their very existence or by belittling their culture, said Pablo Fajardo, the lead lawyer for the communities.

In 2010, Chevron tried to claim the signatures of 20 of the 48 named plaintiffs in the lawsuit had been forged by their attorneys.  The charge was quickly rebutted after the plaintiffs appeared before a public notary to affirm their signatures were legitimate. See here.  Chevron engineers also belittled Ecuadorian indigenous leaders by making them wear Western clothes and suggesting that oil-laden streams were actually full of vitamins, according to published reports.

The existence and relevance of the Ecuadorians has been affirmed by multiple independent journalists, including those working for 60 Minutes, The Sunday Night Show  in Australia, The New York Times and The Washington Post.

The $18 billion damage award, levied by an Ecuador court, will be used to clean up Chevron’s deliberate contamination of the rainforest and provide clean drinking water and health care to the residents of the company’s former concession area.  The damage decimated indigenous groups and caused an outbreak of cancer, according to evidence relied on by the court in issuing the judgment. See this video for more information.

Chevron, under the Texaco brand, operated in Ecuador from 1964 to 1992. Chevron admitted dumping 16 billion gallons of toxic drilling fluids directly into waterways and streams relied on by local residents for their drinking water.

From PR Newswire: http://www.prnewswire.com/news-releases/chevron-lawyer-claims-that-victims-of-rainforest-contamination-are-irrelevant—-amazon-defense-coalition-147441865.html

Indigenous Resolve ‘Stronger Than Ever’ as Feds Order DAPL Protest Camp Shut Down

Featured image: The Oceti Sakowin camp is currently home to thousands of water protectors and allies. (Photo: Reuters)

     by Deirdre Fulton / Common Dreams

The U.S. Army Corps of Engineers on Friday informed Indigenous water protectors and their allies that they have nine days to vacate the main Dakota Access Pipeline protest camp—or else face arrest.

“This decision is necessary to protect the general public from the violent confrontation between protestors and law enforcement officials that have occurred in this area, and to prevent death, illness, or serious injury to inhabitants of encampments due to the harsh North Dakota winter conditions,” Col. John Henderson of the Corps said in a letter to the Standing Rock Sioux Tribe chairman Dave Archambault II.

The Oceti Sakowin camp, on the banks of the Cannonball River, will be closed Monday, December 5, the letter warned. Any individuals found on Army land north of the river after that date would be considered trespassing and could be prosecuted.

The Corps said it would establish a “free speech zone” south of the Cannonball River on Army lands.

But Dallas Goldtooth of the Indigenous Environmental Network (IEN), told the Bismarck Tribune that “there’s not enough land on the south side of the river where many are already camping; and a planned winter camp on 50 acres of reservation land near Cannon Ball is not yet ready, with groundbreaking set for next week.”

What’s more, he noted that “the eviction deadline is the day after more than 2,000 American war veterans are scheduled to arrive at the camp to stand in solidarity with Standing Rock,” the Tribune reports.

Archambault issued a statement in response to the Corps, saying the Standing Rock Sioux Tribe “is deeply disappointed in this decision by the United States, but our resolve to protect our water is stronger than ever.”

“It is both unfortunate and ironic that this announcement comes the day after this country celebrates Thanksgiving—a historic exchange of goodwill between Native Americans and the first immigrants from Europe,” he continued. “Although the news is saddening, it is not at all surprising given the last 500 years of the treatment of our people. We have suffered much, but we still have hope that the President will act on his commitment to close the chapter of broken promises to our people and especially our children.”

Indian Country Today reports:

The notice from the Army Corps comes less than a week after Morton County Sheriff’s deputies sprayed rubber bullets, mace and water on more than 400 people demonstrating at a bridge blockade not far from the camps. Temperatures were below freezing when protectors were repeatedly hosed down by police that Sunday night, November 20. There have also been reports that concussion grenades were fired at protectors. Dozens were hospitalized, including 21-year-old Sophia Wilansky, who may face the amputation of her arm, and Cheree Lynn Soloman, who is fundraising for eye surgery.

“If you were concerned about the safety of the fucking people you would have taken your ass out there and you would’ve cut their fucking hoses,” lamented Kash Jackson, an Army veteran from Michigan. His Facebook LIVE rant was broadcast shortly after the Corps announced its warning to water protectors that anyone choosing to stay on Corps land beyond December 5 would be doing so “at their own risk.”

“You stand firm, Standing Rock,” Jackson continued. “You stand firm right where you’re at. They want to push you off that land. It’s not their land to begin with.”

Meanwhile, IEN said in a statement: “We stand by our relatives of the Oceti Sakowin and reaffirm their territorial rights set in the Fort Laramie Treaty of 1851. If the Corps wants to keep people safe and prevent further harm, then deny the easement, rescind the permit, order a full Environmental Impact Statement, and send Department of Justice observers.”

“This decision by the Army Corps and the United States is short-sighted and dangerous,” the statement read. “We have already seen critical injuries cased by the actions of a militarized law enforcement. We implore President Obama and the White House to take corrective measures and to stop the Dakota Access Pipeline once and for all.”

The group, along with Honor the Earth, the International Youth Council, and the Camp of the Sacred Stones, is planning a news conference for Saturday afternoon, which IEN will live-stream from its Facebook page.

Filmmaker Josh Fox, who has been outspoken in his opposition to the crude oil pipeline, called the Corps’ eviction notice “a major act of aggression against basic rights of peaceful assembly and protest in the U.S. and constitutes a violation of treaties as well as the U.S. constitution’s guaranteed right to protest and assemble.”

“Oceti Sakowin, the main camp for water protectors, is a beautiful self-organizing community,” Fox continued. “It stands as not only the main place for the protest movement to assemble and organize, but it also represents a major leap forward for our combined movements for the environment, Indigenous sovereignty, and real democracy in America. If the Army Corps tears down this protest camp hundreds more will spring up in its place. A crucial alliance between indigenous values, native sovereignty and environmental movements has been forged here. We expect that the Standing Rock movement will find new and creative ways to fight the Dakota Access Pipeline no matter what, and that the Standing Rock movement and its alliances will find many areas of common ground and protest. We will fight fracking. We will fight pipelines.”

 

Water Protectors Attacked at Barricade

Water Protectors Attacked at Barricade

     by Indigenous Environmental Network

Cannon Ball – On November 20th at approximately 6PM CST over 100 Water Protectors from the Oceti Sakowin and Sacred Stone Camps mobilized to a nearby bridge to remove a barricade that was built by the Morton County Sheriff’s Department and the State of North Dakota. This barricade, built after law enforcement raided the 1851 treaty camp, not only restricts North Dakota residents from using the 1806 freely but also puts the community of Cannon Ball, the camps, and the Standing Rock Tribe at risk as emergency services are unable to use that highway.

Water Protectors used a semi-truck to remove two burnt military trucks from the road and were successful at removing one truck from the bridge before police began to attack Water Protectors with tear gas, water canons, mace, rubber bullets, and sound cannons.

At 1:30am CST the Indigenous Rising Media team acquired an update from the Oceti Sakowin Medic team that nearly 200 people were injured, 12 people were hospitalized for head injuries, and one elder went into cardiac arrest at the front lines. At this time, law enforcement was still firing rubber bullets and the water cannon at Water Protectors. About 500 Water protectors gathered at the peak of the non-violent direct action.

sunday_nov_20-4
The following is a statement from the Indigenous Environmental Network:

“The North Dakota law enforcement are cowards. Those who are hired to protect citizens attacked peaceful water protectors with water cannons in freezing temperatures and targeted their weapons at people’s faces and heads.

“The Morton County Sheriff’s Department, the North Dakota State Patrol, and the Governor of North Dakota are committing crimes against humanity. They are accomplices with the Dakota Access Pipeline LLC and its parent company Energy Transfer Partners in a conspiracy to protect the corporation’s illegal activities.

“Anyone investing and bankrolling these companies are accomplices. If President Obama does nothing to stop this inhumane treatment of this country’s original inhabitants, he will become an accomplice. And there is no doubt that President Elect Donald Trump is already an accomplice as he is invested in DAPL”.

Preparing National Guards for Protests: Foresight or Suppression?

Preparing National Guards for Protests: Foresight or Suppression?

Editor’s Note: A week after the killing of a land-defender, the Governer of Georgia has signed an executive order to prepare national guards for protests against police brutality. Georgia has one of the highest incarceration rates in US. The protestors were defending a forest that was ordered to be cut down to build a “Cop City.” The protestors had set up camps and treehouses, which were being demolished by the cops before Tortuguita, the land-defender was shot. While the police claim that the victim had first attacked the police, it remains disputed by other demonstrators.

As a resistance gets more effective, the powerful use all means necessary to crush the resistance. Police crackdown is one of those tactics. Some activists, regardless of their dedication, may not be in a position to bear it for one reason or another. There will be others who are prepared to be on the frontline. Good organizing includes preparing the frontliners for any anticipated events.


While the move comes after law enforcement in Georgia killed a “Cop City” protester, one official said it is a “purely precautionary” measure before the anticipated release of video footage from an arrest in Tennessee.

By Jessica Corbett/Common Dreams

Republican Georgia Gov. Brian Kemp on Thursday signed an executive order declaring a state of emergency through at least February 9 that will enable him to deploy up to 1,000 National Guard troops “as necessary.”

The order follows protests in Atlanta after 26-year-old forest defender Manuel “Tortuguita” Teran was shot dead last week during a multi-agency raid on an encampment to oppose construction of Cop City, a nearby law enforcement training center. The Georgia Bureau of Investigation (GBI), which is investigating the case, has said Teran was killed after he shot and wounded a state trooper.

While the order begins by stating that “protests turned violent in downtown Atlanta” last Saturday, The Atlanta Journal-Constitution reported that Kemp’s aides signaled that the move was not about the Cop City demonstrations but rather in anticipation of any potential response to video footage from Memphis, Tennessee showing the arrest of Black motorist Tyre Nichols.

As Common Dreams reported earlier Thursday, five fired Memphis cops were charged with second-degree murder and other crimes related to Nichols’ death. Footage of the 29-year-old’s arrest is expected to be released sometime after 6:00 pm local time on Friday.

“We understand the executive order is purely precautionary based on possible unrest following the release of the videos from Memphis,” an official in Georgia with direct knowledge of the situation told the AJC. “There are no immediate intentions to deploy the guard.”

The Atlanta Police Department also mentioned the Memphis case in a statement Thursday:

We are closely monitoring the events in Memphis and are prepared to support peaceful protests in our city. We understand and share in the outrage surrounding the death of Tyre Nichols. Police officers are expected to conduct themselves in a compassionate, competent, and constitutional manner and these officers failed Tyre, their communities, and their profession. We ask that demonstrations be safe and peaceful.

In a series of tweets Thursday, the Atlanta Community Press Collective named several people killed by law enforcement in recent years and suggested that Kemp’s order is about “trying to instill fear in anyone who stands up against police brutality.”

Meanwhile, national groups and progressive lawmakers have echoed local demands for an independent probe in Teran’s case.

The Georgia Bureau of Investigation has highlighted that it is separate from the Georgia State Patrol and said that GBI “is conducting an independent investigation,” after which it will “turn the investigative file over to the prosecutor.” The agency noted Wednesday that DeKalb County District Attorney Sherry Boston has recused herself from the case so a special prosecutor will be assigned.

Some have pushed back against the “police narrative” that the “corporate media has ran away with” for Teran’s case, as forest defender Kamau Franklin told Democracy Now! last week, adding that “we find it less than likely that the police version of events is what really happened.”

“And that’s why we’re calling for an independent investigation, not one that’s done by the Georgia Bureau of Investigation, not one that’s done by any federal authority, but a complete independent investigation,” Franklin said, “because that’s the only way we’re going to know what really happened.”

Featured image by Levi Meir Clancy via Unsplash