0:03

Aqualars . This

0:06

is the Water Foresight podcast powered

0:08

by the Aqualars group , where we anticipate

0:10

, frame and shape the future of water

0:13

through strategic foresight . Today's guest

0:15

is Professor James Salisman , who is the

0:17

Donald Brenn Distinguished Professor of

0:19

Environmental Law , with joint appointments

0:21

at the Brenn School and UCLA

0:23

Law School . He's authored over 12 books

0:26

and more than 100 articles , ranging

0:28

from environmental law to other environmental

0:31

topics of interest . He's also

0:33

the author of the book Drinking Water A History

0:35

. Professor Salisman , welcome to the

0:37

Water Foresight podcast .

0:39

Thank you for having me .

0:40

I am fascinated about some of these

0:43

articles that

0:45

address this issue

0:47

or notion of rights of nature . What

0:50

does this mean ? What is rights of nature all

0:52

about ? Is it a new law ? Is it a paradigm

0:55

, a movement or something else ?

0:58

Yes , so it's the new new thing

1:00

and it means different things to different

1:02

people in different places , I

1:06

think the best way to frame it so

1:08

when you were growing up , you had

1:10

some Dr Seuss right ? Yes

1:12

, do you ever read the Lorax

1:15

?

1:15

Yes .

1:17

The Lorax . Basically , for those of you who had deprived

1:19

childhoods , the Lorax is a Dr Seuss

1:21

story about essentially this kind

1:23

of thing , a Seussian

1:26

creation that

1:28

seems to live inside trees . It's

1:31

called the Lorax and he's trying to

1:33

protect his

1:35

forest and the wildlife in the forest

1:37

and the waters and such . He says

1:39

, I'm the Lorax , I speak for the trees

1:41

. That

1:45

, in essence , can be what rights

1:47

of nature is about . The

1:49

idea more technically , is the notion of giving

1:51

legal personhood to natural

1:53

things Interesting . Yes

1:59

, so we're used to . If someone rear-ends your car , you're

2:02

going to sue . Right , you have

2:04

legal personhood . There's no question about

2:06

that . We'll talk a bit later . I think about companies

2:09

, but if I defame a company or I steal something

2:11

from a company , they may sue me . They

2:13

have legal personhood . It

2:15

starts getting a little more difficult once you move away

2:17

from that in terms of who can get their day in court and

2:20

what kind of laws are protecting

2:22

them . The thing that I find most interesting

2:25

about rights of nature is

2:27

that it is , in some respects , it's

2:29

a very old idea , but it's

2:31

been getting an enormous amount of attention

2:33

. It's been getting attention

2:36

for a remarkable series

2:38

of failures . There's

2:40

never yet been a successful rights of nature

2:42

lawsuit in the US . There's

2:44

never been yet successful rights

2:46

of nature legislation in the US

2:49

and yet there are articles about it in the New Yorker

2:51

New York Times . A lot of folks are talking

2:53

about it . It's a different story overseas , which we'll

2:55

talk about a bit later . I

3:00

think it's an emerging thing . It's

3:03

the most accurate way to describe an

3:05

article probably get into what are the different

3:07

parts of it , but it definitely

3:10

is on the rise .

3:11

That's interesting , maybe

3:14

your example of being in a car accident . Would

3:16

my vehicle , my damaged

3:19

vehicle , have rights ? Yes , now

3:22

there's not just a personal injury lawyer to

3:25

represent me for my injuries , we

3:27

have a car lawyer who now

3:29

sues the other

3:32

car owner and says I represent

3:34

the vehicle .

3:36

Well , something to say in that regard , because there's a

3:38

parallel movement

3:40

that's been happening in the law that people oftentimes

3:42

conflate with rights of nature , and they're

3:44

quite different . That's animal rights

3:47

. For example

3:49

, you may have heard about Happy the Elephant . Jill

3:51

LePore wrote a popular article

3:53

about that in the Atlantic a few years ago . This

3:56

was an elephant and a habeas petition

3:58

was filed on behalf of the elephant

4:01

. We have animal

4:03

cruelty laws that

4:05

prohibit humans from acting

4:08

in cruel ways . We're

4:11

animals but we don't yet have

4:13

the right for animals themselves to

4:15

sue . But there are a lot of lawyers

4:17

who are trying to change that . That's different

4:19

. That's basically

4:22

. That's not a right of nature , that is

4:24

more an individual . In

4:26

animal rights . They're saying this particular donkey

4:28

, this particular horse , this particular

4:31

elephant has a legal right .

4:36

Yes , one of the things that I wanted to ask you is

4:38

, for those of us that have

4:40

been in the environmental world or practiced environmental

4:42

law , it seems to be

4:44

somehow connected

4:46

thematically perhaps with

4:49

, say , clean Water

4:51

Act or the Safe Drinking Water Act or

4:53

NEPA or the Endangered Species Act

4:55

, or maybe there's some common law provisions

4:57

, the Public Trust Doctrine , or

5:00

this person who's a natural resource trustee

5:02

over at a superfund site , or even

5:05

citizen suits . How do these

5:07

notions that we might learn in law school

5:09

, in environmental law class ? How do they

5:11

compare to this rights of nature discussion

5:14

?

5:14

They're pretty different . Let's take the Clean

5:16

Water Act or NEPA . The goal

5:19

of those laws is not protection

5:21

of nature as an end in itself

5:23

. Nepa

5:25

is basically designed intentionally

5:27

to give decision makers more information about

5:29

the impacts of their

5:31

decisions on the environment . It'd

5:34

be good to know if there are more or less impactful

5:36

actions you can take . Clean

5:38

Water Act , as you know , the

5:41

basic threshold is harms to human health

5:43

. It's

5:46

the same thing with the Clean Air Act . There

5:48

are secondary standards that are more concerned about the environment

5:50

, but that's not what's animating these

5:53

laws . Even the Endangered

5:55

Species Act is

5:57

not really a rights of nature law . In

6:01

other words , the Endangered Species Act does not protect

6:04

so-called pests

6:06

that eat agricultural commodities

6:08

. There

6:11

are limits to what we protect there , as

6:13

well as we protect some things and not others in

6:15

some communities and not others . I

6:17

think that the key thing in all of those laws is

6:20

with perhaps the exception of the Endangered

6:23

Species Act we can talk about that more , but

6:25

they're basically anthropocentric . They're

6:28

basically what's in it for Homo

6:30

sapiens ? Rights

6:32

of nature reverses that and says

6:35

what's in it for this natural

6:38

body , natural , whatever . I've got rights too , I

6:40

can protect myself . Common

6:43

law really is nothing that

6:45

addresses this . The closest probably would

6:47

be Nusent's law undertoward

6:50

. But Nusent's law focuses on what

6:52

you might call negative impacts . Your

6:55

activities are interfering

6:58

with the use and enjoyment

7:00

of my property .

7:04

Yes , You've taken my cow

7:06

. You've hurt my cow , trespassed

7:09

to my animals , if you will

7:11

.

7:12

Yes , so there's trespass . There's conversion pollution

7:15

would be sometimes trespassed , more often

7:17

Nusent's , which basically is I can't

7:19

use my property the way I want to .

7:23

All these laws , it's the government

7:25

, human beings saying we're

7:28

going to make up the rules until you snail-darter

7:30

what your rights are .

7:33

That's right , I'll protect you . It's a process . We

7:35

decided which species get certain rights , which species

7:37

don't . Even for the species that are

7:40

listed , there's an exemption procedure . This

7:42

is called God Squad , where basically

7:45

a high-level group can say

7:47

yeah , yeah , the Endangered Species Act actually is not going

7:49

to apply in this particular circumstance

7:51

, or with the border wall the

7:54

border wall basically . There was legislation passed

7:56

that exempted all environmental

7:58

laws from slowing up the border wall construction

8:00

.

8:03

Well , you alluded to this earlier

8:05

, but does the notion of rights

8:07

of nature exist within

8:10

the United States ? I think you said no , but

8:13

what about other ?

8:14

countries . Let

8:17

me go back a second and talk about within the United States

8:19

, because it's sort of there , sort

8:21

of isn't . I think the history , I think , is pretty interesting . So

8:25

the story in the US basically

8:27

starts with 1972

8:31

or three , I forget the exact year in a

8:33

law review article by Chris Stone , who

8:35

was a professor at University of Southern

8:37

California , usc , and

8:40

he was actually a corporate law person

8:42

and a legal philosopher , and so

8:44

he wrote this article called Should Trees have Standing

8:47

, which for those of you who are lawyers know that

8:49

it's a lame pun , because in order

8:51

to get into court you need to have what's called legal

8:53

standing , you have to show actual

8:55

injury case or controversy , those

8:57

types of things . And

9:00

the origin of the article was

9:03

a lawsuit that had been brought against Disney

9:05

. They wanted to develop a ski resort

9:07

and an area called Mineral Ten , and the

9:09

case was going up to the Supreme Court . And

9:12

so Stone got this idea about

9:15

a kind of rights of nature notion . He didn't call

9:17

it rights of nature , but that was the basic idea and

9:20

so the forward

9:23

for the Law Review article . The Law Review volume

9:26

was being written by Justice William Douglas , who

9:29

was a very progressive , pro-environmental

9:32

member of the Supreme

9:34

Court . So Stone thought that Douglas

9:37

might actually read the introduction because he was

9:39

gonna have to write . He was gonna have to write something about the

9:41

the piece , and

9:43

so Stone got it out quickly

9:45

and his argument was basically

9:48

this which is , if you look at

9:50

the sort of history , the Anglo

9:52

, the Anglo-American

9:55

history of rights , what you see

9:57

is a trend which

9:59

is where legal rights are granted

10:01

successively more broadly and more

10:04

broadly . So Magna Carta

10:06

right extends the rights from

10:08

the king to the nobles . Declaration

10:11

of Independence extends rights to

10:13

white property owning males right

10:15

. The abolition

10:20

right extends rights to former

10:23

slaves , emancipation

10:25

right . Basically , you know , give them the right to vote

10:27

, etc . Etc . And he's saying , look , you

10:29

know , we see this expansion of

10:31

legal rights and it's time to think

10:33

about extending legal rights to

10:35

natural things as well , like

10:39

mountains , like forests , like rivers . Now

10:41

the obvious sort of rebuttal

10:44

to that is to say , yeah , but all the

10:46

examples you use are people right , and all these

10:48

examples . You know different groups of

10:50

people got more rights . But you know

10:52

, a forest is not a person . Stone

10:55

was a smart guy , you know the corporate lawyer , and

10:57

said , yeah , but we

10:59

have no problem giving legal rights to corporations

11:02

and they are about

11:04

as nonhuman as one can imagine

11:06

. And so if we're perfectly fine

11:08

with this legal fiction for

11:10

a corporation representing itself in a court of law , in

11:13

corporations , of many more rights now than

11:16

they did when Stone was writing , why

11:19

can't we go ahead and give rights

11:21

to a mountain or to a

11:23

river ? And you

11:26

know that was the sort of sort

11:28

of rhetorical twist that he used to really have people

11:30

say , huh , you know

11:32

, maybe there's , maybe there's something to that . Now

11:35

, a lot of this , of course , turns to the question of , well , who speaks

11:37

for the trees and how we're going

11:40

to figure that out . So that's by way

11:42

of background . I think it might be useful for the , for

11:45

the listeners , and so you know you

11:47

asked where have we got rights of nature in the US today

11:51

? And I think there's sort of three

11:53

places to look . In

11:55

terms of the law , the best example we have

11:59

is something called the public trust doctrine , and

12:01

I know this is a water , a water podcast , so I assume

12:03

your listeners may be familiar with that . So I don't know

12:05

how much you want me to describe sort of the

12:07

origins of that and how it plays out , or not . So

12:10

I need some guidance here . Sure , go ahead . Okay

12:13

, so public trust

12:15

doctrine is this idea that goes way

12:17

back to Roman times and probably earlier

12:19

, and the

12:22

the Justinian , the Justinian

12:24

code goes , you know , back to Roman times basically

12:26

said that there's some things that are held

12:29

in common to all the

12:31

rivers , the streams , shores . That's

12:33

not a quote , but that's basically

12:35

the idea . And

12:37

so there was this notion , really back in Roman times and

12:39

earlier , that there's something special about

12:42

shorelines that we need to think differently about

12:45

. And so this evolves into

12:47

sort of English law and something that was the public trust doctrine

12:49

and it comes across to the

12:51

to the United States , and it becomes

12:54

a big deal in an 1880s case called

12:57

the Illinois Central Railroad case , supreme Court

12:59

case . And what happened

13:01

in that case is that the Illinois

13:04

legislature which was as corrupt then as

13:06

it allegedly has

13:08

been in recent years they basically

13:10

sold or approved the

13:12

sale of the city of

13:14

Chicago's waterfront , the Illinois

13:17

Central Railroad , and it

13:19

was called the Lakefront Steel at the time

13:21

. So the city refused to receive

13:23

the money , obviously as a corrupt transaction

13:26

. The legislature changes

13:28

, changes parties , and the little legislature

13:31

basically tries to countermand , to

13:33

revoke , rescind

13:35

the contract . In Illinois

13:37

Central says what are you talking about ? You know you're breaching

13:39

the contract . Now we at least want to remedy . It

13:41

goes up to the Supreme Court and what's interesting

13:43

is the Supreme Court doesn't say the

13:46

contract is void because of

13:48

corruption or

13:51

this or that . What they say was it

13:53

was never a valid contract because the

13:55

state of Illinois never

13:57

had the authority to sell the land

13:59

in the first place . How could

14:01

that be ? It can be because the court

14:03

says , essentially there is this trust

14:06

obligation , the fiduciary

14:08

obligation of the government to

14:10

the people to ensure that there

14:12

is shoreline access . Why

14:15

shoreline access ? Well , you know , this was a period

14:17

where it wasn't sunbathing and surfing

14:20

. This is because a lot of commerce

14:22

happened to the shoreline right

14:24

Movement of goods , fishing

14:27

, shell fishing , piers

14:29

, all of that . And the idea , basically

14:31

, is that this is an obligation , it's a trust

14:33

obligation . You can't simply sell

14:36

it . Could they have sold the land with

14:38

a lease , maybe ? Could

14:40

they have sold part of the land , maybe

14:42

? But you can't give up entirely this

14:45

trust obligation . So Illinois

14:47

Central is kind of the most famous example of

14:49

this at the Supreme Court

14:52

level . So how does this tie into rights

14:54

of nature ? Well , over time , and particularly

14:57

in the 60s and 70s

14:59

and then in the 80s , there are a number of cases

15:01

in states the public trust doctrine really

15:03

doesn't exist anymore at the federal level . It's a

15:06

state level doctrine where

15:10

basically the breadth of the trust responsibility

15:13

is extended to

15:15

wetlands in some cases , and it's

15:17

a very famous case that happens with Mono

15:19

Lake , which is this amazing

15:22

lake on the eastern side of

15:24

the Sierra Nevada , it's basically just on

15:26

the eastern

15:28

side of Yosemite , and

15:31

it's a sort of saline lake . In these two-foot

15:33

towers it's very you can imagine a Star

15:35

Trek episode being filmed , in fact probably the

15:37

worst Star Trek episodes that were filmed there

15:39

. It's a very otherworldly kind of place

15:42

. The city of Los Angeles

15:44

, which essentially is a giant sponge sitting

15:47

in the southwest United States , had

15:49

water rights to a lot of the streams

15:51

that fed Mono Lake and

15:53

the state water board gave them a permit to

15:56

divert the water to Los

15:58

Angeles , a bit of a kind of Chinatown

16:01

Echo of Chinatown . And

16:03

the state water resources control

16:05

board was sued basically by

16:07

friends of Mono Lake , by people , and

16:10

the argument was they gave a lot of arguments

16:12

but the argument that the court settled on was

16:14

that the public trust obligation of the state

16:16

of California extends to the ecology

16:19

of Mono Lake . Right

16:22

, so think about that for a moment , right ? So basically

16:24

, mono Lake's not suing , but

16:26

what the court is saying is state of California

16:28

, you have a non-delegable

16:31

, you can't abdicate this . You have an

16:33

obligation to protect the ecosystem

16:36

, and the big concern

16:38

was that there's a huge amount of

16:40

bird nesting that takes place and

16:43

there are these islands that are protected from predators

16:45

. But because the water level was dropping , the islands are

16:47

becoming penicillus and

16:50

there's some of the changes in the ecology as well . So

16:52

essentially , the court says you know , to the Water

16:54

Resources Control Board , you need to craft

16:57

a remedy here , a solution that

16:59

both gives water to Los Angeles

17:01

but also protects the ecosystem . So

17:05

it's not called rights of nature , but it's

17:07

about as close as you can get . Where

17:09

the court is saying that the state

17:11

government has an obligation not

17:14

to harm certain ecosystems . Now

17:16

, I should say this was an extraordinarily controversial

17:19

decision . Right

17:21

, because essentially what it's saying is that

17:24

the courts , right , the third

17:26

branch , they are going to decide

17:28

what are the obligations of the government

17:30

when it's not written out anywhere . Right

17:32

? Some states have a public trust

17:34

doctrine , the state constitutions , others don't

17:37

, and so in many respects

17:39

, the Mono Lake decision , so to speak , is the high

17:41

watermark of public trust doctrine

17:43

. It's been extended in a few other states

17:45

, but not to the extent that you see in the

17:47

Mono Lake decision .

17:49

A lot of people would say well , mono

17:51

Lake , no pun intended

17:53

, the high watermark , right , but

17:56

what or who is next right ? The Salton

17:58

Sea , you know , lake

18:00

Tahoe , that may be a bad example , but it

18:03

could be if it's getting polluted right , yeah

18:06

, yeah .

18:08

So because the public trust doctrine is so

18:10

open-ended and because judges

18:12

are not supposed to be political

18:15

, many

18:17

judges are really gun-shy about

18:19

about entertaining public trust doctrine

18:21

arguments . Now there has been you know , I

18:23

know this is a podcast about water there's

18:25

been a lot of action to try to extend

18:27

the public trust doctrine to the atmosphere and

18:31

basically say climate stability is

18:34

an obligation of the state as well . Those

18:37

cases have been unsuccessful to date but there's

18:39

been a lot of litigation for that .

18:41

Interesting . It seems that the Mono Lake

18:43

example you gave really

18:46

connects this notion

18:48

of rights of nature to water and

18:50

through probably the permitting

18:52

, if you will , lens , but possibly

18:55

also enforcement . I don't

18:58

know if you would maybe think

19:00

about how this could intersect

19:04

with water rights which you know some

19:06

of our listeners are east of the Mississippi and some

19:08

are west and some are international

19:10

, but imagine rights of

19:13

nature impacting the whole

19:15

discussion over the lower Colorado River

19:17

, where you know

19:19

where could that go ?

19:21

Yeah , so this actually is a very common

19:24

feature of water loss . So I

19:26

taught at Duke until 2015 and

19:28

I'm an Easterner and I moved out

19:30

west to teach the University of California and

19:34

there's a verb that I had never heard

19:36

of before . I taught drinking water on the east

19:38

but really was a focus more on drinking water and

19:41

such and Clean

19:43

Water Act and there's a verb called to

19:45

dewater to dewater

19:47

a stream and I was thinking what does dewater

19:50

mean ? And dewater literally means

19:52

dewatering a stream

19:54

, and the prior appropriation

19:57

doctrine in some states

19:59

, the classic version , is

20:01

intended to dewater streams . The

20:04

goal is to put as much water as possible

20:06

to beneficial use , and

20:09

so one of the huge questions that's been in the center

20:11

of water rights and

20:13

water law more generally west of the Mississippi

20:15

for many years is well , what

20:18

about in stream flows ? What

20:20

about the flow for the fish

20:23

, for the muscles , for the environment ? And

20:26

there are different ways to get at that

20:28

, and I would say it's one of the most dynamic and

20:31

possibly overlooked parts of water

20:33

law . So

20:35

you know some states of what's called the public interest

20:37

standard . My

20:39

review of the cases is that's more

20:41

observed in the breach than in

20:44

the practice , but strictly

20:46

speaking , there should be a minimal

20:48

flow in the public interest that goes

20:50

to the stream . But of course then the argument

20:52

well , who's the public ?

20:55

Right , how much should we leave in the stream ? How much ?

20:57

And how much we leave in the streams , and when there's a drought

20:59

, are you really going to protect the

21:01

fish against the farmers ? This

21:04

is part of the climate story that's been going on for

21:06

a very long time , and

21:09

so part of it turns on how broadly

21:11

you want to think of a rights of nature idea .

21:15

Well , there are plenty of

21:17

smart lawyers out there that are going to

21:19

make some of these arguments into the future , and

21:21

hence the reason for this

21:23

discussion with you to think about these

21:25

opportunities

21:28

to change what we think

21:30

today . The law will be on the

21:32

rights of nature , and what

21:34

does it mean for the executive

21:36

director of a not-for-profit , what does it mean for

21:38

a drinking water utility or wastewater

21:40

utility , or even

21:43

a legislator or someone running water

21:46

policy for a governor

21:48

? Are we thinking we're going to have to play defense

21:50

or do we want to go on offense ? But

21:55

as you kind

21:57

of look at these cases , law

21:59

review articles , how does and

22:02

maybe I should frame it this way what are the features

22:05

of this rights of nature

22:07

paradigm , if you will

22:09

? There are different features . We just

22:11

talked what's the extent of it and who gets

22:13

to decide . There's

22:15

still this anthropocentric component

22:18

to it . A tree never

22:20

asked me how or told me how

22:22

it wanted to be

22:24

protected , right . Or a stream never came to me and

22:26

said gurgling , I would like this type

22:30

of treatment . And then are

22:33

these offensive rights defensive rights

22:35

and who gets to choose ? Who

22:37

represents the stream right ? Those

22:40

are just some general questions . We can go through them as

22:42

you see fit .

22:44

Yeah , I mean . So . There have been a lot of law review

22:46

articles written talking about just what a terrible

22:48

litigation strategy the rights of nature

22:51

would be in practice , and

22:53

you pointed out a few of the issues , right . So

22:55

, obviously , who speaks for the trees ? How

22:57

do we know what the trees really want

23:01

? What's the appropriate remedy right

23:05

? What kind of natural species

23:08

, population

23:13

, ecosystem , habitat , who

23:16

gets these rights right ? There are all kinds of huge , huge

23:19

questions , and so I actually I think it's a mistake

23:21

to focus narrowly

23:24

on rights of nature solely

23:26

as a litigation strategy . There's

23:29

never been a successful rights of nature lawsuit

23:31

in the US . I have my doubt

23:33

. Framed as rights of nature , I

23:35

have my doubts there will be one in the next 10 to

23:38

20 years . Now , as I said , there

23:40

are rights of nature light , yeah

23:43

. So , for instance , I think the monolake

23:45

decision could be framed as

23:48

a rights of nature decision

23:51

. You have to protect the ecosystem . Well , that's

23:53

pretty close to that , but again , those aren't that frequent

23:55

. There are , though

23:59

. So that's sort of rights

24:01

of nature . And again , I'm focusing on the US

24:03

. Once you look abroad , especially

24:05

in Latin America , there actually are

24:08

quite a few examples New Zealand

24:10

as well we can talk about if you'd like , but

24:12

focusing solely in the US , you're

24:14

not going to find rights of nature lawsuits

24:16

that are successful . I think that's going to continue

24:18

Doesn't mean they're not important , though , so let

24:20

me tell you a story . So

24:23

Toledo , ohio , right

24:25

Big city on the

24:27

banks of Lake Erie , and

24:30

they just faced terrible , terrible problems

24:32

over 10 , 15 years

24:35

with pollution

24:37

flowing into Lake Erie , particularly where they are , and

24:39

they had these dead zones . They had huge algal

24:41

blooms . Cyanobacteria

24:44

got into drinking water in 2014

24:46

. They couldn't use drinking water

24:48

for three days because of toxics from

24:51

the cyanobacteria that got into the drinking

24:53

water . It was awful , and

24:55

the city government and the state government just wasn't

24:58

getting the job done . And

25:00

so there is

25:02

a ballot initiative and

25:05

a lot of litigation Can you put on the ballot ? Can't you put on

25:07

the ballot ? Eventually , there's a ballot initiative

25:09

that is put on the ballot that's

25:12

very , very short and essentially

25:14

says should we give Lake Erie

25:16

legal rights ? And it became

25:18

known as the Leigh Board , the Lake

25:21

Erie Bill of Rights . When

25:23

you read the law that resulted from the ballot initiative

25:26

, it's clearly unconstitutional

25:28

. I mean , my law students in the first week

25:30

would know it's unconstitutional . For one thing

25:32

, the law says that it cannot

25:34

be preempted by state , federal

25:36

constitutional law and that

25:38

, actually , that

25:41

plays our legal system exactly upside

25:43

down right . It's the local laws that are most

25:45

vulnerable and they say , well , not us , right

25:47

. And so this is what I think of as sort of performative

25:50

rights of nature right . They

25:52

know that this is not going to hold up

25:54

in court . So why are they doing

25:56

this ? And the reason they're doing it

25:58

is that this is part of rights of nature as

26:00

a campaign , as

26:03

a political vehicle

26:05

, and what happens is

26:07

that the state creates a program called H2O

26:10

, hio which , as I

26:12

understand it , focuses on wetlands and such , trying

26:14

to sort of use the ecosystem service as

26:17

water purification , water purification

26:19

basically to prevent a lot of the nutrients

26:21

from getting into Lake

26:23

Erie . The idea

26:25

is the rights of nature law and

26:28

the rights of nature litigation . The

26:31

folks who are playing the inside games . They

26:34

know that's not going to succeed , but it's

26:36

very effective at raising the public profile

26:38

and , frankly , humiliating , embarrassing

26:40

the political actors and

26:43

sort of basically pushing them to do something

26:45

.

26:48

Yeah , that is interesting . I

26:51

can think of some other stories where that

26:53

played out in society . I'll

26:55

save them for later . But Do

27:00

you find it troubling that we

27:02

have to find people to decide what

27:04

the rights are of

27:06

nature ? And then how

27:08

do we battle ? If we are successful

27:11

establishing rights of nature , who

27:13

is the individual or the

27:15

firm that gets to represent the

27:18

piece of nature , the water , the tree , the

27:20

swamp ? Is that a

27:23

battle in and of itself in the future ? You've

27:26

got the Chamber of Commerce rushing to

27:28

beat World Wildlife Federation to figure

27:30

out who gets to represent the interests of

27:32

the lake . I'm just

27:34

trying to figure out how that would work in the future .

27:37

Yeah , so who's Lorax ? It's a basement

27:39

story what you're asking . Yeah

27:42

, that's an obvious problem . I'm

27:45

less concerned about that . I think

27:47

more of the rights of nature

27:49

approaches are most useful in

27:53

that regard as thinking about well , how

27:55

do we think more generally about governance of

27:58

resources . So think just

28:00

for a moment . So if you had a bunch of folks sitting

28:02

around a table who were deciding how to manage the Colorado

28:04

River , for example , the

28:07

discussion would be different if the river

28:09

was sitting at the table . Yeah

28:12

, so in other words , we think about sort of resource

28:14

management as satisfying different stakeholders'

28:16

interests , and

28:18

there's no interest that is truly identified

28:21

. It's truly the same

28:23

as the natural body itself . Environmental

28:26

groups may come close , but they're complicated

28:29

beings as well and they've got their

28:31

own internal incentives and

28:33

such , and obviously not all NGOs speak with the same

28:35

voice . And

28:38

so I think of the rights

28:40

of nature example you gave more

28:42

broadly as a governance

28:45

question . All

28:47

right , so how do we change our governance decisions

28:50

so that there's a greater

28:52

focus on what that particular natural

28:54

resource needs , if that's even a way to

28:57

put it . In

28:59

the past , how have we done that ? Well

29:01

, as you talked about , with the Superfund

29:03

sites and

29:06

more generally , rain pollution

29:08

, oil pollution . We

29:10

have these natural resource

29:13

trustees . Their

29:15

role , I think , is more sort of liability

29:17

. They're supposed to collect the money and then figure out how to

29:19

spend it , to try to restore and get back to

29:22

where we were . Is that a right of nature

29:24

, maybe ? Maybe it's basically

29:26

trying to place the resource back to where it was

29:28

. It's almost a contract remedy Right

29:30

. Place it where it would have been , but

29:33

for the harm . Some

29:35

Native American tribes are

29:38

trying to move more

29:40

toward co-governance . There's a lot of interest in the Department

29:42

of Interior with that at the moment

29:44

, the big push , particularly around the Grand Canyon

29:46

. For that Do

29:48

they speak for the river , maybe

29:51

more than other groups , but

29:54

they're a political body themselves . They've got

29:56

their own concerns , their own interests , and

29:59

so , when you look at the way we

30:01

govern these things now , there really is no

30:03

voice specifically for

30:05

nature . So then , the question you're raising , which I think is a key

30:08

one , is well , who could that

30:10

be ? Who could basically

30:12

represent the

30:14

voice ? And what I like to think of

30:16

is not only that , but what about future

30:19

generations ? We've

30:21

been talking about this sort of issue for

30:23

a very long time now , really since 1992

30:26

, and the rise of sort of sustainable development , as

30:28

we think about management and we

30:30

say we shouldn't manage our activities

30:33

today to sacrifice the

30:35

interests of future generations , well

30:37

, who speaks for that Right ? I

30:39

think it's a very similar problem

30:42

. We don't say that the idea

30:44

is intellectually bankrupt because it's

30:46

hard to figure out who gets to do that

30:48

, but

30:50

it's a practical challenge . But I think

30:53

there's been a lot of thought about that and people , I

30:55

think , pretty much accept that it's

30:57

reasonable to think about the interests of future generations

30:59

.

31:00

Where there's been less success .

31:01

I think , is where the question you're asking

31:03

as well who speaks for the future generations ?

31:06

Yeah , and

31:08

another nuance may be . I'm a farmer

31:10

with a private lake on

31:12

my property and I'm gonna sound like Vrpanos

31:15

here but is it hydraulically connected to some

31:17

other interstate

31:19

water body ? And so can

31:22

someone take a

31:24

position to represent the rights

31:26

of my private pond ?

31:28

And now what do I do ? Yeah , you can play out a whole

31:30

. You can be a law professor , you can do a whole parade of

31:32

horribles on this . But

31:35

my view is I take a step back . I mean , no

31:37

one seriously thinks that the rights of nature is going to

31:39

supplant our regulatory system

31:41

. I think it's actually

31:44

the reverse . I think there's interest in the rights of nature

31:46

because there's frustration with

31:48

our current regulatory system and

31:50

the feeling is we haven't done well enough

31:52

protecting Lake Erie , right

31:55

from unification , addressing climate

31:57

change slowing down and then

31:59

loss .

32:00

It's a philosophical red

32:02

herring that's used to drag our

32:05

existing institutions more

32:07

toward the position that these people want to

32:10

see .

32:11

I think red herring is a bit strong

32:13

.

32:15

So the quickest thing I could come up .

32:17

Yeah , there's something to that in the sense that I think that

32:19

the people who are really pushing this

32:21

litigation they

32:24

say that they think these are going to succeed . I think

32:26

, deep down , if you were to give them truth serum , I

32:29

think they might be a little more cautious

32:31

, but they've got to

32:33

. Basically , they've got to run campaigns and they've got to

32:36

get people excited . So I understand

32:38

where that's coming from , but

32:43

I think the way to think about it is to think

32:45

about it as part of a much larger

32:47

strategy , and the

32:49

larger strategy would be , for example

32:51

, the current politics

32:53

and the current laws and regulations are not

32:56

protecting Lake Erie nutrients

32:59

. It's just not . So what do we do ? Well

33:02

, let's try a different strategy . Let's go rights

33:04

of nature and

33:07

what do you know ? People are really excited about that . Very

33:10

, very similar thing happened in Spain with

33:13

an estuary called Mar Menor , m-e-n-o-r

33:15

. Very similar strategy that was successful

33:18

in a similar way . It's more

33:20

recent , but I think it's going to have a similar impact

33:22

.

33:24

It's kind of like filing a lawsuit and asking for

33:26

all this money

33:28

and compensatory and punitive damages , knowing

33:30

that , well , maybe not

33:32

get punitive damages , but you're sending a signal

33:34

, maybe you'll get better numbers on the compensatory

33:37

damages .

33:39

Yes , and it's the kind of lawsuit

33:41

that gets people excited .

33:43

Yeah , oh , this is new . We want to try this in

33:45

our state .

33:46

Yeah , I mean rights in nature has

33:48

a certain resonance , yeah , but

33:50

the problem is that once you sort of do what you've started

33:52

to do , which is say , okay , let's take this

33:55

very seriously and accept

33:57

it on its own terms , you

33:59

immediately get a lot of practical problems .

34:02

Yeah .

34:03

Right . You know , how far does this extend

34:05

? Is it fundamentally undemocratic

34:07

? I mean , there are a

34:09

lot of issues that come up once you

34:11

really , if you take it to its logical extreme

34:13

, which is why it's not going to go to its logical extreme

34:16

.

34:16

Yeah Well , what you know

34:18

, let's do the fun parade of harbors . I

34:21

mean what you know . First , the future

34:23

of rights of nature in 20

34:25

years . I think you've said your

34:27

position putting a stake in the ground . Look , I don't

34:29

think it's going to really go anywhere . I think it is

34:31

a . It's a tool

34:33

, a vehicle to encourage

34:37

people to strengthen existing

34:39

environmental policies , not

34:42

supplant them , if you will . But

34:45

what happens , if you know , you

34:48

and I are in the old folks home , as I like to say

34:50

, in 20 years , and we

34:53

pick up the paper and lo

34:55

and behold , there's a decision by some federal

34:57

district court or state Supreme Court , mm-hmm

35:00

, you know , some sort

35:02

of transformation scenario . What

35:04

does that look like ?

35:06

Yeah . So I want to be clear because this is being recorded

35:08

. I don't

35:10

think it's going nowhere . I think that the right

35:13

to date it hasn't gone anywhere . I wouldn't be surprised

35:15

to see occasional

35:17

lawsuits that get somewhere . Yeah

35:20

, so , for example , in Montana , the health

35:22

case you know that

35:24

was a right to a healthy environment . So it's not quite the

35:28

same . That's more sort of human , human based . But

35:30

you can , you know , argue there's a rights of nature aspect

35:32

to that . We could see some more

35:34

public trust doctrines . We could see some more

35:36

in stream flow cases

35:38

. So I do think I wouldn't be

35:41

surprised at all to see cases

35:43

over the next 20 years that are the

35:45

equivalent of a form of rights of nature

35:47

. I think the notion that

35:49

natural bodies themselves will

35:51

get legal personhood , I

35:54

think that's you know . I think that's more than more

35:56

than 20 years off . But

35:59

you know where . I do think you may see

36:01

a lot of action where rights of nature

36:03

is recognized as rights of nature is

36:06

in governance right

36:08

, governance of resources . I could definitely see that

36:10

happening and

36:13

I think , to a certain extent , you know , when you're talking about

36:15

co-governance with the Indian

36:17

tribes , that's

36:19

starting to move , I think , in that direction

36:21

, in the sense that it's moving away from this

36:24

solely sort of top down expert agency

36:26

. We're going to tell you the way this

36:28

is going to be .

36:30

Yeah , I do see the

36:32

what's the phrase we

36:35

need to . You know

36:37

, listen to the indigenous knowledge

36:39

that many of these nations

36:42

have not . Just , as you put it , you know , top

36:44

down , where the technocrats , let's

36:47

get out our rulers and tape measures

36:49

and tell you what it is . I

36:52

see that opening , I see that signal of change

36:54

. It remains to be seen where it will

36:56

go . But and

36:59

you make a good point , because every

37:02

state's different in their constitutions

37:05

, in their statutory

37:07

provisions . And I can remember , you

37:10

know , let's go back 30 , 40 years to

37:12

this paradigm

37:14

of environmental justice . Looking

37:17

at , you know , title VI of

37:19

the 1964 Civil Rights Act , who

37:23

would have thought that the kind

37:25

of the coalescing of civil rights and environmental

37:27

protection would take us to where we

37:29

are today , where we have some states that have laws in

37:31

the books . Or , you know , we have

37:33

executive orders by the federal government

37:35

and

37:38

just you know , people back then said , oh

37:40

, this is just another fad . But

37:42

here we are today with some meaningful

37:44

outcomes that maybe people weren't

37:46

paying attention to . And , as I think you

37:48

said , maybe it's 20 years , maybe it's beyond

37:50

20 years that we see aspects

37:52

of

37:55

this rights of nature coming

37:57

to fruition .

38:00

Yeah , I mean , I think that's a very

38:02

apt analogy . I

38:04

remember back in , you know , 1990

38:06

, 1991 , I didn't

38:09

think that EJ was going to sort of stick and

38:11

, as you said , you know it basically now

38:13

I think it's fair to say it's a dominant

38:16

paradigm of modern environmental

38:18

protection and you

38:20

know , 30 years isn't that long , and

38:23

so I guess you know where I see this

38:25

. I mean , I think of environmental protection like

38:28

this more generally , which

38:31

is oftentimes you will have the groups like

38:33

the Greenpeace , of the Sierra Club , who

38:35

are , you know , calling for big change , much

38:38

more than the political systems willing to give

38:40

. But they've got a gravitational

38:42

force and you know they can

38:44

. You know , if they get popular enough , they

38:47

can sort of pull the center toward them

38:49

. And I think I

38:51

can easily see rights of nature

38:53

playing a similar kind of role . And

38:56

it's when we think about these sort of pollution

38:59

regimes , governance regimes , are

39:01

we really thinking about what

39:03

this is doing to this particular

39:05

body of water , for example , differently

39:08

than we used to ? Yeah , right , we

39:11

remember that . I mean our laws that are applying to

39:13

these cases . They

39:15

were passed mostly in the 70s , right

39:17

, and we live in a very different world . And

39:21

so a lot of times when I teach environmental law or natural

39:23

resources law , I tell my students we're

39:25

essentially trying to serve soup

39:27

with a fork right . The 21st

39:30

century issues we're trying to manage we're

39:32

using 20th century tools and

39:35

they weren't designed for that . Climate

39:37

change is the most obvious example . The Clean

39:39

Air Act was not written with climate change in mind , and

39:43

so you know it's our go ahead .

39:45

No , I'm sure that I think it's the preamble

39:48

to the Federal Water Pollution Control Act that

39:50

says everything's going to be fishable

39:52

swimmable by 1982

39:56

. Is that ?

39:57

right . Ten years later , 83 .

39:58

Ten years later , and you know

40:00

no , no , no .

40:02

Rutkelshaus said famously at least they're no longer flammable

40:04

.

40:06

He has his stands on the Cuyahoga River . But

40:09

you know , I mean

40:11

, it just makes me

40:13

think about when

40:16

people say , well , that'll never happen . Sometimes

40:19

things do

40:21

happen , maybe not in the way that we intended

40:23

, but this is

40:25

fun to think about . What

40:27

about the other

40:30

scenario where , instead of it maybe

40:32

taking off it

40:35

and you alluded to this earlier but people

40:37

are they feel like this is being jammed

40:39

on their throat . And boy

40:42

, these crazy environmental people ? You know they're

40:44

just regulating my bathroom

40:46

now and my yard

40:49

and you know there's a backlash

40:51

. Could you see

40:53

that kind of scenario occurring

40:55

in the next 20 years ?

40:56

Oh yeah , easily . I mean if there is

40:58

a successful rights of nature lawsuit , and we've

41:00

seen it happen with public trust doctrine right

41:03

. So after the monolake decision a number

41:05

of Western states changed their state

41:07

constitutions to say there is no

41:10

public trust doctrine in our state .

41:12

Wow .

41:13

Also for sure , yeah , yeah .

41:16

And I mean I could see a future

41:18

where and

41:20

I'm a bit biased as a recovering

41:22

environmental enforcer where

41:25

you have a state

41:28

or federal government agency in

41:31

an enforcement context and encourage

41:34

or have an agreed order with

41:36

a company or with even a municipality

41:39

where they , as

41:41

part of the agreement , engage

41:44

some of the precepts of rights of nature on

41:47

a kind of a you know I'll call it voluntary

41:49

basis and it becomes a

41:51

maybe a surreptitious way to begin

41:53

to explore how this might

41:56

work in the real

41:58

world .

41:59

I mean maybe I mean we've sort of had that before with

42:01

supplementary environmental projects , and

42:05

so I mean , to a certain extent , I don't think rights

42:07

of nature is revolutionary and

42:10

that we can find aspects of it throughout

42:13

environmental law . It's just rights

42:15

of nature . Just , you know , ow in

42:17

your face says forget about

42:19

public trust auction , forget about natural resource

42:21

trustees , you know , forget

42:24

about these other things that get us close . I'm

42:27

a river and I want , you know , a seat , whatever

42:29

that means , at the table .

42:31

Yeah , but does it go too far

42:33

? When people think well , it says even forget

42:35

about humans .

42:38

Of course that's you know , that's where you start the parade of horribles

42:40

, right ? So you know what extent I mean

42:42

. Environmental law ultimately is about

42:45

balancing , is about tradeoffs . Yeah

42:47

Right , we actually don't want a pollution

42:49

. Free environment , all right , we

42:52

actually want , we want pollution , we want economic

42:54

development , we want jobs , right

42:56

? The question is , what's

42:58

the right balance , right ? What's the level ? The

43:01

level of pollution is enough pollution is good pollution

43:03

, so to speak . How much pollution is a bad

43:06

pollution ?

43:07

Right , yeah , I remember there's a quote

43:09

, I think , by former governor Wallace

43:11

. He smelled the pollution and

43:13

said you know , that's the smell of progress , or

43:16

something like that .

43:17

Yeah , All the way up old right .

43:19

He said a stump was our measure of progress , oh

43:21

yeah Well , my

43:24

final question is this seems to

43:26

be anchored in values , and

43:29

do you have any thoughts on how our

43:32

values as individuals may shape

43:34

the positions we take on the

43:37

rights of nature going forward ? Do you think that

43:39

society's values , worldviews

43:43

, are changing their

43:45

behavior , the way they value certain things over

43:47

others ? You think that's a trend

43:49

that's going to accelerate or dampen this

43:52

idea of rights of nature ?

43:55

I think you put your finger on the fundamental issue

43:57

Right Rights

44:00

of nature . In my view , rights of nature approaches are popular

44:02

because of a frustration with

44:05

the inadequacy of

44:07

our current environmental protection regimes , because

44:09

the values of stronger environmental

44:12

protection are not being realized . And

44:15

so the folks who are pushing rights of nature are

44:17

strategic right . They're opportunistic

44:20

, and rights of nature may be a way to get at

44:22

where they would like environmental

44:24

law to go , either because environmental

44:26

law should be enforced and it's not being

44:28

forced adequately , or there's a gap

44:31

in what our laws can

44:33

do with water rights and dewatering

44:35

and such , and the

44:37

rights of nature is a way to get us there . And

44:40

, as with all these things , what ultimately drives

44:42

our laws and regulations is values

44:45

right . It's ultimately a question of political

44:47

will . How much are we

44:49

willing to give up in order

44:51

to get environmental protection

44:54

there ? Ultimately is

44:56

a trade-off and those things change over time

44:58

. Yeah , and there's no question

45:00

. With my students I've been teaching since the

45:02

mid-90s . My students are

45:04

much more . There's

45:06

always been a lot of interest in the environment . I would say

45:08

my students today are

45:12

much more aware and focused

45:14

on the scale of the environmental challenges

45:16

than they have in the past .

45:17

Wow . Well

45:20

, professor Salisman , I want to thank you for being a

45:22

guest today on the Water Foresight podcast

45:25

. Tell our listeners

45:27

where they can contact you if they have any questions

45:30

, and don't forget to tell them about the book

45:32

you wrote on drinking water .

45:33

I will . So I'm a professor both at UCLA

45:36

, but look me up at the University

45:38

of California , santa Barbara Brent School of the

45:40

Environment that's where I live

45:42

, although I also teach at UCLA

45:44

, and so you can

45:46

just find me on the faculty page . I wrote

45:48

a book called Drinking Water A History

45:51

, which is a popular book

45:53

about the history of drinking water . If you like salt , if

45:55

you like cod , if you like books

45:57

that basically tell the history of the world to the prism

45:59

of a commodity , that's

46:02

the book for you . I also wrote a popular book

46:04

called Mine Exclamation Point how

46:06

the Hidden Rules of Ownership Control

46:09

Our Lives , which has a fair amount in it about water

46:11

. Very similar kind of take

46:13

on the different ways we own things and how

46:15

that determines who gets what and why .

46:18

Wonderful . I'm looking at my book of drinking

46:21

water right now on my bookshelf . It's wonderful

46:23

. I enjoyed it .

46:24

I hope , I hope well-thumbed .

46:25

I encourage everyone to pick up a copy . It is very

46:27

accessible , very well-written

46:29

, thank you . Thank you for listening

46:32

to the Water Foresight podcast powered

46:34

by the Aqualars Group . For more information

46:36

, please visit us at Aqualarscom

46:38

or follow us on LinkedIn

46:40

and Twitter .