Assess the contribution of Stones Article Should Trees Have Standing to the Development of Modern Environmental Law?
Almost 30 years ago, a Professor of Law at the University of Southern California named as Christopher D. Stone, wrote a provocative law review article and this article was considered as most elegant article at that time. He addressed this article on environment law and place of humankind’s in the world. This article is known as should Trees Have Standing? Toward Legal Rights for Natural Objects (Trees). In this article, Stone argued for providing legal rights to natural objects and areas and he also gave formal voice to land ethic. Concept of land ethic was introduced by Aldo Leopold. Stone further stated that development of law was achieved by providing right to those persons and entities which are considered as incapable by the society for having any rights such as children’s, slaves, women, etc. All these peoples and entities get benefits from this drive and get legal voice and legal rights which they don’t have before[1]. In this paper we assess the contribution of Stone’s article in the development of modern environmental law. Subsequently, this paper is concluded with brief conclusion.
Article authored by Stone provides accurate points for analysis, and this article is more specific, clear, and easy to understand. Stone first argued to provide legal right to natural objects, and he made this proposal at that time when such concept was unthinkable. This proposal is equally unthinkable as the proposal which state that legal rights must be provided to women, children, and blacks in 18th and 19th Century. According to Stone, every proposal for providing legal rights was opposed until the thing for which legal rights were proposed was seen valuable for itself by the person and not only something which fulfills social need. Therefore, it is clear that providing legal rights to environment is considered as recognition of environment value[2].
In New Zealand main legislation for the purpose of managing the environment is Resource Management Act 1991 (RMA), and this legislation set the framework for RMA processes such as resource consent, council plans and designations, proposals of national significance, and how legislative tools are issued under the RMA. This Act also states how local authorities monitored the RMA process. This legislation is the result of efforts made by Stone through his article.
In his article, Stone addressed double aspects of rights which are provided to natural objects. In his first aspect, Stone gives attention to “legal operational” aspect and second aspect was “psychic and sociopsychic” aspect. In legal operational aspect there are three factors which are existed to consider the environment at jurally level[3]. First factor stated, that any entity related to environment must be able to institute legal suit on its own behalf, second factor states that Court must consider the injury suffered by right holder while determining the relief, and thirdly relief must be provided for the benefit of environmental right holder and not for those who has right to use the environment. In this Stone introduced the practical problem related to conferring legal rights in the environment and considered the environment jurally. For example, how rivers file legal suit and to whom damages are awarded. These problems are not that much big. Firstly natural objects can initiate legal action through their friends such as Sierra Club or Friends of the Earth, who are appointed as guardian to protect the legal rights provided to natural objects. Role of guardian is very different from public agency charged with environmental protection. Guardian was not like Federal and state departments who have responsibility of public resources because guardian is not responsible for fulfilling institutional goals. The main aim of guardian was to protect the natural object. Under this article injury include both present as well as future damages. Damages are calculated after considering the cost incurred in making the environment and also includes pain and sufferings of animals[4].
Stone stated his argument in the article in very elegant way, but still article do not considered for making law review and disappear in scholarly oblivion. This article survived because after few days of publication of this article, Justice William O. Douglas give reference of this article in his Supreme Court decision for the famous case Mineral King Valley that was Sierra Club v. Morton, 405 U.S. 727 (1972)[5]. In this case, Court gives its judgment against the Sierra Club. Court stated that club is not able to allege the injury and they have no sufficient evidence to challenge the decision made by the Forest Service’s issuance of providing permit for resort to Walt Disney Enterprises. But this decision was not applied for long time and on remand club made some changes in their allegations and include claim against Forest Service for violation of recently enacted National Environmental Policy Act of 1969 (NEPA). In 1978, congress ended this debate by added the Mineral King Valley to Sequoia National Park in California[6].
Efforts made by sierra club to preserve the king valley was noticed and in the same manner efforts made by Stone through his article was noticed by Douglas, but it was unfortunate that neither trees nor the decision made by Douglas are considered much in judicial decisions. Idea introduced by Stone was not adopted in its pure form, but this idea was first considered in court and found its ground in other branches of government for future actions.
Both Federal and state government enacted laws in 1972, and there are number of state governments who allowed their citizen to file suit either directly or as attorneys general or public trustees to challenge the decision made by agencies or for seeking damages for injury caused to environment. Through these laws government provided more protection to natural areas by making sensible decisions and encouraging better environmental practices. However, major changes are introduced by NEPA and effective implementation of NEPA. The concept of Stop, look and listen was introduced by Congress to federal agencies in NEPA, and this concept changed the decision making process related to environment. Number of suits was filed in 1970s and 1980s, and because of these suits it becomes clear that federal agencies cannot make any decisions which have significant effect on human environment without considering the effected resources, they have to find different alternatives for proposed action, and taking comments from general public. This process becomes very important for federal agencies not only in those cases in which they have to take decision but also in those cases in which congress is taking the decision and this process was also considered by state governments and local authorities.
Today path followed by government agencies for making the decisions related to environment has been affected by the ideas introduced by Trees because in this article Stone changed the topic of debate related to resources. Debate related to any proposal of particular nature has a quality of “utilitarian” but in this language has been changed because people believe that they receive real valuable benefits from nature[7].
In his article Stone provides structure for changing the ethical rights of natural objects into legal rights. Leopold in his article gives emphasis to the ethical responsibilities of landowners which are supported by community norms, social pressures, and the internal workings conditions[8]. According to Stone, these factors are not enough for effective mechanism. He argues that legal right provide dignity to the natural objects. Stone stated that Recognition of the legal rights of natural objects will become helpful in many cases, even if one person has complete ethical approach towards environment. Legal rights serve the purpose of human interest even for future generation[9].
After the publication of this article many changes take place in the legislation. There are number of natural entities which consider other damages also rather than some economic benefits which are provide in such cases. Government framed many federal and state statutes which provide protection to the different parts of the environment such as air, water, marine mammals, endangered species, wetlands, and wild rivers. These statutes play important role in considering the environment interest but they does not always give preference to nature’s interest over human interest as stated by Stone in Trees that rights need not to be absolute to be real[10].
Stone also stated other two criteria for providing legal rights to natural objects which are not able to achieve completely. There are some cases in which legal remedies especially focus on the natural entities such as the oil pollution act and CERCLA, and these legislations provide only those awards which are able to restore the harm caused to natural system. In many cases, penalties imposed on violation of environmental laws are submitted to the general treasury, and in other cases suits filed by citizen’s result in injunction which stop the harmful actions but they are not able to provide any money damages which can be used to reverse those effects.
There are number of practical problems which are introduced while following the approach of Stone and enabling people to file suit for nature’s protection. Decision made by Supreme Court in case of Sierra Club v. Morton, made it clear that non-economic human interests could provide support. Suits filed by Citizen for the protection of environment under environmental statutes have expanded the range of legally protected interests.
There are number of questions which we face today such as what aspects of nature should be considered by court and how much, in what manner human interest should be subordinated for the environment interest, authority to make these decisions, and framework to structure the society which helps in protection of natural interest. For answering these questions we require both moral and legal factors. We are the witness of both first and second generation environmental law and we are standing at appropriate point to ask many questions which are related to the relationship between environmental ethics and environmental policy[11].
Stone was under an incredible time when he wrote Trees and he provides only an outline of his thinking to his readers. After thirteen years of trees Stone make some corrections with the publication of Should Trees Have Standing? Revisited: How Far Will Law and Morals Reach. In this article he support the concept of moral pluralism, and in this concept he states that one set of ethical principles may regulates the one group of moral activities and other set of ethical principles may regulates another group of moral activities.
Lastly we state whether views of Stones articulated in Trees are able to attract more people in the long run or not. Questions stated by article are really unique because it not only consider the relations of present generation but also consider the relations of future generation. Even John Rawls in his Theory of Justice does not try to answer all questions related to moral considerations. Rawls further stated that his theory of justice is not the complete theory he fail to consider all moral relationships[12][13].
Conclusion:
At last we conclude that, concept introduced by Stone was very effective and it leaves great impression on the environmental law. Contribution of Stone article in the development of modern environmental law is really important and no one can deny that the concept of legal rights of natural object is the idea introduced by Stone.
References
JOURNALS
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972) 45 S. CAL. L. REV. 450.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972) supra note 2, at 456.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972) at 458.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972), supra note 3, at 11.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972), supra note 3, at 10.
Doremus, H. Symposium Introduction Environmental Ethics and Environmental Law: Harmony, Dissonance, Cacophony, or Irrelevance. (2003). University of Caligfornia. Vol 27(1). Pp-2-11
Emond, D. Paul. “Co-operation in Nature: A New Foundation for Environmental Law.” (1984) Osgoode Hall Law Journal, pp- 323-348.
Laurence H. Tribe, Ways Not to Think about Plastic Trees: New Foundations for Environmental Law, 83 YALE L.J. 1315 (1974).
LEOPOLD, supra note 2, at 209.
Perkins, J. J. Christopher Stone and the evolution of environmental Justice. <https://www.princetonindependent.com/issue01.03/item10d.html>.
WEBSITES
Purdy, j. Our Place in the World: A New Relationship for Environmental Ethics and Law. Retrieved on 7th march 2017 from: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5179&context=faculty_scholarship.
Find law. Sierra Club V. Morton, <https://caselaw.findlaw.com/us-supreme-court/405/727.html>.
CASES
Sierra Club v. Morton (1972) , 405 U.S. 727.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972) 45 S. CAL. L. REV. 450.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972) supra note 2, at 456.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972) at 458.
Emond, D. Paul. “Co-operation in Nature: A New Foundation for Environmental Law.” (1984) Osgoode Hall Law Journal, pp- 323-348.
Sierra Club v. Morton (1972) , 405 U.S. 727.
Find law. Sierra Club V. Morton, <https://caselaw.findlaw.com/us-supreme-court/405/727.html>.
Perkins, J. J. Christopher Stone and the evolution of environmental Justice. <https://www.princetonindependent.com/issue01.03/item10d.html>.
LEOPOLD, supra note 2, at 209.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972), supra note 3, at 11.
Christopher D. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (1972), supra note 3, at 10.
Doremus, H. Symposium Introduction Environmental Ethics and Environmental Law: Harmony, Dissonance, Cacophony, or Irrelevance. University of Caligfornia. Vol 27(1). Pp-2-11
Purdy, j. Our Place in the World: A New Relationship for Environmental Ethics and Law. Retrieved on 7th march 2017 from: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5179&context=faculty_scholarship.
Laurence H. Tribe, Ways Not to Think about Plastic Trees: New Foundations for Environmental Law, 83 YALE L.J. 1315 (1974).
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