Wednesday, October 16, 2013

legal rights for natural objects: de-regulation by stealth

b) Assuming that it is possible to expand our notion of legal persons beyond human beings and corporations, what are the benefits (or challenges) of extending legal personhood to the entities containing common pool resources such as rivers or trees (forests)? Should trees have legal personhood?


            While there are both benefits and challenges of extending legal personhood to common pool resources, I think this discussion needs to actually begin with a comparison of the proposed personhood approach with existing regulatory practices.

            On first glance, it may seem as though the idea of giving trees legal personhood is the ideologically opposite idea of setting up strong regulatory bodies. Legal personhood implies liberal individuality, while state regulation implies collectivist decision-making by a centralized body. The approach of legal personhood is even suggested as a solution to the problems inherent in regulatory bodies, which include co-option by the governing party as well as by the industry that the body is trying to regulate.[1] However, it's not at all clear exactly why it might be thought that a trust fund run by "guardians" would be any less susceptible to that kind of corruption. Would industry not also attempt to gain a controlling interest in the trust fund? Based on the experience we've had with industry influence over our elected bodies[2], not to mention the experience with looted aboriginal trust funds,[3] or the phenomenon of greenwashing,[4] it cannot be stated with much confidence that a democratic and transparent process would act as a buffer against industry influence, either. The possible ramifications of industry taking over these trust funds are actually quite startling. A lumber company would have a strong interest in becoming a guardian of the forest, whereas a drink bottling company would desire guardianship over water sources. Perhaps rules may be erected to disallow these conflicts of interest, but their enforcement depends on the existence of a functioning regulatory system, and if we are to argue that this is a reasonable hope then we have no need to shift to personhood in the first place! If the problem here is that regulation is ineffective, legal personhood is not a solution.

            Stone also points out that legal personhood has implications of responsibilities as much as it has implications of rights and that legal personhood for resources could consequently lead to judgements against the environment for negligence or harm.[5] While he optimistically suggests that this could lead to more equitable restitution and greater infrastructure, he does not contemplate how this could open up legal arguments and tactics that could be used to clear existing regulatory hurdles. It is possible, then, that the trust fund might not just fail to protect these resources from exploitation, but might also open them up to the possibility of even greater exploitation; should industry exploit the trust fund system as fully as it has exploited the regulatory system, the only difference between a trust fund and a regulatory body would be less public oversight.

            Perhaps the key point to this derived equivalency between granting personhood and applying regulation is the existence of a system of control. One of the key concepts to legal personhood - even for legal persons that are not natural persons - is self-determination. It is arguably rationally incoherent - at least linguistically - to give an entity personhood and then deny it self-determination by assigning it to the subservience of some other disconnected sentient will. A corporation can make its own decisions and express it in language that humans can understand; if a forest has a level of consciousness, it is unable to express it to us.[6] Any attempt to protect these resources is consequently going to behave as a regulatory body. The only difference can ever be who is regulating - and who is regulating the regulators.

            Stone also ignores the question of how effective a system of tort would actually be in protecting resources, and even implicitly suggests that it wouldn't be effective at all by salivating over the restitution that such a fund would be able to ensure.[7] A large trust fund held for the resource would be proof that this approach has failed in preventing harm, not something to celebrate. Currently, large companies tend to view litigation as little more than the cost of doing business.[8] If a cost-benefit analysis concludes that the consequences of destroying the river are less than the profit that could be increased by destroying the river then the river will be destroyed and the fine for doing so will be paid.

            While the tone here is so far quite cynical, that should not suggest that the switch to legal personhood may not have benefits. It is likely to give people that use or need resources a greater say in how or whether they are protected.[9] While increasing the costs of pollution may be more likely to increase inflation than decrease pollution, it would still act as a competitive disincentive to pollute more than is necessary.[10] Introducing the language of rights to the environment would likely change our conception of nature for the better.[11]

            However, the actual change in regulatory practices is likely to be minimal - as the regulation of the resource would merely shift from the public to the private domain, giving legal personhood to resources seems like little more than another form of deregulation.


[1] Sierra Club v. Morton at Casebook 425
[2] http://www.polisci.ccsu.edu/trieb/InfluGov.html
[3] DeVries, Laura. Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law. UBC Press, 2012. p. 37.
<http://books.google.ca/books?id=0KRGpyO7DncC&pg=PA37&lpg=PA37&dq=six+nations+trust+fund+stolen&source=bl&ots=W3gnCfQtYw&sig=AYfZ3r2dM-uRNc37_rIghSLXV0E&hl=en&sa=X&ei=VDF8UbqqDcnX0gHG94GwBg&ved=0CFIQ6AEwBA#v=onepage&q=six%20nations%20trust%20fund%20stolen&f=false>
[4] http://www.youtube.com/watch?v=iHsIjMPP2M8
[5] Stone at Casebook, 432
[6] http://www.huffingtonpost.com/2012/06/05/do-plants-think-daniel-chamovitz-see-feel-smell_n_1571027.html
[7] Stone at Casebook, 431-432
[8] http://www.maacenter.org/blog/death-the-cost-of-doing-business.html
[9] Stone at Casebook, 430-431
[10] Stone at Casebook, 432
[11] Stone at Casebook, 432

laws 2201
april, 2013 


http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/standingtrees.html