Should Trees Have Standing? Toward Legal Rights for Natural Objects, by Christopher D. Stone, Los Altos, CA: William Kaufmann, Inc., 1974, 94 pp., $7.95.
Have you ever been sued by a tree? Or enjoined by a squirrel? Or subpoenaed by a swamp?
All of these perils, and more, may await us if USC law professor Christopher Stone has his way.
Briefly stated, Stone wants trees, animals, waterways, kelp, deserts, bogs, and other natural phenomena to be permitted to bring legal actions to enforce their own interests; i.e., to have standing in the courts.
The legal doctrine of standing is a judge-made rule designed to prevent vexatious suits by persons who have no bona fide interest in the issue. This relates to pure nuisance suits as well as to the more recent phenomena of persons who seek to resolve political issues through the judicial process.
It is this last issue—the use of the courts to press political claims—to which Professor Stone is really addressing himself.
The problem arose because the Sierra Club wishes to be allowed to bring suit whenever it disagrees with any action taken with respect to the environment. Specifically, the Club sought to challenge the Forest Service's grant of development rights to Disney for the Mineral King Valley and was rebuffed by the courts on the ground that it lacked standing to litigate the issue.
The case eventually reached the Supreme Court and the Sierra Club lost. Rather than belabor the argument of whether or not the interest of the Sierra Club was sufficient to grant it standing, Professor Stone proposes a quantum leap in juridical science: The Mineral King Valley itself should be recognized as a party with standing to seek justice in its own right.
It is irrelevant, argues Stone, that the valley is not a person as you or I. The law recognizes many nonhuman entities and permits suits in their name; e.g., corporations, charitable trusts, vessels, decedents' estates, etc. Since the evolution of the law is marked by the extension of the rights of personage to what were formerly treated as nonpersons (e.g., children, married women), it represents no great anomaly in legal development to extend this recognition of personhood to forests and marshlands and rivers and the hundreds of other natural entities that may be irreparably harmed by man's rapacity.
Today, these entities must rely on human representation of human interests for their protection. Yet it can easily be the case that the sum of the interests of the human parties will not equal the total damage to the environmental entity harmed.
The fact that a tree might not be able to seek out a lawyer and participate in the prosecution of its case is of no consequence. We have long recognized in the case of incompetents that court-appointed guardians could make these decisions for them. A court-appointed guardian of the trees, some person who is both knowledgeable and concerned with the best interests of the trees, could bring suit and represent their interests. If you think this guardian sounds rather like the Sierra Club, you have understood what Professor Stone is up to.
There are several levels on which to criticize Stone's thesis. With few exceptions, the historical examples of entities that have been recognized as persons by the law in fact are persons, either individually (e.g., a married woman) or collectively (e.g., a corporation) or representatively (e.g., a charity or, perhaps, a governmental unit). The exceptions—the ship guilty of piracy or the pig hung for murder—are hardly idealized examples of legal justice.
More seriously, what interests—let alone rights—does a tree have? Is it in a tree's interest to be cut down? Maybe the tree wants to be cut down. Even if the tree doesn't want to be cut down, maybe it is in the best interests of the forest as a whole that it be cut down. What do the squirrels think about it? May the bears interplead?
Professor Stone seems to be serious about all this (and his thesis was cited with approval in Justice Douglas' dissenting opinion in Sierra Club v. Morton in 1972), so one ought not to treat it lightly, but it is just very difficult to contemplate the ramifications of this thesis without lapsing into parody.
The representation of the interests of a party who cannot express his own will is far from satisfactorily handled, even in conventional legal practice. How often does it happen that the "best interests" of an elderly incompetent are not, in fact, merely those of his heirs or creditors?
It seems highly unlikely that the best interests of the trees would be other than the preferences and tastes of the Sierra Club and other self-appointed environmental guardians whose vision of nature is of a peculiar frozen time in which the forces of change are arrested and man does not exist.
If evil developers cut trees and the land erodes, has nature been injured? Is not erosion, even a whole forest washing away into the sea, a natural process? Nature changes, but can we say it is harmed?
If our forest is destroyed by erosion, those who enjoyed the forest suffer, but nature itself continues. The only "harm" is to the individuals who enjoyed nature as a forest. If an action lies to prevent a harm, it must be on their behalf, not on behalf of nature. The interests for which Professor Stone argues are not the interests of nature, but the interests of certain individuals, and we would do well to keep this distinction in mind.
Davis Keeler practiced law in Chicago before coming to California to head the Law and Liberty Project of the Institute for Humane Studies in Menlo Park. The Project recently sponsored an interdisciplinary conference on environmental planning. His Money Column is a regular bimonthly feature of REASON.
This article originally appeared in print under the headline "Should Trees Have Standing?".