
Should Rivers Have Rights? A Growing Movement Says It’s Time - DyslexicAtheist
https://e360.yale.edu/features/should-rivers-have-rights-a-growing-movement-says-its-about-time
======
rayiner
The article is really out to lunch from a legal point of view.

> Western legal systems and governments traditionally viewed water and water
> rights as property, leading to overuse and contamination

That’s exactly the opposite of what is true. At least English law has never
treated water as property. In England, and most of the east and midwest of the
US, riperian doctrines apply to water. (I’m going to leave out the west coast,
which has a nutso way of doing things.)

Common law riperian doctrine was strict: upstream property owners cannot
impair the quality of water flowing through their land because downstream
property owners have a right to unimpaired water quality. If we still did
this, our rivers would be very clean! During the industrial revolution, the
riperian doctrines were made looserc _weakening_ the rights of downstream
property owners.

The problem is that we _don’t_ treat water like property. We can pollute it
freely because nobody can sue us for it. I live on a river, and we can’t swim
after a heavy rain because of all the crap washed into the river from upstream
farms. If I had property rights in the water, I could sue those farmers, and
the price of food would rise to reflect the externalities of farming. But we
treat water as a commons, where no individual has enforceable property rights.

~~~
klenwell
> I live on a river, and we can’t swim after a heavy rain because of all the
> crap washed into the river from upstream farms. If I had property rights in
> the water, I could sue those farmers, and the price of food would rise to
> reflect the externalities of farming.

This is a thought-provoking argument. But if you had property rights, could
you not also restrict access to the river so that no one else could swim on
it? And what if you don't care to swim in your river but are fine with
accepting upstream pollution in exchange for payment from the polluters? What
if a big agro-conglomerate simply buys the river?

It seems to me that key to the traditional riperian doctrine you cite is not
property rights so much as the legal regulation:

> property owners cannot impair the quality of water flowing through their
> land

If water quality must be maintained, what does it matter whether it is
individual property owners or the EPA taking up the cause? If we can imagine a
future where riperian doctrines could be retightened to strengthen the rights
of downstream property owners, why not imagine one where a properly managed
and funded state or federal agency takes responsibility?

~~~
erikpukinskis
> why not imagine one where a properly managed and funded state or federal
> agency takes responsibility?

Why bother? Existing property law should be enough. If you poison water on my
property, you pay me to make things right.

There’s no need for any government involvement besides civil courts, and
investigative bodies (FBI, local detectives, etc).

In practice these property owners don’t really believe in private property.
They think they can just dump contaminants onto other people’s property
because containment is inconvenient.

It’s not a consistent moral position and their time is coming. There will be a
reckoning and they will (financially) pay for their crimes. The arc of the law
is long but bends towards justice.

Don’t get me started on the upcoming resolution of Native American and chattel
slave property rights, which are as yet largely unadjudicated. Most (not all)
property in this country was illegally seized, and he courts have yet to rule
on the true ownership of most of those plots.

------
xigma
If a river becomes a legal person, the government can prosecute it for
crossing some threshold. The sentence will be forced labor in a dam for 100
years. The duration may sound harsh, but rivers outlive humans by a long
margin.

~~~
schiffern
We managed to avoid silly things like this while making corporations "legal
people." I see no reason that legal theorists should be selectively
incompetent here.

Don't get caught up on the word "river," which is just a specific example. The
general case is "ecosystem."

~~~
rayiner
Corporations are legal entities composed of people, so it makes sense to treat
that the aggregate would have similar rights as the individual. When we say a
corporation has the right to free speech, we mean that you cannot restrict the
right of people just because they’re acting together through a corporation.

Rivers, of course, are not people nor are they composed of people. Nor are
ecosystems. People might be affected by, for example, what happens to a river.
All of this legal wrangling over river personhood is an attempt to avoid
having to show that effect.

~~~
schiffern
> Nor are ecosystems [composed of people].

Isn't that definition exactly the problem? An ecologist would disagree of
course, but how curious that every other species is considered part of the
ecosystem, but we are not! We're subject to all the same ecological laws.

The humanity vs. nature separateness is of course entirely invented. But it's
built into our very language: consider the other-ing effect of the term
"environment" for instance.

> All of this legal wrangling over river personhood is an attempt to avoid
> having to show that effect.

You have it flipped around. The legal wrangling is almost entirely on the part
of polluters seeking to avoid accountability (to great success, I might add).
It helps that the 'environmental regulations' are written by the polluting
industries themselves.

They use poorly characterized mass flows through the environment (there's that
word again) and pollution etiologies (often "poorly characterized" because the
company covered up its toxicity research, eg PCBs) like a cryptocurrency
tumbler, laundering away their own liability for poisoning their neighbors.
It's unconscionable.

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__m
So this provides some legal framework to handle questions regarding
environmental impacts of human activities? Is it really that difficult to
implement laws that protect rivers without engaging in a debate whether a
river can hold rights? Opponents will have a field trip ridiculing the
argument distracting from the goal of protecting the environment.

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redahs
> Chile’s Water Code was established during the Pinochet dictatorship, and
> still treats water as a replenishable (rather than increasingly scarce)
> natural resource. Under the code, companies may trade water rights to the
> highest bidder

If there's a bidding process already in place, the Chilean government can
charge companies the bid value annually as a public natural resource rent, and
place the tax revenues in a permanent fund for conversation efforts. Instead
of calling a river a legal person, a formal government charted corporation can
be created for the river to distribute revenues from taxes on water right
holders in a pro-social manner. This would be somewhat similar to 'Cap and
Dividend' proposal for climate change.

------
schiffern
I never understood this concept (always stuck me as 'woo') until I watched
this video by award-winning environmental lawyer Thomas Linzey. I won't try to
paraphrase since it would leave so much out.

[https://www.linktv.org/shows/thomas-linzey-earth-at-
risk-201...](https://www.linktv.org/shows/thomas-linzey-earth-at-
risk-2014/episodes/earth-at-risk-thomas-linzey)

~~~
pier25
So what happened after 2014?

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xalava
We worked on a concept based on this idea a couple of years ago, at the
highest of DAOs and Smart Contracts hype.

There is already the possibility to create environmental protection non-
profits for a specific area. In France, and other countries, it gives you the
right to participate in lawsuit and even collect reparation for ecological
prejudice ([https://www.euractiv.com/section/climate-
environment/news/er...](https://www.euractiv.com/section/climate-
environment/news/erika-oil-slick-trial-sets-ecological-prejudice-precedent/).
You can't however sue on behalf of the river's endangered interests. Giving
legal personnality doesn't necessarily change the law as the article implies
but change the way the law works.

Our concept was to add 'economic personnality'. Natural resources such as a
river would have a cryptoasset account collectively managed by donors.
"Gardeners" are local people hired by this collective to execute maintenance
tasks, or lawsuits, while this board of donors oversee the management of the
founds. Compared to a local non-profit, you gain easy internationalisation of
donors and more transparency on funds allocation, potentially avoiding
corruption.

The key is in the governance rules. As pointed in the article, it is extremely
difficult to represent fairly and combine populations' interests and
environment protection at the local, national and worldwide levels.

A visual demo can be seen here
[http://forest.lesusineslouise.com/](http://forest.lesusineslouise.com/)

~~~
schiffern
You're solving the wrong problem.

That's just an inefficient, roundabout way to manage a environmental legal
defense team (will lawyers accept crypto-Monopoly money?). But such legal
defenses are actually quite ineffective (by design!) at preventing ecological
harm, even when they win the lawsuit.[1]

[1] [https://www.linktv.org/shows/thomas-linzey-earth-at-
risk-201...](https://www.linktv.org/shows/thomas-linzey-earth-at-
risk-2014/episodes/earth-at-risk-thomas-linzey)

~~~
xalava
I beg to differ. Exactly as shown your video, environmental protection is
currently mainly led as an element of public policy. Hence, when it conflicts
with economic and individuals' interests there is not much weight to preserve
regulations and budgets.

The approach taken in recent years consist in creating or empowering an entity
to represent of those interests. The more legitimate and the more economically
robust is this entity, the more difficult it will be to act against its
interests.

It is imperfect, but I think that this approach should be explored when
existing regulations consistently fail

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gruez
this idea -the concept of treating nature as a legal entity and awarding them
damages to protect the environment- isn't new. see: "should trees have
standing"[1].

[1] [https://iseethics.files.wordpress.com/2013/02/stone-
christop...](https://iseethics.files.wordpress.com/2013/02/stone-christopher-
d-should-trees-have-standing.pdf)

------
pwaai
but a river is not an animal or human.....

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DanielGee
No. This is as silly as vegans saying animals deserve the same rights as
humans because we are animals too. Does that mean we have to prosecute a lion
that kills a wildebeest? Or what happens when my dog kills a rodent or a cat
kills a bird? Should they be imprisoned?

If rivers have rights does it also has responsibility and culpability? What
happens if a river overflows and few people drown? Do we punish the river?

A question in the title aside, I love the advocacy embedded in the title. "A
growing movement"? From what to what? 2 to 3 people? The article is trying to
grow the movement, it isn't reporting on a growing movement.

The only way to give rivers rights is to give it personhood rights in the same
vein as corporations. But that means that rivers become privately owned
entities. Do we want rivers to be owned by shareholders?

Rivers, like animals, are natural resources. Nations and states are stewards
of it.

~~~
eatitraw
> Should they be imprisoned?

No, because other animals don't have mental capacity to truly understand the
consequences of their action.

That said, I've never really seen a consistent argument against _protecting_
prey animals from lions (and letting lions die out).

~~~
Rainymood
>No, because other animals don't have mental capacity to truly understand the
consequences of their action.

A lion knows full well that it survives another month when it kills a
wildebeest and that it can feed it cubs. What more is there to "truly"
understand?

~~~
freehunter
When a mentally capable human kills another human, they do so with the
understanding that killing that human will cause other humans to grieve the
death of that human, and will remove that human's productivity from the world.
They've made that connection and have decided to end that human's life anyway,
so they are held responsible for the outcome of that. This is why people who
are mentally incapable of understanding this are not punished the same way as
people who _are_ mentally capable.

A lion is not, to the best of our understanding, capable of understanding that
killing another animal will cause grief to that other animal's family. If that
other animal's family is even capable of understanding and/or grieving their
death. And then we'd have to prove the killing was done with malicious intent,
because just merely being responsible for someone's death, even as a human, is
not immediately a criminal offense.

But it's a silly argument anyway because humans are often not prosecuted for
the death of non-human animals, especially when that non-human animal is
killed for food. So the idea that we would prosecute a lion for killing and
eating an antelope is laughable when we don't prosecute a farmer for killing a
cow for food.

