In a lawsuit filed on September 25, 2017, a U.S. District Court in Denver is being asked to rule that the “Colorado River Ecosystem” is a “person” capable of possessing rights, including “the rights to exist, flourish, regenerate, be restored, and naturally evolve.” Standing to enforce various laws designed to protect the environment is already well-established in federal courts. This suit goes beyond seeking standing, however, and asks the court to establish new substantive rights under federal law for protection of the environment. The complaint seeks declaratory and injunctive relief against the State of Colorado to prevent or redress alleged violations of the claimed rights of the Colorado River Ecosystem. [(Colorado River System v. State of Colorado, Case No. 1:17-cv-02316-RPM (D. Colo.).]

The Legal Standing of the Natural Environment

The idea of independent legal standing and rights for the natural environment is not new. As but one example, in 1972 Professor Emeritus Christopher D. Stone argued the natural environment should have standing and enforceable rights. Christopher D. Stone, “Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” 45 S. Cal. L. Rev. 450 (1972). At the time of Professor Stone’s essay, the U.S. Supreme Court was considering the standing of the Sierra Club to challenge a proposed ski resort in the Sierra National Forest promoted by Walt Disney Enterprises. The Sierra Club alleged it had an organizational interest in the conservation and protection of national forests. A four-justice majority of the Supreme Court found the Sierra Club lacked standing to sue under the Administrative Procedure Act, because “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 272, 734-35 (1972). In a widely-noted dissent that cited Professor Stone’s essay, Justice Douglas suggested that:

• . . .[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. Sierra Club v. Morton, 405 U.S. at 741-42.

While the Supreme Court in Sierra Club v. Morton found the Sierra Club failed to prove standing, it laid out the showing of injury that would have satisfied the standing requirement. What was needed, it explained, was a showing that at least some of the Sierra Club’s members use the area, and that for those members “the aesthetic and recreational values of the area will be lessened by the highway and ski resort.” Sierra Club v. Morton, 405 U.S. at 735. That path to standing has been regularly followed since. Environmental organizations and individuals who make a particularized showing of individual harm have been allowed to bring actions to enforce various environmental laws, all without requiring standing for natural objects such trees, rivers, meadows or beaches. But access to the courts for those who use and enjoy natural resources to sue to enforce environmental laws has proven inadequate for some in the environmental community, who find that existing laws and remedies are insufficient to prevent and redress damage to the environment. This lawsuit seeking “person” status for the Colorado River Ecosystem is an effort to change that.

The Allegations of the Complaint, and Colorado’s Response

The named plaintiff is the Colorado River Ecosystem. The complaint defines the Colorado River Ecosystem as “as a complex collection of relationships” involving weather, geography, and hydrology, and including the flora and fauna of the watershed. The complaint lists an organization known as Deep Green Resistance, and individual members of Deep Green Resistance and others, as “next friends” of the Colorado River Ecosystem.

The complaint alleges that:

• . . .courts and legislatures around the globe have begun to create a new kind of environmental law, one which recognizes that ecosystems themselves possess certain rights, and which allows communities to sue on their behalf for damages caused to the ecosystem. By recognizing standing on behalf of the ecosystem itself, injuries caused to the ecosystem are directly recoverable, rather than being dependent solely on harms caused to the users of those ecosystems.

The complaint alleges that courts or legislatures in New Zealand, Equador, Colombia and India, and local jurisdictions in the United States, have recognized rights in rivers and other ecosystems. The suit seeks to establish new substantive and judicially enforced rights under federal law for the Colorado River Ecosystem.

The original complaint alleged claims for “declaratory relief,” but did not identify any dispute over substantive law, or violations of federal statutes. Instead, it asked for a declaration that the Colorado River Ecosystem is a person with enforceable rights, that those rights include “the rights to exist, flourish, regenerate, be restored, and naturally evolve,” and that the State of Colorado has violated those rights by issuing permits, participating with other States in the over allocation of the water of the Colorado River, and operating dams.

The State of Colorado moved to dismiss, for lack of jurisdiction and failure to state a claim upon which relief can be granted. Colorado’s motion argued the U.S. District Court lacks jurisdiction based on the state’s immunity from suit in federal court under the Eleventh Amendment of the U.S. Constitution, that the complaint failed to allege Article III standing, and that the claims are not within the scope of any federal statutory citizen suit provisions. In addition, Colorado argued the complaint presents a non-justiciable political question, a question properly left to Congress.

In response to the motion to dismiss, the “next friends” filed an amended complaint, mooting Colorado’s motion to dismiss. The amended complaint alleges that a failure to recognize the Colorado River Ecosystem as a person is a violation of its rights under the First and Fourteenth Amendments of the U.S. Constitution, including the rights to petition, due process, and equal protection of the laws. It seeks declaratory relief that Colorado has violated the rights of the Colorado River Ecosystem by issuing permits, participating with other states in the over allocation of the water of the Colorado River, and operating dams. Colorado will likely renew its motion to dismiss in response to the amended complaint.

Conclusion and Implications

This lawsuit is nothing if not ambitious, asking as it does for a “new kind of environmental law.” As Colorado put it in its motion to dismiss, the suit seeks “a declaration [that] has the potential to alter the fabric of American domestic and foreign policy.”

This case faces a steep uphill battle, with the weight of precedent heavily against it. That likely comes as no surprise to the “next friends.” The complaint itself alleges the existing legal system does not recognize the rights the next friends seek to have the court declare. Their broader goal likely is to at minimum start a conversation about changing the framework for discussions of environmental protection under the law.

This lawsuit also illustrates the creative ways in which environmental organizations are seeking to advance their agenda through litigation, litigation in which they ask courts to take charge in addressing environmental issues. Other examples include increasingly common “pattern and practice” claims, and public trust doctrine claims, brought against California state agencies. All seek the aid of courts in forcing choices and action where the issues are difficult and the stakes are high, or where they disagree with the choices already made. The changes sought in this lawsuit, as an example, would have significant economic and social repercussions for the several states, including California, that rely upon the Colorado River for water supply. Courts will have to determine whether it is the judiciary’s proper role to decide such questions.

(Dan O’Hanlon)