Sunday, June 6, 2021

3510. Christopher Stone, Who Proposed Legal Rights for Trees, Dies at 83

By Alex Traub, The New York Times, May 28, 2021

Credit...via USC Gould School of Law

Christopher D. Stone, who in 1972 made what seemed a whimsical argument — that forests and rivers should have rights in the eyes of the law — and whose work galvanized a global movement to grant nature the legal status of personhood, died on May 14 at an assisted living facility in Los Angeles. He was 83.

The cause was Parkinson’s disease, his wife, Ann Pope Stone, said.

Professor Stone, who was on the faculty of the University of Southern California law school from 1965 until his death, proposed his idea in a landmark article published in the Southern California Law Review, “Should Trees Have Standing?: Toward Legal Rights for Natural Objects.” He defended the rights of nature by analogy.

“Until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ — those who are holding rights at the time,” he wrote. “Throughout legal history, each successive extension of rights to some new entity has been, therefore, a bit unthinkable.”

In ancient Roman law, Professor Stone observed, children were less persons than objects under the absolute authority of fathers. Just as children acquired rights over time, so did women and minority groups. And not only humans: Corporations and nation-states gained legal protections, too.

That prepared the ground for his thesis. “I am quite seriously proposing,” he wrote, “that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment — indeed, to the natural environment as a whole.”

Parts of the environment could gain legal representation using common methods, he said. If a man becomes senile and seems unable to manage his affairs, concerned parties intervene and seek the appointment of a guardian. Professor Stone suggested that groups like the Sierra Club could apply to serve as court-appointed guardians for mountains or streams that they perceive as endangered. Guardians would gain the power to sue on the environment’s behalf.

Professor Stone referred to a case then being considered by the United States Supreme Court: Sierra Club v. Morton. The Sierra Club had sued Rogers C.B. Morton, then the secretary of the interior, to prevent the Walt Disney Company from building a resort on public land in California. In a 4-3 decision in April 1972, the justices concurred with an appeals court ruling that the Sierra Club did not have standing to sue.

But in a famous dissent, Justice William O. Douglas adopted Professor Stone’s argument. “Contemporary public concern for protecting nature’s ecological equilibrium,” Justice Douglas wrote, “should lead to the conferral of standing upon environmental objects to sue for their own preservation.”

Professor Stone, the son of the crusading reporter I.F. Stone, was a 34-year-old law professor who had never published anything about the environment. Yet his essay, which he expanded into a book published in 1974, became the highlight of his career.

“He obviously was one of the pivotal people in helping to launch the modern environmental movement,” Dan Esty, an environmental law professor at Yale University, said in a phone interview. “This article is one of the most highly cited and foundational articles in the entire what might be called environmental canon.”

He added that “Should Trees Have Standing?” had inspired him in part to focus on environmental law. Andrew Wetzler, who oversees much of the legal operation of the Natural Resources Defense Council, said the same.

“When I read it, a light went off for me,” Mr. Wetzler said in an interview. “I knew this was what I wanted to do — to stand up and make those kinds of arguments on behalf of nature.”

Professor Stone’s argument was not universally admired. A poem in the August 1972 issue of the American Bar Association Journal responded to Justice Douglas’s dissent:

Great mountain peaks of name prestigious
Will suddenly become litigious.
Our brooks will babble in the courts,
Seeking damages for torts.

In 2017, Senator Steve Daines, Republican of Montana, criticized an attempt to grant legal rights to the Colorado River. “I think we can all agree rivers and trees are not people,” Mr. Daines told The New York Times. “Radical obstructionists who contort common sense with this sort of nonsense undercut credible conservationists.”

However urgently it struck some as a call to action, “Should Trees Have Standing?” long seemed out of step with legal reality, but that has begun to change. In the United States, a growing number of municipal and tribal governments — including those of PittsburghSanta Monica, Calif., and the Yurok and the Ponca Nation tribes — have sought to protect local natural resources by granting them rights.

Other countries have responded even more ambitiously to Professor Stone’s proposal. In 2016 and 2017, the government of New Zealand relinquished ownership of a national park, conferring on it “all the rights, powers, duties and liabilities of a legal person,” and pronounced a river “an indivisible and living whole.”

Christopher Finlayson was New Zealand’s attorney general at the time, and his portfolio included the negotiations with the Maori tribe that led to each decision.

“The tribe that was seeking to settle had a particular worldview that, on the face of it, didn’t make any sense in Western terms,” Mr. Finalyson said in an interview. “As we tried to deal with these conceptual issues, we had research done and came across Professor Stone’s seminal article, which provided the answer.”

The New Zealand episode reverberated worldwide. In 2017, the high court of the Indian state of Uttarakhand gave the rights of personhood to two rivers and cited New Zealand as a model.

Christopher David Stone was born on Oct. 2, 1937, in New York City to Isidor and Esther (Roisman) Stone. His mother helped her husband run his independent publication, I.F. Stone’s Weekly (later I.F. Stone’s Bi-Weekly), and Chris pitched in, too. He grew up in Washington, within walking distance of Rock Creek Park, where he liked to collect turtles.

Professor Stone graduated from Yale Law School in 1962 and married Ann Pope. They honeymooned in Nova Scotia, where they fished and slept in a pup tent.

He was “not a tree hugger,” his wife said, but when the couple had a second child and she wanted to build an addition to their house, he said they could not do anything that would harm a loquat tree on the property whose fruit he used to make jam.

In addition to his wife, he is survived by two daughters, Carey and Jessica Stone; a sister, Celia Stone Gilbert; and two grandchildren.

What is known today as the rights of nature movement is led largely by Indigenous groups with ancient traditions involving conservation of the environment. Professor Stone’s work helped make the connection between those traditions and modern law.

In 2010, before there was public discourse about the rights of nature in New Zealand, two Maori scholars, James Morris and Jacinta Ruru, wrote Giving Voice to Rivers,” a paper devoted to popularizing Professor Stone’s ideas.

They wrote that the Maori view that “humans and water are intertwined” provided what Professor Stone had described in 1972 as a missing ingredient for acceptance of nature’s rights. His paper focused on practical matters, such as how companies might pay damages to nature; but in his conclusion he called for a revolution in popular attitudes.

“What is needed,” he wrote, is “a radical new theory or myth — felt as well as intellectualized — of man’s relationships to the rest of nature.” Humanity, he speculated, could be considered Earth’s mind, “different from the rest of nature, but different as a man’s brain is from his lungs.”

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