Lawsuit Seeks Legal Rights for the Colorado River
The suit’s backers say if corporations can hold legal protections like people, natural systems should, too.
There’s an old saying in the arid American West: Whiskey’s for drinking — water’s for fighting.
Now the perennial fights over the Colorado River, the biggest source of that water, may be taking on a new dimension.
Environmental groups have asked a federal judge in Denver to declare the Colorado an entity with legal rights comparable to people. A win could require governments to consider the rights and interests of the already-overdrawn river before allowing new claims on its water, said attorney Jason Flores-Williams, who filed the suit Monday.
“You have a natural entity on which all sort of dynamic systems and life depend, and the river is being depleted and overallocated so that it’s facing its own extinction,” Flores-Williams told Seeker. “The law should not be silent as to the killing of the river.”
But it’s been dammed and tapped so heavily that it barely reaches the sea anymore. The river that gouged out the Grand Canyon now fades into Mexico’s Sonoran desert with barely a trickle reaching the Gulf of California.
Flores-Williams and the environmental group Deep Green Resistance say if corporations — artificial legal constructs with the rights of people — can have their day in court, why shouldn’t an ecosystem have its rights considered? Their Lorax-like lawsuit asks the court to declare that the Colorado “possesses the rights to exist, flourish, regenerate, be restored, and naturally evolve,” and allow the group to speak for the river in court.
“In the absence of such a finding, plaintiffs contend that existing environmental laws will continue to fail to protect the Colorado River, and thus, continue to fail to protect the human and natural communities that are dependent on the river,” the lawsuit states.
Current US law addresses environmental damage to people and to the property they own. But most environmental lawsuits get kicked out of court “because you can’t show direct injury to humans,” Flores-Williams said. “The way I see this is as addressing a procedural defect within the law.”
Judges in India have declared that two rivers, the Ganges and Yamuna, are entities with legal rights. Colombia’s high court has granted similar protection to the Atrato River. New Zealand’s parliament recognized the Whanganui River, while Ecuador’s 2008 constitution lays out the rights of nature and what the state can do to protect them.
But the precedent in American law is largely limited to a landmark 1972 case in which the Supreme Court weighed in on a Sierra Club challenge to a planned ski resort in California’s Sequoia National Forest. Justice William O. Douglas wrote in that case, “The ordinary corporation is a ‘person’ for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”
The catch is, the environmentalists lost that case. Douglas was writing in dissent. That doesn’t augur well for the plaintiffs, said John Pendergrass, vice president for programs and publications at the Environmental Law Institute, a nonprofit research organization.
“I think their odds in federal court are very slim because of the precedent,” Pendergrass said.
The named defendant in the case is the state of Colorado. Jacque Montgomery, a spokeswoman for Gov. John Hickenlooper, said the governor’s office hadn’t seen the lawsuit and wouldn’t comment on pending litigation.
But Pendergrass said the state’s likely tack would be to argue that “Within our borders, we speak for the river. It is our resource and we hold it.” The federal government might argue the same way, since the Colorado crosses several states and a multi-state agreement governs its use.
But if the plaintiffs do win the judgement they seek — and it survives review by appeals courts — it could reshape the way business is done across the West.
“With the way Western water law works, in terms of appropriation, they might be asking to overturn a whole prior system of allocating water,” Pendergrass said.
Flores-Williams said if the suit succeeds, lawyers may no longer need “yogic perambulations” to explain how a planned use damages the human environment.
“We shouldn’t have to jump through all sorts of hoops regarding standing to show that injuries and the death of the river end up injuries to human beings, which we know they ultimately do,” he said. Under that standard, he said, a proposed project with a profit motive would be under heightened scrutiny for what effects it had on the Colorado.
“To me, it’s beautifully simple,” he said. “It cuts through the Gordian knot and enables to go to court and say, ‘Hey, they’re doing this, they’re injuring nature in this way, it’s an obvious injury.’ It’s a simpler form to me. It’s much more honest.”
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