Last September, an unlikely plaintiff sued the state of Colorado: the Colorado River. The lawsuit, claiming that the state had violated the river’s right to flourish and regenerate, was filed by the environmental organization Deep Green Resistance, who brought the suit as next friends of the river. “Environmental law has failed to protect the natural environment because it accepts the status of nature and ecosystems as property,” DGR stated in the filing. The current law “merely regulat[es] the rate at which the natural environment is exploited.” They argued that the very existence of the river was at stake, and that the time had come for courts to recognize damage—not just to human users of the ecosystem, as law typically does, but to the ecosystem itself.
Humans aren’t the only ones with rights,
after all. In recent years courts have heard cases arguing that chimps, elephants, and other highly intelligent animals
should have legal personhood. In India, Ecuador, and New Zealand, courts and
legislatures have recently recognized some special rivers as having
their own legal rights—the time seemed ripe for DGR’s argument. In 2010, the
Citizens United decision extended First Amendment rights to corporations. In
2014, the Hobby Lobby decision secured closely held corporations some measure
of religious freedom. U.S.
law has granted personhood to corporate entities, the suit argued. Why not
Martin Doyle’s new book, The Source: How Rivers Made America and America Remade Its Rivers shows how deeply radical DGR’s idea was. The book chronicles 250 years of Americans wrestling the country’s river under greater and greater levels of control. In 1900 engineers achieved the “hydrologic coup d’état” of reversing the Chicago River by building an elevated drainage system and forcing the river to carry the city’s waste away into the Mississippi instead of depositing it back into Lake Michigan, where the city draws its drinking water). Doyle recounts centuries of such engineering exploits: channelizing, straightening out rivers’ natural meanders, deepening their pathways, and scouring their beds of silt. DGR’s push to let rivers “exist, flourish, regenerate, and naturally evolve” would reverse centuries of efforts to systematically turn its rivers into “highly engineered, optimized hydraulic machines.”
With this history, perhaps it was inevitable that the Colorado River didn’t win its quest for legal personhood. DGR’s attorney, Jason Flores-Williams, ultimately withdrew the suit, after being threatened with sanctions for frivolous action. “Either American society and our law is ready for this expansion of rights or it isn’t,” Flores-Williams said. “And it appears like right now, at this point, it’s not.”
The intertwining of rivers and regulations goes back to the colonial era. Before the advent of steam engines and electric power, river-powered gristmills were indispensable for farmers who needed to grind their grains to flour, and were natural monopolies (once a gristmill was built in a rural community, it was unlikely that another would move in, and the existing mill could charge farmers through the nose). Regulation of gristmill pricing foreshadowed future government regulation of utilities.
Doyle, a professor of river science and policy at Duke, makes the case that rivers have in fact been fundamental to the shaping of American government. He cites John Jay, who wrote in Federalist Paper No. 2 that America’s network of rivers were—along with the country’s shared language—the most important factor in binding the states together into a cohesive unit. At the end of the eighteenth century, river navigation companies, charged with clearing debris and obstacles out of the way to riverboats, became America’s first publicly recognized corporations. Throughout the book, Doyle moves swiftly between political history and physical details of waterway engineering projects, showing how rivers have influenced the ways Americans conduct business and organize government.
Many of the stories he gathers have unexpectedly high stakes. He recounts the story of two rival nineteenth-century engineers, Charles Ellet and Andrew Humphries, who offered dueling plans for Mississippi flood-control. Ellet envisioned a holistic system of upstream reservoirs that would incorporate swamps and forests that could harmlessly flood when rivers got too high; Humphries argued for a system of levees, building up walls around rivers in flood-prone areas. As Doyle put it, “Ellet saw the potential on the horizon,” while Humphries’ report was an example of the “determinism and reductionism that would be the hallmarks of twentieth-century engineering.” Two long-dead engineers beefing over hydrodynamics might not seem like the stuff of a ripping good yarn, but Doyle frames it as a fight that would lead either to sustainable flood control or to dangerous disasters. When he reveals that Ellet was killed during the Civil War, leaving Humphries and his levees to rise to prominence, I gasped aloud.
There is more drama, and more politics, in Doyle’s chronicle of the birth of the Tennessee Valley Authority. In the 1920s, the country was quickly electrifying, and private power companies were operating both the power sources—hydroelectric dams—and the power grids themselves. “Progressives bristled,” Doyle writes, because “a handful of power companies were monopolizing rivers in addition to electricity markets.” Furthermore, power companies were offering services only in markets where populations were dense enough for them to make higher profits, leaving rural areas in the dark. (The same pattern is being repeated now in the digital divide that leaves rural markets out of broadband internet service.)
FDR decided to kill two birds with one stone by starting a government-run power company that would produce cheap electricity, electrify rural areas, and directly compete with the private power companies. The construction of several massive dams enabled the TVA to do all three—but also it displaced thousands of residents who had to move out of the way of the new reservoirs. By the 1950s and 1960s, coal-fired power plants started to replace dams, which couldn’t meet the nation’s growing demand for electricity, and projects like the TVA were called evidence of, as Dwight D. Eisenhower put it in his 1953 campaign, “creeping socialism.”
For most of the book, environmental concerns only lap at the edges of these river stories—the current gets its real energy from matters of business. As a Mississippi towboat captain who goes by the name of “Howdy Duty” tells Doyle in an early chapter, “Congress decided a long time ago that rivers were for commerce, and that’s just the way it is.” This began to change in the 1960s and ‘70s, when environmentalism insisted on a place at the front and center in American politics.
In 1973, Congress passed the Endangered Species Act, and Nixon signed it into law. The Act prohibited the federal government from pursuing any projects that would damage the habitat of a protected species. The act was, as Doyle puts it, “a regulatory trump card,” and the committee of congressmen who decided on the fates of endangered species were nicknamed the “God Squad” because of their power to determine creatures’ life or death. The God Squad was quickly embroiled in a controversy over the fate of a rare but decidedly mousy little fish, the snail darter, found in the Little Tennessee River, where the TVA was nearly finished constructing a massive hydroelectric dam, the Tellico. Completing the dam would turn the little fish’s river habitat into a reservoir and likely mean extinction. It seemed outrageous, to some, that such an unassuming creature could stand in the way of such a powerful piece of infrastructure. But the Endangered Species Act doesn’t say that the animal in question has to have charisma.
Another recent book, The Rights of Nature, by lawyer and self-styled “optimistic environmentalist” David Boyd, also tells the story of the snail darter and “the lawsuit that changed the world.” Boyd writes that an appellate judge hearing the case stopped taking notes and wrote a limerick about the cheeky swimmer:
Who can surpass the snail darter?
The fish that would not be a martyr.
It stymied the dam,
Near the place where it swam.
Can you think of a fish any smarter?
Ultimately the Tellico dam was completed. The Supreme Court ruled in favor of the darter and ordered construction the dam halted, but Congress passed a new law granting an exception to the Tellico. The snail darter survived, transplanted to other rivers.
But the case was part of a larger shift in the way Americans
viewed dams—not just as sources of power and flood control, but as mega-scale
environmental disruptions. “They stop flow. They frustrate salmon. They fragment
landscapes,” writes Doyle. And he references another writer who has
famously tackled the subject, John McPhee, quoting from McPhee’s 1971 narrative
about a militant environmentalist and his trio of antagonists: a real estate
developer, a mining engineer, and a builder of dams. “John McPhee wrote
emphatically that ‘there is something metaphysically sinister’ about dams,”
In fact, this emphasis isn’t McPhee’s own, but belongs to the conservationist he is profiling. McPhee is trying to understand why even the more sedate conservationists who can keep their cool about oil spills or other kinds of environmental havoc will “go insane” at the mention of a dam. He posits that the problem is a metaphysical one: “Rivers are the ultimate metaphors of existence, and dams destroy rivers. Humiliating nature,” McPhee concludes, “a dam is evil.”
McPhee’s 1987 piece “Atchafalaya” captures the tension between
the majesty of the natural world and efforts to bring it under control. “Southern Louisiana exists in its present form,” he writes,
“because the Mississippi River has jumped here and there within an arc
about two hundred miles wide, like a pianist playing with one hand—frequently
and radically changing course.” Once every millennium or so, the water finds a
faster, steeper path to the Gulf, and the path of the river shifts.
The silt it leaves behind has built Louisiana. But cities and industries have
been put into place, and they can’t abide a river that slips out of
its bed. In this part of Louisiana,
nature becomes, as McPhee puts it, “an enemy of the state.” He quotes a video
produced by the Army Corps of Engineers, which is tasked with keeping the
Mississippi inside its current course, and describes the river as the nation’s “large and powerful
adversary.” Our success depends upon its defeat.
If Doyle’s book is a history of what people have done to rivers, Boyd’s is a hopeful forecast of what we might do differently. He recounts stories of natural entities gaining rights, taking each one as a happy harbinger. In 2017, in New Zealand, a Maori tribe won their case to gain legal personhood for the Whanganui River, which the group recognizes as an ancestor. “From our perspective treating the river as a living entity is the correct way to approach it,” Gerrard Albert, the tribe’s lead negotiator, told The Guardian, “instead of treating it from a perspective of ownership and management.” Boyd chronicles the expansion of animal welfare, the victories of the Endangered Species Act, and the development of a progressive constitution in Ecuador that incorporates the protection of Pachamama (Mother Earth) into the country’s legal framework.
Boyd’s stories overlap with the list of precedents offered in the DGR filing, which notes 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.” In other moments, though, DGR uses language that sounds less like a legal document. A description of one of the parties of the suit, the Colorado River Basin, begins, “If we begin with water, we see—high in the sky—water dancing as vapor on wind currents. When the dance brings enough water together, clouds form.” It’s beautiful language, and a description of the water cycle that’s both poetic and accurate. But making the case for the rights of nature is a hard enough battle without stepping so far afield of the standard legalese.
In 1972, Christopher Stone, a law professor at the University of Southern California, wrote a law review article that’s become seminal to the subject, “Should Trees Have Standing?” The extension of rights always sounds crazy, Stone argues. “Throughout legal history, such successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” But the rights have been extended nonetheless. Stone walks so methodically through these historical unfoldings that it starts to seem downright inevitable for red hawks and giant Sequoia to be showing up on courthouse steps.
He mentions rivers in particular: “The stream itself is fundamentally rightless,” he says. If someone is polluting a stream, as far as common law is concerned, the only way to challenge the polluter’s actions is on behalf of another rights holder—a human being—whose rights, likely downstream, are being invaded. But what if that downstream person doesn’t care? What if this person is also discreetly polluting the stream, or is economically dependent on a polluting neighbor upstream? Wouldn’t it be better to recognize the rights of the river itself—even if you think of that river, as Stone suggests, as a kind of stand-in for all the humans who may be affected by the health of the river but can’t be present in the courtroom and for all the human generations yet to come.
The potential rights of rivers remain hazy, and distant, at least for now. American rivers have more pressing concerns, as it turns out. In February, Congress voted to repeal an Obama-era regulation called the “stream protection rule,” which prohibited coal companies from dumping mining waste into rivers and streams, and Trump signed the repeal. One doesn’t need to extend the forward-thinking intellectual exercises of Christopher Stone, or the poetic nature-appreciation of Deep Green Resistance to see why this decision is so harmful. We can think, in this instance, of rivers and streams purely as a resource to be used by humanity, and that is plenty reason to keep chemical debris and heavy metal out of them. Ecosystems will suffer from that kind of abuse—but humans will too.
In their filing, Deep Green Resistance write that “one shudders at the idea of nature testifying against us.” Stone argues that it should not matter, legally, that natural objects cannot speak. States, estates, municipalities, corporations, infants, and universities cannot speak either; their lawyers speak on their behalf. This past year, wildfires and mudslides have ravaged California, and hurricanes have sluiced through Houston and Puerto Rico. Alaskan villages, long protected by sea ice, were pummeled by bizarre winter waves. These climate events have been relentless, and there is no sign of relief. It feels like nature is speaking loud and clear.