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Should a Tree Be Able to Sue the State?

What do suburban neighborhood spats, climate activism, and Indigenous traditions have in common? They’re all feeding into a growing movement to grant trees legal rights.

The historic General Sherman tree, which was saved from fires in September 2021 by structure wrap, at Sequoia National Park, California

An otherwise quiet corner in British Columbia, Canada, has become one of the most spectacular struggles for forest preservation in North America in recent decades. For more than a year, the Rainforest Flying Squad has fought root and leaf to protect the old-growth forests on Fairy Creek. There, on southern Vancouver Island, 75 percent of trees are estimated to be more than 250 years old, and some are older than 1,000. Yet companies are allowed to log this “white rhino” of forests, as one biodiversity report termed the rare, ancient ecosystem. So 24 hours a day, volunteers guard blockades against the logging industry and the police attempting to enforce its timber rights.

“What gives you the right to cut down trees older than Western society?” one of the Fairy Creek protest signs asks. Its a prescient question. The matter of the tree’s rights—to clean air and water, to profits, and maybe to existence itself—is looking like the next frontier of global climate action.

Across the United States, humans are fighting over trees. In the last month alone, East Orange, New Jersey, residents woke to the sound of more than a dozen trees being bulldozed for artificial turf athletic fields, sparking public outcry. Meanwhile, the Texas Department of Transportation began removing almost 200 trees impeding construction of a new highway, despite Austin residents’ attempts to stay the arboreal executions in court. Out in California, firefighters shrouded General Sherman and other ancient sequoias in Giant Forest in aluminum to protect them from the encroaching KNP Complex Fire. And those aren’t even the most interesting stories in the long history of tree battles: In 2018, for example, former Top Chef contestant Adam Harvey admitted to drilling holes in his neighbor’s 60-year-old maple and filling them with herbicide—all because the seven-story tree blocked the solar panels on his new Brooklyn townhouse.

These ceaseless sylvan standoffs rarely involve trees as storied as those at Fairy Creek. Often they’re not much older than Seinfeld. In Arlington, Virginia, for example, this spring, neighbors lamented the development-driven demise of a handful of cypress trees planted around 1996. And thanks to municipal ordinances, most urban and suburban trees are also swiftly replaced by freshly planted saplings. (Texas Governor Greg Abbott, prior to being elected, was told to plant new trees on his Austin property after a protected pecan tree died. He later tried to pass state laws banning cities from enforcing such socialistic” standards.) But trees of all shapes, sizes, and species have always elicited strong emotions from humans—and raised profound legal questions about who, or rather what, has rights. In an era of anthropogenic climate change, these questions have never been more urgent.

Tree nerds have many cool facts at their disposal, but perhaps the coolest thing about these wooded giants is that they live in diverse but tight-knit communities. “Fungal threads link nearly every tree in a forest—even trees of different species,” wrote Ferris Jabr last year in The New York Times Magazine. “Carbon, water, nutrients, alarm signals and hormones can pass from tree to tree through these subterranean circuits.” What appears on the surface to be hundreds of individuals is actually one big cooperative—the inspiration, it turns out, for the pop psychology buzzword resilience. Before it was applied to humans, environmental ecologist Crawford Stanley Buzz” Holling used the term resilience to describe an ecosystem’s ability to respond to threats and ultimately recover.

But there are some things even the best-connected forests can’t endure. Already, there are 46 percent fewer trees on earth than there were when human civilizations first arose, according to a 2015 report in Nature. And almost 30 percent of the world’s 60,000-odd tree species are at risk of extinction, according to a recent report from Botanic Gardens Conservation International. In addition to humans clear-cutting forests to make way for agriculture, industry, or housing—or to harvest the wood itself—trees are threatened by invasive vines and other pests introduced through globalization, skyrocketing temperatures that have already pushed tree ranges to new latitudes, and even rising sea levels. Wildfires, which are both more common and more intense as a result of climate change, can burn millions of acres of trees each year in the U.S. alone, disrupting animal habitats, drinking water, and more. Such blazes also rage around the world, including in Australia, Greece, and the Amazon rain forest, the proverbial lungs of the planet.

Some humans are trying to fight these trends. One particularly popular idea, promoted by just about every politician, billionaire, and corporation in America, including Donald Trump, is a trillion trees initiative, which would theoretically reforest the earth, one sapling at a time. Unfortunately, it’s not working. The seedlings die. They’re eaten by animals. In the worst-case scenarios, they actually displace existing natural habitats, including forests and grasslands. And their actual carbon sequestration potential remains contested. It proves what ecologists have always known: Nothing is as valuable as trees already growing.

So how do we protect them? In 1972, Christopher Stone, a professor at the University of Southern California, proposed what by white, Western, contemporary legal norms might seem a strange solution: Grant trees—and all kinds of other natural features, including mountains, rivers, and eventually the whole planet—legal rights. “The world of the lawyer is peopled with inanimate rights-holders,” Stone, who died in May, wrote in the Southern California Law Review. Courts grant rights to trusts, corporations, nation-states, ships—why not trees?

In Stone’s view, the easiest way to execute this idea would be a conservatorship model. While this model of one person serving as legal guardian of another hasn’t worked for Britney Spears, Nichelle Nichols, or countless other human beings, Stone thought it was the perfect arrangement for a tree. Nature can make its desires known (what, Stone asks, is a yellowing lawn if not a plea for water?), but it needs a human representative in court. Once a conservator is appointed for a tree, Stone wrote, they would “institute legal actions at [the tree’s] behest” and ensure that in “the granting of legal relief, the court must take injury to it into account,” and that those damages actually benefit the tree.

Right now, tree wars in the U.S. are between humans; the rights of natural features have no real legal standing. People go to court because a river is polluted and has compromised people’s drinking water, not simply because the river itself had a right to be whole and healthy. As a result, court settlements over environmental issues involve payments to humans. But in Stones conservatorship model, if a tree or river were wronged, it would be able to sue through its legal representative—and any money awarded would be placed in trust, to make the natural feature whole again.

Reading Stone’s essay today, it’s clear he was on guard against readers who might dismiss his argument as farcical—and some did. The first pages point out that many categories once considered a white man’s property, including women, children, and enslaved people, weren’t seen as worthy of rights until rights were granted to them. The earth itself, Stone argued, should get some legal standing of its own.

Stone’s proposal may have been controversial among law review leaders, but he was drawing on, and emboldening, an Indigenous ethic called the “rights of nature” movement. Internationally, these efforts are already bearing fruit. In 2008, for example, Ecuador enshrined the rights of its mountains, forests, rivers, air, and islands in its constitution—the first in the world to do so. In 2019, Bangladesh’s ruling that its rivers have the same rights as its people went into effect. While enforcement poses many obstacles, Stone would be impressed: He believed that articulating a right as a right was the first step to progress.

In many countries, including the U.S., however, courts aren’t making much headway in recognizing nature’s rights. While the White Earth Band of Ojibwe, in Minnesota, has moved to recognize the legal rights of wild rice, federal judges have been skeptical of rights for nature. In 2020, for example, a judge struck down an effort to grant Lake Eerie its own bill of rights in order to protect the health of the watershed. The municipal law passed by the residents of Toledo, Ohio, would have allowed citizens to file lawsuits on the lake’s behalf. But the court ruled it was “unconstitutionally vague and exceeds the power of municipal government.” (Notably, similar challenges have met efforts to recognize the right of humans to a healthy planet.)

For a tree to have its day in court, humans would have to separate their own interest in timber, clean air and water, and even recreation from the right of trees to exist for themselves. That sounds like a big ask. For every Tree That Owns Itself (the name of a white oak in Athens, Georgia, that locals recognize as owning itself and the eight-foot radius around it), there are hundreds of arboreal ecosystems currently facing annihilation. In Fairy Creek, where activists have racked up more than 1,100 arrests since May 2021 alone, the government is still set on a harvest. But activists, trees, and even loggers—at least, the individual humans who do the logging—have a lot more in common than they might think. They all live in a warming world where corporations’ presumed rights to profit imperil their fundamental right to life.