Constitutional Law: Embracing Your Inner Lorax – The Constitutional Standing of Trees

http://thinkprogress.org/romm/2012/03/18/441242/revisiting-the-lorax-do-trees-have-rights/?utm_medium=referral&utm_source=pulsenews

Credit to Think Progress and to Peter Lehner of NRDC.

This issue has fascinated me for several years.  Lehner does a remarkably good job of summarizing the arguments for recognizing the rights of organizations to sue on behalf of trees, i.e., that trees should have standing to sue in federal court for their protection.  The inspiration for such a construction was first articulated — in case law form — by my constitutional hero — Justice William O. Douglas — in his remarkable dissent in Sierra Club v. Morton.  Douglas was a renowned conservationist, and really formulated a legal argument for the rights of trees and natural resources to be able to sue for their own protection.  Sadly, the Court has never yet adopted such a standard (nor is likely to do so in the foreseeable future with the second coming of the “Four Horsemen of Reaction,” Alito, Scalia, Thomas and Roberts).

Lehner’s article, pasted below, raises these arguments anew — as presented in the context of the popular release of Doctor Seuss’ “The Lorax.”

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Lehner’s Article, as published by NRDC and Think Progress:

“The Lorax” opened [two weeks ago] in theaters.

Back in 1972, one year after the book came out, a young law professor from USC named Christopher Stone wrote an influential article, called “Should Trees Have Standing?” Stone argued that trees and other natural resources should have rights (e.g. to exist) and that environmental groups should be entitled to speak for them and to present their claims in court. In a legal sense, this would mean that trees do have standing.

Dr. Seuss’s title character, of course, famously stated (again, and again): “I am the Lorax. I speak for the trees.” Did the Lorax predict Stone’s paper? Did Stone read Seuss?

The same year as Stone’s article, Justice Douglas of the Supreme Court argued in a famous dissent to Sierra Club v. Morton that trees and other natural resources should have legal rights. Soon after, with the Clean Water Act of 1972 and CERCLA of 1980, Congress finally granted legal rights to natural resources —albeit in different language from the plainspoken Lorax’s.

Under the “natural resource damages” provisions of these laws, governments can sue for compensation for injury to natural resources—on behalf of those resources. Most tellingly, the law says that governments, in so doing, are acting as “trustees” for natural resources, not suing in their own right as governments. Moreover, the law requires that all recoveries be spent on the resource itself; the government cannot spend natural resource damages, say, on roads or schools. The money belongs to the resource, not to the government.

“Trustee,” importantly, is very specific term used in law to describe a situation where an entity has a right of its own but cannot speak for itself (e.g. an infant or a disabled person) on behalf of that right.  The Lorax, again, seemed to be invoking this principle when he said: “I speak for the trees, for the trees have no tongues.” (And I’m asking you, sir, at the top of my lungs…What’s that THING you’ve made out of my Truffula tuft?)

So, while the Lorax is a parable (and perhaps now a commercialization of a parable), there is still a profound legal issue beneath the colorful pictures.