Yaffa Epstein published in Science

Yaffa Epstein

Rights-of-nature laws are laws that purport to grant or recognize legal rights for some type of natural entity other than humans or individual animals, such as a particular ecosystem or a type of ecosystem. Only a small number of countries currently recognize rights for nature, but this legal phenomenon has become increasingly widespread in the last few years. There have now been some dozens of court decisions interpreting and applying rights of nature. In some decisions, courts have upheld and applied rights-of-nature laws to require better environmental protection. In others, these laws have been overturned or not applied to protect nature. This article looks at one of the factors that leads to these divergent outcomes, the level of engagement with natural science.

Some rights-of-nature laws recognize rights for some type of entity with expressly non-scientifically defined aspects, such as "Mother Earth" in Bolivia. Others recognize rights for entities that are defined in technical terms, such as the Mar Menor lagoon and basin in Spain. In this article, my coauthors and I argue that scientific input is required to make any of these laws legally comprehensible. We examine how scientific information has been used, or ignored, in several court decisions. In several cases decided in 2021 and 2022 by the Ecuador Constitutional Court, that court relied on testimony of scientists to understand what natural entities have rights under the Ecuador Constitution, what these rights, such as the right to evolve, entail, and how to apply them in particular situations. In contrast, for example, a US court refused to consider what the right to evolve may mean, ruling instead that the law granting Lake Erie the right to exist, flourish and evolve was unconstitutionally vague. Looking in particular at the right to evolve that has been recognized for natural entities in several legal systems, my co-authors and I show how scientific input can reduce scientific uncertainty, and in turn legal uncertainty, surrounding this right.

Even more controversially, many rights-of-nature laws also establish that natural entities have duties and liabilities. Scientific input will also be required to understand what these legal obligations of rivers, ecosystems, and others may be.

As they write in the article, “Rights-of-nature laws have reached a critical point at which they may either be normalized or marginalized. They have captured the public imagination, leading to growing advocacy for, and enactment of, these laws. Some of these laws have succeeded in protecting the environment, often with the aid of engagement from scientists who have helped to interpret and implement them. Others have failed, often not because of the concept that nature can have rights but due to lack of clarity—scientific or otherwise—about how the law should be applied. The engagement of scientists with these laws as they are enacted, implemented, and enforced has been a key factor in judges’ ability to apply them.” This article demonstrates the importance of scientific engagement in the functioning of rights of nature laws, and provides a roadmap for how scientists and jurists can work together to ensure these new laws have their intended effect of protecting non-human natural entities.