The momentum for granting legal personhood to bodies of water is growing, as one water scholar and conservationist, Kelsey Leonard, recently noted.[1] Legal personhood grants bodies of water the same legal rights in a courtroom as a person.[2] Personhood is defined as “any subject matter other than a human being to which the law attributes personality.”[3]

Christopher D. Stone developed the concept of giving an environmental entity legal personhood.[4] Stone’s work was later recognized by Justice William Douglas in his dissent in the 1972 U.S. Supreme Court case of Sierra Club v. Morton.[5] Douglas argued for different environmental media to have a locus standi (e.g., the right to bring an action before the court of law) for their own protection and preservation.[6]

As Douglas explained, “by having the regulatory agencies speak for distinct environmental elements, we were holding back the interests of these inanimate objects as the regulatory agencies had started to be more and more ‘industry-minded’ and consequently were giving in to the idea of development at the cost of the natural aesthetic wonders.”[7] Douglas thought that any person who felt a meaningful relationship with an environmental body should have “locus standi to defend the environmental body and its values.” [8]

While the idea may seem far-fetched, the American legal system has granted other entities legal personhood, such as municipalities and corporations.[9] For example, the U.S. Supreme Court found legal personhood for corporations in both the Citizens United and Hobby Lobby cases.[10]

The “environmental personhood” movement has gained traction as communities seek to protect the environment where governments have failed to adequately do so.[11] Some advocates of the movement share in the idea “that the river is living, that it has an existence that doesn’t depend on humans. . . . It’s not a simple resource for humans; it becomes an entity that has a right to live, to evolve naturally, to have its natural cycles.”[12]

But how can a waterbody go to court? Formally, the waterbody is represented by appointed guardians who are obligated to “act on behalf of the rights and interests of the [waterbody] and ensure the protection of its fundamental rights.”[13]

In 2017, the Whanganui River was the first body of water in the world to obtain legal personhood. The status change was the result of the longest litigation in New Zealand’s history.[14] It provides legal protection to the river, meaning a person that harms the river is held to the same standard as if they had harmed another person. To ensure enforcement of the river’s status, the local Maori Tribe appointed two guardians.[15]

However, granting legal personhood “becomes everybody’s responsibility and then, possibly, nobody’s responsibility . . .  the question of enforcement then becomes who actually has the funding, usually, to run a [very expensive] lawsuit.”[16] Ultimately, it is the guardian of the waterbody’s duty to protect its rights, but that guardian must have funding to initiate legal action. There is further concern that a court appointed guardian might represent an entity that has bad intentions for a waterbody, such as a polluting corporation.[17]

In Ecuador, the Global Alliance for Rights of Nature (GARN) sued a construction company trying to build a road across the Vilcabamba River, which has legal personhood, and initially won in court.[18] However, the construction company ignored the court’s ruling, and GARN did not have the funding to pursue further litigation.[19]

But granting legal personhood to the Whanganui River (New Zealand) has proved beneficial. Though no lawsuits have occurred, behavioral changes are apparent. For example, the river guardians were consulted by a local group before they initiated plans to propose a bike path that would stretch over the river.[20]

While providing legal personhood to a waterbody may seem like a liberal desire, demand exists across the political spectrum in the U.S. to grant legal personhood to waterbodies. The Little Wekiva River, near Orlando, Florida, for example, ran dry and was choked with nutrient pollution.[21] In November 2020, local residents voted in favor to grant rights to the Econlockhatchee and Wekiva Rivers.[22]

The Right to Clean Water Charter Amendment provides that all Citizens of Orange County, Florida, have a right to clean water and that the county’s waterways have a right to exist, flow, to be protected against pollution, and to maintain a healthy ecosystem.[23] This vote set the record as the most populated area in the U.S. to assign legal rights to a natural entity.[24] In fact, the vote passed with 89 percent support, making it the most popular item on the ballot.[25] Further, 55 percent of those who supported former President Trump in the 2020 election also voted favorably for the amendment.[26]

Lake Erie has also suffered from nutrient pollution, leading to “no-drinking” water advisories because of toxic algal blooms, which are harmful to human and wildlife health. In response, the City of Toledo passed an ordinance that would allow its citizens to sue on behalf of the lake.[27]

A local farmer questioned the ordinance’s constitutionality, arguing the farm could be liable for excessive and unfair damages from run-off caused by applying fertilizer to its crops.[28] Ohio joined that lawsuit arguing the State of Ohio, not the citizens of Toledo, is legally responsible for environmental regulatory programs.[29] The Community Environmental Legal Defense Fund in Ohio questioned Ohio’s position, stating that “What’s interesting is the state of Ohio intervening on behalf of the polluter, not on behalf of the people who passed the law.”[30]

The movement to environmental personhood continues despite some pushback. Most recently, in February, the Magpie River in Quebec was granted legal personhood status “in a bid to protect it from future threats, such as hydro development” and to give the body of water the theoretical right to sue the government.[31] The river now has nine legal rights, including the right to flow, to maintain its biodiversity and the right to take legal action.[32]

In the words of Kelsey Leonard, “if you can grant [legal personhood] to a corporation, why not the Great Lakes?”[33]

[1] Kelsey Leonard, Why lakes and rivers should have the same rights as humans, TED (Dec. 2019), https://www.ted.com/talks/kelsey_leonard_why_lakes_and_rivers_should_have_the_same_rights_as_humans?language=en#t-650922.

[2] Id.

[3] Sanket Khandewal, Environmental Personhood: Recent Developments and the Road Ahead, JURIST (Apr. 24, 2020), https://www.jurist.org/commentary/2020/04/sanket-khandelwal-environment-person/.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Morgan Lowrie, Quebec river granted legal rights as part of global ‘personhood’ movement Social Sharing, The Canadian Press (Feb. 28, 2021), https://www.cbc.ca/news/canada/montreal/magpie-river-quebec-canada-personhood-1.5931067.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Ashley Westernman, Should Rivers Have Same Legal Rights As Humans? A Growing Number Of Voices Say Yes, NPR (Apr. 3, 2019), https://www.npr.org/2019/08/03/740604142/should-rivers-have-same-legal-rights-as-humans-a-growing-number-of-voices-say-ye.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Rebecca Renner, In Florida, a River Gets Rights, Sierra Club (Feb. 9, 2021), https://www.sierraclub.org/sierra/2021-2-march-april/protect/florida-river-gets-rights.

[22] Id .

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Westerman, supra note 16

[28] Id.

[29] Id.

[30] Id.

[31] Lowrie, supra note 9.

[32] Id.

[33] Leonard, supra note 1.