Friday, April 22, 2011

Earth Day: Who’s In, and Who’s Out?

Heather Cox Richardson

As anyone who has opened Google today knows, today is Earth Day. Historians can look at Earth Day from a variety of angles: from studying Rachel Carson’s paradigm-changing Silent Spring, which linked the destruction of the osprey population to the degradation of the food chain; to exploring how the 1969 fire on the Cuyahoga River caught the eye of a reporter; to uncovering the movement culture that nurtured the first Earth Day movements in 1970.

Another important way for historians to think about Earth Day, though, is through the lens of a crucially important article inspired by the increasing environmental awareness of the early 1970s. In 1972, a member of the faculty at the University of Southern California Law Center published an article in the Southern California Law Review titled: “Should Trees Have Standing?—Toward Legal Rights for National Objects.” In this piece, Christopher D. Stone was, as he put it, “quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment—indeed, to the natural environment as a whole.” Natural objects should have “legally recognized worth and dignity in its own right, and not merely to serve as a means to benefit ‘us’ (whoever the contemporary group of rights-holders may be).”

Stone anchored his suggestion in a brief overview of legal history. Societies began with a core group of families or kinship groups, he said. Everyone outside of that group was an outsider: frightening, suspect, alien. No one outside the core group had any rights. Even within a core group, some members had no rights. Children belonged to their fathers. They could be transferred, sold, even killed with impunity. Women, too, belonged to their men.

Gradually, Stone noted, societies began to expand the boundaries of those that enjoyed legal rights. Opponents greeted each expansion with resistance, fear, and ridicule, but gradually people outside that initial core group—men from other tribes, women, and children—won legal protections. In America, that protection eventually included legal standing for non-living entities, too, like corporations and estates.

Stone went on to argue that expanding legal rights to the natural world was not only logical, but also imperative to guarantee that the actual costs of industrial production were borne by the same entities that enjoyed the monetary benefits. More, though, the expansion of rights would herald a revolution in the way humans thought about and interacted with the environment. No longer would it be a resource for human exploitation; it would be an organism of which humans were a part.

Stone’s essay is justly famous in legal and environmental circles, and is well worth discussing for its legal and environmental implications. But is less well known among historians, and this is too bad. His brief overview of the contours of human society and the expansion of rights beautifully anticipated Reconstruction historians’ recent focus on what it means to be an American citizen—who was “in;” who was “out.” (And it is probably no accident that this Reconstruction historian was mesmerized by Stone’s article in college.) It also has anticipated the modern-day debate over the cultural meaning of “birtherism,” which political pundits from both sides of the aisle argue is a way to identify President Obama as “alien,” an “outsider.” The concepts Stone identified are central to historians’ understanding of our past, and of today’s Americans’ understanding of the present.


Lisa Clark Diller said...

Thanks for the introduction to Stone. I sometimes like to use this theme in my surveys of English history--what does it mean to be English or British in the early modern period? Who is included, and what rights/expectations are attached to that inclusion?
But it is also crucial to remind my students that the circle of who is "in" and "out" doesn't just go one way--no inevitabiliy about that expansion.

Thanks for the Earth Day reminder of this with respect to the more recent past. As Randall and others pointed out on this blog last year, it is shocking how few changes we've actually made, given all we know. I sometimes think all the new information we're getting is going to be the catalyst for change, but when one learns about thinkers like Stone, writing 40 years ago, one is less optimistic.

Mary L. Dudziak said...

Thanks for this post. Chris Stone's article was the most memorable reading from my first year of law school, and I am so happy to have him as a colleague now at USC, where he is still brilliant and inspiring. A collection of his essays is here:

Stone's article had an impact when it was first published. In an important environmental case, Sierra Club v. Morton, a dispute over Disney's plan to develop the Mineral King wilderness area, Justice William O. Douglas drew upon Stone in his dissenting opinion. The question in the case was whether Sierra Club members had a legally cognizable interest at stake so that they could sue to block the development. Drawing upon Stone, Douglas argued that it should be possible to bring suit, essentially, in the name of the forest, for harm to the environment itself, rather than just lawsuits on behalf of hikers and outdoor enthusiasts for the harm to their interests, which is what the law of "standing" allowed.

Here's how Douglas begins:

The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. See Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972).