Macpherson - The (Human) Rights of Nature A Comparative Study of Emerging Leg

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THE (HUMAN) RIGHTS OF NATURE:
A COMPARATIVE STUDY OF EMERGING

LEGAL RIGHTS FOR RIVERS AND LAKES IN
THE UNITED STATES OF AMERICA AND
MEXICO
ELIZABETH MACPHERSON*
ABSTRACT
An international consensus of scientific experts is now demanding
“immediate action” in response to the environmental, climate, and
biodiversity crises. But are our legal and regulatory frameworks
equipped to respond to the rapid pace of environmental degradation,
biodiversity loss and climate change? What incidence is there,
transnationally, of laws that seek to protect the Earth from the humans
that inhabit it? In the past few decades, there is a growing social, legal,
and political movement towards more ecocentric regulation of the
planet, where new laws and institutions seek to protect natural resources
for their own intrinsic value. In this paper, I consider recent efforts to
protect the rights of rivers in the U.S. and Mexico, which are novel and
emerging attempts to discover new pathways for enhanced protection of
vulnerable waterways. These attempts are being pragmatically driven
from the bottom up to the highest levels of the legislature or judiciary as
local communities (and sometimes Indigenous Peoples) become
increasingly frustrated with apathetic and complacent governmental
responses to environmental challenges, using whatever legal tools and
processes are available to them. However, rather than an Earth-centred
revolution, efforts to protect the rights of nature are distinctly “human”;
as communities appeal to human rights laws, and their enhanced
constitutional status, to upset the status quo. There are important lessons
to be learned from these experiences in other countries in terms of the
ability to entrench transformative environmental protections via
constitutional hierarchies and the potential for the rights and interests of
humans to be both an enabler of, as well as a threat to, nature’s rights.
327
328 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327
INTRODUCTION
The future of the Earth’s natural ecosystems, including its rivers
and lakes, is uncertain. In mid-2019, the United Nations released the
Report of the Intergovernmental Science-Policy Platform on
Biodiversity and Ecosystem Services, which classifies one million
species as currently threatened with extinction.1 At the same time,
estimates about the rate of climate change continue to creep up, with
environmental consequences and catastrophes forecast for the coming
decades.2 Climate change is expected to cause more frequent and more
violent storms as well as longer and drier droughts. It will increase the
risk of river salination, sedimentation and evaporation, while
increasing demand for water for irrigation and urban use.3 These
trends will have unprecedented impacts on our waterways, lakes and
rivers, on which all systems of life, including humans, depend.
In this context, an international consensus of scientific experts is
now demanding immediate action in response to the environmental,
climate and biodiversity crises.4 But are our legal and regulatory
frameworks equipped to respond to the rapid pace of environmental
degradation, biodiversity loss and climate change? What incidence is
there of laws that seek to protect the Earth from the humans that
inhabit it? In the anthropocentric context of permissive and facilitative
environmental management, where courts and legislatures are often
used to legitimize ecologically destructive acts, is law in fact
“complicit” in the Earth’s destruction? Or is law simply too slow, too
path dependent, or too weak to make a difference?
The regulation of land and resources is typically premised on the
idea that the Earth’s resources, including rivers, are disposable for the
Copyright © 2021 Elizabeth Macpherson.

* Elizabeth Jane Macpherson, Ph.D., L.L.B., B.C.A., is an associate professor at the University
of Canterbury School of Law. Many thanks to the New Zealand Law Foundation for the funding
they provided for research assistance for this article by Julia Torres and Claire Thompson. I would
also like to thank Rebecca Nelson who provided very helpful comments on a draft. All errors are
my own.
1. INTERGOVERNMENTAL SCI.-POL’Y PLATFORM ON BIODIVERSITY & ECOSYSTEMS
SERVS., SUMMARY FOR POLICYMAKERS OF THE GLOBAL ASSESSMENT REPORT ON
BIODIVERSITY AND ECOSYSTEM SERVICES 4 (2019).
2. Id. at 5.
3. UNITED NATIONS EDUC., SCI. & CULTURAL ORG., THE UNITED NATIONS WORLD
WATER DEVELOPMENT REPORT 2019: LEAVING NO ONE BEHIND 12–17 (2019);
INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SPECIAL REPORT: GLOBAL WARMING
OF 1.5°C SUMMARY FOR POLICY MAKERS 8–9 (2019).
4. INTERGOVERNMENTAL SCI.-POL’Y PLATFORM ON BIODIVERSITY & ECOSYSTEMS
SERVS., supra note 1, at 8.
Spring 2021] THE (HUMAN) RIGHTS OF NATURE 329
benefit of humans.5 However, in past decades there has been a growing

social, legal, and political movement towards more ecocentric
regulation of the planet, where laws and policies seek to protect natural
resources for their own intrinsic value.6 Even the international
community, which is dominated by the rubric of “sustainable
development,” is paying attention to the needs of Mother Earth, and
there are a number of international movements seeking harmony
between humanity and nature and pressing the need for declarations,
treaties and agreements for nature’s rights.7
At a domestic level, much attention has been given to progressive
legislation and case law recognizing natural resources as legal persons
and subjects, especially in Aotearoa, New Zealand, where the
Whanganui River was recognized as a legal person as part of a
reparative historical treaty settlement8 with M ori peoples in 2017.9
However, the tendency is spreading to other jurisdictions, including
Colombia, India, Brazil, Argentina, Bangladesh, Sweden and
Australia, where movements for the recognition of rivers as legal
persons or subjects are well underway, sometimes driven by
5. See generally RESEARCH HANDBOOK ON INTERNATIONAL LAW AND NATURAL

RESOURCES x (Elisa Morgera and Kati Kulovesi eds., 2016) (describing the book’s approach to
natural resource law); DAVID R. BOYD, THE RIGHTS OF NATURE: A LEGAL REVOLUTION THAT
COULD SAVE THE WORLD (2017); Bebhinn Donnelly & Patrick Bishop, Natural Law and
Ecocentrism, 19 J. ENV’T L. 89, 90 (2006) (“anthropocentrism is the dominant ethic in current
environmental law and policy”); Catherine J. Iorns Magallanes, M ori Cultural Rights in Aotearoa
New Zealand: Protecting the Cosmology That Protects the Environment, 21 WIDENER L. REV. 273,
277 (2015); Elizabeth Macpherson & Erin O’Donnell, ¿Necesitan derechos los ríos? Comparando
Estructuras Legales Para la Regulación de los Ríos en Nueva Zelanda, Australia y Chile, 25
REVISTA DE DERECHO ADMINISTRATIVO ECONÓMICO 95, 96 (2017).
6. See generally James D. K. Morris & Jacinta Ruru, Giving Voice to Rivers: Legal
Personality as a Vehicle for Recognising Indigenous Peoples’ Relationships to Water Commentary,
14 AUSTRALIAN INDIGENOUS L. REV. 49, 50 (2010); Meg Good, The River as a Legal Person:
Evaluating Nature Rights-Based Approaches to Environmental Protection in Australia, NAT’L
ENV’T L. REV. 34, 34 (2013); Michelle Maloney, Building an Alternative Jurisprudence for the
Earth: the International Rights of Nature Tribunal, 41 VT. L. REV. 129, 132 (2016); Vito De Lucia,
Towards an Ecological Philosophy of Law: A Comparative Discussion., 4 J. HUM. RTS. & ENV’T
167, 183 (2013).
7. PROGRAMME, http://www.harmonywithnatureun.org (last visited May 28, 2019)
(discussing the United Nations Harmony with Nature Programme and the Ninth Interactive
Dialogue of the General Assembly on Harmony with Nature); WORLD PEOPLE’S CONFERENCE
ON CLIMATE CHANGE AND THE RIGHTS OF MOTHER EARTH,
https://www.who.int/globalchange/news/2010/mother_earth_rights_22042010/en/ (last visited
Apr. 19, 2020).
8. Treaty settlements refer to the resolution of historical grievances concerning breaches
of the Treaty of Waitangi/te Tiriti O Waitangi. As opposed to contemporary grievances, historical
grievances date from 1840 to 1992, when te Tiriti – the partnership compact between M ori and
British colonists, was signed by rangatira (chiefs) and the Queen, as negotiated by her agents.
9. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.).
Indigenous Peoples.10 As I will discuss in this article, both the U.S. and
Mexico are also sites for this emerging contestation and jurisprudence.
The first municipal “Bills of Rights” recognizing the rights of
nature and inherent interests of waterways have, perhaps surprisingly,
emerged from the U.S., a country with a questionable track record in
terms of environmental protection and climate adaptation. The rights
for nature debate in the U.S. is highly politicized and hard-fought, and
attempts by non-governmental organizations (NGOs) to secure
personhood for both the Colorado River and Lake Erie have been met
with swift constitutional challenge and condemnation by the courts.
Across the border, in Mexico, there have been efforts to recognize the
rights of nature in the human rights protections of state-based
constitutions, together with attempts by NGOs to secure the
recognition of rivers as legal persons.
These developments are “fluid”11 in the sense that they arise from
pragmatic and grassroots efforts for protection of waterways from the
threats posed by humans and their resource use. However, given the
highly contested nature of water resources, with competing claims from
industry, urbanization and agriculture as well as social and
environmental interests, these developments are vulnerable to
opposition and reversal.12 In both contexts, there is a push for a
“constitutionalization”13 of the rights of nature, where nature’s rights
may be secured as part of core human rights protections. These are
invariably attempts to “trump”14 existing environmental and natural
resource development laws in the pursuit of more protective responses
than dominant legal frameworks by invoking a higher constitutional
status. However, the backlash to rights of nature is also playing out at
the constitutional level, as opponents invoke their own constitutional
rights in resistance.
In this article, I interrogate the most recent attempts to protect the
rights of rivers in the U.S. and Mexico. I argue that these
10. RIGHTS OF NATURE LAW AND POLICY,

http://www.harmonywithnatureun.org/rightsOfNature/(last visited June 5, 2019).
11. See generally Toni Collins & Shea Esterling, Fluid Personality: Indigenous Rights and
the “Te Awa Tupua (Whanganui River Claims Settlement) Act 2017” in Aotearoa New Zealand,
20 MELBOURNE J. OF INT’L LAW 197 (2019).
12. See generally Erin O’Donnell, Competition or Collaboration? Using Legal Persons to
Manage Water for the Environment in Australia and the United States, 34 ENV’T AND PLANNING
L.J. 503 (2017).
13. See generally Klaus Bosselmann, Global Environmental Constitutionalism: Mapping the
Terrain, 21 WIDENER L. REV. 171 (2015).
14. DUNCAN IVISON, RIGHTS 27 (2008).
developments, despite their contextual variance, are novel and

emerging attempts to discover pathways for enhanced protection of
vulnerable waterways in the face of increasing environmental
degradation, biodiversity loss and climate change. These attempts are
being pragmatically driven from the bottom up to the highest levels of
the legislature or judiciary, as local communities and Indigenous
Peoples become increasingly frustrated with apathetic and complacent
governmental responses to environmental challenges, using whatever
legal tools and processes are available to them. They are, perhaps
ironically, distinctly “human” efforts, as communities appeal to human
rights laws, and their enhanced constitutional status, to upset the status
quo.
THE (HUMAN) RIGHTS OF NATURE

Western legal systems have traditionally treated humans as both
the owners and beneficiaries of nature and allowed humans a position
of dominance and control over nature, while natural resources are
conceived of as existing in order to fulfil human needs.15 This
anthropocentric view of human dominance over nature has been
assumed in the design of both domestic and international legal systems
and doctrine, including for the regulation of the environment and
natural resources.16 Unlimited human exploitation of natural resources
has been accepted as a precondition for economic growth17 and
assumed in developmental policies of underdeveloped countries,
including those in Latin America.18
However, the idea that nature might have its own rights to exist
and thrive has emerged in Western legal thought as a counter-theory
to the idea of unlimited exploitation of nature, in order to advance
15. BOYD, supra note 5, at 102–105; Alberto Acosta, Hacia la Declaración Universal de los
Derechos de la Naturaleza, 54 REVISTA AFESE 11, 12 (2017); Macpherson & O’Donnell, supra
note 5, at 96; Elizabeth Macpherson & Felipe Clavijo Ospina, The Pluralism of River Rights in
Aotearoa New Zealand and Colombia, 25 J. OF WATER L. 283, 285 (2018); ERIN O’DONNELL,
LEGAL RIGHTS FOR RIVERS: COMPETITION, COLLABORATION AND WATER GOVERNANCE 92
(2018); ELIZABETH MACPHERSON, INDIGENOUS RIGHTS TO WATER IN LAW AND REGULATION:
LESSONS FROM COMPARATIVE EXPERIENCE 22 (2019) (contrasting systems of water rights). This
is not necessarily the case for non-Western legal systems, including Indigenous systems which may
position humans as a component of nature rather than its dominator. See Iorns Magallanes, supra
note 5, at 281–82.
16. RESEARCH HANDBOOK ON INTERNATIONAL LAW AND NATURAL RESOURCES, supra
note 5, at 517; Donnelly, supra note 5, at 90; Iorns Magallanes, supra note 5, at 275.
17. See generally BOYD, supra note 5, at 115.
18. See generally Acosta, supra note 15.
ecological protections.19 This is sometimes called an “ecocentric”

theory of natural resource regulation, and it maintains that nature has
intrinsic value, in contrast to the utilitarian or proprietary
conceptualization of nature typical in hegemonic legal frameworks.20
According to an ecocentric view, humans and non-humans belong to
the same moral order as inhabitants of the Earth,21 and nature has
intrinsic value which should be protected by law.22 As will be discussed
in this article, this alternative view is apparent in environmental
activism and reform in parts of the Americas, encouraging legal
frameworks to reconceptualize relationships between humans and
nature in a more harmonious or symbiotic way.23
In Western legal culture, the case for recognizing the rights of
nature is often credited to the work of Christopher Stone, particularly
his 1972 book, Should Trees Have Standing?,24 although the origins of
the movement go back much further.25 Stone argued that the rights of
nature should be recognized for nature’s own protection,26 recognizing
the intrinsic value of nature beyond an enabler of human ends. In the
same year Stone published his seminal piece on the rights of nature,
Justice William O. Douglas of the United States Supreme Court called
for legal personhood for nature in his dissenting opinion in the case
19. For a general discussion on the origins of the rights of nature in Western thought see
CHRISTOPHER STONE, SHOULD TREES HAVE STANDING? LAW, MORALITY, AND THE
ENVIRONMENT (2010); BOYD, supra note 5; Acosta, supra note 15; Macpherson & O’Donnell,
supra note 5; Macpherson & Ospina, supra note 15; Cristy Clark et al., Can You Hear the Rivers
Sing? Legal Personhood, Ontology, and the Nitty-Gritty of Governance, 45 ECOLOGY L. Q. 787
(2019).
20. See generally Macpherson & O’Donnell, supra note 5; Guillaume Chapron, Yaffa
Epstein & José Vicente López-Bao, A rights Revolution for Nature, 363 SCI. 1392, 1392 (2019).
21. See generally THOMAS BERRY, THE GREAT WORK: OUR WAY INTO THE FUTURE (1999);
Vito De Lucia, Towards an Ecological Philosophy of Law: a Comparative Discussion, 4 J. OF
HUM. RTS. & THE ENV’T 167, 175 (2013).
22. MICHELLE MALONEY & PETER BURDON, WILD LAW - IN PRACTICE 75–94 (2014);
Maloney, supra note 6, at 133; Sophia Imran, Khorshed Alam & Narelle Beaumont,
Reinterpreting the Definition of Sustainable Development for a More Ecocentric Reorientation, 22
SUSTAINABLE DEV. 134, 137 (2014).
23. BOYD, supra note 5, at 109–130; see generally Acosta, supra note 15, at 11; Macpherson
& O’Donnell, supra note 5; Macpherson & Ospina, supra note 15; ERIN O’DONNELL, supra note
15; MACPHERSON, supra note 15.
24. Christopher Stone, Should Trees Have Standing? Towards Legal Rights for Natural
Objects, 45 S. CAL. L. REV. 450 (1972).
25. See Max Maureira Pacheco, La Tripartición Romana del Derecho y su Influencia en el
Pensamiento Jurídico de la Época, 28 REVISTA DE ESTUDIOS HISTÓRICO-JURÍDICOS 269 (2006)
for an explanation of the “ius naturalis” category of law developed by the Roman jurists Gayo,
Justinian and Ulpiano for example.
26. STONE, supra note 19, at xi. In his introduction, Stone describes arriving at the idea
during his search for evolving definitions of property.
Sierra Club v. Morton.27 Stone’s thesis re-emerged in 2006, when the

Tamaqua Borough in Pennsylvania passed a bylaw recognizing the
rights of nature,28 opening the floodgates for various local
municipalities in the U.S. to follow suit.29
The American developments did not go unnoticed in Latin
America, and the first national protection of the rights of nature was
enacted in the Constitución de la República de Ecuador (Constitution
of the Republic of Ecuador), which drew on Andean Indigenous
Peoples’ traditional worldviews and relationships with nature as sawak
kawsay or buen vivir (living well). The Ecuadorian approach was
replicated in Bolivia, which declared the rights of Mother Earth as a
transversal and overarching constitutional objective in the
Constitución Política del Estado Plurinacional de Bolivia (Political
Constitution of the Pluri-national State of Bolivia),30 followed by the
Ley de los Derechos de la Madre Tierra (Law of the Rights of Mother
Earth) and the Ley Marco de la Madre Tierra y Desarrollo Integral para
el Buen Vivir (Framework Law of Mother Earth and the Integral
Development for Living Well). By recognizing and providing legal
force to the Indigenous concept of living well, the new Ecuadorian and
Bolivian laws sought to reflect the laws of Indigenous Andean peoples
as an alternative to neoliberal economic models and Western scientific
discourses, which assumed the unlimited exploitation of Latin
American resources.31
The rights of nature movement gained further momentum in 2017,
with the declaration of legal personhood for the Whanganui River in
27. Sierra Club v. Morton, 405 U.S. 727, 743 (1972) (Douglas, J., dissenting) (“The river, for
example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water
ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on
it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological
unit of life that is part of it.”).
28. TAMAQUA, PA., CODE § 260-61(F) (2020).
29. BOYD, supra note 5, at 109–130.
30. For a general discussion of these approaches to the rights of nature see Franco Alirio
Ceballos Rosero, Aproximaciones a los Derechos de la Naturaleza y el Buen Vivir Desde los
Pueblos Originarios en Colombia: Retos Frente a los Desafíos Ambientales del siglo XXI, 29
BOLETIN DE ANTROPOLOGIA 159 (2014); Victoria Haidar & María Valeria Berros, Hacia un
Abordaje Multidimensional y Multiescalar de la Cuestión Ecológica: La Perspectiva del Buen
Vivir, 108 REVISTA CRÍTICA DE CIÊNCIAS SOCIAIS 111 (2015); Gregor Barié Cletus, Nuevas
Narrativas Constitucionales en Bolivia y Ecuador: el Buen Vivir y los Derechos de la Naturaleza,
59 LATINOAMÉRICA. REVISTA DE ESTUDIOS LATINOAMERICANOS 9 (2014).
31. For a general discussion on this shift see Acosta, supra note 15; Rosero, supra note 30;
Cletus, supra note 30; DAVID CORTEZ, LA CONSTRUCCIÓN SOCIAL DEL “BUEN VIVIR” (SUMAK
KAWSAY) EN ECUADOR 23 (2011).
Aotearoa New Zealand.32 The Whanganui River was declared to be a

legal person in the Te Awa Tupua (Whanganui River Claims
Settlement) Act following two decades of Treaty settlement
negotiations between the New Zealand Crown and M ori iwi (tribes)
of the Whanganui.33 The enabling legislation provides that Te Awa
Tupua (the Whanganui River) is a legal person with “all the rights,
powers, duties and liabilities of a legal person”34 and establishes the
office of Te Pou Tupua to act as the “human face” of the river, like a
guardian, with one member being appointed by the iwi and one by the
Crown.35 The legislation also prescribes values for the river’s
management, called Tupua Te Kawa, giving content to the river’s rights
to guide decision-making.36 These include recognition of the river as an
interconnected and living whole and the direct link between the health
of the river and the health of the people.37 The legislation also provides
for a number of collaborative advisory and strategic committees and
plans to protect and enable the river’s rights.38
In 2016, a decision of the Constitutional Court in Colombia
(released publicly in 2017) declared the Atrato River to be a legal
subject, taking direct inspiration from the New Zealand
developments.39 The claim was lodged by Centro de Estudios para la
Justicia social “Tierra Digna,” an environmental and Indigenous rights
NGO, on behalf of a number of Indigenous, Afro-descendant and
peasant communities affected by illegal mining in the Atrato.40 The
claimants applied to the Constitutional Court using the Acción de
Tutela, a type of writ for the protection of constitutional rights peculiar
to Latin American countries of the civil law tradition. They sought
protection of their fundamental rights to life, health, water, food
security, clean and healthy environment, culture and territory, which
they claimed were being infringed by the actions and omissions of the
State.41 In particular, the communities alleged that a lack of
32. In 2014, Te Urewera National Park became a legal entity with “rights, powers, duties
and liabilities of a person”. Te Urewera Act 2014, s 11 (N.Z.).
33. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.).
34. Id. at s 14(1).
35. Id. at s 20.
36. Id. at s 13.
37. Macpherson & O’Donnell, supra note 5, at 111.
38. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.) at ss 27, 29, 35.
39. Corte Constitucional [C.C.] [Constitutional Court], noviembre 10, 2016, Sentencia T-
622/16 (2016).
40. Id.
41. CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.].
intervention by the State had enabled uncontrolled illegal mining in

the Atrato region, which had, in turn, polluted the river.42
The Court was satisfied that the State had violated all of the
fundamental rights alleged by the claimants but went further in its
judgment and recognized the Atrato River as an “entidad sujeto de
derechos” (legal subject) with its own rights of protection,
conservation, maintenance, and restoration.43 Following a similar
model adopted for the Whanganui River in Aotearoa, New Zealand,
the Court ordered the appointment of guardians to speak for the river,
comprising representatives from the Government and the claimant
communities. The Court also ordered the establishment of an advisory
group to support the guardians and a special interdisciplinary advisory
body to inform the Government and draft a strategic plan to
decontaminate the river. The Court’s analysis emphasized the
“biocultural” rights of the Indigenous and Afro-descendant
communities, who saw the river as an interconnected living whole in a
symbiotic relationship with human existence.44 The decision also drew
heavily on international human and Indigenous rights protections and
referred to domestic comparisons from Ecuador, Bolivia and New
Zealand.45
Subsequently, attempts to recognize the rights of nature, including
via legal person and subject models, have proliferated. In 2017, the
Indian High Court in the State of Uttarakhand granted legal
personhood to the rivers Ganges and Yamuna, while the Gangotri and
Yamunotri glaciers were considered as legal minors (although some of
these judgments have been overturned).46 The Australian State of
Victoria also passed the Yarra River Protection (Wilip-gin Birrarung
murron) Act 2017 recognising the Yarra River as “one living and
integrated natural entity,” with reference to the river relationships of
traditional owners, the Wurundjeri people.47 In the Argentinian State
of Entre Ríos, animals were declared to be legal persons in Luz Marina
Diaz v. Empresa de Servicios Públicos Del Municipio de La Plata,48
42. Corte Constitucional [C.C.] [Constitutional Court], noviembre 10, 2016, Sentencia T-
622/16 (2016).
43. Id.
44. Macpherson & Ospina, supra note 15, at 291.
45. Id.
46. ERIN O’DONNELL, supra note 15, at 167.
47. MACPHERSON, supra note 15, at 87.
48. Corte Constitucional [C.C.] [Constitutional Court] Luz Marina Diaz y otros v. Empresa
de Servicios Públicos del Municipio de La Plata – Huila, No. 2019-114 (2019) [herinafter La Plata
Huila River Case].
followed by a broader recognition of the rights of nature by way of local

ordinance in Santa Fe.49 In Colombia alone, the Atrato case has been
followed by numerous other decisions of various courts recognising the
rights of the Amazon ecosystem,50 Cauca River,51 La Plata River,52
spectacled bear,53 and Páramo de Pisba (a high-altitude ecosystem).54
More recently, the Colombian Department of Nariño issued an
Executive Decree, currently pending legislative approval, which
recognizes the rights of the “Priority Ecosystems of the Department”
and legal subjects.55 Further developments have occurred in
Bangladesh, where the High Court recognized the legal rights of
rivers,56 and in the Philippines, with a “Rights of Nature Bill” proposed
following a 2007 case seeking guardianship for marine mammals.57 And
the list goes on.
Rights-for-nature activists and those seeking the recognition of
rivers as legal persons or subjects have employed different strategies
and mechanisms around the world. Sometimes they employ legal
models and sometimes political models, via court declarations or
49. COMISIÓN DE GOBIERINO Y SEGURIDAD CIUDADANA, [Committee on Government

and Citizen Security], Municipal Council of Santa Fé, Ordenanza [Ordinance] CO-0062-
01489129-5 adj CO-0062-01486894-7 Article IV.
50. Corte Suprema de Justicia [C.S.J.] [Supreme Court], cinco de abril de dos mil dieciocho,
Andrea Lozano Barragán, Victoria Alexandra Arenas Sánchez, Jose Daniel y Felix Jeffry
Rodríguez peña y otros v. Presidente de la República y otros, (2018).
51. Juan Luis Castro Córdoba and Diego Hernán David Ochoa v. Ministerio de Ambiente
y Desarrollo Sostenible EPM, Hidroeléctrica Ituango et al, Tribunal Superior, Sala Cuarta Civil
Medellin [Medellin State Superior Tribunal, Fourth Civil Court] (Colombia) (2019).
52. La Plata Huila River Case, supra note 48.
53. Corte Constitucional [C.C.] [Constitutional Court] Luis Domingo Gomez Maldonado v.
Corporación Autónoma Regional de Caldas Corpocaldas (2017) Tribunal Superior Sala Civil
[Civil Chamber] (Colombia) 2017-00468-02 (Case Chucho Bear).
54. Corte Constitucional [C.C.] [Constitutional Court] Juan Carlos Alvarado Rodriguez y
otros v. Ministerio de Medio Ambiente y otros, (2018) Tribunal Administrativo de Boyacá
[Administrative Tribunal of Boyacá] (Colombia) 15238-3333-002-2018-00016-01. For a general
discussion about the Colombian jurisprudence see Elizabeth Macpherson, Julia Torres Ventura
& Felipe Clavijo Ospina, Constitutional Law, Ecosystems and Indigenous Peoples in Colombia:
Biocultural Rights and Legal Subjects, 9 TRANSNATIONAL ENV’T L. 521 (2020).
55. LM ARÉVALO SÁNCHEZ, PLAN DE ACCIÓN BIODIVERSIDAD 2006-2030 NARIÑO
[Action Plan for Biodiversity 2006- 2030 Nariño] (2007); Gobernación de Nariño [Nariño State
Government], ¡Nariño, Primer Departamento en Colombia en Reconocer los Derechos de la
Naturaleza! [Nariño, First Department in Colombia that Recognises the Rights of Nature] (2019),
http://xn—nario-rta.gov.co (last visited July 28, 2019).
56. Sebastian Bechtel, Legal Rights of Rivers – An International Trend?, CLIENT EARTH
(Mar. 13, 2019), https://www.clientearth.org/legal-rights-of-rivers-an-international-trend/.
57. Leilani Chavez, Philippine Bill Seeks to Grant Nature the Same Legal Rights as Humans,
MONGABAY ENV’T NEWS (Aug. 20, 2019), https://news.mongabay.com/2019/08/philippine-bill-
seeks-to-grant-nature-the-same-legal-rights-as-humans/.
orders, or legislative or administrative decrees. This is done variously

(and in an ad hoc manner) within and between common law and civil
law traditions, sometimes with reference to Indigenous or chthonic
normative systems and principles. Sometimes, the resulting models
recognize broad rights for nature, and sometimes they recognize
specific natural resources as legal persons or subjects of rights.
Sometimes this is done at a local level and sometimes at a state or
national level. Sometimes, legal rights for nature and legal person or
subject models are secured within constitutional frameworks giving
them status as “supreme law,” and sometimes not. Sometimes they are
accompanied by detailed institutional frameworks (e.g. guardianship
models) and public funding, and sometimes they are created with little
or no consideration of the mechanisms for their implementation.
Although the rights of nature movement is clearly a transnational
trend, there are as many differences between models as similarities,
and there is a need for theoretical clarity around what the rights of
nature really entail.58 Even as the theory catches up, if grassroots
realities continue to drive legal developments, only time will enable us
to evaluate the impact of the movement, which may well progress
unevenly and rely precariously on favourable socio-political or
constitutional conditions.
There are, however, two things that are characteristic of all efforts
to recognize the rights of nature and nature’s resources. In all cases,
there is a deeply held concern amongst communities (and sometimes
regulators) about the environmental crisis and a growing unease about
the threats posed by humans to the climate, environment and
biodiversity. Ultimately, there is growing unease about the threat we
humans pose to our own existence.59 All cases, too, have a distinct
grassroots flavour, where local communities (and their sympathizers)
appeal to unorthodox legal tools in place of existing environmental and
natural resource law frameworks considered inappropriate, ineffective
or poorly executed.60
Due to the highly contested status of natural resources like rivers,
subject to competing claims from industry, urbanization and
agriculture as well as social and environmental interests and existing,
58. Clark et al., supra note 19, at 830–448.

59. See, e.g., INTERGOVERNMENTAL SCIENCE-POLICY PLATFORM ON BIODIVERSITY AND
ECOSYSTEMS SERVICES, supra note 1.
60. See, e.g., Chapron, Epstein, and López-Bao, supra note 20; MACPHERSON, supra note
15; ERIN O’DONNELL, supra note 15; Clark et al., supra note 19; Lidia Cano Pecharroman, Rights
of Nature: Rivers That Can Stand in Court, 7 RESOURCES 1, 10–11 (2018).
entrenched legal and policy frameworks, these developments are

vulnerable to opposition, or worse, to their own irrelevance. As
O’Donnell has argued, legal rights for rivers can create an adversarial
relationship between humans and nature, in fact weakening
community support for protecting the environment.61 Yet, rather than
pitting humans against nature, the rights of nature movement is
characteristically a “human” movement, as human rights protections
are co-opted, adapted and “stretched” to pursue improved
environmental outcomes, and constitutional protections are secured to
“trump” business as usual.
WATER RIGHTS AND LEGAL RIGHTS FOR RIVERS IN THE

UNITED STATES
I. Water Law Frameworks in the United States

The United States of America is a federated republic of 318.9
million people spread across 50 States.62 Water conditions in the U.S.
are highly variable. For example, there are extremely dry conditions in
California’s Death Valley and extremely wet conditions in Hawaii.63 As
in many other parts of the world, the main demand for water resources,
including both surface flows from rivers, lakes and reservoirs and
groundwater aquifers,64 is for industry and agriculture.65
The regulation of water in the U.S. is carried out at multiple (and
sometimes competing) levels. The U.S. Constitution sets the bounds of
government power and the entitlements of citizens, including core
human rights protections.66 At the federal level, there are a number of
laws concerning water management and allocation, including the Clean
Water Act,67 which regulates the discharge of pollutants into water and
61. For a general discussion of these arguments see ERIN O’DONNELL, supra note 15;
Macpherson and O’Donnell, supra note 5, at 97; MACPHERSON, supra note 15; Julia Talbot-Jones
& Jeff Bennett, Toward a Property Rights Theory of Legal Rights for Rivers, 164 ECOLOGICAL
ECON. 106352 (2019).
62. OECD POPULATION DATA, http://data.oecd.org/pop/population.htm (last visited June
5, 2019).
63. WEATHER, https://www.nps.gov/deva/learn/nature/weather-and-climate.htm (last
visited May 28, 2021); HAWAII WEATHER, https://www.hawaii-guide.com/hawaii-weather (last
visited May 28, 2021).
64. WATER FACTS - WORLDWIDE WATER SUPPLY, https://www.usbr.gov/mp/arwec/water-
facts-ww-water-sup.html (last visited June 5, 2019).
65. Id.
66. For a discussion on the U.S. Constitution see MARK TUSHNET, THE CONSTITUTION OF
THE UNITED STATES OF AMERICA: A CONTEXTUAL ANALYSIS (1st ed. 2009).
67. 33 U.S.C. § 1251 (1972).
sets quality standards for surface waters, and the Safe Drinking Water
Act,68 which sets standards for drinking water consumption and the
implementation of regulations by the States.69 Both pieces of
legislation are administered by the Environmental Protection Agency,
which has a broad mandate to protect human health and the
environment.70
Many states have also passed laws with respect to the regulation
of water. For example, the State of California has its own Water Code,71
Colorado has the Colorado Water Quality Control Act,72 and
Pennsylvania has the Clean Streams Law.73 States also have their own
constitutions and reflect federal human rights protections74 in their
state legislative codes.75 Within each state, various local government
authorities, with varying regulatory powers, have the power to pass
bylaws or “ordinances,” some of which include environmental or water
protections.76 These ordinances may be proposed by elected officials or
members of the public and are subject to deliberative public
notification and hearing processes before being put to a vote by the
relevant authority.77
In terms of water distribution and use, the approach taken by
regulators varies depending on which part of the U.S. is concerned. In
the semi-arid western states, the doctrine of prior appropriation is the
dominant approach governing the allocation and use of water.78 Dating
back to the 1850s, the prior appropriation doctrine vests water in the
state, where rights to use water are “first in time, first in right,” and
water must be taken for “reasonable and beneficial use.”79 Under this
68. 42 U.S.C. § 300f (1974).

69. AD Tarlock, Safe Drinking Water: A Federalism Perspective, 21 WM. & MARY ENV’T L.
& POL’Y REV. 233, 241 (1997).
70. Id.
71. CA Water Code (2018).
72. COLO. REV. STAT. § 25-8-103 (2013).
73. 35 Pa. Cons. Stat. § 691.1 (2019); LAWS, REGULATIONS AND GUIDELINES,
https://www.dep.pa.gov:443/Business/Energy/OilandGasPrograms/OilandGasMgmt/Pages/Laws,
-Regulations-and-Guidelines.aspx (last visited Jun. 5, 2019).
74. See especially The Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (2018).
75. See, e.g., CAL. CIV. CODE §§ 43-53.7 (West).
76. ORDINANCE PROCESS, http://statescape.com/resources/local/ordinance-process.aspx
(last visited June 5, 2019); DURHAM, NC., CODE art. IV. § 70 (2019).
77. ORDINANCE PROCESS, http://statescape.com/resources/local/ordinance-process.aspx
(last visited June 5, 2019).
78. Zachary Donohew, Property Rights and Western United States Water Markets, 53 AUSTL.
J. OF AGRIC. AND RES. ECON. 85, 89 (2009).
79. Id.
hierarchy, older rights (or “senior” rights) have a higher security (and
value) than newer rights. Senior rights are often referred to as “wet
rights,” as opposed to the junior “paper rights,” since the latter give
way to senior rights in times of scarcity.80 Water rights acquired in a
prior appropriation context may be lost in two ways: either as a result
of using water beyond what is reasonable and beneficial and causing
injury to other users or for failing to use the water over consecutive
years.81 This creates perverse incentives: for example, it is in the
interest of a senior rightsholder (many of whom hold water for
productive agricultural purposes) to “consume as much water as
possible over the long term.”82 Furthermore, the “no injury rule”
constrains rightsholders to continue to exercise their water rights for
their original use, disincentivizing other less intensive water uses.83
Competition and scarcity around water access in western states
provided conditions suitable for the development of water markets,
where water rights can be priced and traded.84 Meanwhile, over 70
water quality markets, mostly within the fisheries sector or for air
quality control schemes, operate similarly to carbon credit systems,
allowing high polluters to purchase reductions from sources with lower
polluting outputs.85 Drought-prone states, such as California, have also
established water banks to facilitate large-scale voluntary transfers of
water, which ease the economic, social and environmental disruptions
posed by severe water shortages.86
In the well-watered eastern states, water is allocated via the
common law doctrine of riparian rights, which provides that the owner
of a parcel of land may use water adjacent to or flowing through their
property for purposes associated with the land.87 The water user is
required to make “reasonable use” of the water so that downstream
80. WATER LAW OVERVIEW, https://nationalaglawcenter.org/overview/water-law/ (last

visited June 17, 2019).
81. Id.
82. Mark Squillace & Anthony McLeod, Marketing Conserved Water, 46 ENV’T L. 1, 21–22
(2016).
83. Donohew, supra note 78, at 93.
84. EELP Staff, Hydraulic Fracturing (Fracking) on Federal and Indian Lands, HARV.
ENV’T L. PROGRAM, (Sept. 21, 2017) https://eelp.law.harvard.edu/2017/09/hydraulic-fracturing-
on-federal-and-indian-lands/.
85. Caela O’Connell et al., Trading on Risk: The Moral Logics and Economic Reasoning of
North Carolina Farmers in Water Quality Trading Markets, 4 ECON. ANTHROPOLOGY 225, 227
(2017).
86. CALIFORNIA DROUGHT WATER BANK,
https://www.innovations.harvard.edu/california-drought-water-bank (last visited May 28, 2021).
users are not adversely affected in a provision similar to the “no injury”
rule.88 However, riparian rights cannot be forfeited for non-use, and
they are not allocated according to priorities, meaning, for example,
that all users are equally affected by supply shocks such as droughts.89
Although prior appropriation regimes are prevalent in the western
states and riparian rights endure in the East, statutory permit regimes
are increasingly common throughout the U.S., some of which introduce
public interest or environmental considerations into permitting
processes.90 Subterranean waters, known as groundwater in the U.S.,91
have generally been treated separately from surface rights in state
laws.92 The use of groundwater is regulated differently across states due
to differences in recharge rates, surface water interaction and size of
the groundwater basin.93 Groundwater allocations are typically
described as being difficult to enforce, observe and measure, and
ongoing increases on demand, especially in western states, suggest a
need for reform.94
A sketch of water regulation in the U.S. cannot be completed
without considering Indigenous (First Nation) water rights. There are
567 tribal entities in the U.S. living on Indian reservations, which are
recognized as domestic-dependent, sovereign nations by the U.S.
federal government.95 The First Nation peoples have federally
recognized rights to take water inside their reservations sufficient to
fulfil the purpose of the reservation.96 First Nations’ water rights may
be adjudicated by the courts or allocated by the federal government,97
88. Id.
90. Rebecca Louise Nelson & Debra Perrone, Local Groundwater Withdrawal Permitting
Laws in the South-Western U.S.: California in Comparative Context, 54 GROUNDWATER 747, 750
(2016).
92. David Getches, The Future of Winters, in FUTURE OF INDIAN AND FEDERAL
RESERVED WATER RIGHTS: THE WINTERS CENTENNIAL 307 (Barbara Cosens & Judith V.
Royster eds., 2012).
94. Michael C. Nelson, Post Decree Administration of Winters Rights in Multi Jurisdictional
Settings, in FUTURE OF INDIAN AND FEDERAL RESERVED WATER RIGHTS: THE WINTERS
CENTENNIAL 147 (Barbara Cosens & Judith V. Royster eds., 2012).
95. INDIGENOUS WORLD 2019: THE UNITED STATES OF AMERICA,
https://iwgia.org/en/usa/3375-iw2019-usa (last visited June 5, 2019); Matthew L.M. Fletcher, A
Short History of Indian Law in the Supreme Court, 40 HUMAN RIGHTS MAGAZINE (May 2015),
https://link.gale.com/apps/doc/A417472227/LT?u=duke_law&sid=summon&xid=d92896a4.
96. L.M. Fletcher, supra note 95.
97. 43 U.S.C. § 666 (2018). The McCarran Amendment waived federal sovereign immunity
for the adjudication and administration of federal water rights, in order to enable state
in reliance on the Winters doctrine98 and the McCarran Amendment.99

However, the issue of Indigenous water rights in the U.S. remains
contentious, especially in places of water scarcity where, despite being
prior in time, First Nations’ water rights are prioritized after the rights
of others.100 There is also ongoing uncertainty surrounding whether
tribal water rights include groundwater, producing a “patchwork of
tribal groundwater rights.”101
Legal Rights for Rivers in the United States
Aside from water scarcity concerns, the U.S. faces serious
challenges in terms of the quality of water resources and impacts on
rivers from discharges and contaminants.102 In this context, and in
response to the failure of existing federal and state laws to properly
manage water resources into the future, there is growing community-
based rights-of-nature activism in the U.S., seeking to protect rivers
and ecosystems from human impacts. The pragmatic appeal of legal
rights for nature is particularly apparent in the U.S. constitutional
context. Given the lack of a general public interest standing in Article
III of the U.S. Constitution, claimants taking matters to the court on
environmental grounds must prove that they have suffered an injury.103
The distinction is less pronounced in countries like New Zealand or
Australia, where environmental public interest litigation is allowed
without personal injury; although, as mentioned above, “rights of
administration of water, which opened the way for adjudication and negotiated settlements with
respect to Tribal water rights, although controversy continues to surround its application to
reserved water rights.
98. See generally Winters v. United States, 207 U.S. 564 (1908). Pursuant to the ‘Winters
Doctrine’, tribes have typically ‘senior rights’ (existing from the date of creation of their
reservation) to take water on reservation lands sufficient to fulfil the purposes of the reservation,
which cannot be forfeited for ‘non-use’.
99. See e.g., CYNTHIA BROUGHER, CONGRESSIONAL RESEARCH SERVICE, INDIAN
RESERVED WATER RIGHTS UNDER THE WINTERS DOCTRINE: AN OVERVIEW (2011); L.M.
Fletcher, supra note 95.
100. See generally BROUGHER, supra note 99.
101. Philip Womble et al., Indigenous Communities, Groundwater Opportunities, 361 SCI.
453, 453 (2018).
102. Complaint for Declaratory Relief at 2, Colorado River Ecosystem v. State of Colorado,
(D. Colo 2017) (Civ. No. 1:17-cv-02316).
103. Hope M. Babcock, A Brook with Legal Rights: The Rights of Nature in Court, 43
ECOLOGY L.Q. 1, 24–40 (2016). Under Article III, a plaintiff must establish; (1) that they suffered
injury in fact, invading a legally protected interest which is (a) concrete and particularised, and
(b) actual or imminent (not conjectural or hypothetical); (2) a causal relation between the injury
and the conduct of the complaint, fairly traceable to the defendant’s action(s) (not an independent
third party); and (3) that it is likely (not speculative) that the injury will be redressed by way of
judicial decision.
nature” developments have also occurred in New Zealand and

Australia in a specific Indigenous context.
As mentioned, rights of nature activism resurfaced in the U.S. in
2006 with the Tamaqua Borough Sewage Sludge Ordinance in
Pennsylvania, which recognized ecosystems as legal persons in an
attempt to bar coal-mining companies from dumping sewage sludge
into open pit mines104 and to regain local supervision over the
compliance and enforcement of applicable state and federal laws.105
The Ordinance’s purpose is to protect “the health, safety and welfare”
of Tamaqua Borough residents106 by recognizing their “fundamental
and inalienable right[s] to a healthy environment” and “to the integrity
of their bodies,” meaning “a right to be free from unwanted invasions
of their bodies by pollutants.”107 The Ordinance declares it unlawful to
interfere with these rights and the right of natural ecosystems to exist
and flourish “for the enforcement of the civil rights of those residents,
natural communities, and ecosystems.”108 Following the Tamaqua
Ordinance, other local government authorities have followed suit.
Thirty-six municipalities across the U.S. have made various claims,109
and over 100 local municipalities in the Pennsylvania Coal region
having passed rights-of-nature laws.110
The city of Pittsburgh, Pennsylvania, also passed an ordinance in
2010111 to supplement the Pittsburgh Code,112 which recognizes the
rights of “natural communities:”
Natural communities and ecosystems, including, but not limited
to, wetlands, streams, rivers, aquifers, and other water systems, possess
inalienable and fundamental rights to exist and flourish within the City
of Pittsburgh. Residents of the City shall possess legal standing to
104. TAMAQUA, PA., CODE § 260 (2020) (paying particular attention to “Land Application
or Land Apply”).
105. Id. Individuals are not barred from dumping sewage sludge provided they comply with
relevant laws including testing procedures for contaminants.
106. Id.
107. Id.
108. Id.
109. Amended Complaint for Declaratory Relief, Colorado River Ecosystem v. State of
Colorado, (D. Colo 2017) (Civ. No 1:17-cv-02316).
110. Kate Beale, Rights for Nature: In PA’s Coal Region, A Radical Approach to
Conservation Takes Root, HUFFPOST (Feb. 2, 2009), https://www.huffpost.com/entry/rights-for-
nature-in-pas_b_154842.
111. PITTSBURGH, PA., Ordinances No 37-2010, § 1.
112. PITTSBURGH, PA., 6 § art. 1 Ch. 618.
enforce those rights on behalf of those natural communities and

ecosystems.113
This amendment was directed at unconventional gas extraction
(fracking), specifically the discharge of “toxins into the air, soil, water,
environment, and the bodies of residents”114 as a result of the activity.
As well as underscoring the importance of community decision-
making,115 the Code prohibited commercial extraction of gas within the
city and removed the potential for corporations to override community
decision-making concerning the environment.116 Although at this stage
drilling companies rarely contemplate drilling within the city’s
boundaries, the Ordinance holds strong symbolic value, further
emboldening other local government authorities to act similarly.117
Since then, a court order has prevented the Pennsylvanian Public
Utility Commission from reaching a final decision on their finding that
the Ordinance conflicted with state environmental laws.118 Yet fracking
companies, having secured drilling rights in the surrounding rural
counties, have become increasingly interested in the city’s adjacent
lands. Well permits have been issued or planned for sites just six
kilometres from the city limits, effectively in suburban “backyards.”119
Initially, courts upheld the right of municipal boroughs to utilize
zoning laws in order to determine the location of drilling activities.120
In 2012, however, the Pennsylvania State legislature passed “Act 13,”
an amendment and expansion to the Oil and Gas Act, which, inter alia,
sought to consistently implement regulatory parameters by pre-
empting local government authorities from banning or restricting oil
and gas activities.121 In a landmark decision, the Pennsylvania Supreme
Court in Robinson Township v. Commonwealth partially struck down
113. Id. at 618.03.

114. Id. at 618.01.
115. Id. at 618.01.
116. Id. at 618.04(a).
117. Matt Stroud, Five years on: What did Pittsburgh lose by Banning Fracking?,
PITTSBURGH BUSINESS TIMES (Nov. 16, 2015),
https://www.bizjournals.com/pittsburgh/news/2015/11/16/five-years-later-pittsburgh-fracking-
ban.html.
118. Nathaniel L Foote, Not in My Backyard: Unconventional Gas Development and Local
Land Use in Pennsylvania and Alberta, Canada, 3 PA. STATE J.L. & AFF. 235, 249–250 (2015).
119. Reid Frazier, Pittsburgh Suburbs Decide as Fracking Comes Near: Welcome it, or Resist?,
THE ALLEGHENY FRONT (Feb. 9, 2018), https://www.alleghenyfront.org/pittsburgh-suburbs-
decide-as-fracking-comes-near-welcome-it-or-resist/.
120. Huntley & Huntley v. Borough Council, 964 A.2d 855, 869 (Pa. 2009) (US).
121. 58 PA. CONS. STAT. § 3304(b)(5)-(6).
Act 13 on constitutional grounds,122 since the state’s Environmental

Rights Amendment provided for the right to “clean air, pure water,
and to the preservation of the natural, scenic, historic and aesthetic
values of the environment.”123 Although local government authorities
may resume enforcing zoning laws to protect their communities, this
may result in a very uneven stance on drilling activities. However,
positioning environmental concerns as human rights issues124 appears
to hold more potential for their protection, on the basis that a right to
a healthy environment is a non-negotiable component of fundamental
individual and community rights.
In 2013, another local ordinance,125 this time in the city of Santa
Monica,126 was added to the Santa Monica Municipal Code, which
recognized the rights of natural communities and ecosystems to exist
and flourish.127 Concerning water, the codified Sustainability Rights
Ordinance states that residents have the right to:
[C]lean water from sustainable sources; marine waters safe for
active and passive recreation; clean indoor and outdoor air; a
sustainable food system that provides healthy, locally grown food; a
sustainable climate that supports thriving human life and a flourishing
biodiverse environment; comprehensive waste disposal systems that do
not degrade the environment; and a sustainable energy future based on
renewable energy sources.128
The codified Ordinance forms part of the environmental public
policy of the city, with a 2014 amendment to the Santa Monica
Sustainable City Plan that incorporated the rights of nature as a guiding
principle.129 Together, these enshrine the city’s commitment to
sustainable rights for its human and non-human inhabitants,130
recognizing nature’s inalienable and fundamental rights
“to exist, thrive and evolve and the rights of the individual human
122. Robinson Township v Commonwealth, 83 A.3d 901, 999 (Pa. 2013).

123. THE CONSTITUTION OF PENNSYLVANIA 1968, art. I § 27.
124. See generally Damien Short et al., Extreme Energy, “Fracking” and Human Rights: A
New Field for Human Rights Impact Assessments?, 19 THE INTERNATIONAL JOURNAL OF
HUMAN RIGHTS 697 (2015).
125. SANTA MONICA CAL., Ordinance No. 2421 CCS § 1 (2013).
126. SANTA MONICA CAL., Santa Monica Municipal Code, §12 Ch 12.02 amended by
Ordinance No. 2611 CCS §10 (2019).
127. Id. at 12.02.020(c).
128. Id. at 12.02.020(c).
129. SANTA MONICA, SUSTAINABLE CITY PLAN 7 (2014).
130. Id.
beings that inhabit the City of Santa Monica to a clean, healthy and
sustainable environment.”131
The emphasis on the rights of nature in the U.S. ordinances has
emerged squarely from grassroots frustration with existing
environmental laws and a desire for transformative change at the
insistence not just of local communities but also of activist
environmental NGOs like the Earth Law Center.132 The Santa Monica
Sustainability Rights Ordinance, for example, specifically states that
existing U.S. environmental laws including the Clean Water Act,133
Clean Air Act,134 and the National Environmental Policy Act135
insufficiently safeguard rights and are “grossly inadequate to avert the
mounting environmental crisis,” which in turn “necessitates re-
examination of the underlying social and legal assumptions about our
relationships with the environment and a renewed focus on
effectuating these rights.”136 However, as examined below, while local
governments have managed to pass a rights of nature approach under
the radar, attempts to provide for the legal rights of rivers and lakes
have floundered at higher levels, encountering fierce opposition from
states.
First Nations have also been involved in the U.S. rights of nature
movement, using their jurisdiction as domestic-dependent, sovereign
nations to pass rights of nature laws. In 2015, the Ho-Chunk Nation
General Council incorporated the rights of nature in the “Constitution
of the Ho-Chunk Nation,”137 and in 2017, the Ponca Nation in
Oklahoma passed a tribal law recognizing the rights of nature as part
of a movement against fracking.138 In 2019, the White Earth Nation
131. SANTA MONICA CAL, supra note 126, at 12.02.020(c).

132. See generally EARTH LAW CENTER, COMMUNITY TOOLKIT FOR RIGHTS OF NATURE
(2019).
133. 33 U.S.C. §1251 (1972).
134. 42 U.S.C. §7401 (1970).
135. 42 U.S.C. §4321 (1969).
136. SANTA MONICA CAL, supra note 126, at 12.02.020(d)-(e).
137. THE CONSTITUTION OF THE HO-CHUNK NATION, https://ho-chunknation.com/wp-
content/uploads/2019/05/Constitution-of-The-HoChunk-Nation.pdf (last visited May 28, 2021);
RESOLUTION TO AMEND THE HO-CHUNK NATION CONSTITUTION AND PROVIDE FOR THE
RIGHTS OF NATURE
https://d3n8a8pro7vhmx.cloudfront.net/honorearth/pages/2098/attachments/original/1446129806
/HoChunk_RightsOfNature_Resolution_Sep2015.pdf?1446129806 (last visited Sept. 18, 2019).
138. ADVANCING LEGAL RIGHTS OF NATURE: TIMELINE, https://celdf.org/advancing-
community-rights/rights-of-nature/rights-nature-timeline/ (last visited Sept. 18, 2019); PONCA
NATION OF OKLAHOMA TO RECOGNIZE THE RIGHTS OF NATURE TO STOP FRACKING,
https://intercontinentalcry.org/ponca-nation-oklahoma-recognize-rights-nature-stop-fracking/
(last visited Sept. 18, 2019).
Band of Ojibwe in Minnesota passed an ordinance to protect wild rice

(called Manoomin) as a central food for the continuation of their
culture and identity.139 The ordinance recognizes the legal right for
Manoomin to “to exist, flourish, regenerate, and evolve, as well as
inherent rights to restoration, recovery, and preservation.”140
Most recently, in May 2019, the Yurok Tribal Council in
California passed the “Resolution Establishing the Rights of the
Klamath River,” emphasizing the strong connection between the
Yurok Tribe and the Weron or Klamath River.141 The resolution
protects the river’s rights “to exist, flourish, and naturally evolve; to
have a clean and healthy environment free from pollutants; and to be
free from contamination by genetically engineered organisms.”142 The
resolution is strongly worded, serving as a warning to “[t]he United
States of America, the State of California and all other entities which
threaten and endanger the freshwaters, ecosystem and species of the
Klamath River, that it has become necessary to provide a legal basis to
protect the Klamath River, its ecosystem and species for the
continuation of the Yurok people and the Tribe for future
generations.”143 Additional reference was made to Article 26 of the
United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP),144 on the rights of Indigenous Peoples to their lands,
territories and resources, combining ecological and Indigenous rights
jurisprudence. In the U.S., First Nation rights-of-nature laws, like
Indigenous-driven rights-of-nature models in other parts of the world,
draw on Indigenous worldviews that emphasize the interconnectedness
that Indigenous peoples perceive between humans and nature.145
139. CHIPPEWA ESTABLISHING RIGHTS OF MANOOMIN ON WHITE EARTH RESERVATION

AND THROUGHOUT 1855 CEDED TERRITORY,
files.harmonywithnatureun.org/uploads/upload764.pdf (last visited June 17, 2019).
140. Id.
141. RESOLUTION ESTABLISHING THE RIGHTS OF THE KLAMATH RIVER,
files.harmonywithnatureun.org/uploads/upload833.pdf (last visited Jun 17, 2019).
142. Id.
143. Id.
144. UNITED NATIONS, UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS
PEOPLES (2017) (this report can be found at
https://www.un.org/development/desa/indigenouspeoples/wp-
content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.).
145. See generally Linda Te Aho, Te Mana o te Wai: An Indigenous Perspective on Rivers and
River Management, 35 RIVER RSCH. APPLICATIONS 1615 (2019).
II. The Legal Rights of the Colorado River

The Colorado River is located in the southwestern U.S., flowing
2,330 kilometres through seven American and two Mexican States
before finding its way to the Pacific Ocean in the Gulf of California.146
The river is of immense economic and social value in the U.S. and
supplies water to Las Vegas, Denver, Salt Lake City, Albuquerque,
Los Angeles, and San Diego and other cities across seven states
(Wyoming, Colorado, Utah, New Mexico, Nevada, Arizona and
California). The river has been estimated to contribute $1.4 trillion in
economic benefit to the U.S.147 and has been disputed and settled in
transboundary national and binational agreements since 1948.148 For
example, the treaties and arrangements known as the “Law of the
Rivers,” allocate the flow of 17 million acre-feet of water per year
among various states.149 The river also flows through the reservations
of several Native American tribes150 and across the border into
Mexico.151
However, the Colorado River is unwell. Complex and
interconnected pressures from land use such as agriculture, combined
with inadequate management have led to a deterioration in the water
quality and quantity and the biodiversity of the Colorado River.152
Huge quantities of water are diverted out of the river to supply urban,
agricultural and industrial areas, causing “changes in timing, duration
variation and magnitude of hydrologic conditions.”153 In addition to
146. COLORADO RIVER, https://www.americanrivers.org/river/colorado-river/ (last visited

Oct. 22, 2019).
147. For a discussion of the Colorado River’s importance see COMMITTEE ON THE
SCIENTIFIC BASES OF COLORADO RIVER BASIN WATER MANAGEMENT ET AL., COLORADO
RIVER BASIN WATER MANAGEMENT: EVALUATING AND ADJUSTING TO HYDROCLIMATIC
VARIABILITY (2007); ECONOMIC IMPACT OF THE COLORADO RIVER,
https://www.nature.org/en-us/about-us/where-we-work/priority-landscapes/colorado-
river/economic-importance-of-the-colorado-river/ (last visited May 28, 2021).
148. CO Rev Stat § 37-61-101 (2016) (Colorado River Compact) ( compact with Arizona,
California, Colorado, Nevada, New Mexico, Utah, Wyoming from 1922); Treaty Between Mexico
and the United States for the Utilisation of Waters of the Colorado and Tijuana Rivers and of the
Rio Grande, U.S.-Mx., opened for signature 3 February 1944, 59 Stat. 1223 TS 944 (entered into
force 8 November 1945).
149. Complaint for Declaratory Relief, supra note 102, at 20–21.
150. TRIBES AND WATER IN THE COLORADO RIVER BASIN,
https://www.coloradoriverresearchgroup.org/uploads/4/2/3/6/42362959/crrg_tribal_water_rights.
pdf (last visited May 28, 2021).
151. DAVID CARLE, INTRODUCTION TO WATER IN CALIFORNIA 86–130 (2d. ed. 2009).
152. See generally NATALIE TRIEDMAN, ENVIRONMENT AND ECOLOGY OF THE COLORADO
RIVER BASIN (2012).
153. Id. at 103.
poor management, climate change is exacerbating the environmental

impacts on the river, increasing the incidence of drought and
threatening riparian species and natural communities.154
The environmental plight of the Colorado River, and the people
who care for it, led the NGO Deep Green Resistance and others to file
an application for Declaratory Relief with the District Court of
Colorado 2017 on behalf of the Colorado River ecosystem,155 which
they described as:156
The area bound by the highpoints and ridgelines where drop-by-
drop and grain-by-grain, water, sediment, and dissolved materials ebb
their way toward the Gulf of California: some 246,000 square miles
(640,000 km2) in southwest North America including portions of
Colorado, New Mexico, Wyoming, Utah, Nevada, Arizona, California
in the United States, and portions of Baja California and Sonora in
Mexico.
Having a significant relationship with and dedication to the river,
the plaintiffs claimed to be the “next friend”157 or “guardian being
bound to act in the river’s best interests and to advocate for their
inherent and constitutionally-secured rights.”158 In terms of relief, the
plaintiffs requested that the Court “recognize and declare that the
Colorado River is capable of possessing rights similar to a ‘person,’”
and declare “that the Colorado River has certain rights to exist,
flourish, regenerate, and naturally evolve.”.159
The plaintiffs argued that environmental laws have failed “to stop
the degradation of the natural environment, and consequently, [have]
failed to protect the natural and human communities,”160 where the
legal system is dominated by a culture that considers nature as an
object of property.161 Legal personhood for the river, they argued, is
necessary to make the river ecosystem’s rights “visible” to the
institutions of government, in much the same way as African American
154. See e.g., COMMITTEE ON THE SCIENTIFIC BASES OF COLORADO RIVER BASIN WATER
MANAGEMENT ET AL., supra note 147; CARLE, supra note 151; Triedman, supra note 152.
155. In the US court system, a ‘next friend’ or (prochein ami) is a person who commences
and takes responsibility for legal proceedings on behalf of another person who does not have
capacity to bring proceedings (e.g. a child or a person with a mental disability). PROCHEIN AMI,
https://www.merriam-webster.com/dictionary/prochein%20ami (last visited May 28, 2021).
156. Complaint for Declaratory Relief, supra note 102, at 3.
157. ERIN O’DONNELL, supra note 15, at 97.
158. Complaint for Declaratory Relief, supra note 102, at 7.
159. Id. at 2–3.
160. Id. at 2.
161. Id.
and women’s rights became visible to the courts in the 1800s.162 They
drew an analogy to the development of legal personality for
corporations, which would not otherwise be able to defend
themselves.163 The failure by the State to recognize the river’s rights,
they ultimately argued, violated its due process rights, its interests in
“life, liberty and property” granted by the Fifth Amendment,164 and its
right of equal protection from arbitrary exercise or abuse of
government power as provided by the Fourteenth Amendment165 to
the United States Constitution.166
Colorado swiftly filed a motion to dismiss the case.167 The State
argued that Deep Green Resistance lacked standing168 to bring the
claim as next friend of the river169 due to a lack of an actual or imminent
concrete injury,170 and, without legal personality,171 the river ecosystem
itself holds no rights.172 A legal person, it argued, does not encompass
objects like the soil, water, and plants that, together with animals,
create an ecosystem.173 In any event, any future injury to the Colorado
River ecosystem is not traceable to any state action because the
allocation framework for the river is the result of 95 years of interstate
compacts, international treaties, statutes and case law referred to as the
“Law of the River,”174 and the State never had an intention to harm the
river.175 The State further alleged that the plaintiffs’ reliance on the
Fifth and Fourteenth Amendments was misplaced and that their claims
were based on rhetoric176 and raised non-justiciable issues of policy in
162. Id. The comparison of nature to gender and race-based rights may also have been a poor
choice, given the ongoing sense of injustice around such human rights.
163. Id. at 13–14. Clark et al argue that the use of the corporate analogy in the Colorado
River case muddied the waters, which arguably weakened the claim, since a corporation is both a
human construct and a fictionalised person, while the natural world actually exists.
164. U.S. CONST. amend V.
165. Id. at amend XIV.1.
166. Complaint for Declaratory Relief, supra note 102, at 23–25.
167. Defendant’s First Motion to Dismiss, Colorado River Ecosystem v. State of Colorado
(D. Colo 2017) (Civ. No. 17-cv-02316).
168. See infra note 103
169. Defendant’s First Motion to Dismiss, supra note 167, at 7–11.
170. Id. at 8–11.
171. Id. at 12.
172. Id. at 11–13.
173. Id. at 12.
174. Id. at 12–13.
175. Defendant’s Second Motion to Dismiss, Colorado River Ecosystem v. State of Colorado
(D. Colo 2017) (Civ. No. 17-cv-02316).
176. Id. at 17.
an attempt to fabricate a self-declared right of representation.177 In very

strong language, it argued that to “alter the fabric of American
domestic and foreign policy” would “[fly] in the face of the entire
framework for addressing such concerns,”178 a responsibility, in its
view, that rested exclusively with Congress.179
The plaintiffs cited a range of domestic and international
precedents for the rights of nature, including Justice William O.
Douglas’s dissent in Sierra Club v. Morton, New Zealand’s Te Urewera
Act, the Ecuadorian Constitution, the declaration of the Atrato River
as a legal subject by the Constitutional Court of Colombia, and the
Indian High Court cases recognizing legal rights for rivers in the State
of Uttarakhand.180 The plaintiffs elaborated their claims in an amended
complaint,181 and the defendant once more responded by filing a
second motion to dismiss.182 By this point, the office of the Attorney
General had threatened to invoke legal proceedings against the
plaintiffs, referring to regulations which sanctioned unlawful and
frivolous claims.183 Two days later, the plaintiffs voluntarily dismissed
the case, acknowledging that “the expansion of rights is a complex and
difficult matter” that may be better approached “when conditions are
appropriate.”184 The following day, the District Court of Colorado
accepted the plaintiff’s dismissal, and the case was over before it had
really begun.185
Despite the clearly desperate state of the Colorado River
ecosystem and the failure of existing environmental laws to slow its
decline, the river could not compete with the rights of humans. The
Colorado River case shows the vulnerability of the rights-for-nature
movement in the fact of competing claims and, within a certain
constitutional context, just how fiercely states will resist rights for
177. Defendant’s First Motion to Dismiss, supra note 167, at 16.

178. Defendant’s Second Motion to Dismiss, supra note 175, at 19.
179. Defendant’s First Motion to Dismiss, supra note 167, at 16–17.
180. Defendant’s Second Motion to Dismiss, supra note 175, at 20–22.
181. Amended Complaint for Declaratory Relief, supra note 109.
182. Defendant’s Second Motion to Dismiss, supra note 175.
183. Chris Walker, Attorney to Withdraw Colorado River Lawsuit Under Threat of Sanctions,
WESTWORD (Dec. 4, 2017), https://www.westword.com/news/colorado-river-lawsuit-to-be-
withdrawn-due-to-potential-sanctions-9746311.
184. Plaintiff’s Unopposed Motion to Dismiss Amended Complaint With Prejudice,
Colorado River Ecosystem v. State of Colorado (D. Colo 2017) (Civ. No. 1:17-cv-02316).
185. Order to Dismiss, Colorado River Ecosystem v. State of Colorado (D. Colo 2017) (Civ.
No. 1:17-cv-02316).
nature where they conflict with entrenched human productive

interests.
III. The Lake Erie Bill of Rights

Lake Erie is the eleventh largest lake in the world. It supports the
economies of the four U.S. states of New York, Pennsylvania, Ohio
and Michigan and the Canadian province of Ontario.186 The area
supported by the lake is home to more than 12 million people across
17 metropolitan areas.187 However, since the 1960s, the lake has
experienced consecutive algae blooms and now has “dead zones”
caused by contamination from industrial discharges, urban wastewater,
and the use of fertilizers and pesticides in farming.188 In 1969, one of
the rivers flowing through Cleveland, Ohio famously caught fire,
provoking the development of the Clean Water Act.189
Although water quality in Lake Erie improved after the passage
of the Clean Water Act, it did not solve the problems of algae blooms
and dead zones. In 2012 and 2014, Toledo, Ohio, experienced
significant water shortages, causing stores to close, restaurants to
empty and hospital surgeries to delay.190 As a result, the city and a
group of citizens calling themselves “Toledoans for Safe Water”
developed a proposal for a “Lake Erie Bill of Rights,” which they
submitted as a petition to amend the Toledo City Charter.191 Toledoans
for Safe Water claimed that such action was necessary because of the
dominance of the industrial, commercial and agricultural activities
affecting the lake, which were being prioritized ahead of the rights and
health of the people and communities living around it.192
Leading the campaign in support of the Bill, Toledoans for Safe
Water successfully acquired the requisite signatures to submit the
186. Timothy Williams, Legal Rights for Lake Erie? Voters in Ohio City Will, N.Y. TIMES
(Feb. 17, 2019) https://www.nytimes.com/2019/02/17/us/lake-erie-legal-rights.html.
187. LAKE ERIE, https://www.epa.gov/greatlakes/lake-erie (last visited Aug. 20, 2019).
188. Id.
189. Becky Oskin, Lake Erie Dead Zone: Don’t Blame the Slime!, LIVE SCIENCE (Jan. 6,
2015), https://www.livescience.com/49347-lake-erie-dead-zone-drought.html.
190. Emily Chung, What’s Behind Lake Erie’s Algae Explosion, CBC NEWS (Aug. 7, 2014),
https://www.cbc.ca/news/technology/lake-erie-s-algae-explosion-blamed-on-farmers-1.2729327;
Tom Henry, Lawsuit Filed Against Lake Erie Bill of Rights, TOLEDO BLADE, (Feb. 27, 2019),
https://www.toledoblade.com/local/environment/2019/02/27/lawsuit-filed-against-lake-erie-bill-
of-rights-district-court-lebor/stories/20190227090.
191. THE LAKE ERIE BILL OF RIGHTS,
https://lakeerieaction.wixsite.com/safewatertoledo/lake-erie-bill-of-rights (last visited Sept. 28,
2019).
192. Id.
petition to a public ballot; however on August 28, 2018, the Lucas

County Board of Elections voted 4-0 to reject the petition, relying on
legal advice that suggested that (1) the Bill created a new cause of
action, which (2) conferred jurisdiction on the Lucas County Court of
Common Pleas.193 Seeking to rectify this, citizens filed an action in the
Ohio Supreme Court for a writ of mandamus, a court order compelling
lawful compliance. In Twitchell v. Saferin,194 the writ was denied, with
the court relying on an earlier decision in State ex rel. Flak v. Betras,195
which upheld the Board’s right to determine whether the initiative fell
within the constitutional scope of the power to enact via a citizens’
initiative. Concurring in the judgment only, Justice Kennedy
contended that the court in Flak had erroneously confused the relevant
constitutional authority.196 Although this was ineffectual to the case at
hand, there was clear authority for a municipal ordinance, if passed, to
override the Board’s decision. Sure enough, the Toledo City Council
passed Ordinance 497-18 on 4 December 2018, accepting the petition,
with the ballot for special election to be held on February 26, 2019.
With the Supreme Court meanwhile confirming Justice Kennedy’s
arguments in a separate case,197 an opposing judicial action easily failed
the requirement for procedural or legislative illegality for a writ of
prohibition.198 Finally, the vote was held, and with 61 percent favor,199
the Toledo City Charter was amended to include the Lake Erie Bill of
Rights.200The newly adopted Lake Erie Bill of Rights declares that
“Lake Erie, and Lake Erie watershed, possess the right to exist,
flourish and naturally evolve.”201 This holistic view of the ecosystem
193. See generally State ex rel. Twitchell v. Saferin, 119 N.E.3d 365 (Ohio 2018).
194. Id. at 367.
195. State ex rel. Flak v. Betras, 95 N.E.3d 329, 330 (Ohio 2017).
196. State ex rel. Twitchell, 119 N.E.3d at 10–11. Kennedy J noted that provisions governing
an amendment to the Toledo City Charter, found in Article XVIII, Section 9 of the Ohio
Constitution, differed from the constitutional provisions governing citizen iniatives to enact
municipal ordinances in Article II, Section 1f. The Court had earlier conflated these provisions.
When following its revised distinction, a citizens initiative endorsed by the City Council as an
ordinance to the ballot (as opposed to an initiative to create an ordinance) applied under Article
XVII, Section 9.
197. State ex rel. Maxcy v. Saferin, 122 N.E.3d 1165, 1168–1170 (Ohio 2018).
198. State ex rel. Abernathy v. Lucas City Board of Elections, 125 N.E.3d 822, 835–836 (Ohio
2019).
199. TOLEDO, OHIO, QUESTION 2, “LAKE ERIE BILL OF RIGHTS”,
https://ballotpedia.org/Toledo,_Ohio,_Question_2,_%22Lake_Erie_Bill_of_Rights%22_Initiati
ve_(February_2019) (last visited Oct. 19, 2019).
200. TOLEDO, OHIO, Charter of the City of Toledo, Ohio, Lake Erie Bill of Rights, Ch XVII
(US).
201. Id. at § 253.
includes “all natural water features, communities of organisms, soil as

well as terrestrial and aquatic sub ecosystems that are part of Lake Erie
and its watershed.”202 The document emphasizes the need for a shift in
the way that lakes are managed, due to ineffective existing laws and
institutions:
We the people of the City of Toledo find that laws ostensibly
enacted to protect us, and to foster our health, prosperity, and
fundamental rights do neither; and that the very air, land, and water -
on which our lives and happiness depend - are threatened. Thus it has
become necessary that we reclaim, reaffirm, and assert our inherent
and inalienable rights, and to extend legal rights to our natural
environment in order to ensure that the natural world, along with our
values, our interests, and our rights, are no longer subordinated to the
accumulation of surplus wealth and unaccountable political power.203
Like other rights of nature protections in the United States, and in
various jurisdictions around the globe, the lake’s rights are effectively
an extension of human rights protections secured for the people of
Toledo.204 These include the right of the people of the City of Toledo
“to a clean and healthy environment, which shall include the right to a
clean and healthy Lake Erie and Lake Erie ecosystem,”205 and “a
collective and individual right to self-government in their local
community, a right to a system of government that embodies that right,
and the right to a system of government that protects and secures their
human, civil, and collective rights.”206 The Lake Erie Bill of Rights
further specifies that protected rights are “self-executing,” meaning
that they do not require empowering legislation. As such, any person
could take to the courts under the Lake Erie Bill of Rights to plead for
themselves, or on behalf of the lake.207 The Lake Erie Bill of Rights
also includes penalties and enforcement provisions, making it an
offense to infringe the rights protected in it and declaring it (apparently
retrospectively) unlawful to grant water permits or concessions in
contravention of its principles.208
Unsurprisingly, the successful incorporation of the Lake Erie Bill
of Rights in the Toledo City Charter was an alarming turn of events for
202. Id. at § 254(a).

203. Id. at § 253.
204. See generally Macpherson, supra note 15, at 285.
205. TOLEDO, OHIO, supra note 200, at § 254(b).
206. Id. at § 254(c).
207. Id. at § 254(d).
208. Id. at §§ 255–257.
the industrial and agricultural sectors, whose interests now appeared

to be defeasible by legal action. From an industry standpoint, any
alleged activity was not only lawful but enjoyed legal protections, such
as the Ohio State’s “right-to-farm” laws, which have severely limited
the right of citizens to sue neighboring farms for harms suffered by
pollution and drastically restricted legal avenues to oppose agricultural
runoff.209 Yet the Lake Erie Bill of Rights appeared to ignore (or even
override) the legality of any conduct in question by purporting to
dispossess companies of “any other legal rights, powers, privileges,
immunities or duties that would interfere with the rights or
prohibitions enumerated by [the Lake Erie Bill of Rights],” should
they violate or seek to violate its rights or prohibitions.210 Furthermore,
strict liability applied to any violations regardless of jurisdiction.211 This
attempt to trump existing laws and regulatory frameworks is blatant in
the Lake Erie Bill of Rights, which declares the lake’s rights as
“inherent, fundamental and unalienable.”212
The day after the ballot vote passed, however, the Drewes, a
family that has continued to farm in the Lake Erie watershed for five
generations, filed a complaint in the Ohio Supreme Court against the
city of Toledo (Drewes Farms Partnership v. City of Toledo), seeking a
preliminary injunction and declaratory relief to render the Lake Erie
Bill of Rights void and unenforceable.213 Understandably, the plaintiffs
voiced serious concerns with the document’s legal uncertainty,
especially concerning its lack of applicable standards and criteria for
violations.214 Although they claimed to have undertaken efforts beyond
mere compliance with the relevant environmental regulations for
farming fertilization, they considered the use of fertilizers essential,
therefore exposing them to potential liability, which, they argued,
would expose them to risk of bankruptcy215 and “arbitrary
enforcement.”216
209. H. Claire Brown, How Ohio’s Chamber of Commerce Killed an Anti-Pollution Bill of
Rights, THE INTERCEPT (Aug. 29, 2019) https://theintercept.com/2019/08/29/lake-erie-bill-of-
rights-ohio/.
210. TOLEDO, OHIO, supra note 200, at § 257(a).
211. Id. at § 256(c).
212. Id. at § 254(d).
213. Plaintiff’s Complaint, Drewes Farms Partnership v. City of Toledo (N.D. Ohio 2019)
(Civ. No. 3:19-cv-00434-JZ).
214. Id. at 12.
215. Id. at 13.
216. Id. at 16.
Moreover, in the plaintiffs’ view, the Lake Erie Bill of Rights

amounted to a constitutional infringement. Since the Lake Erie Bill of
Rights denied its violators the ability to defend their alleged
violations,217 it interfered with rights in the First, Fifth and Fourteenth
Amendments to the United States Constitution: freedom of speech and
the right to petition for redress of grievances, due process, and equal
protection.218 Taking an unhelpfully binary approach to rights, the
Lake Erie Bill of Rights does not provide guidance for conflicting
interests. Its opponents argued that the Lake Erie Bill of Rights has
extended beyond its lawful scope—conflicting with state, federal, and
even foreign laws, as the Canadian jurisdiction is within the Lake’s
watershed.219
The city’s power to enforce the Lake Erie Bill of Rights was
suspended with Judge Zouhary’s grant of a preliminary injunction on
March 18, 2019.220 On the same day, attorneys representing Toledoans
for Safe Water and the Lake Erie Ecosystem filed to intervene, and
separately, to dismiss the case.221 Although the Supreme Court allowed
the State of Ohio to intervene in support of the plaintiffs,222
intervention for the defendant was denied.223 The representing
attorneys failed to secure a motion to stay the proceedings224 until they
had appealed this decision,225 which, ultimately, the Sixth Circuit Court
217. TOLEDO, OHIO, supra note 200, at § 257(a).

218. U.S. CONST., amend XIV.1.
219. Plaintiff’s Complaint, supra note 213, at 19–21.
220. Preliminary Injunction Order, Drewes Farms Partnership v. City of Toledo (N.D. Ohio
2019) (Civ. No. 3:19-cv-00434-JZ).
221. Peggy Kirk Hall, Ohio Agricultural Law Blog - Case Watch: The Lake Erie Bill of Rights
Lawsuit, OHIO AG L. BLOG (Mar. 28, 2019), https://farmoffice.osu.edu/blog/thu-03282019-
1220pm/ohio-agricultural-law-blog-case-watch-lake-erie-bill-rights-lawsuit.
222. Order Granting Motion to Intervene, Drewes Farms Partnership v. City of Toledo (N.D.
Ohio 2019) (Civ. No. 3:19-cv-00434-JZ).
223. Order Denying Motion to Intervene, Drewes Farms Partnership v. City of Toledo (N.D.
Ohio 2019) (Civ. No. 3:19-cv-00434-JZ). Note where the Court reiterated that the Lake Erie
Ecosystem could only intervene in the Lucas County Court of Common Please, thus lacking
standing for the federal division. If this interpretation holds, it would curtail the right to appeal
(and, perhaps, the right of due process under the Constitution).
224. Order Denying Motion to Stay, Drewes Farms Partnership v. City of Toledo (N.D. Ohio
2019) (Civ. No. 3:19-cv-00434-JZ).
225. Notice of Appeal, Drewes Farms Partnership v. City of Toledo (N.D. Ohio 2019) (Civ.
No. 3:19-cv-00434-JZ).
of Appeals rejected.226 The city has invoked 16 legal defenses 227 and
has filed to cross-motion since the Drewes and the State’s lodging of
motions for a judgment on the pleadings. While the State of Ohio
contends that the rights of nature model is conceptually incompatible,
claiming that “indistinct harms are in direct conflict with state and
federal law,”228 the city, ironically, alleges indistinct harm in a different
sense—that its lack thereof, or speculative, theoretical basis could not
fulfil the defendants’ standing requirements.229 As the relatively
passive actor in the amendment process, the city argues that its actions
could not be traced to the harm alleged, even if it were shown that harm
was imminent. Indeed, it proceeded to reframe the Lake Erie Bill of
Rights’s ambiguity in its own favor. On the city’s interpretation, the
Lake Erie Bill of Rights did not remove legal defenses; it merely
concluded that existing legality could not conclusively establish a
defense,230 while the Bill’s incorporation of state laws231 meant that the
Lake Erie Bill of Rights did not directly supplant state authority but
merely augmented its environmental protections.232
Whether the Drewes, non-residents of Toledo and Lucas County,
will be able to defeat a citizens’ initiative remains to be seen. Three of
those citizens, meanwhile, filed for an injunction in the County Court
in June 2019, seeking to block the State’s limitation of the Lake Erie
Bill of Rights. Concurrently, corporate influences made their presence
known,233 with a last-minute amendment from the Chamber of
Commerce to the biannual Budget Bill, which contained the following:
Nature or any ecosystem does not have standing to participate or
bring an action in any court of common pleas.
226. Ellen Essman, Case Watch: LEBOR and Lake Erie Battles Linger, OHIO AG L. BLOG
(Aug. 1, 2019), https://farmoffice.osu.edu/blog/thu-08012019-928am/ohio-ag-law-
blog%E2%80%94case-watch-lebor-and-lake-erie-battles-linger.
227. Defendant’s Answer to Plaintiff’s Complaint, Drewes Farms Partnership v. City of
Toledo (N.D. Ohio 2019) (Civ. No. 3:19-cv-00434-JZ).
228. State of Ohio’s Motion for Judgment on the Pleadings, Drewes Farms Partnership v.
City of Toledo (N.D. Ohio 2019) (Civ. No. 3:19-cv-00434-JZ).
229. Cross Motion to Plaintiff’s Motion for Judgment of the Pleadings, Drewes Farms
Partnership v. City of Toledo (N.D. Ohio 2019) (Civ. No. 3:19-cv-00434-JZ).
230. Id. at 15.
231. TOLEDO, OHIO , supra note 200, at § 257(b).
232. Cross-motion to Plaintiff’s Motion for Judgment of the Pleadings, supra note 229, at 19.
233. Bill Lyons, Exposed: Chamber of Commerce Uses Ohio Representative as Conduit to
Undermine Rights of Nature in Ohio, THE COLUMBUS FREEPRESS (Sept. 29, 2019),
https://columbusfreepress.com/article/exposed-chamber-commerce-uses-ohio-representative-
conduit-undermine-rights-nature-ohio.
No person, on behalf of or representing nature or an ecosystem,

shall bring an action In any court of common pleas.234
Having since been signed into law by Governor DeWine, the
provision may well act as a legislative bar to judicial claims on behalf
of the lake, although this, too, may be challenged. Curiously, the new
budget establishes “H2Ohio,” a water quality initiative endowed with
$172 million (USD) to tackle Lake Erie pollution and support
initiatives towards its protection.235 Clearly, the Lake Erie Bill of
Rights has been taken seriously, as the State’s renewed efforts and
reassertion of its right to regulate dually appeases affected citizens who
have been deprived of the rights protected by the Bill and defends
against the claims of ineffective and reckless governance which, in the
opinion of many Toledoans, necessitates its protection. With
opposition in judicial, legislative and executive branches of
government, the Lake Erie case demonstrates the breadth of
difficulties that may be encountered in rights of nature claims. The
backlash to rights of nature in the U.S. is also being played out at the
constitutional level, as human opponents invoke their own
constitutional rights in resistance to the rights of nature.
WATER RIGHTS AND LEGAL RIGHTS FOR RIVERS IN MEXICO
I. Water Law Frameworks in Mexico

Mexico has 120 million inhabitants236 spread across 33 federated
states covering 197.3 million hectares of territory.237 There is huge
variance in the standard of living of its inhabitants. While Mexican
gross domestic product is among the 15 highest in the world, 43.6
percent of Mexicans (some 53.4 million people) live in poverty.238
Mexico has dramatically low rates of human access to water and
sanitation according to international standards.239
234. State of Ohio House Bill 166 § 2305.011 (2019).

235. Andrew J. Tobias, Ohio Gov. Mike DeWine Signs State Budget Bill; Nixes ‘Price
Transparency’ Measures, CLEVELAND (July 18, 2019),
https://www.cleveland.com/open/2019/07/ohio-gov-mike-dewine-signs-first-budget-bill.html.
236. POBLACIÓN, https://www.inegi.org.mx/temas/estructura/ (last visited Sept. 25, 2019).
237. REFERENCIAS GEOGRÁFICAS Y EXTENSIÓN TERRITORIAL DE MÉXICO,
https://www.inegi.org.mx/inegi/spc/doc/internet/1-
geografiademexico/man_refgeog_extterr_vs_enero_30_2088.pdf (last visited Sep 25, 2019).
238. ANEXO ESTADÍSTICO DE PROBREZA EN MEXICO,
https://www.coneval.org.mx/Medicion/MP/Paginas/AE_pobreza_2018.aspx (last visited Sept. 25,
2019).
239. UNITED NATIONS HUMAN RIGHTS COUNCIL, REPORT OF THE SPECIAL RAPPORTEUR
ON THE HUMAN RIGHTS TO SAFE DRINKING WATER ON HIS MISSION TO MEXICO 6 (2017).
There is also massive diversity in the natural environment in

Mexico, with a large number of biological species, ecosystem variability
and different climatic conditions across the country. Rainfall
conditions range from 500 mm per year in drought-affected areas to
20,000 mm per year in humid areas.240 The rivers of Mexico form a
hydrological network 633 kms long with more than 50 main rivers and
653 aquifers.241 However, Mexico’s rivers are often overallocated to
productive uses, and rivers and lakes close to urban areas experience
high levels of pollution.242 Data from the Comisión Nacional del Agua
[National Water Commission] suggests that water take is up to 1.8
times the renewable rate in Mexico,243 and local water authorities are
reputed to be ineffective.244
Mexico is a federated republic and follows the civil law tradition.245
Power is distributed across three branches of government of equal
power (legislative, executive and judicial) at three levels (federal, state
and municipal).246 The Constitución Política de los Estados Unidos
Mexicanos [Political Constitution of the United States of Mexico]
(Mexican Constitution)247 is the supreme constitutional law for the
national federation248 and sets out the overarching constitutional
framework and human rights protections.249 The Mexican Constitution
also includes a number of provisions with respect to water.250 Article 27
confirms national ownership or dominium over water and waterways
under federal administration,251 and article 115 requires municipalities
to provide access to water, sanitation services and infrastructure as a
public service within their geographical jurisdictions.252 In Mexico’s
240. SECRETARÍA DE MEDIO AMBIENTE Y RECURSOS NATURALES, ATLAS DE AGUA EN

MÉXICO: 2016 8 (2016).
241. Id. at 51.
242. See generally SECRETARIA DE MEDIO AMBIENTE Y RECURSOS NATURALES, REPORTE
HIDROLÓGICO (2007).
243. COMISION NACIONAL DEL AGUA, ESTADÍSTICAS DE AGUA EN MÉXICO 60 (2017).
244. See Carlos A. López-Morales & Maria Azahara Mesa-Jurado, Valuation of Hidden
Water Ecosystem Services: The Replacement Cost of the Aquifer System in Central Mexico, 9
WATER 571, 572 (2017).
245. JOSÉ MARÍA SERNA DE LA GARZA, CONSTITUTION OF MEXICO: A CONTEXTUAL
ANALYSIS 135–159 (2013).
246. Id. at 1–18.
247. Constitución Política de los Estados Unidos Mexicanos.
248. Id. at art. 1. (establishing the hierarchy of laws in Mexico).
249. SERNA DE LA GARZA, supra note 245, at 135–159.
250. Constitución Política de los Estados Unidos Mexicanos.
251. Id. at art. 27.
252. Id. at art. 115.
complex regulatory regime for water, there are concurrent or dual

powers to regulate and administer water between federal, state, and
municipal authorities, together with specific requirements for states
and municipalities to comply with federal laws.253
The National Water Commission is responsible for the regulation
of “national waters,”254 with powers to grant water concessions in the
public interest.255 This is done under the Ley Nacional del Aguas
(National Water Law) and accompanying regulations,256 which govern
the management and use of groundwater aquifers, the administration
of hydrological policy, the authorization of water use via the allocation
of water rights, and the prevention of water pollution.257
The Mexican Constitution provides that the federation is formed
by free and sovereign states that are free to create their own
constitutions and laws for their internal regulation as long as these laws
do not contradict the Mexican Constitution.258 Accordingly, state
governments may regulate the water within their territory but only
those waters not considered to be “national waters.”259 The National
Water Law provides for coordination on certain activities between the
federal, state and municipal governments260 and enables the federal
government to “assign” aquifers for regulation by states or
municipalities,261 but in reality, there is no clear distinction between
what are and are not national waters.
In practice, state-based water authorities regulate and support
water delivery through municipal bureaucracies that manage water
infrastructure, potable water supply, sewerage infrastructure, and
253. Id. at art. 27.

254. Id. at art. 27 para. 5. The section lists the national waters or waters under the
administration and property of the Federal Government, such as lakes, rivers that cross state’s
borders, subsoil water, rivers that finish its trajectory in the Sea: those of rivers and their direct or
indirect tributaries from the point in their source where the first permanent, intermittent, or
torrential waters begin, to their mouth in the sea, or a lake, lagoon, or estuary forming a part of
the public domain; those of constant or intermittent streams and their direct or indirect
tributaries’, ‘those of springs that issue from beaches, maritime areas, the beds, basins, or shores
of lakes, lagoons, or estuaries in the national domain; and waters extracted from mines and the
channels, beds, or shores of interior lakes and streams in an area fixed by law’.
255. Id. at arts. 27, 5, 3 XII.
256. Ley de Aguas Nacionales art. 13 XVI, Diario Oficial de la Federación 1992.
257. Id.
258. Constitución Política de los Estados Unidos Mexicanos arts. 40, 41 & 124.
259. Id. at art. 124.
260. Ley de Aguas Nacionales art. 3 XXVIII, Diario Oficial de la Federación 1992.
261. Id. at art. 3 VIII.
wastewater treatment.262 In 1983, Article 115 of the Mexican

Constitution was amended to transfer certain water-related powers
from federal to state governments. While municipalities charge the
public for water services, state and federal governments retain funding
contributions for specified purposes, including the construction of
infrastructure, reforestation or charges for the rights of use of water.263
As a result, municipalities have been given the “ultimate
responsibility” for providing water and sanitation services to their
residents, either directly or indirectly (through sub-contracting),264 and
each state congress approves water tariffs and plans and allocates
funding for water and sanitation infrastructure.265
The Mexican Constitution includes a number of human rights
protections in its Article 4, within which there are guarantees of “third
generation human rights,” including environmental rights protections.
Amongst the rights recognized in Article 4 is the human right to water
and sanitation,266 worded similarly to the United Nations General
Assembly Resolution on the Human Right to Water and Sanitation,267
although it does not define measures for provision or
implementation.268 Article 4 provides:
All people have the right to a healthy environment for their
development and wellbeing. The State will guarantee the respect of this
right. Those who cause environmental damage and deterioration will
be responsible in terms prescribed by law.269
In 2007, the federal Judicial Power of Mexico270 declared that the
right to an adequate environment, also enshrined in Article 4,
encompasses two aspects: (1) an erga omnes (enforceable) right to
sustainability and environmental preservation implying protection
from damaging effects, and (2) the obligation of authorities to monitor,
262. ANDRÉS MANUEL LÓPEZ OBRADOR, DECRETO LEY DE AGUAS DEL DISTRITO
FEDERAL 44 (2006).
263. Ley de Aguas Nacionales art. 9 XXIX, Diario Oficial de la Federación 1992..
264. UNITED NATIONS HUMAN RIGHTS COUNCIL, supra note 239, at 5.
265. ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, SÍNTESIS DE LOS
ESTUDIOS TERRITORIALES DEL VALLE DE MÉXICO (2015).
266. Constitución Política de los Estados Unidos Mexicanos art. 4.
267. G.A. Res. 64/292, United Nations Resolution on the Human Right to Water and
Sanitation (July 28, 2010).
268. Lucero Radonic, Environmental Violence, Water Rights, and (Un) Due Process in
Northwestern Mexico, 42 LATIN AM. PERSP. 27, 152 (2015).
270. SUPREMA CORTE DE JUSTICIA DE LA NACIÓN, SEMANARIO JUDICIAL DE LA
FEDERACIÓN Y SU GACETA 996–997 (2007).
conserve and guarantee human rights.271 In 2011, following the opinion

of the Inter-American Court of Human Rights in the Radilla case,272
the Mexican Supreme Court of Justice issued a landmark decision
requiring the judiciary to uphold the compliance of domestic law with
international human rights and directing the courts to favor whichever
best protects the individual if the two should conflict.273 This means that
the international right to water is also enforceable in Mexico to the
extent that it provides more fulsome protection than domestic law.
In the Mexican legal system, constitutional norms are
implemented via secondary laws, which detail rules and institutions for
their implementation. To provide for the human right to water and
sanitation, it was necessary to amend the National Water Law,
although there are still no secondary laws guiding its
implementation.274 A secondary law for the human right to water was
proposed by Congress in 2015 but was opposed by civil society and
environmental activists due to perceived concerns with legal
irregularities and its impact on rural communities, indigenous peoples
and other vulnerable populations.275 Some were concerned that the
human rights discourse was being coopted to protect the rights of
private interests and thereby prioritize the use of water for mining and
energy.276
Mexico also has a rich Indigenous history, and almost 13 percent
of the population self-identify as Indigenous.277 Their particular rights,
including to their lands and territories, have been generally ignored
since the arrival of and conquest by the Spanish Imperial Crown,
although their interests are longstanding and fiercely defended. There
is evidence of pre-colonial civilizations in Mexico dating from 1500
271. Francisco Javier Camarena Juarez, The Earth Charter as an Environmental Policy
Instrument in Mexico: A Soft Law or Hard Law Perspective., in THE EARTH CHARTER,
ECOLOGICAL INTEGRITY AND SOCIAL MOVEMENTS, 234 (Laura Westra & Mirian Vilela eds.,
2014).
272. Radilla Pacheco v. Mexico, Preliminary Objections, Merits, Reparation and Costs, Inter-
Am. Ct. H.R. (Nov. 23, 2009).
273. Id.
274. STATEMENT BY MR. LEO HELLER, SPECIAL RAPPORTEUR ON THE HUMAN RIGHTS TO
SAFE DRINKING WATER AND SANITATION AT THE 39TH SESSION OF THE HUMAN RIGHTS
COUNCIL,
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23539&LangID=E
(last visited Oct. 1, 2019).
275. Videosanunciacion FPA, Centro Mexicano de Derecho Ambiental/Ley General de
Aguas, YOUTUBE (Apr. 13, 2015), https://www.youtube.com/watch?v=MhJrI6aWu-c.
276. Id.
277. UNITED NATIONS DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS, STATE OF THE
WORLD’S INDIGENOUS PEOPLES: INDIGENOUS PEOPLES ACCESS TO HEALTH SERVICES (2015).
BCE.278 The Aztec empire, in the central area of Mexico, flourished

until around the fourteenth century, with its nucleus in the city of
Tenochtitlan, which is now known as Mexico City.279 During the
Spanish subjugation, pre-colonial groups were killed, displaced and
dispossessed of their lands and culture. Some hid their culture and
survived by accepting catholic evangelization and working for the
Spanish Crown.280 Others retreated to or remained in isolated
communities and conserved their languages and cultural ways of living
for centuries.
Perhaps ironically, Indigenous Mexicans played an important part
in independence from the Spanish Crown in 1821, fighting in various
battles without recognition or reciprocal protection of their territories
by the newly republican Government.281 Later that century, the
republican Government passed the Ley de Desamortizacion de bienes
de Manos Muertas (Law of Confiscation of Properties from Dead
Hands), known as the Ley Lerdo, which declared that the “empty”
properties of Indigenous Peoples and the Catholic Church would be
made available for privatization.282 Consequently, 85 percent of land in
the country was concentrated in only 1 percent of families, entrenching
structural class difference.283 In the revolution of 1910, Indigenous
groups fought to recover land stolen under the Ley Lerdo, yet it wasn’t
until 1915–1920 that the “indigenism” movement secured legal
recognition of Indigenous land rights via the “ejido:”284 a
constitutionally recognized rural or Indigenous community with
collective land title and certain self-government rights via internal
regulatory and decision-making power.285 In Mexico there are now
almost 32,000 ejidos distributed across 100,000 hectares.286
278. ALFREDO BARRERA-VÁSQUEZ ET AL., HISTORIA DOCUMENTAL DE MÉXICO 1 (2019).

279. INPI, Indicadores Socioeconómicos de los Pueblos Indígenas de México, GOBIERNO DE
MÉXICO (July 9, 2015), https://www.gob.mx/inpi/documentos/indicadores-socioeconomicos-de-
los-pueblos-indigenas-de-mexico-2015.
280. BERNAL DÍAZ DEL CASTILLO, THE DISCOVERY AND CONQUEST OF MEXICO (Farrar,
Straus and Cudahy trans., H. Bulff ed. 1956).
281. Id.
282. VALENTINA EDUWIGES ESTRADA-GUEVARA, GOBERNANZA INTERCOMUNITARIA
DEL AGUA PARA USO DOMÉSTICO EN LA REGIÓN HIDROPOLÍTICA: MUNICIPIOS DE LAS
MARGARITAS Y MARAVILLA TENEJAPA (2017).
283. Marcela Gonzalez Rivas, Ethnolinguistic Divisions and Access to Clean Water in Mexico,
49 LATIN AMERICAN RSCH. REV. 129, 133 (2014).
285. Id. at art. 27.
286. J. Carlos Morett-Sánchez & Celsa Cosíio-Ruiz, Panorama de los Ejidos y Comunidades
Agrarias en México, 14 AGRICULTURA, SOCIEDAD Y DESARROLLO 125, 127–128 (2017).
The Mexican Constitution confers powers on each of the 33

federated states to regulate Indigenous issues,287 but Indigenous
territorial rights, and specifically ejidos, come within federal
jurisdiction under the Ley Agraria (Agrarian law).288 Public water
services on ejido lands are provided by the local municipality, but if the
Indigenous communities wish to access water for other purposes, they
must engage with the National Water Commission except in the case
of streams or rivers within ejido lands, which the Indigenous authorities
have autonomy and self-determination over for their own water
regulation.289 The jurisdictional complexity is exacerbated by a
common incidence of informal or customary water use and
management agreements that are not readily ascertainable by
governments.290
Although Mexico was one of the first countries to ratify the
Convention Concerning Indigenous and Tribal Peoples in
Independent Countries (No. 169) (ILO Convention 169),291 the ejidos
have not always been respected by local, state, and national
governments and have in fact been subject to further encroachment
and displacement, producing ongoing conflict between Indigenous
groups and the Mexican government.292 Restrictions on privatization of
communal land were removed as early as 1920s under the Ley Lerdo,293
leading to the gradual alienation of Indigenous lands.294 In 1994,
Mexico negotiated the North American Free Trade Agreement
(NAFTA), representing a shift from agrarian redistribution to a new
market-focused approach295 in applying the World Bank’s structural
adjustment policies. However, Indigenous and rural communities fared
worst in the reforms, with the highest levels of poverty and lowest
levels of education, inadequate infrastructure, poor access to health
services; in some cases, they were still used as slaves.296 As the

288. Id. at art. 27.
289. ESTRADA-GUEVARA, supra note 282.
290. Id.
291. International Labour Organization Convention, Convention Concerning Indigenous
and Tribal Peoples in Independent Countries No. 169 28 ILM 1382 (1989) (entered into force 5
September 1991) (Convention 169).
292. PABLO GONZÁLEZ CASANOVA ET AL., EL ZAPATISMO Y LOS DERECHOS DE LOS
PUEBLOS INDÍGENAS 23 (2001).
293. Ley de Desamortizacion de Bienes de Manos Muertas, Diario Oficial de la Federación
(1920).
294. Id.
295. PABLO GONZÁLEZ CASANOVA ET AL., supra note 292, at 23.
296. Id.
government focused on the private sector, Indigenous groups

organized an insurgence in 1994 in the State of Chiapas called the
Ejército Zapatista de Liberación Nacional (Zapatista Army of National
Liberation).297
After years of conflict and negotiations between the Mexican
government and the Zapatista Army, a peace agreement was reached
between 1994 and 1998. The agreement led to the Ley de Derechos y
Cultura Indígena del Estado de Chiapas [Indigenous Rights and
Culture Law of the State of Chiapas] and, later, the recognition of some
Indigenous rights in the Mexican Constitution.298 Articles 1, 2, 4, 18,
and 115 of the Mexican Constitution were amended to recognize the
pluricultural composition of the nation, the right to self-determination,
the cultures and territories of Indigenous Peoples, and the authorities
and ways of internal regulation of these groups.299 Nonetheless, poverty
and disadvantage within Mexico is at its highest levels in Indigenous
communities, and ejidos have the least secure access to potable water,
with an estimated 21 percent of communities (1.5 million Indigenous
people) without proper access to water and sanitation.300
II. Legal Rights for Rivers in Mexico: State-Based

Constitutions and the Rights of Nature
Mexico has largely flown under the radar in terms of the rights of
nature movement; however, following the U.S. tradition in recent years
(and like similar developments in other parts of Latin America,
including Ecuador, Bolivia, Argentina, Colombia),301 there have been
297. FRANCISCO LÓPEZ BÁRCENAS, LEGISLACION Y DERECHOS INDIGENAS EN MEXICO

(2010); PABLO GONZÁLEZ CASANOVA ET AL., supra note 292.
298. Ian Flannigan Sprague, Clarifying Limbo: Disentangling Indigenous Autonomy from the
Mexican Constitutional Order, 8 PERSP. ON FEDERALISM 36 (2016); LEGISLACION Y DERECHOS
INDIGENAS EN MEXICO,
http://www.lopezbarcenas.org/files/escritos/legislacion_y_derechos_indigenas_en_Mexico.pdf
(last visited June 6, 2019).
299. BÁRCENAS, supra note 297.
300. Lucero Radonic, Through the Aqueduct and the Courts: An Analysis of the Human Right
to Water and Indigenous Water Rights in Northwestern Mexico, 84 GEOFORUM 151, 151–152
(2017).
301. See, e.g., Corte Suprema de Justicia [C.S.J.] [Supreme Court], cinco de abril de dos mil
dieciocho, Andrea Lozano Barragán, Victoria Alexandra Arenas Sánchez, Jose Daniel y Felix
Jeffry Rodríguez peña y otros v. Presidente de la República y otros, (2018); Juan Luis Castro
Córdoba and Diego Hernán David Ochoa v. Ministerio de Ambiente y Desarrollo Sostenible
EPM, Hidroeléctrica Ituango et al., Tribunal Superior, Sala Cuarta Civil Medellin [Medellin State
Superior Tribunal, Fourth Civil Court] (Colombia) (2019); Constitución de la República de
Ecuador; Ley de Derechos de la Madre Tierra (Bolivia).
a number of declarations of legal rights for nature as part of

constitutional human rights protections.
The first of these was in 2014, when the Constitución Política del
Estado de Guerrero (Political Constitution of the State of Guerrero)
(Guerrero State Constitution) was amended to insert the following
new paragraph in Article 2:
The precautionary principle is the basis of economic development
and the State must guarantee and protect the rights of nature in
relevant legislation.302
Article 2 also provides for other overarching principles of
constitutional importance including, “respect for life in all its
manifestations.”303 However, while other environmental rights, like the
right to live in a clean and healthy environment and the right to water,
are elaborated in specific provisions of the Guerrero Constitution, the
right to nature enjoys no similar extension.
The Guerrero rights for nature provision was spearheaded by local
political candidates who encouraged a number of congressional
commissions on Environment, Indigenous Issues, Migration and Rural
Development to propose the initiative.304 Yet the rights of nature
alluded to in Article 2 are not mentioned in any other laws in the State
of Guerrero. For example, the Ley de Equilibrio Ecológico y
Protección al Ambiente (Law of Ecological Equilibrium and
Protection of the Environment) makes no mention of the
precautionary principle or the rights of nature.305
The second Mexican State to recognize the rights of nature in its
constitution is the newly-formed State of Mexico City. Almost 9 million
inhabitants live in the State of Mexico City,306 at the center of the
Metropolitan zone of the Mexican Valley, comprising 60 municipalities
and 20 million people in total.307 The City was renamed from the
previous Distrito Federal in 2017 and its status elevated from federal
302. Constitución Política del estado de Guerrero art. 2 (Constitution of the State of
Guerrero).
303. Id.
304. José Gilberto Garza Grimaldo, Los Derechos de La Naturaleza En México, 1 REVISTA
MEXICANA DE CIENCIAS AGRÍCOLAS 181 (2015).
305. Ley de Equilibrio Ecológico y Protección al Ambiente del Estado de Guerrero (Law of
Ecological Equilibrium and Environmental Protection for the State of Guerrero).
306. NÚMERO DE HABITANTES. CIUDAD DE MÉXICO,
http://cuentame.inegi.org.mx/monografias/informacion/df/poblacion/ (last visited Jun 10, 2019).
307. ORGANIZATION FOR ECONOMIC COPPOERATION AND DEVELOPMENT, supra note
265.
territory to federated state.308 As an autonomous state, Mexico City has

power to create its internal laws following the usual hierarchical order
(with the Constitution at the top).309
The reform of the Mexican City Constitution developed from 2012
to 2018, led by Governor Miguel Angel Mancera.310 The new
Constitution evolved out of a three-year consultation process,
unprecedented in the Mexican context, involving 500 meetings and
dialogues with civil society and the participation of external advisors
and local and international actors.311 This process was propelled
forward by the right to public participation in Article 26 of the federal
Mexican Constitution,312 which encourages states and municipal
entities to similarly intensify their public consultation efforts. During
the transition from Distrito Federal to Mexico City State, the idea of a
progressive and innovative Constitution for the new State attracted
participants to the consultation sessions, where they shared their
aspirations for the City in light of the social and environmental
challenges it faced.313 Eventually, the Constitución Política de la Ciudad
de México [Political Constitution of the City of Mexico] (Mexico City
Constitution), approved in 2016, inserted new language into its human
rights protections, including a number of new environmental rights.314
These included the right to a clean and healthy environment in Article
13(1):
All people have the right to a healthy environment for their
development and wellbeing. The authorities must adopt necessary
measures, within their functions, for the protection of the environment
and the preservation and restoration of ecological equilibrium, with the
objective of satisfying environmental requirements for the
development of present and future generations.315

309. Constitución Política de los Estados Unidos Mexicanos arts. 1, 44.
310. UNIDAD PARA LA REFORMA POLÍTICA DE LA CDMX, RAZONES Y AVANCES:
CONSTITUCION CIUDAD DE MÉXICO 2–5 (2016).
311. Id.
312. CONSTITUCIÓN POLÍTICA DE LOS ESTADOS UNIDOS MEXICANOS art. 26. This article
provides that the Government will establish participatory processes to identify the aspirations and
needs of society and incorporate them into the Federal administration’s development plans and
programs.
313. UNIDAD PARA LA REFORMA POLÍTICA DE LA CDMX, supra note 310, at 7–15.
314. Recent regulatory reforms include gender rights, use of marihuana for medical purposes,
internal migration, sustainable mobility, animal rights and rights to nature, among others.
315. Constitución Ciudad de México art. 13.
Article 13 continues at paragraph (2) to promote citizen

participation in the protection of environmental rights and at
paragraph (3) to refer to the rights of nature as a legal subject:
For the fulfilment of this disposition [the right to a healthy
environment] a secondary law will be passed with the objective of
recognising and regulating the broad protection of the rights of nature
and all its ecosystems and species as a collective entity legal subject.316
The Mexico City Constitution entered into force in September
2018, and by the end of that year, it was already subject to seven
constitutional challenges before the Superior Tribunal of Justice in
Mexico City.317 The challenges covered a range of topics from the use
of cannabis for medicinal purposes to transgression into federal
matters.318 One of these challenges alleged the violation of federal
power to regulate water, which the Superior Tribunal of Justice denied
on the basis that water is a human right, the realization of which is the
obligation of all levels of government.319
Like the State of Guerrero, there is still no secondary law in the
State of Mexico City to elaborate fully on the protection of the rights
of nature. Mexico City does have two secondary laws dealing with
environmental matters. The first of these is the Ley Ambiental de
Protección a la Tierra [Environmental Law for the Protection of the
Earth] (Environmental Law for the Protection of the Earth), which
changed its name from simply the “Environmental Law” to the more
ecocentric title referring to the protection of the Earth in 2000.320
Ecocentric language was inserted into other parts of the
Environmental Law for the Protection of the Earth, including article
86 bis 1:
The Earth is a living and dynamic system formed by the indivisible
community of all life systems and living beings, interrelated,
interdependent and complementary, that share a common destiny.321
316. Id. at art. 13.A.3.

317. LEYES SECUNDARIAS PUEDEN FRENAR LA CONSTITUCIÓN,
https://www.eluniversal.com.mx/metropoli/cdmx/leyes-secundarias-pueden-frenar-la-
constitucion (last visited June 10, 2019).
318. SE SUMA EL SENADO A LAS ‘QUEJAS’ CONTRA CONSTITUCIÓN DE LA CDMX,
https://www.elfinanciero.com.mx/nacional/se-suma-el-senado-a-las-quejas-contra-constitucion-
de-la-cdmx (last visited June 10, 2019).
319. ACCIÓN DE INCONSTITUCIONALIDAD CONTRA CONSTITUCIÓN CIUDAD DE MÉXICO,
https://www.scjn.gob.mx (last visited June 10, 2019).
320. Grimaldo, supra note 304.
321. Ley Ambiental de Protección a la Tierra del Distrito Federal art. 86 (2000).
There are a number of other progressive elaborations of the

Earth’s interests and human obligations towards the Earth in Article
86 bis, even referring to the perspectives of Indigenous Peoples.322
Article 86 bis 2 provides that in order to protect natural resources, the
Earth will adopt the character of a “collective entity subject to the
protection of the public interest,”323 in language very close to the idea
of the “legal subject” or “legal person.” The inhabitants of Mexico City
are charged with a number of responsibilities towards the Earth,
including keeping it alive, maintaining its diversity, conserving its
water, keeping it clean, maintaining its ecological equilibrium,
restoring its ecosystems, and freeing it from pollution.324
However, the Environmental Law for the Protection of the Earth
is still an anthropocentric statute, defining natural resources as
“natural elements suitable for beneficial use by people.”325 In terms of
water, although 2017 amendments added principles for “resilience” in
the use, management and infrastructure for the consumption of
water,326 the Law facilitates the sustainable exploitation of water for
human use, within the broader, federal water regulation.327 Despite its
name, therefore, the Environmental Law for the Protection of the
Earth lacks clear rules and institutions to implement and guarantee the
rights of nature.
The other secondary environmental law in the State of Mexico
City is the new Ley Constitucional de Derechos Humanos y sus
Garantías de la Ciudad de México (Constitutional Law for the Human
Rights and Guarantees of Mexico City).328 However, despite being the
secondary law concerned with the human rights protections in Article
13 of the Mexico City Constitution, the Constitutional Law for the
Human Rights and Guarantees of Mexico City does not mention the
rights of nature at all.329 Chapter VIII of the Law, entitled “Livable
City,” guarantees the right to a clean environment330 and specifically
recognizes certain rights for animals; however, there is no reference to
322. Id. at art. 56.

323. Id.
324. Id. at art. 86.
325. Id. at art. 5.
326. Ley Ambiental de Protección a la Tierra del Distrito Federal art. 5, art. 9.IV, art.
9.XXIX, art. 9.LIII, art. 10.IV, art. 13, art. 22, art. 23 & art. 106 (2017).
327. Ley Ambiental de Protección a la Tierra del Distrito Federal art. 4 & art. 5 (2000).
328. Decreto de la Ley de Derechos Humanos y Garantias de la Ciudad de Mexico (2019).
329. Ley Ambiental de Protección a la Tierra del Distrito Federal arts. 94–100 (2000).
330. Decreto de la Ley de Derechos Humanos y Garantias de la Ciudad de Mexico art. 94
(2019).
a broader protection of the rights of nature as a legal subject. 331 It is

hard to view this as anything other than a deliberate omission, given
the temporal proximity of the Constitutional Law for the Human
Rights and Guarantees of Mexico City and the Mexico City
Constitution, and the extensive general wordiness of the former. If
neither current secondary law provides for the rights of nature, it may
be that a secondary law is pending. Yet, the political landscape is
uncertain, as Mexico City enters a new administration with its own
priorities for 2019 to 2025, and there has recently been a change of
Federal Government.
There is yet one further State Constitution to recognize the rights
of nature in Mexico. In June 2019, the Congress of the State of Colima
passed an amendment to incorporate a protection of the legal rights of
nature in the Constitución Política del Estado Libre y Soberano de
Colima (Political Constitution of the Free and Sovereign State of
Colima) (Colima State Constitution).332 The reform proposal began,
rather dramatically, by declaring that “humanity and nature are not in
harmony.”333 The document proposed a new Chapter for the Colima
State Constitution on “The Rights of Humans and of Nature.” Within
this, Article 1 Ter provided:
“Nature is a living organism, where life is created and reproduced,
upon which depends the survival and quality of life of human beings
and all other living things that coexist within her, for which she has the
right for her existence to be respected, for the restoration and
regeneration of her natural cycles, and for the conservation of her
structure and ecological functions.”334
The proposed amendments to the Colima State Constitution,
curiously, have been modelled very closely on the 2008 Ecuadorian
Constitution.335 As explained, the Constitution of Ecuador is often
credited with the origins of the modern rights of nature movement,
although commentators are increasingly critical of the perceived
failures of the Ecuadorian model,336 and recent rights for nature
developments have found their inspiration elsewhere, in particular in
331. Id.
332. Iniciativa con Proyecto de Decreto para Adicionar los Derechos de la Naturaleza (2019)
(amendment to the State of Colima’s state constitution).
333. Id.
334. Id.
335. Constitución de la República de Ecuador arts. 71–72 (2008).
336. Clark, supra note 19, at 797–800; see generally Craig M. Kauffman & Pamela L. Martin,
Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian lawsuits
Succeed and Others Fail, 92 WORLD DEV. 130–142 (2017).
Aotearoa New Zealand and Colombia.337 Nonetheless, the Colima

proposal adopted, almost wholesale, large tracts of the rights of nature
provisions in Articles 71 to 74 of the Ecuadorian Constitution.338 This
included the anthropocentric entitlement that “people and
communities have the right to benefit from the environment and
natural riches to allow them to live with dignity.”339 The paradox
inherent in the concept of buen vivir (living well) in the poorly
implemented Ecuadorian and Bolivian Constitutions has highlighted
the difficulty of enabling both sustainability and development where
nature and humans compete for rights.340
The amendment was passed in August 2019, incorporating
environmental rights into the Colima Constitution and recognizing the
rights of nature as follows:
Nature, comprised of all its ecosystems and species as a collective
legal subject, must be respected in its existence, in its restoration and
in the regeneration of its natural cycles, together with the conservation
of its ecological structure and functions, as established by law.341
The Colima Constitution also emphasizes the public interest in
protecting the rights of nature, reducing the potential for conflict
between the rights of nature and the rights of people, providing:
Biodiversity, natural ecosystems, genetic heritage and native
species are public goods of the public interest, to be used in accordance
with law; their protection, preservation and recuperation is a shared
responsibility for the public, private and social sectors.342
In a very recent judgment of the Supreme Court of Mexico
concerning the Laguna El Carpintero mangrove in the State of
Tamaulipas, the Court elaborated on the connection between human
rights and environmental rights in the Mexican constitutional context.
In that case, the Court found that the human right to a healthy
environment under Article 4 of the Mexican Constitution has two
dimensions. One of these dimensions is the typical anthropocentric
objective of guaranteeing the rights of humans. However, the other
dimension seeks to protect the environment as a legal subject for its
own intrinsic value, requiring the active defense and restoration of

338. Constitución de la República de Ecuador (2008).
339. Iniciativa con Proyecto de Decreto para Adicionar los Derechos de la Naturaleza (2019)
(amendment to the State of Colima’s state constitution).
340. Haidar, supra note 30.
341. Constitución Política del Estado Libre y Soberano de Colima art. 2.IX(a) (2017).
342. Id.
nature.343 The court reached this analysis with reference to an advisory

opinion of the Inter-American Court of Human rights in relation to
environmental and human rights,344 which recognizes the autonomous
status of the human right of a healthy environment as a legal interest
in and of itself, “even in the lack of certainty or evidence of the risks to
individual people,”345 due to the potential impact of environmental
damage other living organisms.346
Although the recent proliferation of constitutional rights of nature
protections in various Mexican states suggests potential for enhanced
protection of nature by trumping existing environmental laws, the
constitutional declarations lack detail and elaboration. Without clear
rules and institutions for their implementation, and in the presence of
strong competing interests and existing entrenched regulatory
frameworks, they are vulnerable to opposition or irrelevance.
III. Legal Rights for the Magdalena River

The Magdalena River is the last “living” river in Mexico City.347 It
begins over 3000 meters above sea level in the mountain range called
Sierra de las Cruces in the National Park Los Dinamos and crosses four
municipal boundaries until being subsumed into the water
infrastructure of the capital.348 One-fifth of the river’s flow is consumed
as urban water supply for the metropolitan area of Mexico City, with
the rest being captured by the wastewater and sewage systems.349 In
pre-Colonial times, three rivers and various lakes provided water to the
great Tecnochtitlan—the Aztec capital.350 However, the development
of large agricultural landholdings (haciendas) near these waterbodies
brought new settlements and, eventually, urbanization. In conjunction
with urbanization, the rivers were canalized alongside highways and
343. Supreme Court de Justicia de la Nación 2018, Vecinos Laguna del Carpintero v.
Presidente Municipal de Tampico Tamaulipas y otros.
344. Medio Ambiente y Derechos Humanos Opinion Consultiva, Advisory Opinion OC-
23/2017, Inter-Am. Ct. H.R. (Nov. 15, 2017).
345. Id. at 62.
346. Id. at 62.
347. BIBIANA MONSIVAIS MONTOLIU & FRANCESC MAGRINYÀ, PROGRAMA DE RESCATE
INTEGRAL DEL RÍO MAGDALENA EN MÉXICO DISTRITO FEDERAL 37 (2014).
348. Id. at 40–2.
349. Id. at 40–2.
350. SECRETARIA DEL MEDIO AMBIENTE GOBIERNO DEL DISTRITO FEDERAL,
PROGRAMA DE RESCATE INTEGRAL DE LOS RÍOSE MAGDALENA Y ESLAVA (2012).
buildings, leaving the Magdalena clean and free only in the first fifth of
its extension.351
The quality of the Magdalena River within the urban area is
assessed as “bad” according to federal regulations for minimum
standards on water supply for human consumption.352 Water quality is
compromised by unregulated economic activities like tourism and
extensive cattle raising along the river.353 During the rainy season, low-
lying areas of the river flood, prompting urgent, partial responses every
year.354 Between 2006 and 2012 a number of academic institutions and
government agencies gathered with the aim of rescuing the Magdalena
River and its tributary, the Eslava River.355 Since 2006, a coalition of
government and civil society have developed an “Integral Rescue
Program” for the Magdalena and Eslava Rivers,356 in conjunction with
the City’s Procuraduría Ambiental y de Ordenamiento Territorial
(Administrative Omudsman for Environment and Territory
Management).357
Local groups and rural communities opposed the Rescue Program
for the Magdalena river in the early stages of its implementation, as
they were concerned about the construction of a sewage water
treatment plant in Alvaro Obregón, reforestation and gardens in
Chimalistac, and the construction of water infrastructure in the
Magdalena.358 In response to this opposition, the Government changed
its strategy and opened up consultation, information and education
around the Rescue Programme and sought to develop “nucleos
agrarios,” or rural communities, as legitimate agents for the defense of
Magdalena River via a collaborative model.359 Alluding to legal person
models, the communities would become the “guardians” of the river,
to uphold and protect the river’s rights.360
351. MONTOLIU, supra note 347, at 42-5.

352. Id. at 45.
353. Id. at 40–2.
354. RÍO MAGDALENA, LUCHANDO POR SU PRESERVACIÓN,
https://www.aztecauno.com/desafio/videos/capitulos/rio-magdalena-luchando-por-su-
preservacion/429541 (last visited June 11, 2019).
355. SECRETARIA, supra note 350.
356. Id.
357. Id.
358. Id. at 72.
359. MONTOLIU, supra note 347, at 74-6.
360. Daniel F Robinson & Nicole Graham, Legal Pluralism, Justice and Spatial Conflicts:
New Directions in Legal Geography, 184 GEOGRAPHICAL J. 3 (2017).
Between 2014 and 2016, as Mexico City developed a proposal for

a new and innovative constitution, the rights of nature, or, more
specifically, the plan to rescue the Magdalena river, won space into the
discourses of civil society.361 This coincided with the Foro Mundial de
los derechos de la Madre Tierra (World Forum for the Rights of Mother
Earth) held in Mexico City in 2016, bringing together politicians,
scientists, philosophers, ecologists, artists, and social leaders with the
ultimate goal of legislating for the rights of Mother Earth.362 One of the
outcomes of this forum was the suggestion of an amendment to the
Mexican Constitution to protect the rights of nature.363 Although
difficulties were perceived at a national level,364 2018 saw a change of
government in Mexico City. Its Legislative Assembly gave new
impetus to the restoration of the Magdalena River,365 drawing on
urban community sentiment about the loss of the river’s natural
heritage,366 which was widely considered to be an undervalued element
of the urban space.367
Activism around the Magdalena River in fact drove the inclusion
of the rights of nature in the Mexico City Constitution in 2018, and the
Earth Law Centre (the same NGO involved in rights for nature claims
in the U.S.) continues to work with local organizations and citizens to
advocate for the rights of the Magdalena River, as well as the Atoyac
River in the State of Puebla and the San Pedro Mezquital River in the
State of Duranto.368 However, despite the strong Indigenous
361. Primer Foro Mundial por los Derechos de la Madre Tierra,

https://worldconsciouspact.org/es/destacado/primer-foro-mundial-los-derechos-la-madre-tierra/
(last visited May 28, 2021).
362. See generally THE RIGHTS OF NATURE, FIRST INTERNATIONAL FORUM FOR THE
RIGHTS OF MOTHER EARTH (2016).
363. Id. at 2.
364. CONSTANZA PRIETO FIGELIST, LINEAMIENTOS GENERALES DEL PROYECTO DE LEY
QUE CONCEDERÍA PERSONALIDAD JURÍDICA AL RÍO MAGDALENA, CIUDAD DE MÉXICO 1
(2017).
365. GACETA PARLAMENTARIA, http://aldf.gob.mx/gaceta-parlamentaria-903-1.html (last
visited May 28, 2021).
366. Manuel Perló Cohen & Itzkuauhtli Zamora Saenz, Perspectivas Ambientales sobre la
Contaminación y la Recuperación del Río Magdalena en la ciudad de México, 33 REVISTA
INTERNACIONAL DE CONTAMINACIÓN AMBIENTAL 377 (2017).
367. Arsenio Ernesto González Reynoso, Universidad Nacional Autónoma de México &
Programa Universitario de Estudios sobre la Ciudad, Plan Maestro de Manejo Integral y
Aprovechamiento Sustentable del río Magdalena, in RESCATE DE RÍOS URBANOS: PROPUESTAS
CONCEPTUALES Y METODOLÓGICAS PARA LA RESTAURACIÓN Y REHABILITACIÓN DE RÍOS 82–
103 (2010).
368. Darlene Lee, Mexico on the Vanguard for Rights of Nature, EARTH L. CTR. (Nov. 21,
2017), https://www.earthlawcenter.org/blog-entries/2017/11/mexico-on-the-vanguard-for-rights-
of-nature.
population in Mexico and their existing constitutional protections, the

voices of Indigenous Peoples are conspicuously silent in the Mexican
rights of nature debate.
It is apparent from the Mexican developments that local
organizations and individuals are pushing a rights of nature agenda in
reaction to governmental apathy and inefficient protection of rivers
and ecosystems. However, if states are to be compelled to comply with
their environmental obligations, it will require more than a change in
language, and it is critical that local water users (including Indigenous
Peoples) drive the shift. In highly contested spaces where
environmental, social and economic interests coexist, effective
institutions and mechanisms will ultimately be needed to implement
the rights of nature and protect vulnerable waterways and ecosystems.
Within an anthropocentric legal system, the absence of supporting
regulatory detail leaves the rights of nature isolated and potentially
powerless in its defense.
CONCLUSION
Rights of nature activism has developed around efforts to protect
vulnerable waterways in both the U.S. and Mexico. Despite the clear
(and increasing) legal, political and social differences between the
American and Mexican federations, there are some interesting
common lessons from the experiences of both countries. Where
existing environmental and natural resource laws within
anthropocentric Western legal frameworks have failed to adequately
protect aquatic ecosystems, local communities are increasingly
appealing to courts and legislatures for a more transformative
protection of nature. These are desperate attempts to prevent or
reverse environmental damage, by trying to trump hegemonic legal
frameworks, perceived to be ineffective or captured by competing
interests. In order to do so, communities leverage human rights
protections and their enhanced constitutional status, which offers
potential to override other regulatory frameworks. However,
competing interests have also, at times, invoked constitutional
protections to resist the rights of nature.
The U.S. experience has played out in two distinct ways. First,
local communities have managed to secure fairly expansive rights of
nature protections in local government ordinances or local “Bills of
Rights,”369 especially in a context of concern about water, seemingly

“flying under the radar.” Yet, the legal force of such local government
declarations of the rights of nature is uncertain, and they are unlikely
to be able to compete with more secure rights for other water users
under state or federal laws, let alone the U.S. Constitution. More
ambitious attempts to secure legal rights for the Colorado River—via
the court—and Lake Erie—in the State legislature—have been fiercely
resisted, and opponents of the rights of nature have mobilized
constitutional protections against local communities and
environmental activists.
In Mexico, the rights of nature have been protected in the
constitutions of various states by adding to existing human rights
norms. The Mexican case, therefore, appears to hold more promise, as
the rights of nature may, in fact, be able to trump other interests via
their constitutional status. However, the wording of the Mexican
nature protections is broad and aspirational, lacking detail around
funding and institutions. Whether these broad declarations in fact
disrupt existing legal frameworks for the regulation of lakes and rivers
is yet to be seen. There is movement towards the recognition of the
legal rights of the Magdalena River, but the courts have not yet
recognized any specific river to be a legal subject or person in Mexico.
Recent efforts to protect the rights of rivers in the U.S. and
Mexico, despite their contextual variance, are novel and emerging
attempts to discover new pathways for enhanced protection of
vulnerable waterways in the face of increasing environmental
degradation, biodiversity loss and climate change. These attempts are
being pragmatically driven from the bottom up to the highest levels of
the legislature or judiciary using whatever legal tools and processes are
available to local communities (and sometimes Indigenous Peoples) as
they become increasingly frustrated with apathetic and complacent
governmental responses to environmental challenges. However, rather
than an Earth-centred revolution, efforts to protect the rights of nature
are distinctly “human,” as communities appeal to human rights laws,
and their enhanced constitutional status, to upset the status quo. There
are important lessons to be learned from these experiences in other
countries, in terms of the ability to entrench transformative
environmental protections via constitutional hierarchies and the
369. Since the writing of this article, in November 2020, A further municipal “Wekiva River
and Econlockhatchee River Bill of Rights” was passed by Orange County, Florida to recognise
the rights of all rivers in the region.
potential for the rights and interests of humans to be both an enabler

of, as well as a threat to, nature’s rights.

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THE (HUMAN) RIGHTS OF NATURE:

A COMPARATIVE STUDY OF EMERGING

328 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

Copyright © 2021 Elizabeth Macpherson.

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 329

benefit of humans.5 However, in past decades there has been a growing

5. See generally RESEARCH HANDBOOK ON INTERNATIONAL LAW AND NATURAL

330 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

10. RIGHTS OF NATURE LAW AND POLICY,

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 331

developments, despite their contextual variance, are novel and

THE (HUMAN) RIGHTS OF NATURE

332 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

ecological protections.19 This is sometimes called an “ecocentric”

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 333

Sierra Club v. Morton.27 Stone’s thesis re-emerged in 2006, when the

334 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

Aotearoa New Zealand.32 The Whanganui River was declared to be a

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 335

intervention by the State had enabled uncontrolled illegal mining in

336 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

followed by a broader recognition of the rights of nature by way of local

49. COMISIÓN DE GOBIERINO Y SEGURIDAD CIUDADANA, [Committee on Government

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 337

orders, or legislative or administrative decrees. This is done variously

58. Clark et al., supra note 19, at 830–448.

338 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

entrenched legal and policy frameworks, these developments are

WATER RIGHTS AND LEGAL RIGHTS FOR RIVERS IN THE

I. Water Law Frameworks in the United States

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 339

68. 42 U.S.C. § 300f (1974).

340 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

80. WATER LAW OVERVIEW, https://nationalaglawcenter.org/overview/water-law/ (last

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 341

342 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

in reliance on the Winters doctrine98 and the McCarran Amendment.99

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 343

nature” developments have also occurred in New Zealand and

344 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

enforce those rights on behalf of those natural communities and

113. Id. at 618.03.

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 345

Act 13 on constitutional grounds,122 since the state’s Environmental

122. Robinson Township v Commonwealth, 83 A.3d 901, 999 (Pa. 2013).

346 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

131. SANTA MONICA CAL, supra note 126, at 12.02.020(c).

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 347

Band of Ojibwe in Minnesota passed an ordinance to protect wild rice

139. CHIPPEWA ESTABLISHING RIGHTS OF MANOOMIN ON WHITE EARTH RESERVATION

348 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

II. The Legal Rights of the Colorado River

146. COLORADO RIVER, https://www.americanrivers.org/river/colorado-river/ (last visited

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 349

poor management, climate change is exacerbating the environmental

350 DUKE ENVIRONMENTAL LAW & POLICY FORUM [Vol. XXXI:327

Spring 2021] THE (HUMAN) RIGHTS OF NATURE 351

an attempt to fabricate a self-declared right of representation.177 In very