Should Trees Have Standing? (Stone, 1972)

“Should Trees Have Standing? — Toward Legal Rights for Natural Objects” is a 1972 article by USC law professor Christopher D. Stone, published in the Southern California Law Review (45 S. Cal. L. Rev. 450). It is the founding text of the rights-of-nature movement — the first rigorous legal argument that forests, rivers, oceans, and “the natural environment as a whole” should hold legal rights.

Context and influence

Stone wrote the article as the U.S. Supreme Court was deciding Sierra Club v. Morton (1972), in which the Sierra Club sought to block a Disney ski resort in California’s Mineral King valley. The Sierra Club lost for lack of standing — it had not alleged its members would be harmed — but Justice Douglas’s dissent, citing Stone’s then-circulating draft, argued the case should have been brought “in the name of the inanimate object about to be despoiled.” The article was reprinted as a book (1974, with the Supreme Court opinions appended) and became the canonical reference for environmental personhood arguments worldwide.¹

Core argument

The rightlessness of natural objects at common law

Stone dissects how the common law leaves a natural object — say, a polluted stream — “fundamentally rightless” in three ways:²

1. Standing: only a human riparian owner can sue, and only by showing invasion of his rights. Lower riparians may not care, may themselves pollute, or may be economically dependent on the polluter — and then no suit is brought at all.
2. What counts in the balance: even when suit is brought, courts balance economic hardships between humans (“reasonable use,” “balance of convenience”). Damage to the stream, its fish and turtles, is not judicially cognizable.
3. Who benefits from relief: damages go to plaintiffs, not to restoring the stream. A polluter causing $10,000/yearofdamagetoastreambutonly$3,000 in legally cognizable damages to plaintiffs can rationally pay and keep polluting; plaintiffs can “sell out” the stream by dissolving an injunction at a price.

Three criteria for holding legal rights

Stone defines a “holder of legal rights” by three operational tests, each of which makes a thing count jurally — have legally recognized worth in its own right rather than serve as a means to benefit existing rights-holders:³

1. It can institute legal actions at its behest.
2. Courts must take injury to it into account in granting relief.
3. Relief must run to its benefit.

He illustrates with paired slave societies: in S1 a master collects reduced chattel value when someone beats his slave; in S2 the slave institutes proceedings himself, for his own recovery. Both societies “protect” the slave’s interest incidentally, but only in S2 is the slave a rights-holder. The environment today sits in S1’s position.

The guardianship mechanism

To the objection that “streams and forests cannot speak,” Stone replies: neither can corporations, states, estates, infants, incompetents, municipalities, or universities — lawyers speak for them. He proposes treating natural objects like legal incompetents: a “friend” of an endangered natural object applies to a court, which creates a guardianship (as it appoints conservators for senile persons or trustees in bankruptcy for corporations). The guardian then sues on the object’s behalf, with damages measured by the cost of making the object whole (reseeding a forest, restocking a stream) and paid to its restoration.⁴

Rights are not uniform

Granting the environment rights does not mean “no one may cut down a tree.” Humans have rights yet (in 1972) could be executed; corporations cannot plead the Fifth Amendment; fifteen-year-olds had juvenile-proceeding rights but no vote. Each class of person holds a different bundle of rights. Stone also anticipates the boundary/regress problem — suits on behalf of a stream, then the larger river system, then “the entire hydrologic cycle” — and suggests pre-trial hearings and intervention rights as partial answers.

The moral-perimeter framing

Stone opens with Darwin’s Descent of Man: the history of moral development is “a continual extension in the objects of his ‘social instincts and sympathies.’” Each extension — to aliens, slaves, women, children, the unborn — was once “unthinkable.” Rights for nature is presented as the next such extension, which connects the article to the study of norms: law here is both the expression and the enforcement mechanism of an expanding moral community.

Reception and legacy

• Judicial: Justice Douglas’s Sierra Club v. Morton dissent kept the idea in US legal discourse, though US courts have largely resisted it (see intergenerational-equity-litigation for the analogous standing problems in climate litigation).
• Legislative: vindicated decades later by Ecuador’s 2008 constitution (Articles 71–74 map almost one-to-one onto Stone’s three criteria — especially Art. 71’s universal standing and Art. 72’s right of restoration running to nature itself), Bolivia’s Law 071 (2010), and New Zealand’s te-urewera-act-2014 and te-awa-tupua-act-2017, whose guardian boards (Te Urewera Board, Te Pou Tupua) are institutionalized versions of Stone’s guardianship proposal.

See Also

• rights-of-nature
• te-urewera-act-2014
• te-awa-tupua-act-2017
• intergenerational-equity-litigation
• norms

Sources

• Should Trees Have Standing? — Toward Legal Rights for Natural Objects (1974)
• christopher-d.-stone-should-trees-have-standing_%e2%80%94toward-legal-rights-for-natural-objects-45-s.-cal.-l.-rev.-450-1972..pdf

Footnotes

1. Should Trees Have Standing? — Toward Legal Rights for Natural Objects (1974) ↩

2. christopher-d.-stone-should-trees-have-standing_%e2%80%94toward-legal-rights-for-natural-objects-45-s.-cal.-l.-rev.-450-1972..pdf ↩

3. christopher-d.-stone-should-trees-have-standing_%e2%80%94toward-legal-rights-for-natural-objects-45-s.-cal.-l.-rev.-450-1972..pdf ↩

4. christopher-d.-stone-should-trees-have-standing_%e2%80%94toward-legal-rights-for-natural-objects-45-s.-cal.-l.-rev.-450-1972..pdf ↩