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45 Harv. Envtl. L. Rev. 67 (2021)
Nature's Personhood and Property's Virtues

handle is hein.journals/helr45 and id is 71 raw text is: NATURE'S PERSONHOOD AND PROPERTY'S VIRTUES Laura Spitz* and Eduardo M. Penalvert This Article evaluates the strategy of claiming personhood for natural objects as a way to advance environmental goals in the United States. Using the Colorado River Ecosystem v. Colorado litigation as the focus, we explore the normative foundation of the claim-elements of nature are legal persons-and the work personhood is being asked to do by the plaintif and other environmental activists. We identify three possibilities: procedural work, substantive work, and rhetorical work. Of those, we suggest the plaintiffs strongest case is rhetorical. We say this not only because it will likely be difficult to convince a judge to extend standing or substantive rights to a natural object, but also because we are unconvinced that personhood would achieve the ends desired by the plaint if and other rights of nature advocates. We con- trast the rights of nature movement cases with progressive property strategies, and we conclude that existing legal tools rooted in the law ofproperty offer a more certain and more promising pathway to achieving many of the goals articulated by rights of nature advocates in the United States. TABLE OF CONTENTS Introduction ....................................................... 68 I. Background: Colorado River Ecosystem v. Colorado ............. .74 II. Normative Claim: What Does It Mean to Call Natural Resources P ersons? ..................................................... 76 A. Characteristic-Based Claims ................................ 78 B. Intrinsic Moral Value Claims .............................. 78 C. Consequential or Pragmatic Claims ........................ 80 III. The Work of Personhood on Behalf of Nature in the United States .. 82 A. Procedural W ork .......................................... 82 B. Substantive W ork ......................................... 87 C. Rhetorical W ork .......................................... 89 C onclusion ........................................................ 96 * Professor of Law, University of New Mexico School of Law (on leave); Professor of Law, Thompson Rivers University. t Professor of Law, Cornell Law School. For helpful comments and engaging discussions, the authors thank Reed Benson, John Borrows, Christopher Finlayson, Eric Freyfogle, Kathe- rine Sanders, and participants at the 2019 Canadian Law & Society Association Meeting and an Arizona State University Sandra Day O'Connor College of Law faculty colloquium. The authors are also grateful to Mallory Christensen, Brooke Jordy, and Jena Ritchey (J.D. Candidates, University of New Mexico School of Law), for providing invaluable research assistance.

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