Thomas Faunce, ARC Future Fellow at Australian National University
Published in The Conversation, 02 July 2013

Should ecosystems have legally enforceable rights? It might sound like a ridiculous idea, but a global debate on this is in full swing. The Constitution of Ecuador now recognises rights of nature. Environmental activists have called for a "United Natures" to replace the "United Nations". And New Zealand has given "personhood" to the Whanganui River to help protect it.

In the great conflicts about abolition of slavery, child labour or enfranchisement of women, new economically valuable technology played a critical role in converting humanitarian ideals against such oppression into enforceable legal obligations. It did this in large part by replacing the need for manual labour in fields, factories and the home.

The same is likely to prove true for ideals about giving natural ecosystems legally enforceable rights. This is primarily because new technology may replace our need to exploit the environment, allowing us to grant ecosystem rights without fear of economic ruin.

But timing will be crucial. As a result of human exploitation and indifference, our supporting ecosystems are close to collapse; yet calls to legislate "safe" boundaries for planetary "physiological" processes like biodiversity, access to water, land use, atmospheric carbon dioxide, nitrogen, phosphorus and pollution levels are considered economically impractical.

When a river can sue
As a "rightless" object, the environment has few if any legal remedies to protect its interests. Nonetheless, already new governance models are emerging to challenge this understanding.

In August 2012, the New Zealand Government announced it would grant legal standing and personality to the Whanganui River ("Te Awa Tupua"). The decision was part of a settlement with certain Maori tribes, and guardians were appointed under a trust to act in the river's interests. Te Awa Tupua can now lodge an objection to a mining or hydroelectric dam proposal, initiate proceedings in the Land and Environment Court, and apply for a mandatory injunction requiring remediation of pollution or financial compensation.

In 1972, Christopher Stone presented the case for conferring legal personality and rights on the environment, in the article Should Trees Have Standing? The natural object would have a legally recognised worth and dignity in its own right; it would not merely serve as a means to benefit present or future generations of humans.

To achieve rights-holder status, the natural object had to satisfy three criteria:

  • that the thing can institute legal actions at its behest
  • that in determining the granting of legal relief, the court must take injury to it into account
  • that relief must run to the benefit of it.

It is ironic that just as steps are being taken to expand legal personhood to include ecosystems, measures are being introduced to strip that status from the artificial persons – particularly multinational corporations – who in their single-minded quest to increase shareholder profit and directorial bonuses bear much responsibility for harming local communities and the environment.

In contrast to the ceaseless march of corporate rights, recent proposals to confer legal standing on natural objects seem innocent and innocuous. But this beneficient transformation of our collective conscience requires a technological revolution that reduces the economic and societal need for human over-exploitation of nature. That technological revolution may be artificial photosynthesis.

Why will artificial photosynthesis make the difference?
Photosynthesis can be viewed as the planet breathing: taking in carbon dioxide, releasing oxygen and making hydrogen by using sunlight to split water. Hydrogen is a great fuel for a sustainable future because when burnt it makes fresh water. Most people today are locked into the old idea that only plants can "do" photosynthesis. But scientists are on the verge of not only replicating photosynthesis, but improving it through nanotechnology and material sciences approaches in large national projects, such as Caltech's Joint Center on Artificial Photosynthesis, the European Solar H2 network, the Dutch and South Korean solar fuels projects, Dan Nocera's work at Harvard and Wasielewski's work at Northwestern.

Such research needs just a little more funding and coordination to make a transformative global breakthrough that will alleviate our need to over-use, pollute and destroy nature. Once the new technology of artificial photosynthesis becomes as ubiquitous as the mobile phone or internet, human societies will no longer be constrained by fears of collapse and ruin if they give rights to ecosystems.

The Sustainocene
Imagine a world where every road, vehicle and building ceases to "bludge off" nature and "pays its way" by doing photosynthesis more efficiently than plants including producing its own hydrogen fuel and making its own basic starches from absorbed carbon dioxide. This is a world ripe to allow the emergence of environmental sustainability as social virtue at the heart of legal systems, alongside the more traditional, human-centred justice and equity.

Such a multimillion-year era of stewardship has been termed the Sustainocene. It may need to last for millions of years if humanity is to morally repay its debt to nature. In the Sustainocene, instead of the cargo-cult ideology of perpetual economic growth through corporate pillage of nature, globalised artificial photosynthesis will facilitate a steady state economy and further technological revolutions such as domestic nano-factories and e-democratic input to local communal and global governance structures. In such a world, humans will no longer feel economically threatened, but rather proud, that their moral growth has allowed them to uphold rights of nature.