In 2013, I attended a Democracy School run by the Community Environmental Legal Defense Fund (CELDF) because I was fairly certain that our laws needed to change in order for our springs and rivers to be fully protected.
The folks from CELDF quickly confirmed that insight. “The only things that environmental laws regulate are environmentalists,” they said. That quote by anthropologist Jane Anne Morris got my full attention! The rest of the weekend was just as eye opening.
Those of us who work to protect North Florida’s springs, rivers and aquifer repeatedly bump up against arguments about landowners needing to be able to do what they want with their private property. CELDF explained why we work so hard, yet have so little to show for that work; that’s because we are stymied by our country’s laws.
The instructors walked us through a stack of primary historical source materials that explained how our legal system is based on property law instead of on rights—meaning that since the time of the U.S. Constitution, our laws have been stacked in favor of business and commerce. Although subsequent social movements—the struggles for the abolition of slavery, for women’s voting rights, for gay rights, for animal rights—led to the granting of broader legal rights for different groups, those movements never challenged the basic legal primacy of the idea of property.
My notes reveal just how deep these property-based legal roots go. The early American colonies began as corporations. Our language has no good word that is the opposite of “privatization.” We heard that “The more nature you own, the more you can destroy.” Corporations were recognized as legal “persons” 70 years before that recognition was granted to women! Corporations can deduct the money they spend to fight environmental lawsuits as a business expense.
Say you’re a water advocate who wants to write a law to protect your community’s water supply, which is threatened by industrial-strength agriculture that uses tons of water and fertilizer. You are constrained by many laws, including the recognition of corporate legal rights or “corporate personhood” and the facts that property-based state and federal laws pre-empt local laws. These constraints prevent you from safeguarding your water with local laws.
Even worse, you aren’t permitted to define the problems that you see. If you describe a problem as, “Factory farms will harm us economically and environmentally,” various state, corporate, and cultural regulatory systems funnel that objection into regulatory “chutes” toward a single regulatory point that prevents you from making that argument and restricts you, instead, to arguments about the amount of environmental harm that should be permitted. You are not allowed to say “no” or to question the process or the big picture.
At the time our first property-based laws were written, the natural resources of North America must have seemed infinite to European colonists. But over 200 years later, that situation has changed. North America is inhabited from sea to shining sea and our population is mushrooming. We now realize that our supply of freshwater is finite. Industrial-strength agriculture and thirsty Florida lawns demand more water, more fertilizer, and more pesticides than the homes and family farms of the past. Long-term trends show a falling aquifer and increasing water pollution. Our laws have not kept pace with these changes in our society.
If we want to save our water, we need to start asking some hard questions that must be answered in the legal and political arenas.
>Should private property rights take legal precedence over the health of water we all need? We may own our cars but we don’t do anything we want with them; we agree to abide by traffic laws so we don’t kill each other. Shouldn’t we also agree not to poison our springs or wreck our aquifer?
Should natural systems such as our springs and the Ichetucknee, Santa Fe and Suwannee rivers be granted legal rights to exist? That would even the playing field in courts of law and is being done in other parts of the world. The Center for Earth Jurisprudence at Barry University Law School promotes this idea.
Should we manage our water conservatively as a public trust, the same way we’d manage a financial trust fund for our children? Arguments about public trust push the courts to consider cases on a different basis from property-based laws.
>Should we rely on the Precautionary Principle for guidance when scientists disagree about what is affecting our water? Again, other countries are already doing this.
It’s past time to acknowledge that our water problems are political and legal problems. Science alone won’t solve them. People working together in good faith might have a chance.
For More Information…
… on the work of Jane Anne Morris:
…on the Community Environmental Legal Defense Fund:
(especially page 4)
…on the Center for Earth Jurisprudence:
…on the Public Trust Doctrine:
…on the Precautionary Principle:
This article originally appeared in the September 2016 issue of "The Observer," a free monthly tabloid (circulation 5000 copies) distributed in the High Springs/Alachua/Newberry/Jonesville/Fort White areas of North Florida. Many thanks to publisher Barbara Llewellyn for her kind permission to post it here.