Frequently Asked Questions
Rights of Nature and the Right to Clean Water
Frequently Asked Questions
What are Rights of Nature laws?
Rights of nature laws legally recognize the rights of ecosystems to exist, flow, be protected from pollution, and maintain a healthy ecosystem. They do not include what are normally considered to be human rights - the right to free speech, the right to vote, the right to bear arms, and other rights common to citizens: just the rights that nature needs.
Granting nature rights changes our relationship with the natural world. Current laws reflect an underlying belief that humans are separate from, and superior to, all other members of the earth community, and that the primary purpose of nature is to serve as a bank of resources for humans to consume. These laws perpetuate human domination of nature instead of fostering mutually beneficial relationships between humans and the natural world.
Rights of nature laws provide a legal framework that will compel us to respect and live sustainably within nature’s laws and limitations, to the benefit of Earth and future generations of people.
Why does Florida need Rights of Nature Laws?
Over the past 50 years, red tides in Florida have grown dramatically in frequency and duration. Between 1878 and 1994, there were 64 months of red tide. In the following 24 years, there were 184. Florida has issued 23,000 pollution permits to industries, 2,440 of the 4,393 of its waterways have been declared impaired, 50,000 tons of phosphorus sit at the bottom of Lake Okeechobee, and “mismanagement of natural resources has turned one of the building blocks of life [blue-green algae] into a potential monster.”*
Our regulatory system, highly subject to corporate influence and changing political winds, has failed us and the ecosystems upon which we depend. A new approach to environmental protection is needed.
Are there human rights associated with Rights of Nature?
Most Americans think that the federal Clean Water and Clean Air Acts guarantee our rights to clean water and air. Other than citizens of Orange County, however, no Americans we know of have legally recognized rights to either.
All Florida Rights of Nature Network initiatives explicitly establish a right to clean water for all citizens of the municipality which adopts a rights of nature initiative.
Will Rights of Nature laws hurt Florida’s businesses and economy?
While some people have claimed that granting legally recognized rights to nature will hurt business and damage the health of Florida’s economy, voters in Orange County (the first place in Florida to adopt a rights of nature law)–by a 9 to 1 margin—rejected this unfounded assertion.
Tourism is Florida’s most important industry, creating one job for every 85 visitors. Tourists don’t come to see blue-green algae blooms, red tides, or dead marine life lining our shores. Nor do they come to risk their health by breathing air contaminated by these algal blooms.
Florida’s tourist economy runs on clean water. Polluted water is an economy-killer. This is easily verified by noting the economic harm done to SWFL’s $9 billion economy in 2018 when photos of its algae blooms and dead marine life made international news.
Will some businesses be hurt? Potentially, yes, those that profit by polluting our waterways and passing the costs onto the public. Those businesses that don’t pollute will suffer no harm. Some businesses, such as sustainable farming, will thrive. Current laws that protect polluters are unwise and unfair.
Will Rights of Nature laws lead to a proliferation of lawsuits?
Opponents claim that legally recognizing rights for nature will lead to a significant increase in litigation. This has not happened in Orange County, nor has it happened in Pittsburgh which passed a Rights of Nature ordinance in 2010 to protect citizens and rivers from the harmful impacts of fracking. The law has never been challenged and to this day there is no fracking within Pittsburgh city limits. It has proven to be an entirely effective and cost-free deterrent to an environmentally unsound practice.
There is no basis to opponents’ claims that Rights of Nature laws encourage litigation by awarding attorneys’ fees to the prevailing party. As with most lawsuits, that option is at the discretion of the judge hearing the case and is linked to the behavior of the polluting party.
Likewise, it is patently false that Rights of Nature laws shift the burden of proof onto the defendant to demonstrate that it does no harm. Furthermore, this is another reason why a significant increase in litigation is highly unlikely. The plaintiff in a Rights of Nature case must provide the empirical data and expert opinion to show that damages have been caused to ecosystems and to the welfare of people. These are costly matters and a natural discouragement to all but the most legitimate and necessary lawsuits.
Will Rights of Nature Laws raise environmental permitting standards to unreasonable standards?
Opponents claim that issuing permits may be impossible with a heightened standard of review. Rights of Nature laws, such as the Orange County Charter Amendment of 2020, do not impose new standards of review on the permitting process. They enable local governments to issue permits for construction of improvements as they normally would, with the exception that they are prohibited from approving permits that would violate the rights of the waters and citizens of Orange County.
Opponents claim that Rights of Nature laws will restrict a local government’s ability to pass ordinances. Local governments will continue to be able to pass ordinances as they always have. The one exception would be to restrict the adoption of those ordinances that would violate the rights of the waters and citizens of Orange County .
Will existing permit holders be under constant threat of litigation?
Under the terms of the Orange County Right to Clean Water / Rights of Nature charter amendment, only those entities that are polluting the waters of Orange County or otherwise violating the law need be concerned about potential litigation. Clean water does not give rise to lawsuits. Polluted water does. Unfortunately, polluters will pollute and externalize the cost of their pollution onto the public unless laws to prevent them from doing so are enforced.
Can an individual get sued under Rights of Nature laws?
No. Only business entities and governments can be sued for violating the provisions of rights of nature laws. Those laws cannot be enforced against individuals. The relevant part of Orange County’s Rights of Nature amendment only “prohibits any governmental agency, non-natural person or corporate entity” from polluting waterways in Orange County.
Does the Orange County Amendment undermine the rights of undocumented people?
Some friends have taken us to task, noting that the Orange County Right to Clean Water Rights of Nature charter amendment extends to “only citizens who have ‘legal residence in the United States.’” This, they say, “undermines the rights of undocumented people and is contrary to the radically inclusive human rights paradigm that recognition of the rights of ecosystems requires. Human rights transcend citizenship status.”
FRONN believes that the human rights of undocumented people should be zealously pursued whenever reasonably possible, but the Orange County amendment does not undermine their rights. The amendment merely defines a set of plaintiffs that could bring suit pursuant to the laws, with an understanding that water pollution affects wide swaths of the population. Furthermore, despite its substantive value and global need, we believe that shoehorning a whole other controversy within the standing provision and giving the opposition fodder in a political campaign would be tactically unwise and, in the end, advance neither cause.
Does the Orange County Amendment simply enforce existing environmental law?
Our friends note that the Orange County amendment bans any “governmental agency, non-natural person or corporate entity” from “intentionally or negligently” polluting, and then says that pollution in this context “shall have the same meanings” as in state law. This, it is asserted, effectively means the measure is seeking to define the enjoyment of the Rights of Nature as merely the enforcement of existing environmental law.”
This is not true. The Orange County law recognizes four listed rights of Waters— the right to exist, Flow, to be protected against Pollution and to maintain a healthy ecosystem. While it is true that some of the definitions of those terms are linked directly to state law, the State of Florida has proven incapable of enforcing those terms. The Orange County law thus gives individual citizens and organizations the power to enforce those terms when the State does not. In addition, the “right to maintain a healthy ecosystem” phrase within the law stands completely on its own and is not linked to a State definition of the phrase. It thus provides an independent platform for enforcing the rights of waterways within Orange County.
Has the Florida State Legislature preempted Rights of Nature Laws?
A short provision in the 111-page Clean Waterways Act of 2020 does attempt to preempt Rights of Nature laws in Florida. Shortly after Governor DeSantis signed the bill into law, a suit was filed in state court both contesting the constitutionality of the preemption and seeking to protect the inclusion on the Orange County 2020 ballot of Charter Question Number One, the Rights to Clean Water / Rights of Nature Charter Amendment.
Community self-government in America dates to 1620 and the Mayflower Compact, over 150 years before Thomas Jefferson codified the principles of local self-government in the Declaration of Independence. But nowadays, the game is rigged in favor of corporations and against citizens and the home rule powers of local governments.
In a comprehensive study examining laws passed between 1981 and 2002, researchers at Princeton and Northwestern universities concluded the vast majority of laws did not reflect the will of the people, but rather “tend towards the wishes of corporations and business and professional associations.”
Corporate interests help fund political campaigns and in return get the laws they want. Increasingly, state legislatures, including the Florida legislature, have attempted to gut the powers of municipal governments and defy the will of the people. The failure of plastic bag and sunscreen bans in Coral Gables and Key West due to preemptive state laws are glaring examples.
Unfortunately, the erosion of home rule rights is a growing trend in Florida and is not limited to Rights of Nature issues.
The lawsuit, however, having fulfilled its purpose to protect the Orange County ballot initiative, was rescinded shortly after the election.
Is the Rights of Nature movement in Florida effectively made non-existent outside Orange County because of the state preemption?
The pursuit of legally recognized rights for nature is moving ahead briskly in all regions of the state. Newly crafted Rights of Nature laws circumvent the attempted preemption by the State while still advancing the goals of the movement and necessary protections for Florida’s waterways.
Are newly revised Rights of Nature laws a capitulation to existing law?
Tailoring the new amendment language to survive legal scrutiny is not capitulation. Rights of Nature advocates wisely took advantage of the poorly worded state preemption to ensure the survivability of legal protections sought in a new law. Designing an amendment that is overtly unlawful would be an expensive, wasteful, and defeatist venture.
The Florida Rights of Nature Network is not bent on ideological purity. Our goal is to obtain the strongest, most effective Rights of Nature law possible given the current political realities in Florida. In time, we can strengthen the Rights of Nature laws we put into place today. Florida’s ecosystems do not have the luxury of waiting until a distant future time when political circumstances finally allow for the purest of laws. Our ecosystems need the highest form of protection now - a rights-based form of protection.
*Penniman IV, Nicholas. A Toxic Inconvenience: Red Tide and Blue-Green Algae on Florida’s Coast.