The Colorado River's Rights
By Darah Fuller
When asked about Colorado River rights, most would think of the allocations among the Colorado River Compact, an agreement that divides Colorado River water between seven arid states and Mexico; however, a 2017 first in nation lawsuit aimed to establish individual rights on behalf of the Colorado River. The Deep Green Resistance represented the Colorado River and surrounding ecosystems in a suit against the state of Colorado. They aimed to establish rights of nature in United States jurisprudence. The goal was to recognize natural features and ecosystems in the same way that corporations are recognized as having individual assigned rights. The plaintiffs insist that the River has a right to “exist, flourish, regenerate, and naturally evolve.” Given that the River supports a 26 billion dollar economy and is already over-allocated by approximately 1.4 trillion gallons, those that depend on the River cannot afford for it not to exist.
Conceptually, rights of nature have merit, but what about in practice? To date, rights of nature exist in some form in Ecuador, Bolivia, Colombia, Cameroon, Australia, India, Nepal, and the United States. While the United States may not currently be considering a constitutional amendment similar to the one passed by an overwhelming majority vote in Ecuador, it is still making meaningful progress. Cities across ten states have adopted rights of nature. A number of Native American tribes have amended their constitutions to include Rights of Nature. A 2019 bill adopted the Lake Erie Bill of Rights in Ohio, recognizing Lake Erie as a legal entity with an inherit right to exist. In a 2020 decision, a federal judge struck down the bill for preempting state law and being too vague to comply with the 14th Amendment. The determination of vagueness was further clarified as a grievance with the language of the bill being aspirational as opposed to practical. Though the decision in federal court was disappointing, many consider the initial bill passage and subsequent legal history to be a victory in itself.
The plaintiffs in Colorado River Ecosystem v. State of Colorado also faced a significant legal hurdle in that there were no other existing rights of nature law on which to base their claim. For this reason, the Colorado Attorney General’s Office threatened plaintiff’s counsel, Jason Flores-Williams, with sanctions for bringing a frivolous claim. Ultimately, the plaintiffs moved to dismiss the suit with prejudice, which the court granted. The outcome of this case does not mean that any future effort to establish rights of nature will fail, but it does suggest that a federal constitutional amendment is necessary in order to succeed in future iterations of similar legislation. If such an amendment had been in place, the plaintiffs may have won on their claims that the Colorado River was polluted to the detriment of the river and communities who rely on it.
Moving forward, the potential for rights of nature is an exciting legal tool environmental that could substantially impact our ability to safeguard natural systems. In establishing rights of nature, it would allow individuals to bring their own lawsuits on behalf of the environment. In a 2020 poll, 67 percent of U.S. adults reported that they did not think the federal government was doing enough to reduce the global effects of climate change. The percentage of U.S. adults who say that protecting the environment should be a top priority for the federal government rose from 41 percent in 2008 to 64 percent in 2020. As the effects of climate change continue to rise, polling data indicates that people’s support of protective environmental policy will also increase. Rights of nature could create the necessary law and standing for individuals to file suit in response to transgressions against natural systems. In exploring the potential for rights of nature, a number of interesting legal questions arise. How does one determine which natural systems and features should be instilled with rights? If the Colorado River in assigned rights as a legal entity, does that include the small streams that flow from it? The concept of rights of nature is certainly one to watch both in Colorado and across the United States.