little over 30 years ago, Christopher D. Stone, a Professor of Law at the University of Southern California, authored one of the most elegant and provocative law review articles ever published on environmental law and humankind's place in the world: Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). (I will refer below to this article simply as Trees.) In arguing that natural objects and areas should have legal rights, Stone gave formal voice to the "land ethic" advocated a generation earlier by Aldo Leopold, and in so doing he changed the debate. Stone showed how the law has progressed over time to confer rights upon persons or entities that society previously had considered incapable or unworthy of having rights. Children, slaves, women, Native Americans, racial minorities, aliens, fetuses, endangered species—all have been the beneficiaries of this drive to give legal voice and legal rights to those who once lacked both voice and rights. So, too, argued Stone, has the law recognized corporations and other entities as having legal rights. It was not always so.

 tone's point was elegantly and succinctly made. But why did Trees not go the way of most law review articles and disappear into scholarly oblivion?

rees survived because only days after it was published, Justice William O. Douglas cited the article in his famous dissent from the Supreme Court's decision in the Mineral King Valley case: Sierra Club v. Morton, 405 U.S. 727 (1972) (4-3 decision). On its face, the Court's decision in Sierra Club v. Morton was against the Sierra Club: The Court held that—because the Club had failed to allege that it would be injured—the Club lacked standing to challenge the Forest Service's issuance to Walt Disney Enterprises of a permit for a ski resort. But the Club's loss was short-lived. On remand the Club amended its complaint to make the necessary allegations of injury and to include a claim that the Forest Service had violated the recently enacted National Environmental Policy Act of 1969 (NEPA). Battles then were waged on many fronts until Congress ended all debate on the issue in 1978 when it added Mineral King Valley to Sequoia National Park in California.

 ike the Sierra Club's effort to preserve Mineral King Valley, Trees succeeded too—at least in being noticed and read—where others failed. But what of the question asked in Trees: Has it been answered affirmatively? Neither Trees nor the Douglas dissent are cited much in judicial decisions, for the idea advanced by Stone has not been adopted in its pure form. But ideas first broached in court—even unsuccessfully—often find their most fertile ground in future actions by the other branches of the government. Such is the case with Stone, though in forms slightly different from the pure form.

 ince 1972, laws have been enacted by both the federal government and many state governments that expressly allow citizens to bring suit—either directly or as if they were acting as attorneys general or public trustees—to challenge certain agency decisions or to recover damages for injuries to the environment. These laws provide increased protection to natural areas by helping to insure that reasoned decisions are made and by encouraging better environmental practices.

 y far, however, the most significant change has been wrought by NEPA and its implementation. The "stop, look, and listen" directive given by Congress to federal agencies in NEPA has changed environmental decision-making forever. Through many lawsuits brought during the 1970s and 1980s, every federal agency learned that it cannot make a major decision having a significant effect on the human environment without first identifying the resources that would be affected, considering various alternatives to the proposed action, and taking comments from the public. This process has become institutionalized at the federal level not only in cases where an agency is proposing to take action directly but also where an agency is proposing that Congress take action. This same basic process also has become the norm for most state and local decisions.

 n my view, the path that government agencies must follow today in making decisions that affect the environment has been blazed in no small measure by Trees because Trees changed the debate over what constitutes resources. Sure, the debate on any particular proposal always has a "utilitarian" quality to it—but the language of that utilitarian debate has changed because people recognize that they receive real valuable benefits from nature "as is."

 here Stone's voice is heard most clearly, though, is in the debate over hotly-contested proposals to allow significant human activity in de facto wilderness: e.g., whether a gold mine should be developed adjacent to Yellowstone National Park or whether exploration for oil should occur on the Coastal Plain of the Arctic National Wildlife Refuge. In these cases the utilitarian debate always is clouded by someone arguing for the land itself. Always. Similar debates occur on the local level everywhere, over proposed developments affecting large or small tracts of woodlands, wetlands, waters, or the fauna or flora using them.

 n no small measure, the manner in which these debates occur is due to Trees. That we should approach natural areas with humility, that we should acknowledge that natural areas have value as such—in their own right—and that therefore we should give nature the benefit of the doubt, is not yet the mainstream view. But that view no longer is considered absurd. This is Stone's doing.

 ut if Stone's view is not absurd, then what is its ethical and moral foundation? If natural areas are to be recognized as having legal standing, then it will be people that bestow that standing. But why? Will it be, fundamentally, because we have found it "useful" to do so, or will we choose to do so because some other fundamental ethical principle applies?

 hen he wrote Trees, Stone was under an incredible time constraint and thus provided to his readers only a rudimentary map to his underlying thinking. Thirteen years later Stone corrected this omission with the publication of Should Trees Have Standing? Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective, 59 S. Cal. L. Rev. 1 (1985). In this article Stone argues for a "moral pluralism" in which one set of ethical principles may govern one group of moral activities (such as a person's relations with other persons) while another set of ethical principles may govern another group of moral activities (such as a person's relations with nature).

 hether Stone's views will find traction in the long run remains to be seen. The question asked by Trees remains a profound one, though—going as it does beyond not only our relations with each other but also our relations with future generations. Even in A Theory of Justice, John Rawls does not attempt to answer the question of whether natural objects or areas should be entitled to moral consideration. Rawls acknowledges (at the end of § 3 of A Theory of Justice) that his theory of justice "is not a complete contract theory" and that it "fails to embrace all moral relationships"—leaving out "how we are to conduct ourselves toward animals and the rest of nature."

But how much of a stretch is it to acknowledge that we are part of nature? And once we have done that, how much farther must we reach before acknowledging that we are but a small part—indeed only a recent small part—of nature? From that perspective comes humility—and with that humility comes a recognition that trees ought to have some standing.

 

 

Joe Perkins '76 is a shareholder in the Alaska law firm of Guess & Rudd P.C.
He practices in the firm's Anchorage office, where he represents mining companies, oil and gas companies, Native corporations, and financial institutions in connection with mining, oil and gas, and other natural resource transactions and projects. He has published articles on Alaska natural resources law and on issues of professional responsibility. He received his law degree from the University of Denver in 1979 and his BSE in geological engineering from Princeton University in 1976.