The Right to Nature – Equity, Markets, and Restoration
In late 2024, Held v. Montana was upheld in Montana’s Supreme Court. The plaintiffs, aged 5-22 at the time, argued that people of all ages, including youth and generations not yet born, have the right to a clean and healthy environment [1]. This milestone climate ruling solidified that current and future residents have a constitutional right to a clean environment and that permitting fossil fuel projects without accounting for climate impacts infringes upon this right [2]. As of 2023, Montana was only one of five U.S. states whose constitutions have been amended to include mention of climate impacts, but more states are working to join them [3].
The topics of the “right to nature” and the “rights of nature” have been addressed in environmental and policy discourse for decades at national and international convenings like the Conference of the Parties [4]. Recently, students at Yale Law School brought together five experts for a discussion on what present societies owe future generations and how policy and markets can safeguard these rights.
Claudia Flores, Clinical Professor of Law and Director, Allard K. Lowenstein International Human Rights, who moderated the session, began with a reflection question, “How do we speak for future generations and nature as they cannot speak for themselves?” Each speaker shared their experiences and opinions on the “right to nature” and the “rights of nature.”
Hillhouse Professor of Environmental Law and Policy, Dan Esty, has led conversations on these topics at numerous international forums. He expressed how, at these convenings, the outcomes often trend more towards “mission statements” rather than action plans. Esty questions if the structure of these government-to-government conversations are the appropriate format to produce results that limit climate change. He has hope that prosecution utilizing existing laws that protect people from “spillovers of harm” will be more effective than enacting new legislation surrounding the “right to nature.”
Loren Dunn, Principal Attorney at Beveridge & Diamond PC, co-authored the U.S. Environmental Protection Agency’s first assessment of climate change in 1981. He sees how the “right to nature” dialogue has changed over the years and the direction it still needs to go. To him, the “right to nature” discourse centers on a static view of protecting species and ecosystems but needs to move toward “fostering adaptation plans for climate change effects.” He also acknowledges that there is much work still to be done to influence people to love, value, and protect the environment.
Clinical Associate and Professor of Law, Stephanie Safdi, shared her thoughts on the “plurality of approaches” in the “right to nature” and “rights of nature” discussions. She detailed the relationship between viewing how humans thrive and how nature thrives. In her view, “right to nature” arguments take an inherently anthropocentric path in Western legal systems as nature is valued based on what it provides for humans. She highlighted two examples of biocentric “rights of nature” legal action, paving a way forward. Tribal nations within the United States utilize “territorial jurisdiction” to adopt federal laws, such as the Clean Water Act, and adapt them to their own standards that often emphasize more biocentric value systems and cultural uses. Across the world in New Zealand, the Whanganui River was granted personhood by the government in an action to protect it that inspired similar efforts in other nations [5].
Josh Macey, Professor of Law and energy law specialist, deliberated the vague standards the Western legal system often lays out around the “right to nature.” It is difficult to define specific standards in climate change laws as humans can’t pre-commit to knowing what the magnitude of climate change damages are. Climate change and its effects don’t fit into the current regulatory system as neatly as pollution, clean water, and hazardous materials do, making it harder to grapple with interests, power, political will, and education around climate change. To overcome this, Macey noted it is crucial to “think about when and what to litigate.” He detailed how side effects of well-meaning environmental laws, like implementing carbon taxes, assessing the environmental effects of project development, and making utilities pay for wildfire damage, may actually worsen climate change by creating reliance on funds from the polluters paying the carbon tax, by making clean energy permitting more difficult, and by reallocating money earmarked for utility decarbonization efforts, respectively.
As with countless environmental topics, there is no silver bullet solution to align equity, markets, and restoration towards the “right to nature” and the “rights of nature.” But there is hope in leveraging existing laws to prevent spillovers of harm, creating adaptation plans for the effects of climate change, incorporating biocentric approaches, thinking carefully about when and what to litigate, and exploring potential side effects of environmental laws.
This conversation made one thing clear: the gap between what nature needs and what the law currently provides is a test of moral imagination. Future generations cannot file briefs. Rivers cannot vote. And yet, as the Montana youth plaintiffs showed, the courtroom can still hear them, if we are willing to listen. The road ahead demands more than mission statements drafted in conference rooms; it demands the creative, sometimes uncomfortable work of stretching existing legal frameworks. Nature does not operate on a legislative calendar, and climate change will not wait for consensus. What this panel ultimately affirmed is that the question is no longer whether future generations have a right to a livable world; courts are beginning to say they do. The urgent question now is whether present generations have the courage to act like it.