Welcome to the Wonderful World of Earth Law
This is the first blog post in a new series, “Advice of Counsel,” by Earth Law Center’s general counsel and director of education, Tony Zelle.
Have you ever met an Earth lawyer? Since attending the World Economic Forum in Davos in 2023, I have been describing myself as an Earth lawyer. During the prior 7 years, I served as chair of the Earth Law Center (ELC) board. With Grant Wilson, ELC’s executive director, Herman Greene, founder of the Center for Ecozoic Studies, and Rachelle Adam, an Earth law practitioner and educator, we conceived of and published the first (and, as of this writing, only) coursebook on the subject of Earth law: Earth Law: Emerging Ecocentric Law—A Guide for Practitioners. I now serve as ELC’s director of education and its general counsel.
My mission as an Earth lawyer and ELC’s education lead is to make Earth law and Earth lawyers. To that end, I invite you to read “Advice of Counsel,” my periodic contribution to Earth Law Center’s blog and newsletter. I also invite you to participate in ELC’s 2024 Summer Class and to ask questions about Earth law at info@earthlaw.org.
To begin our dialogue, I will share my answers to some frequently asked questions. Like the subject of Earth law itself, the answers to these questions are emerging and adapting to the constant changes of Earth and the Earth community. There are few, if any, who consider themselves an authority on the subject of Earth law. While I consider myself a practicing Earth lawyer, an educator, an entrepreneur, and a voice for the voiceless, it is with the utmost humility and gratitude that I share my ideas, which I am always interested in reconsidering.
What is “Earth law”?
Earth law is the emerging body of law that will protect, stabilize, and restore the functional interdependence of Earth's life and life-support systems at the local, bioregional, and global levels. Earth law may be expressed in constitutional, statutory, common law, and customary law, as well as in treaties and other agreements both public and private.
Earth law is a practice of law that has sprouted from the principles of “Earth jurisprudence,” a term coined by cultural historian, poet, and geologian Thomas Berry, who is known as the “father of Earth jurisprudence.” The Gaia Foundation is a proponent of its development and explains What You Need To Know. Judith Koonz describes Earth jurisprudence as Key Principles to Transform Law for the Health of the Planet.
How is Earth law different from environmental law?
Environmental law has many definitions. For example, a body of law intended to protect the environment by regulating activities that cause pollution, such as fossil fuel emissions and the dumping of wastes; by prohibiting certain uses of land designated as protected by the landowner or sovereign, e.g., national parks, land conservation trusts; and by providing regimes of protection for endangered species.
Environmental laws that permit pollution and the degradation of Earth and Earth’s life-supporting systems conflict with Earth law principles.
What do “ecocentric” and “anthropocentric” mean?
“Anthropocentric” means centered on human beings.
“Ecocentric” means centered on Earth's ecosphere, which includes the air, water, and land. In scientific terms, the atmosphere, hydrosphere, lithosphere, and biosphere comprise the ecosphere. The biosphere is the thin layer of Earth occupied by living organisms.
Earth law looks at anthropocentrism as the centerpoint of a metaphorical sphere held in balance by the relationships of all other life and life-support systems contained within the sphere, the outer perimeter of which is ecocentrism. Ecocentric law seeks to balance these interests. By way of illustration, when a river is the subject of a legal proceeding or legislative action, a purely anthropocentric viewpoint considers only the human needs for the water, such as to drink, use for irrigation of crops, use as a place to discharge waste, and/or conserve for aesthetic and recreational interests. An ecocentric viewpoint considers, in addition to human interests, the role of the river in its ecosystem and the sufficient minimum flows and water quality necessary to protect, stabilize, and/or restore the functional interdependency of the community of life (including human life) and life-support systems that comprise the ecosystem.
How does Earth law relate to the Rights of Nature legal movement?
The terms “rights” and “nature” are both simple to understand and difficult to explain. They are expansive terms that are highly subjective. It is folly to attempt to define them without a context. To understand them in the context of Earth law, one must begin with the understanding that humans are nature. “Nature” may be defined as the world as it presently exists. It includes the human species and all that the human species has created. It is the state of Earth today, which includes human beings and our creations, as well as nonhuman nature, the rest of the Earth community of life and life-sustaining systems. Earth law rejects the ontology of separation, a concept that considers human beings to be above and apart from the web of nature that weaves together all that exists in the Earth community.
The concept of “legal rights” is relatively new in the history of humankind. Before law was defined by rights, it was defined by relationships. While rights-based legal frameworks currently predominate the fabric of law, from the local to the global, Earth law seeks to reinstill concepts of relationality and responsibility in the law and legal systems. Indigenous legalities, from cultures in the Amazon to Aboriginal Australia to Africa to the Americas, are based on relationality and responsibility.
Earth law distinguishes between rights conceived and codified by human beings and the inherent Rights of Nature, which include the rights to exist, to have a habitat, and to evolve as part of the Earth community. In the context of Earth law, “Rights of Nature” are defined by the human laws and legal systems that give nonhuman nature rights or compel nature’s interests to be considered. By way of example, in a judicial proceeding, to assert a legal right or claim protection from the violation of a right depends on “standing.” Standing is not an inherent right of humans or nature. In the United States, it is a right established by the Constitution. When written, the U.S. Constitution limited standing to white men who owned property. While the Supreme Court has extrapolated the constitutional meaning of “standing” to confer this legal right on women and nonhuman beings, such as corporations, government agencies, trusts, and inanimate objects such as ships, there continues to be strong opposition to conferring nature with standing.
In contrast, the constitutions of Ecuador and Bolivia recognize both procedural rights (such as standing) and substantive rights of nature that compel judges and lawmakers to consider nature’s interests. “Pachamama” is the term used in these constitutions. Typically translated as “Mother Earth,” in Bolivia, “Pachamama” is defined in law as “a dynamic living system comprising an indivisible community of all living systems and living organisms, interrelated, interdependent and complementary, which share a common destiny.” “Living systems” are defined as “complex and dynamic communities of plants, animals, microorganisms and other beings and their environment, where human communities and the rest of nature interact as a functional unit under the influence of climatic, physiographic, and geological factors, as well as production practices, Bolivian cultural diversity, and the worldviews of nations, original indigenous peoples, and intercultural and Afro-Bolivian communities.”
Constitutional recognition of Rights of Nature in Bolivia and Ecuador are examples of how Earth law relates to the global Rights of Nature movement. They are human laws at the constitutional core of their national legal systems that give nonhuman nature rights and compel nature’s interests to be considered.
In the context of Earth law, what is the role of planetary boundaries?
To determine whether law tends to protect, stabilize, and restore the functional interdependence of Earth's life and life-support systems, there must be criteria for decision-makers to consider. Among these criteria are the planetary boundaries established in 2009 by the Stockholm Resilience Center and dozens of collaborators. The planetary boundaries establish scientifically measurable standards for nine processes that regulate the stability and resilience of the Earth system. They are:
Climate change
Ocean acidification
Stratospheric ozone depletion
Interference with the global phosphorus and nitrogen cycles
Rate of biodiversity loss
Global freshwater use
Land-system change
Aerosol loading
Chemical Pollution
Irrespective of any Rights of Nature that may be recognized by human law, the laws of nature that establish the planetary boundaries will determine the future of the Earth community. The pace of the development of Earth law will accelerate as human laws and legal systems pay increasing attention to the laws of nature.
How is Earth law related to climate change?
The development of Earth law will be an effective means to stem the changes in Earth’s climate, particularly those changes caused by human systems. However, because the law is itself one of those systems, its role in stemming changes in the Earth’s climate has thus far been quite limited. As laws and legal systems become more ecocentric, balancing rights and interests that are exclusively human with the interests of the Earth community, which is essential to support human life, they will more effectively address the causes and consequences of climate change.
How can you contribute to the advancement of Earth Law?
Earth law is for everyone. We are all Earthlings. The world wide web is not just another name for the internet. It is all humankind, along with the flora and fauna of the forests, the oceans, the soils, and the sky. The world wide web is the gift of life and life-sustaining systems we have inherited from Mother Earth and Father Time. To contribute to the advancement of Earth law begins with gratitude. Our book, Earth Law: Emerging Ecocentric Law— A Guide for Practitioners, is dedicated to protect Earth, “in gratitude for the home you provide for us, the sustenance you give us, the magnificent beauty with which you surround us, and for your wondrous diversity of life and life supporting systems.”
This writing of Robin Wall Kimmerer is foundational in the advancement of Earth law. In her essay “Returning the Gift,” she writes:
We are showered every day with the gifts of the Earth, gifts we have neither earned nor paid for: air to breathe, nurturing rain, black soil, berries and honeybees, the tree that became this page, a bag of rice, and the exuberance of a field of goldenrod and asters at full bloom . . . the job of a human person is to learn, “What can I give in return for the gifts of the Earth?”. . .
For much of humans’ time on the planet . . . we lived in cultures that understood the covenant of reciprocity—that for the Earth to stay in balance, for the gifts to continue to flow, we must give back in equal measure for what we are given. Our first responsibility, the most potent offering we possess, is gratitude.
With gratitude, I welcome you to the wonderful world of Earth law and encourage you to wonder. Wonder is an essential element of an Earth lawyer’s practice, as are curiosity and imagination. That is how we can effect change, because we have to conceive the inconceivable and make the impossible possible.
