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Duke Law > Duke Law Scholarship Repository > Journals > DELPF > Vol. 31 > No. 2 (2021)

 

Abstract

An international consensus of scientific experts is now demanding "immediate action" in response to the environmental, climate, and biodiversity crises. But are our legal and regulatory frameworks equipped to respond to the rapid pace of environmental degradation, biodiversity loss and climate change? What incidence is there, transnationally, of laws that seek to protect the Earth from the humans that inhabit it? In the past few decades, there is a growing social, legal, and political movement towards more ecocentric regulation of the planet, where new laws and institutions seek to protect natural resources for their own intrinsic value. In this paper, I consider recent efforts to protect the rights of rivers in the U.S. and Mexico, which are novel and emerging attempts to discover new pathways for enhanced protection of vulnerable waterways. These attempts are being pragmatically driven from the bottom up to the highest levels of the legislature or judiciary as local communities (and sometimes Indigenous Peoples) become increasingly frustrated with apathetic and complacent governmental responses to environmental challenges, using whatever legal tools and processes are available to them. However, rather than an Earth-centred revolution, efforts to protect the rights of nature are distinctly "human"; as communities appeal to human rights laws, and their enhanced constitutional status, to upset the status quo. There are important lessons to be learned from these experiences in other countries in terms of the ability to entrench transformative environmental protections via constitutional hierarchies and the potential for the rights and interests of humans to be both an enabler of, as well as a threat to, nature's rights.

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