Utah Supports “Personhood” for Corporations, but Maybe Not Forests

By using the structure of rights, the laws give nature, or components of it like forests and rivers, the ability to act in their own capacity under the law, similar to the way corporations, business partnerships, nonprofits and other non-human entities already do. That legal structure is often referred to as having legal personhood.  

Rep. Walt Brooks (R-St. George), H.B. 249’s sponsor, told fellow lawmakers last week that the idea for a bill excluding nature from legal personhood came to him after he heard from constituents about the rights of nature movement

Brooks said that he believes only human beings should have “personhood” under the law. He would not say whether he believes legal personhood for corporations, business partnerships, and other nonhuman entities should be abolished, but said “this is the intent of the bill: to define personhood as a human being.” Utah law currently includes corporations, business partnerships and other nonhuman entities in its definition of “person.” Brooks also said he felt that existing environmental laws are more appropriate tools to protect ecosystems and emphasized that he is in favor of finding ways to strengthen environmental protection.

Beyond the Great Salt Lake’s demise, Utah has been beset by drought and Salt Lake City faces a persistent air pollution problem. Scientists predict that the loss of the Great Salt Lake, driven by human activities that divert water away from replenishing the lake as well as drought, could catalyze cascading ecological changes affecting the viability of multiple species, from birds to aquatic life. As the lake dries out, particulate matter, arsenic and other toxins in the lake bed are released into the atmosphere, affecting local communities.

H.B. 249 does not explicitly mention the Great Salt Lake, but the proposal comes amid growing efforts to obtain legal recognition that the lake possesses inherent rights to exist and to maintain water levels sufficient for ecosystem health. The “Save our Great Lakes” campaign’s proposed legislation also calls for the “appointment of an advisor or advisory body charged with the responsibility of speaking for the Lake and its watershed.” 

Multiple tribal nations and countries have similar rights of nature laws on the books, including Spain, Ecuador, Panama, Bolivia, Uganda, The Ponca Tribe of Oklahoma, the Yurok Tribe in California and the Nez Perce Tribe in Idaho. 

Among jurisdictions with rights of nature laws in place, the jurisprudence is most advanced in Ecuador, where the law was enshrined in the country’s 2008 constitution, largely due to pressure from Indigenous communities. 

Ecuador’s Constitutional Court has ruled that the law requires mining companies to carry out detailed scientific studies in ecologically sensitive areas before being allowed to operate, and that wild animals possess distinct legal rights, including to exist, to develop their innate instincts and to be free from disproportionate cruelty, fear and distress. Still, extractive and development activity, most prominently oil production, have continued in Ecuador as courts work out how to balance the competing rights of businesses, humans and nature. 

Opponents of rights of nature laws often argue that the higher level of protection those laws provide to ecosystems, as compared to conventional regulations, will impede necessary development. They also cite the need to quickly scale up electrification as a way to address climate change. Extracting from the Earth vast amounts of elements like lithium and copper for use in reusable batteries is likely to harm large swaths of nature. 

Critics of Utah’s attempt to restrict nature from legal personhood say that the state legislation prevents local communities from making their own decisions about legitimate policies being advanced by governments elsewhere. They also say H.B. 249 contradicts and disrespects Indigenous belief systems without their input. 

Those belief systems disagree with the mainstream cultural view that humans are separate from, and superior to, the natural world—a view manifested legally in the construct of human beings having rights to own, use and destroy nature, which is treated as property and has no rights.

The contrasting view of many tribes is that humans have complex, interdependent relationships with all parts of nature and have responsibilities to the rest of the natural world, which holds spiritual significance. Translating that worldview into western legal terms entails recognizing that nature, similar to humans, possesses distinct rights, advocates argue. 

Utah is home to at least eight tribal nations, including part of the Navajo Nation. In 2002, the Navajo issued a resolution codifying the fundamental law of the Diné, the Navajo’s preferred name for its people, and recognizing that “All creation, from Mother Earth and Father Sky to the animals, those who live in water, those who fly and plant life have their own laws, and have rights and freedom to exist.” The Navajo Nation is a sovereign entity and Utah law does not apply on its tribal lands absent a congressional act.

George Hardeen, a spokesman with the Navajo Nation, declined to comment on H.B. 249 specifically, saying that he was reluctant to do so because he had not talked directly with the bill’s sponsors. Hardeen did say that it often never occurs to state lawmakers to take into consideration the point of view of the Navajo and other tribes in the state. 

“They approach these things from a political perspective, not a spiritual perspective that is different from their own,” Hardeen said. “This continues to happen to tribes because of a perpetual lack of understanding that other people may not look at the world the way you do.” 

Legal personhood, or extending legal rights to nonhuman entities, is not a new development. That legal construct is most commonly used to allow businesses to enter into contracts, sue, be sued, own property, and, in the case of corporations, limit the liability of its shareholders. 

In the United States, judicial recognition that corporations have legal rights dates to at least the 1886 U.S. Supreme Court Case Santa Clara County v. Southern Pacific R. Co. More recently, the Supreme Court in Citizens United v. Federal Elections Commission upheld first amendment rights for corporations with regard to spending on political advertisements. 

Existing Utah law also defines a “person” as “an individual, corporation, partnership, organization, association, trust, governmental agency, or any other legal entity.” 

Rights of nature advocates argue that extending legal personhood to nonhuman living beings and other aspects of nature is not dissimilar from the gradual extension of rights over time to different categories of humans. Historically, women, enslaved humans, Indigenous people and others were restricted from holding certain rights or were considered property. Only after political and cultural efforts did those categories of people win legal recognition as rights-bearing human beings.

More recently, attempts to extend legal personhood to non-human animals has gained traction in other countries while U.S. courts have stopped short of that in cases involving elephants and great apes. Advocates’ arguments in favor of legal personhood for those animals are based in part on developing science affirming that those species have high levels of intelligence and emotional capabilities. 

Once legislatures or courts recognize the legal personhood of a nonhuman entity, the next question becomes what rights those entities have and who speaks for them, according to Jill E. Fisch, Professor of Business Law at the University of Pennsylvania Law School. 

Corporations, for instance, have free speech rights but have been denied other rights afforded to humans. Existing rights of nature laws aim to assign rights that align with the essense of the natural feature: rivers have the right to flow, wild animals have the right to habitat, and lakes, like the Great Salt Lake, have the right to be replenished. 

“If nature is a ‘person’ under the law, that does not mean it has all the same rights as humans,” said Grant Wilson, executive director of Earth Law Center, a U.S.-based nonprofit, “I think a right to exist, a right to be healthy, and a right to representation, such as through legal guardians, are three of the most important baseline rights that should be held by nature.”