THENEWYORKER, APRIL 18, 2022 17were wandering, he decided to shake
things up. What would happen, he asked,
if the law were to further evolve to grant
rights to, say, trees or even rocks? “This
little thought experiment,” he later re-
called, created an “uproar.”
Until that moment, Stone hadn’t con-
sidered this question. But, having tossed
it out, he found himself intrigued. He
set about writing a law-review article.
In the article, “Should Trees Have Stand-
ing?—Toward Legal Rights for Natu-
ral Objects,” Stone noted that rights are
always socially constructed. In Amer-
ica in the eighteenth and nineteenth
centuries, many groups—Blacks, Na-
tive Americans, women, children—were
denied rights; then, as society, or what
counted as society, changed, rights were
slowly and painfully (and often incom-
pletely) extended to them.
“Each time there is a movement to
confer rights onto some new ‘entity,’ the
proposal is bound to sound odd or
frightening or laughable,” Stone wrote.
“This is partly because until the right-
less thing receives its rights we cannot
see it as anything but a thing for the use
of ‘us’—those who are holding rights
at the time.” He went on, “I am quite
seriously proposing that we give legal
rights to forests, oceans, rivers and other
so-called ‘natural objects’ in the envi-
ronment—indeed to the natural envi-
ronment as a whole.”
This extension of rights, Stone ar-
gued, was needed to address an other-
wise insuperable problem. So long as
“natural objects” were valued only in terms
of their worth to humans—“for the use
of ‘us’ ”—they could, quite legally, be de-
stroyed. Stone cited the example of some-
one polluting a stream. People living
downstream could take the polluter to
court and perhaps win damages. But the
waterway and the species dependent on
it would never recoup their losses. In the
conf lict between the polluter and the
downstream residents, he wrote, “the
stream itself is lost sight of.”
As it happened, in the autumn of
1971, while Stone was at work on his ar-
ticle, a major environmental case was
wending its way through the courts. A
couple of years earlier, Disney had de-
cided to build a giant ski resort in a wil-
derness area south of Yosemite known
as Mineral King. (The resort was to be,
in Disney’s words, an “American Alpine
Wonderland,” with a five-story hotel,
twenty-two lifts, and ten restaurants, in-
cluding one at eleven thousand feet.) To
construct the resort, and to bring in vis-
itors, the company needed an access road
through Sequoia National Park. When
the Interior Department approved the
highway, the Sierra Club sued, arguing
that it would cause “irreparable harm
to the public interest.” A federal judge
in San Francisco ruled in the group’s
favor and issued a preliminary injunc-
tion blocking work on the resort. On an
appeal from the Interior Department,
the ruling was reversed. The Sierra Club,
the appellate court said, lacked standing
to sue, since it wouldn’t be directly af-
fected by the project. This time, the Si-
erra Club appealed.
When Stone learned that the case,
Sierra Club v. Morton, was headed to
the U.S. Supreme Court, he decided,
with the help of the editors of the South-
ern California Law Review, to rush his
article into print. A friend of his, who
was a law clerk for the Supreme Court
Justice William O. Douglas, seems to
have relayed an early draft to Douglas,
an ardent environmentalist. (Whether
this back-channel communication was
kosher is debatable.)
In April, 1972, the Supreme Court up-
held the appellate court’s decision against
the Sierra Club, by a vote of four to three.
(Two seats on the Court were vacant.)
Douglas, drawing heavily on Stone’s ar-
ticle, penned a dissenting opinion. “A
ship has a legal personality, a fiction
found useful for maritime purposes,”
he wrote. A corporation, too, “is a ‘per-
son’ for purposes of the adjudicatory
processes... .So it should be as respects
valleys, alpine meadows, rivers, lakes,
estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the
destructive pressures of modern tech-
nology and modern life.”
Douglas’s opinion has been described
as “one of the most famous and pas-
sionate dissents in the Supreme Court’s
history,” and it turned what probably
otherwise would have been a little-
noticed law-review article into a media
event. “Should Trees Have Standing?”
was reprinted in the Congressional Rec-
ord and published in book form. The
Berkeley Monthly declared it a sign of
better times to come. There was some-
thing “amiably zany,” as Stone wouldlater put it, about a law professor who
wanted to bestow rights on shrubs.
Even Stone’s critics had fun with
his idea. “Why wouldn’t Mineral King
want to host a ski resort, after doing
nothing for a billion years?” Mark Sa-
goff, a philosophy professor, quipped
in the Yale Law Journal. Writing in the
American Bar Association Journal, an at-
torney named John Naff lyricized:
Great mountain peaks of names prestigious
Will suddenly become litigious.
Our brooks will babble in the courts,
Seeking damages for torts.
How can I rest beneath a tree
If it may soon be suing me?T
he bodies of water that have filed
suit in Orange County have one
co-plaintiff who walks on two legs, and
that is Chuck O’Neal. O’Neal is sixty-
six, with slate-gray hair, a broad face,
and a reedy voice. He is the founder
of Speak Up Wekiva, an organization
named for a river that runs near his
home, and until recently he was also the
president, the chairman, and the direc-
tor-at-large of a group called the Flor-
ida Rights of Nature Network.
“I often hear the word ‘radical,’” O’Neal
told me. “And I’m, like, all right. ‘Radi-
cal’ comes from the Latin word radix, for
root, and that’s exactly what this is: change
at the root. Does nature have rights? That
concept, I agree, is radical.”
One morning not long ago, O’Neal
picked me up at the hotel where I was
staying, north of downtown Orlando.
Our plan was to tour all the bodies of
water that have filed suit, starting with
a stream called Wilde Cypress Branch.
The drive took us past strings of shop-
ping centers and clusters of condomini-
ums, then past more shopping centers
and the walls of gated communities.
Eventually, we arrived at an area that
wasn’t quite rural but also wasn’t quite
suburban. O’Neal pulled off the road
next to some open land studded with
scraggly bushes. Stretching around the
bushes, and for as far as I could see,
was a five-foot-high barbed-wire fence,
which appeared to be new. O’Neal ex-
plained that to reach Wilde Cypress
we would have to get across the fence.
While we were debating how to do this—
over or under?—two men in a white pick-
up truck drove up and parked behind
O’Neal’s car. The rapidity with which
they’d shown up freaked us out, and we