Is giving our drinking water legal personhood the best way to protect it?

A New Hampshire legal battle highlights the complications of using rights-based ordinances to protect natural resources.

For two years, residents of Nottingham, New Hampshire, a town of less than 5,000 people, have backed an unusual law to protect the drinking water they pull from their wells. 

The Freedom from Chemical Trespass Rights-Based Ordinance, which voters passed in 2019, gives the streams, rivers, and tributaries that flow into Nottingham’s drinking water supply—along with all other ecosystems “and natural communities”—their own legal personhood.

That personhood bestows upon the ecosystem—which also includes air and soil—the right “to be free from all corporate activities that infringe” upon it. This includes petroleum refinery waste, sewage, heavy metals, chemical residue, or “any other waste that poses a present or potential hazard to human health,” according to the ordinance. 

Furthermore, if that right is violated, any town resident has the ability to personally intervene on the ecosystem’s behalf, and pursue $1,000-per-day fines for polluters, plus the cost of restoring the land, water, or air. 

“The state and federal government have not stepped up to make sure that people, and the ecosystems, are protected.”

The ordinance was overturned last week, however, after a Rockingham County Superior Court judge ruled it was vague and unenforceable. But “rights of nature” ordinances like this are actually part of a burgeoning trend in environmental law, and offer a relatively new way to think about protecting natural resources. By giving waterways and aquifers rights, then advocates can file lawsuits on their behalf. It’s no more absurd, they say, than the fact that corporations have rights, privileges, and protections. If a business can claim personhood, why not nature, too?

Nottingham isn’t the only place where residents have voted to recognize natural personhood. In 2006, Tamaqua Borough, Pennsylvania, passed an ordinance to ban the dumping of sewage sludge into open-pit mines “by recognizing and enforcing the rights of residents to defend natural communities and ecosystems.” That made it the first place in the world to recognize the rights of nature in law, according to the Community Environmental Legal Defense Fund (CELDF), a public interest law firm that backed the ordinance.

Since then, more than three dozen communities across 10 states have adopted similar measures, including the cities of Toledo, Ohio, and Pittsburgh, Pennsylvania. In November, voters in Orange County, Florida, passed an amendment to grant legal rights to two local rivers that have been choked by nitrogen and phosphorus pollution, Sierra reported.

Voters in Orange County, Florida, passed an amendment to grant legal rights to two local rivers that have been choked by nitrogen and phosphorus pollution.

Michelle Sanborn, a CELDF organizer in New Hampshire, said Nottingham residents pushed for the ordinance because they felt that higher levels of government weren’t doing enough to protect them. As the final straw, she cited the alleged failure of state officials and the Environmental Protection Agency to mitigate PFAS contamination of drinking wells around the Coakley landfill, a nearby hazardous dump that’s now a Superfund site.

“The state and federal government have not stepped up to make sure that people, and the ecosystems, are protected,” she said. “Nottingham looked at that and said, we don’t want that happening here. We want to take proactive action to stop that and thwart that in our community.”

Legal guardianship may not mean much without the resources or finances to go after the polluters.

Where it has been adopted, the approach has been met with mixed success. Enforcement can be difficult, not least because natural features like rivers and watersheds don’t respect boundaries. In other instances, it’s not clear who the legal guardian is, which leaves open the possibility that no one will actually defend the ecosystem. Nottingham’s ordinance, for instance, gives any resident the right to defend the area’s natural resources. But legal guardianship may not mean much without the resources or finances to go after polluters.

The ordinances have also become legal targets themselves, with some judges finding them to be too far-reaching. That’s what happened last year, when a federal judge permanently overturned the Lake Erie Bill of Rights, saying it was too vague, and gave the city too much power. That came after Republican lawmakers had already watered down its provisions at the behest of the local Chamber of Commerce.

That’s similar to what happened in Nottingham. In 2019, weeks after the ordinance passed, a resident named Brent Tweed sued to stop it, claiming it was too broad. Tweed was afraid that the day-to-day activities of running his mail-order company—like driving a car that burned fossil fuels, or landfilling paint and cleaning supplies—could open him up to the hefty fines associated with releasing “toxic contaminants” into the air. 

Nevertheless, advocates say, pursuing rights-based ordinances is a worthy cause. The campaigns to pass them, even if they’re unsuccessful for now, shift the realm of what’s possible in the future.

“It’s just a matter of determining what’s important to us,” David Boyd, a law professor at the University of British Columbia, told Mother Jones.

Sam Bloch is a contributing writer for The Counter, where he covers business, environment and culture. He has also written for The New York Times, L.A. Weekly, Places Journal, Art in America and other publications, and is currently working on his first book, a work of narrative nonfiction about shade, for Random House.