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Petitioned Article Seeks Earth Rights

Strafford — A Strafford man seeking to amend the Vermont Constitution to bestow legal rights upon the Earth has succeeded in getting the proposal on Town Meeting warnings in Norwich, Thetford and Strafford.

The proposal from Stephen Marx is getting a skeptical look from a constitutional scholar and a free-market former lawmaker.

Marx is a retired literacy teacher and professional gardener who was bothered by the Supreme Court’s Citizens United decision, which equated the rights of corporations with those of people in terms of political spending. So he thought if corporations have rights, then the planet should have rights as well.

With help from professors at the Vermont Law School, Marx drafted an amendment that says that forests, natural areas, surface and ground water, fish and wildlife populations have certain inherent rights. It goes on to say that every Vermonter should have recourse and the environment should be given prompt restoration.

“I feel that we really need to take care of the Earth, and we’re not doing a very good job as people,” Marx said. “I feel that this will give the Earth a chance.”

Giving the Earth legal rights is an abstract idea, however, and raises several questions, such as how are those rights defined and enforced?

Linda Sheehan is the executive director of the Earth Law Center, a nonprofit in California, and she taught an Earth law class at Vermont Law School last summer. Marx was one of her students.

Sheehan said that the amendment would recognize that the Earth has the right to survive and flourish, and it would therefore mitigate human behavior. If the amendment establishes that a waterway has a right to health, then ideally policy makers would have to take that into account when writing statutes and regulations.

In 2008, Ecuador adopted a new constitution that included articles that gave legally protected rights to nature, and in 2011, the Ecuadorian courts relied on the article after a project to widen a road left rocks and other debris in a nearby river, which later flooded and affected nearby properties. When the courts ruled in favor of nature, the defendant was ordered to rehabilitate the river.

No state in the United States has a rights of nature amendment in its constitution, Sheehan said, but several communities across the nation have ordinances that recognize the rights of nature. Sheehan is currently working with the city of Santa Monica, Calif., to develop an ordinance that relates to bestowing rights on Mother Nature, and there are several cities and towns in Pennsylvania that have implemented ordinances in an effort to protect themselves from fracking, a controversial practice for extracting fossil fuels.

Not everyone is convinced, however. Peter Teachout, a constitutional law professor at VLS and a Norwich resident, said the amendment seems unworkable because it doesn’t provide the courts any criteria.

“It would give anyone in the state that objects to any type of development to go into court and get the court to stop the activity or get monetary damages,” Teachout said.

Teachout interpreted the amendment to mean that any Vermonter would have the right to go to court on behalf of the Earth. Cutting down trees to create a ski trail could injure the environment, he said, and essentially any citizen could oppose that.

To protect the environment, Teachout said it would be more effective to create legislation and statutes than propose an amendment.

John McClaughry, vice president of the Ethan Allen Institute, a free-market think-tank, called the amendment “ridiculous.”

“If made part of the Vermont constitution, every student at the Vermont Law School would be in one or another court, filing suits to stop anybody from doing anything that might violate the supposed rights of the natural environment,” said McClaughry, a former Republican state senator.

Development is already heavily regulated in Vermont, McClaughry said, citing Act 250, the state’s rigorous land use law.

Even if Marx gains support for his amendment in three communities at Town Meeting, getting the Vermont constitution amended is a challenge in itself. The Senate can only propose amendments every four years, and there must be a two-thirds majority vote. The House of Representatives must also approve the amendment with a majority vote.

Then the amendment must then be brought up at the following biennial session and it must again receive a majority vote by both the Senate and the House of Representatives before going before voters statewide.

Even so, Marx said he hopes that his article — especially if it passes — will catch the attention of legislators. Marx said he plans to contact his representatives if the articles pass in each of the three towns.

Marx said that VLS professors suggested that he attempt to have a city or town adopt an Earth rights ordinance before pursuing an amendment, but he said he’s a strong believer in Town Meeting — he’s only missed one in 30 years — and this would give voters a chance to have a conversation.

Because he’s recently retired, Marx jokingly said he’s willing to put 20 years into this project — although he hopes it doesn’t take that long. If the Legislature doesn’t act on the amendment next year, then Marx said he’s prepared to try to place the warning article on more Town Meeting ballots.

“This is my next project,” Marx said. “(The Earth) is my mother that I have to take care of, and I believe in taking care of your mother.”

Sarah Brubeck can be reached at sbrubeck@vnews.com or 603-727-3223.