Interview of Jason Flores-Williams part 1/2 ― Resistance Radio

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Hi, I’m Derrick Jensen. This is Resistance Radio, on the Progressive Radio Network.

My guest today is Jason Flores-Williams. He’s a noted civil rights attorney and author who has litigated some of the most important cases of our time. He has been featured on CNN, the New York Times, and the Washington Post, and has given speeches about resistance to audiences around the world. The Law Firm of Jason Flores-Williams along with the aid of Deep Green Resistance has filed one of the first federal lawsuits asking the court to declare that nature has fundamental rights and standing. The lawsuit is based on the Community Environmental Legal Defense Fund’s work in seeking natural community rights in Ecuador, Colombia and India. Today we talk about a new lawsuit having to do with the Colorado River.

So first, thank you for your work in general, and thank you for being on the program.

JFW: You bet.

DJ: So, tell me about both the Colorado River and your lawsuit.

JFW: Well, the lawsuit is based on the fact that what I characterize very generously as a procedural defect in American law, that holds that a human being must be injured by a violation of the natural world of ecosystems, to be able to bring a suit into federal or state court.

And so what the lawsuit does, is it says “Let’s get rid of this part where we have to prove injury to a human being.” Because ultimately, what we know is that injuries to the environment *are* injuries to human beings. And moreover, there are injuries to the environment, and we can go tautologically on this forever, but human beings and the environment are intertwined and human beings are dependent on the environment. The life systems, they give rise to human life, the life systems on this planet, they give rise to all variants of life that are themselves life.

So, instead of having this human being-focused tort system of law, that countenances very few critical rights, and countenances very few critical suits, what we want to do is expand this, and the reason we want to expand it is to rid ourself of this procedural defect that requires that human beings are the only ones who have standing, and that we show injury to human beings in order to bring suits. And suit on behalf of the environment, and as I said, human beings and the environment are intertwined. So that we can start to really address, via the law, the massive violations, injustices and harms that are occurring in our world right now, that are giving rise to things like what we’re seeing in southeast Texas. What we’re seeing all around the planet. The degradation of the environment, the exploitation of the environment, which ultimately comes back around to hurting not only human life but all of life on this planet.

DJ: So let me understand this. It sounds like what you’re saying is that under the way the law currently works, if you had, say, an island that was not inhabited by humans, and not habitable by humans, but was full of, I dunno; puffins. Or some sort of seabird. That in order for an individual to sue for damage to this island, they would have to show that somehow, if you killed all the puffins that would hurt the humans. Am I misunderstanding?

JFW: You got it. It’s a chain of causality that will ultimately result in some kind of harm to human beings, or whatever entity or person is going to have standing to bring the lawsuit in court.

So, if you look – a really nice example here is the Colorado River, so let’s get back to that. Now, the Colorado River is being exploited and drained and essentially exterminated and killed, because of the way our property-based system views water rights, and of all the demands that the various states are making on this, I mean, the word “critical” doesn’t even get to it, let’s just say this elemental water source to all of life and humanity. It’s being drained, it’s dying.

DJ: And just to be clear, just to let people know: the Colorado River no longer reaches the ocean, for the most part. And what is it, 120% or 110% or 130% or something, of the water in the river is allocated to be taken out. I mean, it’s just – so, before we go on, can you give a couple more – can you talk about, like, how big the Colorado River is? Or how big it was? And just talk a little bit about that, and then move on.

JFW: Well, (big?) originally come to Mexico. I’m from the West. Is that you have numerous states that depend on the Colorado River, for mainly agriculture but also as water sources for cities that I think anybody with, who has looked at these issues on any level would describe as unsustainable. Places like Phoenix, places like Las Vegas. And, you know, ultimately the kind of agriculture that’s taking place in the inland empire that drains, the agriculture in the inland empire in California drains an absurd amount of this river. And as you said, Derrick, the demands on it are over the current capacity of the river, so that we are at 120 to 130% of what the river can provide for us, in those basic terms. It reminds me of Shel Silverstein, like “The Giving Tree.” We’ve just cut it into oblivion and taken everything that can possibly be taken from it. And in taking from it, we are causing not only the death of the river, but we are causing the death of the ecosystems that depend upon the river, and all the species that depend upon the river, which ultimately go back to the health and vitality of the human condition, because we are intertwined with, obviously with water, with a balanced nature, with an environment that remains somewhat balanced and healthy; otherwise we begin to experience a sort of aberration that ultimately we’re beginning to see now in the global atmosphere and environment with things like the degradation of the rainforest. And I know we’re getting away from the Colorado River in saying that, but I’m using the rainforest as an example. And the Colorado River falls into this kind of category of natural, substantial, organic ecosystems, that when deteriorated and exploited and destroyed, results in injury on a global scale to humanity.

Now, I want to get back to something very quickly. Before, if you look at, say, the degradation of the Colorado River. If you look at the exploitation and the draining of the Colorado River in the same way that you look at the exploitation and the draining of the rainforest, it has always been difficult, and standard environmental law and litigation has not been as successful as we would like it to be, with regard to drawing that standing and causality issue out. So we’ll say the river is being damaged, and say the rainforest is being damaged, which it is. And we’ll say this is obviously having an effect on the environment, which will obviously have an effect on, if we’re going to remain in the human sector, on persons, on humanity, on their ability to get fresh water. Not to mention all the thousands of living species and entities that are dependent, as an integral part of the ecosystem which is part of the Colorado River.

So, typical standard environmental law at this point has not been able to get around this standing issue. Sure, we understand it when you damage the environment, you damage the river, you damage the rainforest, you are damaging people. But the law, to this point, has required that this standing causality, this direct showing of harm to persons, be extant, be there, and be provable. And the law hasn’t recognized things like global warming. And the law hasn’t recognized mass paradigm shifts and toxic changes in the environment. And the law hasn’t come to a place of recognizing that shifts in the environment are resulting in what we’re seeing in Southeast Texas right now with Harvey. And rainfall shattering the records that have been extant in the continental United States to this point.

The law, therefore, as it stands now, has been unable to cognize actually what’s happening to the planet. And being that human beings live on the planet; what’s happening to human beings.

Due to this – and people don’t like to be calling it a procedural defect, but that’s the language I have to speak to be able to relate to federal courts – due to this procedural defect, we are facing and engaged in, right now, an environmental crisis that could result in ultimately, I won’t use the word “extermination” of humanity, because I think what’s ultimately going to happen is that those with resources are going to be able to, you know, insulate themselves from it, while the 99% without resources are going to feel the brunt of it, as we tend to see around the world.

So we’ve got to get this issue addressed, so that our law, which is supposed to, at its base – I don’t know why it exists, unless it’s to address crises and injustice. There’s no purpose for it if not doing that. It needs – we need to deal with this defect, so that when we know harms are taking place, via degradation of a river, via the elimination of a rainforest, via global warming, that’s naturally resulting from these sorts of things, that we can address those things without having to prove that there’s direct harm to humanity or some specific person or entity, and that is why we are asking that the … we are asking for a declaratory judgement via this lawsuit, that the river itself has rights. So we can point to it and say “Well, here’s the river, and the river obviously has suffered a harm here. There is more being demanded of it than it can give,” going back to “The Giving Tree” analogy. There are poisons being entered into the river, the river is being used for illicit purposes by corporations like Nestle, or being subsidized by states. And maybe we cannot come to the point right now where we can show that Nestle bottling unnecessarily by using plastic bottles to drain the Colorado River is having a deleterious effect on humanity and the ecosystems upon which humanity depends. But we shouldn’t have to show that, to be able to prove that, because we know it does, when we look at the plastic bottles that are in the oceans, and we look at what will, logically and commonsensically happen, if the Colorado River is drained. To humanity’s ability to engage in agriculture, and to our ecosystems’ ability to be able to survive.

So we need to get around this defect, and I know it’s not popular to call it a defect, but let’s just look at it that way right now, for purposes of federal law, and get nature recognized as it’s been recognized in Colombia, as it’s been recognized in India, as it’s been recognized in Ecuador. Get it some rights of standing and personhood, so that when an injury or an insult occurs to the river, we can say “There’s an injury and insult to the river, we don’t have to prove that it’s having a direct injury or insult to a human being or a person or an entity,” and we can litigate it based solely on that insult or injury to the river.

DJ: So, that’s all great. And this is a smaller example, but when I used to file timber sale appeals against illegal Forest Service timber sales, if the Forest Service would turn us down administratively, then we would have to sue. And this was a problem we ran into quite a bit, if they’re doing a clearcut, somewhere in the backcountry where humans don’t often go, we would have to show how this would harm us living in Spokane. And so we often had to basically do some legal gymnastics in terms of “Oh, we’re going to go out and look at it. We might go hiking there someday.” And it always struck me as really extraordinary that whether I do or don’t go hiking in that place, is more important than whether the trees are standing and it’s still habitat and, y’know, if they cut it, it may slump into the river. And it just struck me as always really weird that my hiking there was more important than the actual existence of the forest. You see what I’m trying to get at?

JFW: I see exactly where you’re going with this. Let’s tie this back to the history of American law.

Our law is based on conceptions of property. That’s really what it is. And our constitutional rights, the story of our constitutional rights, has been one of taking these basic property conceptions, and trying to extend them out to other sentient and living entities. So, there was once a time in our law when human beings were property. And much of our law was based in that, and you would have to perform all sorts of mental gymnastics to show why a slave should not have to be, should not be mistreated.

So that’s gone on in our law, and now, what’s been interesting to me, is let’s look at corporations. We’ve had the rise of corporate rights in this country, so that corporations in many ways, effectively, because they have the resources to be able to litigate whatever they want, can have more rights on the ground than most poor people, and therefore people, on the planet. So what we’re trying to do here is – and a lot of people don’t like this because if I say “corporate rights,” some people don’t believe that corporate rights should be cognized at all.

But corporate rights are going to be here to stay. They’re not going anywhere. We live in a capitalist system right now. I believe that may change, and we’ll come to live in a more humane system at some point in the future, but right now that’s where we’re at. And there are a lot of entrenched and highly powerful interests who want to make sure that we stay there.

So, using corporate rights as a model; if a corporation, which can be formed basically, I could do this in five minutes with a credit card online; can suddenly have some 4th Amendment rights, potentially 6th Amendment rights, to some small degree 14th Amendment rights. Then it’s not hard to envision that nature, upon which all of our lives depend, should have rights as well, that are independent of the fact of whether or not we get to go hiking around nature.

Anybody who’s ever spent any time in nature, I’d just like to say as a very basic point, anyone who’s ever spent any time in nature knows that they’re an incredibly living environment to which their minds and, I very rarely use this term; souls; can be integrated and changed, in that we are part of something much larger than ourselves, and the experience of being in nature is a kind of humbling experience that gets us out of this delusional self-importance that we’re all engaged in, and kind of puts us in a better place. Let’s put it that way. Mentally, for whatever we need to do in this life.

So, nature being this incredibly powerful force upon which we depend, it seems to me just logically that if corporations, which exist only for the purpose of profit and very frequently exploitation of nature, can have rights, then we are in this phase of a immense disparity where corporations can find all sorts of property-based ways to exploit nature, to exploit communities, to do whatever they need to do to exploit the political system, to do whatever they need to do to ultimately just make a buck; then we need to balance this out a bit by looking at these incredibly dynamic living systems that, on their own, will thrive, survive, and are beautiful and powerful, and that, with or without human beings, will flourish. And probably flourish even better without human beings, but we’re here too. So we’ve got to find a way to integrate those systems themselves upon which all of this life depends, including human beings and corporations. Note that in itself, they should have rights that are independent of these things.

So my hope in doing this – I look at this in a pragmatic sense, really – is that if corporations and profit-based entities which exploit nature – some are more responsible than others, but at the end of the day, they see nature as a tool to make money on whatever basis. If they have all sorts of legal strategies and rights that are afforded them, it really just makes sense to me that nature, and natural ecosystems and the Colorado River, have the same sort of rights so at least there is a balancing here of interests. And, that the law – this goes back to that procedural defect that I was talking about – that the law fix it. So that the law isn’t just mute and moot when it comes to addressing what we know ultimately could result in extermination of life on the planet, which is global warming and all the various forms that are coming out of the exploitation and dis-ease of nature that is being incurred upon it currently by large-scale corporations, which have far greater rights than this much more dynamic ecosystem entity that they are using to exploit, to make money. So this is about a balancing, about fixing the law so the law will have something to say about this ultimately.

DJ: So, don’t get upset at the stupidity of this question …

JFW: I’m already upset by it, Derrick.

(both laughing)

DJ: But so … just so we’re 100% clear, what you’re saying is that corporations have a voice, individual human beings have a voice, and, you know, we can argue about who has a greater voice with that, it wouldn’t be very much of an argument …

JFW: Sure.

DJ: But what you’re saying is that the Colorado River itself, or Pike’s Peak, or Long’s Peak, or prairie dogs, have zero voice whatsoever as themselves in the current legal system in the United States. That’s what you’re saying, right?

JFW: Yes, that’s correct. And somebody listening is going to say “Well, what is a prairie dog” – so first off, let’s take this one place. So yes, so the Colorado River has no legal voice. Which means that, as you said earlier, that people can demand 120% of it, and it could be drained and killed, which ultimately has deleterious effects on all the ecosystems and humanity around it. We know that. The rainforest itself has no voice. It’s starting to get a voice. But the rainforest has no voice, and so it can be demanded of, and extracted and exploited by corporations who do have a voice. So there is a balancing in that.

Now, I want to get to the second part of this, of where I was trying to get to. Is you say “well, prairie dogs. They don’t have a voice. Well, there’s a lot of entities and people in the law that don’t have a voice. Like children don’t have a voice. And so they are appointed, very often, GAL’s, guardian ad litems, they are very often appointed somebody of a fiduciary relationship, somebody who can represent them in court; an executor; a trustee relationship when it comes down to trusts. Things like that. The law is replete with well-established examples of one entity or one person standing in the stead of an entity that can’t go into court and argue for itself.

DJ: So a four-year-old cannot file a lawsuit, but a guardian for a four-year-old could act in the interests of the four-year-old.

JFW: Same as in the way that an executor could act in the interests of a trust.

DJ: Okay. Great. Thank you.

JFW: So people say – I’m trying to assume what the criticisms of this would be. I think that’s always fair and it’s a good exercise. Somebody might say “a prairie dog, okay fine, give ‘em a voice and let them come into court and make prairie dog arguments before the court.” Well, that’s a dumb argument. Because, getting back to what I was saying, is that there are all sorts – the law is replete with all sorts of examples of one entity or person standing in the stead of an entity or person that does not have a voice, and that goes back to corporations. A corporation doesn’t have a voice. And so you have to appoint a counsel, a litigation counsel, and all that sort of stuff, to come in and be the voice of a corporation.

In the same way, the Colorado River – and this may be a little bit poetic for some people, but l think anybody who’s ever been around it; canoed on it, camped, just sat there next to it – it certainly has a kind of voice. It certainly has a kind of existence. And that kind of existence and voice has been recognized in a lot of indigenous culture that’s out there. And the laws of indigenous culture. One of the things I want to talk about is the Te Ara Whara doctrine. Which is a really important name, which is what inspired me to get involved in this area of law. It comes out of New Zealand. And Te Ara Whara was based upon the Maori down there who were one of the indigenous peoples, the main indigenous peoples of New Zealand. They have a different relationship to nature and natural ecosystems than, say, white colonial capitalism, for lack of a better term. They don’t have a relationship like “Look, there’s a bunch of land, let’s take everything we possibly can out of it in order to make the best buck we possibly can.” I’m not saying everybody has that relationship to it, but that tends to be the relationship of European capitalism to property and land.

Well, indigenous folks, they have had at certain points – and this isn’t to lionize one group over the other group, I think that’s – playing this kind of identity politics has its own failure to it – is they have a different relationship. So the Maori or the Te Ara Whara had the New Zealand legislation look at this and say okay, Te Ara Whara, which is this incredible ecosystem with rivers, forests, in New Zealand; has its own standing and rights to cognize its own injuries. And so this has also begun to happen with Ecuador, with Pachamama as it’s called in Ecuador, with India, the Ganges River, and in Columbia. So what we have there is – this is part of what we’re looking at, and I think there is a really interesting opportunity to have a fusion here of approaches to this – is but in places where there remains an indigenous tradition in the law that is still respected, that indigenous approach and relationship has been codified in Ecuador for example, and say constitutional law, I think it’s amendments 77 through 81. Has been codified there. Saying that Pachamama has rights. In New Zealand, the New Zealand legislature recognized the Te Ara Whara ecosystem as having rights, and now the courts in India have recognized the Ganges, amongst other entities, as having rights.

And in India it was interesting, because the order on that had to do with the relationship between the people and the Ganges River.

Now one of our problems here in the United States, and this kind of goes back to our initial point, our initial point of answering this question, is that European-American capitalism doesn’t truck very much with an indigenous approach to nature, with an indigenous relationship to nature. They couldn’t be more antithetical to each other. One views it as an integrated relationship, while the other views it as an exploitative relationship where everything is done in order to make a buck and nature exists to make people rich. And especially with this moron that we have as President of the United States right now. That aesthetic, that approach, that strategy is the order of the day. It’s “nature just simply exists to make people rich.” And to be owned, and to be exploited and taken for all it’s worth.

So, what we have to find here, in the United States, is we’re not going to do very well strategically if we rely upon an indigenous approach. The courts aren’t going to listen to that very much. It’s not going to be very persuasive. So, we want some of that indigenous approach to nature, and the integral, the integrative way that other people and other traditions have viewed nature, but at the same time, we want to approach this pragmatically, which goes back again to what I was talking about, procedural defects, and addressing it that way. But also addressing this in that there is just too much of a disparity in the power relationship between corporations right now and nature. And we need to balance that out a little bit. And also the courts right now are just silent. They cannot, even if they want to, cognize harms to nature because we have, as lawyers, a very difficult time showing the causality between what we know are obvious harms to nature, and the Colorado River and ecosystems, and showing how these obvious harms directly result in harms to human beings.

So, what we want to do is take a pragmatic approach, based upon what else is happening around the world, and apply it so the courts really at the end of the day will feel empowered to, and have the ability, to address this huge black hole in our law, which is addressing harms and insults to nature that we know will ultimately result in massive harms to humanity, but that are also unto themselves harms to entities, ecosystem entities and natural communities that themselves, because they are living things, they are interdependent ecosystems, and they are the basis of all life on the planet, and they are the planet – should not be harmed.

DJ: So – this is all great.

When we talk about rights, it becomes necessary to talk about rights for what? So, for example, I presume that, as an American citizen, I have the rights to life, liberty and the pursuit of happiness, I have rights against unwarranted search and seizure, you know, all those – I’m probably using wrong terms, but those things we understand. I do not have the right, for example, to bop a random person in the nose, I’m presuming. What rights specifically are you asking for, from – what rights are you asking to be recognized? The Colorado River would then have the right to – fill in the blank.

JFW: That’s why it – it gets down to, initially, to some – I mean, this is all exciting stuff, and it would be revolutionary in American law, and then – I want to correct one thing, is this suit will be filed middle-end of September. So that’s where we’re going with that. And that would be the first major suit of this kind, asking for the rights of nature to be recognized filed in American jurisprudence.

DJ: That’s great. And thank you so much for doing that.

JFW: Sure, sure. So, going along here, what rights do you want? Well, this is where it gets a little boring, it gets back to that defect I was talking about.

DJ: Oh, wait. I got another question about that, too. You’ve said a couple of times; this is a procedural defect, which makes perfect sense to me, but you said people object to the phrase “procedural defect.” What is the objection? It doesn’t seem objectionable to me.

JFW: That’s interesting. I’m glad you bring that up. The answer portends to be rich. Is: We are dealing with the American jurisprudence and the legal system. All right? Now, you’re not allowed to just walk into court and say “Hey, there’s an environmental crisis out there, do something. This is terrible, look at what’s happening. This is a nightmare, it’ll all result in some kind of, you know, environmental and existential crisis for all of humanity unless we step in now and change this.” Which it all will.

You do that, you get thrown out of court. Moreover, is if you do that, you’re going to be probably penalized and sanctioned by whatever the opposing party is, which is going to be a corporate-influenced state entity, the state, corporations, those sorts of things, their relationships betwixt each other, because they don’t want you to just be able to go in and make vague and general arguments about this. Because if you could, then things would be changed really rapidly in American life, and all sorts of violations would be cognized.

So what you have to do, is take this system, that doesn’t like change, that isn’t really that organic and alive, and find a way to frame the issue in a way that the system can understand. And the way we frame that is by saying “Hey, there’s a procedural defect in that nature doesn’t have standing to bring a lawsuit when we know that injuries are occurring to nature all the time, and so therefore, even though this is happening right outside the courthouse doors here in Colorado, the courts are silent. Because we cannot prove up the direct causality regarding danger, insult and injury to human beings. Because even though we know that insult and injury to human beings is occurring as we speak, in the form of things like global warming and destabilization of the environment.”

So the courts are just rendered innocuous, are rendered helpless due to this procedural defect, which can be characterized as saying that nature needs standing. That’s the right it needs.

People out there in the world will say Hey! You are taking a procedural – what is an existential and environmental crisis, and I don’t object to the word holocaust, or species exterminations – and extinctions are happening every day. We are going down! (Laughs) We’re going down. There’s really no way around it. We’re in trouble. You’re taking that, that’s like calling the Holocaust a procedural defect. It’s like calling American slavery a procedural defect.

Well, you know what? One of the reasons we tend to get our butts kicked so much, is because we have this kind of strange purity when it comes to our messaging. There really is a kind of purity, it’s kind of a dogmatic acceptability of whatever comes down that is acceptable here for those of us who are trying to advance things and really fight on the front lines of American law, culture and society, to be able to change what’s happening out there.

So, we sometimes have to be smart. About taking things that we know are crises. Taking things that we know are horrific and that are a nightmare, and that are a nightmare descending on us as we do this interview. And find the way to characterize and frame those things in a way that whatever system or culture or country can understand.

And when I said that this would potentially portend to have a rich answer to this question, is that I also think that we need to think about just talking real basically about terms to people, because I think people are ready to listen to us, about what’s going on. And there’s an environmental crisis that’s occurring as we speak. Corporations are exploiting nature, that exploitation of nature is hurting all of us. And so if we fix this procedural defect in the law, the environment that we depend on will have the ability to address, y’know, being drained and exploited and ruined, which means that we’ll have a way to be able to address being drained and exploited and ruined.

DJ: I completely agree with you. And basically anything that keeps water in the river, I’m for it. And it reminds me of something that Neil Evernden wrote about, the great environmental philosopher, he made up a legal case where; let’s say you’re in 1830’s South and there’s, someone is accused of a crime, and there are two sets of laws, one for people with a tiny percent of white blood, and someone with no white blood. And you have – your person is on the dock, and you can either (a) try to argue that they have actually one percent of white blood, in which case you might get them off, but you’ll reinforce the racist system, or you can try to argue that that system is wrong, and watch your client get hanged.

JFW: Yup.

DJ: I myself – there are many venues under which we can attack. One of the ways we attack *is* by changing the language, changing the discourse, but at the same time, as you said earlier, we live under the system we live in, and so we need to use the tools that are available to us now, as we also try to change some of those tools and destroy the other side’s, the enemies’ ability to use other tools.

So we need to approach on all fronts. That’s why I have no problem with the procedural defect approach. That’s great.

JFW: Yeah. Ultimately you want to do both. That’s what’s going to take a good argument and make it into a great argument, is you want to talk about the justice of the situation, and also you want to put it into a language that the system can understand. That’s it. So if you’re into reprogramming the system to some degree, you want to ultimately have a good program, and then secondly, you’re going to plug it in. If the system isn’t able to cognize what you’re talking about, then it’s not going to have any chance of actually entering into and launching the program off the cultural and societal platform that we currently all exist on today. So, I – go ahead, go ahead.

DJ: So you’re arguing that the river has standing on its own, but to get into court, don’t you have to have humans who are saying that they are harmed first, before you can get into, even walk through the door to make your argument? Am I misunderstanding?

JFW: Yeah. That’s a slight misunderstanding. So let’s look at this. This complaint – there’s a legal mechanism called “As Next Friend” and that goes back to what I was talking about with the guardian ad litem stuff, fiduciary relationships, executor relationships, trustees, things like that; is that the law is, again, replete with examples of entities that cannot walk into court and make an argument on their own. That’s it. Can’t walk into court and make an argument.

DJ: We all know that a four-year-old, again, that same example, no one has a problem with a guardian ad litem acting on their behalf.

JFW: Right. So, in this case, Deep Green Resistance is going to be the “As Next Friend,” because of the involvement in the Colorado River and the caring for the environment and the long-term commitment to maintaining the integrity of ecosystems and natural communities. They are well-positioned to, when there are injuries to the river, they are well-positioned to be able to bring those injuries to the attention of the court.

So, to get specifically to your question, that As Next Friend status doesn’t mean that the Next Friend, which in a child’s case would be a guardian ad litem but in this case is Deep Green Resistance, and I’m not trying to make a correlation between children and a complex ecosystem, it’s just the one I have to make with our law.

DJ: No, I understand, completely.

JFW: – is that the As Next Friend does not have to be injured directly, they just have to be in a position where they can be a fiduciary, and show, based upon values and prior actions concerns, that they are in a good position to be able to litigate injuries to the river.

DJ: I think that’s a brilliant approach.

So, I asked a question a little while ago, about what rights are you – is that in this lawsuit, that you’re also asking for the river to have specific rights? Or is that a different – is that a different part of this process?

JFW: Well, the river – so this fight, right now. You get standing, right? So here’s the deal. Standing is a big deal. To use a very technical, legal term; standing is a big deal. (Laughs)

So, once you get standing, then the entire panoply of possible causes of action are extant and available to you. So, let’s look at tort causes of action. Assault. Battery. Let’s say that somebody decides that, y’know, some corporation decides, like Nestle likes to, they’re going to unnecessarily drain the river using plastic bottles. Drain the river that is already being taxed. Well, I would view that as a battery. I would view that as an assault. Right now, the river cannot bring the assault and battery, because it doesn’t have standing. But if it did, and that’s the fight that we want to bring, then we could file a lawsuit to someone who, say, just decided, because they were completely irresponsible or selfish, just to dump a ton of crap into the river. Toxic crap, real crap, I don’t care. And then say “That’s a battery upon the river. That’s wrong. You can’t do that. You can’t cause an injury. So however injuries are cognized in our current law, and our law has tons of ways that injuries can be cognized, once you have standing then you have access to all that stuff, all those causes of action.

It’ll be interesting. It’s kind of fascinating in a creative way to see where all that could go someday. I mean, y’know, how would you cognize potential infliction of emotional distress, or something like that.

But that’s way out there, at this point, but what’s there for certain are things like battery. Things like, oh, I don’t know, tortious interference, potentially. Which is an interesting cause of action. You can start listing a lot. Conversion. Once you enter the door, the standing gets you into the door of the courthouse, and then once you’re in that door, then you can pick whatever is appropriate to make your action colorable. And once we have that standing and rights on behalf of nature, then we’re good.

DJ: So, obviously the big fear is that this culture kills the planet. So we’re leaving that aside and we’re speaking specifically about this case that you’re bringing. So what are your biggest concerns or fears about it and what are your – what is the worst case scenario on this suit and what is the best case scenario?

JFW: Well, the best case scenario is that we change the world. I mean, it could be that significant. I don’t say that, y’know, off the cuff. Is that if nature had rights suddenly, corporations would have to take those rights into consideration, rather than just manipulating property law and first-right type of law on the river, and buying their way into exploiting and damaging nature in the name of making a profit. Suddenly, there would be rights there. There would be a balancing of power dynamics and interests between large and well-resourced entities and the nature that they exploit for profit. So that’s one. That’d be the best and it would change the playing field. I feel like also – it would certainly change the legal playing field by expanding it and making the courts have a voice in this instance, and I kinda think they do want a voice. I’m sure that there are judges out there, Derrick, who are really frustrated. Who, when they look at this thing, and you know, and they have to dismiss a case, that they know the river’s being poisoned, they know that ultimately poisoning that river’s going to have a negative effect on people, they know that thirty years from now some people are probably going to end up with tumors and leukemia.

But they nonetheless have to dismiss the case because they cannot show how that poisoning of that river happened at that time to directly hurt people. So it goes. I’m sure there’s some frustration out there. I’m sure the courts have thought about this. And in fact, I want to address this now, is that Judge William O Douglas, in, what was it, Sierra Club v. Morton? ( )

In his dissent, talked about the rights of nature, so that this isn’t something that we’re just inventing. This has been there in American history. This – talking about the rights of trees. Talking about the rights of rivers. And at a certain point, some of our more visionary justices have said; “Hey, why are we jumping through all these hoops? Why are we leaving in place all these procedural defects when what we really know is that if you damage the environment, you damage people. And when you damage the environment, you damage the environment.”

So, it’s there for us. And what it’ll take is just a court that has a bit of vision to it, has a bit of strength, is tied into the issues of our time, and has concerns that look outside the four walls of, y’know, whatever office they tend to occupy in whatever courthouse at the time.

Now, on the negative side of it, is that you are challenging, you know, a thousand years basically of property law by bringing this up. And more importantly, you are challenging the current *wonderful* legal situation that corporations exist in, in America. So in challenging that, you are rattling one heck of a cage, my friend. You’re rattling one heck of a cage. Because if this were to open up, like I said, all of a sudden corporations are put in check. So if nature were to have standing to bring direct insults and harms to it, ecosystems, into court, all of a sudden that exploitation for profit would not be so – would not be done with such impunity, put it that way.

So, what the corporations like to do in these cases, and, y’know, very often our states take their clues from corporations, is that in the response to this effort, and they’re aware of the rights-of-nature arguments that are going on out there right now. You know, they’ve been pretty successful in beating down standard environmental law for some time.

But they’re aware of what’s happening in Colombia, Ecuador, maybe New Zealand, India. They’re aware there’s this new law kind of starting to emerge. And so when they see this happening, when they see somebody asking the court to recognize the standing of nature, to recognize the rights of nature, they have to, *have* to, because this is going to go into the heart of their advantage and the heart of our system, they have to come hard.

And so come hard they will, my friend. They will come hard, they will seek attorney’s fees. They will try to seek sanctions. They’ll try to probably put some focus on yours truly. They’ll try to, you know, they try to make it real personal. They tend to be fairly dirty in the way that they work. Instead of, you know, these are human beings who live in the world, and depend on water, and probably – what’s funny to me is they probably, y’know, when you’re hiking, this has happened to me before, is that you’re out there hiking and you stop somewhere, and you, you know, you start making your sandwich or whatever. I like to get outside a lot. And you run into a corporate lawyer.

And it’s very often that some of the healthiest people that you know, who enjoy nature the most, are the ones who are really embedded in the system and facilitate the way that it exploits nature. And those’ll be the very same people who probably love kayaking, probably love skiing, to the degree that skiing’s okay for the planet, and – sometimes I’m not sure if it is. But they’re out there, and these are the same people who probably have pretty nice lifestyles out here in the west, because they can afford them, because they’re paid well.

And they probably like to get out there, and you know, be part of nature because they have stressful jobs and all that stuff. They’re the ones who are going to come hard, because they’ll be instructed to come hard. And they’ll probably try to sanction me. And they’ll probably try to get some money out of the situation, and to send a message that they don’t want this to be the start of a trend. They don’t want other attorneys to look at this and say, “you know, that rights of nature stuff is pretty right and it does address a procedural defect, and it really does go after some real problems in our law, and it may be the way to save the world.”

And that could happen. But you know what? They cannot let other people look out there; attorneys, entities, concerned citizens, environmentalists, whatever – whatever it is. Smart people who just know what’s going down – look out there, and say “There’s an example. Let’s follow that example. Because it seems like that, that got a little traction, that rights of nature lawsuit in Colorado District Court. That got a little traction. And so now let’s take that traction and let’s work with it. Let’s get out there. Let’s maybe do the same thing, based upon their model.”

Y’know, it’s like with the homeless class action. Everybody told me – I represent the largest homeless class action in US history, here in Denver, for something called the homeless sweeps. And when I did it, everybody told me nobody would take the case, y’know, because it was too crazy, too out there, etc. And I said “You know the way I’m going to litigate this. I’m going to litigate this thing aggressively. I’m going to use the tools we have in the law and I’m going to do it in a way that corporations would litigate it. That people with resources would litigate it.” So instead of just taking up a couple of homeless people that had their property deprived, I decided to file a class action on behalf of homeless people. And that class action was actually granted. And so – and that has set up a model in cities all across the country where the poor and dispossessed are being hurt and having their property taken from them, in the name of usually gentrification, and, again, it’s all the same fight everywhere, Derrick. It’s all about people making a buck, and so trampling on nature and trampling on human beings in the process of doing that.

So, once we did that model, that model stands as an example for what can happen in other cities. So what they have to do is get in there, and when I mean “they,” I’m talking about the other side, the states, the corporations, they kind of work in tandem with one another, and they have to get in there, they have to make an example of guys like me. And they have to, you know, really “Hey, he’s crazy, radical,” all that kind of fun stuff, that always comes in an attempt to marginalize, because they have to. They have to find a way to marginalize these kinds of efforts, because if these kinds of efforts get traction, then they’ve got a real problem, because (then you’re) going into the very foundations of the system they benefit from so much.

DJ: Well, that is so great. I want to thank you for being on the program, I would like to thank listeners for listening, my guest today has been Jason Flores-Williams, this is Derrick Jensen for Resistance Radio on the Progressive Radio Network.

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No Responses — Written on September 10th — Filed in Interviews by Derrick Jensen

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