The Colorado River is about to have its day in court – and not as the subject of a lawsuit, but as the plaintiff.
In a first-of-its-kind lawsuit in the United States, the state of Colorado is being sued by the Colorado River in an attempt to establish “personhood” for the river and its rights to exist, flourish and regenerate.
That’s according to representing civil-rights attorney Jason Flores-Williams, a figure familiar to Westword readers for his clashes with the establishment in both Denver and D.C. Flores-Williams is the same lawyer who’s representing thousands of homeless individuals suing Denver over its sweeps of encampments, and he’s also representing three of the defendants in the J20 inauguration protests, an antifa demonstration on January 20 in the nation’s capital which resulted in over 300 arrests (Westword was on hand to cover the protest).
The lawyer explains that the case is important because the Colorado River, which provides water to seven states, no longer reaches the sea, and that water is being extracted from the river at a rate that's 120 percent of its capacity.
Bringing a suit on behalf of the Colorado River is hardly a novel concept in the international arena; similar efforts in Ecuador, Colombia, India and New Zealand have established legal rights for natural resources in those countries.
“There’s a new international law emerging,” says Flores-Williams. “It’s leveling the playing field between corporations and nature, which traditionally has had no say. Now you have courts in India issuing judicial orders on behalf of the Ganges River.”
But in the United States, in order to file a suit on behalf of a natural entity like the Colorado River, you must establish that harm is being done to human beings, because the U.S. legal system is based around people. That’s why the suit, which is being filed in Federal District Court next Tuesday, September 26, lists a number of individuals as “next friends” of the Colorado River, including members of Deep Green Resistance, an environmental-justice organization that’s active in nine countries. Flores-Williams is also consulting with CELDF – the Community Environmental Legal Defense Fund – a nonprofit that provides legal assistance in environmental cases.
Flores-Williams compares the “next friends” that are listed in the suit to other types of legal custodians. “The courts have already established that you can have one entity legally represent another entity. The [next friends] in this case are similar to guardians ad litem, executors and trustees.”
He believes that the “next friends” legal maneuver will fulfill the necessary requirements to place the case before a federal judge, and that the Colorado River will be recognized as the plaintiff because “the well-being of nature and human beings are intertwined.”
But many questions and critiques will arise from the litigation, and the attorney says he’s anticipating them. “Corporations that work closely with the State of Colorado are going to see this litigation and are going to want to crush it,” Flores-Williams says. “They’ll probably go after me personally, which I consider a badge of honor at this point.”
Why should Colorado, and not any of the other states (or private companies) that utilize the Colorado River, be named as the defendant in the suit?
Flores-Williams suggests that Colorado’s current leadership may be more “enlightened” and less inclined to fight the litigation as compared to other states or corporations that the suit could have been brought against. Flores-Williams says that he’s not seeking damages in the suit, but instead hopes to establish a legal precedent that allows future cases to be filed on behalf of natural resources when it can be proved that they are being damaged in a way that favors corporate profit over the well-being of humans who rely on them.
As an example, he says such precedent would allow a suit to be filed against building a dam on the river, or against corporations like Nestle for over-producing plastic bottles; the cases would cite the rights of the natural resource to thrive and regenerate as part of the legal argument.
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Even if natural resources had rights recognized by the court, such cases wouldn’t be frivolous, the lawyer continues, because the the litigation still requires the burden of proving harm to humans. Hypothetically, Flores-Williams says, you couldn’t have a gopher sue a corporation (using “next friends” as the human representatives of the gopher) unless there was demonstrable harm being done to humans in the process.
Flores-Williams suspects that there are judges who are already sympathetic to the cause, frustrated at how difficult it is to sue on behalf of the environment. He mentions Justice William O’Douglas’s famous dissent in the 1972 Supreme Court case Sierra Club vs. Morton, in which Douglas argued that natural resources should be able to sue for their own protection.
“So we already have Supreme Court justices that have agreed with this,” Flores-Williams says.
Flores-Williams adds that he hopes he gets the "right judge" to hear his case when he files in federal court next week.