Rights of Nature Included in Proposed Plymouth Town Charter

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The Charter Commission has included a so-called “Rights of Nature” reference in our proposed new charter. Specifically, the preamble of proposed charter states that the purpose of Town government is:

     2. To provide its citizens with an efficient and benevolent government that supports creation and maintenance of equitable housing, provides education and employment opportunities; ensures public health and safety and; is in harmony with, balanced by and protective of our natural environment, including the Rights of Nature. [Emphasis Added]

The proposed charter does not define “Rights of Nature”. However, by capitalizing the term it does indicate that it is intended to be a reference to a specific requirement, not just a generalized ideal. This is particularly so given the inclusion of the term “Rights of Nature” in the Town Charter as proposed (following the words “including the”). By distinguishing it from the aspirational statement “protective of our natural environment”, it would be assumed to have an independent meaning.

This is not to suggest that this term has a defined meaning merely because it is capitalized. Arguably the term “rights of nature” has been sufficiently used in the legal lexicon to have a defined meaning whether or not it is capitalized.  Such definition is based on the standards of the groups seeking to advance its principles, their efforts to encapsulate this particular doctrine into law, the court cases addressing those efforts, and scholarly publications.  

Moreover, the law holds that there is no such thing as superfluous wording in a statute.  As such, whether or not it is capitalized, its inclusion in a charter or bylaw indicates that it has meaning.  Therefore, as the meaning of this term has not been defined in the document, it is subject to interpretation by the courts according to the law of statutory construction.

Massachusetts holds that a statute is to be interpreted "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Commonwealth v. Galvin, 388 Mass. 326, 328 (1983), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975). The courts first look to the plain language of the statute, see, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985), but also seek guidance from its legislative history, see Oxford v. Oxford Water Co., 391 Mass. 581, 587-588 (1984), quoting Commonwealth v. Welosky, 276 Mass. 398, 401-402 (1931), cert. denied, 284 U.S. 684 (1932), the language and construction of related statutes, see, e.g., Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 247 (1993), and the law of other jurisdictions, see, e.g., Commonwealth v. Melton, 436 Mass. 291, 296-297 (2002); Commonwealth v. Donovan, 395 Mass. 20, 29-30 (1985). 

Again, this means that where a term is included in a statute or regulation without expressly defining it, it is up to the court to decide what was intended.  To do so, they will will look first to ordinary language, and where that is not clear, to other sources to determine the legislative intent (referred to legally as extrinsic evidence).  

In this instance, the most likely source the courts would look to in order to determine such intent would be the presentation made to the Charter Commission by the Center for Democratic and Environmental Rights.  That is because the CDER made a public presentation, was included with the Commission's Working Documents, and is the only material which references the term.  As such, it would be possible for someone to argue, and even for a court to conclude, that the definition included in those materials was the definition the Charter Commission and the Town intended to adopt; which is that that ecosystems and natural communities are not merely property that can be owned. Rather, they are entities that have an independent and inalienable right to exist and flourish. Accordingly, adopting the Rights of Nature as part of our charter has the potential to legally change the status of ecosystems and natural communities to rights-bearing entities.

The effect of granting such rights is that anyone could challenge any activity which they contend violates “Nature’s” rights – which covers everything from constructing a new building down to expanding an existing septic system. If this sounds vague and confusing to you, you are not alone. That is also why efforts to enforce these types of rights have been regularly struck down by the courts throughout the United States.

The seminal case on the subject is Drewes Farms P'ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020).  In that case, the City of Toledo (the “City”), citing to its right of "self-government in their local community", enacted the Lake Erie Bill of Rights ("LEBOR") as an amendment to its City Charter. LEBOR provided for the right of Lake Erie and its watershed to "exist, flourish, and naturally evolve".  It imposed on those violating such rights “the maximum penalty allowed under Ohio law” and gave each resident the right to seek enforcement.

Concerned that such regulation could adversely impact its operations, a private landowner brought suit against the City. The State of Ohio then intervened, joining the landowner against the City. The City made several arguments in favor of its right to enact this provision, all of which were rejected by the court. 

First, the Court ruled that opened ended ‘rights of nature’ which allow for civil enforcement or criminal penalties do not meet Constitutional due process requirements, stating:

LEBOR's authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning. Under even the most forgiving standard, the environmental rights identified in LEBOR are void for vagueness.

Next, the Court rejected the argument that the City had the authority to enact such restrictions, stating that “t[h]e right of Toledoans to ‘self-government in their local community’ is impermissibly vague as well.” That was because the City sought to create rights which did not exist with the Ohio State Constitution. As a result, the Court held that “[l]ike LEBOR's environmental rights, this self-government right is an aspirational statement, not a rule of law.”

Finally, the Court rejected the argument that only those provisions which are unconstitutionally vague be invalidated, but that the rest of the provision should remain in force. The Court noted that the sum and substance of the provision was the enforcement of unspecified rights, and once those “rights are stripped away, the remainder is meaningless.”

Accordingly, after protracted litigation, the federal court struck down the entire provision as being unconstitutionally vague, and therefore legally unenforceable.

While the Dawes Farm case was the first in the United States to address the broader assertion of legal rights on behalf of nature, the environment, or an ecosystem, its holding was consistent with other court rulings from around the country rejecting efforts to enact similar types of provisions, even those narrower in scope (such as the prevention of fracking).[1] That is because, generally, courts have found these types of provisions to be both overreaching and vague. 

Typically, efforts by a locality to impose broad restrictions on the environment have been rejected by the courts under state law as being violative of the preemption doctrine (meaning another authority’s regulations take precedence) and exceeding limitations on local authority (meaning the municipality did not have the legal ability to enact such regulations). They have also been rejected on federal grounds under the supremacy of federal rights guaranteed by:

     The First Amendment protection of the right to petition the government for redress, including in court;

     The Fifth and Fourteenth Amendment rights to equal protection of the laws, which guarantee that those similarly situated shall be treated similarly and prohibit irrational distinctions between those protected;

     The Fifth Amendment right to Procedural Due Process, which requires notice and the opportunity to   be heard before a governmental deprivation of property or liberty and includes protection against laws which are so vague that they do not give fair notice of what conduct is prohibited and increase risks of arbitrary or biased enforcement; and

     The right to Substantive Due Process which safeguards the governed against arbitrary or irrational governmental action.

For these reasons, courts have held that these types of ‘Rights of Nature’ statements are appropriate as aspirational goals and general public policy language, but not as efforts to create regulatory and enforcement authority. The language in our proposed charter does not make that distinction.

Given the history of these types of provisions to date, there are significant potential ramifications to including any such language in our new Town Charter. Again, that is because our charter is a legal document, and as such all language included therein is assumed to have legal meaning. Therefore, including such language in the charter provides a basis for persons or organizations to use it as grounds for challenging otherwise permissible development. In essence, it could be used as a basis to completely override the Town Zoning Bylaw, Conservation Commission Regulations, and Building Code. Such challenges could take the form of an administrative or legal proceeding:

- by the Town or third parties against someone engaging in such development,

- by third parties against a Town board or department approving such development, or

- by someone seeking to develop property against a Town board or department for refusing such development based on enforcement of the Rights of Nature provision in the Town charter. 

Finally, it should be noted that in those instances in which a municipality has sought to enforce such provisions against a developer and been challenged in court, it has been at great expense to the municipality. That is because the challenges to these types of provisions are based on state and federal constitutional rights, and therefore, the award of legal fees for any successful challenge is mandatory.[2] 

[1]  Pa. Gen. Energy Co. v. Grant Twp., 139 F.Supp.3d 706 (W.D.Pa. 2017);

Seneca Resources Corp v. Highland Twp., 863 F.3d 245 (2017);

SWEPI V. Mora Cnty., 81 F.Supp.3d 1075 (D.NM. 2015);

Colorado Oil & Gas Assoc. v. City of Lafayette, (U.S.D.C. Den.) Case No. 13CV31746.

[2]  For instance, in Pa. Gen. Energy Co. v. Grant Twp., 139 F.Supp.3d 706 (W.D.Pa. 2017), the Court awarded Pennsylvania Gen. Township Energy Co. over $100,000 in legal fees and court costs, which was a reduced amount agreed to by the parties because award of the actual legal fees (over $600,000) risked bankrupting Grant Township.