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Some nonhuman entities
are more equal than others.

by Carl Pope

Sierra Magazine, Nov-Dec 1996

Many Sierra Club members fondly recall William 0. Douglas, the late Supreme Court Justice and member of the Club's Board of Directors, for his ringing argument that "trees should have standing," the right to be represented in court. Unfortunately, Douglas' argument was made in a dissent, not a majority opinion. Although the Club was ultimately successful in Sierra Club v. Morton in blocking the Disney Corporation's efforts to build a ski resort at Mineral King (now part of Sequoia National Park), it was allowed to intervene only because its members hiked in Mineral King. The valley itself its trees, streams, and wildlife was denied standing.

Courts exist to resolve disputes among human beings, the majority ruled, not between humans and trees. To this day, environmental groups go to court on behalf of their members, not the wild places they seek to save. (The Sierra Club Legal Defense Fund did include an endangered Hawaiian bird, the palila, as a plaintiff in a lawsuit several years ago, but was careful to include humans as well.)

Some nonhumans, however, are welcome in U. S. courts. In 1886, the Supreme Court declared corporations to be "legal persons" under the law. Corporations were granted not only standing to sue, but virtually the full range of rights granted to people. For example, corporations are allowed to spend unlimited sums to defeat environmental initiatives, because campaign spending limitations have been ruled to interfere with their right to free speech.

Like people, corporations cannot be restricted in their ability to acquire other businesses (except within the increasingly ignored boundaries of the Sherman Antitrust Act). In an effort to preserve family farms, for instance, some states barred corporations from owning farms only to have those prohibitions struck down by the courts.

In another famous dissent, Justice Douglas argued that the decision to make corporations persons under the law was "without logic, history, or rationale." In early America, state legislatures could both grant charters to corporations and revoke or limit their rights. But by the end of the 19th century, an era in which federal courts consistently sided with powerful economic interests, corporations were given full constitutional rights while their actual human owners and directors were absolved of liability for their debts and responsibility for their actions.

Limiting liability is, after all, the primary purpose of the corporate form hence the British shorthand for a corporation, "Ltd." There is little else that is limited about corporations, however. Since they exist to maximize profits (shareholders can sue them if they don't), they are compelled by their nature to grow and grow, consuming more natural resources and encouraging more consumption. This has made them major obstacles to the defense of clean air and water and the preservation of wildlife habitat. It's time for environmentalists to join the debate on the proper function of these economic machines in a democratic society. The destructive role of unchecked corporations is amply demonstrated in Russell Mokhiber's Sierra Club book, Corporate Crime and Violence (1988).

And the people are ready to listen: a June poll for the Preamble Center for Public Policy revealed a striking increase in public anger at corporate behavior, with seven out of ten Americans blaming corporate greed for layoffs, declining wages, and the economic problems of the middle class. How can we make these gigantic economic engines accountable for their actions? Rejecting the concept that they deserve the same constitutional rights as individuals would be a powerful first step.

Environmentalists should urge closer scrutiny and more effective regulation of corporations, in their overall behavior and governance as well as their environmental performance. Society should treat them as what they are forms of business organization, not individuals. At the very least, we should remember William 0. Douglas and treat the natural world as well as we treat fictitious entities. True, trees are not people but neither are Exxon or DuPont. One can certainly argue whether grizzly bears ought to have particular rights voting seems inappropriate but it is hard to argue that corporations deserve the protections accorded to living, breathing individuals while entire ecosystems lack the legal standing to be represented in our courts.

If we're going to grant standing to fictitious entities, we could make the law a more reliable protector of everyone's long-range interests by opening the courthouse doors to the salmon and the sequoia. By doing so, we might even see Justice Douglas' vision translated from the text of his dissents to the fabric of our society.

Carl Pope is the executive director of the
Sierra Club. He can be reached by e-mail

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