The Great Salt Lake is Disappearing… So Utah Bans Rights of Nature.

The Great Salt Lake. Image by Erin Testone.

Though Utah’s state government has failed to pull the Great Salt Lake from the verge of collapse, on March 20, 2024, Utah Governor Spencer Cox signed a law that prohibits the state and local governments from granting legal personhood to animals, plants, or major ecosystems like the Great Salt Lake. The law is a reaction to a growing rights of nature movement in Utah seeking to secure legal personhood for the Great Salt Lake. By passing this law, Utah joins Ohio and Florida in banning rights of nature as a response to popular, grassroots campaigns seeking to secure rights-based protections for the ecosystems all life depends on. Because rights of nature laws would disrupt corporate exploitation of the natural world, these legislative efforts to squash the rights of nature movement are entirely predictable and similar to historical efforts to squash other rights-based movements like the civil rights and women’s suffrage movements. Instead of giving up in the face of setbacks like these, rights of nature advocates must learn how to enforce rights of nature outside of courtrooms and the legislative process along with adapting tactics and strategies for the long game of transforming the legal system into one with a rights of nature framing.

The Great Salt Lake is on the verge of collapse. A recent study prepared by Brigham Young University, Westminster College, the University of Alberta, and Utah State University, among others, found that the Great Salt Lake is nineteen feet below its natural level since 1850. The lake has lost 73% of its water and 60% of its surface area. As the lake’s surface area shrinks, toxic dust formerly trapped on the lakebed is exposed and causes significant air pollution. The rate of the lake’s desiccation has accelerated since 2020, with a current average deficit of 1.2 million acre-feet per year. If this loss rate continues, according to the report’s authors, the Great Salt Lake “is on track to disappear in five years.” The Great Salt Lake has thrived for 11,000 years. Agriculture began reducing the lake’s levels in the mid 1800s. In less than two centuries, human activities will likely destroy this ancient natural wonder.

Using the best available data, the study’s authors estimate that 74% of the loss of the Great Salt Lake’s water comes from agricultural consumption, primarily irrigation of alfalfa and other crops. Mineral extraction from the lake accounts for 9% of the loss. Cities and industry account for another 9%, with most of this being used for lawns and other decorative plants. Climate change – which reduces runoff, and increases evaporation – accounts for the remaining loss. And, streamflow into the Great Salt Lake is projected to decrease in the future, further exacerbating the lake’s water loss.

Just like the Great Salt Lake is essential to human life in the region, the Great Salt Lake is essential to all life in the region. The lake and its wetlands are a keystone ecosystem that hundreds of species depend on. The lake is a crucial part of a major migratory bird route known as the Pacific Flyway and provides food for more than 10 million migratory birds. Nearly 350 bird species depend on the lake for habitat. Brine flies and brine shrimp living in the Great Salt Lake ecosystem are major food sources for these birds. As water flows into the lake dwindle, the lake’s salinity increases. Increasing salinity levels harm brine fly and brine shrimp populations. Recent studies show that brine fly populations declined dramatically in 2022 and predict that, when data is analyzed for 2023, it will show that brine shrimp populations declined in 2023.

Over the past several years, the Utah State Legislature has passed laws to ostensibly address the accelerating loss of the Great Salt Lake. 2022 House Bill (HB) 410 created a $40 million trust “to implement projects, programs, or voluntary arrangements that retain or enhance water flows to sustain the Great Salt Lake,” “improve water quality and quantity” for the lake, and “engage agricultural producers, local landowners, local planning authorities, and others to support the Great Salt Lake,” among other things. And, HB 242 requires providers of secondary water to install meters by 2030. However, all these laws fail to force cuts in consumption. And, according to the aforementioned study, “recent efforts have returned less than .1 million acre-feet per year to the lake” when “the lake needs an additional million acre-feet per year to reverse its decline.” These efforts are falling 90% short.

It is also very important to realize that these current policy efforts are tied to the existing system and that Utah water law and the existing legal structure make it very difficult to force Great Salt Lake water consumers to cut consumption. Water law in Utah, like in many dry western states, is based on a legal doctrine known as the “Doctrine of Prior Appropriation.” The doctrine contains two main tenants. The first tenant, often referred to as “first in time, first in right,” holds that the first person to make beneficial use of water is entitled to the first right to use the water over subsequent water users. The second tenant, referred to as “use it or lose it,” holds that a water rights holder loses her water rights when she fails to put that water to “beneficial use.” Historically, “beneficial use” has been interpreted to mean diversion and irrigation while conserving water is typically considered a waste that leads to the forfeiture of water rights.

In 2022, Utah passed HB 33, titled “Instream Water Flow Amendments,” to open the definition of beneficial use to include water rights holders leasing their water rights to conservation organizations who, in turn, allow the water to return to the lake without forfeiting the leased water rights. While this will allow conservation-minded water rights holders to give water back to the Great Salt Lake, it does not mandate conservation. It is highly unlikely that enough water rights holders will voluntarily allow enough water to flow back into the lake to return the lake to good health. This is true for several reasons. First, the use-it-or-lose it mindset is so still firmly entrenched in the minds of western water rights holders. Second, agriculture is a business. Most businesses exist to maximize profit. Using more water allows agricultural business to produce more crops and producing more crops means making more money.

Meaningful protections are also made more difficult by Utah water law’s treatment of the Great Salt Lake as property, instead of a living ecosystem with inherent rights to exist, flourish, and naturally evolve. Property possesses no rights while property-owners possess the rights to consume and destroy their property. Utah water law defines the Great Salt Lake as property, gives consumers who utilize the lake’s water “beneficially” the right to destroy the Great Salt Lake, and with that one can see why, in five years, the Great Salt Lake will likely be gone.

Recognizing that the Great Salt Lake’s fate is all but guaranteed as long as Utah water law continues to define the lake as property, “Save Our Great Salt Lake,” a grassroots group of Utahns, has been advocating for granting the Great Salt Lake its own rights. The group explains on its website: “Following the 2022 Utah Legislative session, frustrated by the piecemeal and incremental ‘solution’ proposed by our lawmakers, we began imagining what real protection for Great Salt Lake might look like and found ourselves enlivened by the Rights of Nature movement and the idea of Rights for Great Salt Lake.”

While rights of nature are commonly thought of as a new legal concept, traditional cultures have always viewed the natural world and the other-than-human creatures we share the natural world with as our kin as opposed to our property. Rights of nature provide a mechanism for transforming western legal systems to reflect the traditional ecological wisdom that has governed most human cultures for most of human history.

Rights of nature would grant nature the legal right to challenge the conduct of someone harming nature in court. As Supreme Court Justice William O. Douglas wrote in his famous 1972 dissent in Sierra Club v. Morton, this “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers…” If Utah had rights of nature laws, Utah citizens could bring a lawsuit on behalf of the Great Salt Lake with claims that irrigation, diversion, and pollution violate the lake’s rights of nature. They could ask courts to ban these activities to protect the lake’s rights and to order those responsible for harm to the lake to pay for the regeneration of the lake.

In 2023, Save Our Great Salt Lake shared a draft resolution for the rights of Great Salt Lake. The resolution declares that the Great Salt Lake is “a living entity, possessing fundamental rights.” Those rights include: “the right to continued existence, the right to a Lake water level sufficient to maintain ecosystem health, the right to sustain natural biodiversity, and the right to support a healthy balanced ecosystem.” If Utah recognized that the Great Salt Lake had the rights listed in Save Our Great Lakes’ resolution, these rights would conflict with water rights holders’ rights to destroy the Great Salt Lake.

The rights listed in Save Our Great Salt Lake’s resolution are similar to the rights “legal persons” possess in American jurisdictions. Under American law, human individuals are legal persons. But, so are corporations and other artificial entities. And legal persons – including artificial entities like corporations – are entitled to constitutional rights. In the context of protecting the Great Salt Lake, corporations can hold water rights like any other legal person. And, if the government attempted to revoke those water rights, which would be the corporation’s property, the corporation could invoke the 5th Amendment prohibition on seizure of property to protect those property rights.

Granting legal personhood and other rights to the Great Salt Lake would conflict with water rights holders current rights to consume the Great Salt Lake. So, the Utah State Legislature enacted House Bill 249 this year. HB 249 states: “a governmental entity may not grant legal personhood to, nor recognize legal personhood in…a body of water, land…a plant” or “a nonhuman animal” along with a list of nonhuman entities. Of course, HB 249 does not disturb the current inclusion of corporations as legal persons. HB 249 essentially makes rights of nature illegal in Utah.

Laws like HB 249 are a growing trend in the United States. After grassroots efforts in Ohio and Florida to recognize rights of nature gained initial successes, both the Ohio and Florida legislatures have banned rights of nature in their jurisdictions. Rights of nature were banned in Ohio, for example, after citizens in Toledo, OH used an initiative process to enact the Lake Erie Bill of Rights, which gave Lake Erie similar rights to those called for by Save Our Great Salt Lake in Utah. Ohio’s citizen’s initiative process allows citizens to bypass the state legislature to directly enact legislation and is an example of direct democracy. 61% of the citizens who voted on the Lake Erie Bill of Rights voted in favor of it, which is a large majority in electoral politics and a clear expression of the people’s will. In response, Ohio’s 2019 House Bill 166 declared that “No person, on behalf of or representing nature or an ecosystem shall bring an action in any” Ohio court.

Rights of nature advocates should not despair. The actions taken by the Utah, Ohio, and Florida legislatures are entirely predictable and mirror reactionary efforts to limit other rights-based movements. The quintessential example, perhaps, is the actions taken by southern states after the Civil War to curtail the 13th, 14th, and 15th Amendments (commonly known as the “Civil Rights Amendments) through enacting the Black Codes and Jim Crow laws.

Rights of nature advocates should realize, however, that those who profit from destroying the natural world, who derive their power from violating the rights of nature, are not going to stand idly by while rights of nature laws threaten their profits and power. If rights of nature campaigns in other jurisdictions gain momentum, then we can anticipate more jurisdictions passing legislation that prohibit rights of nature laws. As jurisdictions prohibit rights of nature, the question becomes: What next? Rights of nature advocates could stop waiting on courts and legislatures to enforce rights of nature and could begin to enforce the rights of nature themselves. They could physically dismantle dams and irrigation ditches, shut down oil refineries, block clear cuts, and remove pipelines. Sooner or later, of course, men and women with guns and heavier weaponry will arrive to stop the enforcement of rights of nature while protecting the destruction of ecosystems like the Great Salt Lake. If the Great Salt Lake only has five years left, rights of nature advocates must quickly learn how to navigate the violence that the government and corporations can bring to bear while protecting the lake.

The road to any ultimate victory for rights of nature will require protracted struggle and rights of nature advocates should anticipate that more laws banning the rights of nature will be enacted. That does not mean rights of nature advocates should give up; it means that rights of nature advocates must learn how to wield political power beyond courtrooms and legislative buildings. More confrontational tactics will be required. In Utah, where the Great Salt Lake is on track to disappear in less than five years, this lesson needs to be learned immediately.

Will Falk is a biophilic lawyer and writer. He works to advance the rights of nature with the Community Environmental Legal Defense Fund (CELDF). You can follow his work at willfalk.org.

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