A Voice for Nature

The rights of nature movement is gaining momentum all around the world. With the decision of the Landgericht Erfurt on 2 August 2024, in which it ruled that subjective rights of nature could be derived from the European Charta of Fundamental Rights, the movement seems to also have set foot in European courts. While the German decision seems unconvincing, rights of nature have already won several times in Latin American courts, most recently in the case of the Machángara River in Ecuador. Regardless of whether the German decision will pave the way for rights of nature in Europe, their realization will ultimately depend on nature being represented before a court of law or another state body, even parliament.

This post will only discuss the representation of nature before courts, proposing environmental ombud agencies akin to the Austrian Umweltanwaltschaften. Despite some shortcomings in its Austrian version, this institutionalised form of representation has the potential to give a firm voice to nature, thereby protecting its rights and facilitating climate change litigation while simultaneously deflecting the risk of acti popularis.

Nature’s rights and needs

The idea of giving nature subjective rights seems tempting as a solution to our current environmental crises, especially climate change. After all, one of the biggest (procedural) hurdles for many climate litigants is the problem of having to assert an immediate infringement of a subjective right. While this procedural restriction is meant to avoid acti popularis, it effectively becomes an insurmountable hurdle for climate litigants as the infringement of their subjective rights are only going to be severe enough in the years to come. The story would be different for subjective rights of nature, though, as rising green house gas emissions or the loss of biodiversity could directly infringe nature’s subjective rights. But how can nature exercise its subjective rights? It seems clear that it needs some form of representation.

There are several possibilities that range from any person being able to represent nature to specific organs or institutions, which themselves could vary from anything between a citizen assembly and a specialised council. This post focuses on one specific form of institutional representation: an environmental ombud agency similar to Umweltanwaltschaften (literally translated: “environmental lawyers”) in Austria. To assess their potential, they need to meet minimum requirements for an effective legal representation of nature.

Minimum requirements

First, nature should have the same procedural rights as humans. Rights are meaningless if they cannot be exercised. If we are serious about rights of nature, effective mechanisms for exercising these very rights are necessary. This includes the same rights of legal standing as humans, with no restrictions on subject matter or court. Hence, at least the right to bring a claim in any court as well as the right to appeal until the last instance court needs to be available to nature. Of course, this only applies if it can be substantiated that nature’s subjective rights may be infringed.

Second, and this is the tricky part, we need to find a system for a voice of nature that is both able to truly speak for nature and also practical. On the one hand lies the difficulty of how to assess what it means to “truly speak” for nature while preventing to view its needs from an anthropocentric perspective. What are nature’s concerns, grievances, wishes, aims, etc? How can we, as humans, determine them? This is a huge debate. It essentially deals with the question of how to understand and relate to non-human communication. One proposed possibility, which will not be examined further here, could be Intuitive Interspecies Communication (IIC) (see for a short introduction and further readings here). On the other hand, the voice of nature needs to be designed in a practical way. Here, an environmental ombud agency could be a good start. In Austria, so-called Umweltanwaltschaften already serve this exact role, although with certain limitations.

The Austrian Umweltanwaltschaften

The first Umweltanwaltschaft was established in 1985 in the province of Lower Austria, after an increased debate in the 1980s about environmental matters and the establishment of the federal ministry for health and environmental protection (for a detailed history of the Umweltanwaltschaften see here). Today, all nine provinces have established Umweltanwaltschaften. They are independent state ombud agencies and governed by state laws. The specifics of its institutionalisation and their rights and responsibilities vary. All but one (Vorarlberg) share the right to standing. However, this right is limited to standing before administrative courts (and even to first instance courts only in Tyrol), and to the individual state level. This may not be a limitation per se as some areas of law, such as building or planning, are a matter of state laws so that Umweltanwaltschaften can intervene here.

However, it is not possible for Umweltanwaltschaften to bring a claim before a federal court if a federal law does not explicitly give the Umweltanwaltschaft standing (as for example in proceedings relating to environmental impact assessments, e.g. § 3 (7) Umweltverträglichkeitsprüfungsgesetz). Although there are some exceptions to this general rule, this means that Umweltanwaltschaften cannot appeal to the Constitutional Court.

Also, the scope of the right to bring claims before courts is substantially limited. The nine states have designed their laws differently, with some offering only standing in cases concerning the conservation of nature. Others grant standing in all cases of environmental matters, which expands standing to all subject matters falling under state law where the environment is involved; however, the potential damage to the environment must be substantial and permanent to trigger the involvement of the environmental ombud. And while both the federal state and each member state are free to give the environmental ombud agencies standing in other subject matters, such a right must be explicitly stated in the applicable laws.

There are other deficits that, at least in its current form, render the Austrian Umweltanwaltschaften inadequate as a voice of nature. The most significant deficit is that although they are said to protect the subjective rights of the environment or nature, this is in fact a misnomer: Austrian law sees the environment and nature only as an objective good (for an insightful analysis see here). Therefore, it would be unrealistic to even consider Umweltanwaltschaften as capable of using ICC or other means for truly representing nature.

The Umweltanwaltschaften were and are also subject to shifting political priorities, with its competencies diminished in certain areas and its right to standing revoked. For example, in Upper Austria, an amendment to the state’s nature conservation law in 2019 stripped the Umweltanwaltschaft of its right to standing in proceedings related to European nature reserves.

Lacking both substantive and procedural capacities, the institution of Umweltanwaltschaften is thus insufficient to give nature a real voice.

Institutionalising a voice of nature

This analysis of Umweltbundesanwaltschaften reveals several advantages and disadvantages to establishing an environmental ombud agency as the voice of nature. One of the greatest potential advantages lies in its potential to mitigate the problem of acti popularis since the right of standing for nature would be vested in an institution.

Also, as an established institution, an ombud agency would have the financial and human resources necessary for extensive litigation. However, the fact that it operates as an institution also introduces risks: The institution itself and its personnel, despite being mandated to be impartial, could still be elected or nominated with political agendas that could conflict with nature’s interests. Yet, this potential risk could be averted by electing the personnel through a direct vote of the populace. However, such an institution is vulnerable to indirect political assaults such as withholding financial means or personnel for it to operate at least adequately.

A significant advantage is that litigation can be streamlined by preventing double litigations and promoting synergies. However, a potential downside is that the agency might prioritize cases with a higher likelihood of success, leaving many cases unheard. If anyone had the right to represent nature before a court, the spectrum of possible cases would potentially be broader.

As an institution, an environmental ombud agency may garner more legitimacy than an individual, which in turn could enhance the legitimacy of nature’s rights over time. On the other hand, institutional bureaucracy might slow down its operations, which could be used to block it by flooding it with frivolous requests.

Despite these disadvantages and the specific deficits seen in the Austrian Umweltanwaltschaften, once we look beyond the courtroom, the advantages of an environmental ombud agency prevail. In Austria, ombud agencies already hold consultation rights in legislative proceedings. While these rights need to be expanded, ombud agencies might have a stronger foothold against political parties and competing interests in the overall process of safeguarding the rights of nature. They may thus prove more effective than individual actors, provided they transform both their mandate and their approach to represent nature.

While in an ideal world, it would be welcome if anyone could bring a claim on behalf of nature, environmental ombud agencies – with appropriate reforms – might be the best starting point. They could give nature a voice and enable it to be heard in a courtroom – and potentially also beyond.