The most important party to the lawsuit between Florida and Georgia was missing Monday morning when the case was argued once again before the Supreme Court.
This longstanding dispute concerns the “equitable” distribution of “rights” to water flowing down the Apalachicola River. Florida contends Georgia has diverted an unreasonable amount of water into agricultural and other uses, thereby starving the oyster fishery in Apalachicola Bay and causing other harms as well.
Georgia argues that the principal balance to be struck is an economic one. An oyster industry generating less than $10 million a year should not, Georgia says, outweigh the hundreds of millions of dollars in annual agricultural “benefits” generated by irrigating that state’s croplands with river water.
Georgia’s argument, if it prevails, would justify drying up the river at its mouth, no matter that it would end a fishery that is millennia older than the historical record. And therein is the peril of our jurisprudence, for we give no voice to history, or to the river itself.
Riparian rights are economic rights, human rights, if you will, no matter that the entities making the arguments are often transient abstractions – corporations…. governments - that have scarcely any humanity in them at all.
In 1972, legal scholar Christopher Stone wrote Should Trees Have Standing?, a long article for the Southern California Law Review. That essay first became a book, and then a movement. Its premise is that a jurisprudence founded on economics alone inevitably leads to the sacrifice of natural resources, the principal value of which transcends economics. Trees… and rivers and lakes and bays and oceans …should all be given “standing” to argue their own cases in our courts. Only in that way can their transcendent interests be properly protected.
The idea of giving standing to non-humans is not new. Under our jurisprudence, corporations are “persons” that have rights, up to and including constitutional rights. Of course, corporations have voices: lawyers, lobbyists, PR specialists. Rivers speak another language than lawyer-ese, so how might they be represented were we to give them standing?
Here again, there is precedent. We appoint guardians to represent those who cannot speak for themselves. We routinely do this for minors and for the mentally impaired, for example. And if we look beyond our shores, there is now precedent for appointing nature guardianships. Stone’s article has spawned a worldwide judicial and legislative awakening to the need to give nature representation.
Tiny Apalachicola makes the best case for why we should give resources like the Apalachicola River standing. Our seafood workers don’t just harvest fish and oysters from these waters… not just livelihoods. They harvest lives. Our fisheries are woven together with an entire ecosystem, and it is far more than the sum of its parts. An oysterman is part of a much larger whole, and it is that whole against which the balance must be struck. If we pit our dollars against Georgia’s dollars, we will always lose. So, let us stand for more than that. Let us stand for the river itself.
Apalachicola resident John Alber is a retired lawyer and businessman who has spent years and thousands of miles exploring America's waterways.
This article originally appeared on The Apalachicola Times: John Alber: Giving voice to a river