The Corner

Energy & Environment

What Do Orcas Want? Rights! When Do They Want Them? Now!

SeaWorld unveils its new Orca Encounter show in San Diego, Calif., May 31, 2017. (Mike Blake/Reuters)

As the “It will never happen here complacency continues, the nature rights agenda grows increasingly mainstream. A few years ago, granting rights” to nature was rarely mentioned outside of the most radical outlets. Today, advocacy has become ubiquitous within the environmental movement, the academy, and bioethics, and has even been given the imprimatur of prestigious science journals.

Latest example: Orca rights! Apparently orcas are threatened in an area of Canadian waters. The government has suggested voluntary sanctuaries — perhaps too timid in its scope, I don’t know. But law professor Linda Nowlan urges instead that orcas be granted rights that the whales could legally enforce. From The Conversation column:

One way to extend rights to nature is to provide it with the rights of legal personhood. The key feature of legal personhood is the ability to hold rights and to enforce those rights through the courts.

People have the right to life, liberty and security of the person, as guaranteed by the Universal Declaration of Human Rights. Whales do not.

Yet laws have increasingly extended legal personhood rights to non-human entities. Corporations are the most prominent example.

I’ll write this slowly. Corporations have rights because they are human enterprises. One can disagree with the concept — I have significant doubts about this approach — but it does not undermine human exceptionalism one whit to grant human juridical entities rights that its human managers and owners exercise.

Moreover, rights don’t arise in a vacuum, but are associated with assuming responsibilities. Unlike animals, rivers, or Lake Erie, corporations and partnerships can be held to account when their managers or owners break the law or otherwise fail in their duties. Again, this is because these juridical persons are human enterprises managed by humans. Orcas, rivers, mosquitoes, bacteria — all aspects of nature — cannot, by definition, assume legal duties and ethical responsibilities because animals are not moral beings and geological features are not sentient. It’s not that hard!

The point of the orca-rights project is to give the killer whales the right to sue to enjoin the fishing industry from catching the whales’ prey, and also, to sue over global warming:

The southern resident killer whales are threatened by depleted prey populations (mainly Chinook salmon), physical disturbances that interfere with echolocation, pollution and climate change, as well as the projected increased tanker traffic from the Trans Mountain pipeline expansion. The federal government will announce on June 18 whether it will re-approve the expansion project, despite findings of a “significant adverse environmental effects” on the whales.

Thus, if orcas have rights, salmon fishers could be bankrupted. Important energy projects would almost surely be impeded or driven out of business by repeated litigation or the impossibility of obtaining liability insurance. The opportunities for anti-human mischief would only be limited by the most radical environmentalist’s imagination.

Orcas rights would be enforced by a commission that would put the supposed needs of killer whales above those of people:

The law would enshrine the legal rights of personhood for these whales. It would appoint a guardian or governance board empowered to act on behalf of the whales and enforce their rights. It could, for example, ask for habitat maintenance and restoration, and could claim and receive compensation for past injuries.

Do you see how the fix would be in? Could humans sue the whales for any injury they might cause? Don’t be ridiculous, Wesley!

Moreover, orcas don’t use currency or write checks. The scheme would permit the orca commission to engage in law fare against industries and extort huge financial settlements to finance the next round of litigation.

Rights supersede policy. Orca rights would thus remove environmental laws from democratic deliberation that properly balances human welfare and thriving with our duties to treat the environment and the whales responsibly. This means that no matter how well the orcas might be doing, their rights would prevail over properly nuanced legal and regulatory standards.

If our intent was to destroy our prosperity and undermine human exceptionalism, we couldn’t do it more effectively than to empower the most radical and misanthropic environmentalists to control our economies by granting rights to nature. Those who yawn in the face of this significant threat to human thriving and liberty are whistling past the proverbial graveyard.

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