LAW360 04/01/20
By Michael Shank

Rights-based advocacy does well in the United States. The right to vote. The right to bear arms. The right to marriage. The right to choose. The right to own property.

The fights and freedoms won in the last century were pitched, packaged and positioned as rights owed to deserving and/or underserved communities. It’s an effective proposition, as Americans are fond of the Founding Fathers and their rights-based framing. And the history of rights-based wins in court is arguably the most compelling story of progress in America.

Now it’s time to add to those rights: The right for humans to be let alone, and the right of nature — and its inhabitants — to be let alone, too. If we had these rights established, the risk of a coronavirus, or any of its similarly deadly predecessors, would be significantly downsized.

Remember that recent viruses — whether SARS, originating in China, or H1N1 swine flu, originating in the U.S. — are a direct result of humans failing to leave nature and its inhabitants alone, and, instead, not only compromising the natural habitat, but simultaneously putting humans in harm’s way.

That China banned the consumption and farming of wild animals post-virus outbreak is a good sign. But more is needed. Any practice, like industrial factory farming in the U.S., that egregiously undermines the rights of nature should end immediately, before the next virus erupts.

That is why a lawsuit filed in the U.S. District Court for the District of Oregon, and currently being appealed to the U.S. Court of Appeals for the Ninth Circuit, is so interesting — and pertains, powerfully, to President Donald Trump’s recent rollbacks to public safety, as well as the administration’s suspension of environmental regulations last week, in response to the coronavirus.

Filed by the Animal Legal Defense Fund, or ALDF, and others, the lawsuit applies a preexisting rights-based legal framing and reaffirms what rightly should be perceived as citizens’ rights — and, by extension, the rights of nature and its inhabitants. The ALDF et al. v. U.S. lawsuit targets public lands specifically. But ideas behind this lawsuit should be applied more broadly if we want to prevent future deadly virus outbreaks.

For a start, public lands should be safe for the public, and should not threaten or undermine public safety. That makes much sense. Further, anyone that compromises the public’s safety — and the public’s “right to be let alone — the most comprehensive of rights,” as U.S. Supreme Court Justice Louis Brandeis noted in 1927 — should be held accountable under the law.

In short, there should be legal protections for the citizenry in the use of publicly owned land, whether they’re doing scientific research, recreating socially or observing nature and its inhabitants.

The lawsuit — brought against the U.S. Department of the Interior, the U.S. Department of Agriculture, the U.S. Department of Defense, the U.S. Environmental Protection Agency and their secretaries — also builds upon the rights-based framing of a contemporary of Justice Brandeis, President Theodore Roosevelt. An ardent protector of public lands, Roosevelt talked about the right use of public lands, encouraging “the preservation and right use of forests,” the “right use of waters,” and “seeing that our land policy is not twisted from its original purpose.”

That’s what this lawsuit aims to define, in order to stop the Trump administration from twisting land policy from its original purpose by continuing to allow activities like livestock farming on federal lands.

But looking further, the United Nations’ environmental chief, Inger Anderson, argued last week that the “destruction of the natural world for farming, mining and housing have to end,” since these activities “drive wildlife into contact with people.” Result? More deadly viruses.

The timing and importance of this lawsuit cannot be overstated, as the Trump administration continues to roll back public protections on federal lands. Not only does Trump want to resume coal mining on public lands this year, which would directly impact and imperil nature, its inhabitants, and the public’s right to clean air and clean water, but he also wants to revamp the 50-year-old National Environmental Policy Act, put in place by President Richard Nixon to protect the environment, and thus the public, from the deleterious impacts of federally funded projects.

That is why the ALDF v. U.S. lawsuit is so important. Now, more than ever, we need legal protections — and rights — to ensure that nature is left alone. Failing to do so will mean that the next virus is right around the corner. It’s only a matter of time.

Until we have a stronger legal foundation for the protection of the public, and the natural environment, both will continue to be put in harm’s way. Now is the time to strengthen the right to be let alone, in order to lock in environmental protection. We’ve made much progress in the past century. Now it’s time to make more.

Michael Shank is an adjunct assistant professor at New York University’s Center for Global Affairs.