What is the Grass? Defining the Ecological Person

Abstract

This note will trace the tension between the legal subject-statuses of personhood and citizenship in the creation of non-human legal persons. Specifically, I will examine legal efforts that rely on the legal personhood of nature and ecosystems. These efforts exist in the context of other novel efforts to expand personhood subject-status to non-agents, which require personhood in order to establish standing, but further require guardians to litigate and protect their alleged rights–namely, legal rights of artificial intelligences, of fetuses, and of oft-analogized corporations. This note will focus its discussion of ecosystem personhood within the complaint brought by Deep Green Resistance on behalf of the Colorado River Ecosystem against the State of Colorado, and the subsequent legal failure to achieve protection for the ecosystem through the construction of legal personhood. The success of the State over the ecosystem offers a lens through which to examine the relative possibilities and strengths of person and citizen subject-status. In order to think through the legal necessity and consequences of expanding the category of “person” to non-actors, I will first foreground the current categories of legal personhood and American citizenship in their historical antecedents, specifically during the political period spanning the Civil War, when a new group of natural persons were struggling to obtain full legal personhood and citizenship status. I will also look at the interplay of theories of ecosystem personhood, corporate personhood, and Artificial Intelligence personhood to limn the contours of this nascent recognition of non-human persons under American law. Lastly, this note will explore the historical move from enshrining personhood to enshrining citizenship, and whether this move is required, beneficial, or even possible in the case of non-agents.