Why the Mississippi River Needs a Bill of Rights

Why the Mississippi River Needs a Bill of Rights
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In his 45 years as a shrimp fisherman in south Louisiana, Venice native Acy Cooper has never seen the industry suffer like it has this year. Not after Hurricanes Katrina and Rita in 2005. Not in the years after the BP Deepwater Horizon oil spill in 2010.

Like fishermen throughout the region, his catches are down significantly due in part to the historic amount of polluted water flowing down the Mississippi River, a waterway that drains 41 percent of the U.S. and parts of Canada. From there, the water—high in nitrogen and phosphorous, a result of agricultural runoff—drains into the Gulf of Mexico’s many bayous and marshes where fishermen like Cooper find their catch.

Flooding across the Midwest has amplified the toxic situation in recent months. The floodwaters have twice forced the U.S. Army Corp of Engineers to open the Bonnet Carré Spillway north of New Orleans.

“Naturally they going to open up the Bonnet Carré Spillway every year because of the fact that they got water coming down and they just can’t handle it outside the river,” Cooper, who serves as the president of the Louisiana Shrimp Association, told Earther. But never in history, he continued, have they been forced to open the spillways twice in one year.

“When they introduce this freshwater into saltwater estuaries, then you’re just cutting it off completely. And then you know what’s coming out of the Mississippi River, I don’t have to tell you what’s coming out of the river,” Cooper added, referring to high nitrogen and phosphorous levels.

The effects have been devastating for Louisiana’s shrimping industry, which generates $1.3 billion annually across the state. His business—a family tradition spanning five generations, including his children and a son-in-law—on average earns roughly $150,000 to $200,000 annually. This year, they’ve earned about $40,000.

“What they doing in the river, it’s criminal,” Cooper said.

The situation isn’t unique to the Mississippi Sound, the ocean inlet that runs east and west along the southern coasts of the states of Mississippi and Alabama—a purgatory between the Mississippi River and the Gulf of Mexico. Since July, 25 beaches along the Mississippi Gulf Coast have closed due to blue-green algae blooms as a result of pollution. The National Oceanic and Atmospheric Administration describes it as algae that grows out of control and can harm people, as well as marine life and birds.

It’s a global epidemic, equally in part due to poor agricultural practices and resulting run-off and then exacerbated by our worsening climate crisis. For nearly two years, Florida dealt with an algae crisis. New Jersey has dealt with a similar issue in recent months.

But in one instance, citizens fought back. After Lake Erie suffered through a water crisis in 2014, the citizens of Toledo, Ohio, formed a coalition that eventually helped pass the Lake Erie Bill of Rights Charter Amendment in February. The amendment—which passed with 61 percent of the vote—entitles Lake Erie, as an ecosystem and body of water, to legal rights historically reserved for an individual or corporations. It’s the first of its kind in the U.S. as it relates to implementing nature rights via a citizens’ initiative.

As a polluted body of water, though, Lake Erie’s water crisis paled in comparison to what’s taking place in the Mississippi River. At its headwaters in Itasca State Park and Bemidji, Minnesota, due to the lack of altered land and an abundance of wetlands, the river is of nearly pristine quality. But once it snakes its way through cities just downstream like Minneapolis—roughly 2,000 miles north of entryways into the Gulf—it begins to amass an untold amount of pollutants, according to a 2017 report by the Minnesota Pollution Control Agency. From there through the agriculturally dependent Midwest it only gets worse, as the end result along the Louisiana and Mississippi Gulf Coast demonstrates.

Notably, too, is the fact that agricultural run-off from farms is exempt under the Clean Water Act. A study conducted by the U.S. Geological Survey found that agricultural sources in the watersheds of the river’s basin contribute more than 70 percent of the nitrogen and phosphorus, as compared to about 9 to 12 percent from urban sources.

The geographical accumulation of pollution, it seems, is stacked against the river. Is it time to provide the Mississippi River with its own bill of rights?

Though the concept of legal Rights of Nature or personhood for ecosystems is relatively new in the U.S., the idea in itself is an ancient one. With the rise of agriculture and civilization over the past 10,000 years, humans have harmed the environment on a massive scale, Deep Green Resistance executive director Will Falk told Earther.

“Rights of nature, while I don’t know that very many traditional world views would hold ideas necessarily about rights, the concept that we need to put restrictions on ourselves to make sure that we leave the land in a better situation than we found it—that’s an idea that’s as old as humanity,” Falk said.

He was among a group of advocates that filed a federal lawsuit on behalf of the Colorado River in 2017. The group sought a declaration of support that the Colorado River has the right to exist naturally, regenerate, and naturally evolve. Although their efforts were ultimately unsuccessful, the lawsuit filed against the state of Colorado and its attorney general was the first of its kind and provided a template for future federal lawsuits, as well as a kickstart for what was previously considered a radical idea within the environmental movement.

Still, the concept remains closer to the fringes of that movement than the center. Nationally, rights of nature is often painted as a far left-wing and anti-capitalism policy goal, with some conservatives going so far as to cite it as alleged anti-humanism. In fact, the idea within the movement is born out of a 1972 U.S. Supreme Court decision. Justice William Douglas included the idea that lakes, forests, estuaries, and other natural landscapes have rights as part of his dissenting opinion for an environmental dispute. But worldwide, at least four rivers—including the Amazon and Ganges—have been granted personalized rights to exist naturally in recent years.

“I think it’s moved from the lunatic fringe into closer to the mainstream now,” Thomas Linzey, an attorney and the executive director of the Community Environmental Legal Defense Fund, which supported the Colorado River suit and similar efforts countrywide, told Earther. “A lot of nature and environmental groups won’t touch it. It’s still too radioactive for them, still too crazy for them. But I think that’s starting to change. In ten years we won’t be talking about should we do it; we’re going to be talking about how far it goes, and how it’s the new emerging norm for environmental law in the United States.”  

Falk and Linzey agree that the Lake Erie Bill of Rights has been one of the most successful efforts in the U.S. in terms of citizen-led initiatives—roughly 40 localities nationwide, including Pittsburgh, have enacted similar rights of nature through the local legislative process—despite how the state of Ohio’s new budget bill contains language that seems to preempt the lake’s bill of rights. Their reasoning: The amendment was enacted using the citizens’ initiative process, one of the more directly democratic processes available to the public. It essentially allows citizens to draft laws, collect the necessary amount of signatures to get the measure on the ballot, and then have voters approve the laws instead of relying on the state legislature or locally elected officials.

Falk and Linzey both think the approach could work for the Mississippi River, too. But instead of concentrating on larger metro areas, the most logical route would be through smaller municipalities located along the river. Linzey said smaller towns are easier places to drum up support, and percentage-wise, they require getting fewer people to sign onto a ballot measure.

“In a smaller area it’s easier to campaign for something because you can talk to more people and actually get the word out,” he added.

Some groups along the Mississippi are headed in just that direction. Nancy Bealieau, a member of the Minnesota Chippewa Tribe, is among a group of advocates in the early stages of attempting to enact a rights of nature petition for the river. The group is based in northern Minnesota’s Bemidji, the U.S. municipality closest to the Mississippi River’s headwaters.

She told Earther that though the petition isn’t ready for the signature gathering process, their group is currently planning for that process as well as preparing for community outreach. Though it’s a long road ahead, she noted how they’re modeling the effort after the Ho-Chunk Tribe of Wisconsin, the first tribal nation to advance a rights-based constitutional framework to protect nature when it amended their constitution in September 2018.

“[The Mississippi River] is a living being like the rest of us, and because corporations and some of our policies are not protecting the water, we feel because it gives life that it has the right to live just like we do,” Bealieau said. “The Mississippi belongs to all of us.”

Among the same group of advocates is Robert Blake, a member of the Red Lake Nation who’s running for a city council seat in St. Paul, which sits across the river from Minneapolis. Part of his platform pertains to enacting rights of nature for the Mississippi River, Blake told Earther. In particular, Blake worries about the effect a meltdown at the Prairie Island Nuclear Generating Plant located about 40 miles southeast of St. Paul would have on the river for generations. The plant withdraws up to 50 million gallons of surface water from the river each year, according to a 2011 environmental report from the U.S. Nuclear Regulatory Commission.

Under Native American tribal treaty rights with the federal government, Blake argues that if his people are entitled to hunting and gathering rights and clean drinking water, then so are all American citizens. (Red Lake Nation is technically designated as a political group by the U.S. government, not a racial demographic, Blake explained.)

“If I am in a contractual agreement with the United States government through my treaty rights because I’m a tribal citizen, and you guys are part of the U.S. citizens, then doesn’t that agreement work both ways?” Blake asked. “Let’s start protecting it. Let’s keep it sacred, and let’s start taking care of it because it’s taken care of us for all these years. It’s given us so much. Minneapolis and St. Paul wouldn’t be the two cities it is if it wasn’t for the Mississippi River.”

The same could be said for hundreds of communities along the river.

Will the efforts be enough for folks like fisherman Acy Cooper, whose family’s livelihood is based around the river’s health but live nearly 2,000 miles downstream? Or will it take more, as those involved in the legal efforts such Linzey and Falk suggest?

As Falk said, significant change will likely take a generation, just as it has for previous American political movements that shaped the world as we know it today. He compared the fight for the rights of nature to other movements such as the 19th century’s abolitionists, the early 20th century’s Women’s Suffragists, and, most recently, the passage of the Civil Rights and Voting Rights Acts, which came as the result of “a couple centuries” of hard-won progress. It’ll take social change—such as educating the public—for it to happen, too, Falk explained.

“Rights of nature is kind of a foreign concept to the vast majority of people, I think,” Falk said. “The change that it can produce, I think we’re decades away from that. And the problem is we don’t have decades.”

Despite the long timeframe for widespread acceptance, there’s hope in the immediate future for the river to gain some rights.

That’s because rights of nature laws can be enforced extra-jurisdictionally. That means only one city would have to adopt a rights of nature law, and it could then in theory be enforced across municipal and state lines. Linzey said that includes against polluters or others who are harming the Mississippi River. Ideally, advocates would need a string of towns and tribes up and down the river so that enforcement could be done jointly. But, as Linzey said, “it would only take one to get the ball rolling.”

He also pointed to a recent precedent for cooperation using the rights of nature to protect waterways. In May, the Yurok Tribe gave the Klamath River its own rights. Then in August, the tribe joined with fishermen and Hoopa Valley tribes of California to file a lawsuit against the Interior Department’s Bureau of Reclamation’s water diversion plan for the Klamath River in California.

Cooper was born by a midwife in Venice. He bought his first boat at age 13 and was running a shrimping operation by the time he turned 15. He raised his family here. He has no intention of leaving, though he admitted he may not have a choice in the future.

“I’m 59 years old. I can’t start over,” Cooper said. “It took me this long to get where I’m at now. I just don’t have that much longer left to do it again. And that’s the sad part.”

Cooper sighed and says, again, “That’s the sad part.”

Xander Peters is a freelance journalist living in New Orleans. His work has appeared in Rolling Stone, Orlando Weekly, Indy Week and the Texas Observer, among others.