How radical legal approaches can save our rivers
Over the last couple of years, there has been increasing scrutiny of the poor ecological health of English rivers. The latest water classification results published by the Environment Agency (the EA) showed that only 14% of rivers meet the criteria for “good ecological status”.
Media reports and investigations suggest that weak regulation, water companies underreporting potentially illegal sewage discharges and a failure to hold water companies to account result in excessive dumping of untreated sewage in English rivers causing ecological damage. Campaigners point out how this is particularly damaging for chalk streams, an important habitat for wildlife, and it endangers the health of people who use rivers for recreational purposes. Furthermore, the High Court’s recent decision in the ongoing litigation between the Manchester Ship Canal Company (MSC) and United Utilities (UU) shows that the options for private law recourse against water companies in these circumstances are very limited. Now may be the time for campaigners, lawyers and policymakers to think beyond conventional legal paradigms to protect English rivers.
We consider the more radical legal approaches taken in other jurisdictions to safeguard the ecological health of rivers, including the concept of legal personhood for rivers, and how this could apply in the English context.
Radical legal approaches around the globe
The phenomenon of using the law in a creative way to grant the environment legally enforceable rights is not new. In 2008, Ecuador became the first country in the world to grant nature its own constitutional rights. Ecuador took the broad approach of granting rights to “nature” generally which can be enforced by “persons, communities, peoples and nations”.
Some countries, including New Zealand, have explicitly granted rivers their own legal rights. In New Zealand, a guardian model was agreed upon during negotiations for the Te Awa Tupua (Whanganui River Claims Settlement) Bill. The model chosen provides for the appointment of one guardian from the Crown, and one from the Whanganui iwi. This reflects the unique ancestral relationship the Whanganui iwi have with the Whanganui River and the historic harm caused by the Crown. The Whanganui River is likely therefore to benefit from the most directly affected communities having more influence as it allows the Māori view of nature  and guardianship  to be incorporated.
The Bangladesh Supreme Court recently upheld the rights of rivers first granted by the High Court of Bangladesh in January 2019. Whilst the application initially related to the River Turag, the court went further and ruled that all rivers in Bangladesh are living entities with legal rights and requested the National River Protection Commission to act as guardian.
Rivers and legal rights in England
There is no single agency which is obliged to protect English rivers. In England, the EA and Department for the Environment, Food and Rural Affairs (DEFRA) say that they are “working hard” to achieve clean water in English rivers and lakes. However, extensive media coverage highlights the issue of river pollution. In July 2020, media investigations and reports claimed water companies had allowed an excessive amount of sewage to be released into England's rivers in 2019 caused by a lack of investment in improving their infrastructure. It was reported that combined sewer overflows (CSOs) had exceeded repeatedly. A lack of investment and at times extreme rainfall resulted in large amounts of excess water, which led a number of water companies to routinely release untreated raw sewage into rivers in England throughout 2019. Critics say that this shows that the legal and regulatory framework in place is inadequate and water companies have essentially been granted “a licence to pollute”.
Despite some political pressure on the issue of river pollution, progress in this area appears limited. In late 2020, Philip Dunne MP (the Chair of Parliament's Environmental Audit Select Committee) put forward a private member's bill aiming to introduce a “polluter pays” principle for water companies. However, the bill recently collapsed after delays caused by the COVID-19 pandemic.
In terms of government action, in September 2020 DEFRA set up a taskforce led by DEFRA, the EA, Ofwat,the economic regulator of the water sector in England and Wales, and Water UK, a trade association which represents the major UK water companies, to reduce the frequency of sewage discharge into rivers and seas from storm overflows. Furthermore, the Queen’s Speech recently added three new legal duties to the Environment Bill to tackle sewage discharges into rivers and help protect waterways. However, these legal reforms - including a duty on government to publish a plan by September 2022 to reduce sewage discharges from storm overflows, a duty on government to report to Parliament on progress on implementing the plan and a duty on water companies to publish data on storm overflow operation on an annual basis - arguably do not go far enough and are unlikely to bring about real change.
With regards to civil litigation in this area, historically claims in nuisance and trespass have been brought against water companies arising from discharges into rivers, although they are rare. However, the recent decision in Manchester Ship Canal v United Utilities has demonstrated the limits of the civil law in this area. The judge ruled in favour of UU and confirmed that, unless there has been an allegation of negligence or deliberate wrongdoing, MSC has no private law action in trespass or nuisance against UU regarding discharges in contravention of the Water Industry Act 1991. This decision has wide ranging ramifications for environmentalists and has been appealed by MSC to the Court of Appeal.
River rights are increasingly being seen as a viable option to protect rivers and work continues around the world to grant more rivers legal rights. Various groups are also campaigning in the UK to introduce river rights. For example, the Friends of the River Cam has made “a declaration of the Rights of the River Cam”. Although this has no legal effect, it could inspire similar declarations to be made regarding rivers across the country.
It is clear that campaigners, lawyers and policymakers must consider more radical solutions, including the concept of legal rights for rivers, to protect English rivers. Experts have suggested that by granting legal rights to rivers, the focus shifts to the needs of the river, and moves away from the idea that nature is merely there for society to exploit. River rights introduce the potential for guardians or communities to prevent activities that could harm the river, on behalf of the river, or even bring lawsuits on behalf of the river, essentially acting as a voice for the river. Whilst restoration of rivers is often provided for, irreversible damage cannot be changed. Therefore, the benefit of river rights is that they provide a means for the rivers to be protected before the harm occurs. Therefore, granting English rivers legal rights could potentially recognise the dire state of England’s rivers and protect rivers against further pollution and ecological harm caused by water companies – and should not be ignored by the government.
With thanks to Intern Abigail Thrasher for co-authoring this piece.
 The Manchester Ship Canal Company Ltd v United Utilities Water Ltd  EWHC 1571 (Ch) (15 June 2021)
 David R Boyd, The Rights of Nature, (ECW Press, 2017) 141.
 David R Boyd, The Rights of Nature, (ECW Press, 2017) 140; https://www.theguardian.com/world/2019/nov/30/saving-the-whanganui-can-personhood-rescue-a-river
 For example, Pride of Derby  All ER
 For example: https://www.theguardian.com/australia-news/2018/apr/01/its-only-natural-the-push-to-give-rivers-mountains-and-forests-legal-rights ; https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person ; https://www.iucn.org/news/world-commission-environmental-law/201804/colombian-supreme-court-recognizes-rights-amazon-river-ecosystem
 David R Boyd, The Rights of Nature, (ECW Press, 2017) 141.
 For example: article 72 https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html