Can a river have the right to be free of pollution? Can a forest have the right to not be destroyed? Over the last fifteen years, rights of nature (RoN) initiatives have been introduced around the globe to shield environmental entities (EEs) from exploitation and destruction. These initiatives include enshrining nature’s rights in the national constitution (Ecuador, 2008), assigning legal personhood to specific EEs (Aotearoa New Zealand, 2014; Spain, 2022), and aspirational community-led declarations and charters (UK).1 Though these initiatives differ according to the legal and cultural context, they all share a commitment to the idea that EEs have (or should have) rights.

Awarding rights to EEs means that we posit direct duties owed to them. This is what makes RoN legislation distinctive. Traditional environmental protection laws – such as laws restricting the pollution of rivers – posit indirect duties regarding EEs. They are not owed to EEs, but to other parties (e.g., the public) who have an interest in that EE being protected. In contrast, the RoN approach holds that we owe duties of protection to the river, and that the violation of these duties wrongs the river itself.2 This follows from a Hohfeldian analysis of claim rights.3 Claim rights describe a necessarily relational or “bipolar” situation: if one party, X, has a right, R, then another party, Y, has a duty owed to X to respect R.4 For this reason, the RoN approach treats EEs as members of our normative community, and supporters of RoN hail them as a paradigm shift, towards a less anthropocentric way of relating to the environment.5

However, the recent proliferation of RoN initiatives has been accompanied by some academic commentators sounding a note of caution. Though many criticisms focus on the practical problems resulting from awarding rights to EEs, the most damning arguments against RoN legislation focus on the very feature which makes it distinctive: the idea that we can owe direct duties to EEs. In this paper, I aim to rebut the strongest and most prominent form of this criticism, which I call the no interest argument (NIA). In essence, this argument contends that, because EEs are not sentient, they do not have welfare interests of the kind that ground direct duties, and therefore they cannot be legitimate rights-bearers.6

In the next section (§2), I present NIA, and then (in §3) explore some existing attempts to rebut it. I argue that all of these attempts have significant drawbacks. In the subsequent section (§4), I present a new strategy for rebutting NIA. My reply to NIA attacks the assumption that the directness of a rights-correlative duty must be grounded in the rights-bearer’s interests. I argue that this assumption presents the RoN critic with a dilemma. If they accept this assumption, they must also reject the legitimacy of a host of other well-established rights. Or, if the critic rejects this assumption, NIA fails. I end by commenting on the implications of my rebuttal of NIA, and the distinction between naturally and institutionally directed duties (in §5).

Though there are several theories that aim to explain the functions of rights, or to justify their application, those who wish to extend rights to include non-human entities typically favour the interest theory of rights. This is primarily because other theories tend to require that rights-bearers possess characteristics that can only be attributed to adult human persons (such as autonomy, self-respect, or the capacity to demand fulfilment), and consequently rule out non-human entities as potential rights-bearers. By contrast, the interest theory of rights appears to be less anthropocentric, holding that any entity which has an interest can, by that token, be a potential rights-bearer.7

For these kinds of reasons, advocates of RoN often (explicitly or implicitly) appeal to interest-based accounts of rights. A prominent example of this occurs in Christopher Stone’s seminal article “Should Trees Have Standing”, commonly regarded as the first published legal argument in favour of RoN. Stone tells us that ‘natural objects can communicate their wants (needs) to us, and in ways that are not terribly ambiguous’ (Stone, 1972, p. 471; 2010, p. 11). Such “wants” can be classed as interests, upon which we can base our judgements of what will benefit or harm natural objects.8 RoN legislation and declarations also appeal to interest-based accounts of rights. For instance, the Universal Declaration of the Rights of Rivers maintains that ‘rivers shall have their best interests … assessed and taken into account’ (Earth Law Center, 2020, sec 6).9

According to the interest theory of rights, rights function to protect those interests which are vital to the well-being of the entity in question. The classical articulation of this point is made by Raz: ‘X has a right if X can have rights, and, all other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty’ (Raz, 1986, p. 166). We can think of an “interest” in this sense as an aspect of well-being that is sufficiently strong to ground another person’s direct duty. A violation of a right then constitutes a serious harm to the well-being of the rights-bearer. Consider an example. My right to not be tortured is mirrored by the duty that others owe (to me) to refrain from torturing me, and this duty is grounded in the strong interest I have in not experiencing suffering. Notice that in this description, my interest functions not only to ground others’ duty not to torture, but also explains why that duty is owed to me. Because it is my welfare which is affected by torture, the duty to refrain from torture is owed to me (rather than to the state, God, or some other third party), and failure to fulfil this duty wrongs me. That is, my welfare interest also operates to explain the directedness of the duty.

It follows that the interest theory of rights neatly delimits the set of entities that can be thought of as legitimate rights-bearers. Any entity that can have its welfare affected positively or negatively by others’ actions (i.e., can be benefited or harmed) might have interests that are sufficient to ground direct duties, and so is a plausible candidate to be a rights-bearer. Any entity that cannot be thought of as having well-being or interests in this sense cannot be considered to be a plausible rights-bearer. For this reason, many philosophers hold that the set of entities that can be rights-bearers and the set of entities that can have (welfare) interests are co-extensive.10

The crux of what I am calling the NIA against RoN hinges on precisely this point. Given the above analysis, concepts such as welfare, well-being, harm, and benefit must be meaningfully attributable to any rights-bearing entity. NIA suggests that EEs are not the kinds of entities for which this is true, and so EEs cannot possess (welfare) interests of the kind sufficient to ground direct duties, and so rights.

The main issue for RoN is that sentience is commonly taken to be a necessary requirement for an entity to have interests in the relevant sense, and EEs are not sentient.11 This point is most frequently made by proponents of animal rights. The interest theory of rights allows that sentient non-human animals are plausible rights-bearers, for the same reasons as humans are, without too much disruption to the theoretical support for those rights. Consider, for instance, the following passage from Peter Singer:

Singer’s position here and elsewhere is a utilitarian one, in that well-being is specifically linked to enjoyment and suffering. But the importance of sentience is not unique to utilitarianism. More deontological thinkers also hold that only sentient subjects have interests of the relevant kind, as they are the only entities capable of valuing features of their environment.13 If possessing sentience is required for an entity to have interests, and interests are a condition for having rights, then this generates a simple and powerful argument against RoN.14

In standard form, NIA looks something like this:

Faced with a valid argument of the above kind, we must either accept the conclusion or refute one of the premises.

Given the strength and simplicity of NIA, RoN advocates might feel compelled to accept it. This need not be a death knell for RoN as a political movement. Given the ways in which our political system is organised, it might be the case that declaring nature to have rights is a quick and effective way to protect it from human exploitation. One would then defend RoN discourse on its rhetorical usefulness rather than its moral justification.15 Alternatively, RoN could be analysed politically, primarily as claims made by local and indigenous communities to regain control over their local environment. On such an account, duties are not owed to EEs at all, but to groups who set themselves up as speaking on behalf of nature.16 These kinds of positions do not fall foul of NIA, precisely because they reject the key feature of RoN: that EEs can have rights which correspond to direct duties. But this is a serious cost: it involves rejecting the defining feature of RoN discourse. In what follows, then, I will consider the ways in which the RoN advocate might respond to this argument by refuting one of the above premises.

NIA seems inferentially valid, and so the RoN advocate who wishes to maintain what is distinctive about RoN must challenge one or more of its premises. In this section, I summarise existing attempts to rebut NIA in this way. None of these attempts, I argue, are successful.

One option is to challenge P4 – the claim that EEs are not sentient. If P4 is false, then the conclusion of NIA does not follow, as EEs would then have welfare interests of the relevant kind. Indeed, the RoN advocate would then be able to rely on the powerful interest theory of rights to support RoN as, on this theory, any sentient entity is a plausible candidate for rights. Existing RoN legislation often reference indigenous worldviews that attribute something analogous to sentience to the entities in question. On a Māori worldview, for instance, rivers and mountains have mana me mauri – a living and spiritual force, and Māori relationships with these entities are kin relationships.17 On the basis of such a worldview, we might challenge P4 of NIA. However, outside of indigenous worldviews, this argumentative strategy comes with a significant metaphysical burden. Against a background of widely accepted naturalism and materialism, it is difficult to imagine how rivers, mountains, and forests might be considered to have the capacity to experience the world around them. Such entities possess none of the characteristics that are commonly used to identify sentience in other creatures, such as the presence of a nervous system, or behavioural correlates such as aversion or attraction.18 Though there are resources within the western tradition from which a richer metaphysical account of EEs might be developed, having the resulting accounts widely accepted by philosophers, policy-makers, or the general public such that they might underpin RoN legislation would be a monumental philosophical task.19

A less metaphysically ambitious strategy available to the RoN advocate would be to challenge P3 – the claim that sentience is necessary for an entity to be a welfare subject. Sentience certainly seems sufficient for attributing states such as benefit, harm, and welfare to an entity, but it might not be necessary. Some environmental philosophers argue that having teleology or goal-directedness is sufficient for beings to possess welfare states.20 Features of an entity that allow us to recognise it as goal-directed include: tendencies to grow towards or away from certain stimuli; self-regulating homeostatic functions; and self-organisation and self-maintained integrity over time. When an entity displays these kinds of characteristics, we might plausibly say that it is benefited or harmed by certain states of affairs. Consider the plant on my desk, for instance. Though it lacks sentience, it still seems to demonstrate goal-directedness. Independent of any human intention, the plant grows towards the sunlight and draws nutrients from the soil. At the time of writing, the plant is performing these functions well: its leaves are green, and it is putting out new sprouts. These indications suggest that the plant is flourishing. Conversely, were I to lock the plant away from the light, or deliberately poison it, I would seem to harm it. As such, we might say that the plant is the kind of entity that can have interests in certain states of affairs, and can be harmed or benefited by my actions, even though it is not sentient.

Arguing that sentience is not necessary for the attribution of interests to an entity is sufficient to replace P3 with the following:

As such, the conclusion does not follow. But the RoN advocate has only bought themselves a short reprieve. After all, their opponent can simply replace P3* and P4 with:

Now, the burden is placed back on the RoN advocate to argue that goal-directed states can meaningfully be attributed to EEs. Possible candidates for such states might be characteristics like stability over time, self-maintained balance or equilibrium, or ecosystem health. These kinds of states sound like they are goal-directed. Damaging the stability of an ecosystem by, say, actively reducing its biodiversity might constitute a harm to its well-being. As such, we might be led to say that such entities possess interests sufficient to ground direct duties, without attributing sentience to them.21 However, it is harder to attribute goal-directed states to EEs than to individual organisms, such as the plant on my desk. The apparently goal-directed activity of ecosystems might be better thought of as “behavioural bioproducts” of the goal-directed actions of the individual organisms comprising that entity.22 Stability, on this view, is not a goal of the system itself, but rather an emergent product of each organism and these organisms’ interactions. Moreover, modern ecology has challenged the idea that equilibrium or self-maintained stability over time is a feature of ecosystems, replacing a stable notion of ecosystems with a more dynamic one.23 As such, this method of challenging NIA relies on attributing properties to EEs that are both philosophically and ecologically contentious.

This strategy also entails a second problem: P3** would seem to expand the list of potential rights-bearers to include not only EEs, but also technological entities. After all, machines also have purposes and goals defined by the working of their systems and can be damaged in ways that can impede those purposes. So (according to P**) technological entities would also count as having welfare interests sufficient to ground direct duties and so rights. This might be a potential reductio ad absurdum for the RoN advocate. After all, most environmentalists would balk at the idea that cars, radiators, and machine learning algorithms can be considered potential rights-bearers in the same way as rivers, mountains, and forests. So, P3** seems to burden the RoN advocate with the need to find a non-arbitrary way of excluding artificial goal-directed entities from being legitimate rights-bearers, without thereby excluding EEs.24 One of the benefits of drawing the line of moral concern at sentient entities is that it is (relatively) easy to determine which entities do or do not meet the requirements for being considered sentient. Goal-directedness as the minimum requirement for moral concern, by comparison, threatens to include a bewildering range of entities in our normative community.25

The comments in the previous section do not rule out the possibility that NIA might be successfully challenged through refuting P3 or P4. They simply establish that both strategies entail significant difficulties and complications. In this section, I will suggest a new and more fundamental strategy – challenging P1, or the idea that a rights-bearer’s interests are the necessary ground for direct duties.

All (claim) rights have, by definition, corresponding duties. When X has a right, some other party (Y) must owe a duty to X. As we have seen above (§2), the interest theory of rights purports to explain both the ground of Y’s duty and the directedness of that duty by appeal to X’s interests. When X has an interest of sufficient importance to place Y under a duty, then Y has a duty to X as the rights-bearer, not to any other party (such as the government, the public, or God).

Recently, Rowan Cruft (2019) has argued that on Raz’s commonly accepted version of interest theory, there are two available interpretations of when X’s interest is sufficient to ground Y’s direct duty. On the first interpretation – which we might call the radical interpretation – X’s interest grounds Y’s duty only when X’s interest is of sufficient importance to X, independent of any other party’s interest. On the second interpretation – which we might call the permissive interpretation – X’s interest can ground Y’s duty when X’s interest is of sufficient importance to X or to other parties who stand to benefit by X’s interest being met.26 These two possible interpretations of interest theory, I suggest, present the RoN critic with a dilemma. On the radical interpretation, the critic successfully rejects EEs as legitimate rights-bearers but must also reject the legitimacy of a wide swathe of other well-established rights-bearers. On the permissive interpretation, these well-established rights-bearers are held to be legitimate rights-bearers, but the critic loses the ground on which they reject RoN. Either way, NIA fails.

Let us first consider the radical interpretation of interest theory. We can represent this interpretation by reformulating P1 as follows:

As we have seen, NIA holds that possessing such an interest requires an entity to be a welfare subject (P2) and be sentient (P3). The main problem with the radical interpretation is that there are many existing rights-bearers that do not meet the sentience criterion. For instance, we routinely recognise the rights of corporations, businesses, universities, states, nations, governments, and cultural groups. None of these entities seem to be sentient, and attributing “interests” to such entities is at least as difficult as, if not more difficult than, attributing them to EEs.27 Accepting the radical implications of this interpretation, then, the interest theorist might be led to affirm the following version of the argument:

On the radical interpretation, NIA successfully rejects EEs as legitimate rights-bearers, but at the expense of also rejecting a wide range of established and non-contentious rights-bearers. Of course, the RoN critic has the option to “bite the bullet” here and accept that many entities that are currently recognised as rights-holders should not be. However, as those pressing NIA are motivated by the thought that existing rights claims are legitimate (and perhaps need to be extended to include non-human animals), this collateral damage seems likely to dissuade all but the most stubborn of RoN critics from accepting the radical interpretation of NIA. Of course, the critic may argue that these other entities (corporations, states, cultural groups, universities, and the like) are in some way significantly different from EEs, such that RoN can be rejected without rejecting these existing non-sentient rights-bearers. Whether or not these attempts would be successful, they would likely involve abandoning the simplicity – and so much of the intuitive force – of NIA.

The second, and more permissive, interpretation of the interest theory of rights holds that a direct duty can be grounded in the interest of one party, not only when it is of independent importance to that party, but also when meeting that interest stands to benefit the interests of other parties. Some examples will clarify this point. Consider a journalist’s right to protect their sources. The journalist has a professional interest in protecting their sources, but this interest is only considered important enough to ground a direct and enforceable duty (and so a right) because of the benefit to the public of having a free press. Similarly, corporations have the right to hold property, and this right protects the economic interests of those corporations. But these economic interests are themselves only considered important enough to ground a direct and enforceable duty because of the societal good that is supposed to result from protecting those interests. In these examples, a duty is owed to party X, but the interest of party X is only considered important enough to ground a direct duty because of the interests of party Y.28

The permissive interpretation of the interest theory is more plausible than the radical interpretation precisely because it does not involve rejecting other non-contentious entities as members of the class of legitimate rights-bearers. But by adopting this form of the interest theory of rights, NIA ceases to be valid. We can represent the permissive interpretation by reformulating P1 as follows:

Notice that the conclusion of NIA – that EEs cannot be considered to be legitimate rights-bearers – does not follow from P1**. The radical interpretation of the interest theory requires that the rights-bearing entity itself must have welfare interests that are sufficient to ground direct duties. The permissive interpretation simply requires that the welfare interests of some party or parties (Y) are furthered or protected by granting an entity rights. Consider the following amendments to NIA, in line with the permissive interpretation:

Clearly, the conclusion that EEs cannot be rights-bearers does not follow from these premises. So, on the permissive version of the interest theory, the fact that EEs do not have welfare interests because they are not sentient does not disbar them from being legitimate rights-bearers.

In summary, P1 of NIA entails a dilemma, due to two available interpretations of the interest theory of rights. Interpreting the interest theory radically will successfully disbar EEs from being legitimate rights-bearers, but at the significant expense of also disbarring many other existing rights-bearing parties. Alternatively, interpreting the interest theory more permissively will avoid the expense of the radical interpretation, but means that NIA fails to reach the conclusion that EEs are not legitimate rights-bearers. Either way, NIA loses its intuitive simplicity and force.

The analysis in the previous section showed that NIA entails a serious dilemma for the RoN critic. As the aims of this paper are to assess NIA and offer a novel strategy for rebutting it, this analysis is sufficient to meet these aims. However, before the RoN advocate celebrates, it is worth noting that this strategy has consequences for how we think about RoN. As we have seen, on the radical interpretation of interest theory, EEs (along with other established rights-bearers) cannot possess rights. On the permissive interpretation, EEs can have rights, but only at an apparent cost: the duties owed to EEs are partially grounded in the interests of other parties. Just as the journalist’s right to protect their sources entails duties owed to them but ultimately grounded in public interest, so would a river’s right to, for example, be free from pollution entail duties owed to the river but at least partially grounded in some other parties’ interests.

This is not a practically problematic requirement. There are plenty of parties who would benefit from duties to EEs being met. These parties could include: indigenous peoples and local communities who use the EE for their practical, psychological, and cultural needs; the wider community (including future generations) for whom diverse and stable ecosystems are necessary requirements for well-being; and the collection of individual organisms that reside within, rely upon, and partially comprise the EE in question.

However, this move does seem to involve a conceptual concession. Previously (§3), I noted that the distinctive feature of RoN discourse is that rights-correlative duties are owed to the EE itself, not to other interested parties. On the permissive interpretation of interest theory, duties are still owed to EEs, but the interests of EEs are not of sufficient weight to ground those directed duties, and we must also appeal to other parties’ interests. RoN advocates might think that this concedes too much, makes RoN dependent on human interests, and weakens the very feature which sets RoN initiatives apart from other forms of environmental protection and conservation. As such, unless I want this strategy for rebutting NIA to be considered something of a pyrrhic victory, I owe the RoN advocate a response to this concern.

We first need to draw a distinction between naturally directed and institutionally directed duties. All rights, by definition, have corresponding duties that are directed in the sense of being owed to the rights-bearer (§2). Naturally directed duties occur when X’s interest is sufficient to ground a duty to X, independent of legal or social institutions.29 Consider my duty not to torture Joe, for instance. I owe this duty to Joe, because Joe’s welfare would be severely impacted by torture, and Joe’s welfare would be sufficient to place me under this duty even if we lived in a dystopian society that did not legally recognise Joe’s right not to be tortured. In short, Joe has a natural right or a moral right not to be tortured, even in the absence of any institutional recognition. As it is difficult to argue that EEs possess welfare interests (§3), it is similarly difficult to argue that we owe them duties that are naturally directed in this sense.

When a duty is institutionally directed, on the other hand, this means it is legal or social institutions that make it the case that a duty is owed to X. Absent these institutions, there might be no duties owed to X, because X naturally possesses no characteristic sufficient to place other parties under a direct duty. This is not to say that X lacks moral importance, or that we don’t have undirected duties involving X (more on this soon). It is just to say that the direction of the duty – that it is owed to X – is at least partially an institutional creation. According to the more radical interpretation of interest theory, only those that are owed naturally directed duties are legitimate rights-bearers. This excludes EEs, and other conventionally accepted rights-bearers (§4). As Cruft points out, taken as an account of moral rights (or naturally directed duties), this radical interpretation of the interest theory is satisfactory. Taken as an account of all legal rights, however, it is overly restrictive.30 This paper suggests that even if the RoN advocate accepts that EEs lack interests sufficient to ground naturally directed duties, NIA still fails because EEs can be legitimate rights-bearers through institutionally directed duties.

To clarify this point further, we can consider a distinction in human rights literature between orthodox and political justifications of rights. Orthodox accounts of (human) rights hold that legal rights must be grounded in moral rights, and fundamental (human) interests. Political accounts of (human) rights, on the other hand, hold that rights are justified within institutional contexts and by appeal to the considered judgements of practitioners. It is important to note that such considered judgements can – and often do – involve the consideration of moral principles, fundamental interests, and other normative concepts. But there is no claim that legal rights must be grounded in natural or moral rights. The suggested rebuttal of NIA accepts that EEs cannot possess natural rights, and so adopts a “political” approach to RoN.31

With these distinctions in place, there are three things to say to the RoN advocate who considers this move too much of a concession. The first is to note that institutionally directed duties are a priori no more or less important than naturally directed duties. There are naturally directed duties that are too weak to generate rights (such as my duty to express gratitude to a friend who bought my lunch), and institutionally directed duties of significant moral importance. For instance, a parent’s right to child support is partially grounded in the interests of a third party (the child) but owed to the parent through institutional recognition.32 As such, the distinction between naturally and institutionally directed duties does not imply a moral hierarchy.

Secondly, a duty’s being institutionally directed is not the same as a duty’s being institutionally created. Some duties are naturally occurring but undirected. For example, Onora O’Neill (2000, pp. 98–105) argues that – though there is a general duty to provide services such as education and health care – this duty is “amorphous” until we create institutions that clearly bear the obligation to fulfil that duty. Until that time, the “right” is merely rhetorical. Given that rights require direct duties, the natural but undirected duty to provide necessary services does not take the form of a right until it is institutionalised. In a similar way, we might recognise duties to protect, respect, and restore EEs that are naturally occurring but undirected. For instance, we might recognise the moral importance of protecting EEs, but be unclear to whom we owe that duty (to the EE, future generations, non-human organisms, etc.). Or we might recognise the EE as having non-instrumental value of sufficient strength to generate a duty that is (because EEs lack welfare interests) undirected. In either case, recognising that we have natural but undirected duties of significant weight might justify the creation of institutions that direct duties to the EE – for pragmatic or non-instrumental reasons. In such cases, the directedness of our duty – and so the right – would be institutionally created, but the duty and moral significance would be independent of that creation.

Finally, we should clarify that accepting that duties owed to EEs are institutionally directed does not commit us to understanding RoN in the rhetorical or instrumental way discussed earlier (§1), or as dependent on human interests. On this account, duties are still owed to EEs, rather than to other parties. It is just that: a) the directedness of our duties to EEs is created by institutions, rather than being naturally occurring, and b) the ground of these duties is established by something other than the welfare of the EEs. There is no reason to assume that this alternative ground needs to be instrumental human interest. We might choose to direct duties to EEs for several reasons – instrumental (perhaps direct duties are the best way to encourage community action, or the best way to hold certain agencies to account), or non-instrumental (perhaps rights are the best way of showing due respect to EEs or meeting our undirected moral duties).

The distinctive feature of RoN initiatives, compared with other forms of environmental protection, is the recognition that duties are owed directly to EEs, rather than to other interested parties (§1). This paper has offered a novel refutation of the strongest argument against RoN: NIA. In essence, this argument holds that only entities that possess sentience can have the kinds of independently important interests that are sufficient to ground directed duties, and thus claim rights. As EEs are not sentient, they do not have interests, and so are not rights-bearers (§2).

The paper has presented and considered the existing responses to NIA, finding that they all entail significant complications and problems (§3). The paper then articulated a new response to NIA, focusing on the fundamental question of how interests ground direct duties. The RoN critic was presented with a dilemma. Either NIA is interpreted in a radical way, which excludes many non-controversial rights-bearers along with EEs from being legitimate rights-bearers, or it is interpreted in a permissive way, which allows for RoN. In either case, the intuitive force of NIA is refuted (§4). As such, EEs can be legitimate rights-bearers according to the interest theory of rights.

However, as a result, the RoN advocate must make a concession, and hold that direct duties owed to EEs are not naturally directed and are at least partially grounded in the importance of other parties’ interests, rather than in the interests of the EEs themselves (§5). The RoN advocate who feels that this permissive interpretation is too much of a concession and does not capture the distinctiveness of RoN has two options. They might return to one of the strategies that I set aside in §3, and try to show that EEs are sentient, goal-directed, or in possession of some other characteristic that grants them independently important interests sufficient to ground direct duties. Or they might abandon the interest theory altogether and attempt to justify RoN through an appeal to an alternative theory of rights.33 Doing so would bypass NIA entirely but would entail a different set of objections and challenges.34