Environmental Law

24/01/2018

Suing Oil Companies for Climate Change Adaptation Costs

In the Netherlands, no cases have been lodged against emitters of GHGs yet. This is somewhat surprising, given that one of the world’s leading oil companies, Royal Dutch Shell (RDS), has its headquarters in the Netherlands and given the fact that around 60% of Dutch land is prone to flooding, either by rivers or by the sea. An extensive regulatory and administrative system is in place to plan for and execute measures to protect the land against sea level rise and increased water run-off in rivers under climate change.^[1] It is estimated that the Dutch government needs to spend 26 billion euros for coastal and river adaptation measures alone.^[2]

(Photo: Flickr user Shell)

Dutch tort law would allow tort cases against polluters to be lodged, as long as complainants can show that they suffer damage caused, at least to some extent, by this and other GHG emitters. Between 1988 and 2015, Shell ranked as the 9^th biggest emitter or GHGs, being responsible for 1.7% of all global GHG emissions.^[3] There is some experience with tort cases against RDS in the Netherlands for its actions abroad. In 2013, several cases were lodged before the District Court of The Hague both against RDS and its Nigerian subsidiary for causing extensive damage by oil spills in Nigeria. These cases were lodged by individual Nigerian farmers and a Dutch environmental NGO, and were successful, be it only against the Nigerian subsidiary, not against the parent company.^[4] The court determined that the Nigerian subsidiary of RDS violated a duty of care and was liable for negligence for not having taken measures to prevent sabotage to its wells, which caused the spills. The court ordered the subsidiary to pay damages to the Nigerian farmers.^[5] Given their high public profile as one the biggest Dutch multinational corporations and given this successful case in the past, it is not unlikely that climate change related cases will emerge sooner rather than later.

The flood of cases against RDS and several other major oil companies in the United States may well be the trigger for such future cases in other countries, including the Netherlands. In 2017, seven Californian municipal and country governments filed cases against RDS and others (“big oil”), in an attempt to claim damages from sea level rise, altered water cycles, increased wild fires etc.^[6] In January 2018, New York City filed another lawsuit in a federal court, again against RDS as well as BP, Chevron, ConocoPhillips and Exxon Mobil, to recover adaptation costs to protect the city against sea level rise and increased storm intensity.^[7]

The complaint in the latter case is a very interesting document that in very strong and persuasive words argues that these companies’ actions constitute an unlawful public and private nuisance and an illegal trespass upon New York City property because they produced, marketed, and sold fossil fuels ‘for decades and at ever more dangerous levels while knowing of the harm that was substantially certain’ and that lead to ‘damage from climate change, including inundation, erosion, and regular tidal flooding’ of the city’s property and to ‘imminent threats to its property, its infrastructure, and the health and safety of its residents’.

As stated above, the case is entirely focused on adaptation costs. The complaint refers to a number of actions already taken on which billions of dollars have been spent:

–        Protect vulnerable residents during increasingly severe heat waves (which already kill more New Yorkers each year than all other natural disasters combined)

–        Reinforce NYC coastline and elevate its infrastructure within the floodplain.

In addition, it looks ahead to future adaptation measures that need to be taken:

‘the City must build sea walls, levees, dunes, and other coastal armament, and elevate and harden a vast array of City-owned structures, properties, and parks along its coastline (…) [such as] enlarge existing storm and wastewater storage facilities and install additional facilities and associated pumping facilities and infrastructure to prevent flooding in low-lying areas that are vulnerable to rising seas and increasingly severe downpours.’ According to the complaint, ‘these are long-term design and construction projects that must be built to last for decades, often up to fifty years or more. The City must take these actions as soon as possible in order to protect public health and safety and City property and infrastructure. The costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.’

What is particularly interesting in this case, is the emphasis that is placed on the special position that these big oil companies have, not just because of their large share in global fossil fuel production, but also because of their role in misinforming the public. The complaint devotes several pages of text to the campaign orchestrated by the oil companies to cast doubt on climate science and gives detailed examples of covert attempts to mislead the public. The complaint concludes:

‘Defendants are not only quantitatively different from other contributors to climate change given their massive and dangerous levels of fossil fuel production over many years—they are also qualitatively different from other contributors to climate change because of their in-house scientific resources, early knowledge of climate change impacts, commercial promotions of fossil fuels as beneficial despite their knowledge to the contrary, efforts to protect their fossil fuel market by downplaying the risks of climate change, and leadership roles in the API and other organizations that undertook a communications strategy for the fossil fuel industry. In this coordinated effort to discredit the science, which began in earnest during the 1990s and has continued in a subtler form even in recent years, Defendants and their agents and advocates have made the alleged “uncertainty” of climate science their constantly-repeated mantra. The purpose of this campaign of deception and denial was to increase sales and protect market share.’

In my view, these cases against ‘big oil’ in the US may very well pave the way for a global flood of litigation against oil companies. The recent adoption of the Principles on Climate Obligations of Enterprises by a group of former judges and law professors from around the world will help push this movement.^[8]

Another interesting recent development is the growing pressure on investment banks and pension funds to divest in fossil fuel related projects.

In the Netherlands, in 2017 a first step towards challenging investment portfolios of banks and pension funds in case of climate unfriendly investment was taken by the submission of a complaint under the OECD Guidelines for Multinational Enterprises. Several environmental and development NGOs submitted a complaint against the Dutch multinational ING Bank, which is heavily involved in funding fossil industries, including funding new coal fired power plants in developing countries. According to the NGOs, ING is violating several provisions of the OECD guidelines, such as the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions.’^[9] The NGOs request ING to start reporting on its indirect greenhouse gas emissions and to establish and pursue goals which will bring the bank’s indirect greenhouse gas emissions in line with the goals of the Paris Agreement. In November 2017, the National Contact Point of the Netherlands declared the complaint admissible. This seems to be the first time a climate change related complaint is found to be admissible by any National Contact Point for the OECD Guidelines.^[10] Although this is not a procedure before a court of law, this case may provide a precedent for future cases before domestic civil courts.

[1] Jonathan Verschuuren, Jan McDonald, ‘Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia’ (2012) 1:2 Transnational Environmental Law 355-379.

[2] https://deltaprogramma2016.deltacommissaris.nl/viewer/paragraph/1/deltaprogramma-/chapter/het-deltafonds-financieel-fundament-onder-het-deltaprogramma/paragraph/de-financiele-opgaven-van-het-deltaprogramma

[3] Paul Griffin, The Carbon Majors Database. CDP Carbon Majors Report 2017 (CDP 2017), 14.

[4] On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. The most important judgement is Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie’s website.

[5] See in more detail, Nicola Jägers, Katinka Jesse, Jonathan Verschuuren, The Future of Corporate Liability for Extraterritorial Human Rights Abuses: The Dutch Case against Shell, (2014) American Journal of International Law Unbound “Agora: Reflections on Kiobel”, e-36/e-41.

[6] Michael Burger, Local Governments in California File Common Law Claims Against Largest Fossil Fuel Companies, blogpost Sabin Center for Climate Law, 18 July 2017, http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-largest-fossil-fuel-companies/, and Jessica Wentz, Santa Cruz Joins Other Municipalities Suing Fossil Fuel Companies for Damages Caused by Climate Change, blogpost Sabin Center for Climate Law, 8 January 2018, http://blogs.law.columbia.edu/climatechange/2018/01/08/santa-cruz-joins-other-municipalities-suing-fossil-fuel-companies-for-damages-caused-by-climate-change/.

[7] Nicholas Kusnetz, New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest, Inside Climate News 11 January 2018, https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio . The full text of the complaint is available through this blogpost.

[8] Expert Group on Global Climate Change, Principles on Climate Obligations of Enterprises (Eleven International Publishing 2017).

[9] The full text of the complaint (in English) is available online through https://www.oxfamnovib.nl/persberichten/klacht-tegen-ing-vanwege-schending-oeso-richtlijnen.

[10] According to one of the NGOs involved, see: https://www.oxfamnovib.nl/nieuws/klimaat-klacht-tegen-ing-in-behandeling-genomen.

14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.

07/09/2017

Movie Review: Unlocking the Cage

(Student, Tilburg University)

THE NON-HUMAN RIGHTS PROJECT’S ATTEMPTS TO GRANT LEGAL PERSONHOOD TO CHIMPANZEES: HEROIC OR ABSURD?

Abstract

The DNA of a chimpanzee matches for nearly 98% with the DNA of a human. Does this mean that they should be entitled to the same rights? As of today the main question to determine whether you have a right or not is: are you a human being? In Unlocking the Cage D.A. Pennebaker and documentary veteran Chris Hegedus follow Steven Wise in his extraordinary challenge to break down the legal wall that separates animals from human beings. His team’s, the Nonhuman Rights Project, objective is to transform an animal, more specific ‘’non-human’’ animals, e.g. chimpanzees, whales, elephants, from a ‘’thing’’ with no rights to a person that has legal protection and legal personhood. Wise and his team are making history by filing the first lawsuits to achieve this goal.

Introduction

The movie tells a story about the Non-human Rights Project (NhRP). This is an animal rights organization that tries to establish legal personhood for certain ‘’non-human’’ animals.  These non-human animals are for example apes, elephants and cetaceans etc. It is possibly the only organization in the United States that puts time into achieving actual legal rights for animals. Their goal is to achieve a change in the legal status of non-human animals from just ‘animals’ into a legal person who possesses (fundamental) legal rights (e.g. the integrity of the body or bodily liberty). They try to achieve their goals through litigation, advocacy and education. Besides the already mentioned goal of changing the common law status of non-human animals, their goals are furthermore to consider other qualities that may be sufficient for recognition of nonhuman animals’ legal personhood and fundamental rights: inspiration is drawn from evolving standards of morality, scientific discovery, and human experience. The NhRP also develops local, national, and global issue-oriented grassroots campaigns to promote recognition of nonhuman animals as beings worthy of moral and legal consideration that have their own inherent interests in freedom from captivity, participation in a community of other members of their species, and the protection of their natural habitats. The organization aims to build a broad-based coalition of organizations and individuals to secure legally recognized fundamental rights for nonhuman animals and to foster understanding of the social, historical, political, and legal justice of their arguments and the scientific discovery of other species’ cognitive and emotional complexity that informs them.

The organization consists of a diverse team but what they have in common is an affection for law and animals. The team includes animal rights lawyers, legal experts and law students who work on a voluntary basis. Steven Wise is the organization’s “leader”. Wise is a respected teacher and author in the field of animal rights and animal jurisprudence. His subject ‘’Animal Rights Law’’ is taught at various universities across the United States.

The movie follows the ambitious efforts of Wise and his team in the period 2013 – 2015. The team tries to make history by going to the courtroom, attempting to improve animals’ legal position and give them rights. Their first step is the establishment of these rights for apes, elephants and cetaceans and after that other animals should follow. These animals were chosen because they have all been studied and it is determined that they have highly developed cognitive skills and awareness of themselves. Wise calls this a ‘’theory of mind’’.

Wise sets out to prove that cognitively complex animals (like the animals mentioned above) do have the capacity for limited personhood rights. Pennebaker and Hegedus have been following Wise’s and his teams’ historical battle for two years in order to understand what it means to be autonomous and whether sentient beings should have the right of freedom.

In the movie we see Wise and his team going around the state of New York in order to look for apes and see in which circumstances they live. Some apes were held in sanctuaries where they try to communicate with their human keepers. Other apes on the other hand, are being kept solely for the sake of being kept. Wise’s team builds court cases around those latter non-human animals (apes in this matter). As a starting point, Wise selects individual animals (Merlin and Koko for example) and his main goal is to establish legal personhood for these particular animals. His team takes action step by step in order to achieve this goal. The question is how fast this will happen. ‘’This is the end of the beginning’’, to quote Wise at the end of the movie.

The movie

Since the past decades, the fight for animal rights has become a growing movement. It is a movement with many fronts and expressions, from principled vegetarianism (but not exclusively) to the denouncement of animal experimentations. Unlocking the Cage focusses on the American front and on one intrepid animal advocate.

The movie revolves around the law suits lodged by the NhRP. Tommy is a chimpanzee who was isolated in a garage. Wise and his team demanded in the lawsuit that Tommy would be released and transferred to a Florida sanctuary. The lower judge was impressed by Wise’s arguments and directed the lawsuit to the Appellate Court in Albany. It was in 2014, in that case, that judges openly discussed the matter regarding legal personhood of non-human animals. Nevertheless, the results were unfavorable: Tommy was moved to a zoo and remained in deplorable conditions.

The next case involved a chimpanzee named Kiko. This case evolved in a different way compared to Tommy’s case. This case was a great showcase of the legal disagreement that exists on the question whether to enlarge the legal system by attributing legal rights to non-human animals or not. The case was rejected in first instance, but an appeal is planned before the appeals court.

The chimpanzees in the final case, Hercules and Leo, were used for research at New York’s State University. This was the case that truly challenged the court. Wise argued against the New York’s assistant attorney general by making a plea that made judge Barbara Jaffe question whether a chimpanzee should not be deemed a person for the limited purpose of permitting the writ of habeas corpus.

My opinion

(Ismet Öncü)

In the past it was assumed that legal persons were individual human beings only. However, the personhood of corporations has also been affirmed. The personhood of corporations is routinely used as a liability and litigation tool: the question in this matter is whether the definition of “personhood” can also be expanded to include non-human animals? Can we compare the personhood of a corporation or a human’s personhood to the animal personhood? The former two can result into their own liability (and thus can results into liability for damages). This is not the case with animals. They are not entirely free from harm and exploitation.

While fervent animal rights advocates have argued for personhood for animals, the critics denounce the assertion as absurd. There has been some skepticism regarding this matter. However, the animal rights movement has slowly and zealously been inching for a while. In the world of animal law Wise is a known person and his achievements are inspiring. Below I will discuss my opinion on the pros and cons of the movie.

Pros

I can really recommend this movie for animal lovers, especially for those who are in law school. The movie is well paced and very informative. Unlocking the Cage has started the conversation about animal rights and since this movie more and more people started to listen. Speciesism is causing the destruction of the planet earth and this movie gives insight into that matter. Unlocking the Cage takes the next step in human evolution.

The movie was praised by national (American) and international media. They stated that the movie was a ‘’heroic courtroom thriller’’.

In my personal opinion the movie was a real eye-opener into a matter that was unknown territory for me. It is inspiring to see how passionate and with so much conviction Wise and his teams are committed to reaching their goals.

Contras

On the other hand, some of Wise’s viewpoints seem to be counterintuitive. How can an animal with no language or any other form of human culture have standing to seek redress from human institutions? Animals cannot start a legal process; thus it must be done on behalf of these animals. But do we have adequate animal advocates who are willing to do that? This is still a matter that remains unclear. Beside these procedural issues, practical concerns need to be addressed too. In the courtrooms, for instance, will these ‘’animal cases’’ be judges in front of the same judges where people start their lawsuits? Under which jurisdiction? Civil? Criminal? Will we need a separate jurisdiction within our legal system in order to deal with these animal cases? One judge’s decision on whether  a chimpanzee can have personhood ran over 30 pages and that says a lot. There are a lot of question that still need to be answered. Nevertheless, this does not devaluate the efforts of Wise and his team to bring awareness to the (legal) position of non-human animals.

Furthermore, I found that some of Wise’s arguments are stronger than others. He states that apes, elephants and cetaceans could be seen as ‘’legal persons’’ based on their ‘’theory of mind’’ and other human attributes. But is this not still a matter of scientific debate? It could be possible, in my opinion, to deny that these non-human animals Wise selects, are smart animals. It seems an arbitrary line to draw. Moreover, his intimation to a reporter that a chimp’s captor should move into a cage, in order to see if he likes being in there, seems a bit foolish to say the least. We, humans, do also not like to inhabit underground tunnels but this does not mean that rats are not perfectly happy there.

The goal of this movie is to create awareness but in my opinion Wise’s accomplishments disappoint at this point (apart from the moral victories). Wise and his team have not achieved much in those 2-3 years the camera crew of Hegedus and Pennebaker followed them. The things they do accomplish had already been covered in the news. This makes the movie feel kind of redundant. Most of the time the viewer looks at Wise’s appearances in various TV shows (i.g. The Colbert Report). Those parts are not trailblazing. The most interesting parts is the footage which provides a look into the New York State Supreme Court, where we can follow Wise arguing for his petition. In my opinion this back fired a bit, because the judges were asking genuinely probing questions and that made the whole matter seem even murkier. In short, this movie did not (yet) achieve much in the interesting matter of personhood of non-human animals.

Another question is whether there is a taxonomic reason for this matter to be made into a movie.  Some biologists have argued that there is no legitimate taxonomic reason to consider humans and apes as part of the same gen. The discussion on this subject has not yet ended in literature.^[1] This matter goes back to Dawkin (2004) who popularized the notion that we (i.e., human beings) are the ‘’third chimpanzee’’. However, it is still not clear if human beings are great apes or not. This is important for our conceptualization of a human being. The scientific evidence in support of the point of view that we are great apes lies in anatomical and morphological arguments. Marks (2009) refers in this matter to the common ‘’Y5’’ pattern, a rotating shoulder, fused caudal vertebrae and a large and complex brain. On the other hand Dunbar (2008) claims that human beings differ from great apes. The critical aspect in his point of view lies in our imagination (e.g. religion, story-telling). In my opinion humans can be considered as humans and great apes are our closest extant relatives. It is our own ego that insists on dividing the line between humans and apes.

Conclusion

Overall Unlocking the Cage remains a great movie which gave me insight into the matter of animal legal rights. Unless the fact that I gave more cons than pros, I can really recommend (and I already did) to anyone who has an affection for law and animals combined. This movie captures a shift in our culture, as the public and juridical system show receptiveness to Steven Wise and his team’s impassioned arguments. Unlocking the cage is an intimate look at a lawsuit that is unprecedented and that could forever change our legal systems, if additional specifications, in my respect, are made.

[1] One may refer to Dawkins, R., The Ancestor’s Tale (2004). Bouston: Houghton Mufflin. Dunbar, R., Why Humans Aren’t Just Great Apes (2008). Ethnology and Anthropology. 3:15-33. Marks, J., Why Be Against Darwin? Creationism, Racism, and the roots of Anthropology. Yearbook of Physical Anthropology, 55: 95-104.

28/08/2017

Natural Visions: The Aesthetics of Environmental Law

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

Among the most reproduced photographs in the world are NASA’s first images of Earth — most famously the iconic Blue Marble image taken by the Apollo 17 crew in 1972 from a distance of 45,000 km from the planet’s surface. It profoundly moved people with a stunning picture of a beautiful yet vulnerable planet, and helped propel the global environmental movement.^[1]

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Aesthetics can touch our most visceral feelings about the natural environment in ways that technical data or expert reasoning cannot easily conjure. Majestic scenery, charismatic animals, and serene landscapes are among the perceived glories of natural environments that motivate people to care for them. An Italian and German may not understand one another’s tongue but can share admiration of a sublime mountain range or exquisite bird of paradise. Such affection can translate into stronger legal status for such places and species, such as creation of a national park or protection of treasured wildlife.  In Tasmania, where I live, nature’s beauty of this genre is never far away.

Aesthetic values have ostensibly informed numerous environmental laws. Great Britain’s National Parks and Access to the Countryside Act 1949 was established ‘for the purpose of preserving and enhancing the natural beauty’ (section 5(1)). The goals of the United States’ National Environmental Policy Act 1969 include ensuring ‘esthetically and culturally pleasing surroundings’ and preserving ‘important historic, cultural, and natural aspects of our national heritage’ (42 U.S. Code s. 4331). Internationally, the World Heritage Convention of 1972 safeguards ‘natural areas of outstanding universal value from the point of view of … natural beauty’ (article 2). In domains inhabited by people, municipal land-use planning commonly incorporates aesthetic criteria to protect architectural gems, historic streetscapes and bucolic countryside.

But we should not infer that aesthetic values are environmental law’s leitmotif – indeed quite the contrary. Scientific knowledge and economic values dominate rationalisations for environmental decisions. Arguments over how to deal with climate change or save endangered species are typically rationalised around the scientific evidence or economic costs and benefits. These criteria supposedly inject ‘objectivity’ and ‘neutrality’ into often deeply politicised disputes over the environmental impacts of developments. Public participation is another valorised input into environmental governance, as endorsed in most legislation and the Aarhus Convention; however, citizen participation (which can be a means to express aesthetic values) in practice is often managed for appearances in order to secure public acceptance of decisions already reached on other grounds.^[2]

Is aesthetics thus only to hold a minor place in environmental governance, and what issues must we address in defining its role? I believe that beauty and other aesthetic values should have a more prominent place here. While science and economics supply a variety of reasons to conserve nature, such as revealing its biodiversity values or economic benefits, these disciplines do poorly in emotionally engaging people with their environs. Abundant environmental science has struggled to leverage fundamental shifts to our environmental attitudes and practices, as evident in continuing deforestation, industrial development and pollution. A sense of place or other personal connection to an environment grows when its beauty, spirituality or other sensuous qualities uplifts one. Empirical research shows positive correlations between specific landscape or environmental features and human wellbeing.^[3] And individual well-being can lead to social change: as Aldo Leopold presciently observed, ‘we can only be ethical in relation to something we can see, feel, understand, love, or otherwise have faith in’.^[4]

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

But any appeal to enrich legal governance with environmental aesthetics faces several challenges. Firstly, the aesthetic values that tend to captivate us are frequently associated with ‘specialness’ – perhaps a rare species or sublime landscape. But the ‘specialness’ benchmark has drawbacks: we should protect species before they become so endangered or rare as to move us, and pretty landscapes are not necessarily more ecologically important than a ‘mundane’ grassland or swamp. Even human-dominated landscapes punctuated by billboards and buildings, or golf courses and garbage dumps, can harbour wildlife adapted to living in our midst.^[5] If we are to leverage action through environmental aesthetics, we must find beauty or other aesthetic values more widely than just within ‘special’ enclaves.

Secondly, because of the common assumption that the human response to aesthetics is subjective rather than factual or rational, aesthetic judgements determined by the beholder rather than the object can be viewed as deficient. Colloquially, we typically call this bias ‘beauty being in the eye of beholder’. Some researchers identify a shared, cross-cultural preference for landscapes that resemble Homo sapiens’ evolutionary cradle, the undulating African savannah.^[6] Psychologists also identify a shared taste for fractal patterns in scenery, ‘featuring patterns that repeat at increasingly fine magnifications’ such as clouds, rivers and coastlines.^[7] But while an aesthetic sense is surely a universal human trait, it is both personality- and culture-bound, with different artistic expressions and preferences found between and within cultures: a lover of Van Gogh’s delicate Irises might easily spurn Mark Rothko’s austere No.61 (Rust and Blue).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Furthermore, in our urban demography we often aesthetically engage with nature not directly but vicariously — through David Attenborough-narrated films, lavish coffee-table books or soothing nature sounds CDs. Artistic representations of landscapes, flora and fauna are among humankind’s earliest cultural expressions, such as the 20,000 years old Palaeolithic paintings adorning the Lascaux Caves in France and Aboriginal rock art in Australia of even older vintage. The arts thus mediate our access to environmental aesthetics. Natural beauty has become an essential ‘resource’ for activist organisations. In Tasmania, it was especially evident in Olegas Truchanas’ and Peter Dombrovskis’ sublime photographs to rally public interest in saving Lake Pedder and the Franklin River respectively from dams, ^[8] and again today to help conserve the imperilled Tarkine rainforests through the ‘Tarkine in Motion’ festival.^[9] While these examples tend to reinforce that ‘specialness’ bias, the arts are increasingly enlisted to conserve ‘ordinary’ nature; recent successful examples include the Tasmanian Land Conservancy’s ‘Poets and Painters’ (2016-17) and ‘Skullbone Experiment’ (2014) that engaged artists to educate the public about the ecological and aesthetic values of two of the Conservancy’s private reserves in relatively unimposing (but ecologically valuable) landscapes.^[10]

Further challenges with environmental arts include that they sometimes cater to an unrepresentative socio-economic demography (ie, urban, affluent, educated), thus missing the rural and poorer communities who often have more at stake directly in the environmental controversies. And some people might ‘read’ landscapes not for their beauty but for other aesthetic values such as having a spiritual connection, as in Aboriginal Dreamtime stories. Going beyond the ‘purview of the “landscape” of other received aesthetic categories of environmental perception’, Alan Braddock recommends an ‘eco-critical’ approach that emphasizes ‘environmental inter-connectedness, sustainability, and justice in cultural interpretation’ and reexamining canonical works to highlight ‘neglected evidence of past ecological and proto-ecological sensibility’.^[11] In other words, more diverse conceptions of environmental aesthetics can help address lacunae or biases, and respect art historian Simon Schama’s advice to recognise that landscapes have a socialised, layered history.^[12]

Strengthening community involvement in environmental art might attenuate some of the foregoing challenges. Here the emphasis shifts from the artistic representation of the natural world as an object of admiration to community engagement and dialogue with that world. This approach not only dovetails with the theory of ‘interested engagement’ in the aesthetics literature,^[13] but also environmental law’s commitment to public participation.^[14] Ecological restoration projects provide an interesting setting for these goals, as currently practised by Greening Australia in its Tasmania Island Ark initiative. Greening Australia has collaborated with the University of Tasmania’s College of the Arts to involve artists with regional schools and local townships in designing sculptures for placement in the landscape not only to support the community’s interpretation of the restored biodiversity but also to directly aid the biodiversity’s recovery by designing artworks that serve as ‘species hotels’ for birds, bats and other creatures.^[15] Another approach, used in the United States, was undertaken by the US Nature Conservancy in its restoration of a wetland in Illinois; it recruited citizens to be artists themselves — to draw, paint, photograph, or otherwise depict the restoration endeavour and its results.^[16]

Beauty is indispensable for our relationships with the natural environment and the laws we design to conserve it, helping people to move beyond a cold, instrumental relationship to one provoking affinity, curiosity, adoration and other intimacies. Artistic depictions of landscapes can influence their legal status, as Alice Palmer has investigated in her excellent analysis of the impact of aesthetics in World Heritage property listings including those in my own homeland of Tasmania where Peter Dombrovskis’ photographs of its southwest wilderness were used by the Australian government as evidence to support its nomination of this area for World Heritage status.^[17] Given the ineffectiveness of much environmental regulation and considerable insouciance by some about the Anthropocene, we need to re-think how to engage everyone in caring for the Earth and the legal means to leverage that engagement.

[1] R. Kelsey, ‘Reverse shot: Earthrise and Blue Marble in the American imagination’ in E.H. Jazairy (ed), Scales of the Earth (Harvard University Press, 2011), 10.

[2] S. Bedder, ‘Public participation or public relations?’ in B. Martin (ed), Technology and Public Participation (University of Wollongong, 1999), 169.

[3] R. Kaplan, ‘The nature of the view from home’ Environment and Behavior 33(4) (2001): 507; K. Williams and D, Harvey, ‘Transcendent experience in forest environments’ Journal of Environmental Psychology (2001) 21: 249.

[4] A. Leopold, A Sand County Almanac (Oxford University Press, 1949), xxvi.

[5] T. Low, The New Nature (Penguin, 2017).

[6] D. Dutton, The Art Instinct. Beauty, Pleasure, and Human Evolution (Bloomsbury Publishing, 2010), passim; J. Appleton, The Experience of Landscape (Wiley, 1975), 73-74.

[7] R. Taylor, ‘Fractal patterns in nature and art are aesthetically pleasing and stress-reducing’, The Conversation, 31 March 2017.

[8] T. Bonyhady,  ‘No dams: the art of Olegas Truchanas and Peter Dombrovskis’, in R. Butler (ed), The Europeans: E´migre´ Artists in Australia 1930 – 1960 (National Gallery of Australia, 1990): 236.

[9] ‘Artists return from threatened Tarkine wilderness – major exhibition installed in Hobart’, Media release, Bob Brown Foundation, 2017.

[10] J. Deeth, ‘The Skullbone experiment: a paradigm of art and nature’, Artlink, June 2014; H. Aird, ‘Poets and painters: new exhibition produces “extraordinary synergies”’, ABC News 28 July 2017.

[11] A.C. Braddock, ‘Ecocritical art history’ American Art (2009) 23(2): 24, 26.

[12] S. Schama, Landscape and Memory (Fontana Press, 1995).

[13] A. Berleant, Living in the Landscape: Toward an Aesthetics of Environment (University Press of Kansas, 1997).

[14] B.J. Richardson and J. Razzaque, ‘Public participation in environmental decision-making’ in B.J. Richardson and S. Wood (eds), Environmental Law for Sustainability (Hart Publishing: 2006)): 165.

[15] Greening Australia, ‘Building hotels for Tasmania’s unique species’.

[16] S.K. Allison, Ecological Restoration and Environmental Change: Renewing Damaged Ecosystems (Routledge, 2012), 188.

[17] A. Palmer, ‘Legal dimensions to valuing aesthetics in World Heritage decisions’ Social and Legal Studies (2017): 1 at 8, DOI: 10.1177/0964663917698859.

21/08/2017

The Importance of International Wildlife Law and the Value of Multidisciplinary Collaboration in this Field

In the battle to halt and reverse the global biodiversity crisis, a crucial role is reserved for international legal instruments. An open-access viewpoint article in BioScience, written by an international assemblage of wildlife lawyers, conservation biologists and social scientists, highlights the importance of international law in wildlife conservation. The article explores the various ways in which treaties can contribute to conservation, as well as their limitations; and calls for both increased, strategic recourse to international wildlife law as a conservation tool, and further cooperation between lawyers and other conservation professionals. As the 21 authors conclude:

“With their long-term, legally binding commitments on a transboundary scale, international legal instruments can be important, sometimes indispensable implements in the conservation toolbox. Having explored why international wildlife law matters and what can and cannot be expected of it, we are convinced that by joining forces, lawyers and other conservation professionals can improve the contribution of international wildlife law to biodiversity conservation. There is much to be gained, partly by enhancing the legal framework itself but especially by seizing the many opportunities offered for advancing the effective application of the law as it stands. We hope that this article can be a useful step along this path.”

Multidisciplinary cooperation is also a key focus of the 18^th International Wildlife Law Conference, which will be held at Tilburg University in the Netherlands on 18-19 April 2018. This is reflected in the scheduled keynote addresses by international wildlife lawyer Michael Bowman (School of Law, University of Nottingham) and conservation biologist David Macdonald (Wildlife Conservation Research Unit, University of Oxford). The Tilburg Environmental Law Team strongly encourages law professionals/students with an interest in wildlife, as well as wildlife professionals/students with an interest in law, to consider participating in this event.

Arie Trouwborst, Andy Blackmore, Luigi Boitani, Michael Bowman, Richard Caddell, Guillaume Chapron, An Cliquet, Ed Couzens, Yaffa Epstein, Eladio Fernández-Galiano, Floor Fleurke, Roy Gardner, Luke Hunter, Kim Jacobsen, Miha Krofel, Melissa Lewis, José Vicente López-Bao, David Macdonald, Steve Redpath, Geoffrey Wandesforde-Smith & John Linnell, “International wildlife law: Understanding and enhancing its role in conservation“, BioScience 2017, doi:10.1093/biosci/bix086

13/06/2017

Enhancing Soil Carbon Sequestration and Adaptation in Europe’s Agricultural Sector: Towards a New Approach under CAP and ETS

Soils contain large quantities of carbon, mainly made up of decomposing plant materials and microbes. The Earth’s soils contain around 2500 Gt of carbon, four times more than vegetation.^[1] Through soil degradation, much of natural soil carbon stocks has been lost. It has been estimated that the carbon sink capacity of the world’s agricultural and degraded soils is 50 to 60% of the historical carbon loss of 42 to 78 Gt of carbon.^[2] With around 40% of the world’s surface being used for agriculture, it is suggested that these agricultural lands may be used as an important sink for atmospheric carbon.^[3] Soil erosion control and soil restoration has an estimated carbon sequestration capacity of between 5 and 15% of global emissions.^[4] After peaking, a new equilibrium will be reached and the sequestration potential goes down. It should also be noted that the carbon stored in soils can be easily emitted again with deep tillage and significant soil disturbance.^[5]

(Photo: Flickr user Kai C. Schwarzer)

Increasing soil carbon sequestration has a very interesting positive impact on climate change adaptation. Measures aimed at soil carbon sequestration increases the ability of soils to hold moisture and to better withstand wind and water erosion, enriches ecosystem biodiversity, helps cropping systems to better withstand droughts and floods, increases fertility for crops through restoring healthy soil microbial communities, and increases livestock efficiency (sustainable intensification).^[6] Other potential positive side-effects of practices aimed at soil carbon sequestration are various environmental benefits, such as avoided use of chemical fertilizers and pesticides and improved biodiversity and wildlife.^[7]

Examples of soil carbon sequestration practices relevant for Europe are the application of conventional or organic no-till and conservation tillage systems, the use of periodic green fallows, winter cover crops and crop rotations that utilize semi-perennial crops, rotational grazing, decreased grassland management intensity, perennial cropping, nutrient management consisting of compost (crop residue addition) and organic manure, and judicious use of irrigation water.

Research shows that strong top-down policies that are linked with, and fed by, bottom-up initiatives, are needed to achieve the required level of adaptation in the agricultural sector.^[8] Holistic strategies have to be adopted that go beyond technical approaches aimed at stimulating autonomous farm-level risk reduction. So far, the EU did not focus much attention on agriculture in its climate change adaptation policy. The EU’s Adaptation Strategy refers to the Common Agricultural Policy (CAP) in which adaptation measures have been integrated to a limited extent.^[9] An assessment of the soil carbon related adaptation potential of the current CAP, however, shows that this potential is limited. Soil carbon projects can receive funding both under the green direct payments, and under the rural development policy. Whether such projects are actually carried out with CAP funding depends entirely on initiatives by farmers (for green direct payments), or by Member States (for the rural development policy). Unfortunately, there are not many indications that Member States radically focus their Rural Development Programmes (RDP) on climate change, perhaps with the exception of Ireland. The CAP also has several inherent constraints as far as soil carbon sequestration and associated adaptation are concerned, mostly due to the fact that CAP is not linked to the EU climate policy but serves as a separate instrument with a much wider policy goal than combatting climate change. The accounting rules, for example, do not require farm level quantification of the amount of carbon sequestered linked to the payment, so it cannot be assessed whether and in how far an increase in soil carbon levels is real, additional and verifiable. Integrating the CAP more into the EU’s climate policy requires rules to be set in place to assure a reliable measuring of the carbon sequestered. Payments, to give another example, are based on the amount of hectares per year of measures under the RDP, not on the amount of CO₂ sequestered. This is a consequence of the provision that payments can only cover additional costs and income forgone resulting from the commitments made.^[10] Such indirect payments, therefore, do not stimulate farmers to sequester as much carbon as possible. A third example of the CAP’s shortcomings with regard to soil carbon sequestration is that projects financed under the CAP are characterized by a relatively short lifespan, 1-5 years for green direct payments, and 5-7 years for projects under a RDP. Under a climate policy, such a lifespan is almost futile, as combatting climate change requires measures that cover decades, if not the entire 21^st century. That is why in Australia, carbon sequestration projects are required to run for twenty five or even a hundred years (see blog posts on Australia’s carbon farming legislation part 1 and part 2).

Towards an alternative approach: agriculture in the EU ETS

The conclusion that the current EU policy is completely inadequate to stimulate large scale soil carbon sequestration on agricultural land seems inevitable, also when taking into account the broader climate change mitigation policy. The recently presented proposal for a European Regulation on the inclusion of greenhouse gas emissions and removals from land use and forestry into the EU’s 2030 climate framework (LULUCF Regulation) is a good first, yet inadequate, step towards including agriculture’s emissions and sequestration potential into the EU’s climate policy (see for broader assessment of the climate policy instruments, the paper). That is why an alternative approach needs to be developed. A further stimulus to the adoption of soil carbon projects that currently is not being discussed but that needs to be investigated at European level soon is the inclusion of agriculture in the EU ETS through allowing regulated industries to buy offsets from the agricultural sector, following the examples set by California, Alberta, Australia, and more recently also China.^[11] These states show that it is possible to stimulate soil carbon sequestration (and other climate smart agriculture practices and technologies) through the ETS, provided an elaborate regulatory regime has been put in place to ensure integrity. When in place, sectors covered by the ETS will be allowed to finance sequestration projects on farm land, thus paying farmers for their efforts.

The recent report of the Agricultural Markets Task Force, a European Commission expert group, also proposes to incentivise to farm carbon in addition to crops. The Task force, however, proposes to do this through redirecting funds under the CAP after 2020. It is debatable, though, whether this will be a successful strategy given the inherent shortcomings mentioned above. Some of the current constraints can perhaps be repaired, such as the short commitment period, or the provision that payments can only cover additional costs and income forgone. It is highly unlikely, though, that the CAP budget will be big enough to cover an EU wide adoption of carbon farming practices. An evaluation of the Australian carbon farming legislation indicated that government funds will never suffice to roll out an incentive mechanism across all farms in the country and that private funds need to come in, either through a carbon tax or an ETS.^[12] The latter seems very suitable for the EU with its well-developed ETS that, hopefully, will pick up speed again after the structural reform takes effect in the fourth trading phase, which runs from 2021 until 2030. Regulation aimed at establishing a finance flow from large industrial emitters to the farming sector, with its capacity to sequester large quantities of carbon on farm land, seems a promising alternative, which is completely in line with the polluter pays principle as laid down in Article 191(2) of the Treaty on the Functioning of the EU.

[1] Daniel Kane, Carbon Sequestration Potential on Agricultural Lands: a Review of current Science and Available Practices (Breakthrough Strategies & Solutions, Takoma Park, Md 2015).

[2] Emanuele Lugato et al., ‘Potential carbon sequestration of European arable soils estimated by modelling a comprehensive set of management practices’, (2015) 20 Global Change Biology 3557.

[3] Pete Smith, ‘Agricultural Greenhouse Gas Mitigation Potential Globally, in Europe and in the UK: What Have We Learnt in the last 20 Years?’ (2012) 18 Global Change Biology 35.

[4] M.G. Rivera-Ferre et al., Re-framing the Climate Change Debate in the Livestock Sector: Mitigation and Adaptation Options, (2016) 7 WIREs Climate Change 869.

[5] Ibid.

[6] P. Smith et al., ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in: O. Edenhofer et al. (eds.), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 811, 846 and 847; J.R. Porter et al., ‘Food security and food production systems’ in: C.B. Field et al. (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 485, 515 and 518.

[7] Annette Freibauer et al., ‘Carbon Sequestration in the Agricultural Soils of Europe’ (2004) 122 Geoderma 1.

[8] L. Bizikova et al., Climate Change Adaptation Planning in Agriculture: Processes, Experiences and Lessons Learned from Early Adapters, (2014) 19 Mitigation and Adaptation Strategies for Global Change 411.

[9] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Strategy on Adaptation to Climate Change, COM (2013) 0216 final, 8.

[10] Art. 28(6) Regulation (EU) No 1305/2013.

[11] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7:1 Climate Law 1; Dong Sun et al., Carbon Markets in China: Development and Challenges, (2016) 52:6 Emerging Markets Finance and Trade 1361.

[12] Verschuuren 2017.

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 This blog is a summary of a paper accepted for presentation at the 3rd European Climate Change Adaptation Conference ‘Our Climate Ready Future’, Glasgow, 5th-9th June 2017 (ECCA2017). My project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

09/04/2017

From ‘Natural Objects’ to Holders of Legal Rights: The Expanding Concept of Personhood in India

In 1972, Christopher Stone published one of the seminal articles in environmental legal thinking: ‘Should Trees Have Standing?’. Stone observed that the history of law has seen the gradual extension of legal personality, and accompanying legal rights, to entities to whom it had previously been unthinkable that rights should be granted. Although such entities have included various categories of human beings (such as women, children, and slaves), the boundaries of legal personality have also been stretched to include certain non-humans, such as corporations. From this foundation, Stone proceeded to construct an argument for the extension of legal rights to what had hitherto been ‘natural objects’. Later the same year, in his dissenting opinion in Sierra Club v Morten, US Supreme Court Justice William Douglas famously aligned himself with Stone’s position, asserting that ‘[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. Nevertheless, it is probably safe to assume that, as had been the case in respect of other historically ‘rightless’ entities, the suggestion that rights be conferred upon nature initially struck many as being completely outlandish.

Fast forward almost half a century, and Stone’s proposal does not sit quite as uncomfortably as it might have when initially published. In the period since the early ‘70s, an abundance of environmental laws have emerged at both the international and national levels; and although it is not yet commonplace for states to bestow rights upon the environment (or components thereof), this practice is rapidly gaining traction in several jurisdictions. In 2008, Ecuador became the first country to include ‘rights of nature’ in its Constitution, including ‘the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’, as well as ‘the right to be restored’. Then, in 2014 and 2017 respectively, New Zealand passed the Te Urewera Act and the Te Awa Tupua (Whanganiu River Claims Settlement) Act, recognizing a national park and a river to be legal entities, with ‘all the rights, powers, duties and liabilities of a legal person’.

Last month, India became the most recent country to grant rights to particular features of the natural environment – not through legislation, but rather through two public interest litigation cases decided by the High Court of Uttarakhand (for an overview of how the cases emerged, see here). This post provides a brief synopsis and critique of the two judgments and comments on their significance.

Judgment #1: Cracking open the door to personhood

River Ganga (Photo by Flickr user Roehan Rengadurai)

In the first judgment (Mohd. Salim v State of Uttarakhand & Others), the Court was of the view that the ‘extraordinary situation’ in which the Ganga and Yamuna Rivers ‘are losing their very existence’ requires that ‘extraordinary measures be taken to preserve and conserve’ these rivers. After noting the deep spiritual connection between Hindus and the Rivers Ganga and Yamuna, the Court cited several previous judgments (predominantly from India’s Supreme Court) in which the concept of legal personality and its extension have been considered. The Court paid particular attention to decisions holding that a Hindu idol/deity is a juristic person, capable of possessing its own property (which is managed on the deity’s behalf by a human guardian), being taxed, and suing as a pauper. It further emphasized that the concept of ‘juristic persons’ emerged to serve ‘the needs and faith of society’ and that ‘a juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons’. The Court proceeded to again stress the religious significance of the Rivers Ganga and Yamuna. Importantly, it also commented on the rivers’ role in supporting ‘both the life and natural resources and health and well-being of the entire community’ and pointed to provisions of the Constitution of India which require both the state and its citizens to protect the environment.

The Court ultimately held that ‘to protect the recognition and the faith of society’ and ‘preserve and conserve’ the Rivers Ganga and Yamuna, it was necessary to declare these rivers, ‘all their tributaries, streams, [and] every natural water flowing with flow continuously or intermittently of these rivers’ to be juristic persons ‘with all corresponding rights, duties and liabilities of a living person’. It further declared the Director of government’s NAMAMI Gange project, along with the Chief Secretary and Advocate General of the State of Uttarakhand, to be ‘persons in loco parentis as the human face to protect, conserve and preserve’ the rivers and their tributaries; and directed these persons to ‘uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers’. The Court stated that, in making this decision, it was exercising parens patriae jurisdiction (i.e. the jurisdiction to assume responsibility for the welfare of those unable to act on their own behalf), but did not elaborate upon this principle.

Judgment #2: Allowing more persons to enter the room

A mere ten days after its striking decision concerning the Rivers Ganga and Yamuna, the Uttarakhand High Court widened the ambit of legal personality even further to encompass ‘the Glaciers including Gangotri [and] Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’, and declared several individuals to be persons in loco parentis of these entities in the State of Uttarakhand (Lalit Miglani v State of Uttarakhand & Others). This second judgment was penned by the same two judges as the first, but is considerably longer and, unfortunately, also considerably less coherent.

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

While the first judgment had hinged largely – albeit not exclusively – on the religious importance of the rivers in question, less weight was placed upon this aspect in the second judgment. In reaching its decision, the Court considered the significance of, and threats to, various features of the natural environment. It expressed concern that the Gangotri and Yamunotri Glaciers (from which the Rivers Ganga and Yamuna originate) are receding due to pollution and climate change; that the various natural parks in the State of Uttarakhand, which ‘function as lungs for the entire atmosphere’, are threatened by human activities; that the State’s forests are threatened by large scale deforestation; and that forest fires are polluting the environment and harming wild animals, whose habitat is also shrinking. Throughout its judgment, the Court quoted extensively from several publications, which discuss, inter alia, the biodiversity of the Himalayas; the importance of trees from religious, cultural, economic and ecological perspectives; and the need to deviate from traditional approaches to protecting nature by recognizing nature’s rights. Curiously, no extracts from Stone’s ‘Should Trees Have Standing’ appeared in the decision, despite Stone having advocated precisely the kind of expansion of legal personality that the Court undertook in this judgment. Nor were excerpts included from the dissenting opinion in Sierra Club v Morten, although the Court did refer to New Zealand’s Te Urewa Act as an example of a country having recognized the legal personality of a national park.

The Court additionally drew text from a variety of international environmental instruments, reproducing the 1972 Stockholm Declaration, 1992 Rio Declaration, and 1992 Rio Forest Principles in their entirety, and also quoting large portions of the 1982 World Charter for Nature and 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). References to forests in the 1997 Kyoto Protocol and 2007 Bali Action Plan were additionally mentioned. The Court drew no distinction between legally binding and non-binding instruments – indeed, several mistakes in the judgment (which, for instance, erroneously refers to the Kyoto Protocol as the ‘Kyoto Declaration’) suggest that its authors failed to fully appreciate the nature of India’s commitments under the various instruments they referred to. The Court also failed to explain why it considered this selection of instruments to be relevant in reaching its decision, though presumably its rationale was that they illustrate the existence of wide-scale agreement amongst states concerning both the importance of the natural environment and the concomitant need for environmental protection. Further, although none of the instruments go so far as to call upon states to bestow legal rights upon nature, doing so is conceivably one route through which to achieve environmental protection, and thereby respond to some of the exhortations/obligations that the instruments contain. That said, the list of instruments that the Court chose to cite is somewhat surprising – in both its inclusions and its exclusions. Amongst the instruments referred to in the judgment, CITES stands out as a particularly odd choice. While numerous CITES listed species inhabit Uttarakhand (examples including the snow leopard, Uncia uncia, and the snow orchid, Diplomeris hirsuta), the Convention requires only that states protect these species from overexploitation through international trade, not that they engage in broader in situ conservation efforts, such as the protection of natural habitats. Given that the Court’s eventual expansion of legal personality pertained to particular habitats, but not to individual species, the 1992 Convention on Biological Diversity (CBD) would seemingly have provided better support for the decision – especially considering that this Convention recognizes the intrinsic value of biodiversity, whereas CITES’ focus is strictly utilitarian. However, the CBD received no mention in the judgment. Nor did the 1971 Ramsar Convention on Wetlands of International Importance or the 1972 World Heritage Convention, despite the Court both recognizing the legal personality of wetlands and emphasizing the need to protect natural parks in the State of Uttarakhand (which include the World Heritage listed Nanda Devi and Valley of Flowers National Parks). Still further instruments that could have been referred to, but weren’t, include the 2007 Non-legally Binding Instrument on All Types of Forests, the Outcome Document of the 2012 Rio+20 Conference (‘The Future We Want’), the 2015 Sustainable Development Goals, and the 2015 Paris Agreement. The Court’s failure to consider these four relatively recent documents might be explained by its apparent reliance on the outdated book Documents in International Environmental Law (2^nd ed.: 2004) as its primary source of information concerning relevant international instruments.

As had the initial judgment regarding the Rivers Ganga and Yamuna, this second judgment referred to citizens’ Constitutional duty to protect the environment. It further stated that ‘[t]he Courts are duty bound to protect the environmental ecology under the “New Environment Justice Jurisprudence” and also under the principles of parens patriae’. It then provided a lengthy collection of quotes from judgments and journal articles discussing parens patriae – in particular, in the context of allowing states in a federal system to sue to prevent injury to the environment. What is remarkable about this collection, however, is that the texts cited discuss the origins and evolution of parens patriae in the United States’ legal system, and provide no explanation whatsoever of how this principle operates in Indian law.

Towards the end of its judgment, the Court stressed that ‘[b]esides our constitutional and legal duties, it is our moral duty to protect the environment and ecology’, and ‘to hand over the same Mother Earth to the next generation’. It stated further that ‘rivers, forests, lakes, water bodies, air, glaciers, [and] human life are unified and are [an] indivisible whole’; and that rivers and lakes have an ‘intrinsic right not to be polluted’, and rivers, forests, lakes, water bodies, air, glaciers and springs ‘have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system’. In holding that these entities are legal persons the Court directed that their rights ‘shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury to the human beings’. At an earlier point in the judgment, the Court had also commented that ‘[t]rees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment’ – however, the rights of wild animals were not reasserted in the decision’s concluding paragraphs and, as noted above, the Court did not go so far as to recognize the legal personality of any of Uttarakhand’s native fauna.

Where to from here?

Whilst Indian law already obliges both citizens and the government to protect the environment, the legal significance of these two judgments is (as suggested by the title of Stone’s article) that litigation can now occur on behalf of certain features of the natural environment. Whether or not this enhances the environment’s protection in practice remains to be seen, although concerns have already been raised regarding the Indian government’s poor track record regarding environmental matters and the Court’s appointment of government officials as persons in loco parentis. As noted by Shivshankar, the second judgment did recognize the need for community participation (providing that ‘[t]he Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers’), but failed to specify how community members will be chosen or what their precise role will be. The judgments have further been criticized for failing to unpack what these new ‘persons’ can sue for, who they can sue, and whether there are any breaches of duty in respect of which they themselves can be sued. As things currently stand, a great deal of uncertainty thus remains concerning the implications of their newly established personhood. It is further significant that, since they originate from a High Court judgment rather than the Indian Supreme Court, the orders only apply within Uttarakhand. This clearly dilutes their potential to contribute to the protection of transboundary entities such as the Rivers Ganga and Yamuna.

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

The judgments would also arguably have been of greater persuasive value for courts in other Indian states, as well as foreign jurisdictions, had their legal reasoning been more carefully developed. Nevertheless, the Court’s acceptance that the spiritual and ecological value of certain aspects of the natural environment, combined with the threats faced thereby and the duties enshrined in the Indian Constitution, constitute ‘good and sufficient reasons’ for attributing legal personality provides an important precedent for future expansions of personhood. Indeed, the Nonhuman Rights Project has already stressed the potential of this precedent to assist animal advocates in making the case for legal rights for nonhuman animals.

Regardless of the various difficulties that will inevitably arise in implementing the Court’s orders, at the very least they reflect an important conceptual shift away from humans’ traditional, anthropocentric notion of environmental management, which has thus far been largely unsuccessful in preventing environmental destruction. Decades before Christopher Stone suggested that nature might be afforded legal standing, Aldo Leopold posited that: ‘We abuse the land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.’ Recognizing that various aspects of the natural environment, rather than simply being things for us to use, are capable of holding legal rights is an important step towards embracing the latter perspective.

25/02/2017

Climate Change Impacts on Agriculture and Food Security: What Role for Disaster Law?

Agriculture depends on a stable climate. Crops need a fertile soil, sufficient water and temperatures that remain within a certain (plant specific) bandwidth, livestock needs healthy grazing land, sufficient water and livable temperatures. The climate needs to be predictable, so that farmers can plan their activities with the aim to secure the best possible harvest. Such stable conditions only occurred after the previous major climate change that took place on Earth and which marked the end of the last ice age, around 12,000 years ago. Around that time, man settled down and started to grow his own food through agriculture.

Given the dependence of agriculture on weather and climate, it does not come as a surprise that the agricultural sector is and will be hit hard by climate change impacts. The impacts are diverse and potentially disastrous for global food security. The latest IPCC report on the impacts on agriculture and food security gives a chilling image of what is expected to happen and, in fact, is already happening across the world.^[1] Water shortages in droughts and heat waves have a negative impact on crops as well as livestock. A surplus of water with excessive precipitation, floods and inundation, increased and changing occurrence of pests, weeds and diseases, are but a few examples of the other impacts of climate change that negatively affect agriculture. Extreme weather events, generally, hit rural areas hard with a profound negative impact on rural communities and food production.

Against this background of increasing climate change impacts on agriculture, both through slow- and sudden-onset disasters, it is particularly worrying that food demand is and will continue to grow over the next few decades until 2050. It is expected that increasing climate change impacts on agriculture and rising demand will lead to an increase of food prices across the globe. According to the IPCC, ‘it is very likely that changes in temperature and precipitation (…) will lead to increased food prices by 2050, with estimated increases ranging from 3 to 84%.^[2] A World Bank report adds that losses in the agricultural sector and spikes in food prices can push vulnerable consumers into poverty, as poor people spend a large part of their budget on food.^[3] The 2008 food spike caused around 100 million people to fall into poverty, and the 2010–2011 food price spike has been estimated to have pushed 44 million people below the basic needs poverty line across 28 countries.^[4] It can, therefore, be expected that there is a substantial risk of increasing famine in developing countries.

Developed countries, however, are not safe either. Consumers in developed countries are not only expected to face drastic price increases, but food safety issues as well.^[5] Rural communities in developed countries are particularly vulnerable for climate change impacts, for several reasons, such as the substantially higher average age compared to urban areas. The IPCC refers to the social impact of the prolonged drought in Australia during the early 2000s which led to ‘farm closures, increased poverty, increased off-farm work, and, hence, involuntary separation of families, increased social isolation, rising stress and associated health impacts, including suicide (especially of male farmers), accelerated rural depopulation, and closure of key services’.^[6]

Climate disaster law

Disaster law is the field of law that aims to respond to disasters, to compensate for the losses that occurred in a disaster and to facilitate recovery and rebuilding, as well as to mitigate the possible impact of future disasters. Climate disaster law is the rapidly developing new body of law which responds specifically to climate disasters. So far, however, attention for agriculture and food security has been fairly limited and it is clear that in this area, much needs to be done to prepare the world for increasing climate disasters hitting agriculture and food security.

Disaster mitigation in agriculture

The disaster mitigation phase, usually, is considered to be the most important phase of the disaster cycle (mitigation-response-rebuilding), not just because of the simple fact that prevention is better than curing, but also because of the nature of climate disasters. Adler rightfully observes that ‘drought and other disaster response policies that might be appropriate for occasional and difficult-to-foresee events may no longer be appropriate for conditions that will now occur with increasing frequency due to climate disruption’.^[7]

Disaster mitigation for agriculture starts with the adoption of climate smart practices and technologies. Most countries, around the globe, do not have comprehensive and effective legal instruments in place that stimulate farmers to adopt climate smart practices and technologies.^[8] To make the agricultural sector more resilient to climate change, it is essential that law and policymakers around the world rapidly start developing policies and laws so that climate-smart agricultural practices are commonplace soon. Financial instruments, such as subsidies or offset mechanisms under carbon pricing programmes can be used to achieve this goal. In addition, well-functioning early warning systems should be operational to help farmers to manage the hazards and avoid these turning into disasters. International collaboration and fundraising seems required to speed up the development and implementation of early warning systems for agricultural climate disasters. The same is true for climate and weather information and forecasts. These do exist, but have to be further developed to make the forecasts more useful for farmers.

Disaster response in agriculture

According to the FAO, between 2003 and 2013, about 3.4 percent of all humanitarian assistance was directed to the agriculture sector, with an average of around 374 million USD annually. The average annual crop and livestock production losses in developing countries, however, were much larger: an analysis of 140 disasters triggered by natural hazards found annual costs of crop and livestock losses to be 7 billion USD per year over the same period. With the expected increase of the number and size of disasters under climate change over the next few decades, much remains to be done to improve our ability to effectively respond to climate disasters, especially in the area of agriculture and food security. The current instrument of the Food Assistance Convention, that lays down a set of principles and best practices for effective and efficient food assistance for the most vulnerable people needs to be expanded to a full and comprehensive legal framework on international climate disaster response, so that the response efforts are well coordinated and aligned and so that domestic emergency managers are fully engaged and empowered.

Rebuilding: getting the farmer back into business asap

After a climate disaster, food production needs to be restored as soon as possible. Financial aid is usually needed so that farmers can clean up and prepare the land for agricultural activities, buy new seeds, new machines, new livestock etc. At the international level, organizations such as the World Bank, the International Fund for Agricultural Development, and the Special Climate Change Fund under the UNFCCC, put much effort into providing such financial aid. It is now well understood that farmers and communities should undertake investments with long term benefits, so that the next climate disaster has less impact. The compensation and rebuilding phase, therefore, is closely linked to the disaster mitigation phase.

A range of methods is explored for their suitability to compensate for the loss caused by climate change. Although private insurance has its limitations in the case of climate disasters, new insurance products are being developed, such as the ‘Broad Weather Insurance Policy’ which was developed by agricultural insurance companies together with agribusiness organisations and the government in the Netherlands to offer farmers insurance against climate change related crop damage.^[9] This policy covers financial loss caused by natural disasters, such as extreme rainfall, extreme drought, erosion, severe windstorms, hailstorms and fires (caused by lightning). This insurance does not cover all damages, but instead requires farmers to bear 30% of the loss. The government has a subsidy scheme in place to provide financial assistance to individual farmers to pay for the premium. Reinsurance firms are even starting to operate in developing countries in Africa, where micro-insurance policies have been developed for farmers to cover for loss of crops due to drought, storms, pests, and diseases.^[10] Private markets alone cannot provide the funding that is needed to develop and operate insurance products for farmers to protect them from financial losses caused by climate disasters. Some form of government intervention and cooperation between insurers, banks, governments and NGOs is essential to make climate disaster insurance for farmers a success. In order to avoid that farmers keep relying on government aid and insurance claims, and do not make the necessary changes to become more resilient to climate change, it is important that legal instruments in the area of disaster compensation reward the adaptive farmer.

[1] J.R. Porter et al., ‘Food Security and Food Production Systems’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014), 485-533. The IPCC is currently preparing a special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems. This report is due to come out in 2019.

[2] Id. at 512.

[3] S. Hallegatte et al., Shock waves. Managing the impacts of climate change on poverty (Worldbank 2016) at 5.

[4] W.N. Adger et al., Human security in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) at 763.

[5] M. Miraglia et al., Climate Change and Food Safety: An Emerging Issue with Special Focus on Europe, (2009) 47(5) Food and Chemical Toxicology 1009–21.

[6] A. Reisinger et al., ‘Australasia’ in: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2014) at 1398.

[7] Robert W. Adler, Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought, and Agricultural Law, (2012) 64(1) Florida Law Review 201, 265.

[8] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7(1) Climate Law at 6-10.

[9] W.J. Wouter Botzen, Managing Extreme Climate Change Risks through Insurance 57 (2012). For an up-to-date description of the cover of the current policy, see agricultural insurance company ‘AgriVer’ website, http://www.agriver.nl/gewassen-te-velde.html (in Dutch).

08/02/2017

Ecological Literacy and Restoration

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

In early 2015 my wife and I purchased 66 acres of wild landscape in our homeland, Tasmania, and set about ensuring its indefinite protection by putting a conservation covenant on the property title.  With this legal protection to “Blue Mountain View”, as we call our land, we joined other like-minded neighbours committed to safeguarding this beautiful niche in Tasmania’s Huon Valley. We have also since participated in some wildlife monitoring projects with environmental groups to better understand the local biodiversity and thereby facilitate long-term conservation planning.

Blue Mountain View, Tasmania (photo: B. Richardson)

Becoming an environmental steward with legal responsibility to protect and improve the ecological values of a small piece of our planet is a great privilege, providing exceptional opportunities to forge a more intimate relationship with, and knowledge of, the natural world. This experience reminds me of the writings of Harvard biologist Edward O. Wilson who hypothesized that human beings possess biophilic tendencies.^[1] Yet biophilia, like other affections, is unlikely to flourish if not nurtured. If our experience of nature is limited to desolate landscapes with few wildlife beyond the ubiquitous rats, pigeons and common weeds, we are unlikely to appreciate nature’s richness and beauty. Equally, if our daily lives are spent amidst car parks and shopping malls, we will hardly understand the complexity of ecosystems and the need to care for them. In our highly urbanized, consumer lifestyles, the impoverished opportunities for direct interactions with wild places are one of the principal obstacles to making environmental conservation a social priority.

My association with Blue Mountain View has enabled me to acquire much greater ecological literacy than I ever gained from just reading literature and watching nature films. I have come to learn much about the habits of rare or engendered species that inhabit it, such as Tasmanian Devils and Eastern Quolls, and develop a greater sensitivity to nature’s temporalities as observed from the fruiting and flowering of vegetation or the seasonal migration of birds.

Tawny frogmouth, Blue Mountain View (photo: B. Richardson)

But how can we engage the general public with the natural world so as to similarly build ecological literary, respect and affinity?  This is a multidimensional task of which environmental law can only play a part.^[2]

A key strategy must be community participation in ecological restoration, the practice of repairing historic or recent damage to landscapes and seascapes. The practice is evoked by the work of New York artist Alan Sonfist. He erected numerous monuments in cities around the globe to commemorate and “heal” their lost ecology. His archetypical work is “Time Landscape”, constructed over 1965 to 1978 in Manhattan in cooperation with the City Botanical Gardens. His “landscape” recreated the original indigenous vegetation of New York on an empty street corner in Manhattan, and the living artwork evokes the processes of nature reclaiming itself.  Serious ecological restoration, of course, must be tackled on a much grander scale.

Restoring nature is vital to defend against the upheavals of the Anthropocene. We shouldn’t assume that sustainability – the dominant goal of modern environmental law – is achievable using current environmental conditions as baselines for legal protections because those conditions are often too degraded to meaningfully sustain. Instead, attaining sustainability may also require some recapturing of prior ecological conditions – lands may need to be replanted with vegetation, fish stocks replenished, and landscapes cleansed of contaminants.

Southwest Tasmania’s world heritage (photo: B. Richardson)

The law must prioritise ecological restoration, a task that will require a major shift from current legal precedents. Major environmental legislation in most countries offers few provisions devoted to this task, mostly focusing on remediation of contaminated brownfields or former mines rather than restoration of entire ecosystems.^[3] Fortunately, the governance deficits are starting to be filled by some fascinating initiatives from non-state actors, namely environmental NGOs, community groups, farmers and Indigenous peoples, collaborating voluntarily to restore and rewild nature.^[4]

The examples include Gondwana Link, restoring a 1000 km stretch of Western Australia that suffered catastrophic land degradation from misguided farming. Began in 2002, the project aims to reconnect fragmented natural habitats to create a holistic ecological system, through outright purchase of high priority lands and conservation covenants on other properties that are then subject to various restorative interventions.^[5] In North America, the Y2Y project – denoting Yellowstone to Yukon – is using a similar approach to Gondwana Link, except over a bigger scale along the Rocky Mountains and involving more jurisdictions and actors.  In New Zealand, which has suffered among the world’s worst biodiversity loses – don’t believe the deceptive “100% Pure” slogan that the country advertises – restoration has been led by community groups sometimes in partnership with government land managers. They are creating huge fenced sanctuaries in which exotic vermin are removed to allow the remnant avifauna to regenerate.^[6] And in Scotland a charity called Trees for Life is restoring 230,000 hectares of the ancient Caledonian forest that was grazed and logged to near destruction several centuries ago.^[7]

Another approach, better suited to urban denizens, is called “reconciliation ecology”. The term was apparently coined by Michael Rosenzweig to describe restoration projects that benefit people by drawing them closer to their natural environs, including providing aesthetic and recreational benefits.^[8] Such reconciliation often takes place in urban areas to bring nature closely into people’s daily lives, such as expanded city parks, restored waterways, and green roofs. One outstanding example is “Zealandia”, a restored bird-rich sanctuary, located near the heart of Wellington, the capital city of New Zealand. Through reconciliation activities, people become more aware of their degraded environs, the opportunities to improve them, and thereby hopefully acquire greater ecological literacy.

‘Citizen science’ is another movement that touches on similar ideas but uses different methods. Citizen science projects involve lay people participating in environmental monitoring to help researchers understand environmental baselines and changes that can then feed into management actions including restoration. Citizen science taps into a valuable community resource while enhancing participants’ ecological knowledge and commitment. Citizen science projects include tracking marine plastic debris^[9] and counting birds.^[10] Advances in information technology, both in recording and sharing the data such as GPS and remote camera ‘trapping’, have greatly expanded opportunities for citizen science to recruit larger audiences of volunteers. I have been involved in one such project on Blue Mountain View recently.

Trees in heaven, Blue Mountain View (photo: B. Richardson)

But such community-based initiatives aren’t enough. Volunteerism may not be sustainable in the absence of reliable funding, may lack influence when confronted with uncooperative landowners, and may be undermined by antagonistic government policies and regulations that enable inappropriate economic developments. For instance, some Australian states have enacted recent legislative changes that make it easier for landowners to clear native vegetation.^[11] Environmental lawyers must advocate ways for governments to play a more positive role, while preserving community initiative. Such roles could include more generous seed funding and tax breaks, coupled with reforms to land use planning and inclusion of stewardship obligations in all property tenures. Legislative mandates for sustainability should also be redefined to include obligations for restoration and reconciliation where existing ecological baselines are too degraded.

Of course, social change will require more than just law. The arts can also play a special role in enlivening people’s imagination and building their commitment to restoring nature. German artist-entrepreneur Dirk Fleischmann’s project “My Forest Farm” is one of the most ambitious artworks that illustrate this stance. The zero-carbon footprint art “work” is a voluntary carbon–offset program in the form of a reforestation initiative in the Philippines. In 2008, Flesichmann began planting nearly 2,000 trees on four acres with the aid of the local community. His project aims to challenge the booming carbon offset-market which he believes wrongly simplifies the issues of climate change by pretending that the problem of greenhouse emissions can be solved simply by purchasing offsets (an efficient transactional mechanism suited to busy people with no time to contemplate the environmental issues at stake).  My Forest Form reveals the complexities and time-consuming process of carbon-dioxide sequestration. Although his project results in carbon off-setting, he does not offer the carbon credits for sale. Instead, Fleischmann offers art – each of the trees is photographed and its GPS location recorded, and then exhibited in galleries and sold via the project website for 10 euros each. The earnings help fund the reafforestation project and educate the public about nature’s time-scales.

Dragonfly – austrogomphus guerini, Blue Mountain View (photo: B. Richardson)

In conclusion, when reflecting on the roles of environmental restoration and reconciliation, we should appreciate that it is not just about improving nature but also improving human society. Restoring damaged ecosystems is not a viable long-term proposition if humankind remains emotionally and cognitively detached from its natural environs. Without inculcating greater ecological literacy, society will likely just repeat its past mistakes and undo any gains from new restorations. Participation in restoration projects can help communities understand their place in the deep time-scales of Earth’s landscapes, and may help nurture their biophilic impulse. Not everyone can elope to a place like Blue Mountain View, but we should all have some opportunities to engage with and learn about nature in which we are embedded and dependent like a cell within a body.

[1] Edward O. Wilson, Biophilia (Harvard University Press, 1984).

[2] See further Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time (Cambridge University Press, 2017): in press.

[3] Margaret A Palmer and JB Ruhl, “Aligning Restoration Science and the Future of Law to Sustain Ecological Infrastructure for the Future” Frontiers in Ecology and the Environment 3(9) (2015): 512.

[4] Benjamin J. Richardson, “Reclaiming Nature: Eco-restoration of Liminal Spaces” Australian Journal of Environmental Law 2(1) (2016): 1; Caroline Fraser, Rewilding the World: Dispatches from the Conservation Revolution (Picador, 2009).

[5] Keith Bradby, Amanda Keesing and Grant Wardell-Johnson, “Gondwana Link: Connecting People, Landscapes, and Livelihoods Across Southwestern Australia” Restoration Ecology 24(6) (2016): 827.

[6] Dave Butler, Tony Lindsay and Janet Hunt, Paradise Saved (Random House, 2014).

[7] Adrian Manning, David Lindenmayer and Joem Fischer, “Stretch Goals and Backcasting: Approaches for Overcoming Barriers to Large-scale Ecological Restoration”, Restoration Ecology 14(4) (2006): 487.

[8] Michael Rosenzweig, Win-Win Ecology (Oxford University Press, 2003).

[9] Paul E Duckett and Vincenzo Repaci, “Marine Plastic Pollution: Using Community Science to Address a Global Problem” Marine and Freshwater Research 66(8) (2015): 665.

[10] Jeremy Greenwood, “Citizens, Science and Bird Conservation” Journal of Ornithology 148 (2007): 77.

[11] E.g., Biodiversity Conservation Act 2016 (New South Wales); Sustainable Planning Act 2009 (Queensland).

03/12/2016

A universal obligation of enforcing environmental justice? The Chevron-Texaco case as an example of the actual system’s failure

In a world where the environment seems constantly put under threat by the insatiable greed of transnational corporations, the question of the appropriateness of the current legal framework for enforcing environmental justice emerges. Firms responsible for major environmental crimes often enjoy impunity due to the scarcity of legal remedies available to the victims, and the imbalance of economic resources and political power between the guilty company and the affected community. An outstanding example of the failure of the actual scenario for implementing environmental justice is the Chevron-Texaco oil contamination crime perpetrated in the Ecuadorean Amazon Rainforest. The case stands as excellent evidence that a last instance ruling in the country where the crime was committed could be insufficient to grant justice and remediation.

(Photo: L. Dematteis, series ‘Crude Reflections’)

Chevron (at the time Texaco) operated in the Ecuadorean Amazon Rainforest from 1964 to 1992. During the concession period, the firm conducted firstly exploratory drilling and subsequently full-scale production, without properly disposing of toxic byproducts (e.g. excess crude, chemicals, and produced water) of its extractive activities. Instead, the company dumped the toxic waste into badly constructed pits^[1] or directly into surrounding rivers and streams. This is particularly reprehensible given that proper disposal techniques were not only available^[2] and known to be cost effective, but were also already in use by the company in the United States and other countries.^[3] It is estimated that Texaco, over the time it operated the sites, spilled directly into water bodies a total of 18 billion gallons of formation water, at a rate close to 10 million liters of toxic water per day, and 16,800 million gallons of crude, that is about 30 times the oil spilled in the Exxon Valdez disaster in Alaska. Due to the use of outdated techniques for oil-associated gas’s combustion, around 6,667 million cubic meters of gas were burned outdoors over the 28 years of Texaco’s operations. The overall affected area reached 450,000 hectares and the impacted population amounts to 30,000 victims (see further Chevron’s Chernobyl in the Amazon). The consequences of Chevron’s irresponsible conduct not only had impacts on water resources, soil, air, and the entire delicate ecosystem of the Ecuadorean Rainforest, but also destroyed the subsistence farming and fishing of the affected people, and deeply threatened their health and indigenous cultures.

In 1993, a group of Ecuadorian indigenous peoples and farmers living around the contaminated sites filed a class-action lawsuit against Texaco in New York, denouncing the company’s intentional use of substandard environmental practices, which have caused massive soil and water pollution. Upon the company’s request, the case was transferred to Ecuador, and the claim against Chevron re-filed by the victims before Ecuadorean courts in 2003 (Aguinda v. Chevron Texaco). In the meanwhile, Chevron acquired Texaco (2001), de facto purchasing the second firm’s legal, financial, and reputational liabilities stemming from Texaco operations in Ecuador. After nearly two decades of litigation, one of the largest court judgments for environmental damage in history was issued against the multinational. On February 14, 2011, the Ecuadorian Provincial Court of Sucumbíos released its final judgment, finding Chevron liable for $18 billion in compensatory and punitive damages. On January 3, 2012, the Ecuadorian appeals court confirmed the judgment in its entirety, and, on November 12, 2013, the Supreme Court of Ecuador upheld the lower court’s ruling, though removing the punitive damages, and assessed the compensation for the victims as amounting to $9.51 billion.^[4] Subsequently, Chevron appealed the ruling to the Ecuadorean Constitutional Court, through an extraordinary recourse that is still pending before this court. Notwithstanding, the Supreme Court’s judgment, being the country’s court of last instance, is considered definitive and already internationally enforceable. Meanwhile, Chevron removed all its assets from Ecuador in order to escape enforcement actions. Consequently, the lawyers of the affected people are undertaking lawsuits in different countries to seek enforcement of the favorable outcome. Though positive developments in courts around the world make the victims persevere in their struggle, still justice is denied because of dilatory actions and misuse of legal remedies granted by Chevron’s global architecture of impunity.

Currently, the Unión de Afectados por las Operaciones Petroleras de Texaco (Union of People Affected by Texaco’s oil operations, UDAPT) is tackling Chevron’s impunity on various fronts. The organization represents the 30,000 victims of the environmental crime, who have been struggling for 23 years to obtain a proper remediation of the environmental disaster and appropriate compensation.

Apart from the national scenario (first front, Ecuador), the second arena in which UDAPT is playing regards the enforcement of the Ecuadorean judgment outside the country, such as in Argentina, Brazil and Canada. In particular, in this latter country the plaintiffs on September 4, 2015, obtained a crucial judgment by the Supreme Court of Canada in the Chevron Corp. v. Yaiguaje case.^[5] The Court unanimously recognized Canadian jurisdiction over the judgment enforcement claim, confirming a second instance’s decision. However, the Canadian Supreme Court’s verdict is only a step in the process of winning the plaintiffs’ claim for compensation in Canada. As the Court warned, its recognition of the jurisdiction over Chevron Corp. and Chevron Canada is different from recognizing the foreign judgment and thus allowing it to be executed. Nevertheless, the Canadian Supreme Court’s ruling is groundbreaking and encouraging for the Ecuadorean affected people, as well as relevant for other affected communities fighting multinationals worldwide.

(Photo: L. Dematteis, series ‘Crude Reflections’)

First, the Court analyzes whether and under what conditions it has jurisdiction to decide on the recognition and enforcement of the Ecuadorean judgment (Aguinda v. Chevron Texaco). The Supreme Court’s answer focuses on the limited inquiry involved in this kind of proceeding. Namely, the court is not asked to inquire into the underlying merits or create a “new” debt obligation, but rather to undertake a limited scrutiny necessary to confirm the fundamental legitimacy of the debt obligation already rendered by the foreign tribunal. Secondly, the court analyzes the existence of jurisdiction over the subsidiary, Chevron Canada, and the potential need to pierce the “corporate veil” that separates the subsidiary and parent company.

With regard to the first point of appeal, Chevron claimed the need for a real and substantial connection between the defendants or the subject of the dispute and the Court of Ontario, that is, the same jurisdictional test that would apply to the assertion of jurisdiction over a foreign corporation in a matter at first instance. The Supreme Court rejected this argument, highlighting the difference between a judgment on the merits, in which an obligation is generated, and one merely facilitating the execution of an obligation that already exists. In the second case, the only requirement for jurisdiction in the “facilitating” court is that the foreign court that issued the judgment had a real and substantial connection with the parties or the subject of the dispute (or that other traditional requirements for jurisdiction are met). A higher jurisdiction standard, the Court explained, would threaten the rights of the creditor to obtain just satisfaction of due obligations from transnational counterparties.^[6]

The decision confirms the generous attitude that the courts of Canada have maintained with respect to recognizing foreign judgments. Particularly noteworthy is the Court’s discussion on the concept of “universal obligation”, which is intrinsically linked to the principles of comity and reciprocity. The Court held that “the obligation created by a foreign judgment is universal, each jurisdiction has an equal interest in the obligation resulting from the foreign judgment, and no concern about territorial overreach could emerge”. The Court asserted that the globalization of business should not lead to the detriment of individual rights but rather to their benefit. Because creditors will be forced in some instances to turn to foreign courts for redress, mutual awareness, respect, and assistance between courts is necessary to weave fairness and predictability into international economic relations.^[7]

Concerning the second question involving the jurisdiction over Chevron Canada, a seventh level indirect subsidiary of Chevron Corp., the Supreme Court’s reasoning is particularly impressive. Chevron Canada argued that even if jurisdiction was established over the parent, the Canadian courts would not have jurisdiction on the subsidiary because it was not party to the Ecuadorian proceeding. The Supreme Court rejected this argument, holding that the core of the dispute in question is not the damage caused in Ecuador but rather the quantum of Chevron’s assets that may be seized. Under this perspective, it is clear that Chevron Canada itself is part to the proceeding because it holds assets in the Province of Ontario that might, depending on the decisions of the courts, be seized to satisfy the Ecuadorian judgment. In fact, Chevron Canada, which has a significant economic relationship with the parent, holds assets in Canada estimated at over $15 billion. Chevron Canada was properly served notice of the enforcement process at both its headquarters in British Columbia, and where its real business is conducted in Mississauga, Ontario. Therefore, the Court found jurisdiction under the traditional criterion of presence.

Nonetheless, the Supreme Court warned that, following the principle of independence of the subsidiary from the parent company, a judgment against Chevron Corp. will not automatically lead to seizure of assets held by Chevron Canada. It will be necessary to analyze whether the shares of Chevron Canada are substantially attributable to the Chevron Corp. in order to pierce the “corporate veil” between the two companies.^[8]
In ways, the ruling appears to urge the multinational to abandon its strategy of endless delay. Should the plaintiffs prevail against the assets of Chevron Canada, it would be clear that the “veil” allegedly separating subsidiaries from the faults of their parents offers little protection, even when the parent company has no real and substantial connection with the court of the execution. A final execution judgment against Chevron would also stand out as the emblem of the fight against multinationals, proving that environmental justice can be effective across national boundaries and potentially triggering a wave of new claims.

(Photo: L. Dematteis, series ‘Crude Reflections’)

The importance of the Canadian decision is heightened by the fact that the possibility of obtaining recognition and enforcement of the Ecuadorean judgment in the United States (Chevron Corp.’s home state and third front for the Chevron-Texaco lawsuit) has been denied so far. Indeed, the company appealed to the RICO (Racketeering Influence and Corrupt Organizations) Act before the Second District Court of New York to prevent the enforcement of the Ecuadorean judgment on allegations of bribery, fraud, and extortion against the lawyers of the Ecuadorean victims (Chevron Corp. vs Steven Donziger). On March 7, 2011, Judge Kaplan issued a preliminary injunction banning the execution of any Ecuadorean court judgment in any country outside Ecuador.^[9] It was not long before the decision was struck down: indeed, the U.S. Second Circuit on September 19, 2011, annulled Judge Kaplan’s decision, noting that the RICO law was not meant to make its courts act “as transnational arbiters to dictate to the entire world which judgments are entitled to respect” (Court opinion of January 26, 2012). Moreover, the fraud allegations were mainly based on the deposition of Chevron’s so called “star-witness”, Mr. Alberto Guerra. He is a former Ecuadorean judge of the Provincial Court of Justice of Sucumbíos who first heard the Aguinda case between May 2003 and January 2004, when the lawsuit was transferred to Ecuador from the United States. After having left this institutional position, he started receiving substantial money and other benefits from the multinational, arguably for his favorable testimony. Moreover, Guerra’s deposition was contradicted by his own affirmations before the International Arbitration Panel in Washington during Phase II of the Arbitration between Chevron Corp. and the Republic of Ecuador. His declaration, stated in the cross-examination held over two days between April and May of 2015, shows dramatically that there is no evidence to support the claims of bribery and of a ghostwritten judgment. Notwithstanding the controversial grounds of Judge Kaplan’s decision, on 8 August 2016 the competent U.S. court of appeals agreed with the lower court’s ruling that the Ecuadorian community cannot collect the $9.5 billion Ecuadorian judgment on the basis that it was obtained by corrupt means. In particular, the Court argued that the Ecuadorean plaintiffs have not sufficiently challenged the evidence presented by Chevron at first-instance before Judge Kaplan. The Court adds that the Ecuadorian courts of appeals failed to address the pending corruption charges against the plaintiffs. Lastly, it affirms that Judge Kaplan’s ruling does not interfere with the Ecuadorian sentence but prevents the plaintiffs from enforcing it in the U.S. on the grounds of personal restrictions. The lawyers for the Ecuadorian plaintiffs are examining further appeal options. However, the scarcity of economic resources to face the expenses of further legal proceedings lessens the Ecuadorean victims’ chances of appealing the decision. From this succession of legal attacks, it appears evident that the company’s strategy is to move the attention from the environmental crime to the fraud issue. This conduct is even worse if one considers the historical reality of the case, which is that Chevron itself requested the transfer of the trial from the U.S. to Ecuador. At the time, it assured the U.S. district court that it would have recognized the binding nature of any judgment issued in Ecuador and submitted itself to Ecuadorean jurisdiction.^[10] However, the company seems to have “forgiven” this commitment.

The fifth scenario of the case involves the International Arbitration Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador,^[11] initiated in 2009 by the company under the U.S.-Ecuador Bilateral Investment Treaty, at the Permanent Court of Arbitration in The Hague. In this instance, Chevron requested the arbitral panel to issue a declaration that the State of Ecuador (through Petroecuador, the oil public firm part of the Ecuadorean consortium in which Texaco operated) is exclusively liable for any judgment that may be issued in the Ecuadorean litigation.^[12] The grounds of this allegation rely on the violation both of the bilateral treaty by compromising the judiciary’s independence and of the releases from liability previously granted to Texaco by the Republic of Ecuador. Firstly, it should be underlined that the allegedly violated treaty was signed on August 27, 1993, and entered into force on May 11, 1997 – five years after the termination of Texaco’s operations in Ecuador. Secondly, though Chevron could possibly claim damages from the Ecuadorean State, the arbitral panel cannot affect in any way the Aguinda ruling, because it has no jurisdiction over the Aguinda plaintiffs. If the company can still defend before the Ecuadorean government the releases from responsibility, nonetheless the company was released from government claims only, not from third-party claims like those of the Aguinda plaintiffs.^[13] However, in January 2016, the international arbitration tribunal ruled in favor of Chevron over Ecuador being bound by the US-Ecuador investment agreement and by the releases of responsibility. In July 2016, Ecuador indicated that it had executed the arbitral decision and paid the $112 million compensation to Chevron.

The last battlefront for the Ecuadorean victims is the international criminal proceeding before the International Criminal Court in The Hague. In October 2014, the Ecuadorian victims filed a request of hearing with the ICC in respect of Chevron’s chief executive’s responsibility in hindering the ordered remediation of the company’s toxic legacy in the Amazon.  In March 2015, the ICC prosecutor declined to hear the case based on two arguments. First, the temporal barrier: the crime happened in the 1990s while the ICC can only hear cases occurring in 2002 or after. Secondly, the subject matter: the jurisdiction of the ICC did not cover the crime of ecocide.

(Photo: L. Dematteis, series ‘Crude Reflections’)

In the interim of all these negations of justice, the victims keep fighting in the social arena, that of public awareness. Among their actions, there is the contact with Chevron shareholders for a responsible investment and a gradual divestment, the lobbying on European institutions and UN bodies, and the launching of grassroots mobilizations against corporate impunity. Those campaigns have created a global movement asking for corporate accountability. However, these activities cannot replace the execution of the due environmental justice. In consideration of the incapacity of the judicial system to address this claim, the first compelling need is that courts around the world start cooperating in making transnational businesses accountable for their environmental crimes. However, this often requires years of expensive litigation before various jurisdictions, which often cannot be feasible for low-income plaintiffs, as in the case of the Ecuadorean victims. A powerful instrument for urging companies to bear their responsibilities might be the influence that public and private investors can exercise on corporate conduct, and the power of public opinion. Nevertheless, neither shareholder activism nor massive campaigns can achieve environmental justice by themselves. A proposal worthy of attention is that of a unified court for environmental crimes, which rose from the consideration that crimes against the environment affect the whole global community. It was proposed that this role may be played by the International Criminal Court. This option is supported by the reasoning on the comparable roles of civil and criminal enforcement in achieving effective environmental justice. It could be argued that monetary penalties are not enough to fully deter environmental crimes, and therefore that multinationals’ CEOs need to feel that they could face personal criminal allegations for the environmental consequences of their decisions. Since early 2010, the international lawyer Polly Higgins has advocated for the crime of “ecocide” to be included as the fifth crime against humanity under the Rome Statute of the ICC, thus allowing the already existent court to hear environmental crimes cases. A European Citizen Initiative was recently filed with the same objective. In October 2015, at the 2^nd World People’s Conference on Climate Change, the Argentinean activist and Nobel Peace Prize laureate, Adolfo Pérez Esquivel, embraced this proposal as well. The ICC approach is one example of conceiving justice in the Chevron and similar cases not in terms of various national jurisdictions, but in terms of global or universal jurisdiction. The Canadian ruling approached this notion in its discussion on a “universal obligation” of enforcement supporting the Ecuadorian judgment exequatur. Another solution could be the elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. The Amazon Rainforest plaintiffs joined this debate, taking part in the open-ended intergovernmental working group for the elaboration of such treaty. In conclusion, the Ecuadorean example could contribute to the achievement of an integrated system for environmental civil and criminal jurisdiction where the victims would be able to directly apply and effectively find relief, without requiring arduous litigation before multiple jurisdictions. The discussion whether this integrated system for environmental justice should be based on a binding treaty or on a unified court is still open.

[1] Texaco’s pits were simply dug out of the jungle floor without any of the hydrologic study necessary to place them outside of groundwater flows, and without any of the technology – such as synthetic liners, leachate collection systems, or leachate monitoring systems – that was customary in the industry at the time.

[2] Indeed, at the time Texaco held leading patents on produced water monitoring (Patent No. 3,680389) and subsurface reinjection (Patent No. 3,817,859).

[3] Texaco’s Ecuadorian operations in the 1960s and the 1970s were in evident violation of regulations then in effect in major oil producing U.S. states. For example, in Louisiana, where Texaco operated several wells, the discharge of produced water into natural drainage channels had been outlawed since 1942. See Louisiana Department of Conservation (Minerals Division), State Wide Order Governing the Drilling for and Producing of Oil and Gas in the State of Louisiana, Order Number 29-A, May 20, 1942. In Texas, where Texaco had extensive operations, the use of open or earthen pits was outlawed in 1939. See Railroad Commission of Texas, Open Pit Storage Prohibited, Texas Statewide Order No. 20-804, July 31, 1939.

[4] Case No. 174-2012, verbal proceeding No. 174-2012, MARÍA AGUINDA SALAZAR ET AL. against CHEVRON CORPORATION, Quito, November 12, 2013.

[5] Case No. 2015 SCC 42, File No. 35682, Chevron Corp. v. Yaiguaje, September 4, 2015.

[6] Supra at 75.

[7] Supra at 51, 52 & 69.

[8] Supra at 95.

[9] Case 1:11-cv-00691-LAK-JCF, Document 1874 Filed 03/04/14, CHEVRON CORPORATION against STEVEN DONZIGER, et al., 11 Civ. 0691 (LAK).

[10] March 17, 2011 Decision by the United States Court of Appeals, Second Circuit, Republic of Ecuador v. Chevron Corporation, Texaco Petroleum Company, p. 21.

[11] PCA Case No.2009-23, Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador.

[12] See Chevron’s Notice of International Arbitration Against Government of Ecuador.

[13] Ruling of Presiding Judge Nicolas Zambrano Lozada, Provincial Court of Sucumbíos, 14 February 2011, pp.34, 176.

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http://chevrontoxico.com/assets/docs/2012-01-evidence-summary.pdf

http://amazonwatch.org/work/chevron

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