Rick Herz's blog

One of the strangest and saddest results from last Tuesday's elections was the approval by Oklahoma voters of an amendment to their state constitution that would prevent Oklahoma courts from considering "the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law."  Rarely does one come across a law so clearly based on religious discrimination and xenophobia.  Or one so deeply at odds with fundamental legal principles.

Thankfully, a federal judge has precluded the amendment from taking effect while the court considers whether the law is unconstitutional.  It clearly is.

The suit challenging the law was brought by Muneer Awad, a Muslim resident of Oklahoma who argued that that law discriminated against Muslims in violation of the First Amendment to the United States Constitution.  He noted, among other things, that the law would preclude an Oklahoma court from probating his will because certain provisions were based upon his religious obligations, even though those provisions were entirely unobjectionable and even though a court would enforce similar provisions in the will of a non-Muslim.  He also noted that the very existence of the law stigmatized Muslims.

On Monday, October 4, the U.S. Supreme Court issued rulings on petitions to hear five different cases that are highly relevant to efforts to hold corporations legally accountable for their participation in human rights abuses.  The Supreme Court receives thousands of these “petitions for certiorari” each term, and the overwhelming majority are denied. A denial of cert does not indicate agreement with the lower court's ruling, but simply indicates that the Supreme Court will not hear the case.

The Court declined to hear Presbyterian Church of Sudan v. Talisman Energy; ERI had submitted an amicus brief urging the court to take the case. From 1998 until 2003, the Canadian oil company Talisman Energy was a major operator in the oilfields of southern Sudan, which was then in a long-running civil conflict. As part of that conflict, Sudanese government forces and their allies committed well-documented human rights abuses, bombing and strafing villages with gunships, and engaging in raids on civilian populations perceived to be sympathetic to rebel militias. According to this lawsuit, as part of an effort to secure the oilfields, Talisman assisting the Sudanese government forces in their illegal operations, including providing airstrips for government bombers and other forms of support. Talisman is accused of aiding and abetting crimes against humanity, among other things.  The U.S. Court of Appeals for the Second Circuit held that plaintiffs were required to prove that Talisman wanted the abuses to happen—that is, that it was not sufficient for the plaintiffs to prove that Talisman knew it was providing substantial assistance to crimes against humanity.

The 1984 Bhopal gas leak was by most accounts the worst industrial disaster the world has ever seen.  There, a plant owned by Union Carbide’s Indian subsidiary released tons of highly toxic methyl isocyanate into the air above a crowed residential area. An estimated 4,000 people were killed, and an additional 11,000 people are estimated to have died of their injuries in subsequent years.  Untold thousands were injured. The victims have long waited for justice. 

Just this past Monday, a court in India convicted eight former employees of Union Carbide’s subsidiary of “death by negligence.”  The court sentenced those convicted to just two years in prison.  Not surprisingly, the victims are outraged that after so long, the punishment was so little.

But even that meager sentence was more than Union Carbide Corporation (UCC)  itself received.  In 1987, Indian authorities brought criminal charges of “culpable homicide” and “causing death by use of a dangerous instrumentality” against Union Carbide, an American company, and its former chairman Warren Anderson, for their roles in the disaster.  Yet, both UCC and Anderson have managed to avoid prosecution in India by literally becoming fugitives from justice. 

In 1992, the Chief Judicial Magistrate issued a warrant for Anderson and gave lawyers for UCC a month in which to appear for trial.  Neither appeared, and UCC’s official spokesperson stated that UCC would flatly refuse to submit to the jurisdiction of India’s criminal courts.  UCC simply ignored summonses served on them through the U.S. Department of Justice and Interpol.  So, on February 1, 1992, UCC and Anderson were declared “proclaimed absconders” by the Bhopal District Court.  UCC also fraudulently transferred all of its properties in India.  On April 30, 1992, the Bhopal District Court held that “the primary objective of Union Carbide, USA, in selling its properties [was] . . . so that prosecution against them, as directed by the Honorable Supreme Court [of India], cannot be carried out and criminal prosecution against them cannot proceed in this court.”   To date, neither Union Carbide nor Anderson have appeared to face the criminal charges pending against them in India.

British Petroleum’s Deepwater Horizon rig has already spewed at least six, and maybe more than eleven million gallons of crude oil into the Gulf of Mexico. Yet, according to New York Times, the Obama Administration has continued to grant permits and environmental waivers for drilling in the Gulf.  The Deepwater Horizon itself, of course, like many other Gulf rigs, had been granted a waiver from full environmental review.  If nothing else, the Deepwater Horizon tragedy has proven false the “Drill Baby Drill” crowd’s central conceit: that offshore oil drilling is safe. Yet the Obama Administration has not retracted its plan to drastically expand such drilling in US waters. In short, our policy-makers and regulators and have failed us.

Obviously, those who care about the environment and the people who live in it must pressure the Administration to drop plans to expand off-shore drilling and to tighten controls over ongoing drilling.  But that is hardly sufficient.  All oil, after all, must come from someone’s environment.  And given the inadequacy of our own government’s oversight of the oil industry, why would anyone think that officials in countries like Nigeria and Peru where a significant amount of our oil comes from, countries with less-well-developed regulatory regimes and a far higher incidence of corruption than ours, have either the will or capacity to protect their citizens and environment from the dangers of oil pollution?