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Keystone XL rejection is a victory for environmental and human rights advocates

This guest post was contributed by Emily Ponder, a legal intern in our US office. Emily is a first-year law student at the University of Virginia School of Law.


Everyone knows that oil is a dirty business, but tar sands oil may be the dirtiest. That is why environmentalists, indigenous groups, and small-town Nebraska famers alike are celebrating President Obama’s rejection of the Keystone XL pipeline Jan. 18.

The tar sand oil extraction process and its transport poses serious health and environmental hazards, and the Keystone XL pipeline would have made 2,000 miles of land—and communities—vulnerable to its destructive risks.

The energy-intensive process of extracting tar sands emits three times more carbon dioxide emissions three times higher than the extraction of conventional oil. [Edit: As noted in the comments, this refers only to emissions during extraction, which is a small percentage of total emissions. However, because of these high extraction emissions, the "well-to-wheels" emissions of Canadian tar sands are still the highest of US oil sources, 16.5% higher than the baseline and 22% higher than domestic crude oil.] What’s more, extraction of the tar sands oil in Canada, at the head of the pipeline, poisons water downstream with chemicals such as cyanide and anomia. Indigenous communities downstream from extraction sites in Alberta have seen an increase in rare cancer, renal failure, lupus, and hyperthyroidism.

At the other end, refineries in Texas would have increased air pollution, making communities vulnerable to respiratory problems and lung disease, not to mention high levels of smog and acid rain.

And the miles of pipeline in between Canada and Texas wouldn’t have gone unscathed, either. TransCanada’s Keystone I pipeline spilled a dozen times in less than a year of operation. If the Keystone XL had been built, a similar track record . . .

Downstream from Lago Agrio, Ecuador continues to put megaprojects before people and their land

An oil pipeline near Lago Agrio, Ecuador

When an Ecuadorean appeals court in Sucumbíos upheld an $18 billion judgment against Chevron earlier this month, I happened to be passing through Lago Agrio—the famed location of the oil contamination at issue in the case. As we took the highway out of town, we followed the path of the oil-pipeline that snakes its way southwest, towards Quito. “The government does more to protect the pipeline than it does to protect drivers,” my guide informed me as we headed east.

I wasn’t surprised. In fact, the purpose of my trip southeast of Lago Agrio was to visit another project that is wholly supported and driven by the Ecuadorian government, and that has little promised benefit for the people, or the forests and rivers, in its path. This project is the massive Coca Codo Sinclair hydroelectric dam.

Anticipated to be the largest hydroelectric project in Ecuador, the dam is highly controversial. The project is estimated to affect more than 2,000 people and flood an area of 3 square kilometers of a delicate Amazonian basin.  The project could also potentially bring to a trickle Ecuador’s tallest waterfall, the San Rafael falls.  Critics and experts in Ecuador also question the fact that the dam is being bankrolled with a $1.68 billion dollar loan from China to finance 85 percent of the construction and equipment. In turn, the state-owned Chinese company, Sinohydro Corp., was awarded the construction contract in a process that many regard as having been procured without proper bidding. 

Most worrisome about the project however, might be that a substantial perimeter around the project was recently declared, by executive decree of the Ecuadorian government, to be a “militarized zone.” As a result, the area around the dam, and the people who live there, will be “under the . . .

Federal Appeals Court Confirms That Oklahoma "Sharia Ban" Is Unconstitutional

In November 2010, Rick and I blogged about the Oklahoma constitutional amendment that would ban state courts from considering foreign law, especially Sharia (Islamic law), as well as international law. As Rick noted at the time, the amendment was very likely unconstitutional.

This week, the U.S. Court of Appeals for the Tenth Circuit, which has jurisdiction over Oklahoma and is generally a fairly conservative court, confirmed that the amendment is unconstitutional. The court's opinion determined that the plaintiff, a Muslim (and U.S. citizen) living in Oklahoma, was stigmatized by the amendment, and that it therefore violated the Constitution's prohibition on religious discrimination.

Interestingly, the court's decision strikes down the amendment, but does not address anything beyond the Sharia ban. The Tenth Circuit didn't consider whether it was permissible to prohibit state courts from considering foreign law generally, or from considering international law.

That means this issue will probably come up again. Similar laws are being considered all over the country, and smart legislators will probably avoid specifically targeting Islamic law in the future. So another court will need to decide whether a general prohibition on considering foreign law or international law is constitutional; Rick and I think it clearly isn't.

Ecuadorean Appeals Court Upholds Huge Judgment Against Chevron for Pollution in the Amazon

Ecuadorean villagers harmed by Chevron's pollution of a formerly pristine corner of the Amazon rainforest have been seeking legal redress against the company for almost two decades. Yesterday, they moved a whole lot closer to finally achieving justice, as an Ecuadorean appeals court upheld a judgement of 18 billion US dollars against Chevron.

Chevron stands accused of pollution on a truly massive scale. The victims, indigenous peoples and farmers, originally tried to challenge that pollution in Chevron's home forum, the United States, but after years of litigation, a federal court in New York accepted Chevron's argument that the case should be heard in Ecuador. So the plaintiffs filed suit in Ecuador.

And they won. Last spring, an Ecuadorean trial judge found that Chevron is liable for 18 billion US dollars in damages. 

Chevron, of course, appealed. But even prior to that ruling, Chevron, sensing they were going to lose, began claiming that the plaintiffs' case was fraudulent, and actually sued the plaintiffs and their lawyers in New York, asking among other things that the New York court bar the plaintiffs and their counsel from trying to enforce any judgment. Surprisingly, the federal district court issued just such an injunction, but it was quickly overturned on appeal

Now, as of yesterday, an Ecuadorean appeals court has upheld the judgment. This is a huge victory for the plaintiffs, not only in their legal case, but also in the court of public opinion. Chevron's mantra has been that the public should ignore the trial court judgment because it was obtained by fraud. But they made that argument in the Ecuadorean appeal as well, and although I have not yet read the entire decision, it is hard to see how the appellate court could have upheld the verdict without at least implicitly rejecting Chevron's claims of fraud. 

The fight is not over. . . .

Defending the Use of State Law to Address Human Rights Abuses

In the past two weeks we at ERI have submitted amicus briefs in three cases before the Ninth Circuit and Fourth Circuit Court of Appeals, weighing in on a legal doctrine known as “foreign affairs preemption.”  While these briefs will likely receive less attention than the two Supreme Court amicus briefs that ERI will be submitting later this week in the Kiobel and Mohamad cases, they raise key arguments with respect to the ability to use state law claims to respond to human rights abuses occurring abroad.

Both federal appeals courts are sitting “en banc” to hear these cases, meaning that unlike an ordinary appeal where only three judges decide the case, many more judges—from eleven in the Ninth Circuit to all fourteen active judges on the Fourth Circuit—will be weighing in to set a single decision for the whole Circuit. The stakes are high.

First a few words on the doctrine.  The foreign affairs preemption doctrine was created in order to protect the federal government’s control over matters of foreign policy.  When it applies, it allows a court to refrain from applying state laws that intrude upon federal prerogatives in the field of foreign policy.  Those state laws are said to be “preempted”—meaning that they are superseded by the federal interest and cannot be applied.  Foreign affairs preemption applies either when there is a “conflict” with a specific federal law, or when the entire “field” is outside of the state’s authority, because the Constitution puts in the hands of the federal government.

Now back to our amicus briefs.  First, we weighed in on the Ninth Circuit case Movsesian v. Victoria Versicherung, A.G.  That case was originally filed under a special provision of the California Code which allows for the filing of lawsuits to collect on insurance policies . . .

Spread the word: $1 will be donated to EarthRights for every Facebook fan we recruit this week

In honor of Human Rights Day, an anonymous donor has generously offered EarthRights International a creative “matching” donation: we’ll receive $1 for every Facebook Fan (“Like”) we receive through the end of the week, up to $5000!

Update: We made it!

We reached our goal of 5000 Likes and earned $5000. Thank you to everyone!

What can we do with $5000?


If we reach our goal of 5,000 Facebook fans, we’ll receive a donation of $5,000! That’s about what it costs to put one of our EarthRights School students through a full year of our training programs in Thailand!

We need your help!

Please spread this message far and wide amongst your networks.
First, Like our page and we'll receive $1:

Then share our page on your Wall so your friends can take part:

By sharing it widely, you can make a much larger impact!

Want to do more? Or are you not on Facebook?

Use the icons above and below this post to spread the word via Email, Twitter, Google+, Reddit, and any other social sharing sites you use.

This is a great opportunity to support our work without opening your wallet, so please share, share, share! With your help, we can reach our goal of 5000 fans! . . .

On International Anti-Corruption Day, Tell Senator Klobuchar Not to Weaken U.S. Anti-Bribery Laws

Today is International Anti-Corruption Day, so it seems like a great moment to think about what we can all do to assist in the fight against global corruption, which makes products more expensive and less reliable for consumers, increases business costs, and undermines governance in resource-rich countries, exacting an estimated cost of one trillion dollars annually.  As I’ll explain below, one thing we can do is contact Democratic Senators who are planning to propose legislation that could radically undermine U.S. anti-corruption efforts.

There have been lots of positive developments in the fight against global corruption, including:

  • The Department of Justice has successfully concluded a growing number enforcement actions against major international businesses that have committed bribery on a massive scale, often in countries stricken by corruption like Nigeria and Haiti.
  • Countries like Russia and China have passed strict laws against foreign bribery, increasing the probability that our competitors in those countries will be held to the same standards as those operating in the U.S.
  • The U.K. has raised the bar on anti-corruption efforts, passing laws that criminalize all forms of bribery – offical and non-official – and holding companies strictly liable for the actions of their employees.
  • International cooperation is on the increase, allowing for cross-border cooperation on an intrinsically cross-border issue.

On the other hand, however, there are worrying developments here in the U.S.  For example:

  • The U.S. Chamber of Commerce us attacking the Foreign Corrupt Practices Act (FCPA), the groundbreaking U.S. law that launched the global legislative fight against corruption.  They claim – using deeply misleading and often false evidence – that the FCPA is being enforced unfairly against businesses, is over-costly, and disadvantages American companies.  Analysis on the problems with the Chamber’s attacks has been carried out by Professors David
  • . . .

Norwegian Foreign Affairs Ministry Fails to Uphold Human Rights Guidelines on Chinese Company Linked to Shwe Pipeline Abuses

I usually think of Scandinavian countries as great examples of responsible international engagement – they’re known for protecting the environment, promoting human rights, and not tolerating corruption.  That’s why I was so disappointed with a decision coming out of the Norwegian Ministry of Finance this week.  The Ministry elevated corporate fiction and energy politics over ethical obligations this week by rejecting the findings of its own expert consultants, who recommended that Norway’s public pension fund divest from PetroChina, concluding that the Chinese oil company is linked to severe human rights abuses around Burma’s Shwe Gas Project and a crude oil pipeline under construction across the breadth of Burma.

The Government Pension Fund – Global is entrusted with investing Norway’s surplus oil income and is the first or second largest pension fund in the world, occupying 1% of global equity markets.  For almost a decade, the Fund has been charged with observing strict Ethical Guidelines that restrict the kinds of companies it can invest in.  The government has created an expert Council on Ethics, which can recommend that a firm be “excluded” from the Fund’s investment universe if it concludes that the firm violates the Ethical Guidelines.  These recommendations, which are backed up by rigorous factual research and reasoning, are made public but are not binding on the Ministry of Finance, which makes the ultimate decision on divestment.

ERI has been pushing the Council to scrutinize companies that are involved in Burmese oil and gas projects because these projects are associated with systematic human rights abuses.  ERI reports on companies like CNPC PetroChina, Total, and Daewoo that are connected to the building or operation of pipelines have concluded that a proper application of these Guidelines should lead the Council to recommend divestment.  The Council has declined . . .

Xayaburi dam, delayed again, now faces increasing opposition from Thai communities

With today's announcement that the Mekong River Commission will require further study of environmental and social impacts, the governments of the Mekong region have taken an important step toward a responsible decision on the Xayaburi dam project.

At the same time, communities in Thailand are raising their voices in opposition to the project. As noted in today's Bangkok Post, community leaders, supported by some policymakers, are recognizing that this project needs to comply with Thai environmental laws and public consultation requirements - and are preparing to file a lawsuit, if necessary, to protect their rights. After all, the electricity from the project will benefit Thailand, a Thai contractor is slated to build the dam, it is being financed by Thai banks, and the electrical transmission lines will cross Thai territory. Even if the MRC does not stop the project, Thai law may provide an important backstop to ensure that appropriate public consultation and environmental and social assessments are conducted before moving forward with the dam.

Lawyers from the Mekong Legal Network are hard at work with concerned communities, ensuring that all legal avenues on both Thai and regional levels are explored for the protection of one of the last large untamed stretches of river in the world. Today's announcement from the MRC, which comes after months of intense campaigning by local and international groups, shows how engaging legal institutions and promoting the rule of law can have immediate and tangible effects on communities – something that we in ERI have always believed in.

How many lawyers does it take...

You probably know a lawyer joke or two. It’s a profession that bears the brunt of more than its share of bad ones, usually based on the idea that the world would be better place if there weren’t quite so many lawyers walking around.

But you also probably know that, all around the world, there are lawyers who are doing work which is no laughing matter. 

A Cambodian woman grieves the destruction of her homeSo how many lawyers does it take to change a lightbulb? The question we'd rather ask, at ERI, is how many lawyers it takes to stop forced evictions of Cambodia’s poorest communities for land concessions to foreign industries? How many to curb toxic pollution in China or end the construction of destructive mega-dams in Laos? How many advocates will it take to challenge the pariah government of Burma, a regime which uses law to oppress its people and is ruthless in its attacks on individuals and communities standing in the way of its quest for profit and power.

These are just some of the issues that the lawyers of the Mekong Legal Network - a group of committed and inspirational legal professionals and civil society leaders from Burma, Cambodia, China, Laos, Thailand, and Vietnam – contend with day in and day out.

As frontline defenders of human and environmental rights, these lawyers become targets themselves, risking their livelihoods, liberty and even their lives to stand up for people and their homelands.  They put themselves in jeopardy of having their licenses to practice revoked. Laws against “incitement” mean lawyers can face criminal charges for taking up sensitive cases.  MLN laywers meeting with</body></html> . . .

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