Blogs

The EarthRights School Mekong (ERSM) brings together students from China, Burma, Laos, Thailand, Cambodia, and Vietnam to learn about the impacts of large-scale infrastructure and commercial development projects in the Mekong region and local struggles to address the negative effects of such projects. Before the 2010 ERSM students celebrated their graduation, they took a final field trip, where they visited three communities that have fought against destructive commercial development projects.

The students visited Klong Dan and Ma Ta Phut and learned about the two communities' successful efforts to obtain investigations into project impacts. In Klong Dan, local residents fought the construction of an industrial waste water treatment plant that had commenced without local participation or environmental, social and economic impact assessments. The residents collected information and wrote a letter that prompted the Asian Development Bank to conduct its first-ever site inspection and, later, to halt funding for the project. Similarly, residents near the Ma Ta Phut industrial zone temporarily halted 76 projects in the zone after a Thai court ruled in their favor and found that developers had failed to undertake required health and environmental assessments.

As the community movement they want to safe their livelihood and environment. . . . The local people and the authority had different idealism and the local people dared to refuse the authority power as they mentioned the constitution and some protection environmental laws to support their rights. - Thai student

Students also visited Bornok-Hin Krud, located on the east coast of Thailand, where local people have been fighting the Thai government's plan to build a coal-fired power plant. In 2004, Charoen Watakson, a core leader of the villagers' protest, was murdered. The ERSM students visited his memorial and learned about the villagers' ongoing struggle.

. . .

This guest post comes from lawyer and writer Shauna Curphey, who is volunteering for a year in ERI's Thailand office.

Last month marked the first anniversary of the U.S. Supreme Court's decision in Citizens United v. Federal Elections Commission, which struck down a federal law limiting corporate and union spending in elections. In reaching its decision, the Court overruled its 1990 decision, which held that the government could restrict corporate campaign spending to prevent corporations from obtaining an unfair advantage in the political marketplace. In short, in Citizens United, the Court held that corporations have the same First Amendment rights as individuals to engage in political speech.

In the year since the Citizens United decision, efforts have sprung up across the country to call for a constitutional amendment to limit corporate rights. Most recently, Rep. Donna Edwards of Maryland introduced a constitutional amendment that would explicitly allow Congress and the states to regulate corporate campaign spending (see video below). Other efforts, including a recent resolution introduced in the Vermont legislature, call for a constitutional amendment that provides that corporations are not persons under the law and thus would strip corporations of rights, such as free speech, that individuals enjoy.

Although amending the Constitution is no easy task – Congress must first pass a proposal that is then ratified by three-fourths of the state legislatures – the amendment efforts will, at the least, nourish a broader conversation about corporate hegemony. People are listening; in a recent national poll, 80 percent of respondents said they opposed allowing unfettered corporate spending on political campaigns.

The proposed amendments might also spark a debate on corporate accountability. An amendment that states corporations are not persons under the law, for example, might affect corporate liability in certain . . .

A quick update on major developments in the case against Chevron in Ecuador: the Superior Court of Nueva Loja in Lago Agrio, Ecuador, issued its final judgment yesterday in the case of Maria Aquinda v Chevron, finding Chevron responsible for soil and water contamination and ordering it to pay more than $8 billion dollars for health impacts and environmental cleanup. Chevron has said it will appeal the decision. Chevron contests liability and obtained orders last week temporarily forbidding the plaintiffs from attempting to enforce the judgment while a New York federal court considers the company’s allegations of fraud.

This has been a historic month for Sudan and Burma, two countries with significant and controversial investment from China in their petroleum sectors. In the past, many parallels have been drawn between Sudan and Burma as both countries are culturally diverse, rich in fossil fuels, and share similar histories including a colonial legacy, decades of armed conflict and civil war, widespread human rights abuses, and economic sanctions imposed by the West. However, with recent national elections in Burma and the independence referendum in South Sudan, both countries are entering new phases of political transition, which raises questions about the future and security of China’s investments in oil, natural gas, and pipeline projects in Sudan and Burma.

In South Sudan, the result of last month’s referendum was officially announced last week, with an overwhelming 98% of the population voting for independence from the north. Sudanese president Omar al-Bashir has publicly accepted the result of the referendum, but many questions remain unanswered about the future of Sudan and South Sudan’s vast oil reserves; how oil revenues will be divided, and the operation of the Greater Nile Oil Pipeline, which spans 1,600 km from oilfields in the south to Port Sudan in the north. China National Petroleum Corporation (CNPC) operates the pipeline and has significant investments in South Sudan’s oilfields, but all the contracts have been negotiated with the government in the northern capital of Khartoum. Prior to the referendum, representatives of the semi-autonomous government of South Sudan called for a renegotiation of all oil contracts, but just a few weeks ago southern oil minister Garang Diing announced that South Sudan “will respect all our contracts signed before the (2005) peace agreement.” Still, CNPC signed several agreements after 2005 and the uncertainty about these investments in South Sudan has led . . .

This post was authored by Laura, a volunteer English teacher at the Social Development Center (SDC). The Social Development Center was established in 2002 by four Karenni alumni of the EarthRights School Burma (ERSB).

The vision of SDC is to promote the lives of those refugees who have suffered human rights abuses, teach non-violent methods of social change, develop the rule of law, value human dignity and protect the environment. Graduates from the SDC have gone on to work in many local refugee camp based organizations, whilst others have travelled at great personal risk to pass on their new knowledge and skills to affected communities within Burma.

ERI and SDC are lucky to have the support of volunteers like Laura, who donate their time and effort in support of our work.

I am currently volunteering for 3 months as an English teacher at the Social Development Center in Northern Thailand, and although I’m only one month in so far, I've already had a life changing experience! The students are some of the most motivated, clever, and hardworking people I’ve ever met - and they are also so friendly, optimistic and respectful as well, which is so surprising given the current situation within their state in Burma. They try hard at every subject and are always eager to learn new things, and share their stories with me. Their dreams of the future largely involve giving back to their communities or improving their people's situation, and helping others in any way possible - it is amazing how selfless these youths are, something I’ve rarely seen in the western world.

The other teachers are also inspirational role models, full of knowledge and ideas, and are working hard to improve the quality of education . . .

Chevron's going all-out in its lawsuit against the Ecuadorian plaintiffs and their lawyers who've sued Chevron over environmental devastation in the Amazon.  The company wasted no time in asking for a temporary restraining order (TRO) and preliminary injunction preventing the plaintiffs and their lawyers from enforcing an Ecuadorian judgment or attaching Chevron's assets.

Today, Judge Kaplan, the federal judge presiding over the case, granted a 14-day TRO and an expedited schedule for a hearing about a preliminary injunction.  This was no surprise; last week Judge Kaplan issued an "order to show cause" (OSC) which basically said that Chevron had made a good case for a TRO and the Ecuadorians needed to prove why it should not issue.

It's not clear, though, how Chevron's made an adequate showing as to why it needs these emergency orders.  The Ecuadorian court has not issued any kind of judgment against Chevron, and it's not clear when such a judgment will be issued.  As far as I know, the plaintiffs have not tried to attach any of Chevron's assets.

Under Rule 65 of the federal rules, the judge is only supposed to issue a TRO if Chevron is facing "immediate and irreparable injury, loss, or damage."  It's highly questionable whether Chevron's actually met this standard.

Furthermore, Chevron's supposed to pay "security" to the court--such as a bond--that would be sufficient to cover the plaintiffs' losses if it turns out the TRO was issued improperly.  So far I haven't seen any indication that Judge Kaplan is going to require this.

Nor is it even clear what the legal impact of Judge Kaplan's ruling is.  The TRO rules don't give the court jurisdiction over anyone that it wouldn't otherwise have.  So it doesn't answer questions about why the Ecuadorians, or most of . . .

On Friday, the Second Circuit Court of Appeals, in New York, denied rehearing in the Kiobel case, in which it had ruled that corporations could not be sued for violations of international human rights law under the Alien Tort Statute (ATS). 

The court split 5-5 on rehearing the case (for some reason, Judge Lohier, who joined the court in December, did not vote, although he was entitled to do so).  Four judges issued a dissent from the denial of en banc rehearing.

Additionally, the judges on the original panel--Cabranes, the author, Jacobs, the Chief Judge who joined Cabranes, and Leval, who disagreed--also filed additional opinions.  Most extraordinary is Chief Judge Jacobs's opinion, which essentially states that--apart from the legal analysis given in Judge Cabranes's actual decision--he joined the decision due to a number of policy reasons. 

This may undermine the weight that other courts give to Kiobel, because, as Judge Leval points out in his response to Jacobs, judges are generally supposed to stick to the law and leave the policy to other branches of government.

But the current implications here are quite bad, especially for litigants in the Second Circuit--which includes the plaintiffs in the Apartheid cases, among others.  Unless the court takes a later case for en banc hearing or rehearing, the only avenue for those litigants is the Supreme Court.  The decision does not directly affect litigants elsewhere in the country, but still could be influential.

(It's also clear that my earlier analysis of what was going on with the weird issued-and-then-withdrawn orders in December was wrong.  What was likely happening was that they had already voted to deny en banc rehearing, but the clerk wasn't supposed to issue the order then because the judges needed time to . . .

In December, I joined students from the EarthRights School Mekong (ERSM) on their field trip to Don Chai, a village in Northern Thailand’s Sa Iab Valley.

The residents of Don Chai love their hometown, and it’s not hard to see why. Surrounded by green hills, magnificent teak forests and the meandering Yom River, the Sa Iab Valley is the epitome of idyllic Northern Thai countryside. Don Chai’s inhabitants would like to keep it that way, but it isn't easy: thanks to a proposed dam they’ve spent the past two decades chasing World Bank officials out of town, placing curses on high-profile politicians and organizing protests all over the country.

On the street in Don Chai village

In 1991 the Thai government proposed the construction of a dam at Kaeng Seua Ten (“Jumping Tiger Rapids”), an area on the Yom River a few kilometers upstream from Sa Iab. If built, the dam would flood four villages, displace about a thousand households and destroy countless acres of teak forest. Since the proposal, residents of the Sa Iab Valley have transformed themselves into a model of community activism and become famous throughout Thailand for their hard-hitting and relentless approach.

The Kaeng Seua Ten protest movement offers invaluable lessons for ERSM students, presenting an opportunity to see a thriving grassroots movement in action. The students stayed with local families, learning about the people and plight of Sa Iab through presentations, a walk through the community forest, visits to spiritual sites and a rafting trip down the Yom River.

After arriving, students met their homestay families and local leaders in the town’s temple. Sa Iab’s community is well versed in presenting their case . . .

Chevron, facing a landmark lawsuit in Lago Agrio, Ecuador, over pollution left in the Amazon by its predecessor, Texaco, has increasingly gone on the offensive against the Amazonian communities bringing the lawsuit.  Chevron has accused the plaintiffs, their lawyers and supporters of all manner of dirty tricks, and even denounced the awarding of the Goldman Environmental Prize to the two leading Ecuadorian lawyers.  The plaintiffs in turn allege that Chevron's personnel have admitted tampering with evidence, and that Chevron hired a convicted drug trafficker to attempt to entrap the presiding judge in a bribery scheme, among other things. 

But on Tuesday Chevron's efforts to discredit the case reached a new level, as Chevron sued the Ecuadorian plaintiffs themselves in federal court in New York, accusing them of fraud, interfering with contracts, trespass, unjust enrichment, and conspiracy.  Chevron has also levied even more serious charges against the lawyers, expert witnesses and affiliated organizations, accusing them of racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Most of Chevron's allegations arise out of a court-appointed expert report in Ecuador, over which the plaintiffs allegedly had improper influence, and various statements by the plaintiffs' lawyers and allies which Chevron contends are false and are calculated to force Chevron into a settlement.  I have no idea whether there is any truth to Chevron's allegations, though it wouldn't surprise me if some of what has happened in the Ecuadorian court proceedings would seem unusual or even outrageous by US standards.  Indeed, the plaintiffs themselves originally filed this case in New York, and wanted to litigate in the US--they didn't want the case moved to Ecuador because they feared the court system was subject to political influence and not up to the task of hearing a case like this.  (At one stage . . .

California’s Unfair Competition Law (Cal. Business and Professions Code Section 17200) allows plaintiffs to challenge business practices that are unfair or fraudulent. ERI has previously filed claims under the law in our suit on behalf of Burmese villagers against Unocal for its knowing benefit from the human rights abuses of its business partner the Burmese military, and our suit on behalf of Amazon Watch, which was forced to expand significant resources to challenge pollution by Occidental Petroleum (Oxy) in the Peruvian Amazon. The law requires that the plaintiff “has suffered injury in fact and has lost money or property as a result of such unfair competition.” 

Corporations, including Oxy, have argued that in order to bring a claim, the plaintiff not only must have lost money, but also that the lost money must be in the defendant’s possession. A few lower courts had accepted that argument. Last Thursday, however, in the Kwikset case, the California Supreme Court rejected that very narrow limit on who may sue under Section 17200. By affirming that the court house door is open to all those who lost money as a result of an unfair business practice, the decision is an important win for consumers, human rights and labor organizations and others concerned with corporate accountability.  The decision is described more fully on the UCL Practitioner blog.

In our case, Oxy has already sent a letter to the court acknowledging that Kwikset eliminates one of its arguments against Amazon Watch.