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Kiobel officially an outlier: Yet another US court rules for corporate accountability for human rights abuses

Three days after the D.C. Circuit Court of Appeals ruled that corporations could be sued for human rights abuses, the Seventh Circuit Court of Appeals came to the same conclusion, in a decision in Flomo v. Firestone (PDF).  (Unfortunately, the Seventh Circuit also ruled that the plaintiffs did not show that the abuses in that case, involving child labor on rubber plantations in Liberia, actually violated international law.)

This decision is especially significant because it was written by Judge Richard Posner, a prominent legal scholar who is widely respected but generally considered conservative, and who was appointed to the court by President Reagan.  Unlike the D.C. Circuit's opinion in Exxon Mobil, in which a Bush II appointee dissented from an opinion by two Clinton appointees, Posner's opinion was unanimously supported by two other Republican-appointed judges.

The Firestone opinion expressly labels the Kiobel decisions, which found corporate immunity for human rights abuses, an "outlier," which it now certainly is.  Between Exxon Mobil and Firestone, along with Judge Leval's dissent in Kiobel, the reasoning of the Kiobel majority has been thoroughly dismantled.

So far the U.S. Courts of Appeal for the D.C., Seventh, and Eleventh Circuits have expressly found corporate liability for human rights violations; the Ninth Circuit has assumed such liability and may make an express decision on the issue soon, and it is also being considered by the Fourth Circuit. 

Only the Second Circuit, in Kiobel, has found that corporations cannot be sued.  The district court's decision in Firestone was the only opinion that followed Kiobel, and now it has been reversed. . . .

Yellowstone River spill is business as usual for Big Oil

Last week I vacationed in western Montana, where I was born and raised. Skipping stones on Flathead Lake and walking for miles along the Clark Fork river, I was acutely aware of the dangerously high water levels – higher than I’ve ever seen – which have led to flooding throughout the state this spring and summer. I was oblivious, however, to the environmental tragedy that was unfolding in eastern Montana: 42,000 gallons of crude oil spilling from an Exxon pipeline into the Yellowstone River. I only learned of the spill after I’d returned to work in Washington DC.

Putting it in perspective

Like many, I’m sure, the first thing I did was consult a map, and I heaved a sigh of relief after confirming that Yellowstone National Park, where I’d passed many summer days as a child, was unaffected by the spill.  Then I crunched some numbers, and almost convinced myself that it’s not so bad. After all, 42,000 gallons is only 1000 barrels, a drop in the bucket compared to the 53,000 to 62,000 barrels which spilled into the Gulf of Mexico every day for nearly three months during the Deepwater Horizon disaster of 2010.

While the impact on local Montana fisheries and agriculture won’t be known for some time -- just as we won’t know the true impacts on the Gulf ecosystem of the BP spill for years to come -- it’s encouraging that drinking water has been deemed safe in both the immediate area and further downstream in North Dakota.

So why does this small spill still break my heart? Probably because, even with a small spill on a minor pipeline, Big Oil still can’t seem to get it right.

Business as usual

In the year leading up to the Yellowstone River spill, . . .

U.S. appeals court rules that corporations are not immune from accountability for human rights violations

Today, the U.S. Court of Appeals for the D.C. Circuit, often considered one of the most influential courts of appeals, ruled that corporations can be held liable for violations of international human rights law under the Alien Tort Statute (ATS).  The D.C. Circuit's decision in Doe v. Exxon Mobil, in which ERI filed an amicus brief, repudiates the reasoning of the Second Circuit in the Kiobel case.

The Exxon Mobil decision (PDF) is significant because the D.C. Circuit is the first court of appeals to consider corporate liability under the ATS after the Kiobel decision.  Three other appeals courts--the Fourth Circuit, the Seventh Circuit, and the Ninth Circuit--are currently considering this question in appeals that have already been fully briefed and argued.

Exxon Mobil may influence the other courts considering corporate liability, and--hopefully--signals a trend to isolate Kiobel as an outlier decision.  The decision is well-reasoned and points out numerous holes in Kiobel.

The decision is also significant because the court adopted the knowing, substantial assistance standard for aiding and abetting liability.  The Second Circuit rejected this standard in the Talisman case, opting for a higher "purposeful assistance" standard.  The D.C. Circuit correctly found that both U.S. law and international law have long held abettor liable when they knowingly assist abuses, regardless of whether they shared the perpetrator's purpose.

Finally, the Eleventh Circuit Court of Appeals also recently made an important decision on this subject.  Before Exxon Mobil, the Eleventh Circuit was the only court that had expressly ruled that corporations could be sued under the ATS.  After the Kiobel decision, the Drummond coal company, which is being sued in the Eleventh Circuit, asked that court to reconsider its position.

Yesterday, the Eleventh Circuit rejected Drummond's petition, which effectively means that that court is standing behind its earlier rulings that corporations can be sued for human . . .

Inspiring African Human Rights Lawyers Meet and Plan at Cameroon Conference

Every once in a while, ERI gives me the opportunity to re-energize my work and build new connections by meeting creative, dedicated activists and lawyers who are fighting earth rights abuses in their home countries.  Last week, in Douala, Cameroon, I got a major dose of inspiration while attending an international conference hosted by the European Center for Constitutional and Human Rights (ECCHR) and the Societé Nationale de Justice et Paix du Cameroun, aimed at linking local African human rights defenders with transnational lawyers.

This conference was the second of a series of related gatherings organized by ECCHR (the first was last year, in Bogotá; the next will be somewhere in Asia, next year), on the theory that human rights lawyers and other activists fighting corporate abuses in host countries may benefit from the advice, assistance, and accompaniment of lawyers in the countries where the companies are based.  Over the  course of the conference, I conferred with representatives of communities from several African countries and listened, amazed, at the courage and brilliance that these activists have brought to their fight against multinational corporations.

Sydney, a young lawyer from Zambia (and an excellent dancer), fights to expose the lopsided contracts of a Swiss mining company in an atmosphere of intimidation where the people have no right to information.  Martine, a grass-roots leader from a community in southern Chad, has repeatedly brought attention to the environmental and humanitarian disaster of the Chad-Cameroon pipeline through complaints to the World Bank's Inspection Panel, the Compliance Advisor Ombudsman's office at the International Finance Corporation, and other forums.  In return for her efforts, she has been jailed and forced into hiding repeatedly, once for over two years straight.  Emmanuel, a former combatant from Sierra Leone, runs a leading constitutional and human rights law practice, fights . . .

Supreme Court roundup: no federal nuisance for climate change, and Saher and Saleh will stand

In the past week, the Supreme Court has issued several orders in cases of interest to ERI.  Last Monday, the Court decided American Electric Power v. Connecticut, in which several states sued power companies on a theory of public nuisance under federal law.  Its decision is a loss for the plaintiffs, but one that does not prohibit further climate change litigation.

A longer analysis can be found at the Climate Law Blog; in brief, the court decided that, because the EPA had authority to regulate greenhouse gases, this authority preempted any federal claim for public nuisance.  But the court rejected the idea that the plaintiffs did not have standing to bring the case, or that the case presented a "political question" that could not be litigated.  So further cases that do not involve federal common law claims--including the Connecticut case itself, which also presents state-law nuisance claims--might still proceed.

Today, the Court decided not to hear two significant transnational cases.  In von Saher v. Norton Simon Museum, the Ninth Circuit Court of Appeals struck down a California statute allowing owners of art looted during the Holocaust to file claims in California, reasoning that it interfered with exclusive federal foreign policy powers.  (ERI filed an amicus brief asking the Ninth Circuit to rehear the case.)  In Saleh v. Titan, the D.C. Circuit ruled that a U.S. contractor could not be sued over abuses arising out of the Iraq war, based on a previously unknown "battlefield preemption" doctrine.

A decision not to take a case usually doesn't signify much about the Supreme Court's views on the issues in the case--the justices often wait for additional appellate decisions to clarify the issues.  Notably, in both cases the US government had recommended against the Supreme Court hearing them; in Saher, the government suggested that the case . . .

Protesting the Belo Monte dam

This guest post comes from Yewande Ajoke Agboola, a law student at University of Maryland School of Law currently interning with our campaigns team in Washington DC. At the event described below, Ajoke was accompanied by Jirawat ("Cook") Suriyashotichynagkul, a Thai legal fellow from our Southeast Asia office, currently visiting our US office after attending American University's Washington College of Law's summer session on Environmental Law.


On Monday, Cook and I participated in our very first protest! A couple of blocks from the Brazilian embassy we gathered with other young activists to protest the construction of the Belo Monte dam located on the Xingu River, in the Brazilian Amazon. If completed, it will be the third largest dam in the world and would displace approximately 20,000 indigenous peoples from 18 different ethnic groups, including the Juruna, Xikrín, Arara, Xipaia, Kuruaya, Parakanã, Araweté, and Kayapó.

The fight opposing the Belo Monte dam has been waging since it was first proposed in 1975. In 1989, the plans to build the dam were successfully halted due to the hard work and persistence of indigenous people, local activists, and civil society. Unfortunately, plans to build the dam were placed back on the table in the late 90’s and on June 1st the Brazilian environmental agency gave final approval for the construction of the dam in spite of the recommendation by the Inter-American Commission on Human Rights (IACHR) to suspend the licensing process. The Brazilian Public Prosecutor’s office has called for the immediate suspension of the license, which was issued illegally since many of the conditions required for the license were not met. If the Brazilian government continues to ignore IACHR it could lead to a formal condemnation of Brazil’s actions and possibly referral to the Inter-American . . .

Natural resource projects in conflict areas: In military controlled Burma, will history be repeated?

In early March, the Burmese Army attacked the Shan State Army-North (SSAN) in northern Shan State.  The fighting has since spread throughout northern Shan State.  Previously, in 2009, the Burmese Army attacked the Kokang ethnic group, also in northern Shan State in an area north of the current fighting, leading to tens of thousands of refugees fleeing into China. The current fighting with SSAN has already lasted for three months and will likely continue for some time, and the Burmese Army attack has helped motivate the SSAN and Shan State Army-South (SSAS) to create a close alliance.

Then last week, in Southern Kachin State, close to the border with northern Shan State, the Burmese Army attacked a Kachin Independence Army (KIA) base in Momauk Township. This fighting will also likely continue and may spread throughout the entire KIA controlled area in Southern Kachin State. Recent reports indicate this fighting may be related to two Chinese dam projects in Kachin State that block Burma's rivers and provide electricity to industry in Yunnan, China.

When development projects meet ethnic conflict

On December 1, 2009, a formal agreement was signed with China National Petroleum Corporation (CNPC) and the Myanmar Oil and Gas Enterprise stipulating that the Burmese government will guarantee the safety of the Burma-China onshore crude oil pipeline, which will transport oil from Africa and the Middle East through Arakan State in western Burma and northern Shan State to Yunnan Province in China.  Along with a parallel natural gas pipeline also being constructed and operated by CNPC and its subsidiaries, these projects are increasing the economic and political importance of northern Shan State.

Many ethnic armed groups have been active in northern Shan State and southern Kachin State for many years, including KIA, SSAN, and SSAS. Both the KIA and SSAN have . . .

Victims and courts fight to hold corporations accountable for human rights abuses, challenging Kiobel

I've been following the Kiobel case, in which the U.S. Court of Appeals for the Second Circuit decided corporations could not be sued for violating international human rights law, since the decision was issued last fall.  (See prior posts hereherehereherehere, and here.)

Although the first court to consider this question after Kiobel similarly rejected corporate liability, in Flomo v. Firestone, victims have been fighting back--and recently they've been getting some help from the courts.

First, on May 18, a federal court in Illinois declined to follow Kiobel.  In a case involving Hungarian Jews who allege theft of their property by Hungarian banks during the Holocaust, the court allowed claims of "[g]enocide by looting and aiding and abetting genocide by looting" to proceed under the Alien Tort Statute (ATS).

Most importantly, the court quotes extensively from Judge Leval's concurring opinion in Kiobel, and "agrees with the concurring opinion in Kiobel that there is a sufficient legal basis to hold corporations liable under the ATS for genocide."  (The opinion is at the bottom of this post.)

Second, the corporate liability issue was argued in the appeal in the Flomo v. Firestone case before the Seventh Circuit last Thursday.  It's always risky to predict the outcome of a case based on the oral argument, but some of the judges on this panel seemed to be pretty dismissive of the reasoning in Kiobel. (Listen to the argument.)

Last, the plaintiffs in the Kiobel case itself have taken the ultimate step in trying to challenge the Second Circuit's decision--they have filed a petition asking the Supreme Court to take the case.  Whether the Supreme Court takes the case or not doesn't necessarily indicate whether the justices agree with the decision, but we'll certainly be watching to see what happens.  Unless the Second Circuit reverses itself in a . . .

Oil’s Impact on the Possibility of Renewed Conflict over South Sudan Independence

A few months ago, I blogged about South Sudan’s independence referendum and future implications for the country’s oil reserves. With the vast majority of South Sudan voting for independence from Khartoum, the establishment of South Sudan as an independent country has been slated for July 2011; however, many issues remain unresolved as to how the country will divide in two.

So far, no definitive agreement has been reached between the governments of Sudan and South Sudan on the future division of oil revenues, which could have significant economic implications for both countries. The land-locked south has large oil reserves, but the oil can currently only be exported via the Greater Nile Oil Pipeline, which travels 1,600 km through the north before reaching Port Sudan where it is exported overseas. At present, Sudan and South Sudan split the oil revenues equally (although the South claims Khartoum has been taking more than its fair share), but this agreement will likely change after July when South Sudan becomes formally independent.

Looking forward, options for Sudan and South Sudan include (1) continuing to split oil revenues; (2) South Sudan paying a transportation fee to Sudan for the continued use of the Greater Nile Oil Pipeline; or (3) the construction of a new pipeline from South Sudan through neighboring Kenya. With tensions running high as July draws nearer, both Sudan and South Sudan are aware of the economic implications of such revenue sharing agreements, as is China National Petroleum Corporation, which operates several blocks in South Sudan as well as the Greater Nile Oil Pipeline.

In recent weeks, relations between Sudan and South Sudan have been particularly strained since the north seized the disputed oil-rich region of Abyei, which straddles the border between both countries. The . . .

Court grants Oxy's petition for rehearing, but Achuar communities still win appeal

In December, we won our appeal on behalf of indigenous Achuar communities from Peru who are suing Occidental Petroleum (Oxy) for toxic contamination; the Ninth Circuit Court of Appeals ruled that the case could continue in US courts.  As we expected, Oxy asked for reconsideration, filing a petition for rehearing.  Yesterday, the court granted the petition for rehearing--but we still won.

What's going on here?  Basically, the court granted the petition as a technical matter, because the judges did reconsider, and change, some parts of their opinion.  But they didn't change the result.  They still reversed the district court's ruling that the case should be litigated in Peru, and still allowed us to continue in US court.

The judges made some changes to their discussion of the statutes of limitations and some of the considerations in whether to send the case to Peru, such as whether the Peruvian courts are generally adequate to hear these kinds of cases.  These changes address some of Oxy's criticisms of the opinion, but they ultimately don't help the oil company.

So is this finally the end of this appeal?  Maybe; maybe not.  Oxy can now file another petition, asking the court for an "en banc" rehearing in front of a larger panel of eleven judges.  Those petitions rarely succeed, but in litigation, anything can happen.  For now, we're still winning, and the Achuar still have the right to pursue justice in US courts.

Document: Amended Ninth Circuit Opinion in Maynas Carijano v. Occidental Petroleum Corp.

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