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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.

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 to the public, and through a series of slideshows showed students the livelihoods being threatened and strategies for halting the dam project. Their methods have been so effective that leaders from Sa Iab travel all over the world to meet with their counterparts in similarly affected areas.

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 when the case was in the US, ERI filed an amicus brief supporting the plaintiffs.)

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.

In a major development in the effort to promote the responsible use of resource-related revenues, French President Nicolas Sarkozy has pledged to spearhead efforts to pass legislation at the European Union requiring oil, gas, and mining companies registered in Europe, to disclose their resource-related payments to governments. Responding to a call from U2’s Bono and inspired by similar U.S. legislation passed in 2010 that will require U.S. registered companies in the sector to disclose their payments to governments on an annual and project-by-project basis, Sarkozy stated his intention to organize a meeting on the issue at the G8 and G20 meetings in Paris in March, and pledged to ask the EU to “adopt as quickly as possible legislation forcing companies in the extractive sector to publish what they pay to host countries."

Sarkozy’s statement should be commended and adds to momentum that is clearly building towards more transparency and accountability in this secretive and oft criticized sector. Just this past December in South Korea, similar legislation was also introduced in the National Assembly that would increase transparency of payments made by Korean resource extractive companies.

Human rights advocates, including we at ERI, have long used the Alien Tort Statute to hold corporations liable for their complicity in violations of universally recognized human rights standards. The statute, enacted in 1789 as part of the First Judiciary Act, grants federal district courts jurisdiction over claims by an alien for torts committed in violation of the law of nations.  Corporations have tried any number of creative interpretations of the law to avoid liability for their actions. 

One of the more creative (or perhaps ridiculous) examples is Chevron's argument in Bowoto v. Chevron Corp., that it could not be held liable for the shooting of protestors at a Chevron oil platform offshore Nigeria because, it claimed, when Congress passed the ATS, the word alien only included foreign citizens living in the United States, not non-resident foreigners. 

The Court properly rejected Chevron's argument. Undeterred, one of Chevron's attorneys published an article in the Berkeley Journal of International Law making the same claim. 

So human rights attorney Lorraine Leete (a former ERI law student intern!) and I have published a response: "An Alien by Any Other Name: Debunking a New Attempt to Re-Write the Original Language of the Alien Tort Statute." We note that the Supreme Court has already expressly held that non-resident aliens may bring suit under the ATS; in Rasul v. Bush , 542 U.S. 466 (2004), the Court upheld the availability of an ATS cause of action to non-resident aliens confined in military detention at Guantanamo Bay. 

This post was contributed by an anonymous intern on ERI's campaigns team.

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Despite rich endowments of energy resources like oil and natural gas, Burma continues to struggle with electricity shortages. Back in 2006, the junta decided to try to address these shortages by requiring all farmers with at least an acre of land to plant jatropha, a physic nut that can be used to create biofuel. Proponents of jatropha say that the plant has many advantages. It’s not edible and therefore doesn’t compete with the food supply, they claim, and can also survive in harsh climates with little water. The promise of jatropha has led to numerous investments in plantations in Asia, South America and Africa.

But since the jatropha craze started in the mid-2000’s, there’s been increasing skepticism from both industry insiders and observers about the merits of jatropha. The Food and Agriculture Organization noted that despite increasing investment and policy decisions on jatropha, there was “little evidence-based information” to inform these actions. A major recent report on jatropha production by Friends of the Earth, entitled “Jatropha: money doesn’t grow on trees,” challenges some of the most fundamental motivations for growing jatropha, including its ability to thrive in harsh and dry climates and its lack of competition with the food supply.

According to the report, jatropha may in fact be less efficient for producing biofuels than other currently available plants. One study cited in the report suggests that jatropha actually needs more water than any other biofuel crop to produce the same amount of oil (FOE report, p. 6). Its ability to thrive in harsh climates also appears overstated, according to Rob Bailis of Yale University. He said that “if you plant trees in a marginal area, and all they do is just not die, it doesn’t mean you’re going to get a lot of oil from them.” Despite claims that jatropha won’t compete for arable land with food crops, plantations across Africa and Asia have sprung up not on marginal lands, but on land previously used for food crop farming.

Last fall, I blogged about a decision by the Second Circuit Court of Appeals, in New York, ruling that corporations could not be sued for international human rights abuses under the federal Alien Tort Statute (ATS).  This sent shockwaves through the human rights legal community, but its impact is far from determined, especially as other federal appeals courts begin to decide whether to follow or reject Kiobel.

Yesterday, I watched a hearing at the D.C. Circuit Court of Appeals in Doe v. Exxon Mobil, a human rights case involving abuses in Indonesia.  Corporate liability is an issue in the appeal, but the judges made it clear that they were not about to follow the Second Circuit's ruling without examining whether it was correct--and they asked a lot of tough questions of both sides.  One judge indicated that he thought it made sense that the issue of corporate liability under the ATS should be a question for US domestic law (in which corporations are universally held liable on the same basis as human beings)--and the judges made it clear that they had read the amicus briefs detailing the ways in which the Kiobel analysis was flawed (for example, in supposing that German corporations who partnered with the Nazis were not subjected to punishment after WWII).

Indeed, we still don't know what's happening with the Kiobel decision itself.  After the ruling, the plaintiffs filed a petition for rehearing, which asked the panel to reconsider its decision and also asks all of the judges on the court (the "en banc" court) to review what the three-judge panel had done.  In late December, the court issued a notice saying that the petition for rehearing had been denied, which would ordinarily signal the end of the process.  But the next day, the clerk issued another notice saying that the first notice had been issued in error. 

It’s been a big couple of weeks for news on the human rights and environmental consequences of Shell’s operations in Nigeria.  I’ve been a little behind on this, so I’m rolling a few updates into one here: 

Nigerian State-Owned Oil Company Can Be Sued in ECOWAS Court, But Not Shell 

I was disappointed – but not surprised – by a decision that came down last month from the ECOWAS Community Court of Justice in a case filed by the Socio-Economic Rights and Accountability Project (SERAP) against the Government of Nigeria and several multinational oil companies, alleging violations of internationally protected human rights.  The ECOWAS Court, which generally hears petitions against member states of the Economic Community of West African States based on economic and human rights treaty obligations, found that it did not have jurisdiction to entertain suits against private companies.  However, the Court did decide that the case could go forward against both the Nigerian government and NNPC, the state-owned national oil company.

Back in November, we blogged twice about Oklahoma's new constitutional amendment forbidding courts from considering international law or foreign law, especially Sharia.  The American Constitutional Society has since published a short paper, Oklahoma State Question 755 and An Analysis of Anti-International Law Initiatives, in which Martha Davis and Johanna Kalb discuss the amendment and other similar proposals.  The analysis of the Oklahoma law is worth reading, but what's more eye-opening is the review of what's been proposed elsewhere.  A 2004 federal bill would have allowed impeachment of federal judges who rely on foreign or international law.  Measures similar to Oklahoma's, though without the specific focus on Sharia, have been proposed in Arizona, Idaho, and South Carolina.

By far the most audacious, however, is a proposed Iowa law that states that, under penalty of impeachment: