Be Careful What You Wish For in a World of Global Law
posted by Robert Percival
For the last couple of years I have been promoting the concept that globalization is blurring traditional distinctions between domestic and international law and creating new norms that should best be considered a form of “global law.” Tseming Yang and I have co-authored a piece on “The Emergence of Global Environmental Law” that will appear shortly in Ecology Law Quarterly. In April I delivered the 15th Annual Lloyd Garrison Lecture in Environmental Law at Pace University Law School and devoted it to describing “The Globalization of Environmental Law.” A transcript of this lecture will appear shortly in the Pace Environmental Law Review. This phenomenon is occurring not only in the environmental law field, but also in other areas of law such as antitrust and securities regulation as governments and NGOs increasingly coordinate regulatory policies toward multinational corporations. Gone are the days when a company whose hazardous products were restricted in the developed world could easily dump them in developing countries without their shareholders finding out about it. As legal systems in developing countries mature, the days when multinational corporations automatically sought to defeat lawsuits in U.S. courts by foreign litigants by invoking the doctrine of forum non conveniens also may be numbered.
Two events last week are illuminating. Wednesday was the scheduled start of a trial in federal district court in New York of a lawsuit alleging that Royal Dutch Shell collaborated with the Nigerian military to execute environmental activist Ken Saro-wiwa in 1995. The lawsuit was filed under the Alien Tort Statute (ATS), enacted by the first U.S. Congress in 1789 to enable foreigners to recover for harm caused to them by U.S. citizens. Wednesday also was the day on which the annual meeting of shareholders of the Chevron Corporation was held and environmental protesters were expected. When it took over Texaco eight years ago, Chevron acquired responsibility for defending a long-standing lawsuit against Texaco by residents of the Oriente region of Ecuador. Plaintiffs in this lawsuit claim that Texaco’s oil development activities in Ecuador during the 1970s and 1980s created an environmental disaster that persists today and they were expected to protest at Chevron’s annual meeting.
Litigation under the Alien Tort Statute is now almost impossible for environmental plaintiffs to win because the Supreme Court set the bar so high when it decided Sosa v. Alvarez-Machain in 2004. The Court held that the Alien Tort Statute can only be used to seek redress for actions that violate “specific, universal, and obligatory” norms recognized as part of the “law of nations” at the time the law was enacted. Both the Second Circuit (in Flores v. Southern Peru Copper Corp. in 2003) and the Fifth Circuit (in Beanal v. Freeport-McMoran in 1999) have held that allegations of severe environmental harm were not enough to give rise to liability under the statute. However, plaintiffs who claimed that the Unocal Corporation had collaborated with the Burmese military’s activities of forced labor, murder, and rape in connection with construction of an oil pipeline won a favorable settlement following an en banc oral argument in the Ninth Circuit (Doe v. Unocal Corp.) that did not go well for the company.
Ironically, the litigation against Texaco also began as a claim under the Alien Tort Statute in the early 1990s. But the company, invoking the doctrine of forum non conveniens that had sent the Bhopal litigation back to India, insisted that the litigation should not be heard by the U.S. courts. As a result, it was dismissed by the Second Circuit on the condition that Texaco agree to let the case be heard by an Ecuadoran court. After years of trial, the court in Ecuador may rule before the end of the year and Chevron now fears that it may be held liable for as much as $27 billion in cleanup costs. Chevron’s defense is that everything it did in Ecuador was legal (at a time when the country’s environmental laws were undeveloped). It also notes that it spent $40 million on environmental cleanup and was released from further liability by the government of Ecuador in 1992 when it left the country. The plaintiffs claim that this settlement with a former, compliant government does not absolve Texaco of responsibility for the harm their activities caused to the plaintiffs. I previously predicted that as foreign courts become more aggressive in handling claims for environmental harm, companies eventually will abandon their strategy of seeking dismissals of suits filed by foreigners in U.S. courts on forum non conveniens grounds. (“Environmental Law in the Twenty-First Century,” 25 Va. Envt‟l L. J. 1 (2007)). In hindsight Texaco would have been better off litigating the merits of the claims in U.S. courts than appearing before what appears to be an increasingly hostile court in Ecuador.
The start of the Saro-wiwa v. Shell trial has now been delayed until this week. Last December Chevron won a high profile ATS case when a jury in San Francisco ruled in Bowoto v. Chevron Corp. that it was not responsible for human rights abuses when the Nigerian military suppressed an environmental protest against its drilling practices. But win or lose, these cases expose to the glare of international publicity environmental practices that fall short of the standards oil companies use when operating in developed countries. Plaintiffs are making full use of the internet to communicate their point of view. See www.shellguilty.com and www.truecostofchevron.com.
This week House Speaker Nancy Pelosi traveled to China to engage Chinese officials on why it is important that they agree to control their emissions of greenhouse gases (GHG) at the upcoming global Copenhagen conference in December. This is a similar mission to the one that I was on last month when the State Department arranged for me to give two weeks of lectures on environmental law in six Chinese cities. Next week I will blog about this experience and the prospects for the Chinese agreeing to control their greenhouse gas emissions at the upcoming Copenhagen conference in December.
June 1, 2009 at 5:38 pm
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Responses (6)
Anna - June 1, 2009 at 7:10 pm
Chevron defends Texaco’s crimes with lies and misinformation. Chevron said that it did not have to clean up the contamination because the Ecuadorian government released it from liability after Texaco cleaned up some of the oil sites. This is what Chevron didn’t say. One, the “release agreement” with the government excluded individual claims, saying there was no way the government would or could prevent an individual from suing Texaco in the future. Two, Texaco never cleaned up the pits, so the agreement is null and void anyway. Court evidence has shown oil site after oil site with high levels of contamination, even though Texaco claimed to have remediated the site. For the truth, click here:
http://www.thechevronpit.blogspot.com
Maryland Conservatarian - June 2, 2009 at 4:04 am
Welcome Bob -a few comments:
“Litigation under the Alien Tort Statute is now almost impossible for environmental plaintiffs to win because the Supreme Court set the bar so high when it decided Sosa v. Alvarez-Machain in 2004.”
You seem to lament this state of affairs. But Sosa was seemingly non-controversial on this issue. Justice Souter’s opinion was a unanimous smackdown of the Ninth Circuit (natch) and even Justice Ginsburg in her concurrence only differentiated on the FTCA portion – not the ATS. Notably she did not,as is often her wont, call upon Congress to make clear that this 200 year old piece of legislation was designed to encompass any lawsuit brought by anyone who isn’t a straight,white male. Otherwise, in the insightful words of Madame Speaker “So this is almost as if God has spoken.”
…and speaking of Speaker Pelosi – she’s our spokesperson to encourage the Chinese to cut their standard of living and economic growth so that our President and other so-called progressives can continue to turn more of our lives over to federal purview?
Whew! – I was worried we might be making a serious effort at this.
British Schol - June 2, 2009 at 12:22 pm
There is no reason to call the Ecuador court hostile just because it held that poisoning children is tortious. Were the US courts hostile in imposing billions of dollars of liability on Exxon for Valdez, or Enron for completely monetary harm (mostly to speculators)? No, but when some indigenous people get justice the court is all of a sudden hostile and unfair. That’s basically the attitude of Maryland Conservatarian up above who says an entire statute should be thrown out because it might benefit brown people.
A.J. Sutter - June 2, 2009 at 6:19 pm
I’m uncear on how “global law” is being created in these instances. Judging by the evidence presented here, this seems like a buzzword looking for a place to land.
From the examples you mention, US courts aren’t making favorable decisions in these environmental suits; the best result was a settlement (Doe v. Unocal). Saro-wiwa v. Shell is just barely entering the trial phase, which is to date less of of an accomplishment than Sosa and other ATS cases lost on appeal. The greater success may be in Ecuador, though that case isn’t yet resolved. But assuming Chevron loses, Ecuador is where the damage occurred: that seems like quite traditional tort law.
You do mention that plaintiffs are using publicity in their fight against sub-standard environmental practices. But is that creating “global law”? Is it creating “norms”? (As a practitioner, rather than a prof, this word remains quite opaque to me.) If the latter, are they legal norms or business norms?
Maryland Conservatarian - June 3, 2009 at 12:54 am
British Schol (is that meant to be ironic?) writes: “That’s basically the attitude of Maryland Conservatarian up above who says an entire statute should be thrown out because it might benefit brown people.”
I said what?
British Schol - June 3, 2009 at 2:34 pm
Maryland Conservatarian condemned Justice Ginsburg for past decisions in which she was so politically incorrect as to use a “this 200 year old piece of legislation … to encompass any lawsuit brought by anyone who isn’t a straight,white male”. Clear of what you said now?
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