SUPREME COURT

Shell case highlights confluence of human rights and environment

When Nigerians protested against the environmental devastation in the oil-rich Ogoni region in the early 1990s, the government response was brutal.

The subsequent crackdown led to allegations of widespread human rights abuses that still reverberate today.

Fast-forward 18 years and 12 Nigerians who say they were affected by the government actions are gearing up for a Supreme Court case, to be argued next week. The defendant is not the Nigerian government, but Royal Dutch Shell PLC.

The court is set to decide whether the plaintiffs can sue Shell for its alleged role in "aiding and abetting" the Nigerian government.

Since 1958, a local arm of the Anglo-Dutch oil giant has operated in the region and, the Ogoni people say, assisted the Nigerian government in its violent crackdowns on the Ogoni protesters in 1993 and 1994.

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The case, Kiobel v. Royal Dutch Petroleum, is one of the most closely watched of the new Supreme Court term and will be the first to be argued Monday (Greenwire, Sept. 24).

But what tends to be forgotten amid the legal jousting over the technical question before the court -- whether the 1789 Alien Tort Statute can be applied to companies over actions that took place overseas -- is the impetus behind the protests in the first place.

That the underlying environmental damage is not at issue in the case highlights the lack of worldwide consensus on whether solely environmental claims can be viewed as violations of the "law of nations" that are actionable in court.

The phrase "law of nations" features in the Alien Tort Statute and is the reason why human rights plaintiffs have been able to sue individuals and corporations for alleged abuses for the past 32 years.

'I'm the guy'

The Supreme Court's interest in the subject comes at a time when there is evidence of a global move toward recognizing environmental claims as a category of human rights violations.

Just this summer, the U.N. Human Rights Council, based in Geneva, ordered a three-year study on "human rights obligations related to the enjoyment of a safe, clean and healthy and sustainable environment" that will prompt further debate.

"They decided to appoint an expert on human rights and the environment," said John Knox, a professor at Wake Forest University School of Law. "I'm the guy."

After Knox, a former State Department attorney, completes his task, "hopefully, there would be a clearer understanding of what human rights obligations states have to environmental protection," he said.

Although any conclusions reached by Knox would not have an instant impact in courts of law, there would be a "trickle-down effect" if they are endorsed by the United Nations, he added. That's because plaintiffs would be able to cite the language when they file lawsuits.

International law expert Anthony Colangelo, a law professor at Southern Methodist University's Dedman School of Law, thinks Knox's appointment is a sign that change could be on the way.

But as with all discussion of international law, one of the "sticky problems" is how to enforce it in courts around the world, he added.

"To the extent international environmental law can be tied to human rights and made enforceable in this respect, it would be a major and interesting development," Colangelo said.

Environmental advocates have long understood that human rights law can be their friend at the global level.

Earthjustice, a public interest law firm that represents environmental groups, has been using human rights law as a way to pursue environmental goals since the 1990s, when attorney Buck Parker -- who later served as executive director -- realized that indigenous peoples affected by development could not make environmental claims but could make human rights claims.

The first case arose when oil company Conoco Inc. -- now ConocoPhillips Co. -- planned to drill in a national park in Ecuador. It later sold its concession.

More recently, Earthjustice has represented Inuit people seeking action on climate change in a case before the Inter-American Commission on Human Rights.

Abby Rubinson, an attorney in Earthjustice's international office, is a living symbol of the nexus between human rights law and environmental law. Before joining the organization in 2010, she worked on Alien Tort Statute and other human rights cases. One was Bowoto v. Chevron, which arose from another protest in Nigeria that ended in violence. Chevron Corp. the defendant, eventually prevailed (Greenwire, April 23).

Rubinson sees her current position working on environmental issues as a natural progression.

"When Earthjustice started we were building environmental laws here," she said. "In a lot of other countries, those protections don't exist."

Out in the cold

In the human rights context, plaintiffs' lawyers -- often American -- always tend to look at U.S. courts. The Alien Tort Statute has been a major reason for that. Its broad scope is what allowed Nigerian nationals to sue an Anglo-Dutch company over alleged conduct half a world away.

The U.S. government enacted the law in 1789 when issues of concern included piracy on the high seas and the safety of foreign diplomats.

It was the 2nd U.S. Circuit Court of Appeals that broadened the scope of the statute in a landmark 1980 ruling, Filartiga v. Pena-Irala, in which it held that the family of a man tortured and killed in Paraguay could sue the alleged perpetrator in U.S. courts.

Although that opened the door to many human rights claims -- including allegations against companies like Shell and Exxon Mobil Corp. -- environmental allegations have remained out in the cold.

The Supreme Court never reviewed the 2nd Circuit decision. But in a 2004 case, Sosa v. Alvarez-Machain, the court, in an opinion written by Justice David Souter, did not rule out the idea of the Alien Tort Statute allowing courts "to hear claims in a very limited category defined by the law of nations and recognized at common law."

More recently, the court took a first stab at the Kiobel case last term -- on the issue of whether corporations can be liable -- but instead of deciding it on that question, it asked for further briefing on the international scope of the statute.

What no one disputes is that a large proportion of the Alien Tort Statute cases brought against companies involve underlying environmental issues.

Many "involve massive extractions that are doing massive environmental damage," Knox said. In most of the cases, "there is fertile ground for making human rights arguments," he added.

As Paul Hoffman, the attorney arguing the Kiobel case, acknowledged in an interview, "Pure environmental claims have not fared well" under the Alien Tort Statute.

But he noted that the alleged violations in his case "were visited on the plaintiffs because they challenged the environmental degradation Shell and the Nigerian government had imposed on the Ogoni people."

Not surprisingly, corporations are keen to limit the scope of the statute.

Kristin Myles, an attorney in the San Francisco office of the Munger, Tolles & Olson law firm, has defended companies facing human rights allegations. She thinks the Supreme Court should return the state of the law to where it was before the 1980 2nd Circuit ruling.

"It isn't the best way of handling these types of disputes," she said of the statute.

Partly in light of global developments, some lawyers representing potential defendants have downplayed the importance of the Supreme Court case.

Most experts expect the court to limit the application of the statute in the international context, which could limit future use of the statute to pursue environmental claims, but that doesn't mean plaintiffs would have no other recourse.

Speaking at a symposium on the Alien Tort Statute earlier this year, Jonathan Drimmer, an in-house lawyer at Barrick Gold Corp., pointed out that corporate conduct has become a "proxy for larger concerns about globalization," with a focus on the extractive industries.

In the global context, he doesn't think a Supreme Court ruling narrowing the scope of the statute will bring an end to attempts by corporate watchdogs and others to hold corporations accountable for environmental damage.

"Ultimately, I'm not sure Kiobel is going to make that much of a difference," he said.

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