Oil, uranium motivated Trump to slash Bears Ears; litigation, land use questions now sit on Biden's desk

President Biden is likely to undo the Trump Administration's dramatic reduction of protected land in southern Utah, including the Bears Ears National Monument.  If he does, the restoration will end litigation over the permissibility of rescission under the Antiquities Act and extinguish ambitions of the natural resource extraction industry.  [Update, Oct. 7.]

Traveling in Utah in recent weeks (drought, torts), I spent time crossing the south of the state from the Navajo Nation in the east to the Dixie National Forest in the west.  In the Escalante region in between, a whopping 1.88 million acres of south-central Utah is set aside as protected land under the Antiquities Act of 1906, an enactment of the Teddy Roosevelt Administration and genesis of the American park system, as the Grand Staircase-Escalante National Monument (GSENM).

A famous feature of GSENM is Grosvenor Arch, named for Gilbert H. Grosvenor,
the first full-time editor of National Geographic.

GSENM (U.S. BLM)

Immediately east of GSENM, the narrow Glen Canyon National Recreation Area tracks the Colorado River from Canyonlands National Park to Lake Powell.  And just east of there, couched within an L of the north-south Glen Canyon and the east-west Navajo Nation is the 1.35 million acres that President Obama designated, or proclaimed, in December 2016, as Bears Ears National Monument.

You might have heard of Bears Ears, because it was at the heart of the controversy ignited when President Trump attempted to substantially rescind the Obama proclamation and vastly reduce the size of public lands in southern Utah.  By proclamation in December 2017, President Trump shrank the Bears Ears designation from 1.35 million acres to just under 230,000 acres, and he cut GSENM almost in half, from 1.88 million acres to just about one million acres (L.A. Times graphics).

Bears Ears NM (U.S. BLM) (red border)

The power of a President to undo a designation under the Antiquities Act is an open legal question.  In the 1970s, Congress undid a perceived overreach by the Carter Administration in protecting land in Alaska.  But the executive power to roll back designations is untested, and Trump's rollbacks were, like so many things about the Trump Administration, unprecedented.  Lawsuits followed from environmentalists and Native American tribes.

"Bears Ears" refers specifically to two buttes, and they are a universally and immediately recognizable landmark in southern Utah.  On a clear day, they can be seen from both Monument Valley Tribal Park in Arizona and Mesa Verde National Park in Colorado.  Driving the Trail of the Ancients from the Valley of the Gods, up the Moki Dugway from Mexican Hat, Utah, I recognized the Bears Ears right away when they popped up over the scrubby horizon.  They truly do give the unmistakable impression of first sighting a bear in the wilderness, ears poking up over shrubbery.

My first sighting of Bears Ears buttes

Bears Ears buttes in a National Park Service photograph

Bears Ears National Monument embraces the Trail of the Ancients and a vast range of sites that are archaeologically invaluable and culturally precious to multiple tribes, including the Navajo, Ute, Pueblo, Hopi, and Zuni.  Historic cliff dwellings, sacred burial grounds, petroglyphs, and pictographs abound in the region.  Headlong development plans and rampant looting of indigenous artifacts were key motivators of pleas for federal protection.  The buttes are at the center of it all geographically and symbolically, but it's the surrounding land that really matters.

Petroglyphs such as these at Capitol Reef National Park date between 300 and 1300.

So that was the frame in which I understood the controversy over Bears Ears before I went to Utah: a classic problem of conservationism versus economic development, collectivist versus objectivist land use, both sides with fair claims to the greater good.  The heuristic is a cost-benefit analysis, but different decision-makers variably assess intangibles such as environment, culture, and history.  And the whole calculation is awkwardly tinged with the shame of America's imperial legacy vis-à-vis indigenous peoples.

That framing is accurate—but incomplete.

There is an angle that I was missing, and it became apparent on the ground, literally.  My back-country drive was the tip-off.  The Moki Dugway is a spectacular unpaved mountain pass, not for the vertigo-inclined.  The pass was carved out by private enterprise specifically to transport uranium mined in Fry Canyon to a processing facility in Mexican Hat.  Bears Ears is not just about conventional land use.  It's about what lies beneath: coal, oil, natural gas, and uranium.  The Trump reductions to Bears Ears and GSENM were mapped specifically to kowtow to the extractive industries.

Moki Dugway

Panorama from the Moki Dugway, looking south toward Monument Valley

Valley of the Gods from the Moki Dugway

This is a FOIA story.  Extraction is rarely mentioned in news reports about Bears Ears.  But a media lawsuit under the Freedom of Information Act yielded some 5,000 pages of records from the Department of Interior that show, The New York Times headlined in 2018, that "oil was central."

Bears Ears proposed boundary revision,
attached to Hatch office email,
to "resolve all known mineral conflicts"

In March 2017, the office of Senator Orrin Hatch (R-Utah) transmitted to the Trump Interior Department maps of mineral deposits in the Bears Ears National Monument with email messages, such as, "Please see attached for a shapefile and pdf of a map depicting boundary change for the southeast portion of Bears Ears monument." As the Times reported, a map recommending monument reduction "was incorporated almost exactly into the much larger reductions President Trump announced in December, shrinking Bears Ears by 85 percent."

Publicly, Trump Interior Secretary Ryan Zinke downplayed the role of extraction in the decision-making, for example, once declaring, according to the Times, "We also have a pretty good idea of, certainly, the oil and gas potential—not much! .... So Bears Ears isn't really about oil and gas."

Meanwhile, the Times reported, "internal Interior Department emails and memos also show the central role that concerns over gaining access to coal reserves played in the decision by the Trump administration to shrink the size of the [GSENM] by about 47 percent ...."  According to the Times, "Mr. Zinke's staff developed a series of estimates on the value of coal that could potentially be mined from a section of Grand Staircase called the Kaiparowits plateau.  As a result of Mr. Trump's action, major parts of the area are no longer part of the national monument.

"'The Kaiparowits plateau, located within the monument, contains one of the largest coal deposits in the United States,' an Interior Department memo, issued in spring 2017, said.  About 11.36 billion tons are 'technologically recoverable,' it projected."

In contrast, the Times reported, 20,000 pages of Interior records accessed in the FOIA lawsuit "detail the yearslong effort during the Obama administration to create new monuments, including input from environmental groups, Indian tribes, state officials and members of Congress."

Another Hatch office email attachment:
USGS-mapped uranium deposits
in and around Bears Ears

Earlier, in January 2018, Times reporting based on public records obtained from the Utah Bureau of Land Management revealed the centrality of uranium extraction in public policy on Bears Ears.  As controversial uranium mining operations were set to resume near the Grand Canyon, the Times reported, and "even as Interior Secretary Ryan Zinke declared last month that 'there is no mine within Bears Ears,' there were more than 300 uranium mining claims inside the monument.

"The vast majority of those claims fall neatly outside the new boundaries of Bears Ears set by the administration. And ... about a third of the claims are linked to Energy Fuels, a Canadian uranium producer. Energy Fuels also owns the Grand Canyon mine, where groundwater has already flooded the main shaft.

"Energy Fuels, together with other mining groups, lobbied extensively for a reduction of Bears Ears, preparing maps that marked the areas it wanted removed from the monument and distributing them during a visit to the monument by Mr. Zinke in May."

Straight line of uranium "road scar" at Capitol Reef,
visible from upper left to lower right

Not just on the Moki Dugway, the legacy of uranium mining is evident on the landscape in southern Utah.  For example, in the stunning vista of Grand Overlook at Canyonlands National Park, some unusually straight lines in the earth stand out in contrast with the curving tracks along the hilly contours.  The straight lines, a ranger told me, are "road scars" from truck routes, transporting the yield of uranium mines before the national park was established in 1964. 

At Capitol Reef National Park, on the eastern edge of GSENM north of Glen Canyon, one can see the fence-wood-sealed holes of old uranium mines on hillsides and cliff faces, always tracking a pale yellow stratum in the rock.  According to a National Park Service signboard, "[t]he thin band of yellow-gray" is "a layer of ancient, river-deposited sandstone containing trace amounts of uranium....

"Exploration and milling of uranium was encouraged by the US Atomic Energy Commission in the 1950s during the Cold War.  Prospectors flocked to the Colorado Plateau.  Even protected National Park Service lands were opened to mining.  Despite strong opposition from park managers, companies were allowed to build roads, dig mines, and construct camps in previously undisturbed lands."

Fenced uranium mine openings in yellow stratum at Capitol Reef National Park

Part of NPS signboard at Capitol Reef National Park

I do not here want to ignore the public good that flows from natural resource extraction.  I drive a car and heat a home with fossil fuels.  The Hatch memos to the Interior Department said that state taxes and fees on natural resource extraction would be used to fund public schools, libraries, and infrastructure.  Extraction provides jobs and drives economic development, which betters social conditions.  And as the Capitol Reef signboard intimated, domestic uranium yield was, and still is, vital to the national defense and can be supportive, or in other hands disruptive, of global security.

I don't here subscribe mindlessly to collectivist dogma.  My complaint is against opacity and deception.  The electorate can calculate the public good only with a complete and accurate accounting of the variables.

Three federal lawsuits over the Bear Ears/GSENM reductions were consolidated in Hopi Tribe v. Trump, No. 1:17-cv-02590-TSC (D.D.C. filed Dec. 4, 2017) (Court Listener).  By executive order on Inauguration Day in January 2021, President Biden instructed the Interior Department to review the Trump proclamations on Bears Ears and GSENM, as well as a marine national monument off the New England seaboard.  In March, the court granted a stay in Hopi Tribe, waiting to see what the Biden Administration would do.

Earlier this month, the Interior Department delivered its report to the White House.  The report has not been made public, but media outlets, including the Times, reported that Interior Secretary Deb Haaland, member of the Laguna Pueblo and the nation's first Native American cabinet secretary, recommended restoration of the national monuments to their pre-Trump proportions.  In a joint status report filed with the Hopi Tribe court on June 3, the parties asked the court to extend the stay, pending the President's reaction to the report from Interior.

Your humble blogger at Cedar Break National Monument in the Dixie National Forest

 (All photos not otherwise attributed: by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

Big Oil deploys slick strategy to stay ahead of liability

Image by Ucheke CC BY-SA 4.0

On February 12, the UK Supreme Court allowed a claim of environmental catastrophe by 40,000 to 50,000 Nigerian farmers to proceed in English courts against defendant Royal Dutch Shell.  The ruling came just two weeks after farmers prevailed in a significant but more limited case against Shell's Nigerian subsidiary in a Dutch appellate court in The Hague, after 13 years of litigation, and eerily echoes the still unfolding saga of the Chevron-Ecuador battle over Lago Agrio in the Amazon.

I'm compelled to mention the UK case, though it has been covered exhaustively in the media (e.g., N.Y. Times), because I wrote just last week on the controversial scope of "alien tort" liability in U.S. courts.  The case against Royal Dutch Shell ("Shell"), for devastating oil pollution in the Rivers State of the Niger Delta, is a kind of alien tort case in UK and Dutch courts.  In the UK, no specific statutory authorization is required to sue Shell, which is incorporated in the UK and headquartered in The Hague.  Rather, jurisdiction may be invoked upon the plaintiffs' demonstration of a duty in common law tort owed by the defendant company.

UK Supreme Court
(photo by M. Zhu CC BY-NC-ND 2.0)

The UK ruling is preliminary only; the court held that the plaintiffs demonstrated a "real issue to be tried," the preliminary standard, over the role of Shell in the pollution. The nub of the problem for the plaintiffs is that operations in Nigeria were run by, and not exclusively owned by, a subsidiary corporation of Shell, the foreign-registered Shell Petroleum Development Company of Nigeria Ltd. (SPDC).

The corporate shell is designed specifically to insulate the parent company against liability for the conduct of the subsidiary.  To penetrate the shell and reach the parent, the plaintiffs must show that Shell, the parent company, directed the conduct of SPDC, the Nigerian subsidiary, or worked jointly with SPDC.  The court in The Hague allowed jurisdiction upon a comparable control theory in 2015, though ultimately entered a monetary judgment only against SPDC.

The preliminary ruling from the UK Supreme Court does not yet establish direction or joint control, but says that the plaintiffs have made a sufficient showing to serve their lawsuit on Shell.  Rather than digging into the facts, the Supreme Court faulted the courts below, both the majority that had rejected the plaintiffs' claim and the dissent, for looking too closely at the plaintiffs' evidence and effecting a sort of "mini-trial" on the question of Shell control before the case has even been pleaded properly.

Nchanga Copper Mine, Zambia, 2008
(photo by BlueSalo CC BY-SA 3.0)

Environmental damage and human toll in the developing world as a result of resource extraction by western corporations is, sadly, not a new problem, and the UK Supreme Court invoked its experience in a prior case.  In 2015, plaintiffs in Zambia won the right to sue UK-based Vedanta Resources upon allegations that copper smelting had poisoned the water supply with "rivers of acid," containing sulfuric acid and other dangerous toxins.  The cooper operation in Zambia was owned by a Vedanta subsidiary, Konkola Copper Mines.  After the Supreme Court allowed suit in England, Vedanta settled with more than 2,500 Zambian claimants.

Vedanta was decided in the spring of 2019, and only then, after the lower courts had rejected the claims against Shell, did the Supreme Court admonish judicial restraint on questions of fact in preliminary proceedings and set out an approach to analyze parent-company duty: "depend[ing] on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary."

Niger Delta, Nigeria
(ESA photo CC BY-SA 3.0)

In pleadings and on appeal, the plaintiffs asserted a dozen bases in fact to demonstrate Shell control of SPDC, including mandatory compliance standards for subsidiaries on health, security, safety, and environment; business principles; and best practices for assets, facilities, and infrastructure.  According to the plaintiffs, "[Shell's] executive remuneration scheme depended to a significant degree on the sustainable development performance of SPDC."  The plaintiffs alleged that Shell "for many years had detailed knowledge about widespread pollution in the Niger Delta caused by spillages and leakages of oil from infrastructure operated by SPDC, including knowledge of the frequency, location and size of oil spills, including its failure to protect its oil infrastructure against the risk of damage caused by the criminal acts of third parties."

According to the New York Times report on the case, Shell is retreating from investments in the Niger Delta and other sites near human habitation, preferring to drill offshore.  Meanwhile, disputes endure over responsibility to clean up the pollution left behind by extraction and over the efficacy of cleanup efforts.  In this way, the Nigeria case is strikingly similar to others in the world, notably, the long-running dispute between rain-forest communities in Ecuador and oil giant Chevron, successor to Texaco.

In the case against Chevron, an Ecuadorean court in 2011 ordered Chevron to pay $9.5bn to residents of Lago Agrio, a community in the Amazon, for catastrophic oil pollution there.  In 2014, a U.S. federal court ruled that the judgment was procured through fraud, and the plaintiffs' champion U.S. attorney, Steven Donziger, was disbarred in 2020.  The plaintiffs' efforts to collect on the award in courts with jurisdiction over Chevron assets in other countries, such as Canada and Argentina, have failed so far.  Donziger is appealing his disbarment while also facing contempt prosecution in New York.  Celebrity environmentalists continue to hail him as a hero, railroaded by Big Oil.  Meanwhile a district court in The Hague has demanded (subscription), pursuant to arbitration, that Ecuador nullify the judgment, and the matter continues to haunt Ecuador's destabilizing presidential elections.

For the third time, I'm having my comparative law class read Paul M. Barrett's Law of the Jungle, which chronicles the Chevron-Ecuador matter until the book's 2015 publication.  For my money, Barrett's is the most even-handed account out there.  (See also coverage by Michael I. Krauss for Forbes.)  And it's not flattering of Donziger.  But it's also not flattering of Texaco.

The complicated truth of what happened at Lago Agrio is a tragedy in multiple dimensions, generating plenty of blame to go around.  Donziger might have played fast and loose with the law in Ecuador, after being rebuffed in the United States, but he was navigating the outstretched hands of a sorely corrupt judiciary.  The devastation at Lago Agrio is real, and no one, oil firms or government, has ameliorated it.  At the same time, much, if not most, of the pollution can be traced directly to the national oil company of the Ecuadorean government, which at various relevant times bore exclusive or joint responsibility for Lago Agrio.  Even insofar as Texaco controlled the site, government regulators, also riddled with corruption, were utterly derelict in their duty to protect fundamental human rights and enforce industry norms.  To date, the people of Lago Agrio, maybe the only innocent actors in the whole story, have been left to struggle with the horrific health consequences and daily challenges of water and land contaminated by lethal toxins.

In Nigeria, Shell and SPDC also lay blame on the Nigerian government, a partner of SPDC in the extraction operation through the state-owned Nigerian National Petroleum Company.  I have no doubt that the government bears responsibility both for what it did as an owner and what it did not do as a regulator.  I wager that Shell and SPDC, like Texaco and Chevron, are guilty of conscienceless exploitation, but also behaved as rational corporate actors, splitting the difference between the costs of malfeasance and the benefits of non-regulation.  Like in Lago Agrio, the people of the Niger delta are left to endure the consequences of symbiotic opportunism, while the perpetrators point their fingers at each other.

Shell corporate building in The Hague
(photo by Mr. Documents Uploader CC BY-SA 4.0)

Maybe the concept of "alien tort" in the UK is turning the tide at last.  One might expect Shell to follow Vedanta's example and settle, for public relations reasons, if nothing else.  Reuters reported that Shell settled another Niger Delta pollution claim in British courts in 2015 for €70m.  Shell has consistently pledged to clean up Niger Delta pollution, even while disavowing responsibility.  But Shell did not settle the case in the Netherlands, where the company has been able to postpone liability for 13 years to date.  The AP reported that two of four farmer-plaintiffs died since the case there was filed in 2008.  An appeal to the Dutch Supreme Court may yet be filed, and Big Oil might be emboldened by Chevron's experience.

Rivers State, Nigeria
(image by Jaimz height-field CC BY-SA 3.0)

If Shell digs in its heels in the UK, the plaintiffs have an uphill battle ahead.  They will have to produce clearer evidence to persuade the trial court that Shell exercised control at the local level, and then to link Shell oversight to the pollution in proximate causation.  Shell, fairly, will seek to muddle the chain of causation with the intervening actions of venture partners, private and public, and the third-party actions of criminals who sabotaged and burglarized the oil pipeline.  The Dutch appellate court mitigated the plaintiff-farmers' win there by nullifying defense liability in part for the actions of saboteurs, even while recognizing with regard to one claim that SPDC made nefarious access to the pipeline too easy.

If ever there is a settlement or award for plaintiffs that turns ripe for enforcement, it will remain to be determined how effectively money can be converted into remediation in a legal regime whose wavering commitment to the rule of law has been complicit in damage to the Niger Delta environment for the six-decade duration of the nation's independence.  To the plaintiffs' favor, for now, in the UK, their case is informed by their experience in The Hague, where the trial court afforded plaintiffs latitude to probe Shell files for evidence of corporate control.

The case in the UK Supreme Court is Okpabi v. Royal Dutch Shell Plc, [2021] UKSC 3 (Feb. 12, 2021).  Lord Nicholas Hamblen delivered the opinion, with which Lord Hodge, Lady Black, and Lord Briggs agreed.

'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)

A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)

This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit. 

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).

Human life, human rights are the losers in unraveling Chevron-Ecuador litigation

Crude contaminates an open toxic pool in the the Ecuadorean Amazon
rainforest near Lago Agrio.  Photo by Caroline Bennett / Rainforest
Action Network, CC BY-NC 2.0.

[UPDATE, May 24, 2019: SDNY Judge Kaplan yesterday held Donziger in civil contempt.  Read more from Michael I. Krauss at Forbes.]
 
Court rulings are stacking up against the plaintiffs in the global Chevron-Ecuador litigation.  About a month ago, the Dutch Supreme Court, affirming arbitral orders, refused enforcement of the $9.5bn judgment that Ecuadorean courts entered against Chevron, successor to Texaco, for oil pollution at Lago Agrio, feeding into the Amazon River (e.g., AP).  Plaintiffs’ appeals have fared poorly since Canadian courts rejected enforcement earlier in April (e.g., Reuters), piling on adverse outcomes in the United States, Brazil, and Argentina.

Now an opinion headline in Oakland News Now—if atop a column authored by a self-professed “influencer” who decidedly favors Chevron—trumpets that plaintiffs’ attorney “Steven Donziger, … Once The Toast Of Hollywood, Is Now Simply Toast.”  Notwithstanding that dry, I mean wry, assessment, it is true that Donziger was ordered in March 2018 to reimburse Chevron for more than $800,000 in legal fees as part of equitable relief in a private RICO action in the Second Circuit, and subsequently he was pressed to defend his bar license.  He maintains that he and his allies are being victimized in a political-hit orchestrated by Big Oil.

If you’re new to the Chevron-Ecuador case, beware the rabbit hole.  It’s almost impossible to summarize how we’ve come to this point in the course of a quarter century.  The quickly dated 2015 book Law of the Jungle by Paul M. Barrett is still an excellent and objective port of entry (Amazon).  (My co-instructor/spouse and I plan to assign it in our comparative law class in the fall semester.)  You also can read about the case through the columns of George Mason Law Professor Michael I. Krauss at Forbes; he’s followed developments closely over the years.

In short, there was some awful pollution in remote oil fields in Ecuador, reckless extraction and vacant regulation in the 1970s and 1980s wreaking devastating, long-term, far-reaching, and literally downstream consequences to human life and the environment.  That part is hardly in dispute.  What has been less clear and is hotly contested is whom should be blamed.

Enter the polarizing personality of Donziger, Harvard Law ’91, who, it must be said, is a genius for having designed a new model of global environmental litigation.  He solicited wealthy and famous, like, Sting famous, investors to raise money for the high costs of litigating against transnational Big Oil behemoths in an effort to tame them with the rule of domestic law.  At what point Donziger’s litigation lost the moral high ground—somewhere between the get-go and never—is the subject of much speculation.  However, that corruption was rampant in Ecuadorean courts is beyond dispute, and the role of the lawyer when justice might require, say, cash prepayment of a new “court fee,” raises some thorny questions in ethics and cultural relativism.  What is for sure is that when you start talking about Big Oil as occupying the moral high ground, something already has gone terribly wrong.

One can only make an informed guess about where liability for Lago Agrio should land.  Texaco/Chevron probably bears a slice of moral, if not legal, responsibility, at least in a strict-liability, “Superfund” sense.  But through an unascertainable and poisonous mix of lax regulation, corruption, foolhardy assumption of responsibility, and their own recklessness practices, the state of Ecuador and its state-owned enterprises (SOEs) in oil extraction were vastly enriched and probably bear principal responsibility for the disaster, morally and legally.  Arguable then is how thoroughly moral responsibility should flow back to the industrialized world along the pipeline of oil demand; I won’t step into those inky depths.

Donziger and the Ecuador litigation is a capstone course for law school, so I’m not here to state a thorough explication.  I mention the case because it strikes me that it exemplifies two serious problems in contemporary tort law, intersecting on this unusual tangent.

The first problem is that both state actors and transnational corporations operate above domestic law and without accountability to private claimants in international law, and that portends a disastrous end to life on earth.  What ought not be forgotten about the Chevron-Ecuador legal fiasco is that underneath all of the legal finger-pointing, there remains an unmitigated environmental catastrophe.  And what’s worse, it’s ongoing.  Ecuadorean operations in the area still use reckless extraction processes such as unlined oil pits, and Big Oil is bidding to reclaim a piece of the action.  People are still being poisoned, and the Amazon is still being polluted.

Meanwhile, follow the oil downstream, and Hasan Minhaj will show you (embedded below) how Brazil is newly doubling down on rain forest destruction.  I’m talking about the good old-fashioned, small-animals-fleeing-for-their-lives-from-set-fires-and-bulldozers kind of destruction that was the stuff of my childhood nightmares in the dark age before we recycled.  Human civilization and our rule of law on earth have not yet figured a way to attack this problem on the international level, much less to protect the human rights of local citizens within an offending country.  Our own alien tort statute was recently defanged vis-à-vis transnational corporations—in a case about Big Oil, by the way—and it’s not clear that the law’s landmark 1980 application in Filártiga v. Peña-Irala, bringing a foreign state torturer to justice, would even be upheld in federal court today.

The second problem is that in places where we do observe the rule of law, namely, here in the United States, legal transaction costs have spiraled so high that our courts have become available only as playgrounds for the rich and powerful, whether to settle disputes among themselves, subsidized by us, or to quash the claims that we, the little people, might dare to file in our puny arrogance.  We know this problem on the mundane, ground level as “access to justice.”  I suggest that this is the same problem that Donziger—giving him the benefit of the doubt at the get-go, for the moment, assuming reasonably that his multitude of motives must at least have included compassion for victims of pollution among the world’s poorest people—was up against in trying to take on Big Oil.  Documents in the RICO case contain tidbits about Donziger’s financing, such as a rock star’s “two equity positions in the case, one for 0.076 percent and 0.025 percent.”  It turns my stomach to read about human rights litigation as an investment opportunity, perhaps ripe for an initial public offering.  (“Call now for your free report; first time callers can get a free tenth-ounce Silver Walking Liberty Coin!”)  If that’s how we’re setting legal norms around human rights and deterring threats to human life, then that says more about us than it does about Steven Donziger.

These are the days that I want to give up on the human experiment and hunker down in willful ignorance to marshal my resources and plan for a contented retirement.

Though I’m a little short on resources.  Can I still buy shares in that Roundup litigation?

Mass. high court supports AG in climate change investigation of Exxon Mobil

I'm not a civ pro cognoscente, but a ruling of the Massachusetts high court on long-arm jurisdiction today caught my attention because it relates to the effort to hold Big Oil accountable for climate change.  The case is Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).

Mass. A.G. Maura Healey
(Edahlpr CC BY-SA 4.0)

Since 2016, Massachusetts Attorney General Maura Healey has been investigating Exxon Mobil Corp. under the state consumer protection law--the same Mass. Gen. L. chapter 93A that powerfully enhances conventional civil actions in tort in the commonwealth.  The AG tracks the investigation blow by blow online.  The AG opened the investigation after the 2015 revelation that Exxon might have known about the risk of climate change as early as the 1970s, as reported by Scientific American.

As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change."  Exxon resisted the CID on personal jurisdiction grounds.  Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469).  A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018).  Exxon is incorporated in New Jersey and headquartered in Texas.

The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained.  Exxon denied "suit-related" activity in Massachusetts.  But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.

Exxon franchise in Durham, N.C.
(Ildar Sagdejev CC BY-SA 4.0)

"The Attorney General's investigation concerns climate change caused by manmade greenhouse gas emissions--a distinctly modern threat that grows more serious with time, and the effects of which are already being felt in Massachusetts."  More than 300 Exxon and Mobil franchises operate in Massachusetts.  Considering the corporation's close supervision of franchisees, the fuel stations "represent[] Exxon's 'purposeful and successful solicitation of business from residents of the Commonwealth.'"  The franchise agreements moreover require Exxon sign-off of advertising, so the court rejected Exxon's efforts to distance the corporation from consumer sales.

The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country.  The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830).  If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).

In re United States, 884 F.3d 830 (9th Cir. 2018)

884 F.3d 830

In re United States, 884 F.3d 830 (9th Cir. 2018)