Transcript Earth in Yellow Flower

Modern Miner’s Canary: Legal Options Available to
Indigenous Communities Facing the Impacts of Climate
Change
Elizabeth Ann Kronk
April 29, 2011
Presentation Overview
How indigenous communities differ from
other communities impacted by climate change
• Legal options available to indigenous
communities impacted by climate change
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Consultation and the use of contracts: International
and domestic application
Litigation
Environmental Justice
We are different
Sovereignty
•Unique Connection to the Land
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Legal
Cultural, Historical and Spiritual
Federal Trust Responsibility
• United Nations Declaration on the Rights of
Indigenous Peoples
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The Use of Consultation and
Contracts
Chinese Developments Related to
Climate Change
•PRC
signed the UNFCCC in June 1992.
• PRC’s Agenda 21 adopted a series of
policies and measurements to develop
renewable energy.
•Chinese government signed the Kyoto
Protocol in 1998 and ratified it in 2002.
Chinese Developments Related to
Climate Change
August 2007 -- A National Leading Group was formed
to Address Climate Change and Energy Conservation and
Premier Wen Jiabao was named director.
•August 27, 2009 -- The National People’s Congress
Committee released a decision calling on the PRC to
actively address climate change.
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Tibetan Village North of Pingwu: An
Overview
•Previously,
overwhelming majority of community’s income
from livestock
•Effects of Climate Change
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Increased temperature overall
Increased water temperature
Decreased precipitation/snowpack, leading to
decreased water availability
Map of Pingwu
Available at:
http://en.wikipedia.org/wiki/File:Location_of_Pingwu_within_Sichuan_(China).png
Tibetan Village: An Obstacle
Despite the numerous environmental laws in place and
actions taken at the national level to address climate
change, very little seems to be occurring at the local
level.
•This is likely because local governmental officials
supposedly fear enforcing environmental laws because it
may result in decreased financial growth.
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Tibetan Village: Legal Solution
Development of MOU between community members, government (owns the land)
and non-profit organization, Shan Shui, for conservation easements.
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Litigation is a difficult option in the PRC. It is unclear whether non-profit
organizations have standing to bring claims on behalf of their membership.
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There is no judicial independence. Therefore, the same fear affecting local
official’s enforcement of environmental laws may also result in judges’ fear to
enforce the same laws.
•Use the conservation easements for honey production.
•The non-profit provides the bees and training.
•Encourages community members to decrease their reliance on livestock, which has
dramatically increased the water quality.
•Honey production has been very profitable and the majority of the community
members begun to participate in honey production.
• Water quality has dramatically improved.
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Domestic Application: The Use of
Consultation in the United States
Northern Plains Resource Council’s Good Neighbor Policy
• Partnership among citizens in Stillwater and Sweet Grass
counties of Montana and the Stillwater Mining Company,
which operates two platinum/palladium mines in the area
• Since it was signed in 2000, the agreement has allowed
platinum and palladium mining to proceed while extending
protections beyond state requirements to protect land,
water, and area communities.
• The legally binding contract established a
process for citizens to regularly meet with
company representatives to address and
prevent problems related to mining
impacts, reclamation, wildlife, and other
issues.
• It set aside land in conservation
easements, instituted a program to reduce
traffic on winding valley roads, and
provided for independent environmental
audits.
Domestic Application: The Use of
Consultation in the United States
Continued
FERC Relicensing Process
•Hydro facilities must be relicensed every 50 years under
the Federal Power Act
•All stakeholders can participate in relicensing
•Opportunity to protect water and fisheries through the
relicensing process
Litigation
Native Village of Kivalina: An
Overview
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Native Village of Kivalina and City of Kivalina
(collectively Kivalina) are the governing bodies of an
Inupiat village of approximately 400 people
is located on the tip of a six-mile barrier reef located
between the Chukchi Sea and Kivalina and Wulik
Rivers on the Northwest coast of Alaska, some seventy
miles north of the Arctic Circle
Map of Kivalina
Available at:
http://www.mnn.com/sites/default/files/user-39/kivalina-map_0.jpg
Picture of Kivalina
Available at:
http://scienceblogs.com/intersection/alaskan_island_of_kivalina_1.jpg
Picture of Kivalina
Available at:
http://www.noenergytomorrow.org/alaskan_island_of_kivalina_2.jpg
The Defendants
“Defendants contribute to global
warming through their emissions
of large quantities of greenhouse
gases. Defendants in this action
include many of the largest
emitters of greenhouse gases in
the United States. All Defendants
directly emit large quantities of
greenhouse gases and have done
so for many years. “ Native
Village of Kivalina and City of
Kivalina, Complaint for Damages,
Demand for Jury Trial, 1 (Feb. 26,
2008).
ExxonMobil Corporation, BP PLC, BP
America, Inc., BP Products North
America, Chevron Corp., Chevron
U.S.A., Inc., ConocoPhillips Comp.,
Royal Dutch Shell PLC, Shell Oil
Comp., Peabody Energy Corp., AES
Corp., American Electric Power
Comp., Inc., American Power
Services Corp., DTE Energy Comp.,
Duke Energy Corp., Dynegy
Holdings, Inc., Edison International,
MidAmerican Energy Holdings
Company, Mirant Corp., NRG
Energy, Pinnacle West Capital Corp.,
Reliant Energy, Inc., The Southern
Comp., and XCEL Energy, Inc.
The Injury
*Defendants are significant contributors of greenhouse gases
*Greenhouse gases trap atmospheric heat, causing climate
change
*Climate change is destroying Kivalina through the melting of
Arctic sea ice that formerly protected the village from winter
storms
*The melting sea ice results in increased storm damage and
massive erosion
The Injury continued
“Houses and building are in imminent danger of
falling into the sea as the village is battered by
storms and its ground crumbles from underneath it
… Critical infrastructure is imminently threatened
with permanent destruction. If the entire village is
not relocated soon, the village will be destroyed.”
Native Village of Kivalina and City of Kivalina,
Complaint for Damages, Demand for Jury Trial, 2
(Feb. 26, 2008).
The Claim
Federal Common Law – Public Nuisance
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“Defendants’ emissions of carbon dioxide and other
greenhouse gases, by contributing to global warming,
constitute a substantial and unreasonable interference
with public rights, including, inter alia, the rights to
use and enjoy public and private property in Kivalina.”
Native Village of Kivalina and City of Kivalina,
Complaint for Damages, Demand for Jury Trial, 62
(Feb. 26, 2008).
The Claim
State
Civil
Law – Private and Public Nuisance
Conspiracy
Concert
of Action
Decision of the Northern District of California
Political Question Doctrine precludes consideration
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Application of second Baker factor: “Plaintiffs’ global warming nuisance claim seeks to
impose liability and damages on a scale unlike any prior environmental pollution case
cited by Plaintiffs. Those cases do not provide guidance that would enable the Court to
reach a resolution of this case in any ‘reasoned’ manner.” Order Granting Defendants’
Motions to Dismiss for Lack of Subject Matter Jurisdiction, Case No. C 08-1138 SBA, 13
(N.D. Cal. Sept. 30, 2009).
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Application of third Baker factor: “Plaintiffs ignore that the allocation of fault – and cost
– of global warming is a matter appropriately left for determination by the executive of
legislative branch in the first instance.” Id. at 15.
Plaintiffs lack Article III standing and are not entitled special solitude
District Court Erred
•Incorrect
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Application of Standing Precedent
Parens Patriae
Article III Standing
•Failure
to consider Environmental Justice
Standing: Parens Patriae
In Snapp v. Puerto Rico ex rel. Barez, the U.S.
Supreme Court articulated the test for parens
patriae standing, finding that a state: (1) “must
articulate an interest apart from the interests of
particular private parties, i.e., the States must
be more than a nominal party”, (2) “must
express a quasi-sovereign interest”, and (3)
must have “alleged injury to a sufficiently
substantial segment of its population.” 458 U.S. 592,
607 (1982).
Standing: Parens Patriae
•The
Snapp Court went on to identify two types
of quasi-sovereign interests: (1) protecting
“the health and well-being … of its residents,”
and (2) “securing observance of the terms
under which [the state] participates in the
federal system.” Id. at 607-608.
•Sovereign interest in loss of property.
•Federal government undertook obligation to
protect quasi-sovereigns when they
surrendered a portion of their sovereignty to
the federal government.
Environmental Justice
Environmental Justice
•Historical
connections to civil rights
movement
•Modern
environmental justice concerns are
those facing communities of color and poor
communities where the inequality faced by
these communities intensifies environmental
disadvantages.
•Development
of climate justice movement
Environmental Justice
Tribal communities are environmental justice
communities.
Environmental justice claims arising in Indian
country differ from environmental justice claims
arising elsewhere by virtue of the fact that they
arise in Indian country.
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Tribes pre-existed the formation of federal government
Sovereignty is inherent in tribal nations
Unique relationship between tribal nations and federal
government
Unique connection and status of land
Environmental Justice
•Consideration
of tribal governance is crucial to claims involving
environmental justice concerns of tribal communities
•Moreover, because of the special government-to-government
relationship that exists between American Indian tribes and the
federal government, “the federal government must be prepared
to defend vigorously the environmental self-determination that
tribes already have.” Sarah Krakoff, Tribal Sovereignty and
Environmental Justice in Justice and Natural Resources:
Concepts, Strategies, and Applications (Kathryn M. Mutz, Gary C.
Bryner, and Douglas S. Kenney eds.), 179 (Island Press, 2002).
•Loss of land is also critically important to tribes given the unique
relationship between tribes and land/the environment.
Reconsideration of Kivalina’s Claims
•Kivalina
possesses Article III standing
•Application of Environmental Justice
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In order for there to be effective access to justice for
environmental justice communities, environmental
justice must be considered
Failure to consider the environmental justice aspects
of Kivalina’s Parens Patriae standing argument
constitutes error
Miigwetch!
Elizabeth Ann Kronk
Assistant Professor, University of Montana
School of Law
(202) 253-0940
[email protected]