Indigenous communities know all too well of the potentially devastating risks that the construction of mega-projects can entail. Time and again, such projects have led to irreparable environmental damage that harmed if not destroyed the well-being, culture, economy and traditional ways of local communities.
The Raizal Peoples who inhabit the San Andrés, Providencia and Santa Catalina archipelago, Colombia could become one more indigenous community to be affected in this way. Should Nicaragua’s plans to build a canal go ahead, there is the risk that the massive project—that would rival the Panama Canal—would muddy and pollute nearby waters and potentially destroy the reef on which the Raizals depend.
With the risk of environmental damage and potentially devastating consequences for the Raizal Peoples in mind, Colombia applied to the Inter-American Court for information as to how it might interpret human rights law in this case. In response, the Court issued an advisory opinion in which it elaborated at length on the relationship between the environment and human rights law.
The Court noted, “Environmental damage can cause irreparable damage to human beings. As such, a healthy environment is a fundamental right for the existence of humanity.”
Its findings, though non-binding, sent out a strong message to both the regional and international arena that not only is there an inextricable link between a healthy environment and human rights but that this should be accounted for in the interpretation of human rights instruments.
In practice, this means that someone could in theory now bring a case before the Court on the grounds that environmental damage had led to a violation of their human rights. While significant legal obstacles have previously made it difficult for affected parties to seek meaningful redress in such cases, the verdict could not be more timely.
Proposed route of The Nicaraguan Canal (Spanish: Canal de Nicaragua), formally the Nicaraguan Canal and Development Project (also referred to as the Nicaragua Grand Canal, or the Grand Interoceanic Canal)
To date, claimants in the Americas affected by environmental damage have struggled to pursue legal action for the violation of their human rights for the following reasons:
Right to a healthy environment (San Salvador Protocol, article 11) not accepted as basis for a claim
Firstly, despite the fact that Article 11 of The San Salvador Protocol explicitly sets out the right to a healthy environment, this right is non-justiciable. That is to say, no-one could use a violation of this right as a basis for which to file a petition to the Inter-American Commission of Human Rights, and subsequently the Inter-American Court. Instead, the affected individual or group would have to bring a case under Article 26 of the American Convention on Human rights, the rights of which are justiciable.
The problem is that, while Article 26 protects economic, cultural and social rights, the only obligation it imposes on States is that they progressively achieve the full realization of these rights, making it an aspirational ideal for member States. For this reason, neither the Commission or the Court had previously ever found in favour of a claimant who had asserted their rights under this article. Furthermore, is has been unclear whether the right to a healthy environment would be deemed as being included in the scope of the rights protected under Article 26.
Problems of transboundary cases
In some cases, the cause of environmental damage occasioned in a particular place lies outside of a country’s border. This is problematic because human rights instruments are traditionally understood to only hold states responsible for damage occasioned in that same state, not for damage outside of their borders. This rather nebulous realm of extraterritorial obligations is, as one legal expert noted, “the conundrum…that bedevils human rights law”. If we can find some clarity in this rather nebulous world of international law it is that no-one hoping to a pursue legal action through the regional courts in the case of a transboundary claim could be confident their claim would be admitted.
Problems of bringing claims on the basis of violation of right to life
In theory, another means through which a potential affected party could file their complaint with the Inter-American Commission would be through arguing that their right to life had been violated as a result of environmental degradation. However, case law from the Inter-American Court shows that should a complainant want to argue their case on this basis, they would have to prove that the state had taken action which could be deemed to have an “immediate” and “certain” consequence on their exercise of their right to life–and that action wasn’t taken to “reasonably” prevent the risk of this happening.
There are cases which fall into this category such as Sarayaku vs. Ecuador, where explosives were laid on the Sarayaku territory or, for example, in Yanomami vs. Brasil where a highway was built though Yanomami land which resulted in several deaths. This said, clearly trying to prove the immediacy and certainty of a risk to life and integrity limits the number of cases significantly. By means of example, in 2005 when the Inuit argued that their traditional means of subsistence had been destroyed by climate change, the Inter-American Court did not find in their favour. Though the Court was not explicit with regards to its reasons for not accepting this argument, it can be supposed that it was indeed difficult to prove that climate change would have resulted in an “immediate” and “certain” negative impact on the subsistence of the Inuit Peoples and consequently their right to life.
The advisory opinion issued on Feb. 7 addresses these problems in the following way:
The right to a healthy environment
Firstly, the court reaffirmed the landmark decision made in the recent Lagos del Campo vs. Peru case, in which they found for the first time in favour of a claimant who had raised a petition on the basis of his Article 26 rights being violated. Secondly, the Court recognized that the right to a healthy environment as set out in the San Salvador Protocol was an autonomous right and crucially, should be deemed as being included in the rights set out in Article 26. What this means then is that the door is laid open to future claims for loss of a healthy environment brought under Article 26 of the American Convention, something that was not previously possible.
Transboundary claims will be actionable in the case of environmental damage
The Court found that countries will be held accountable for the violation of rights when the activities causing those violations are in their “effective control” i.e. they are responsible for them. This marks a significant widening of the traditional scope of a state’s responsibilities.
On this basis then, if, for example a state did complete a mega-project, the effects of which were felt outside of their borders, a case could be brought against them. In Colombia’s case, the Court seems to indeed be suggesting that should Nicaragua’s canal result in environmental damage in Colombia, affected parties would indeed have a case.
Some experts have noted that this could have important repercussions for air pollution, chemical pollution and even climate change.
Risk to life must still be “immediate” and “certain” but in the case of the possibility of significant environmental damage, a state has an obligation to prevent it taking place.
As expected, the Court’s opinion signaled no change with regards to the need for claimants to prove that actions undertaken would “immediately” and “certainly” result in the violation of their right to life. As such, it will remain difficult to bring forward claims on this basis. However, the Court did importantly recognize the very real potential that environmental damage has to cause violations of the right to life or right to integrity. With this in mind, it made several stipulations:
Firstly, the Court stated that States must prevent “significant environmental damage” (understood as damage that will violate right to life or integrity) both in or outside their borders. Secondly, it stipulated that they must do so even if there is no scientific certainty of such environmental damage: it is sufficient that significant environmental damage was possible.
The Court also offered clarity about what was understood by the meaning of the word ‘prevention’. It found that a State must conduct thorough and independent environmental impact studies as well as providing mitigation and contingency plans in the case of damage; regulate, supervise and monitor activities that could cause harm; cooperate with other States, providing them with information regards risks to the environment and ensure that potentially affected parties have access regarding potential harms
There is no doubt that the Inter-American Court’s findings offer reasons for optimism for both environmental and indigenous rights activists alike. Though non-binding, the advisory opinion provides a sign post for Courts of member States as well as lending much-needed legal weight to arguments made by potential claimants. Indeed, the advocacy group Dejusticia—which is currently pursuing legal action against the Colombian State for failing to curb deforestation in the Amazon—has said that it will use the findings to bolster its arguments. Of course, the advisory opinion will likely carry weight further afield too. The fact that a major human rights body such as the Inter-American Court has taken active steps to better protect citizens from the very real effects of environmental damage will surely put pressure on other major bodies to do the same.
WASHINGTON— Conservation groups filed a lawsuit against the Trump administration today for failing to respond to their emergency request to ban certain seafood imports from Mexico’s Gulf of California in order to save the critically endangered vaquita porpoise from extinction.
Fewer than 30 vaquita now remain on the planet after the population suffered a 95 percent decline over the past 20 years. Entanglement in fishing gillnets is the sole threat to the species’ survival. Scientists predict that the vaquita will be extinct by 2019 if fishing practices remain unchanged.
In May the groups filed a formal legal petition requesting that the U.S. government ban the import of seafood from Mexico that was caught in the vaquita’s habitat using deadly gillnets. Today’s lawsuit seeks an immediate response to that emergency petition. A U.S. ban on lucrative Mexican seafood imports will pressure Mexico to fully ban gillnets and strengthen much-needed enforcement.
“We’ve asked politely that the U.S. government take action to save the vaquita by banning Mexican seafood imports,” said Sarah Uhlemann, international program director at the Center for Biological Diversity. “But the clock is running out for the vaquita and it’s time to demand action. The Trump administration must use the strongest possible pressure quickly to force Mexico’s hand in protecting the vaquita before it’s too late.”
Mexico has failed to permanently ban all gillnets in the vaquita’s habitat, despite repeated recommendations by scientists and evidence that the use of gillnets by any fishery — in or adjacent to the vaquita’s range — will undeniably lead to the species’ extinction.
“We can’t leave any tool unused that will help get the vaquita’s killer — gillnets — out of their habitat,” said Zak Smith, senior attorney with the Natural Resources Defense Council’s Marine Mammal Protection Project. “The fishing industry is driving the vaquita’s extinction — and pressure on that group to fix their practices may be the most important way to save these porpoises. The United States must immediately ban the import of any seafood from Mexico that is contributing to the vaquita’s extinction.”
The U.S. Marine Mammal Protection Act requires the U.S. government to ban seafood imports from fisheries that kill marine mammals, including the vaquita, in excess of U.S. standards for marine mammal bycatch (the accidental entanglement and deaths of marine mammals in fishing gear). If American standards were applied to Mexican fishermen operating in and near the vaquita’s habitat, fishermen would be prohibited from contributing to the bycatch of any vaquita because it is gravely endangered and losing its population at a rate of nearly 40 percent each year.
“Mexico has known for decades what must be done to save the vaquita, yet has not found the political will to stop the species from plummeting toward extinction,” said Kate O’Connell, marine wildlife consultant with the Animal Welfare Institute. “If the U.S. government does not step up and use its laws to compel the Mexican government to save the species by banning certain seafood imports, it too will be complicit in the loss of the vaquita.”
In 2016, following a legal petition by conservation groups, the Service adopted new rules to enforce the Marine Mammal Protection Act’s import provision. Those rules will be fully applicable worldwide by 2022. Today’s lawsuit seeks emergency application of the rules to save the vaquita.
Featured image: Supporters of the Bears Ears and Grand Staircase-Escalante national monuments during a rally Saturday, Dec. 2, 2017 in Salt Lake City. AP Photo/Rick Bowmer
On Dec. 4, President Trump traveled to Utah to sign proclamations downsizing Bears Ears National Monument by 85 percent and Grand Staircase-Escalante National Monument by nearly 50 percent. “[S]ome people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” Trump said. “And guess what? They’re wrong.”
Native American tribes and environmental organizations have already filed lawsuits challenging Trump’s action. In our analysis as environmental and natural resources law scholars, the president’s action is illegal and will likely be overturned in court.
Contests over land use
Since 1906 the Antiquities Act has given presidents the authority to set aside federal lands in order to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”
History of the Antiquities Act.
When a president creates a national monument, the area is “reserved” for the protection of sites and objects there, and may also be “withdrawn,” or exempted, from laws that would allow for mining, logging or oil and gas development. Frequently, monument designations grandfather in existing uses of the land, but prohibit new activities such as mineral leases or mining claims.
Because monument designations reorient land use away from resource extraction and toward conservation, some monuments have faced opposition from local officials and members of Congress. In the past two decades, Utah has been a flashpoint for this debate.
In 1996 President Clinton designated the Grand Staircase-Escalante National Monument, a region of incredible slot canyons and remote plateaus. Twenty years later, President Obama designated Bears Ears National Monument, an area of scenic rock formations and sites sacred to Native American tribes.
Utah’s governor and congressional delegation have long argued that these monuments are larger than necessary and that presidents should defer to the state about whether to use the Antiquities Act.
Zinke’s review
In April President Trump ordered a review of national monuments designated in the past two decades. Trump directed Interior Secretary Ryan Zinke to recommend steps to eliminate or shrink these monuments or realign their management with Trump administration priorities.
Secretary Zinke’s review was an arbitrary and opaque process. During a rushed four-month period, Zinke visited only eight of the 27 monuments under review. At the end of the review, the Interior Department released to the public only a two-page summary of Zinke’s report.
Interior Secretary Ryan Zinke visiting Bears Ears National Monument, May 9, 2017. DOI, CC BY-SA
In September the Washington Post published a leaked copy of Zinke’s detailed recommendations. They included downsizing, changing management plans or loosening restrictions at a total of 10 monuments, including three ocean monuments.
Trump’s proclamations
Trump’s proclamations on Bears Ears and Grand Staircase-Escalante note the long list of objects that the monuments were created to protect, but claim that many of these objects are “not unique,” “not of significant scientific or historic interest,” or “not under threat of damage or destruction.”
As a result, Trump’s orders split each monument into smaller units, excluding large tracts that are deemed “unnecessary.” Areas cut from the monuments, including coal-rich portions of the Kaiparowits Plateau, will be reopened to mineral leasing, mining and other uses.
The key question at issue is whether the Antiquities Act empowers presidents to alter or revoke decisions by past administrations. The Property Clause of the Constitution gives Congress the power to decide what happens on “territory or other property belonging to the United States.” When Congress passed the Antiquities Act, it delegated a portion of that authority to the president so that administrations could act quickly to protect resources or sites that are threatened.
Critics of recent national monuments argue that if a president can create a national monument, the next one can undo it. However, the Antiquities Act speaks only of designating monuments. It says nothing about abolishing or shrinking them.
Two other early land management statutes – the Pickett Act of 1910 and the Forest Service Organic Act of 1897 – authorized the president to withdraw other types of land, and specifically stated that the president could modify or revoke those actions. In contrast, the Antiquities Act is silent on reversing past decisions.
Ruins at Chaco Culture National Historic Park, New Mexico, originally protected under the Antiquities Act by President Theodore Roosevelt in 1907 to prevent looting of archaeological sites. Steven C. Price/Wikipedia, CC BY-SA
In 1938, when President Franklin D. Roosevelt considered abolishing the Castle-Pinckney National Monument – a deteriorating fort in Charleston, South Carolina – Attorney General Homer Cummings advised that the president did not have the power to take this step. (Congress abolished the monument in 1951.)
Congress enacted a major overhaul of public lands law in 1976, the Federal Land Policy and Management Act, repealing many earlier laws. However, it did not repeal the Antiquities Act. The House Committee that drafted the 1976 law also made clear in legislative reports that it intended to prohibit the president from modifying or abolishing a national monument, stating that the law would “specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”
Since that time, no president until Trump has attempted to revoke or downsize any national monument. Trump’s changes to Bears Ears and Grand Staircase-Escalante depend on an argument that presidential declarations about what a national monument protects are subject to second-guessing by subsequent presidents. These claims run counter to every court decision that has examined the Antiquities Act.
Courts have always been deferential to presidents’ use of the law, and no court has ever struck down a monument based on its size or the types of objects it is designed to protect. Congress, rather than the President, has the authority to alter monuments, should it decide that changes are appropriate.
The value of preservation
This summer 118 other law professors, as well as California Attorney General Xavier Becerra and a number of conservation organizations, cited our analysis in letters to Secretary Zinke concluding that the president does not have authority to downsize or revoke national monuments.
Although many national monuments faced vociferous local opposition when they were declared, including Jackson Hole National Monument (now part of Grand Teton National Park), over time, Americans have come to appreciate them.
Indeed, Congress has converted many into national parks, including Acadia, the Grand Canyon, Arches and Joshua Tree. These four parks alone attracted over 13 million visitors in 2016. The aesthetic, cultural, scientific, spiritual and economic value of preserving them has long exceeded whatever short-term benefit could have been derived without legal protection.
Bears Ears and Grand Staircase-Escalante are home to many natural and archaeological wonders, including scenic bluffs, petroglyphs, burial grounds and other sacred sites and a rich diversity of plant and animal life. The five Native American tribes that supported protecting Bears Ears, led by the Navajo Nation, have vowed to defend the monuments in court. President Trump’s effort to scale back these monuments oversteps his authority and is unlikely to stand.
Editor’s note: This is an updated version of an article originally published on April 27, 2017.
Editor’s note: The first Rights of Nature lawsuit in the United States, Colorado River v. Colorado, was filed September 25, 2017, in Denver, Colorado. The full text of the complaint can be found here.
Denver, CO – The Colorado Attorney General has threatened the attorney who filed the first federal rights of nature lawsuit with sanctions if he does not voluntarily withdraw the Complaint.
Rights of Nature activists will gather at dusk (4:30 pm) on Friday, December 1st, outside the Alfred A. Arraj Federal Courthouse, 901 19th St, Denver, CO 80294 in a display of creative resistance. They will demand that the Colorado River have her day in court, condemn the Attorney General’s intimidatory tactics, and call for the American legal system to grant the Colorado River Ecosystem the same rights as corporations.
Attorney Jason Flores-Williams, in a letter he sent to the Colorado Attorney General’s office Tuesday morning, November 27th, stated, “The Attorney General’s threat of sanctions is a legally baseless attempt to harass and intimidate a civil rights attorney in good standing who has dedicated his career to protecting the powerless from the powerful.” A copy of the letter is published here.
“They didn’t threaten to sanction Exxon attorneys for lying about global warming, or Bank of America attorneys for fraudulently foreclosing on people’s homes, or Nestle attorneys for privatizing our water and selling it back to us—but try to equal the playing field between corporations and the environment and they try to personally damage you,” Flores-Williams has also pointed out. “It’s the playbook.”
Will Falk, a writer, attorney, and one of the next friends in the lawsuit, denounced the Attorney General’s threats, saying, “The Attorney General is duty-bound to work solely for the good of the people, but through these threats the Attorney General is working solely for the good of corporations.”
IN AN ATTEMPT TO INTIMIDATE US AND SILENCE THE RIGHTS OF NATURE MOVEMENT, THE COLORADO ATTORNEY GENERAL HAS THREATENED SANCTIONS AGAINST OUT LAWSUIT, COLORADO RIVER V. COLORADO.
Editor’s note: The first Rights of Nature lawsuit in the United States, Colorado River v. Colorado, was filed September 25, 2017, in Denver, Colorado. The full text of the complaint can be found here.
Denver, CO—The Colorado Attorney General has issued an ultimatum to the attorney who filed the first federal rights of nature law suit: voluntarily withdraw the Complaint or face sanctions.
“They didn’t threaten to sanction Exxon attorneys for lying about global warming, or Bank of America attorneys for fraudulently foreclosing on people’s homes, or Nestle attorneys for privatizing our water and selling it back to us—but try to equal the playing field between corporations and the environment and they try to personally damage you,” says Jason Flores-Williams. “It’s the playbook.”
Will Falk, a writer, attorney, and one of the next friends in the lawsuit, denounced the Attorney General’s threats, saying, “The Attorney General is duty-bound to work solely for the good of the people, but through these threats the Attorney General is working solely for the good of corporations.”
The response to the Attorney General stating the reasons for why the suit will not be withdrawn can be found here.
Editor’s note: This is an updated version of an