Category Archives: South American Environment

Chevron-Ecuador Guest Post on Terra Nullius

Posted on March 30, 2012 | Leave a comment

For those who are interested, my thoughts on the case are now up on Terra Nullius.  Here’s a preview:

An inconvenient forum: Thoughts on the Chevron-Ecuador Case

by Nicholas A. Fromherz

As a student of environmental law, resident of the Andes, and former clerk for two federal judges, I have followed the Chevron-Ecuador case with increasing interest—and, of late, increasing concern.  No matter which side we believe, it is clear that the people and ecology of Ecuador’s Lago Agrio region have been affected by the operations of Chevron (or, perhaps more accurately, those of predecessor Texaco and the state-owned Ecuadorian firm Petroecuador).

But that will always be the case with extractive industry—more important factors for purposes of litigation are to what extent and what, if anything, was done in the way of prevention and/or mitigation. This post will not attempt to answer those questions.  More informed individuals and groups have offered a range of answers as to these very points (see here and here), and my own speculation on the matter would only add to what has become a morass of conflicting information.

Instead of analyzing the merits of the case, I would like to discuss two issues that have received less than complete coverage: (1) the unintended and unlikely consequences of Chevron’s effort to remove the case from U.S. federal court on grounds of forum non conveniens; and (2) the institutional and socio-political factors that must be considered when analyzing Chevron’s claims of judicial corruption by the Ecuadorian courts.

Read the rest here.  And thanks again to TN’s Rhodri Williams for sharing his great site.

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Posted in Ecuador, South American Environment

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Upcoming Guest Post on Terra Nullius: Thoughts on the Chevron-Ecuador Case

Posted on March 29, 2012 | Leave a comment

Chevron-Ecuador.  It’s one of those cases that’s just plain messy.  No matter which side has your sympathies, you can hardly talk about it without feeling a bit queasy.  Whether your conscience is disturbed by the toxic waste in the Amazon or by the allegations of collusion between plaintiffs’ counsel and the Ecuadorian judiciary, the conclusion is largely the same:  Justice isn’t supposed to look like this.

Given all the ink and vitriol this case has garnered, I was hesitant to write much on it.  Having identified what I hope is a relatively fresh angle, however, I’ve decided to give it a go.  Look for the post on Terra Nullius:  The Land, Housing, and Property Weblog.  Thanks to Rhodri Williams, TN’s host, for offering up the space.

-NF

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Posted in Ecuador, South American Environment, U.S. South American Policy

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Chevron’s Refusal to Apologize to Affected Communities in Ecuador

Posted on February 24, 2012 | 5 Comments

Here’s the hypothetical:  Mr. Jones owns a nice ranch in central Texas.  It’s big, the soil is fertile, and the animals couldn’t be happier.  Jones is down on his luck, though, so he decides to lease out half the ranch to an oil company.  Tests a couple of decades ago showed significant potential, and the oil company is eager to get to work.  The parties sign an agreement, and the next few years pass with contentment all around.  Jones is happy because he has a stable stream of income, and the oil company is turning a nice profit on its investment.

Then it happens.  One of the pumping rigs breaks, backs up, and slowly begins to flood the surrounding area with crude oil.  When the company realizes what has happened, it fails to take any meaningful action.  It’s only one pump out of many, and the contamination is hidden under a layer of top-soil and sagebrush.  After a year goes by, animals start dying.  Another year sees Jones fall ill, with the medical exams pointing to contaminated water.

Jones sues and wins big.  The jury awards compensatory damages of $2 million.  Instead of awarding punitive damages outright, the jury conditionally awards an additional $2 million to be paid by the oil company unless the company publicly apologizes to Jones for its willful behavior.

The company has now approached you, a local attorney, for advice on the wisdom of an appeal.  The CEO wants you to attack the demand that the company publicly apologize for its actions on pain of double damages.  The company also wants to fight the merits, maintaining that it is innocent of any wrongdoing.

Does the very nature of the issues on appeal prove the company’s case?  How can the company be penalized for maintaining its innocence?  Doesn’t the verdict tend to coerce the company to make a statement against its interests?  Does it tend to undermine the right to appeal?

*****

The story I just told is not the Chevron-Ecuador case.  The last bit, however, pretty much reflects the situation in which Chevron now finds itself.

In January, Chevron was ordered to pay $9.5 billion in remediation costs and damages and an additional $8.6 billion if it refused to apologize to the affected communities.  Chevron has refused to apologize, nearly doubling the tab as it seeks to overturn the ruling on appeal.   Earlier this month, a Chevron spokesman said an apology would be “a false admission of responsibility.”

What to make of this?  On the one hand, I hear Chevron’s argument loud and clear.  The apology facet of the award certainly seems to be a major departure from the norm.  At the least, it may interfere with the right to appeal and maintain one’s position.

On the other hand, is it really that crazy to demand an apology?  If a mother catches her son hitting another child, she may very well insist on an apology.  If the child apologizes — “accepts responsibility” — maybe he is only grounded a week instead of two.  If this logic flies with parenting, why not with civil justice?

-NF

P.S.  If anyone can recommend any literature on this issue, I’d be grateful.

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Posted in Ecuador, South American Environment

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TIPNIS Post on TerraNullius

Posted on February 20, 2012 | 1 Comment

Stop by TN for my latest thoughts on the TIPNIS conflict, including a discussion of the government’s plan for a consultation with park residents.  Here’s a snippet:

On October 24, 2011, Bolivians breathed a collective sigh of relief.  After a two-month struggle, culminating in massive protests in front of the Presidential Palace in La Paz, Evo Morales signed a bill declaring the Territorio Indígena y Parque Nacional Isiboro-Secure (TIPNIS) “untouchable.”

The controversial road connecting Villa Tunari with San Ignacio de Moxos would not pass through the national park and protected indigenous territory.  The peoples’ cry to defend TIPNIS had been heard; “Evo Pueblo” had lived up to his moniker, even if only under extreme pressure, and had listened to his constituents.  He even said so himself:  “The TIPNIS issue is resolved,” he declared. “This is governing by obeying the people.”

Or so we thought.  Though many were probably skeptical from the start, many others—myself included—thought the case was closed.  The government would still likely construct a road between Villa Tunari and San Ignacio de Moxos, but the new law dictated that it would skirt the park.  That, not prohibition of a road altogether, had always been the goal.

As the last few weeks have shown, however, the victory dance was premature.  On February 10, 2012, President Morales signed a new law bringing back from the dead the possibility a road through TIPNIS.  Three-and-a-half months after declaring the park “untouchable,” Morales signed a law calling for a “prior consultation” to determine whether the road should go forward as originally planned. How did this happen, and how can we make sense of it?

Read the rest here.  Thanks again to TN’s Rhodri C. Williams for the opportunity to post on his great site.

-NF

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Posted in Bolivia, Brasil, South American Environment

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Guest Posting re TIPNIS on TerraNullius: The Housing, Land, and Property Weblog

Posted on February 16, 2012 | Leave a comment

Rhodri Williams of TerraNullius has kindly offered me the chance to share with his readers some thoughts on the TIPNIS saga.  I’ll save the details for the main post, but the last few weeks have seen some important developments.

Apart from these factual updates, a conversation with a local sociology professor has provided new insight into the historical and cultural factors that must be examined if we are to understand why this has played out the way it has.  Look for the post on TN sometime soon.

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Posted in Bolivia, South American Environment

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TIPNIS Update: Government Set to Consult with Stakeholders, Determine Fate of Proposed Road

Posted on February 13, 2012 | 4 Comments

The proposed freeway connecting Villa Tunari and San Ignacio de Moxos is once again dominating Bolivian headlines.  The road — drawn up to cut through the center of a national park and protected indigenous territory (“TIPNIS”) — has inflamed passions on all sides.  The coca growers want the road to open up new territory and facilitate transportation; many (but not all) within the local indigenous communities are opposed.

Many of us thought this dispute was essentially over on October 24, 2011, when President Morales signed a law scrapping construction through TIPNIS and declaring the region “untouchable.”  Apparently not.  President Morales has now announced his intent to consult with the affected parties, including not only park residents but also area coca growers.

Skepticism among the public is running at an all-time high.  Despite the government’s claim that it is simply trying to determine and effectuate the public’s will, many see the move as a transparent attempt to resurrect a plan that the public already forcefully rejected.  If the government were to consult only TIPNIS residents, this perception would likely go away.  However, by consulting coca growers living in the general region, La Paz has opened the door to criticism of rigging the process.

Trying to predict the outcome of this conflict is like tossing a pair of dice . . . dice that keep on rolling.

-NF

UPDATE:  Dario Kenner of Bolivia Diary has a great post on this topic, including an interview with anthropologist Xavier Albo and translations of speeches by President Morales and indigenous leader Nelly Romero.

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Posted in Bolivia, South American Environment

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On the Brink? TIPNIS Law to be Revisted by Bolivian Legislature

Posted on January 18, 2012 | 1 Comment

Though it’s probably difficult for outside observers to imagine–and even tough for many of us here in Bolivia–there is a chance that the gains of October could be reversed.  Dario Kenner of Bolivia Diary reports as follows:

The Plurinational Assembly (Congress and Senate) approved Law 180 on 24 October. A few days ago it was formally introduced for further discussion on the parliament´s agenda. The intention is to  modify the law to build the road through the TIPNIS. It is unclear how long this process will take but it could happen soon.

Modifying the law is a very real possibility because since the 2009 general election the governing Movement Towards Socialism (MAS) party has enjoyed a two thirds majority in the Plurinational Assembly (Congress and Senate) and controls the executive branch. However, it might not be quite so straightforward because several indigenous MAS represenatives in the Congress have said they will no longer vote with the MAS.

It is no coincidence the Morales government is now attempting to reverse Law 180. A march led by indigenous communities in the south of the TIPNIS represented by CONISUR (Indigenous Council of the South) is expected to arrive in La Paz very soon. Around a thousand have marched since 20 December 2011 from the edge of the national park to demand the reversal of Law 180 and for the road to be built through the TIPNIS (for more information see Bolivia Diary article on the CONISUR march and interview with expert on TIPNIS Sarela Paz).

For the full story by Dario, click here.

 

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Posted in Bolivia, South American Environment

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Here We Go Again? TIPNIS March, Part 2 — This Time in Favor of the Road

Posted on December 27, 2011 | 1 Comment

As I stated in my piece in Foreign Affairs, the Morales administration antagonized much of its political base when it tried to force the construction of a road through a national park and protected indigenous territory (known as TIPNIS).  In protest, residents of the park launched a grueling march, taking them hundreds of miles from the lowlands of the Amazon basin to the cold heights of La Paz.  For every step they took, popular support for their position kept pace, building in magnitude as the marchers approached their destination.

Still, the movement wasn’t a full-on crisis for the government until September 25, when someone from La Paz–exactly who remains a debate–ordered a crackdown. Scores of marchers were arrested, and acts of police brutality were caught on tape.  The crackdown solidified opposition to the TIPNIS freeway and the Morales government in general.  Three weeks later, widespread pressure forced the government to scrap the plan to build through TIPNIS.  A few days after that, Morales signed a law proclaiming TIPNIS “untouchable.”  The marchers had won.

Or had they?  The decision to scrap the road was never accepted by the cocaleros and many other important sectors of Bolivian society.  When I traveled to Villa Tunari a few weeks ago, cocaleros had blocked the road to Santa Cruz.  Hundreds of trucks were backed up for two days.  The cocaleros and their allies wanted the road through TIPNIS, and they were willing to go to the mat for it.

But all that was probably to be expected.  Though the reasons are manifold, instability is undeniably a fixture of Bolivian politics.  The latest turn of events, however, has even the old-timers scratching their heads.  Another indigenous group–not from TIPNIS, but from the southeastern part of the country–has launched a march of its own.  Its goal:  the repeal of the law officially cancelling construction through TIPNIS.  These marchers, some 1,000 strong, are also aiming for La Paz, and they are expected to arrive in Cochabamba this coming Wednesday.  If I can, I’ll try to capture some images.

What to make of all this?  What, if anything, does it say about the stability of law in Bolivia?  Even if the government holds firm, many seem to have the perception (and perhaps they are right) that laws in Bolivia are easily changed.  Is this perception by itself dangerous to a democratic society?  Is it beneficial?

-NF

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Posted in Bolivia, South American Environment

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Morales Signs Law Prohibiting Construction of Freeway through TIPNIS

Posted on October 26, 2011 | 1 Comment

It’s official — the road will not go through TIPNIS.  After announcing the decision over the weekend, President Morales signed the bill on Monday, memorializing the about-face as an act of law.  Dario Kenner of Bolivia Diary has the full story here.  As Dario notes, there are still many unresolved issues, including the investigation of police repression and curbing coca cultivation and illegal forestry in the park.  Still, the government’s move resolves the immediate crisis, as evidenced by the TIPNIS marchers’ decision to leave La Paz and return to the lowlands.

-NF

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Posted in Bolivia, South American Environment

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Consultation or Consent?

Posted on October 14, 2011 | 1 Comment

As I’ve mentioned in the comments, there seems to be a fair bit of confusion, perhaps unresolvable, over whether Bolivian law requires community consultation or community consent in the case of a proposed government project that will impact the environment.  By its literal terms, the Bolivian Constitution seems to suggest the former.  It provides that the government must engage in “consulta previa, informada y libre”–prior, informed, and free consultation.  Yet, according to many with whom I’ve spoked, the government pitched this during the ratification process as signifying informed consent, essentially giving the people a veto power.  If so, this would mark a major distinction between Bolivian environmental law and the dominant world model.

Of course, it would also have serious implications for the TIPNIS case.  In fact, the government seems to know this.  This article in today’s Los Tiempos shows that the government is firm in its position:  the consultation is not “binding.”  In other words, the government says the law requires consultation–as we normally think of it in environmental law–not consent.

This meshes with my initial read of the constitution.  But even if that’s what the constitution says, would the result change if the text was sold as actually meaning something different?   If the people thought they were approving a provision that gave them a veto?  I’m not sure.  I’d love others’ thoughts on this.

I’m particularly interested in this topic because it bears on my present research. Here’s a draft abstract of the paper I hope to write (working title: “From Consultation to Consent:  Community Approval as a Prerequisite to Environmentally Significant Projects”):

The idea for this paper is to challenge the current model present in the U.S. National Environmental Protection Act and its counterparts across the globe.  The NEPA model — which has basically spread to become something of a global standard — requires the government to solicit public commentary on construction projects that will have a substantial impact on the environment.  In other words, NEPA requires consultation; it does not require consent.  I don’t believe this goes far enough to protect community interests’ in the environment.  To take an extreme case, assuming it otherwise complied with NEPA, the government could build a dam in a fishing community despite the fact that 95% of the local public was against it.  These projects usually have diffuse benefits (benefiting a region or nation) but have concentrated harms (it’s the locals who suffer the most).  The current model does not take sufficient account of this dynamic.

-NF

UPDATE:   The Morales administration is now saying it will “respect” the outcome of the TIPNIS community consultation and “fulfill” the community’s desire.  It’s not clear whether this is a one-time deal or a legal interpretation that the government expects to follow in all cases.

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Posted in Bolivia, South American Environment

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