Courting justice: when legal challenges to corporate land grabs go wrong

Contributed by: Sango Mahanty, Jean-Christophe Diepart and Sarou Long

In July 2021, a French court ruled against a group of Indigenous Bunong farmers from Mondulkiri in Northeastern Cambodia. Represented by French Laywer Fiodor Rilov, and with civil society support, the group accused the French Bolloré Group and their subsidiary company, Compagnie du Cambodge (controlled by Socfinasia) of illegal land seizures and the wanton destruction of Bunong sacred forests and their way of life. The disputed land consists of agricultural concessions granted by the Royal Government of Cambodia in 2008 and 2010 to Socfin-KCD (a joint venture of Cambodian company Khao Chuly Development and Socfinasia). Court cases of this kind are familiar to Socfin, who has faced similar complaints in Africa.

The outcome was striking not only for the ease with which the court dismissed the case, but also for the unprecedented requirement that the Bunong plaintiffs pay Euro 20,000 in reparations to Bolloré and its Cambodian subsidiary. In light of recent discussions on the potential and constraints of legal activism, we aim here to highlight entrenched structural factors that can hinder communities in legal challenges to corporate land grabs.

The political and economic power of corporate actors like Bolloré and Socfin run deep. Established in the early 1900s, Socfin (Société Financière des Caoutchoucs) played a key role in mobilising European capital to French Indochinese frontiers to develop rubber plantations. As a holding company, Socfin then designated these lands to various subsidiaries for development – a pattern that served to complicate regulation of these corporate actors and their landholdings even in colonial times. The Compagnie du Cambodge cited in this court case was one such subsidiary and shares Socfin’s colonial origins. The high-level connections of companies like Socfin were central to their economic success. In one example cited by French economist Charles Robequain (1944), when Socfin’s Adrien Hallet arrived in French Indochina 1910 he quickly gained agreement from the Colonial administration to mark off ten square kilometres of forest on the Cochinchina-Cambodia border for future development into rubber. In a mark of Hallet’s influence, “the border was pushed back a little” to accommodate this land grant.

Socfin: a key rubber investor from French Indochina to contemporary Cambodia

Socfin-KCD’s lease of the three Mondulkiri concessions at the heart of the current legal case similarly gained easy government approvals, given KCD’s connections with Cambodian political leaders. These include the concessions known as Varanasi (2,705 ha, granted in 2008), Sethikula (4,273 ha, granted in 2010) and Covyphama (5,345 ha, granted in 2008). In Cambodia, government approvals for plantation investments by domestic companies routinely avoid the consultation, environmental and social assessment requirements of the Sub-Decree on Economic Land Concessions, as well as the national environmental impact assessment guidelines. The involvement of European finance might have invoked international safeguards if investors had sourced funds from the IFC or from banks that subscribe to the Equator Principles, but Socfin’s annual reports suggest that it used other sources of finance for this purpose.  

With Cambodian due-diligence procedures by-passed and in the absence of formal international safeguards, Socfin’s operations were only subject to ‘soft laws’ such as the OECD’s Guidelines for Multinational Enterprises, and to the company’s own voluntary corporate social responsibility principles. Socfin explains on its website that the company voluntarily follows a range of international performance standards (World Bank, RSPO Principles, and the Sustainable Natural Rubber Initiative) and also “adheres scrupulously” to national land ownership and environmental legislation. Yet many countries where the company invests, Cambodia included, are settings where land rights, environmental laws and human rights are routinely flouted.

Socfin has become a visible target for community anger, but there are complex financial relationships between companies at play in this case, echoing the opaque colonial financial networks mentioned earlier. Socfinasia is the key company in the Socfin-KCD joint venture. Registered on the Luxembourg Stock Exchange, Socfinasia is a subsidiary company owned by Socfin (58%) and the Bolloré Group (22%). The Bollore group also owns the Compagnie du Cambodge mentioned in this case, and 39% of the share in Socfin. These intricate corporate relationships can serve to muddy the lines of accountability.

The French legal case addresses this corporate accountability issue. Rilov observed that the Bunong case would be the first in France against a parent company for actions overseas by a subsidiary, although such cases had been heard in the US and the UK. In reflecting on the challenges of mounting such a cross-jurisdictional legal case, he noted the important facilitating role of international and Cambodian actors such as Global Witness, British legal firm Leigh Day, the Cambodian Indigenous Youth Association (CIYA) and Cambodian lawyer Sek Sophorn. It was through these connections and relationships that Rilov ultimately developed the case with a group of 80 Bunong farmers against Socfin-KCD and the Bolloré Group for their loss of vital income and sacred forests.

The court ruled the Bunong case inadmissible on the grounds that none of the plaintiffs held title documents to prove their personal right to use the land, and for their alleged delays in submitting documentation. This emphasis on individual land titles is at odds with the customary and collective land tenure system that governs land access in Bunong communities. Yet, the Cambodian legal framework does recognise Indigenous Peoples’ rights to possess land and to use forest products (Civil Code; the 2001 Land Law and the 2002 Forestry Law). In particular, the 2009 sub-decree #83 under Cambodia’s Land Law enables formal recognition of lands where Indigenous people have cultural ties and that they have traditionally used for forest products and shifting cultivation.

The court might have been satisfied if the Bunong plaintiffs held a communal land title (CLT) for the contested areas under the 2009 sub-decree mentioned above. However, the process of formalising CLT is known to be complex, costly and time-consuming, with only 33 titles registered so far around the country. Furthermore, the 2009 sub-decree came after the ELCs had already been allocated to Socfin-KCD and clearance work commenced. Although the Cambodian Ministry of Interior has recognised Indigenous community bodies, meeting the second step in the land registration process, titling has been complicated by the existing land allocations. A community leader explained in 2016 that many of the areas they could potentially claim in a communal title application were already occupied by Socfin. Thus, the Bunong community has been unable to secure Indigenous communal title.

The option of gaining private land titles has also bypassed many Bunong families around the Socfin-KCD concessions. The Cambodian government’s fast-tracked private land titling campaign in 2012-2013 aimed to address land conflicts between economic land concessions and smallholder farmers across the country. The focus on individual private titles rather than communal lands caused friction within Bunong communities, but some families were keen to gain land security on these terms. Gaps and inequities in implementation are well documented with this intervention. Here too, a 2020 study found that some 26 percent of their studied land plots were titled during this process, of which around 71% went to Khmer migrants rather than Bunong people. A key constraint was that company did not permit the measurement and titling of land inside the concessions. The Bunong community thus lost out both on private titles and communal titling, further weakening their legal standing in the French case.

Importantly, none of the international protections for Indigenous peoples (e.g. the International Labour Organisation Convention on Indigenous and Tribal Peoples, Convention No. 169 of 1989; and the UN Declaration on the Rights of Indigenous Peoples, and the World Bank’s Environmental and Safety Standards No. 7) are predicated on formal evidence of land ownership. The French decision thus reflects a particularly narrow reading of the law where land rights are equated with formal titles.

Notably, other non-judicial processes have been mobilized by the company and non-state parties to compensate the villagers and address their grievances. The company has offered to address the conflicts through monetary compensation, land swaps for other locations or leasing of some concession lands as smallholder rubber plantations. The implementation of these options was problematic in many respeccts, however some community members accepted the small cash compensation (150-200 USD/ha) offered to them (Chan et al. 2020 and FIDH). In 2016, the company and three groups of villagers (not those involved in the trial) agreed to use an independent mediation process. The process is a locally contested, however, and concerns a limited section of the disputed land.

As far as the trial is concerned, the Bunong representatives and their French supporters are appealing the decision on the grounds of their ancestral ties to land. Yet, it is difficult to see how the case can progress through a system that is so heavily swayed towards politically and economically powerful actors, who can position themselves favourably within legal systems that disenfranchise Indigenous groups for their lack of formal property rights.

The case points to larger challenges for Indigenous communities in using judicial processes to counter corporate land grabs. Here, legal activism has forged important alliances and community action, but also exposes a highly unequal playing field both within Cambodia and Europe and the associated challenges in seeking land justice across jurisdictions.

Convivial Conservation: book review and authors’ response

Read Rogelio Luque-Lora’s review of “Convivial Conservation” with a response from the authors, Rob Fletcher and Bram Buscher – comments are very welcome!

Living with Nonhumans
The Conservation Revolution: Radical Ideas for Saving Nature Beyond the Anthropocene
by Bram Büscher and Robert Fletcher
Reviewed by Rogelio Luque-Lora

This is a shortened version of a review published in the Winter 2021 issue of The Philosopher. You can download a free copy of the full review here.


Despite conservationists’ best efforts, global biological diversity continues to disappear at alarming rates. According to political ecologists Bram Büscher and Robert Fletcher, this is, to a large extent, a consequence of mainstream conservation not addressing biodiversity declines in the right ways. The authors acknowledge that there is significant variation in mainstream approaches to conservation, but that two fundamental premises are dominant. Firstly, a stark dualism, both material and epistemological, between human and nonhuman nature. This dualism carries the normative implication that nature ought to be saved from humans – hence the historical focus on protected areas as the cornerstone of global conservation. The second premise of mainstream conservation is its embrace, ideological or pragmatic, of the capitalist development model. As the authors explain, the histories of capitalism and conservation are entwined, with conservation having emerged as a response to the increasing destruction wrought by capitalist development. In practical terms, conservationists often decide that it is more productive to partner with capitalist interests to generate the funds needed for their projects than to fight against the dominant political economy.

According to Büscher and Fletcher, the recognition that mainstream conservation is failing to save biodiversity has triggered the recent appearance of more radical approaches. As the authors explain in the opening paragraph of their book, the last decade has seen growing urgency and pressure on both the natural world and the conservation community, which has led many to conclude that gradual, stepwise improvements to mainstream conservation will not suffice to prevent worldwide ecological catastrophes. Taken together, the authors contend, these are good reasons to believe that a revolution in conservation is underway.

Büscher and Fletcher identify two major radical alternatives to mainstream conservation, the main features of which can be apprehended from how they position themselves with respect to its two fundamental premises. The first group, new conservationists, reject nature-culture dualism while showing enthusiasm for working within capitalist processes and logics. They endorse the view that in the Anthropocene pristine nature independent of human impacts no longer exists. Therefore, rather than try – and fail – to protect perceived wilderness areas from human activities, new conservationists argue that the natural world ought to be integrated into the capitalist economy. The hope is that once the (capitalist) value of nature is taken into consideration, humans and nature can develop in harmony.

The dehesas of the Iberian peninsula have developed through the action and coexistence of wildlife, livestock and humans. In them, any notion of stark dualism between humans and nature falls apart. Source: author’s own.

The second group, neoprotectionists, firmly oppose both these claims. According to the loudest voices within neoprotectionism, it is a gross exaggeration to think that because human activities are leaving a mark on planetary processes, all species and ecosystems are now dependent on human will. The only real way to save biodiversity is to have more numerous, larger and better-connected areas where nonhuman natures can continue to live in ways largely independent of human activities. The most radical neoprotectionists think that at least half of the Earth’s surface must be set aside for “inviolable” nature reserves. For the most part, neoprotectionists see the rising consumption trends and endless economic growth that characterise capitalism as key drivers of biodiversity loss.

A closer reading of the history of conservation ideas, however, calls into question the authors’ accounts of new conservation and neoprotectionism as recent, radical challenges to mainstream conservation. While new conservation presents itself as a novel approach fit for conservation in the Anthropocene, the ideas behind it are at least decades old. In a paper published in 1999, development scholar David Hulme and social anthropologist Marshall Murphree described the then-recent shift in African conservation toward approaches that were people-centred and promoted economic growth. Strikingly, they named this shift “new conservation”. Similarly, the fact that new conservation’s radical counterpart is effectively called new protectionism should also raise suspicions about its novelty. Conservation interventions that aim to protect pristine nature from human activities date back at least to the nineteenth century Romantic cult of wilderness.

To be sure, new conservation and neoprotectionism are not carbon copies of their respective predecessors. It is clear that the advent of the Anthropocene has given new conservation and neoprotectionism scalar dimensions not seen in the traditions from which they derive. In the case of new conservation, this is manifested in their call to embrace the global ubiquity of human influence on the rest of nature. In neoprotectionism, it is the scaling up of protected areas to set aside half of the planet’s surface for inviolable nature reserves that is novel. Yet these differences are operational rather than ideological. New conservation’s embrace of human influence stems from their pragmatic belief that protecting wild areas for their own sake has not worked. In the case of neoprotectionism, the values behind proposals to protect half of the planet are indistinct from twentieth century ecocentrism and deep ecology.

The similarities between new conservation and neoprotectionism and their respective predecessors are not exclusively theoretical. The ideologies promoted by new conservationists and neoprotectionists, far from rejecting mainstream conservation practices, actually align with many of them. For instance, decades-old community-based conservation and payments for ecosystem services both fit the new conservationist paradigm of promoting human wellbeing and integrating the natural world into the economy. Similarly, the fact that neoprotectionism has also been called “back-to-the-barriers” indicates that many of the practices they endorse have been deployed for a long time. If the ideological stances and the practices promoted by new conservation and neoprotectionism, which Büscher and Fletcher identify as new and radical, are in fact decades old, the authors’ claim that a revolution is brewing is compromised.

Perhaps most worryingly for their accounts of new conservation and neoprotectionism as radical challenges to mainstream conservation is the number of caveats the authors find in this very classification. Büscher and Fletcher successfully show why both new conservationists’ rejection of nature/culture dualism and neoprotectionists’ scepticism of the capitalist economy are shallow and unfounded. As the authors demonstrate, nature/culture dualism is inherent to capitalism, so by embracing the capitalist political economy, new conservationists fundamentally undermine their aim of overcoming dualism. With respect to neoprotectionism, Büscher and Fletcher convincingly argue that, although neoprotectionists are right to claim that integrating biodiversity into the global capitalist market will not save it, the protected areas they promote cannot be sustained indefinitely against capitalism’s inherent need to grow beyond its own frontiers. Moreover, in practice, the strict protected areas championed by neoprotectionism are often funded by processes that rely on capitalist exchanges, such as ecotourism and philanthropy. A more accurate conclusion of these critical analyses is that these supposedly radical approaches are merely episodic and rhetorical variations on a more broadly defined mainstream conservation.

***

The authors’ legitimate dissatisfaction with new conservation and neoprotectionism leads them to develop their own radical proposal, which they call “convivial conservation”. Convivial conservation seeks to be truly post-capitalist and offers a range of short- and long-term suggestions for moving beyond capitalist conservation. One example is the transition from traditional protected areas to so-called promoted areas. In and around these areas, people’s livelihoods would be based not on capitalist enterprises like ecotourism, but on activities including the sustainable use of natural resources and a “conservation basic income”, which would be funded through the state, promoted area entrance fees and crowd sourcing. On a broader scale, the recognition that the success of convivial conservation ultimately depends on the global dismantling of capitalism also requires conservationists to challenge hegemonic power through campaigning and other forms of political action.

The second pillar of convivial conservation is its rejection of human-nature dualism. According to the authors, nature and society must be viewed not as separate but rather as mutually related and co-constituted, a conclusion to which they arrive after reviewing a range of Anthropocene scholars, including Donna Haraway, Anna Tsing and Jason Moore. But while convivial conservation wholly rejects capitalism, its takedown of human-nature dualism is partial. Büscher and Fletcher argue that in seeking to bring other species and abiotic processes back into moral and political focus, more-than-human, animal, new materialist, and posthumanist theorists have “swung the pendulum much too far” and erased many meaningful and necessary distinctions between humans and other creatures. While urging us to accept and rejoice in the plurality of connections and similarities between humans and nonhumans, the authors wish to retain some form of human exceptionalism.

The reason for this is the realisation that without some form of human exceptionality, any attempt to establish healthier relations with nonhuman natures are bound to fail. There is little in the natural world that is inherently convivial (which the Oxford English Dictionary defines as “the quality of being lively and friendly”). Covid-19, malaria-spreading mosquitoes, and crop-raiding elephants are examples of the indifference of nonhuman natures to human wellbeing. Even seemingly harmonious natural states, such as the (perceived) balance of ecosystems, are the product of forces utterly indifferent to the lives of individual organisms (one such force is the killing of prey species by predators at rates that compensate for the production of offspring in far greater numbers than their habitats can sustain). As Lao Tzu may have put it, “heaven and earth are ruthless, and treat the myriad creatures as straw dogs”.

For human beings to transcend this ruthlessness and voluntarily establish stable and reciprocal relations with the rest of the natural world, they must have the capacity to function as intentional political and moral agents. As far as we know, this ability is absent in all nonhuman species, at least in the measure that would be required for the major societal changes that this book promotes. Kate Soper has made a similar point:

Unless human beings are differentiated from other organic and inorganic forms of being, they can be made no more liable for the effects of their occupancy of the ecosystem than can any other species, and it would make no more sense to call upon them to desist from destroying nature than to call upon cats to stop killing birds.

Yet the only reason for accepting human exceptionalism that is provided throughout the book is that it is required for convivial ecological politics to emerge. This does not prove human exceptionalism to be true; it only proves that without it, the kind of conservation that the authors envision is an impossibility.

During summer months, drought and high temperatures in the Mediterranean habitats kill all non-woody vegetation and put animals at risk of starvation and dehydration. “Heaven and earth are ruthless, and treat the myriad creatures as straw dogs.” Source: author’s own.

Though it was published nearly two decades ago, John Gray’s Straw Dogs (which takes its title from the Lao Tzu quote above) can be read as a provocative antagonist to The Conservation Revolution. Like many of the posthumanist writers reviewed by Büscher and Fletcher, Gray seeks to present a less human-centred view of the world. The idea that humans are categorically distinct from other animals is, according to Gray, largely a Judeo-Christian invention, which humanist thinkers have unknowingly inherited despite their atheist credentials. Had Darwin published his work in Daoist China or the pre-Columbian Americas, the suggestion that animals are our evolutionary kin would not have caused the uproar it did in Christian Europe.

Straw Dogs is not oblivious to the troubling implications of erasing distinctions between humans and the rest of the natural world. On the contrary: it lays them bare. According to Gray, lacking the qualities that supposedly set us apart from other animals (most notably the capacity for free will and the volition to act morally) implies that we can expect the biosphere to treat us in much the same ways it treats other organisms: eventually, negative feedback processes, like diseases and shortages of natural resources, will push back against Homo sapiens. These are bleak prospects, so one serious challenge for convivial conservationists is to prove not just that human exceptionalism is necessary, but also that there are theoretical and empirical grounds for believing it to be true.

Work in other areas is also needed to show convivial conservation to be viable. There is no shortage of examples of human greed, folly, indifference and ecological devastation from both before the advent of global capitalism and in non-capitalist economies since. While the authors’ contention that capitalism is inherently unsustainable is in principle convincing, they and others now need to show that whatever might replace it will do better at reining in those ecologically undesirable human traits. Büscher and Fletcher have shown that conservationists’ aims of preserving nonhuman natures are unlikely to be met without a revolution in their approaches and partnerships. Now they and their sympathisers need to show that such a revolution is possible, and that its outcomes will be desirable.

Response by Rob Fletcher and Bram Buscher

We would like to thank Rogelio Luque-Lora for his thoughtful and sympathetic treatment of our book. He raises a number of important issues concerning our analysis of contemporary conservation debates and their implications for future practice that warrant discussion and engagement. We want to take this opportunity to respond to two of Luque-Lora’s assertions that we find most significant in the context of ongoing political ecology debates.

First, Luque-Lora argues that the two recent proposals for reforming conservation we single out– new conservation and neoprotectionism – are not really so novel and radical as depicted. In part this is a semantic question concerning how one chooses to define these particular qualities. This framing of positions were also meant as part of a broader heuristic model that through simplification helps to clarify the stakes and issues in current conservation debates. But our main aim in describing these provocative approaches in this way was not necessarily to claim that they were in fact novel and radical, but that they had both been characterized as such – that is, as calls to dramatically transform dominant conservation policy and practice – by their proponents. This common self-characterization – and the invitation it offered to question mainstream conservation approaches in even more transformative fashion – was what we sought to highlight. Given that they have led to major and very heated debates within the conservation community, it is clear that some of their proposals and arguments were also seen as radical challenges by many others. But through illustrating and analysing this in detail, we at the same time concluded that the two proposals were really not as novel and radical as proponents claimed. Besides demonstrating that both positions are indeed rooted in longstanding strains of thought emerging from mainstream conservation approaches, the more important point for us was that both continue to harbour deep-seated contradictions that cannot provide a productive way forward for conservation policy. This is why our analysis led to our suggested and preferred alternative of convivial conservation.

The second, and to our minds more intriguing issue that Luque-Lora raises with our analysis concerns the question of human exceptionalism and its implications for the convivial approach we advocate. As Luque-Lora describes, we pull back from the sort of radical critique of the nature-culture dualism levelled by many other critical social scientists aiming to dismantle (nearly) all divides between humans and other entities. Instead, we reassert that some degree of differentiation between humans and others, as well as between nature and culture more broadly, is not just simple realism, but necessary to be able to wage an effective environmental politics. If this is not done, we argued, there is no way to single out humans’ impacts on the rest of the world as unique and hence uniquely problematic.

But we are not the only ones who assert the necessity of human exceptionalism in this way. While ecocentric critics often decry anthropocentrism in conservation policy, they nonetheless (and paradoxically) demand just this in asking that humans reflect on and change the way we interact with other species to become ecocentric in the manner demanded. No other species (short of outlier proposals such as to alter predators’ behavior through gene-editing; see e.g. Johannsen 2017) are asked to do (or likely considered capable of doing) the same. Hence this stance assumes a unique human capacity on which the politics advocated necessarily relies. In short: a conviction that humans possess the capacity to move beyond human exceptionalism is arguably the most exceptionally human capacity that distinguishes us from other animals.

Yet, as Luque-Lora argues, just because human exceptionalism may be necessary for effective conservation politics does not automatically make it reality. But we believe there is strong evidence to support its reality too. It is true and important that many qualities considered uniquely human by Western thinkers in the Cartesian tradition in the past – language use, sociality, self-consciousness, proactive planning, and so forth – have now been called into question by research that convincingly demonstrates their presence among other species (see e.g. De Waal 2016). Yet even if these qualities are not wholly unique to humans, we still believe that they are consequentially different in humans as compared to other animals (see Büscher, in press). Hence, whether human-nonhuman differences are of degree rather than of kind is in many ways a moot point with respect to ecological politics, since they remain significant in their consequences. One piece of rather straightforward if superficial evidence to substantiate this point is the fact that Luque-Lora is debating these issues with us and other people rather than with non-humans.

Less trite and more important for our convivial conservation proposal is the human capacity to exercise conviviality with respect to the rest of the world, on which Luque-Lora rightly asserts that our proposal depends. Interestingly, he questions whether this same capacity exists not only in humans but also more-than-humans. Drawing on Lao Tzu and John Gray, he contends that “nature” is widely characterized by a certain exercise of and indifference to cruelty and suffering. But this overlooks the fact that various nonhumans also exhibit a capacity for compassion and altruism (see e.g. Sussman & Cloninger 2011).

In her own meditations on the topic, Jane Goodall (2010) has asserted that what distinguishes humans from other animals, even close relatives like chimpanzees, is our uniquely intense capacity both to inflict violence and cruelty and to exercise compassion and kindness. This, Goodall argues, is evidenced by our waging of lethal warfare on a scale beyond any other known species and by the unprecedented ways in which we also care for our sick and injured. The takeaway point for us from this is that a hard-nosed, realistic conservation politics needs to acknowledge both of these uniquely intense human capacities, but especially to emphasise the possibility and need to cultivate the positive capacities in ourselves and others. Moreover, how our different capacities are expressed, we believe, is fundamentally shaped by the sociocultural, historical and political-economic structures in which we exist; hence our emphasis on the importance of attending to these structures in addition to a focus on immediate human-nonhuman interactions in order to foster the (democratic, equitable) conditions in which (commodified) competition (both intra- and interspecies) can be minimized and space for conviviality expanded.

We take the call to push this further very seriously, and deliberately ended our book by saying that we join all of those already working for transformative structural change with hope. Hope, clearly, is not enough to demonstrate that our proposal is better than what currently exists. But in the face of widespread ecosystemic breakdown, species extinctions and obscene inequalities, we do need this yet-again exceptional human quality to give it our best shot. We invite Luque-Lora and others to join us in this movement.

References

Büscher, B. (in press). The nonhuman turn: critical reflections on alienation, entanglement and nature under capitalism. Dialogues in Human Geography.

De Waal, F. (2016). Are we smart enough to know how smart animals are? London: WW Norton & Company.

Goodall, J. (2010). Through a window: My thirty years with the chimpanzees of Gombe. London: HMH.

Johannsen, K. (2017). Animal rights and the problem of r-strategists. Ethical theory and moral practice20(2), 333-345.

Sussman, R. W., & Cloninger, C. R. (Eds.). (2011). Origins of altruism and cooperation. New York: Springer.

Political ecology in the courtroom

Contributor: Jacob Phelps, Lancaster University (feature image: Jaclyn Schwanke)

Political ecologists have a particular interest in recognizing diverse values, questioning prevailing policy narratives, and challenging entrenched power dynamics.  It is therefore surprising that the field is not more concerned with discussions of courtroom proceedings, specifically lawsuits enabling governments, citizens and NGOs to challenge environmental injustice via the courts.  This relatively under-explored legal political ecology provides interesting directions for a field where many grow frustrated with the relative lack of applied theory and activist engagement. 

In this post, I discuss www.conservation-litigation.org, a collaboration among lawyers, ecologists, conservationists, critical social scientists, and economists that asks, “How can we sue large commercial wildlife traders?”.  It  explores how environmental liability lawsuits can hold large-scale, commercial traders liable for the egregious harm they cause. Such liability extends to providing remedies to that harm, such as paying for habitat restoration, animal rehabilitation, issuing apologies, funding species conservation and investing into cultural funds. 

Beyond the obvious opportunities for lawsuits to correct injustices by remedying harms, I highlight two reasons why such litigation offers are exciting spaces for political ecology: 

(1) They allow challenges to mainstream narratives about the values of nature, by pressing courtrooms to formally recognise diverse types of values; and 

(2) They enhance environmental democracy, challenging the state monopoly over the enforcement of environmental rights by creating space for other stakeholders.

These are empowering opportunities that remain underutilised globally, including across most of the Global South.

    www.conservation-litigation.org 

Ours is a scholar-practitioner-activist exploration of alternative legal responses to illegal wildlife trade.  Rather than the traditional focus on punishment, which often ends up targeting low-level wildlife traders with fines and imprisonment, we are exploring how strategic liability litigation can hold high-level actors responsible for remedying the harm they cause.  Amidst concerns on the over-criminalisation in conservation, this project shifts enforcement focus away from punishment and onto remedy; away from small-scale harvesters and onto large-scale commercial traders, and from government-led to citizen-directed enforcement actions. 

Environmental liability litigation will be familiar to many readers. The Exxon Valdez and Deepwater Horizon oil spills are key examples of how government and citizen litigation can hold polluters responsible for actions such as clean-up, funding restoration and compensating victims.  We are exploring how this approach can be used to address a wider range of harms, including from illegal trade, and across broader geographies.  Enabling laws already exist in many countries, including China, Indonesia, Mexico, Brazil, and DR Congo, but are comparatively new in many countries; unfamiliar to legal practitioners, and rarely mobilised. Their potential to address key drivers of biodiversity loss from IUU fishing, illegal logging, illegal wildlife trade are untapped. 

We developed a practitioner-oriented framework for how these cases might be developed. It integrates ecology, law and geography to present diverse types of harm (to individuals, species, human wellbeing), and help to identify corresponding remedies that might be secured via a lawsuit.   It seeks to lower the barriers to justice by making lawsuits development more achievable.  

Venue for formal recognition 

Such litigation is motivating because it creates opportunities for plaintiffs to seek formal, public recognition of their values and rights. In order for a lawsuit to be successful, a court must recognise that the plaintiff has a right to make a claim (standing), that a specific harm occurred, and that it merits a legal response.  As such, lawsuits are a potential pathway for plaintiffs–including NGOs, citizens, community groups and government agencies–to convince a judge or jury of their values.  Such formal recognition of rights and plural values has legitimising potential, and geographers are uniquely placed to help others articulate these values in ways that are legible to lawyers, jurors and judges.

For example, although we (the public, decision-makers, judges) may often recognise that nature has many intangible values, these are rarely institutionalised into our formal governance processes, where a narrow utilitarian economic perspective prevails.  Indeed, much of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) has been guided by “the view that acknowledging and fostering the use of diverse conceptualizations of multiple values of nature and its contributions to people is required for adequately addressing the challenge of achieving global sustainability.”  Conservation litigation provides a vehicle through which to help translate these complex values into tangible, public, formal court orders. 

In our work, we discuss a hypothetical lawsuit against a repeat, commercial wildlife trader that illegally sells one Critically Endangered Bornean Orangutan. The example demonstrates that what may appear like harm to a single individual animal, has diverse, cascading impacts on different communities and types of values.   Notably, these include intangible and sacred values that are potentially non-commensurable with monetary compensation (e.g., moral harm, harm to cultural values).  These types of values merit broad, public recognition, and courtrooms are a way through which to achieve this.

Timeline

Description automatically generated with medium confidence

Harm to an individual orangutan has diverse, cascading impacts. Illustration by Alamsya Elang 

Enhancing environmental democracy 

Conservation litigation also challenges the state monopoly on the enforcement of environmental rights.  Enforcing legal violations, which typically includes enforcement of criminal and administrative regulations, is squarely the role of government agencies that have the right to fine and imprison. 

It is no secret that this presents challenges and frustrations for many conservationists, especially in the context of under-resourced government agencies, low capacity, different priorities, corruption and collusion.  Many civil society groups have responded very assertively, not only lobbying and pushing governments to fulfill their responsibilities to the environment, but also privatisation conservation enforcement.  This includes NGO and private sector management and enforcement of protected areas, as well as civil society investigations and prosecutions of wildlife violations.  These represent a distrust of government’s ability and willingness to execute their core functions, and a (sometimes questionable) attempt to deconcentrate and even democratise enforcement. 

Conservation litigation offers a very distinct, parallel space for non-state actors to engage with the enforcement of environmental rights and rules.  In many countries, legislation allows citizens and NGOs the standing to bring forward liability lawsuits for harm to the environment.  This can include making demands that responsible parties undertake remedial actions for harm caused to public goods (e.g., biodiversity, public waterways).  As such, rather than wait for government agencies to undertake enforcement actions or remedy harm, this type of litigation allows citizens to make requests via the legal system.

This is especially important in the context of uncertain government enforcement, and growing demands for environmental democracy. It aligns with the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which has 41 parties across Europe and Central Asia.  Litigation provides a formal forum and pathway through which to increase this access.

Overcoming barriers to justice 

Strategic conservation litigation has the potential to facilitate access to meaningful, just remedies, highlight values that have struggled to achieve formal recognition in other venues, and increase democratic engagement in environmental enforcement.  There are also other  important types of important courtroom actions that speak directly to the interests of political ecologists, including to order injunctions to order the stop to harmful projects; lawsuits to order, revisions of unjust e legislation, and lawsuits to order government agencies to meet their legal mandages. The courtroom thus seems a uniquely appropriate setting for a field concerned with rights, (in)justice, contested narratives and creating meaningful change.

There are huge barriers to courtroom engagement and access to justice–technical, conceptual, procedural, political and financial.  This includes huge challenges for academics that engage with law, particularly those without legal training, for whom the jargon and detailed mechanics of national-level legislation can be daunting.  Importantly, they are even greater barriers for the marginalised communities who are often most affected by environmental harm.  This is precisely the reason for a strategic legal political ecology to operate in the public interest.  

Geographers and conservationists can help to bridge the gaps between how harm and remedies are experienced on-the-ground, how these are presented in lawsuits, and how formal legal processes can be navigated. Progress will necessarily require novel collaborations, including work with plaintiffs, public interest lawyers, public prosecutors and legal aid groups, to help overcome barriers to justice. 

Car Recycling: an often-overlooked way to decrease your vehicle’s environmental impact

Contributed by Gabe Vargas, Masters student at University of California, San Diego 

For many in the Global North, our personal impact on the environment is inexorably connected to cars.  According to the US Environmental Protection Agency, transportation is the largest source of greenhouse gas emissions, and everyday passenger cars account for a majority of the sector’s emissions. 

What you might not know, is that the environmental impact of cars doesn’t just come from driving them.  The industrial processes that bookend a car’s lifespan—its manufacture at the plant, and its disposal —have a disproportionate impact on the environment, both in terms of greenhouse gas emissions and other forms of pollution.  

While we can decrease our miles traveled along the margin, it will be a long time before the built environment in countries like the US renders cars unnecessary.  But, we can mitigate the impact of other sources of our cars’ pollution by recycling them.  

Why recycle cars? 

Automotive recycling has several key environmental benefits.  It diverts waste from landfills—importantly, both a large quantity of waste (10-12 million vehicles a year, according to Argonne National Laboratory, a leading institution researching car material recovery), and a disproportionate share of the hazardous waste that poisons our land and our communities’ water supplies.  It allows parts to be reused  further reducing environmental impact.  It also decreases the demand for mining, preventing significant environmental damage associated with resource extraction.  And it substantially decreases the carbon footprint associated with making new cars.  

According to SellMax in San Jose,  every year, car recyclers in the US and Canada produce sufficient steel to make 12,000,000 cars, recover parts that would have taken the energy equivalent of over 85,000,000 barrels of oil to replace, salvage 100,800,000 gallons of gasoline and diesel, 45,000,000 gallons of washer fluid, and 8,000,000 gallons of engine coolant.  That’s a lot of hazardous liquids that could have otherwise ended up in American watersheds. 

What can be saved? 

The Backbone: Iron and steel 

Iron and steel can be recovered from the cars’ frame—a significant fact, since these metals can make up over 60% of cars’ mass

By 2010, according to  Argonne National Laboratory, recovery of ferrous metals (iron and steel), from car recycling, constituted the largest source of scrap for the iron and steel industry.  Producing recycled steel uses 74 percent less energy than steel made from scratch (remember this energy would still come from burning fossil fuels).  

The Hidden Hazard: Tires 

Few symbols of decaying cars are more emblematic or familiar than a tire fire—after all, one has featured prominently in the opening sequence of the popular cartoon The Simpsons for decades.  And this fascination is somewhat justified—as a report by the municipal government of Lehigh County, PA summarizes, tire fires are incredibly dangerous They burn incredibly hot and produce toxic gases. , When put out with water, they leave behind a toxic slurry that contaminates groundwater and farmland. 

When not ablaze, abandoned tires still threaten public health.  When holding water, they provide habitats for mosquitos that carry West Nile Virus, Zika, and other diseases. 

Once recycled, tires have many uses. They can be made into new roads, clean-burning fuel to replace dirty oils, and incorporated into liners for garden beds. 

The Classic: Aluminum 

Few materials for recycling are as familiar to the everyday consumer as aluminum.  And there’s a reason that the image of tossing cans into blue bins has become so intimately linked with the process of recycling itself: aluminum recycling is one of the most efficient landfill-diverting processes.  

According to a 2010 literature review by Subodh Dasand their team from the technical publication Light Metal Age, the recycling process converts up to 99% of aluminum into usable products. (a far higher rate than many other materials—and it can be repeated almost indefinitely).  This results in less material entering landfills, and less aluminum being mined—which is extraordinarily important, given that aluminum mining largely occurs in destructive open pit mines. These mines devastate ecosystems, poison water sources for generations to come, and contribute to major human rights violations.   

Aluminum recycling also saves enormous amounts of energy.  According to the same review in Light Metal Age, recycling post-consumer aluminum saves up to 95% of the energy and reduces greenhouse gas emissions from mining, refining, and smelting aluminum by 95% as well.  This is even more important than it sounds, because, as the Environmental Protection Agency reports, aluminum smelting releases large quantities of incredibly strong, long-lived greenhouse gasses known as perfluorocarbons.  Each pound of these compounds released into the atmosphere  has the same impact as releasing 9,200 pounds of carbon dioxide—and will remain in the atmosphere for over 10,000 years. 

Aluminum was one of the first and most important metals to be recycled from cars.  As early as the 1980s, SAE International, a leading professional organization for engineers predicted that automotive recycling projects focused on reclaiming aluminum from car frames would come a critical means of “decreasing disposal problems” associated with environmental contamination from used cars while “lower[ing] demands on material resources” to produce new vehicles.   

Most aluminum in cars are now recycled, providing a significant boon to the environment. 

  

Other materials 

As noted in a 2006 journal article by  Muhamad Z. b. M. Sama and  Gordon N. Blount, many other materials can also be economically recycled from cars—including resins, foam, glass, copper, and rare earth metals in catalytic converters.  All of these require tremendous amounts of energy and pollution to produce, and are not biodegradable—that is, when placed in landfills, they will not decompose.  

Despite their polluting effect, we’ll have to keep living with cars for a while. But at least we can provide a future for our rivers and atmosphere with auto recycling until they are obsolete.

Repost: Enforcing Ecological Catastrophe at All Costs

By Andrea Brock

Original post accessible here.

Image: Dannenröder Forest occupation pictured in August 2020. Credit: Leonhard Lenz

After an activist is hospitalized in Germany following police action, Andrea Brock reflects on the criminalization of, and violence against, environmental defenders in Europe by state and private actors.

Read full blog

Repost: Eco-Social Steps to Resilience

Authors: Rosa Martínez Rodríguez and Yayo Herrero

Original article posted in Green European Journal, and available at this link.

As the world reels from the fallout of the Covid-19 crisis, discussion turned to rebuilding Europe’s economy with the EU clinching a deal on a coronavirus recovery fund after marathon negotiations this July. In this interview, Rosa Martínez spoke to activist and anthropologist Yayo Herrero about how to approach reconstruction in an eco-social way. In forging societies that are resilient to shocks, whether caused by pandemics or climate change, the challenge will be breaking with capitalist logic to propose solutions that prioritise wellbeing while factoring in ecological limits.

Read full interview

From bombs to biodiversity: why we need a conceptual shift in security

By Cebuan Bliss

Photo credits: James Calalang

The Copenhagen School’s concept of securitisation is a response to their dissatisfaction with traditional, narrow definitions of military security which were prevalent during the Cold War. They argue for a broadening of the concept of security and established a new framework for analysis, one which considers issues of increasing prominence, including economic and societal security, and the environment (Buzan et al., 1998). Thus, it is a useful framework with which to comprehend the threat of biodiversity loss to human security.

Read full blog post

Biodiversity and the blind spot of nature conservation policy

By Esther Turnhout, Wageningen University

The IPBES Global Assessment has made clear that the causes of biodiversity loss are located outside of protected areas, yet this remains the focus of much of conservation policy. Addressing this blind spot is challenging, but necessary for effective and just biodiversity governance and nature conservation.

Read full essay