Eco-Justice Goes Global
In federal district court in New York City, 30,000 residents of Ecuador are suing Texaco for class-action damages to their health and local environment. The oil company's executives are accused of making a conscious decision to dump more than 16 million gallons of oil and toxic wastewater into the Amazon River over two decades--three times the size of the Exxon Valdez oil spill in Alaska. The plaintiffs include three indigenous tribes and are represented by a Philadelphia law firm [see Eyal Press, "Texaco on Trial," May 31, 1999].
Stay tuned--this is a fast-developing new front in the globalization of law enforcement. In recent years, inventive lawyers have revived a 200-year-old federal law (the postrevolutionary Alien Tort Claims Act) as the legal basis for foreign citizens to sue US multinationals in US courts for their environmental or human rights abuses overseas. Unocal is being sued by Burmese workers for alleged collaboration with forced labor and torture by SLORC, the hideously repressive government of Burma. Royal Dutch/Shell announced a new code of conduct on human rights hours before the family of Ken Saro-Wiwa filed a lawsuit alleging Shell's role in the Nigerian military's execution of Saro-Wiwa.
This doctrine of legal standing is a long way from being established in the courts, but these and other suits are attempting to hold companies liable for malpractices abroad and the deception of American consumers at home. Obviously, this is not what American business had in mind as "tort reform." But the legal risks are quite real for US multinationals, according to Stanford's Armin Rosencranz, an authority on international environmental law. It also opens a promising new field for trial lawyers, who took on big tobacco and showed that significant reform is still possible, despite America's stalemated politics.
Reform legislation, both at the state and national level, can advance the cause by ratifying in law that foreign citizens have clear standing to sue US companies in US courts, thus pre-empting the Supreme Court's business-friendly conservatives.
At the same time, Congress could require the companies to provide hard, precise data on environmental damage to those foreign communities and citizens who are usually kept in the dark about what's being done to their surroundings. Information is powerful. That's why companies don't often volunteer it. Daniel Seligman, head of the Sierra Club's responsible-trade campaign, suggests a preliminary outline: Congress could enact legal requirements that US multinationals disclose toxic releases at overseas production facilities that would parallel the existing laws for industry at home. When an oil or mining company plans to open a new project in a foreign country, it would have to prepare the equivalent of an "environmental impact" assessment and share it with the affected community. The company would be required to engage in open discussions on potential consequences, not just with the national government but with the people whose health and habitat are threatened.
Furthermore, multinationals and their affiliated producers would have to disclose an annual inventory of what exactly is being dumped in the river or ground, what emissions are released into the air and, of course, what toxics are inside the factory. This does not intrude on any country's pollution standards, but it does equip citizens to act for themselves.
As US environmentalists have learned from long experience, the process of enforcing pollution standards can be torturously slow and incomplete if it relies solely on government agencies. Enactment of US toxic "right to know" laws in the eighties was a crucial turning point. The information unleashed grassroots energies and compelled many companies to accelerate compliance. No one should imagine that poor people in Asia, Latin America or elsewhere are indifferent to what's happening to their local environment. The problem is that they usually have no voice in the matter.
Thus, a new law would embody two fundamental reforms: First, companies would be compelled to make full disclosure of their pollution, and, second, affected foreign citizens would have the right to sue them for damages in American courts.
"This has nothing to do with eco-imperialism," Seligman emphasized. "It simply holds our own firms accountable to our values. It's not dictating the levels of pollution, but it's giving communities, not just governments, the information they need to decide their own destiny."
This reform should further stimulate the development of international civil society and the rule of law, both of which the business establishment claims to want. Local citizens, alarmed by the despoliation, could seek expert help from established environmental groups elsewhere in the world. If the facts are truly alarming, they could hire a lawyer to represent them in American courts.