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