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Could politicians be charged with 'ecocide' if they approve tar sands pipeline?

Rosie Spinks

29th November, 2011

A law of ecocide could potentially see politicians who approve environmentally-damaging projects, like the tar sands pipeline between the US and Canada, face a court trial

'The first thing you notice is that the forest just stops,' says Malaika Aleba. 'The land is desert-like and sandy - very strange for Alberta - almost like what Afghanistan looks like on the news. Canons are fired every so often to scare off the birds. The sky turns grey, then brownish. The air stinks and you see monster trucks driving everywhere as well as drug testing signs posted for the workers.'

Aleba, a 23-year old environmental activist from Alberta, Canada, is describing what the Athabasca tar sands, located near the small Alberta town of Fort McMurray, looked like the first time she visited. Perhaps unknowingly, she is also describing something that a growing group of environmental activists and legal professionals want to bring global recognition to: ecocide.

Ecocide, according to barrister and environmental lawyer Polly Higgins, is not only a crime against nature, but also one against humanity, peace, and future generations. After spending years in courtrooms representing the earth as her number one client, one day Higgins realised her efforts would remain in vain unless something changed.

'It’s very hard to speak out against something that hasn't been given a name or been recognised. I realised that I was going to have to make up the laws that I needed.’ Higgins told the Ecologist. ‘If we're going to actually propose an earth right to life, that needs to be governed by the equivalent of genocide protecting humanity's right to life - and that needs to be ecocide.’

A law of ecocide could, for example, put heads of oil companies like BP in jail for incidences such as the Gulf oil spill.

Higgins says a mock trial in September - which was held in the UK's supreme court with a real jury - proved that an ecocide law could successfully stand the test of a courtroom trial. The jury found two fictitious executives guilty of the crime of ecocide for extracting oil from Canada’s tar sands.

Higgins is now taking the her case to an international level by attempting to convince the United Nations to classify ecocide as a crime against peace, alongside a list of heinous offences including genocide and war crimes. She hopes that the idea will be adopted at the 2012 Earth Summit in Rio De Janeiro, Brazil.

If it gets approved, those found guilty will no longer find their corporation slapped with a fine; rather, they will be held individually responsible and placed in prison.

‘Ecocide attaches itself to what happens upstream and it attaches itself to individuals who make those decisions,’ Higgins says. ‘It acts as a very powerful disincentive - we don't fine people when they murder someone, they actually end up in prison'.

If Higgins has her way, it could result in politicians and company CEOs who approve environmentally damaging projects being hauled in front of a court.

Some say that President Barack Obama's pending decision over the controversial Keystone XL pipeline - which, if built, will transport a highly acidic crude oil known as bitumen from the tar-sands of Alberta, Canada to oil refineries in the Gulf of Mexico - could represent a valid case for ecocide if it is approved. However, Higgins says her ultimate aim is not to see Barack Obama in a courtroom.

‘Although it is possible for heads of state to be prosecuted under Ecocide when it is made law, the primary purpose is a law which creates a 'think before you act' provision,’ Higgins says. ‘The main aim of [the law] is prevention – to create a strong legal burden on governments and businesses to act in a responsible way that prevents future harm to the Earth.’

The pipeline debate

Obama’s decision of whether to approve the 1,700 mile-long Keystone XL pipeline has been mired in controversy from the start. Because it spans international borders, the pipeline's approval requires a ‘Presidential certificate of national interest,’ which means it’s a rare case where Obama can make a decision without relying on an environmentally disinclined Republican Congress.

Proponents of the pipeline maintain that the project will create employment in a shaky and jobless US economy and will bring about a decreased reliance on Middle Eastern Oil.

Opposition to the project, meanwhile, has been fierce. Environmental activists led by 350.org founder Bill McKibben, along with a bevy of high profile figures - including actor Robert Redford, the Dalai Lama, Desmond TuTu and leading NASA scientist James Hansen - have openly challenged the president to follow through on the green platform he was elected on. To date, tens of thousands have protested at the White House and over one thousand people have been arrested for their acts of civil disobedience.

Their list of grievances is long and varied. Oil extracted from tar sands emits significantly more greenhouse gases than lighter, conventional oil at every stage of the production cycle. Activists believe that further investment in this kind of fossil fuel technology commits the US to an unsustainable path and is counter to Obama's claim this would be 'the generation that finally frees America from the tyranny of oil'. They also believe that far more jobs could be created by investing in an economy fueled by alternative energy sources.

Concerns were also raised over the fact that the company contracted by the US State Department to carry out the environmental review of the project had links to Transcanada, the Canadian pipeline company responsible for the project. Furthermore, the proposed route for the pipeline would cross environmentally sensitive terrain including the Ogallala Aquifer in the state of Nebraska, which provides water for citizens in multiple states.

Due to widespread concern over this last claim, activists got a jolt of encouragement early in November when the White House announced their decision to review the route proposed by Transcanada. This announcement means a final decision on the project won't be made until at least 2013. Shortly after the announcement, Transcanada stated its willingness to reroute the pipeline, despite earlier statements that this was not possible.

This delay and additional environmental review, while not an outright ban, is an accomplishment in itself according to some sources.

Bill Snape, the senior counsel for the U.S. Centre for Biological Diversity said that a few months ago, approval of the pipeline was all but a done deal. Transcanada had already invested over one billion dollars into the project and Obama's administration, Snape says, had already demonstrated its allegiance to oil interests.

'There’s this sort of obsequious behaviour that occurs throughout all of the fossil fuel industry sectors which is mind boggling,' Snape told the Ecologist. 'The [Obama] administration tries to distance itself from this but the reality is at this stage in the game - three years into the administration - it's really difficult to distinguish Obama and George W Bush on a lot of these issues. The only reason [approval of this pipeline] became such an issue is because of the incredible grass-roots expression of outrage.'

A double case of ecocide

The official definition of ecocide is 'the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished'.

Higgins says that the extraction of oil from the Athabasca tar sands represents a prime case of ecocide. However, another interpretation is that the Keystone XL pipeline, if built to transport that tar sands oil, constitutes a secondary ecocide. In this case there is no one individual that can be held accountable, but large-scale environmental destruction is still taking the place through greenhouse gas emissions and worsening climate change.

Andrew Leach, an environmental economist and professor at the Alberta School of Business, says including the greenhouse gas emissions potential of the Keystone XL project is not feasible for the administration.

'The State Department environmental impact statement certainly attributed some impact to greenhouse gases. But they didn’t see that impact as being a particular reason to stop the project,' Leach told the Ecologist. 'Greenhouse gases are a global issue so in the context of determining the national interest you would have to say: “Is the US affected negatively by plus or minus 21 megatons of greenhouse gases every year?” I don’t think that there’s a way you can say yes to that.'

Leach added that reductionist arguments that frame the Keystone decision as the green litmus test of Obama's presidency are misguided.

'The ideas of this being “a symbolic project” and the legitimate arguments that people make about the pipeline being “slippery slope” -- there’s really no room within the analysis to include that,' Leach said. 'Nor do I think by building one pipeline you make future pipelines or future developments any more or less attractive.'

Higgins says her ecocide crusade is bigger than any one issue. While she believes that the fight against the tar sands and pipeline is important, she knows a victory in this case won't mean a complete change in tune.

'You end up just fighting battle after battle. If it's not the pipeline, it's fracking over there, it's mining over there', Higgins said. 'Until we actually close the doors to this completely, all we're doing is fighting tiny little battles that actually get lost most of the time. Recognising ecocide is about closing the door to the war.'

Finding perspective on the pipeline

While Leach may characterise the claim of ecocide as excessive and unrealistic, he does concede that the popular support for the project in Alberta is somewhat narrow-minded.

'It's easy for us as Albertans, at the head of the pipeline with commercial stake, to say “Well this is obvious, it's easy, it's absolutely a win.”' Leach said. 'But I think we would look at it very differently if it were a US pipeline company moving oil from Alaska to Washington through our national parks. I expect that Albertans would have a very similar reaction to what Nebraskans are having to Transcanada.'

Snape of the Centre for Biological Diversity said that far from having to adopt the idea of ecocide as a justification for blocking the project, President Obama has a number of practical and more moderate reasons that would warrant its disapproval.

'How we power the country and how we deal with a world economy that seems to be gluttonous for fossil fuels - I recognise are not easy questions, Ones that the US continues to fall down upon almost daily,' said Snape. 'But here we are talking about Nebraska farmers, Native Americans, public lands that are owned by citizens. There are a lot significant issues on the table here and a lot of reasons Obama could reject it not on the basis of a radical green agenda.'

Higgins believes that ultimately, future generations will look back on the adoption of ecocide as a logical step towards a more just world.

'Through history we see that it's always the moral imperative, over time, that trumps the economic imperative,' Higgins said 'We've gotten to the stage now that we are recognising that a lot of this dinosaur technology, this dangerous industrial activity is an ecocide, and is in and of itself wrong. That is the natural progression of law - law always plays catch up with civilisation waking up to something.'

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