Global Law and the Environment

• Publication year: 2021

GLOBAL LAW AND THE ENVIRONMENT

Robert V. Percival(fn*)

Abstract: This Article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important role in influencing corporate behavior by promoting greater informational disclosure and transparency to mobilize informed consumers.

INTRODUCTION. ...............................................................................580

I. WHAT IS GLOBAL ENVIRONMENTAL LAW?......................582

II. EMERGING TRANSNATIONAL ENVIRONMENTAL REGULATORY NORMS.............................................................584

A. The Search for an Elusive Post-Kyoto Global Response to Climate Change................................................................586

B. Control of Emissions from Global Maritime Operations.....592

1. Efforts to Promote Further Reductions in Emissions from Ships...............................................593

2. IMO Consideration of a Global Approach to Reduce Ship Emissions.............................................597

C. Global Consensus on Unreasonably Dangerous Products: Asbestos and Gasoline Lead Additives................................ 599

III. TRANSNATIONAL LIABILITY LITIGATION.........................601

A. Efforts by Foreign Governments to Hold U.S. Tobacco Companies Liable................................................................. 602

B. Litigation Against Chevron for Oil Pollution in Ecuador .... 605

1. Litigation Overview.................................................. 606

2. Chevron's RICO Lawsuit and the Battle over "Crude" Outtakes......................................................608

3. Arbitration Suits Filed by Chevron at the Permanent Court of Arbitration................................610

4. Judicial Recusal and Judgment in the Ecuador Trial Court. ...............................................................611

5. Chevron's Efforts to Block Enforcement of the Ecuadoran Judgment.................................................613

C. Carijano v. Occidental Petroleum Corporation...................616

D. Transnational DBCP Litigation............................................618

E. The Trafigura Litigation.....................................................621

IV. PRIVATE TRANSNATIONAL TRANSPARENCY INITIATIVES . ............................................................................... 624

A. The Equator Principles......................................................... 625

B. Roundtable on Sustainable Palm Oil....................................626

C. NGO-Private Partnerships and Efforts to Promote "Green Supply Chains".....................................................................629

CONCLUSION. ...................................................................................633

INTRODUCTION

As this symposium confirms, the concept of "global law" has sufficiently matured that the term "global law" may no longer need to appear in quotation marks. This change reflects the profound effect globalization is having on the development of law and legal systems throughout the world, particularly in the environmental law field. As global environmental law develops, traditional distinctions between domestic and international law, and private and public law, are blurring.

This Article discusses the concept of global environmental law and then explores three areas in which globalization is profoundly affecting its development: adoption of transnational regulatory norms, transnational litigation, and transparency initiatives. Part I briefly explains the phrase "global environmental law" and its growing use. Part II discusses how countries increasingly borrow law and regulatory innovations from one another and adopt their own approaches to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace, at least in part because transnational regulatory norms to protect the environment are no longer developed primarily in a "top down" manner through multilateral consensus agreements. As this Part explains, this development is reflected in the outcomes of the 2009 Copenhagen and 2010 Cancun climate change negotiations that failed to produce a long sought-after global agreement to control emissions of greenhouse gases (GHGs). The Part also explores the regional movement to create global norms to regulate emissions of air pollutants from international maritime operations. It then discusses how countries are increasingly learning from one another and borrowing regulatory standards. This advancement is illustrated by the global growth of bans on unreasonably dangerous products, such as asbestos and gasoline lead additives. As countries learn from the experience of others, regulatory innovations with diffuse origins are spreading more rapidly around the globe.

Part III examines the growth of transnational liability litigation as another source of emerging global law, as parties seek to hold companies liable for environmental harm they have caused outside their home countries. These lawsuits are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. This Part focuses primarily on the rapidly metastasizing global litigation between residents of the oil-polluted Oriente region of Ecuador and the Chevron Corporation. In February 2011, this litigation, which initially had been filed in the United States during the early 1990s, ultimately produced the largest environmental judgment in history-an $18 billion judgment against Chevron issued by a court in Ecuador. This Part also examines litigation by workers in Central American banana plantations who allegedly were rendered sterile by exposure to Dibromo-3-Chloropropane (DBCP), a pesticide banned in the United States because of its reproductive toxicity, and litigation against the British trading firm, Trafigura, for dumping toxic waste on a beach in the Cote d'Ivoire. Each of these cases reflects a new global legal landscape where poor plaintiffs from developing countries are seeking to hold accountable wealthy and powerful corporations that previously would be immune from challenge.

Part IV reviews emerging quasi-public/quasi-private global transparency and disclosure initiatives championed by nongovernmental organizations (NGOs) and private enterprises in collaboration with regulatory authorities. This Part explores how NGOs are playing an increasingly important role in influencing corporate behavior by promoting greater informational disclosure and transparency to mobilize informed consumers. These include the Equator Principles governing funding of development projects by multinational banks, the Roundtable on Sustainable Palm Oil, and the Sustainable Apparel Coalition. These initiatives, as well as the Dodd-Frank Wall Street Financial Reform legislation's disclosure provisions concerning conflict minerals and payments to foreign governments, are promoting a new corporate ethic for assessing the environmental implications of development projects and "greening" the supply chains of multinational enterprises.

I. WHAT IS GLOBAL ENVIRONMENTAL LAW?

In my previous scholarship I explored the concept of global environmental law and the forces contributing to its emergence. (fn1) In this work I maintain that global environmental law is a useful concept to describe how environmental law is developing throughout the world without seeking rigidly to separate the field into domestic and international, or public and private environmental law.

"Global law" and "global environmental law" now have become part of the popular lexicon. This assertion is illustrated by Figures I and II that display the relative frequency with which these terms appeared in English-language books from 1940 to 2008, as revealed through use of Google's Ngram research tool.(fn2) These figures demonstrate that the frequency with which both terms were used surged during the 1990s.

Figure I. Frequency of the Appearance of the Term "Global ENVIRONMLENTAL law" in English Language Books From 1940 to 2008(fn3)

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Figure II. Frequency of the Appearance of the Term "Global Law" in English Language Books from 1940 to 2008(fn4)

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The use of the term "global environmental law" appears to better capture the complex realities of current developments in the environmental law field, because traditional disciplinary distinctions between domestic and international law, and between private and public law, continue to erode, as demonstrated below. Among the factors contributing to this...