27: Corporate social irresponsibility and systematic lack of environmental liability
Open access

The triple bottom line and CSR have gained prominence among private and public corporations. Often, this public-facing discourse hides (and facilitates) practices that explicitly contradict reported aims to consider equally social, environmental and economic values in the firms' operations. Examples include enclosures of land valuable for local communities or legal action, often with the main objective of chilling environmental movements by forcing actors to defend themselves from lawsuits. Corporations such as Chevron thus shift costs and escape liabilities. These patterns are found across companies, commodities and geographies. This chapter illustrates such practices with examples from industries extracting oil, gas, minerals and plantation crops. The root causes of such conflicts are the large circularity gap of the industrial economy and ecologically unequal trade. Informing companies' rankings with environmental injustices and violent behaviour can strengthen curricula at business schools.

INTRODUCTION: POLITICAL ECOLOGY AND BUSINESS ECOLOGICAL ECONOMICS

In this book, we elicit the names and practices of powerful corporations (private and public) (Figure 27.1) that in alliance with states enter into conflict with local communities in their extractivist fever for getting hold of particular commodities (Figure 27.2) and obtaining places for waste disposal. Thus, the search for new amounts of materials and energy at the extraction frontiers gives rise to conflicts on the extraction, transport and burning of coal, oil and gas and other materials and also on the excessive production of carbon dioxide. Such conflicts often display incommensurable plural values. Some political scientists would point to other causes of conflicts such as defective governance, and lack of participatory institutions of decision making where companies, the state administration, and the local stakeholders could come together and diplomatically reach mutually beneficial agreements. Economists would perhaps say that mechanisms of monetary compensation for the negative externalities are lacking, and therefore the local populations are reluctant to accept the investment projects. My own perspective on the causes of the conflicts is more ecological and physical, based on the large “circularity gap” of the industrial economy and on the existence of ecologically unequal trade.

One hundred most frequent companies in the EJAtlas conflicts (3,800 entries).
Figure 27.1

One hundred most frequent companies in the EJAtlas conflicts (3,800 entries)

Frequency of commodities in the EJAtlas; several might appear in the same conflict. Many other commodities (e.g. nickel, fertilizers, cobalt, graphite, niobium, rutile, zircon, palladium) are included in other categories (e.g. eucalyptus under cellulose) or grouped into a category of Others. A word search in the EJAtlas finds them easily.
Figure 27.2

Frequency of commodities in the EJAtlas; several might appear in the same conflict. Many other commodities (e.g. nickel, fertilizers, cobalt, graphite, niobium, rutile, zircon, palladium) are included in other categories (e.g. eucalyptus under cellulose) or grouped into a category of Others. A word search in the EJAtlas finds them easily

Ecological economics treats the economy as a subsystem of Earth's larger ecosystems, and thereby contradicts the concept of CSR (Corporate Social Responsibility) which draws on the notion of the triple bottom line. The “bottom line” refers to the profit-or-loss account in a firm's accounts. By extending the accounts to social and environmental issues, the socio-environmental damages are placed at the same level as the economic gains. This contested notion of triple bottom line considers human-made capital and “natural capital” as commensurate and exchangeable in view of achieving at the same time economic and socio-environmental sustainability (Busch et al. 2016; Elkington 1997). But as a rule, this equivalent compensation does not happen. CSR has had enormous rhetorical success in business management but we empirically accept instead K.W. Kapp's definition of capitalism (Kapp 1950) as a cost-shifting system, where costs are not always economic costs. CSR has for the most part remained voluntary (Tamvada 2020), de-emphasizing liability. Companies use CSR as a philanthropic instrument that allows “responsible” business to go beyond norm compliance, avoiding administrative sanctions or court cases (Marens 2013). CSR excludes monitoring tools for the operation of businesses such as shareholder activism, stricter regulation, sanctions, boycotts, disinvestment and other forms of protests like those provided by Extinction Rebellion or grassroots LFFU movements (Newell 2005; Martinez-Alier 2001, 2021; Ginanjar and Mubarrok 2020).

Banerjee (2017) published critical analyses of Corporate Social Responsibility as a strategy enabling multinational corporations to exercise power in the global political economy. p. 606 p. 607Social movements associated with concepts and ideas of ecological economics such as the Ecological Debt, Ecologically Unequal Trade, Environmental and Climate Justice, Post-Growth and “Degrowth in Practice” know the human rights violations and environmental damage caused by business corporations. We focus on the role of private or public corporations in the international division of labour and nature.p. 608

Top Business Corporations and Main Commodities in the EJAtlas

As a critique of CSR, and at a much lower publicity level, the concept of ‘Corporate Social Irresponsibility’ (CSIR) has been intermittently discussed for over 45 years (e.g. Armstrong 1977; Chatterji and Listokin 2007; Lange and Washburn 2012) and new contributions are only just emerging (e.g. Clark, Riera, and Iborra 2021). What is the role, then, of environmental justice conflicts in revealing CSIR? Can we compare the behaviour of transnational extractivist firms acting in different continents? Are notions of thermodynamics taught in business schools? Is Georgescu-Roegen's flow-fund model used for a critique of mining (Silva-Macher and Farrell 2014)? Is the EJAtlas relevant for the rating agencies pretending to guide institutional or individual shareholders into socially and environmentally sound investments or for disinvestment campaigns?

Figures 27.1 and 27.2 give the most frequent corporations and commodities appearing in the EJAtlas opening up new vistas in business studies. In the list of corporations, the subsidiaries are listed under the name of the parent company. Companies change names from time to time. The field of CSIR is so vast that this chapter focuses only on two companies: Total and Chevron.

We could also look, for instance, at Wilmar engaged in the acquisition of land for palm oil plantations and therefore generating widespread resistance from communities in SE Asia, West Africa and Latin America. Yet, while such protests have received scholarly and activist attention, the companies’ strategies are still rarely studied. Building on detailed documentation on many conflicts between palm oil companies and rural communities in Indonesia beyond those in the EJAtlas, Berenschot et al. (2022) show that companies are contentious actors engaging in strategic efforts to realize their claims, mobilizing a repertoire of actions involving the co-optation of local leaders, connections with local authorities, the suppression of community protests, the criminalization of and violence against protest leaders. Interestingly, companies adopting the RSPO's (Roundtable on Sustainable Palm Oil) code of conduct are not less likely to employ all these tactics.

This chapter is then a sequel to articles published in 2021 by the EJAtlas team on two other companies included in Figure 27.1, the Vale mining company and Salini-Impregilo (WeBuild). Both articles (summarized below) build on the concept of CSIR. This chapter outlines monographic studies of Chevron and TotalEnergies (Total, for short). Such research could also focus for instance on Rio Tinto, Glencore, Sinohydro, Anglo American, AngloGold Ashanti and Shell, and so many other extractivist companies on topics such as cost-shifting, lack of environmental liability, corporate accountability, corporate impunity, environmental crimes, corporate violence, SLAPPs and SLO, and also shareholder activism and environmental justice movements. These evidence-based case-studies could be taught in business schools.

Vale and Salini-Impregilo

In Chapter 14, we saw how the constellation between bauxite mining, aluminium smelting and hydropower was remarkably linked in Ghana to Nkrumah's search for “development”; it was a central piece of an industrial nationalism paradoxically driven by foreign corporations. The historical intervention of the multinational Italian company Salini- Impregilo in the Akosombo dam motivated EJAtlas authors into a new line of work. Antonio Bontempi et al. p. 609traced and evaluated the long history of Impregilo-Salini showing that controversies around large-scale development projects may be analyzed through the lenses of business ethics and CSIR. They empirically confront the CSR narratives and strategies of WeBuild (formerly known as Salini-Impregilo). Based on the methods of the EJAtlas, Bontempi et al. collected evidence from NGOs, EJOs, journalists, scholars and community leaders on socio-environmental injustices and controversies surrounding 23 hydropower schemes built by this corporation throughout the last century. As a counter-reporting exercise, they coded critiques of the company's behaviour looking at their mismatch with narratives coming from the company. The CSR narratives coming from this corporation leave aside many realities. CSR reports are not reliable. In this regard, political ecology is better equipped to understand the actual practices of the WeBuild company than mainstream business studies. (Bontempi et al. 2021)

The Vale mining company will be familiar to anyone who knows Brazil or knows the iron ore trade. Our article (Saes et al. 2021) explains that after the Vale's tailings dam failure in Brumadinho (Minas Gerais) in early 2019 (Chapter 19), a group of researchers and activists from around the world produced a thematic map in the EJAtlas platform including 30 cases of environmental conflicts in which Vale had a prominent role. The company's actual performance contrasts with its record in Sustainability Indices. We explored the contradiction between CSR standards, discourses and practices produced by the company and its scores in risk analysis, compared to the socio-environmental conflicts in its reality (tailings dam failures, displacement of local populations, deaths of environmental defenders). Vale considered its actions both responsible and exemplary, aiming this information to its actual and future shareholders and to regulatory authorities. In fact, the company was already practising CSIR before 2019 (Saes et al. 2021).

SLAPPs by Vincent Bolloré and Others 1

There are cases where companies also engage in so-called SLAPPs. A “slapp suit” is (in US parlance) a tool in the management toolkit, a lawsuit intended to intimidate and silence critics of a firm by burdening them with the cost of a legal defence until they abandon their criticism or opposition. Such “strategic lawsuits against public participation” burden lawyers, journalists, NGOs and activists with the costs of legal defence. They produce a “chilling effect” on environmental defenders. Chapter 23 includes the case “Celtejo's SLAPP against Arlindo Marques ‒ Celulose do Tejo, SA”, in which the Altri Group (a Portuguese tree-plantation company) sued an environmentalist for €250,000 for his allegation that pollution levels in the Tejo River were unacceptable. One or two other cases have appeared in previous chapters. Another famous one is related to the SOCAPALM plantations in Cameroon, established in 1968 by the state on confiscated land customarily belonging to Bagyeli and Bantu populations. In 2000, the plantations were privatized and now they belong to the Luxembourg holding company Socfin linked to the Bolloré group, a French conglomerate led by Vincent Bolloré, one of the key players of “Françafrique”, a word used to denote France's sphere of influence over its former colonies in Africa involving corrupt and clandestine practices.

The expansion and intensification of the plantations has continued since its privatization at the cost of the adjacent ecosystems on which local populations depend. The agrochemicals used in the monocultures and the residues of its Kienké processing plant have polluted nearby rivers. The local populations’ traditional way of life has become difficult. SOCAPALM brings its workforce from other parts of Cameroon; allegedly hundreds of subcontracted workers p. 610worked six days a week without social security coverage or adequate protection, for about €1.6 per day. Also, SOCAPALM vigilantes were hired to prevent local villagers from entering the plantations. This situation led to a serious clash with villagers in 2003. In retaliation, the army came to support the guards and randomly grabbed villagers and detained them for weeks.

The peasant-supporting NGO GRAIN was worried about the impact of rubber and oil palm plantations in Cameroon. In January 2018, GRAIN announced:

We will not be silenced by Bolloré's SLAPP lawsuits! This Thursday 25 January a lawsuit was opened against three newspapers (Mediapart, L’Observateur and Le Point) and two NGOs (Sherpa and ReAct), who are accused of defamation by the Luxembourgian holding Socfin and its Cameroonian subsidiary Socapalm […]. These companies have strong links to the Bolloré group, and Vincent Bolloré himself serves on their board of directors. […] Since 2009, no less than 20 defamation lawsuits have been launched by Bolloré or Socfin in France and elsewhere against articles, audio-visual reports, reports by NGOs and even a book […]. More than 40 journalists, lawyers, photographers, NGO leaders and media directors have been targeted by Bolloré and its partners.

The wave of lawsuits started in 2009 when, following the broadcast on France Inter of a programme presenting a critical perspective on the SOCAPALM, the Bolloré group launched a lawsuit against Radio France and journalist Benoît Collombat who reported on several sectors of activity of the Bolloré group in Cameroon. The SOCAPALM component was finally not considered defamatory by the Tribunal de Grande Instance de Paris.

Another instance in the EJAtlas is the case “DuPont Contamination in Parkersburg, West Virginia and Ohio, USA” which inspired the film Dark Waters, or the case “Toxic Waste Incinerator in East Liverpool, Ohio, USA” describing how the firm Waste Technologies Industries in 1997 slapped a $34-million court case against Terri Swearingen (who later got a Goldman Prize) and 32 other local citizens.

In March 2019 in KwaZulu Natal, at the heart of the coal extracting country in South Africa, the activist Tshabalala led farmers in a protest against the company Ikwezi for mining near graves and fencing them off so that community members could not visit them. The company also ran over livestock with their machinery. The protesters demanded that the mine should be shut down until court conditions were fulfilled. Police were present but the protest remained peaceful. In retaliation to the protest, on 3 April 2019, Tshabalala along with 22 other villagers was subjected to a SLAPP accusing them of intimidation and assault of an Ikwezi mine manager. However, on 22 July all charges against Tshabalala and the other protesters were withdrawn, marking a victory for environmental activists and the community.

In April 2012, Formosa Plastics filed a US$ 1.3 million civil suit for a tort claim and a criminal suit for defamation against Ben-Jei Tsuang, a scientist at National Chung Hsing University, Taiwan, for presenting evidence of increased cancer risk in the vicinity of the Formosa Plastic Group hydrocarbon-processing facility in Mailiao. More than 1,000 academics complained. In September 2013, judges at Taipei District Court ruled against Formosa Plastics and announced that they would dismiss the criminal suit. After the decision, Tsuang held a press conference at NCHU and said the outcome was a milestone for academic freedom in Taiwan. “However, the litigation has already caused some chilling effects: my students dare not mention the polluting corporations by name even when they have already been fined by the government for violating pollution-control regulations”. 2 p. 611

As this book was finished, we got this petition of 14 April 2023 through ICCA channels (Indigenous and Community Conserved Areas):

SAVE Rivers, an Indigenous organisation from Sarawak Malaysia, is being sued by a logging company Samling for 5 million Ringgit (around EUR 1 million) and needs your solidarity. The SLAPP against SAVE Rivers is going for trial in May 2023 at the Miri High Court in Sarawak. The company claims that SAVE Rivers’ statements around the lack of consultation of local communities in the certification process for sustainability (Malaysian Timber Certification Scheme MTCS endorsed by PEFC International) were defamatory. SAVE Rivers well documented their statements and voiced out community concerns.

The Ambivalence of SLO

Similarly, there is information in the EJAtlas on another instrument in the extractive industries’ toolkit, the “social licence to operate” (SLO) (Prno and Slocombe 2012; Gehman et al. 2017), meaning communities’ acceptance of ongoing projects. This belongs to the “soft” methods in the companies’ armoury. SLO is used by companies as a permit to allow mining to proceed but sometimes lack of social licence has been used by opponents as an argument to prevent mining. However, harmonious “company towns” end up producing bleak contaminated landscapes when the mineral runs out while short-term “acceptance” is quite often obtained by violence and fear.

DISCOVER TOTAL, A FRENCH COMPANY 3

The following section focuses on one firm with conspicuous history. Total is increasingly active in natural gas, particularly LNG. On 20 May 2021, several EJOs demonstrated in Paris in front of the Ministry of Economy and Finance against a project by Total to extract and build a plant for LNG in the Arctic financed with €700 million of public money. The protest took the form of large ice sculptures that slowly melted down. This was noticed by the media though nobody interpreted yet that the melting ice symbolized not only climate change but the evaporation of the friendship between Presidents Macron, Putin and Total's CEO Patrick Pouyanné with the Ukraine war in 2022. 4 Total deserves to be a case study for research and teaching on business management (Llavero-Pasquina, 2023) because of its role in Cabo Delgado (Mozambique), in Uganda and Tanzania, in North Africa, in Myanmar in the Yadana pipeline, in Bolivia and Kazakhstan and in the Yamal and Gydan peninsulas in the Russian Arctic. In the following sections we consider Total's involvement in environmental conflicts beyond those which have already appeared in previous chapters on the Bemolanga tar sands conflict in Madagascar and the domestic palm oil conflict in Marseille (Chapter 21), and also in Cabo Delgado as explained in 2022 by Joseph Hanlon (quoted in Chapter 13; see also Chapter 16):

The civil war in northern Mozambique is a classic case of resource curse. The discovery in Cabo Delgado province of rubies and then one of the largest natural gas reserves in Africa fails to bring prosperity to most people. The resources were grabbed by the elites of the ruling party Frelimo in alliance with transnational corporations. In 2017, marginalised groups launched a local civil war which has now killed more than 3000 people and delayed the development of the gas. The p. 612Mozambique government has brought in 2000 Rwandan troops to defeat its own peasants and allow Total Energies to resume its $30 bn gas development. 5

Total followed Exxon's lead in spreading doubt about the link between fossil fuels and climate change (Bonneuil, Choquet, and Franta 2021). It often operates together as a partner of other firms, including Chevron, and it gets closely involved with governments which are far from democratic. It also draws on contacts with the French government and establishment. Is Total concerned about its reputation in the CSR and Sustainability indices which are supposed to guide investors? The company claims on its webpage (2021) that

At Total Energies, we aim to set an example in this area [social and environmental commitments]. Our CSR performance is assessed by two of the leading rating agencies in this area […]: FTSE4Good (London) and the Dow Jones Sustainability World Index (New York). Discover the principles, commitments and initiatives that make us a major creating sustainable value, both in financial terms and at the environmental and social level.

In several of the cases below, gas extraction is given in boe/d, meaning barrels of oil equivalent per day. One million boe/d is roughly equal to 50 million tons per year.

Total in the Russian Arctic: LNG in the Yamal and Gydan Peninsulas

Total's investments in the Arctic are troubling. They imply close involvement in Russian geopolitics. The Arctic cases below complement those in the section “Yamal peninsula, Gydan, Taymir: natural gas and coal from the Russian Arctic” in Chapter 7. On 24 May 2018, in Paris and in the presence of the President of the Russian Federation, Vladimir Putin, and the President of the French Republic, Emmanuel Macron, Total signed an agreement with Novatek outlining the terms upon which Total shall acquire a direct interest in Arctic LNG 2, a giant liquefied natural gas project on the Gydan Peninsula in the north of Siberia.

Total has a direct 10 per cent interest alongside Novatek (60 per cent), CNOOC (10 per cent), CNPC (10 per cent) and a Mitsui-Jogmec consortium, Japan Arctic LNG (10 per cent). Total also owns an 11.6 per cent indirect participation in the project through its 19.4 per cent stake in Novatek, thus an aggregated economic interest of 21.6 per cent. Novatek and Total also agreed that Total will have the opportunity to acquire a 10 to 15 per cent direct interest in Novatek's future LNG projects in Yamal and Gydan. “This project fits into our strategic partnership with Novatek and also with our sustained commitment to contribute to developing the vast gas resources in Russia's far north which will primarily be destined for the strongly growing Asian market”, said Patrick Pouyanné. With a production capacity of approximately 19.8 million tons per year (Mt/year), or 535,000 boe/d, Arctic LNG 2 will unlock over 7 billion boe of hydrocarbons’ resources in the onshore Utrennie gas and condensate field. The project will involve the installation of three gravity-based structures in the Gulf of Ob on which the three liquefaction trains of 6.6 Mt/year capacity each will be installed.

However, Gydan peninsula is home to Indigenous Nenets communities. Opposite to the Yamal peninsula (Figure 27.3), Arctic LNG 2 project means an estimated investment of $25.5 billion and was expected to export its first LNG cargo by 2023. “Arctic LNG 2 […] will deliver competitive LNG to the markets in four years’ time. Arctic LNG 2 adds to our growing portfolio of competitive LNG developments based on giant low-cost resources”, said Patrick p. 613Pouyanné. Close proximity to Yamal LNG will allow Arctic LNG 2 to leverage synergies with existing infrastructure and logistics facilities. The Yamal LNG is owned by JSC Yamal LNG. Novatek owns a 50.1 per cent stake in this company while Total S.A. and CNPC own 20 per cent each. The LNG carriers will be able to use the Northern Sea Route, the trans-shipment terminal in Kamchatka for cargoes destined for Asia and the trans-shipment terminal close to Murmansk for cargoes destined for Europe. Total's triumphal announcements asserted that it is the world's second-largest private global LNG player, with an overall portfolio of around 40 Mtpa by 2020 and a worldwide market share of 10 per cent. One year before, in 2019, Total claimed that it had sold 34 Mt of LNG through its stakes in liquefaction plants located on the four continents.

Yamal and Gydian peninsulas with Total's investment with other companies (Arielle Landau).
Figure 27.3

Yamal and Gydan peninsulas with Total's investment with other companies

Source:  Arielle Landau

Total's and Chevron's Friendship with Myanmar's Military Juntas 6

In 2021, after the military took over again in Myanmar bringing to an end a period of democratically elected government, there was a petition from the opposition to Total and Chevron to stop extraction in the Yadana fields, and thereby stop payment to the Junta. This was the response from Total's CEO:p. 614

Patrick Pouyanné said at a shareholder meeting in France that the only way to fully stop all revenues flowing to the junta would be to stop production at the Yadana gas fields, which are operated by the French company and supply power plants in Thailand and Myanmar domestic market. Gas produced by the Yadana Project is used to supply electricity for approximately half the population of Yangon, Myanmar's largest city, and also for people in Thailand. Effectively turning off the power […] – in the middle of a state of emergency and a pandemic – risks creating even more hardship.

The opposition asked to stop payments to the Junta, not to stop the gas.

Memories arise of the conflict on the Yadana field and pipeline in the 1990s. The Yadana gas field in the Andaman Sea is located about 60 km offshore and is operated by Total S.A., with Chevron Corporation as its junior partner along with PTTEP, a Thai state-owned oil and gas company, and Myanmar Oil and Gas Enterprise (MOGE), a state-owned enterprise of Myanmar. Since the project began in the early 1990s, it was marred by widespread human rights abuses committed by pipeline security forces on behalf of the companies, including forced labour, land confiscation, forced relocation, rape, torture and murder. The project consortium asked the government to provide security for the project site, while a dozen local villages were relocated along the corridor of the pipeline area. With the presence of more government troops, the local population was also forced to work without compensation. Many villagers fled to Thailand and took refuge in camps along the border, whereas many more were internally displaced within Myanmar. By 1994, international human rights and environmental groups started to investigate the abuses and damage caused by the project. Both Total and Chevron managed to escape universal jurisdiction for crimes against human rights in several courts in France, Belgium and the United States. Both had a role in financing the military regime in Myanmar, profiting from human rights abuses on the Yadana natural gas project. This became public through the ground-breaking human rights lawsuit Doe vs. Unocal (Union Oil Company of California). In October 1996, 15 members of the Karen minority group, alleging that they or their family members had been subjected to relocation, forced labour, torture, murder and rape, filed a class action suit against Unocal in a US federal court. The suit argued that Unocal should be held responsible for the injuries inflicted on hundreds of Karen by the military because the military's activities were conducted on behalf of the pipeline project. The suit in Federal court was based on the Federal 1789 Alien Tort Statute (ATCA) which authorized civil suits in the US courts for violations of internationally recognized human rights. In 2005, Unocal merged its upstream petroleum business with Chevron Corporation and became a wholly owned subsidiary.

In April 2002, four Myanmar refugees filed a lawsuit against TotalFinaElf (now Total), Thierry Desmarest (former chairman of Total) and Hervé Madeo (the former director of Total's Myanmar operations) in Brussels Magistrates’ Tribunal pursuant to a 1993 Belgian law of universal jurisdiction. The plaintiffs alleged that Total and its managers had been complicit in crimes against humanity committed by the Myanmar military junta in the course of the construction and operation of the Yadana gas pipeline. The plaintiffs alleged that Total provided moral and financial support to the Myanmar military government with full knowledge that it resulted in human rights abuses. Environmental activists were also concerned with the potential impact of the pipeline construction in Taninserim region, which has one of the largest blocks of intact rainforests in Southeast Asia. On the other hand, the offshore portion of the pipeline in the Andaman Sea also put the environment at risk. No independent EIA of the project was conducted. However, the Belgian authorities declared the case closed p. 615in March 2008, dropping the case against Total. In 2010, EarthRights International released a new report that described how the oil companies Total (France), Chevron (US) and PTTEP (Thailand) made their project the largest source of revenue for the country's repressive dictatorship. Are Total and Chevron in 2021 doing it again?

Total in Uganda: EACOP 7

In East Africa, Total has at stake two of the biggest capital projects in the continent: the LNG (liquefied natural gas) development in Mozambique, and a 1,445-km pipeline from Lake Albert in Uganda to Tanga in Tanzania, for oil exports. There is opposition to the Tilenga and EACOP projects because of human rights and environmental concerns. Tanzania and Uganda had signed a $3.5-billion deal to build the pipeline – sparking a wave of outcry from environmental groups. There are basically two Ugandan projects: to exploit oil around Lake Albert in Uganda (1.7 billion barrels), and to ship it through a pipeline to the coast in Tanzania (Figure 27.4). This could fuel an LFFU movement (Chapter 16).

The Uganda-Tanzania oil pipeline project (Wikimedia Commons).
Figure 27.4

The Uganda-Tanzania oil pipeline project

Source:  Wikimedia Commons

The world frontier of oil extraction as well as that of natural gas continues to advance. Oil or gas cannot burn twice. Therefore, new supplies are required despite local and global concerns. In Uganda, Total, China's CNOOC and British firm Tullow Oil teamed up to plan the world's longest heated pipeline, expected to carry nearly 200,000 barrels of oil per day, 10 million tons per year. In September 2020, Tanzanian President John Magufuli signed the deal with his Ugandan counterpart Yoweri Museveni. China's CNOOC and French TotalEnergies, alongside the Uganda National Oil Company and the Tanzania Petroleum Development Cooperation, push ahead with the pipeline project.

Human rights group FIDH and NGO Oxfam published on 10 September 2020 two reports expressing concern over the project. “Estimates suggest that at least 12,000 families will lose part or all of their land”. Sacha Feierabend, a consultant at FIDH, told FRANCE 24 that: “Companies go door-to-door and buy land, promising to resettle the inhabitants in new villages”. However, such “compensation” looked unlikely to satisfy the local inhabitants. “For example, in some Ugandan villages where families have already been resettled, clans have been mixed and are now living on top of each other. Meanwhile certain crucial components of the common good, such as wells and pasture land shared with neighbours, cannot be moved”. Another concern is that air and water quality could be threatened. “Oil exploration activities carried out a few years ago in Uganda have already made access to safe drinking water more complicated”, Feierabend noted. “A leak could have disastrous consequences on the lakes and rivers in the local area”, she continued. The threat is all the more serious as the project envisages 419 oil wells being drilled near Lake Albert, “an exceptional ecosystem which allows thousands of fishermen to live off its resources”.

The French branch of Friends of the Earth, together with Ugandan associations AFIEGO, Cred, Nape and Navoda filed a complaint in 2020 against the French company. In particular, they accused Total of breaking the law by expropriating land before compensating its inhabitants. Ugandan opponents are criminalized by the government. AFIEGO has been the target of intimidation from the Ugandan authorities. As reported in October 2021, it is estimated that during just the construction phase of EACOP, Uganda and Tanzania will see an increase of over 60 per cent in foreign direct investment.

On 16 March 2022,p. 616

Ugandan environmental activists hit out at a mega oil project by TotalEnergies in East Africa. Four leading youth activists were received by the French National Assembly to pressure the government to take a stance on the project. Vanessa Nakate (2021)… was among them. She had come to France to ask the government to make clear what its position is on the East African Crude Oil Pipeline (EACOP).

Western Sahara Geopolitics and Total 8

We now travel across Africa where Total is involved in another conflict: the Anzarane Offshore Western Sahara Oil Exploitation, where geopolitical injustice is compounded with p. 617environmental justice. Petroleum resources are exploited in Western Sahara by multinational companies under the approval of the Moroccan government. In 2001, Morocco´s Office National des Hydrocarbures et des Mines (ONHYM) granted two licences to exploit petroleum in Western Sahara to TotalFinaElf (France) and Kosmos Energy (USA).

On 7 February 2014, Total renewed its Moroccan contract to explore for oil off the shores of Western Sahara. However, “shareholder activism” led the Norwegian pension fund KLP to withdraw from the company, citing anxiety around “breaches of fundamental ethical norms”. Sustained protest by Sahrawi activists also pushed Norwegian contractor Aker Solutions to pull out from another US-led offshore drilling project. On 22 December 2015, Total announced its withdrawal from Western Sahara until the UN delivered an outcome on the still pending decolonization case. While this can be declared a success, there is still potential for the project to restart again. Alternatively, Kosmos Energy (US) remains active in the region and other oil companies have been granted licences for oil exploration and are still enjoying them: Kerr-McGee (USA), Longreach Oil and Gas Ventures (UK), Cairn Energy (UK), San León Marruecos (Ireland) and ONHYM (Morocco).

The background to Total's involvement in the Anzarane oil exploration project is as follows. As stated in Total's Code of Conduct, “human rights standards are one of our three priority business principles”. When the company signed a reconnaissance contract with the Moroccan government in October 2001, the legal department of the UN Security Council investigated whether the contract stood in line with international law governing the rights of peoples in disputed territories. In January 2004, UN legal counsel concluded that further exploration or exploitation that is not in accordance with the wishes of the people of Western Sahara would be in violation of international law. Total´s operations ended in November 2004. Yet, the relationship was reaffirmed in December 2011, when Total S.A. signed a new reconnaissance agreement with the Moroccan government for the biggest oil block located in the southern waters of Western Sahara. In 2012, the licence was renewed by Total S.A. for a block called Anzarane Offshore. The Sahrawi Arab Democratic Republic (SADR) issued a statement in June 2014 that specified the lack of involvement of the Sahrawi people in the decisions being made about their resources.

In December 2015, Total S.A. announced that it would not prolong its reconnaissance contract, as the initial results were not convincing. This decision came on the heels of the denial by the Court of Justice for the EU of an EU-Morocco trade agreement due to its inclusion of Western Sahara. Morocco has been accused of failing to respect the UN Charter in regard to its dealings with Western Sahara, which it illegally annexed since 1975. Similar episodes occur also with agreements on fishing rights with Morocco, declared internationally illegal because of lack of consent from the Sahrawi.

According to the UN Legal Opinion, any exploration or exploitation of Western Sahara's mineral resources is considered to be illegal if the Sahrawi people have not previously provided signed consent. Yet, in Total's and Kosmos’ cases, this consent was never obtained. Massive protests, outcries and countless written responses have dominated the conflict, and these organized movements have also garnered support from international EJOs and bodies such as the African Union. On 6 December 2012, officials of the SADR sent letters to both Total and the United Nations demanding the immediate cessation of all exploratory oil activities. In this same month, French EJOs demanded that Total leave Western Sahara. On 7 February 2013, 26 non-governmental organizations made of SADR civil society groups and refugee groups in France published a declaration demanding that Total leave Western Sahara. The African Union issued a Legal Opinion on 14 October 2015 that ongoing exploration and exploitation of Western Sahara´s natural resources are a stark violation of international law.p. 618

Total in Algeria: the Ain Salah's Uprising 9

The French company Total is deeply immersed in the hydrocarbon politics of Algeria dating back to 1952. In Algeria the company has been involved in some of the strong conflicts on gas fracking with its partner Sonatrach (Chapter 20). The best known was the uprising in the oasis town of Ain Salah, with violent confrontations between police and up to 40,000 protestors. Fracking commenced in the area in 2013, and a mass movement against the practice rapidly unfolded. On New Year's Eve 2015, four days after fracking operations were announced near the city, Ain Salah stopped functioning in a conventional way. Commerce and administration combined business as usual with an occupation of the main square, along with several rallies. In December 2013, the National Oil Corporation had announced its intentions to bolster the economy by allowing overseas corporations to commence fracking operations.

On 24 February 2015, Ain Salah's main square was renamed Place Somoud, or Resistance Square, to celebrate the 44th Anniversary of the nationalization of hydrocarbons by former-President Boumediene. The protesters had two main concerns: preventing pollution to the aquifer that sustains them and keeping out Total and Halliburton. Ain Salah's location as a desert oasis relies on a sensitive aquifer system that stretches from Southern Algeria to Tunisia and Libya and overlaps with at least four intensive shale gas fields. And the struggle goes beyond Ain Salah: 24 February saw mass demonstrations from the town of Ouargla to Algiers.

Ain Salah protestors reacted to the oppressive measures by rallying at the Gendarme station, and police responded with large quantities of tear gas and rubber bullets. The police violence persisted into Resistance Square, where the rally site was destroyed and tents burned; over the next few days hundreds of people were arrested, with numerous injuries. Finally, as police attempted to seal off and lay siege to the city, protesters began throwing stones. Police retreated; a police barracks, a residence of the mayor, together with several police vehicles, were set ablaze. The army was called in. This is the second time serious unrest has been caused in Ain Salah over gas companies ‒ the first having occurred in 2002.

Total also in Nigeria 10

In the sad oil and gas region of the Niger Delta, Total has been involved in conflicts together with its partner Chevron. The Italian Agip is also in trouble while the main culprit has been Shell.

Thus, in the River State the Egi people are part of Ogba kingdom in Ogba, Egbema and Ndoni Local Government Area. The clan is made up of about 17 communities and Total Exploration and Production Nigeria Ltd., formerly known as Elf, is the main oil company operating in the area. One event recorded in the EJAtlas was a gas explosion on 20 March 2012, in the Egiland cluster of wells. A few days later, there were multiple explosions, devastating community farmlands of about 45 ha. Hunger faced the communities as the explosions continued for days, unabated. The village hosts Total's flow station and gas plant with over 80 oil wells that grabbed community lands, denying their rights to adequate land for their survival. The oil is collected by pipelines in the flow station and the extraction gas is flared. The continuing ‘eruptions’ contaminated underground water and nearby surface water in streams. The four communities most badly affected included Egita, Obiyebe, Ogbogu and Obite in Egiland. The communities demanded clean-up and remediation of their land, proper investigation to ascertain the cause and the impacts of the gas explosion on their health and p. 619environmental space, and adequate compensation. Indeed, this has been the usual human and environmental landscape of the Niger Delta for many decades, and Total has its share of responsibility.

Total in the Kashagan Oil Field, Kazakhstan 11

Kazakhstan is a net energy exporter with large oil, gas, coal and uranium reserves (Chapter 20). It is the world's ninth-largest crude oil exporter. Chevron and Total are very active in oil and gas exploration and extraction operating the North Caspian licence, which encompasses the Kashagan field ‒ one of the world's biggest oil finds. Business in Kazakhstan has been famously corrupt. Foreign oil and gas companies have not had an easy life. Total would like to have a bigger share of the very large oil potential extraction in the country, perhaps drawing on its cosy relations with Russia, which is in military alliance with Kazakhstan's authorities. The start of the Kashagan project has been delayed due to several environment, legal and investment-associated complications. Despite such complications, the NCOC (North Caspian Operating Company, a consortium including Eni, Exxon Mobil, Shell, Total, CNPC, Inpex and AGIP) are not giving up attempts to extract the vast deposits. The case history of Kashagan involves various conflicts and public hearings, as well as court cases. One of the major issues is the impact of the oil field on the health of the local populations and on the fragile environment of the area.

Part of the oil field is located within a protected North Caspian Sea nature reserve with its unique biodiversity, including endangered Beluga sturgeon and the Caspian seal. In September 2013 a major hydrogen sulphide leak occurred at the refinery as a result of a burst pipe, and the operating company flared millions of cubic metres of sour gas. The Kazakhstani ecological authorities fined NCOC a sum of US$ 737 million for large-scale damage to the environment.

Several EJOs published information on the unliveable conditions, poor and deteriorating health, low level of income and absence of infrastructure for the population of nearby towns and villages. Nevertheless, the project was moving ahead with support from Nursultan Nazarbajev, president of the country between 1990 and 2019. In 2021, Kazakhstan's Prime Minister Askar Mamin launched the construction of a gas processing plant at Kashagan. According to the country's government, it will produce 1 billion m3 of gas per year. The facility is also expected to help increase crude oil production as it will refine raw materials from highly toxic and aggressive hydrogen sulphide present in associated natural gas. In addition, up to 2,500 temporary jobs will be created during the construction period, and 600 permanent jobs during the operation period. Kazakh GPC Investment company will reportedly build the plant, which is set to come online in late 2023. The deal will cost the Kazakh company $860 million.

Meanwhile, Tengiz produced more crude oil than any other field of Kazakhstan, while Kashagan ranked second, producing 6.2 million tons in January‒May 2021. The country, of 18 million people, exported 28 million tons of crude oil in the same period.

Total in Pilón Lajas, Bolivia 12

Finally, Total is also in Amazonia. In Bolivia, Petrobrás, Repsol, Total and Petroandina were active in the biosphere reserve and Indigenous peoples’ communal territory in Pilón Lajas, north of La Paz. Evo Morales was not to become president until 2006, so before his time p. 620concessions in the Rio Hondo Oil Block were awarded in 2001 tender. This block occupies territories of the Madidi National Park, the Pilón Lajas Biosphere Reserve and Indigenous Territory, and reaches the TIPNIS. This one-million-hectare concession was awarded to Petrobras Bolivia (50 per cent) and Total Exploration Production Bolivia (50 per cent). This Indigenous territory is characterized by its dual status of TCO (community land of origin) and protected area. In 2002, Petrobras started the process to begin with the seismic project. In 2004, after the “gas war” in Bolivia, the company managed to obtain the permit.

The infrastructure includes: 2,520 wells 15 m deep, 16 kg of explosives per well, 21 heliports with an area of 900 m2 each, 280 discharge zones, 21 flying camps and a base camp of 4 ha near the community of El Palmar from where water would be provided. One hundred and fifty people would work on the project, of whom a few would be local. This Seismic Exploratory Project was never consulted with the population of the affected area. So, the Regional Council Tsimane Moseten refused to receive the consultants of the company and the fieldwork was not carried out either. In 2007, Repsol became involved in the failed project. On 15 June 2013, all the communities and authorities of the TCO Pilón Lajas, as well as local and regional organizations, mayor and authorities of the Council and the Municipality addressed a note to the president of Petrobras in which they indicated their position of not allowing oil activities in their territory. The network FOBOMADE (Foro Boliviano sobre Medio Ambiente y Desarrollo) formally requested the Ministry of Sustainable Development to revoke the environmental licence granted to Petrobras for the Río Hondo project. This stopped Petrobras’ attempt to gain access to the territory.

Oil fever increased. In 2015, Evo Morales and Alvaro Garcia Linera's government, despite their feeble attempt some years earlier to give leadership from the South to the global movement against climate change, opened up protected and Indigenous territories in the Amazon to oil exploration and exploitation. Here, the Total company appeared again as one of the companies involved. The government argued that oil exploration would help to “reduce extreme poverty in the communities living in protected areas”. But poverty is multidimensional, and in some aspects it increases when water, air and soil become unavailable and polluted, whatever wages or money compensation some of the local people might get. In any case, the national parks Iñao, Aguaragüe, Pilón Lajas and Madidi had between 75 and 90 per cent of their territories committed to oil exploration contracts. These exploration projects were authorized by Decree DS 2366, approved in May 2015.

On 30 January 2015, Bolivian president Evo Morales had given the green light to oil exploration in Lliquimuni, north of La Paz, on a mountain range thick with vegetation on the edge of the country's Amazon region. According to the state oil company, Yacimientos Petrolíferos Fiscales Bolivianos (YPFB), exploration for oil or gas in the Lliquimuni Block was to take place by the companies Andina, Total, Chaco, Repsol, Maxus, Petrobras and Don Wong that obtained over 25 concessions in protected areas throughout Bolivia, according to data from SERNAP (Servicio Nacional de Áreas Protegidas). SERNAP feared that the extractive industries, along with the expansion of the agricultural frontier and of human settlement areas, would cause social and environmental problems due to the construction of roads and the contamination of waterways. According to a 2015 report from the Center for Documentation and Information Bolivia (CEDIB), the surface of protected areas in the country is approximately 18,271,700 hectares. About 17 per cent was threatened by oil activity.p. 621

DISCOVER THE CHEVRON CORPORATION: THE TEXACO-CHEVRON CASE IN ECUADOR

An EJAtlas Featured Map 13 was published on Chevron in a collaborative project between the ICTA ‒ UAB, A SUD ‒ Ecologia e Cooperazione, CDCA ‒ Centro di Documentazione sui Conflitti Ambientali, Italy, and the Unión de Afectados por Texaco ‒ UDAPT, Ecuador. It was used for “shareholder activism”. Chevron seeks to avoid liability for environmental damages. Moreover, Chevron is one of the companies contaminating the planet most with its carbon dioxide emissions. The aim of the Featured Map was therefore to show major conflicts concerning the company as well as peoples’ resistance and struggles in many countries. Chevron is active in conflicts in the refinery in Richmond, California (Chapter 24), it is responsible for oil spills in the campo de Frade, Brazil, while in November 2014 children of a school close to Karachaganak in Kazakhstan suffered from chronic intoxication. The threat to food sovereignty affects in particular the ancestral cultures of Indigenous peoples. Alleged tax evasion undermines the financial resources of the states intended to finance public services. Also, its refusal to disclose contract conditions with the states does not allow populations to evaluate the impact of its activities in their country. The criminalization of victims and protestors is part of the company's strategy as shown clearly in Ecuador.

For instance, Chevron's partnership with the people and the Government of Indonesia can be traced back to 1924, when the Standard Oil Company of California (Socal), now Chevron, dispatched a geological expedition to the island of Sumatra. Its oil production began in 1952 and it remained active in Indonesia throughout the brutal decades of the Suharto dictatorship (1965‒1998). Chevron's oil production continues to take place in the Riau province. As a result, citizen resistance to Chevron has been a constant of life in Riau, often taking the form of massive protests. Chevron has employed forceful measures to quieten down protests, including utilizing Indonesia's notorious security services, bringing charges of human rights abuse, violence and intimidation. WALHI ‒ Friends of the Earth Indonesia ‒ denounced many such facts in a 2011 report. They describe collusion between the company and special forces: on 27 January 2000 Chevron allegedly paid the BRIMOB (the special operations, paramilitary unit of the Indonesian National Police) to overcome a series of actions and protests over land disputes and employment. As a result, 15 people were wounded and five were hospitalized.

The people's struggles against Chevron around the world mobilize different strategies beyond shareholder activism: legal cases in national courts, participation in global campaigns and the creation of platforms by affected people to exchange expertise, roadblocks and popular epidemiology reports, among others. I know in particular about Texaco-Chevron's liability in the northern region of Ecuador which I have visited many times since 1994 when I noticed the social agitation in the streets of Quito and met members of Acción Ecológica fully engaged in this campaign. I know the lawyers of the court cases against Chevron in Ecuador and in New York. The permanent refusal of Chevron to assume liability led the communities to initiate and support judicial proceedings in the Amazon of north-eastern Ecuador. No jurisdiction has been able to execute the historical sentence of US$ 9.5 billion issued by successive courts from Nueva Loja (Lago Agrio) to the Supreme Court of Ecuador. The following pages summarize and update what happened at the judicial level. 14

I include also comparative comments on Shell in Nigeria, BP in the Gulf of Mexico, loss of health from DBCP in banana plantations, the CERCLA legislation in the United States and, p. 622concluding the chapter, my views on the systematic practice of cost-shifting and the lack of environmental liability as part of the current ecological and business system.

Proceedings in Ecuador

Following the narrative of the NGO Business and Human Rights (London), the original suit was filed against Texaco in 1993 in a New York court under the ATCA. The plaintiffs were Indigenous peoples and some settlers. But then the case went back to Ecuador. The plaintiffs thought they had a better chance of redress in the USA than in Ecuador but they put up with the New York court's decision. In 2003, a lawsuit was brought against Texaco (acquired by Chevron in 2001) in Ecuador alleging severe environmental contamination of the land where Texaco conducted its oil operation activities, leading to increased rates of cancer as well as other serious health problems for the residents of the region.

Judicial inspections of the allegedly contaminated sites commenced in August 2004. In early 2008, an independent expert recommended to the court that Chevron should pay $7‒16 billion in compensation for the pollution. This expert increased his estimate of damages to $27 billion. In 2008, Chevron reportedly lobbied the US government to end trade preferences with Ecuador over this lawsuit. Following allegations of judicial misconduct, the original trial judge recused himself from the case. Then, following a successful petition in US court to receive unused footage from the documentary “Crude”, Chevron filed a petition with the court in Ecuador in August 2010 seeking to dismiss the lawsuit based on the company's assertion that parts of this footage show alleged fraud on the part of the plaintiffs.

In September 2010, the plaintiffs submitted a new assessment of damages stating that the cost would be between $90 and $113 billion. That same month, the judge concluded the evidentiary phase of the lawsuit. On 14 February 2011, the Ecuadorian judge issued a ruling against Chevron; the company was ordered to pay $8.6 billion in damages and clean-up costs, with the damages increasing to $18 billion if Chevron did not issue a public apology. Chevron indicated that it believed the ruling to be “illegitimate” and filed an appeal. On 3 January 2012, a panel of three judges from the Provincial Court of Justice of Sucumbios upheld the February 2011 ruling against Chevron. On 20 January 2012, Chevron appealed the decision with Ecuador's National Court of Justice. In March 2012, Chevron asked the Provincial Court of Justice for the fourth time to block the Ecuadorian Government from enforcing the $18-billion judgment against it. On 28 March 2012, the court ruled that Chevron was not entitled to use an order from an international arbitration tribunal.

In an effort to enforce the judgment, the Ecuadorian plaintiffs filed a lawsuit in Canada in May 2012 and one in Brazil in June 2012 targeting Chevron's assets in those countries. On 6 August 2012, the Ecuadorian court ruled that Chevron had until the end of the day to pay the $19 billion judgment. In October 2012, the Ecuadorian court issued an order permitting the plaintiffs to seize about $200 million of Chevron's assets located in the country, in an effort to collect on the judgment against the company. On 12 November 2013, Ecuador Supreme Court upheld the August 2012 ruling against Texaco/Chevron for environmental damage but halved damages to $9.51 billion. Chevron still challenged this. On 10 July 2018, the Constitutional Court upheld the $9.5 billion judgment against the company.

Chevron refused to pay, and in fact started lawsuits against the lawyers, as a super-SLAPP, particularly the US lawyer Steven Donzinger who in 2021 was serving a six months sentence in prison in the USA for contempt of court. The injustice is so obvious that the prosecution p. 623of Donzinger might finally backfire against Chevron. Much depends on public opinion in the US. Meanwhile, the Ecuadorian main lawyer Pablo Fajardo and Luis Yanza, a settler in the contaminated area, got Goldman Prizes in San Francisco in 2008. Indigenous Cofanes and Secoyas were among the main plaintiffs.

In the weeks leading up to the ruling issued by Judge Nicolás Zambrano of the Provincial Court of Sucumbío in Nueva Loja on 14 February 2011, Chevron-Texaco desperately undertook a series of legal actions in the United States to criminalize the plaintiffs and their lawyers in Ecuador and in the United States. Following the ruling, the oil company declared that the obligation to pay billions of dollars to the Frente de Defensa de la Amazonía responded to the collusion between plaintiff lawyers and “corrupt judges”. I wrote back in 2011:

Anyone who knows Spanish can read the original of Judge Zambrano's well-argued ruling. […] The ruling explicitly denies that there was forgery of signatures of plaintiffs as alleged by Chevron Texaco, but it does take up an important argument made by Chevron-Texaco removing from the case the entire contents of the report of the expert Richard Cabrera (a Court-appointed geologist under a previous judge). Cabrera's objectivity was called into question by Chevron Texaco […]. The judgment agreed with this allegation, and thus disregards the evidence of Cabrera and his proposed damages valuation of $27 billion.

Cabrera conducted or commissioned a series of damage assessment studies and relied for his data on illness and death on the book Las palabras de la selva, by Carlos Beristain, social psychologist and doctor of medicine. For those who want to know what happened in the Amazon during Texaco's time, Beristain's book is a good source. But the judge left it aside together with the first major report on the case, Amazon Crude by Judith Kimerling, published in 1991 by the Natural Resources Defence Council, translated and published in Quito by Abya-Yala in under the title Crudo Amazónico.

Unsuitable Technology

The damage that Texaco did and that the sentence analyzes in detail came from the technology it used to dispose of the extraction water that comes out of the wells together with the oil and gas. The main issue was underground and stream contamination and damage to people's health. The sentence also echoes the many deaths of domestic animals. It almost leaves aside the damage to wild biodiversity although it quotes some Indigenous people who complained during judicial inspections of contaminated wells and water disposal pools which led to disappearance of hunting and fishing. The court established an amount of money to recover the flora and fauna. It did not set any fine for irrecoverable damage to biodiversity nor did it echo the disappearance of entire Indigenous groups at the time of Texaco. It awarded a small amount for restoration of damaged ethnic cultures. It asserted that the standards of ILO Convention 169 could not be applied retroactively to the 1970s and 1980s. The overall tone of the ruling was unkind to Indigenous people and more favourable to the relatives of settlers with damaged health.

The court decision discussed whether there was simply negligence or whether there was intent. Clearly, Texaco wanted to reduce monetary costs at the cost of increasing environmental and health risks. It did not take due precautions. It did not line the “pools”, use steel tanks or reinject the extraction water. “It is appropriate for this Court to conclude that extraction water is an industrial waste inevitably produced when extracting oil and that in view of its p. 624hazardous nature it must be treated with extreme diligence, which was not the case in the operation carried out by Texpet”. This name, Texpet, was used by Texaco in Ecuador.

What technologies should Texaco have used? How to avoid pouring extraction water into unlined pools that overflowed when it rained? Judge Zambrano rummaged through the 200,000 pages of the court case papers and found the original English of a 1962 text, Primer of Oil and Gas Production, an introduction to the subject published by the American Petroleum Institute, one of whose co-authors was precisely T.C. Brink of Texaco Inc. It warns of the danger of the technology that Texaco was to use shortly thereafter in Ecuador.

At the time Texaco operated there was no legislation in Ecuador regarding hydrocarbon limits or heavy metal concentrations in water. The sentence reviews the results of hundreds of samples provided by both parties and also collected at the Court's own initiative. It cites conclusions of experts from both sides. It uses more the Chevron-Texaco's conclusions than those of the plaintiffs, regarding the extent of contamination in the nearly 1,000 pools that remained, and it doesn’t rely on specific legislation but on the general Health Code in force at the time in Ecuador, to prove that Texaco acted without due diligence in a risky activity.

The sentence is careful not to apply new Ecuadorian legal norms or international covenants retroactively, but it could have mentioned, for the sake of embellishment, something that Chevron-Texaco was well aware of: the 1980 US CERCLA law known as Superfund, which I summarize later.

Damage to Health

The discussion of environmental chemistry in the judgment occupies several pages. The actual effects on human health are, together with the extraction water, the star topic. Here, evidence from scientific studies appears briefly. It accepts data from the study by Miguel San Sebastian, a physician specializing in environmental epidemiology and author of the Yana Curi (black gold) report published in 2000, which studied the influence on health of pollution from oil extraction in some areas of the Ecuadorian Amazon. San Sebastian published articles in international journals, and Dr Jaime Breilh (a well-known Ecuadorian epidemiologist) also appears in the sentence. Finally, the sentence recognizes, on the one hand, the difficulty, if not impossibility, of obtaining official data and, on the other hand, the judge's inability to get both parties to agree on the cases of illness and death caused by the contamination. Chevron-Texaco's experts do not accept even one death in excess. Therefore, the judge resorts to evidence presented in the judicial ocular inspections of wells and pools. On these occasions local inhabitants complained bitterly (in Spanish or Indigenous languages) about the deaths that occurred, about their own state of health and of the lack of state attention.

That local evidence may seem anecdotal, and it was challenged by Chevron-Texaco's lawyers. On page 144 of the judgment, the following episode of a judicial inspection is recorded. Chevron's legal representative questioned a peasant who had used the word “toxic”. “How do you know they are toxic, what analysis, what studies have you done to define that they are toxic?”. Judge Zambrano writes: “in recognition of the lawyer's shrewd argument to disqualify a peasant, it is reiterated that in this matter this Court will appreciate such declarations (of the local population) according to sound criticism and in conjunction with all the scientific evidence that has been submitted by the parties”. The judgment does not thus establish a number of dead or sick in excess of the usual. It concludes that there is sufficient evidence to establish from a legal standpoint that the health of the local population was seriously impaired.p. 625

Petroecuador's Responsibility

Chevron-Texaco rightly argued over the years that it seemed odd that Petroecuador was not taken to court, since after 1992 that state-owned company continued to use the technologies introduced by Texaco. The judge agreed with the argument but dissociated the lawsuit against Chevron-Texaco from the one that could eventually be brought against Petroecuador. Undoubtedly, as the ruling explicitly recognizes, the contamination of the areas operated by Texaco, which merged with Chevron in 2001, became after 1992 also the responsibility of Petroecuador. This damage caused by Petroecuador was left aside in this court case because nobody sued them. Chevron wanted to use it as a cover, but the judge did not allow it.

CERCLA in the United States

Beyond Judge Zambrano's ruling of 14 February 2011, it is worth repeating that during its time in Ecuador, the Texaco company (whose assets and liabilities passed on to Chevron) was directly aware of the debates in the United States on environmental liabilities. These debates took place in the 1960s‒70s culminating in the enactment of the Comprehensive Environmental Response, Compensation and Liability Act ‒ CERCLA, also known as Superfund. Judge Zambrano's ruling does not mention CERCLA, which was enacted by the US Congress on 11 December 1980, in the middle of the Texaco period in Ecuador. It establishes that companies must face the damages caused and must clean up existing contamination. This Superfund is a trust fund that compensates and restores damages in cases where the companies have disappeared. Otherwise, if they exist (such as Chevron-Texaco), they must respond for the damages.

I do not argue here that CERCLA applies in this case in Ecuador. CERCLA is not like the ATCA, Alien Tort Claims Act, of 1789, a law that sometimes allows bringing to court in the United States individuals or companies for damages caused outside the United States, as was initially attempted with Texaco since 1993. No, CERCLA applies only within the United States. But Texaco knew since 1980, because CERCLA already existed in the United States, that environmental liabilities could give rise to compensation and restoration payments, retrospectively.

In Ecuador, general legislation on liability for damages already existed in 1964, although it did not yet specifically address compensation and restoration of environmental damage. Texaco should not have acted in Ecuador as if it were a lawless colonial country. Moreover, Texaco should have applied not the same technical standards as in its own country, but even better and more careful ones since it was extracting oil in a territory surrounded by unknown biodiversity and inhabited by Indigenous peoples susceptible to introduced diseases.

Judge Zambrano's sentence was a remarkable document that did not close the case as it was appealed. But it survived three appeals in Ecuador, up to the Constitutional Court. The environmental remediation that the Texaco company reportedly had carried out in the 1990s for US$ 40 million was a pantomime that counted on the complicity of official authorities of the time. This was indeed recognized in Judge Zambrano's ruling.

The sentence against Chevron-Texaco should have had worldwide effects. It could not be a prison sentence against the company's executives since this was a civil case. But it could have set a standard for economic compensation. Companies and their CEOs and shareholders are p. 626not insensitive to moral exhortations but perhaps understand better economic losses or prison sentences. However, 20 years later Chevron has not yet paid.

Shell in Nigeria

This short section complements what has already been said in Chapter 14 on the Gulf of Guinea. This is a more extreme conflict than that of Chevron-Texaco in Ecuador. The Niger Delta in Nigeria exports five times more oil than Ecuador. Shell is the main culprit but Chevron and other companies have also been involved. Since 1958, when Shell began exploiting the subsoil of the Niger Delta, the contamination of soil, vegetation and water has not ceased. Many communities protested and filed lawsuits for compensation. In 1995, under the government of dictator Sani Abacha, nine members of the Movement for the Survival of the Ogoni People, among them the writer Ken Saro-Wiwa, were executed. The mass peaceful protest by the Ogoni people against Shell was repressed by the Nigerian army, resulting in the execution of more than 1,000 people. Shell left Ogoni territory but not the Delta. The Ijaw and other peoples protested in the aftermath. Pipelines and tanks are often rusted but not replaced. There are semi-abandoned pumping stations. The flaring of extracted gas has not been banned until recently.

In 2010, an exceptional judgment concerning damages to the small community of Ejama-Ebubu in the Niger Delta condemned Shell to “leave as it was” an area that it had polluted. The lawsuit was filed in 2001, when Nigeria emerged from military dictatorship. After ten years of waiting, Judge Ibrahim Buba ordered Shell to pay US$ 105 million to a single small community for a damaged area of 255 ha (2.5 km2). The Human Rights Writers Association of Nigeria (HURIWA) commended the judge and noted that “while in the United States, the government has taken an immediate decision to claim 20 billion from BP to compensate those affected by its Gulf of Mexico spill, in the case of the Delta the multinationals have been operating with impunity and with no response from the government”. Nigeria is Africa's largest oil exporter and number 11 in the world. The Niger Delta is probably the world's oil pollution champion.

DBCP

The DBCP case is another example of a failed retrospective environmental liability claim. The ATCA legislation has usually been deployed without success. It affects Nicaragua, Costa Rica, The Philippines, the US in Hawaii and certainly Ecuador, mainly in El Oro. In this case (as also in the Texaco case) the extraordinary delay in obtaining justice is noteworthy, since the responsible companies (Dow Chemical, Shell, Dole and others) have managed to adjourn the court decisions or have not yet paid compensation when they have been sentenced, accruing interest they should have to pay as well (Navas 2022) (see also Chapter 21).

In 2007, a trial was reported on July 19th in Los Angeles against Dow Chemical and Amvac Chemical, manufacturers of Nemagon, and the Dole banana company. Nemagon or Fumazone, trade names for the nematicide DBCP, caused sterility and other health damage to the 5,000 Central American plaintiffs after having used it during the 1960s and 1970s to combat pests and diseases affecting banana plantations. According to the lawsuit, Dow and Amvac knew that Nemagon was a toxic substance since the early 1950s. Other information on the same dates reported that in Costa Rica alone there are some 30,000 workers harmed p. 627by the nematicide. “Some say this is one of the worst labour tragedies in the world”, summed up the BBC. It is not a matter of repairing the damage in a physical sense; the damage caused has to be compensated, including the emotional aspects. Thus, in Nicaragua in December 2002 under Law 364, the Nicaraguan judiciary handed down the first judgment. The multinationals Dow Chemical, Shell Oil Company and Dole Food Company were ordered to pay $490 million to some 600 of the 5,000 workers who filed suit. The companies refused to pay.

In the United States, DBCP had been banned since the 1970s, but in several Latin American countries and in the Philippines, it continued to be applied in the 1980s and 1990s. As Raquel Hernández explained in the magazine Envío of Nicaragua (n. 57, March 1995, El Nemagón en el banquillo: acusan los bananeros), at first it was thought that the compensation requested would have to be lower than those of the Americans, taking into account the difference in living standards. But, after some discussion, another criterion gained ground, for it is precisely the conviction that the lives and health of citizens of poor countries are worth less than those of Americans that make situations like the one generated by Nemagon possible. In general, victims of DBCP outside the United States have not been compensated.

Asbestos is another well-known international cause of liabilities that were eventually recognized through lawsuits. Sometimes, after decades of delay, most victims have already died. Money does not really compensate for ill health, and much less can money resurrect the dead. What has been done cannot be now amended. However, perhaps a lesson is taught to companies by these exceptional cases (see Chapters 19, 20 and 23).

The Environmental Liability Accumulated by Chevron-Texaco in Ecuador

In the balance sheet of any company there are assets (what the company has) and liabilities (what the company owes). Liabilities usually include short and long-term debts, either to suppliers or banks, or to social security or the State as tax debts, as well as the company's own capital contributed by the shareholders. If a company has debts with the victims of environmental damages it should also include them in the liabilities, but this is not usually done because it is thought that these damages are “externalities” i.e. they fall outside the accounting.

The Chevron-Texaco court decision of February 2011 gave temporary support in Ecuador to those who wanted to leave the oil in the soil in the Yasuni ITT fields. Other main arguments on the Yasuni ITT proposal of 2007‒13 were to avoid contact with isolated peoples, to avoid carbon dioxide emissions and to preserve biodiversity. The first two were absent in the Chevron-Texaco court ruling and the third was only touched upon in passing. The judgment established a liability that accumulated from 1964 until the company ceased its activity in Ecuador around 1990. However, Chevron decided not to comply with the court decision. The liability has subsequently increased as the water and soils were not properly cleaned up and the victims have not been compensated in due time. How much does Chevron-Texaco owe?

Chevron-Texaco should have compensated for the damages caused by contamination between 1964 and 1991. On the contrary, the company has employed delaying tactics.

Unjustified Enrichment

Texaco did not pay at the time the costs it should have paid to ensure that its operations did not cause damage, using practices that would never have been accepted in its country of origin. These unpaid costs meant higher profits for Texaco that allowed it to distribute dividends p. 628to shareholders and to make other investments, which in turn contributed to the company's economic growth. Texaco saved costs, and also refused to pay indemnities for irreversible damages and remediation. The Chevron-Texaco company's entire liability implies paying compensation for damages caused by the loss of ecosystems, loss of income from agriculture, livestock, hunting and fishing, loss of water supply sources, exposure to disease and cancer deaths due to exposure to toxic substances, loss of soil, the psychological component including sexual abuse of the company's employees, and the delay of the solution, as well as the cost of the affectation and displacement and even disappearance of Indigenous peoples.

Texaco had extracted about 1.5 billion barrels of oil altogether over the period 1962‒92; Judge Zambrano's estimate of damages of US$ 9.51 billion amounted to a reasonable US$ 6 per barrel, this is my own calculation. The price of oil in 1980, half way through Texaco's period in Ecuador, was around US$ 30 per barrel.

To summarize plausible values:

A) Unpaid compensation for the irreversible damage caused to people and the environment by spills, deforestation, extraction water dumped in open-air pools, gas flaring, irrigation of oil on roads, all described in the evidence provided by the plaintiffs. With the levels of toxic, carcinogenic substances in the environment, proven in ocular inspections and in analyses, undoubtedly there must have been an excess of illnesses and deaths over those expected. Carlos Beristain's study, Las palabras de la selva, shows how the memory of cancer incidence varied with distance from oil wells and stations, appealing to what is called “popular epidemiology”.

How much is a human life worth? Viscusi (1993) estimates morbidity and mortality costs (since not all victims of disease die, and those who do die spend years ill). For mortality in the United States, it presents figures between $3 and $9 million per deceased person. These are values used for improvements in automobile safety or other environmental regulations. This study seems relevant and justifies the use of an (economic) value per human life of US$ 6 million. If, on the other hand, we were to apply “prices” from Ecuador, we would acquiesce to what some have called the “Lawrence Summers principle”, the poor are cheap. The victims were tens of thousands.

Damage to the environment can also be estimated. There is evidence provided by the plaintiffs. A well-known article by Fearnside from 1997 estimated the value of natural products and services for the Amazon rainforest at something like $20,000 per year, year after year, per 100 ha, for products (from harvesting) and for environmental services (the water cycle, bioprospecting, carbon sequestration). The destruction of the forest was caused by oil, and Texaco has a share of responsibility for the deforestation of an area of about 4,000 km2. From this, an assessment of the destruction of the ecosystem can be made.

To the monetary valuation of these irreversible damages, which were not compensated at the time, an adjustment factor ought to be applied taking into account the accrued interest from the 1970s to 2011 and the loss of purchasing power of the dollar.

B) The deaths or illnesses, the displacement and disappearance of Indigenous peoples, as well as the disappearance of biodiversity are irreversible. What was lost is not even known, since the taxonomy of fauna and flora (and micro-organisms) of the concession was not done before Texaco entered. But there is a part of the damage that can be remedied. The plaintiffs presented evidence and suggestions on how the damage could be remedied, by repairing contaminated pools and soils, remediating groundwater quality, installing water systems to avoid using contaminated water and taking care of the health of the inhabitants p. 629of the area in the future. The current value of these investments that Chevron-Texaco must finance would be of the order of $7.75 billion.

C) Texaco made excessive profits, later accumulated in the form of profitable investments, by not operating with good practices in the concession for more than 20 years. If Texaco had extracted the oil and built and operated the pipeline with good practices it would have implied an extra cost. Texaco's waste disposal methods, that would never have been allowed in the US, were not pure negligence. They were intentional practices to make more money. If we consider the amount of only one dollar per barrel of “savings”, that means that Texaco made an excessive profit of about $1.5 billion between 1970 and 1990. Taking into account the loss of purchasing power of the dollar and accrued interest, so that the actual value was not less than $10 billion.

Texaco was also responsible for the extinction of native peoples such as the Tetetes and Sansahuaris and this was not recognized in the 2011 sentence. Ironically, the names of the two disappeared peoples are the names of two oil fields in the area where they used to live. To this must be added all the social and cultural damage caused to the Siona, Secoya, Cofán, Kichwa and Waorani, in addition to the damage to the settlers.

In conclusion, the trial was a failed attempt to obtain socio-environmental justice. It was successful in the courts of Ecuador but failed to make Chevron pay. This shows the political power of a transnational company such as Chevron, and so far the lack of moral sense of its shareholders. The environmental justice movement of the USA is too concerned with its own local problems, and indeed too powerless to help bring to justice American corporations for their behaviour abroad.

CONCLUSION: TEACHING ECOLOGICAL ECONOMICS AND POLITICAL ECOLOGY IN BUSINESS SCHOOLS (ÖKO – BWL)

The Chevron-Texaco company delayed the day of reckoning as long as possible, from 1993 to 2022 and beyond, bringing people's lawyers to court and to jail, allegedly bringing paid witnesses to the court in New York, enriching the company's assets in the meantime by investing the money it should have paid in compensation. I lament that criminal charges were not brought up against Texaco-Chevron directors in the 1990s. It is advisable to use both the civil and criminal routes.

Some practitioners already use the EJAtlas for information relevant to investors such as pension funds keen on applying Corporate Social Responsibility (CSR) and ESG criteria to particular firms or business sectors. As Rajiv Maher wrote in the Business and Human Rights Journal (2020), the EJAtlas documents and catalogues social conflicts around environmental issues aiming to make these instances of mobilization more visible, highlighting claims and testimonies, making the case for corporate and state accountability for the injustices inflicted through their activities. According to him, the EJAtlas is relevant to the construction and criticism of indices and benchmarks meant to inform and guide shareholders and other stakeholders, such as the Responsible Mining Index (RMI) and the Business Human Rights Benchmark (CHRB). The visibility given by the EJAtlas may be of use not only for activists but also in professional advisory financial activities and in fields like eco-labelling, product certification, SRI, CSR and ESG. Corporations are supposed to practise disclosure of environmental, social and governance (ESG) results. The EJAtlas may help strengthen the opposition between two p. 630objectives: “shareholder value” and “responsible management” (Laasch et al. 2020; Laasch 2021). Are corporations actually worried about their place in CSR and Sustainability indices? How do they manage their relations with the rating agencies? Do the main companies practise Socially Responsible Investment (SRI), incorporating ethical criteria into business decisions?

Environmental liabilities increase at the commodity extraction and waste disposal frontiers and through the growth of new commodities. We notice that firms and often states (particularly the military branch) do not take socio-environmental damages much into account either economically, physically or socially. This is the rule. Claims for economic compensation for damages and in other valuation languages are also put forward. Private or state companies tend to get away with cost-shifting, not facing liabilities. In other cases, it is not private or public firms but states themselves that should be accountable as in the Chornobyl nuclear disaster of 1986 or the damage to territories subject to nuclear testing or endangered by sea level rise. We favour the use of economic valuation of environmental damages in a forensic context after damage has been done but we refuse the ex-ante economic valuation as in cost–benefit analysis to decide (using only an economic language) whether an investment project should be carried out or not, excluding the pertinence of other valuation languages (Rodríguez-Labajos and Martínez-Alier 2013).

Within and also beyond academic research, the EJAtlas wants to be relevant by ‘naming and shaming’ the actors behind injustices, looking at the alliances among private and public corporations and their cooperation with state authorities. This can be done through Network Analysis of corporations (privately or state-owned) involved in conflicts. (Aydin et al. 2017). This chapter can be understood as a trailer for a textbook for Business Management students emphasizing CSIR, the unacknowledged environmental liabilities and the practice of corporate violence caused by profit-seeking and inflicted on human beings and ecosystems (Chertovskaya and Paulsson 2020; Navas et al. 2018; Tran et al. 2020). There is a growing body of research on the “social engineering” practised by corporations, including different sorts of violence but also “soft” methods of achieving consensus with local populations. In contrast to studies focusing on overt conflict and explicit repression, this social engineering perspective (including CSR) looks at the less visible and long-term ways in which corporate actors and their allies obstruct, condition and attempt to shape (re)actions ‘from below’. Companies practise counter-insurgency tactics in some documented cases (Verweijen and Dunlap 2021; Brock and Dunlap 2018).

The key words of this chapter (such as CSIR and Corporate Violence) are different from those found in textbooks of ecological business economics, a discipline with a strong tradition in Germany. Since the early 1980, Reinhard Pfriem (long-time professor in Oldenburg) published articles and books on Ökologische Unternehmensführung. In German this would be part of the field called ökologische Betriebswirtschaftslehre. In a textbook of 1995 by Klaus Tischler, the name of the discipline is helpfully abbreviated as Öko – BWL, ecological business economics. It comprises Bilanzierung (drawing up balances) in economic and physical units (energy and materials), eco-marketing and topics such as investments improving profitability, resource efficiency and protection of the environment, win-win strategies in the economic and environmental front, use of “life-cycle analysis” for improving production and marketing processes. All this is seen at the firm level, and not at the commodity level as in industrial ecology (or in the old Warenkunde).

A robust research and teaching project would bring together business economics with ecological economics and political ecology through case studies of companies, asking questions p. 631on the assessment of risks, examples of disinvestment, displacement of costs to poor world regions, attempts at obtaining social and environmental justice by direct action or through the courts, compliance with administrative regulations or lack of it, shareholder activism, lawsuits under the ATCA, examples of CSIR, violence against activists, SLO and some SLAPPs as management tools.

Notes

1

SOCAPALM conflicts, Cameroon (Julien-François Gerber), EJ Atlas.

Socfin Agricultural Company Sierra Leone Ltd Oil Palm Plantation in Malen Chiefdom, Pujeun District, Sierra Leone (Aliza Tuttle), EJ Atlas.

Ikwezi Coal Mining Project in Dannhauser, Newcastle, South Africa (Danela Tran), EJ Atlas.

2

Catanzaro, M. (2013). Scientist cleared of libel in Taiwan court, Nature, 14 September.

3

Yamal Mega natural gas project, Arctic Russia, EJ Atlas.

Liquefied natural gas project ‒ LNG 2, Gydan peninsula, Arctic Russia (Ksenija Hanaček and JS), EJ Atlas.

4

Euronews (2021). NGO's ice sculptures in Paris to protest Total expansion in Arctic (video), 20 May.

5

The Open University Seminar, 12 January 2022.

6

Yadana Gas field and pipeline, Myanmar (Elodie Aba), EJ Atlas.

7

Courtois, M. (2021). En Ouganda, les pressions à l’encontre des opposants de Total s’intensifient, Reporterre, 28 May.

Oil pipeline from Uganda to Tanzania, EJ Atlas.

Cotterill, J. (2020). Investors electrify South African banks’ sustainability push, Financial Times, 3 November.

Angurini, T.B. (2021). Uganda, Tanzania to see 60% increase in FDI due to oil – PSFU, Monitor, 27 October.

Okello, C. (2022). East Africa: African youth activists in French National Assembly over Total's oil pipeline in East Africa, Al Africa, Radio France Internationale, 17 March.

Goodman, A. (2021). “A Bigger Picture”: Ugandan activist Vanessa Nakate on bringing new voices to the climate fight (interview), Democracy Now, 13 December.

8

Total S.A.‘s Anzarane Offshore Western Sahara Oil Exploitation (Julie Snorek), EJ Atlas.

Offshore petroleum threatens fishing livelihoods and marine biodiversity in Mauritania (Julie Snorek), EJ Atlas.

Oil, gas, jihadism and militarization in the Taoudeni Basin, Mali (Julie Snorek), EJ Atlas.

9

Gas grabs, Algeria (Platform London), EJ Atlas.

Reid Ross, A. (2015). Algeria: fracking and the Ain Salah uprising, The Ecologist, 14 March.

Resistance to fracking projects, Algeria (Antoine Simon, FoE France and Lena Weber), EJ Atlas.

10

Multiple gas explosion in Egiland, Nigeria (Godwin Uyi Ojo), EJ Atlas.

11

Kashagan Oil Field, Kazakhstan (Yevgenika Yatsenko), EJ Atlas.

Batyrov, A. (2021). Kazakhstan launches construction of gas plant at Giant Kashagan Field, Business, 14 June.

12

Oil exploration in Pilón Lajas, Bolivia (Antonella Calle ‒ Yasunidos), EJ Atlas.

Guidi, R. (2016). Oil exploration in Bolivia's Amazon region goes on overdrive, Mongabay, 16 February.

13

A planet in danger: the world of Chevron (map), EJ Atlas.

14

Martinez-Alier, J. (2011). El caso Chevron Texaco en Ecuador: una muy buena sentencia que podría ser un poco mejor ALAI, Quito, 17 February.

Monograph Book