CLIMATE AND ENVIRONMENT

The Climate Fight Needs Imagination-Using the Tariff Act of 1930 to Fight Climate Change 

The Human Rights and Climate Change movement should make use of less conspicuous tools, like the administrative agency, and forms of exploitation as a way of targeting corporations in the climate change fight.

It is well-known that a handful of corporations are responsible for most of the world’s greenhouse gas emissions. And yet the private sector marches forward flaunting an insignia of impunity, due to slow adaptability by legal frameworks coupled with its diligent resistance. Practitioners and advocates across the world are therefore hard at work concocting creative ways to bring a scintilla of accountability to such actors. One of the most powerful results of such efforts has been the rights turn that climate litigation has taken, in which claimants use human rights arguments to hold governments and corporations accountable for their egregious climate change actions.

This emerging human rights & climate change (HRCC) field is transcending traditional means of targeting corporations (like tort law, liability, and criminal law) and is sure to expand its reach to corporate actors with breakthrough decisions like Milieudefensie et al v Royal Dutch Shell. For the first time, a corporation was held responsible for lowering its greenhouse gas emissions. Despite this, corporations continue to be secondary duty-bearers under international law and human rights obligations. They, in other words, continue to be fugitive.

This means that the HRCC movement must keep using its imagination. It should recognize the power of seemingly minor legal interventions and the use of less-shiny tools like the administrative agency. It should also be attentive to other forms of exploitation that are inherently—but not so obviously—linked to climate change, as targeting these can provide another avenue for climate change action. And we need all the help we can get.

What is 19 U.S.C. § 1307?

Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307) prohibits the importation into the US of any goods made “wholly or in part” using forced, indentured, or convict labor in any part of the world. Once a petition is filed, the US Customs and Border Protection (CBP) conducts an investigation to determine whether to issue a Withhold Release Order (WRO) to prevent imports from entering the country.

What does 19 U.S.C. § 1307 have to do with climate change?

The business model of outsourcing lower-value activities throughout “supply chains” spanning countries with wide-ranging (think: weak) legal systems and human rights practices is at the core of value creation for multinational corporations. Indeed, the agriculture, food, garment, mining and extraction industries, to name a few, get more bang for the buck when using the labor of more than 24 million modern slaves. 19 U.S.C. § 1307 is designed to target this problem by closing the door on forced-labor products.

The lack of transparency that allows corporations to exploit and perpetuate modern slavery has also given them a green light to indulge in environmental attacks. Indeed, those individuals who perform forced labor often work for industries with the most egregious climate change impacts. Yet the inexistent recognition of 19 U.S.C. § 1307 as a tool for climate accountability points to a conceptual gap in advocacy—a lack of consideration for the nexus between modern slavery, environmental degradation, and climate change.

Let’s take the Brazilian beef industry as an example. As the world’s principal beef exporting country, Brazil exported a total of US$7.3 billion in beef in 2019 alone—equivalent to 21% of global beef exports. Brazilian civil society, the ILO, the UN Special Rapporteur on Contemporary Forms of Slavery, the US Department of State and the Congressional Research Service, among other institutions, have evidence that the industry is sustained by rampant forced labor. Indeed, over half of all rescues of forced labor victims between 1995 and 2020 took place in the livestock sector. The crime is often accompanied by environmental offences, as the cattle ranch workers are themselves hired to clear native forests for pasture.

Uncoincidentally, the region with the highest incidence of slave labor in Brazil is the northern “deforestation arch,” including the Amazon Forest which is plagued by weak regulation. Between 2003 and 2014, over 21,000 workers were rescued from forced labor in the Amazon region alone, about 70% in the cattle raising sector. It is no secret that deforestation obliterates the Amazon’s ability to save humanity.

So, who is behind the monstrous Brazilian beef industry? JBS, Marfrig, and Minerva. Together, they are responsible for two-thirds of all Brazilian beef exports and account for over 40% of the Amazon rainforest’s slaughter capacity. The US is the fifth largest importer of Brazilian beef, importing 2.84% of all Brazilian exports, importing 56% of all Brazilian unprocessed beef exports between February and July 2020 alone. And it doesn’t stop there. Cattle raising in the Amazon has increased more than tenfold over the last 40 years. The US Department of Agriculture projects that Brazil’s export market share will reach 23% of global beef exports by 2028. With this impending storm, using the readily available 19 U.S.C. § 1307 as one of multiple tools to deter and bring awareness to both the human and climate grievances taking place in the Amazon Forest should be a no-brainer.

Why else use 19 U.S.C. § 1307?

There are many other reasons why advocates should take advantage of 19 U.S.C. § 1307:

1. Its reawakening: The statute laid dormant since its inception in 1930 due to its “consumptive demand exception” that largely swallowed the rule. After the Obama administration eliminated the exception in 2015, there has been a considerable uptick in the issuance of WROs. Between March 2016 and June 2021, the CBP issued almost 30 WROs, standing in stark contrast to the 33 WROs total issued from 1930 to 2015. This is part of a broader willingness by the current administration to use trade enforcement to tackle forced labor—an issue that has generally garnished wide bipartisan support. With this political momentum, now is the right time to act.
2. A Low Evidentiary Standard: If the CBP Commissioner finds at any time that information available reasonably, but not conclusively, indicates that merchandise violating 19 U.S.C. § 1307 is being, or is likely to be, imported into the US, then a WRO may be issued. This evidentiary threshold is much lower than that applicable to criminal statutes, like the TVPA, and makes this remedy quite accessible. Thus, even if courts deny a finding of forced labor in a specific case, there is hope that the CBP issues a WRO.
3. A Heavy Burden Shift to the Corporation: Once a WRO is put in place, the burden of proof shifts to the company in question to provide evidence, in ninety days, that the goods in question were not produced with forced labor or that it has remediated all of the 11 ILO indicators of forced labor. It is rare—has only happened twice—for a company to meet this high burden. So once a WRO is put in place, it is likely to stay in place.
4. Modeled After a Progressive Definition: The definition of forced labor used by 19 U.S.C. § 1307 was modeled after the ILO Convention’s definition. ILO instruments have therefore informed US approaches to forced labor, with the CBP explicitly referencing ILO standards in each WRO press statement issued in 2019. This is good news for practitioners, as ILO standards are progressive and recognize a wide range of behaviors as forced labor. US governmental bodies have recently called for the CBP to further promote alignment with ILO standards.
5. Accessible: While collecting evidence of forced labor may be daunting, the WRO petition submission process is straightforward and free of cost. This saves petitioners from resource drainage and the painfully slow timeframe of taking corporations to court. In addition, it allows petitioners to surpass the litigation tactics of corporate giants, including filing for bankruptcy, demanding stays, and launching sanctions motions against plaintiffs’ counsel.

Even if not explicitly tied to climate, WROs have already been successfully issued against corporations, like those in the palm oil and mining industries. Using our imagination to take advantage of readily available tools, like 19 U.S.C. § 1307, to build a holistic climate movement that covers all its bases is the least we can do for our planet.

August 17, 2021. Melina De Bona, The Earth Rights Research & Action (TERRA Law).

CLIMATE AND ENVIRONMENT

Enough Symbolism, We Need Real Climate Action: Why We Shouldn’t Let Governments Hide Behind Symbolic Climate Emergency Declarations

Though symbolic climate emergency declarations can helpfully shape the narrative around climate change, advocates shouldn’t let them be used to mask government failures to take material action to combat the climate crisis.

The dawn of a new administration raises hopes among climate activists that the U.S. government may finally take the urgent action needed to avert climate catastrophe. High-profile climate advocates have recently called on Joe Biden to be the “climate president.” As part of this effort to push Biden on climate change, some–including Representative Alexandria Ocasio-Cortez and Senate Majority Leader Chuck Schumer–have argued that the president should treat climate change like an emergency by declaring a climate emergency and, potentially, using the emergency powers afforded the executive to take bold actions on climate change.

What would that look like? Would it materially advance climate action? Experiences around the world on climate emergency declarations offer an answer: it depends.

A handful of countries and hundreds of municipalities, cities, and towns worldwide have declared a climate emergency, and those numbers continue to increase. Countries that have issued climate emergency declarations include: New Zealand, the United Kingdom, Canada, Bangladesh, and Argentina. Municipalities and cities likewise include: Sydney, Australia; New York City; Bogotá, Colombia; and South Chungcheong, South Korea. For some observers, this is an outstanding trend. The picture, however, is complicated upon further inspection and assessment of what these climate emergency declarations actually do.

While some of these climate emergency declarations are paired with material policy commitments and programs, overwhelmingly, these declarations are only symbolic. Although it’s important to shift the discourse on climate change so that its urgency garners more mainstream recognition, with less than ten years left to put humanity on track to avoid climate disaster, it just isn’t enough.

Below, we take a look at the climate emergency declaration trend and what it means for the new U.S. president.

What Is a Climate Emergency?

A climate emergency declaration is a resolution or piece of legislation passed by a governing body that recognizes climate change as an emergency and, generally, voices support for action commensurate with treating climate change as an emergency. The first climate emergency declaration was passed in 2016 in Darebin, Australia and hundreds of emergency declarations have been issued since.

Generally, climate emergency declarations tend to be non-binding resolutions. They may also be imbedded in larger climate legislation. If they are stand-alone resolutions, then they may be followed by additional climate legislation or policy commitments aimed at further reducing greenhouse gas emissions.

The content of the declarations varies, but they all label climate change as an “emergency.” They generally include expressions of support for mobilizations of resources, particularly on a massive scale. Indeed, one of the goals of Climate Mobilization, an organization leading the climate movement push for emergency declarations, is to build political will using emergency declarations for WWII-level resource mobilization in the fight against climate change. Many declarations also support efforts to reach carbon neutrality by 2030 or some other year in the near- to medium-term future. 

So, What Have Climate Emergency Declarations Actually Achieved?

Undeniably, climate emergency declarations have helped shift the discourse around climate change to better reflect the gravity and the urgency of the situation. This shift in the framing of climate change–from a problem that could be gradually addressed to one that requires immediate and profound action–is a goal of the climate advocates working to advance these declarations. Advocates argue that declaring climate emergencies can help trigger a “fundamental departure from [the] ‘normal’ mode of functioning” by waking people up to the existential threat posed by climate change. In other words, declaring a climate emergency can help shift people from functioning in a “business as usual” mode to a “climate emergency” mode by “telling the truth” about the nature of the climate threat.

Climate emergency declarations overwhelmingly, however, fall short of advancing material action on climate change. The climate emergency declarations issued by the United Kingdom, Canada, the European Union, Japan, Spain, and  Argentina, for example, are non-binding insofar as they do not require the government to take any particular action on climate change. Moreover, the vast majority of these declarations have been issued by local governments, which typically don’t have the emergency powers that federal governments do. Even in places where climate emergency declarations are paired with substantive policies, like in  New Zealand, the policy itself may not be sufficient nor actually reflect, in material terms, the characterization of climate change as an emergency. In other words, though political leaders are employing “emergency” rhetoric, they are failing to match that rhetoric with the substantive action that we would expect to see governments take in emergency situations. Though these political leaders are “declaring” climate change as an “emergency,” they are not invoking the emergency procedures and powers permitted under law that are used in other emergency situations, such as natural disasters and war.

Why It Matters that These Declarations Are Generally Non-Binding and Symbolic in Nature

Though climate emergency declarations clearly help communicate the dangers of climate change, they also provide cover for political leaders who want to play the role of a “climate leader” without taking the tangible action necessary to actually lead on climate change.

Take Canada, for example. In 2019, the Canadian House of Commons passed a non-binding resolution expressing the legislative chamber’s view that climate change is indeed an emergency and requires a response requisite with its characterization as such. However, the very next day, the Trudeau administration approved a controversial pipeline expansion. The fact that the Canadian government can pay lip service to climate action through a non-binding resolution while at the same time advancing policies that undermine climate mitigation highlights the core limitations of climate emergency declarations as they have been designed thus far. Not all governments demonstrate inconsistency on climate change as extreme as this, but the effect is similar. Climate emergency declarations, which are overwhelmingly symbolic, allow political leaders to paint themselves as being serious on climate change without making actual commitments or taking any concrete actions to stem the climate crisis.  

What Does All of This Mean for the United States?

The point is: we must not settle for symbolic performances in lieu of the ambitious material climate action that is so desperately needed.

Instead, let’s continue to push President Biden to be the climate president and treat climate change like the emergency it is. After all, this is one of the last presidencies that can still undertake ambitious actions to avoid locking in climate wreckage in the coming decades. But, given the stakes, let’s not give this administration–nor any government–the opportunity to hide behind symbolic performances. That means pushing Biden to make hard, substantive commitments on climate change, including the use of the constitutional and legal powers afforded the president during emergencies, so that climate action doesn’t continue to languish in a Congress, still home to far too many climate deniers and climate minimizers.

July 6, 2021. Jacqueline Gallant, The Earth Rights Research & Action (TERRA Law).