CLIMATE AND ENVIRONMENT

The MOTH Program & Project CETI explore how understanding whale communication can reshape the law

New York University’s More-Than-Human Life (MOTH) Program and Project CETI (Cetacean Translation Initiative) have joined forces to explore how advances in our understanding of sperm whale communications could lead to positive legal change. Their findings are presented in a new article forthcoming in Ecology Law Quarterly and published on New York University School of Law’s pre-print site (SSRN): “What if We Understood what Animals are Saying? The Legal Impact of AI-assisted Studies of Animal Communication.” The paper explores the growing fields of artificial intelligence and bioacoustics and their potential to reshape human and nonhuman law by challenging long-held assumptions about animal communication. 

Recent and interdisciplinary advancements in recording technology, advanced robotics, and AI have revealed that many species, from whales to honeybees, possess sophisticated communication systems. Pioneering projects like Project CETI utilize artificial intelligence and technological advances to study those communication systems and have already made groundbreaking findings, such as the sperm whale phonetic alphabet. Proving that cetaceans have a capacity for language would challenge current linguistic theories that confine language to humans and disrupt the legal landscape. From this starting point, co-authors César Rodríguez-Garavito, David F. Gruber, Ashley Otilia Nemeth, and Gašper Beguš explore two interdisciplinary questions rooted in law, linguistics, and science.

What if we could use AI to understand what animals – in particular, sperm whales – are saying? And what if we could use the law to translate that understanding into renewed protections and respect for nonhuman animal populations? 

Law and policy often lag behind the frontiers of scientific advancement, but the collaboration between NYU’s MOTH Program and Project CETI bridges that gap, bringing together two nascent and rapidly evolving fields: nonhuman animal communication technologies and more-than-human law. Together, the two organizations investigate the legal and ethical possibilities arising from new challenges to long-held assumptions about nonhuman animal communication. The joint article examines the legal implications of understanding sperm whales’ capacity for language and, taking the question even further, investigates the legal implications of understanding the contents of sperm whale communication.

Understanding the capacity and content of sperm whale language could radically reshape existing legal frameworks and supplement deeply insufficient contemporary understandings of cetacean behavior, social dynamics, needs, and experiences of suffering. These insights could strengthen enforcement of existing legislation, such as the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA), catalyze entirely new rights for cetaceans, or spark a fundamental transformation in cetaceans’ recognition and treatment by the law.

“At this inflection point, we must deepen our comprehension of the legal possibilities, and the risks, that arise when humans turn to AI to connect with and understand the more-than-human world,” says César Rodríguez-Garavito, founder of the MOTH Program and Professor at NYU Law. “But the potential impacts are much broader. By infusing legal thinking and practice with respect and reciprocity for other forms of life, we can reimagine what flourishing interspecies relationships look like.”

“A deeper appreciation for how nonhuman animals communicate allows us to better honor our relationship and interconnections with the natural world,” adds David Gruber, founder of Project CETI and Project Lead. “As science reveals new portals and understandings about the variety of ways in which life communicates with one another and other species, this shift in understanding should be paired by legal and policy protections.”

“Language is a defining trait of humanity—through language we build our relationships, societies, and even our laws. Science has already uncovered many properties of language in nonhuman animals, especially sperm whales, but we haven’t fully asked ourselves what this means for our legal frameworks. As AI-assisted research continues to bring new insights, we ask in our paper: If language underpins our humanity, our rights, and our laws, what does discovering these properties in nonhumans mean for their legal status, and how might our legal systems evolve as a result?” adds Gašper Beguš, CETI’s lead of Linguists and Associate Professor of Linguistics at the University of California, Berkeley.

“The history of nonhuman animal law demonstrates that science and public sentiment have long shaped—and will continue to shape—the way we treat other species. Unlocking nonhuman animal communication gives us yet another chance to wonder whether the boundaries of legal rights and personhood that humans have created are truly immutable,” says Ashley Otilia Nemeth, Supervising Attorney at the NYU Law MOTH Program.

The findings discussed in this article and the rapid growth of this field of research are already revealing an “immense world” of nonhuman animal perception, intelligence, and communication that humbles us into acknowledging our deep connections and similarities with the more-than-human world. With appropriate precautions and safeguards, the capabilities of today’s technology may not only draw us nearer to comprehension and “the verge of a breakthrough in interspecies technology.” They may also inspire new initiatives rooted in empathy and respect for the-more-than-human world, provide a path through current legal roadblocks, and raise fascinating challenges to fundamental legal paradigms, from entirely new rights to legal personhood.

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).

CLIMATE AND ENVIRONMENT

Fauna, Flora…and Funga: The Case for the Protection of Fungi Under National and International Law

Fungi are the Earth’s connective tissue and are crucial for human health and well-being. Yet, they have largely been ignored in international and national environmental law and policy. International negotiations this year provide an opportunity to fix this.

After a year of postponed meetings and conferences, the international community is back on track and poised to meet several times this year to tackle urgent environmental threats. In May, states will negotiate the Post-2020 Global Framework on Biodiversity, which will guide state biodiversity efforts for years to come. In September, the global community will consider means to strengthen the global food system at the UN Food Systems Summit. And in November, the climate crisis will again be the subject of global consideration at COP26 in Glasgow.

Problem-solving strategies – including those deployed to address environmental threats – aren’t fully effective unless they cover all of the key components of the given issue. This much is obvious. And yet, in the past, these types of international governance convenings – international and national environmental law generally – have ignored a crucial player: fungi.

Life on Earth depends on fungi. The vast majority of plants, for example, depend on symbiotic fungi to obtain the nutrients they need and ward off disease; indeed, plants never would have migrated onto land if not for their partnership with fungi. Fungi are also essential for fixing carbon and vital nutrients into the soil, thus providing a service that entire ecosystems depend upon to function. Humans rely on fungi for food, medicines, and spiritual practices. Indeed, many of the transformational advances in healthcare achieved in the past two centuries relied on fungi: penicillin, for example, comes from fungi. Many future advances in medicine – for treating cancers, viruses, and mental illnesses – are similarly likely to come from fungi. Yet despite their utmost importance, fungi are usually ignored in both international and national environmental protections.

It’s an ignorance we can’t afford to sustain. If international and national environmental law and policy continue to discount the interests of fungi and the threats they face, then these laws and policies will be – at best – ineffective.

The Status of Fungi in International and Domestic Law

There are a number of international environmental treaties that explicitly aim to mitigate threats to flora (plants) and fauna (animals). This includes the Convention on Biological Diversity (CBD) and the Convention on International Trade in Endangered Species of Wilde Flora and Fauna (CITES), both are seminal pieces of international environmental law. The texts of CBD and CITES, as well as other international environmental treaties, explicitly reference flora and fauna as the subject of the protections that the treaties offer. The third F – funga, representing the diversity of fungi species – is conspicuously absent.

This is not an inconsequential oversight. Not only does it mean that fungi species don’t benefit from the legal and policy protections offered by these treaties, but it also suggests that fungi are somehow less important than plants or animals. This could not be further from the truth, as fungi’s essential role in ecosystems demonstrates.

This misleading message is reflected not only in the absence of fungi in international treaty texts but also in the work of important conservation institutions. Take the International Union for Conservation of Nature (IUCN), for example. It is an international organization that, among other things, gathers and analyzes data and conducts research on the conservation and sustainable use of natural resources. As part of this work, IUCN compiles the Red List, which tracks the extinction risk status of plant, animal, and fungi species. However, while the Red List includes 43,556 plant species and 76,457 animal species, it only covers 343 fungi species. This is likely due both to a lack of attention paid to fungi species and the fact that, generally speaking, less effort has been made to identify fungi species relative to plant and animal species. Because there is a gap in IUCN’s work on fungi species and because IUCN’s data and analysis are critical in facilitating conservation work, it is more challenging to advance fungi conservation than plant and animal conservation.

In general, domestic law mirrors international law in its failure to explicitly recognize fungi as a distinct form of life with distinct needs. The major exception to this is Chile, where the concerted efforts of fungi activists to secure policy protections for fungi led to their explicit inclusion in a major environmental law passed in 2010. As a result of this, Chile’s main conservation law – which establishes procedures for protecting at-risk species – now includes fungi. 

What Can Be Done and Why It Matters

The aforementioned gap in international and national law needs to be filled by explicitly incorporating fungi. This begins with expanding discussions of flora and fauna to include funga – thereby making it the “3 Fs.” Policymakers and environmental advocates should work to ensure that fungi are clearly included in conservation frameworks. That may mean changing the text of a given national conservation law to include fungi or it may mean working at the agency-level to ensure regulations incorporate fungi.

Recognizing fungi in international and national law has important practical and symbolic consequences. Practically, it will unlock funding for fungi research, obligate governments to take certain steps to protect fungi, and limit certain activities harmful to vulnerable species of fungi. Symbolically, it signals the importance of fungi and their role in ecosystems. This is why we at the Climate Litigation Accelerator – in collaboration with fungi experts Giuliana Furci and Merlin Sheldrake – launched an initiative (FaunaFloraFungi) to fill this regulatory gap. The programmatic statement of the initiative is open to signatures and has already been endorsed by Jane Goodall, Michael Pollan, Donna Haraway, Andrew Weil, Andrea Wulf, Paul Stamets, Robert Macfarlane, Wade Davis, David Boyd and a number of other prominent scientists, naturalists, environmental advocates, and citizens from around the world.

Fungi are equal members of Earth’s web of life and fundamental to the health of humans and the planet. This year provides exceptional opportunities to update international and national law and policy to finally reflect this truth. Let’s make sure to use them.

April 27, 2021. César Rodríguez-Garavito and Jacqueline Gallant, The Earth Rights Research & Action (TERRA Law).