John-Paul Flintoff

Moment of reckoning

A campaign to put industrial polluters in the same bracket as war criminals

Polly Higgins, a British lawyer and environmentalist, is leading a campaign to introduce a law prohibiting ‘ecocide’ – one that would have consequences for virtually every business in the world.

Although she’s likely to face opposition from those in the energy, farming, mining, forestry and chemical industries, she has allies in business supporting her idea.

The movement to establish the crime of ecocide arose after the collapse of the 2009 climate talks in Copenhagen. Formal submissions have been made to the United Nations, which had briefly contemplated a law protecting the environment in 1945, along with “crimes against peace” (genocide, crimes against humanity, war crimes and crimes of aggression). The proposal now before the UN defines ecocide as: “The extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that enjoyment by the inhabitants of that territory has been severely diminished.”

It will be tested at the end of September in a mock trial at Britain’s Supreme Court. Real barristers will argue a case in front of a real judge – and a global audience watching the case via the internet.

Of course, no such law will come into force unless the international community decides it is needed. But is it a law that businesses should support or oppose?

Although we already have international laws to protect the environment, limiting pollution and protecting biodiversity, many businesses don’t think that the existing regulations are adequate. In July, 72 leading businesses – including Unilever, Google, Centrica, Coca-Cola, Marks & Spencer, H&M, Puma, ASDA, BT, National Grid, Thames Water, Nestlé, Nike, Kingfisher, IKEA, Sony, Danone, Carrefour, SSE, Philips, The Co-operative, Lloyds TSB and BSkyB – urged the European parliament to raise emissions-reduction targets.

They didn’t get what they wanted, not least because of lobbying by, among others, VW, ArcelorMittal, BP and Maersk.

Charles Perry, a former director of BP Green Energy, who now consults for other companies through his company, SecondNature Partnership, strongly supports Higgins’ proposal.

Perry says some industry sectors, such as consumer goods and retail, are racing towards sustainability, but that other sectors may need a stick as well as a carrot if they’re to change direction. “It’s not that people don’t want to change. They are doing valiant work. At BP, under John Brown, we wanted to move from the ‘oil and gas’ business model to an ‘energy’ model. There are demands on us to do that from within, and also from customers, the media and NGOs. But people in the industry feel stuck on a treadmill.”

Could a change to the law, with universal effect, be the answer? It has been tried in other areas. In 2002, Norway enacted a law requiring that the boards of big companies be at least 40% female. At first companies protested that no women were capable of filling the role, but having no alternative they set up recruitment programmes and started training. Now Norwegian corporate leaders say the reform was necessary, and that they needed something to open their eyes.

“Corporations and the economy, when faced with the risk of collapse, can reinvent their wheels overnight,” says Higgins, pointing out that in the US, car-makers in 1940 were obliged by law to convert their production lines to make 50,000 aircraft. Legislation was passed overnight rendering the manufacture of cars illegal, and generous subsidies were announced.

Environmentalists argue that something along the same lines is needed to reduce the daily toll on the planet. Each day, according to the World Resources Institute, two million tonnes of toxic waste are dumped into our rivers and seas, 22 million tonnes of oil are extracted and 100 million tonnes of greenhouse gases are emitted. “We are spending nature’s capital,” says Perry. “And nature’s capital is the foundation of all wealth.”

The Economics of Ecosystems and Biodiversity – a major international study backed by the UN Environment Programme, the EU and the German and UK governments – has calculated that ecological damage cost around $2.2trn in 2008, and $4trn in 2009.

Companies involved in the practices that cause some of these environmental problems say that if they didn’t do it, someone else would. With a law prohibiting ecocide, nobody would dare to risk causing such damage. Money and research would inevitably flow towards less harmful activities instead.

In oil-industry terms, creating a crime of ecocide would be like turning off the ‘upstream’ operations, or fixing problems at source. Do that and the downstream operations that depend on them shudder to a halt. “That sounds radical,” says Higgins, “but all those downstream operators will be required for mobilising mass innovation in the opposite direction.”

As things stand, with piecemeal efforts to protect the environment and conserve resources, governments are driven by short-term interests such as economic growth, or by national interests, causing worldwide problems to mount for others to address elsewhere or at a later date.

The problem is acute precisely because attempts to tackle it have been piecemeal. The US Chamber of Commerce opposes tougher environmental protections because it fears that business will be lost to companies overseas with less onerous regulations. (Even the Alliance of Automobile Manufacturers, whose members stood by President Obama to announce heightened fuel-efficiency requirements for their vehicles, asked him to delay regulations relating to ozone emissions.) A law that applied globally would resolve that.

As a lawyer, Higgins has seen for herself how difficult it is to get voluntary agreement between just two parties. “It occurs to me that trying to get 194 different countries, with all their vested interests and teams of negotiators, is a recipe for years of fatal compromise and disagreement. Radical law, on the other hand, completely changes the landscape.”

Anybody trying to establish clean technologies will tell you that it’s hard to raise interest or funds while competitors remain at liberty to use damaging practices that are cheaper. When Stephen Hester, chief executive of Royal Bank of Scotland, was asked at the bank’s AGM last year why he continued to invest in environmentally destructive projects, his response was: “Well, it’s not a crime.”

As things stand, ecological damage caused by companies can’t be prosecuted effectively. To bring a case against a polluter, say, environmentalists must demonstrate that people’s health has been put at risk, allowing companies to argue that the pollution in question has not been proved to cause cancer or whatever.

They don’t deny causing damage to nature but, in every country bar Ecuador, nature is not protected by law.

Companies that carry out illegal logging simply factor the fines into their prices. The legal remedy, such as it is, is no remedy at all – because it doesn’t stop the problem.

An international law against ecocide would be enforceable against individuals, not companies. Ever since the war-crimes trials at Nuremberg after the Second World War, people charged with crimes of strict liability like this have been deemed culpable whether they were in charge or subordinates – nobody can claim that they were “only following orders”.

Thus, the very existence of a law against ecocide would turn subordinates into whistleblowers: every individual automatically becomes a steward of the environment. Conceivably, this could save the expense of government-funded environmental agencies.
It’s highly likely that businesses would resist the introduction of a law on ecocide, even if many individuals working within those businesses privately welcomed it.

In behind-the-scenes lobbying, but not publicly, they argue that passing a new law doesn’t mean nobody will ever break it. The law against genocide didn’t protect the people killed in Rwanda in the 1990s. But with a law in place it will be possible to prosecute breaches, says Higgins. And risky projects would be hard to fund.

The World Bank already categorises the projects it invests in. Category A includes those that carry a risk of great harm, wide- ranging in geographical impact, long-term and severe. They are not prohibited, but require more extensive assessment before being signed off. BP’s Deepwater Horizon oil rig, which failed so catastrophically in the Gulf of Mexico last year, releasing as much as 800,000 barrels of oil every day, came into Category A. If ecocide became a crime, category B or C projects would get priority instead.

“These are radical proposals,” says Higgins. “But they are in alignment with existing voluntary guidelines for the most powerful bank in the world. Make Category A projects illegal, and when a taxpayer next challenges the CEO of Royal Bank of Scotland as to why he now refuses to invest money in such schemes, he will have the opportunity to put the response like this: ‘Well, it’s a crime.’

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