Category Archives: Human Rights

A Comment on the Aquila Back Forty Wetland Permit

AquilaWetlandMap

An Aquila Resources map outlines the wetlands that will be impaired by its open pit sulfide mine on the Menominee River.

Earlier this morning, I sent this comment on the Aquila Resources Back Forty Wetland Permit to the Michigan Department of Environmental Quality. Public comments may be submitted here until February 2nd.

To the MDEQ:

You have probably already received a number of comments on the Back Forty Mine wetland permit application from people who live out of state, as I do. Some of those opposed to sulfide mining on the Menominee River live on the Wisconsin side, just across or downstream from the proposed mine site. Others, across the country and around the world, are deeply concerned about the cumulative effects the current leasing, exploration, and sulfide mining boom around Lake Superior will have, and are alarmed to see federal and state regulatory agencies abdicating their responsibilities to the American public in order to do the bidding of foreign mining companies.

Denying the wetland permit is the only prudent and responsible course for MDEQ to take.

As the organization American Rivers noted when it placed the Menominee River on its list of “most endangered” rivers in 2017, the Aquila Resources Back Forty project poses a “significant threat” of acid mine drainage to the river, and to the “cultural and natural resources of the Upper Peninsula, Wisconsin, and the Great Lakes Region.” Allowing Aquila to destroy or compromise area wetlands to construct its mine will only heighten the risk of large scale environmental catastrophe.

The risk is compounded by both regulatory and scientific uncertainty. As you are well aware, the Menominee Tribe maintains that the MDEQ lacks authority to issue this permit, because under provisions of the Clean Water Act the Menominee River and its wetlands are federal waters. This question remains unsettled. In the meantime, a third party, independent review of Aquila’s wetland permit application found errors and inconsistencies regarding the company’s findings on groundwater drawdown and the mine’s feasibility analysis. The wetland permit application you are considering is either flawed, because the people who filed it are incompetent, or misleading, because they have something to hide.

Deceit might be Aquila’s best strategy at this point. The Back Forty project has no claim to social license — none. The Menominee and other Wisconsin tribes have been adamant in their opposition. Local residents are overwhelmingly opposed as well. Of the 90 people who had the opportunity to speak at the January 23rd public hearing in Stephenson, only 4 could muster an argument for the mine, mainly because they put stock in the vague promise of “jobs” made by mining proponents. The rest — 86 out of 90, or 95 percent — stood in opposition to the mine.

Even if Aquila is not deliberately misleading the MDEQ and the public, the Canadian company has demonstrated time and again that it is not a responsible steward of Michigan or Menominee lands. In archaeological surveys of the region, for instance, Aquila claims to have uncovered nothing of “historical significance.” That is telling. These surveys have found nothing because they fail, or refuse to see, the significant Menominee history and culture that is right in front of their eyes. As tribal members have made repeatedly clear, Menominee history, ancestry, and culture begin and end in the river, the land, and the forest. What is historically significant or meaningful is not merely a collection of artifacts; it is a way of life and a deep connection to place. The Back Forty Mine threatens to destroy that connection.

In sum, the wetland permit application is flawed, the company has no social license to operate, and allowing the Back Forty to go forward would violate the public trust.

MCRC v. EPA at the Sixth Circuit

mcrc_map1s

“Well, if you took all these papers,” said EPA counsel Ellen J. Durkee, referring to the various proposals put forward for CR 595, “what you’d have is their proposal in June, their proposal in July, their proposal in October, their proposal in November, their proposal in, you know, different — twice in December…. really what’s needed is they have to say…what is the proposal that they consider their application at this point.” A good review of the various proposals for the Eagle Mine haul route can be found here.

In remarks before the Sixth Circuit Court of Appeals on Wednesday, Mark Miller of the Pacific Legal Foundation waved the flag of “cooperative federalism,” complained that the Environmental Protection Agency has “gone way beyond the powers that Congress gave them,” and even, at one point, raised the familiar spectre of an anti-mining conspiracy at the EPA and the Army Corps of Engineers.

They did not want a permit here from before. In the pre-application process, there was a meeting, among the parties — not among Marquette County Road Commission, they were not invited — but the government said we are not going to approve this road project. This was a well-known proposed road project from a mine to a mill, and the EPA and the Corps wanted none of it. So that’s why it was futile factually.

Miller has elaborated on these arguments in the Wall Street Journal and elsewhere. As I have suggested in previous posts on Marquette County Road Commission v. EPA, grandstanding arguments like these are intended to raise the profile of this dispute and make it about much more than a haul road. They have been used, repeatedly, to connect the Road Commission’s case with a larger, coordinated effort — a right-wing, dark-money political project — to sideline federal regulators in Michigan and weaken enforcement of the Clean Water Act; stifle local environmental watchdogs; and arrogate the authority and power to direct economic development in the Upper Peninsula to a set of undisclosed actors.

But on Tuesday, those arguments didn’t count for much in Miller’s presentation before the Sixth Circuit panel. At the center of the dispute is still the question whether EPA’s objections to CR 595 constitute “final agency action,” as the Road Commission claims, or if they are an “interlocutory step” (in which case, the Road Commission can still take the EPA’s objections under advisement and go back to the Corps with a proposal).

Miller claimed right off the bat, in the very first sentence of his argument, that EPA’s objections were tantamount to a “veto.” I’ve written about this argument before. On Tuesday, the judges wanted to know what exactly Miller meant by that word. “You keep saying the EPA vetoed the application for the permit,” asked one of the judges just four minutes into the proceedings. “What do you mean by that?” Ten minutes later, another Judge indicated she was still not satisfied on this point:

JUDGE: What makes it — you keep using the word veto.
MILLER: Yes, your honor.
JUDGE: But it was really objections, right?
MILLER: Your honor I think that’s a distinction without a difference because effectively here the EPA has twice said, “no, DEQ, this permit you’re ready to issue is not good enough for us.” And the reasons the EPA was giving were not within its powers to give. Then the EPA knew it was taking advantage of the statute to say well now it’s going to bounce to the Corps.

That there is no “difference” between objections and vetoes is critical to Miller’s argument for futility, which claims it would be a “farce” for the Road Commission to go back to the Corps.

When it came to her turn, Ellen Durkee, arguing for the EPA and the Army Corps, pursued the point:

I’d like to speak to this issue of this continued use of the word “veto,” because I think that that is, seems to be the critical characterization for the plaintiff’s argument here. A veto means that you cannot get a permit. In [Section] 404 [of the Clean Water Act] itself, there’s a distinction between what happens in 404j with EPA objections and a true veto, and you know they — in this case, the EPA objection gives the state opportunity to take action. And then when the state, as it did here — there’s an impasse, because they didn’t take action within the statutory time, it simply shifts the permitting authority. That is not a veto. The Corps may look at this and say we think it’s satisfactory. EPA, you know, they may come up with the provisions that they need to satisfy that, the objections, in which case they could still get a permit. What [the Road Commission] simply did was stop the process and decide not to continue.

And the word “veto” was still begging questions at the end of the proceeding, when Judge Helene N. White went back to Miller.

JUDGE; Let me just ask you this question. Once the EPA made its objections, the DEQ still had three options, correct?
MILLER: Yes your honor.
JUDGE: And they were grant, deny, or do nothing.
MILLER: In this case the DEQ threw its hands up because they could never — if they granted the permit, the landowner would have nowhere to go because the EPA made it clear it was not going to sign off on it. So they deny it and then transfer– they threw their hands up because the reasons the EPA gave were improper under the statute.
[Crosstalk.]
MILLER: Yes, your honor.
JUDGE: Ok. Did they have three options? Grant, deny, or do nothing?
MILLER: Your honor, they had the options, but ultimately once the EPA gives arbitrary and capricious objections they really had no choice.
JUDGE: But they could have said, they could have denied the permit, right? They could have said we are honoring the objections and we deny the permit.
MILLER: Right and they didn’t, your honor, respectfully they didn’t.

You can listen to the whole proceeding here, or read my (imperfect) transcript of the proceeding.

Acts and Sets of Acts

This passage in Derek Parfit’s Reasons and Persons (1984) deserves calling out, not least because it sets the stage for the arguments against climate change despair I reviewed in a previous post.

In small communities, it is a plausible claim that we cannot have harmed others if there is no one with an obvious complaint, or ground for resenting what we have done.

Until this century, most of mankind lived in small communities. What each did could affect only a few others. But conditions have now changed. Each of us can now, in countless ways, affect countless other people. We can have real though small effects on thousands or millions of people. When these effects are widely dispersed, they may be either trivial, or imperceptible. It now makes a great difference whether we continue to believe that we cannot have greatly harmed or benefited others unless there are people with obvious grounds for resentment or gratitude. While we continue to believe this, even if we care about effects on others, we may fail to solve many serious Prisoner’s Dilemmas. For the sake of small benefits to ourselves, or our families, each of us may deny others much greater total benefits, or impose on others much greater total harms. We may think this permissible because the effects on the others will either be trivial or imperceptible. If this is what we think, what we do will often be much worse for all of us.

If we cared sufficiently about effects on others, and changed our moral view, we would solve such problems. It is not enough to ask, ‘Will my act harm other people?’ Even if the answer is No, my act may still be wrong, because of its effects. The effects that it will have when it is considered on its own may not be its only relevant effects. I should ask, ‘Will my act be one of a set of acts that will together harm other people?’ The answer may be Yes. And the harm to others may be great. If this is so, I may be acting very wrongly…. We must accept this view if our concern for others is to yield solutions to most of the many Prisoner’s Dilemmas that we face: most of the many cases where, if each of us rather than none of us does what will be better for himself — or for his family, or those he loves — this will be worse, and often much worse, for everyone.

A Note on Stone’s “Should Trees Have Standing?”

A report in the New York Times the other day about the Federal District Court case naming the Colorado River as plaintiff led me to Christopher D. Stone’s 1972 Southern California Law Review article, “Should Trees Have Standing?” Justice Douglas drew on Stone’s arguments to formulate his dissent in Sierra Club v. Morton, and since that time the essay has been widely influential, a classic that helped define a field.

For Stone, a river or a lake, a mountain or a forest, a species or the biosphere can have roughly the same status as other “legal incompetents.” A human guardian or, as we might say nowadays, a protector brings a complaint for a natural entity that has suffered some injury. The case is brought “at the behest of” the river or mountain, without having first to prove injury to the guardian or some third party (e.g., a fishing guide whose business has suffered as the result of stream pollution); and the natural entity itself would be the beneficiary of an award or remedy ordered by the court. So, for instance, a judgment against those who have polluted a stream might direct them to undo the damage done to its waters, mitigate erosion of its banks and depletion of its plant life, restock its fish, and so on. The stream would have a “right” to be made whole again.

Stone recognizes that his proposal “is bound to sound odd or frightening of laughable,” but that, he notes, has been true of any movement to confer rights on rightless “things”:

There will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet it is hard to see it and value it for itself until we can bring ourselves to give it “rights” — which is almost inevitably going to sound inconceivable to a large group of people.

Stone’s thinking can seem way ahead of its time — and ours (even if the writing here is sometimes redolent of Southern California in the early 1970s). This is especially true toward the end of the piece, where Stone moves from making strictly jural arguments for the standing of rivers, trees, and other natural entities to broader observations about the “shift from the view that nature exists for men”:

…the time is already upon us when we may have to consider subordinating some human claims to those of the environment per se. Consider, for example, the disputes over protecting wilderness areas from development that would make them accessible to greater numbers of people. I myself feel disingenuous rationalizing the environmental protectionist’s position in terms of a utilitarian calculus, even one that takes future generations into account, and plays fast and loose with its definition of “good.” Those who favor development have the stronger argument — they at least hold the protectionist to a standstill — from the point of advancing the greatest good of the greatest number of people. And the same is true regarding arguments to preserve useless species of animals, as in [the case of sea urchins endangered by a nuclear power plant.] One can say that we never know what is going to prove useful at some future time. In order to protect ourselves, therefore, we ought to be conservative now in our treatment of nature. I agree. But when conservationists argue this way to the exclusion of other arguments, or find themselves speaking in terms of “recreational interests” so continuously as to play up to, and reinforce, homocentrist perspectives, there is something sad about the spectacle. One feels that the arguments lack even their proponent’s convictions. I expect they want to say something less egotistic and more emphatic but the prevailing and sanctioned modes of explanation in our society are not quite ready for it. In this vein, there must have been abolitonists who put their case in terms of getting more work out of the Blacks. Holdsworth says of the early English Jew that while he was “regarded as a species of res nullius … [H]e was valuable for his acquisitive capacity; and for that reason the crown took him under its protection.” (Even today, businessmen are put in the position of insisting that their decent but probably profitless acts will “help our company’s reputation and be good for profits.”)

For my part, I would prefer a frank avowal that even making adjustments for esthetic improvements, what I am proposing is going to cost “us,” i.e., reduce our standard of living as measured in terms of our present values.

We may still not be “ready for it,” as Stone puts it; and, he goes on to say, there might be a more “fundamental problem” with asking human beings to put their own immediate self-interest aside and act on ethical principle, or to limit our rights in order to respect the rights of others:

Insofar as the proposal is not just an elaborate legal fiction, but really comes down in the last analysis to a compromise of our interests for theirs, why should we adopt it? “What is in it for ‘us’?”

This is a question I am prepared to answer, but only after permitting myself some observations about how odd the question is. It asks for me to justify my position in the very anthropocentric hedonist terms that I am proposing we modify. One is inclined to respond by a counter: “couldn’t you (as a white) raise the same questions about compromising your preferred rights status with Blacks?”; or “couldn’t you (as a man) raise the same question about compromising your preferred rights status with women?” Such counters, unfortunately, seem no more responsive than the question itself. (They have a nagging ring of “yours too” about them.) What the exchange actually points up is a fundamental problem regarding the nature of philosophical argument. Recall that Socrates, whom we remember as an opponent of hedonistic thought, confutes Thrasymachus by arguing that immorality makes one miserably unhappy! Kant, whose moral philosophy was based upon the categorical imperative (“Woe to him who creeps through the serpent windings of Utilitarianism”) finds himself justifying, e.g., promise keeping and truth telling, on the most prudential-one might almost say, commercial-grounds. This “philosophic irony” (as Professor [S. Morris] Engel calls it) may owe to there being something unique about ethical argument. “Ethics cannot be put into words”, Wittgenstein puts it; such matters “make themselves manifest.” On the other hand, perhaps the truth is that in any argument which aims at persuading a human being to action (on ethical or any other bases), “logic” is only an instrument for illuminating positions, at best, and in the last analysis it is psycho-logical [sic] appeals to the listener’s self-interest that hold sway, however ”principled” the rhetoric may be.

That logic may have its limits and ethical argument its attendant ironies should not deter us. “The strongest case can be made from the perspective of human advantage,” Stone writes; and after reviewing that case, he goes on to suggest that protecting the environment will actually raise our standard of living, if not in terms of our present values, then (this point deserves emphasis) in terms of new and more durable values.

Stone is even prepared to argue that “a radical new conception of man’s relationship to the rest of nature would not only be a step towards solving the material planetary problems” (and the problems Stone identifies here, in 1972, are still very much with us and more urgent than ever before: melting polar ice caps, dying oceans, serious threats to water). “There are strong reasons for such a changed consciousness [Stone admits that he is uncomfortable with the term] from the point of making us far better humans.” Recognizing the rights of those whose standing once seemed “unthinkable,” to borrow Stone’s phrase, surely has.

Scanlon on Tolerance and Territorial Rivalry

From “The Difficulty of Tolerance” in Toleration. An Elusive Virtue:

Any society, no matter how homogeneous, will include people who disagree about how to live and about what they want their society to be like. (And the disagreements within a relatively homogeneous culture can be more intense than those within a society founded on diversity like the United States.) Given that there must be disagreements, and that those who disagree must somehow live together, is it not better, if possible, to have these disagreements contained within a framework of mutual respect? The alternative, it seems, is to be always in conflict, even at the deepest level, with a large number of one’s fellow citizens. The qualification “even at the deepest level” is crucial here. I am assuming that in any society there will over time be conflicts, serious ones, about the nature and direction of the society. What tolerance expresses is a recognition of common membership that is deeper than these conflicts, a recognition of others as just as entitled as we are to contribute to the definition of our society. Without this, we are just rival groups contending over the same territory. The fact that each of us, for good historical and personal reasons, regards it as our territory and our tradition just makes the conflict all the deeper.

Three Questions for the Michigan DEQ on the Back Forty Project

Earlier this month, the Michigan Department of Environmental Quality announced its intention to permit the Back Forty Project, an open-pit gold and zinc sulfide ore mine that Aquila Resources, a Canadian company, plans to develop near the headwaters of the Menominee River. In response to the MDEQ’s request for public comment by November 3rd, I’ve submitted these three questions. I’m posting them here so that others might consider them in the run up to the public meeting with the MDEQ in Stephenson, Michigan on October 6th.

  1. In determining that the Back Forty Project application meets the requirements for approval under Part 632, did MDEQ take into account the cumulative effects of sulfide mining throughout the Lake Superior watershed? We know that the Back Forty project poses a significant risk to the Menominee River all by itself. With the mine in close proximity to the river, a flood, berm collapse, subsidence or a slide could destroy the Menominee River; to answer these serious concerns by asking the company to add a “synthetic, manmade liner under their waste/tailing rock facility,” as the DEQ has proposed, is to trivialize them. Other development that the mine will inevitably bring, including haul routes, power lines, lights, fueling stations, exhaust and machine noise, will leave a large industrial footprint and disturb the Menominee River and its environs in countless ways. At the same time, this mine will heighten the risk, in the long term, of large-scale environmental destruction posed by the resurgence of sulfide mining not just in Michigan’s Upper Peninsula, but in Minnesota and Canada as well — all around the lake and throughout the Lake Superior watershed. Has the DEQ completed or participated with neighboring state agencies and tribal authorities in a scientific study of the cumulative impacts of sulfide mining around Lake Superior? Has the DEQ issued guidance on how cumulative environmental effects should factor into its decision-making process for permitting new mines in Michigan?
  2. Has MDEQ made any determination about the human rights implications of its decision to allow the Back Forty project to go forward? Human rights are not outside the DEQ’s bailiwick, no matter how hard it may try to exempt itself. Witness Flint. In the present case, the DEQ’s oversight is inextricably bound up with the state’s obligation to protect human rights abuses by third parties. Aquila’s Back Forty project is sure to disturb, and likely to desecrate, lands traditionally belonging to the Menominee and still held sacred by them; and making provisions for archaeological recovery and preservation of mounds and other sacred sites does not adequately address the basic human rights issues involved here. The headwaters of the Menominee River are central to the tribe’s creation story, marking the place where the Menominee people originated. Their very name derives from manoomin, or wild rice, which will not survive changes in sulfate levels or degradation of overall water quality. As tribal member Guy Reiter has said, “It’s no different than if an open-pit sulfide mine was put in Bethlehem for the Christians.” Seen from this perspective, the Back Forty is not only an affront to Menominee history; it also puts the cultural survival of the Menominee people at risk. How will the DEQ factor such human rights considerations into its decision-making process?
  3. What has the DEQ done to restore trust in its authority, and reassure the Menominee and people living downstream from the Back Forty project in Michigan and Wisconsin that it will exercise appropriate care? The Flint water crisis cast a long shadow, and reinforced the perception that “politics and poverty are big factors” in DEQ decision making. “The same attitude of disregard for citizens and the environment has repeated itself in DEQ decisions across our state for well over a decade,” said Marquette attorney Michelle Halley after news of the Flint water crisis broke; controversy over the renewed Groundwater Discharge Permit issued by MDEQ at Eagle Mine and legitimate concerns about lax oversight at Eagle East help make her case. Like all government agencies, the Michigan DEQ should operate in sunlight. Already, however, troubling questions have been raised about the transparency of the Back Forty permitting process. For example, Al Gedicks, Executive Secretary of the Wisconsin Resources Protection Council, asks why the DEQ appears to be in a “rush” to grant the Back Forty permit. So as things now stand, the DEQ enjoys de jure authority in Michigan under Part 632, but it is unclear whether the DEQ still enjoys de facto authority, which could only derive from demonstrations of regulatory competence. How does MDEQ intend to quell public concern that it is compromised or incompetent, and reassure the public that it is a responsible steward?

Laudato Si’ on Mining

The views of mining we find in the new papal encyclical Laudato Si’ clearly reflect the Latin American experience — centuries of plunder and absconded wealth, industrial development and economic underdevelopment, violence and ruin, degradation of the land and destruction of communities where mining is done. But in its careful attention to issues of water, water access, and the condition of the world’s poor, the encyclical raises serious questions about mining and the ethics of mining everywhere in the world.

Laudato Si’ explicitly addresses mining in three places, raising the very same issues that I’ve been writing about here, in connection with the new mining around Lake Superior. So I thought I would set out these passages for consideration now, with the intention of returning to them after I have had a chance to read the encyclical more carefully.

The first explicit mention of mining in Laudato Si’ comes at 29, which deals with the “serious problem” of “the quality of water available to the poor.”

Underground water sources in many places are threatened by the pollution produced in certain mining, farming and industrial activities, especially in countries lacking adequate regulation or controls. It is not only a question of industrial waste. Detergents and chemical products, commonly used in many places of the world, continue to pour into our rivers, lakes and seas.

At 51, one of the most powerful passages in the entire encyclical looks at the role of mining in creating an “ecological debt” of the global north to the global south, where raw materials are taken from the land for markets that serve the wealthy, industrialized north:

Inequity affects not only individuals but entire countries; it compels us to consider an ethics of international relations. A true “ecological debt” exists, particularly between the global north and south, connected to commercial imbalances with effects on the environment, and the disproportionate use of natural resources by certain countries over long periods of time. The export of raw materials to satisfy markets in the industrialized north has caused harm locally, as for example in mercury pollution in gold mining or sulphur dioxide pollution in copper mining.

Quoting a 2009 Christmas Message from the Bishops of Patagonia-Comahue Region of Argentina, Laudato Si’ goes on to explain that the industrialized world has incurred this debt because mining and other companies

operate in less developed countries in ways they could never do at home, in the countries in which they raise their capital: “We note that often the businesses which operate this way are multinationals. They do here what they would never do in developed countries or the so-called first world. Generally, after ceasing their activity and withdrawing, they leave behind great human and environmental liabilities such as unemployment, abandoned towns, the depletion of natural reserves, deforestation, the impoverishment of agriculture and local stock breeding, open pits, riven hills, polluted rivers and a handful of social works which are no longer sustainable.”

Finally, at 146, the encyclical addresses the way mining projects degrade and destroy land that indigenous communities regard as “sacred space,” often displacing them and threatening their very survival:

it is essential to show special care for indigenous communities and their cultural traditions. They are not merely one minority among others, but should be the principal dialogue partners, especially when large projects affecting their land are proposed. For them, land is not a commodity but rather a gift from God and from their ancestors who rest there, a sacred space with which they need to interact if they are to maintain their identity and values. When they remain on their land, they themselves care for it best. Nevertheless, in various parts of the world, pressure is being put on them to abandon their homelands to make room for agricultural or mining projects which are undertaken without regard for the degradation of nature and culture.

Can Mining Be Saved?

TeslaGigafactory

The Tesla Gigafactory, currently under construction in Storey County, Nevada.

Andrew Critchlow, Commodities Editor at The Telegraph, speculates in a recent article that Elon Musk and Tesla might “save the mining industry” by ushering in a new age of renewable energy. Domestic battery power production at the Tesla Gigafactory (now scheduled to go into production in 2016) is bound to create such demand for lithium, nickel and copper, Critchlow thinks, that the mining industry will find a way out of its current (price) slump and into new growth, or possibly a new supercycle.

“Major mining companies are already ‘future proofing’ their businesses for climate change by focusing more investment into commodities that will be required by the renewable energy industry,” writes Critchlow; and the “smart commodity investor” will follow suit, with investments in “leading producers” such as — this is Critchlow’s list — Freeport-McMoRan, Lundin Mining and Fortune Minerals.

It’s a credible scenario, but it’s also terribly short-sighted. The big switch over to domestic solar power and battery storage Musk is hyping in the run up to the opening of the Gigafactory would no doubt give miners a short-term boost, but it will also take a lasting toll on the places where copper and nickel are mined, raise serious human rights concerns, and put even more pressure on the world’s freshwater resources.

After all, the copper and nickel used to make Tesla’s batteries are going to come from places like the Democratic Republic of Congo, where Lundin and Freeport-McMoRan operate a joint venture at Tenke Fungurume, and which has been at the center of the recent debate in the EU parliament over conflict minerals; Peru, where protests against Southern Copper Corporation’s Tia Maria project led the government to declare a state of emergency in the province of Islay just last Friday; or the nickel and copper mining operations around Lake Superior that I’ve been following here, where there are ongoing conflicts over free, prior and informed consent, serious concerns that sulfide mining will damage freshwater ecosystems and compromise one of the largest freshwater lakes in the world, fights over haul routes, and repeated complaints of lax regulatory oversight and political corruption.

Rice farmers clash with riot police in Cocachacra, Peru. The fight is over water. (AP Photo/Martin Mejia)

These are just a few examples that come readily to mind. It wouldn’t take much effort to name others (Oyu Tolgoi, Oak Flat, Bougainville) and to see that the same problems arise, to a greater or lesser degree, no matter where copper and nickel mining — sulfide mining — is done.

The mining industry and commodities investors have historically tended to minimize and marginalize the environmental and social costs of sulfide mining; so it’s really no surprise that Critchlow should argue that increased demand by battery producers is all it will take to “save” mining. Leave it to others, I guess, to save the world.

But the supply and demand model is reductive and misleading, even for those looking to make a fast buck. A recent Harvard study of company-community conflict in the extractive sector summarized by John Ruggie in Just Business suggests just how costly conflict can be. A mining operation with start-up capital expenditures in the $3-5 billion range will suffer losses of roughly $2 million for every day of delayed production; the original study goes even further, and fixes the number at roughly $20 million per week. Miners without authentic social license to operate lose money, full stop. So Critchlow’s is at best a flawed and myopic investment strategy that ignores significant risks. It also appears to shrug off legitimate human rights claims, and turn a blind eye to environmental degradation, and deadly violence of the kind we’re seeing in Peru right now. That’s irresponsible, if not downright reprehensible.

A Macquarie Research report cited by Critchlow claims that the switch away from fossil fuels to battery power in the home is all but inevitable. But if we make the switch to renewables and fail — once again — to address the ethics of mining, what exactly will we have saved?

The Breach at Mount Polley Represents a Failure of Governance

The Imperial Metals Corporation’s Board of Directors claims “ultimate responsibility” for the company and its business operations, but we have yet to learn exactly how the Board will exercise responsibility after the Mount Polley disaster. It’s not even clear the Board is capable of responding to the spill with anything but the public displays of emotion and concern we’ve already seen, weak assurances that the disaster has been “stabilized” and vague promises to do better next time. None of that amounts to taking responsibility.

Deregulation, lax regulation and staffing cutbacks on the government side are being blamed for the breach of the tailings pond. There are charges of collusion: “The government isn’t inspecting the mines, and the mining companies know it,” says consultant and advocate Glenda Ferris. But the breach at Mount Polley also represents a failure of internal or corporate governance at Imperial Metals: the board does not appear qualified to deal with the risks the mining company’s operations actually entail.

The Mount Polley breach has shown just how big those risks are, and how extensive are the responsibilities they carry. Imperial’s operations have created an environmental catastrophe (in the words of Phil Owens, Professor at University of Northern British Columbia). The last assessment I saw reported that Imperial Metals has released over 10 million cubic meters of water and 4.5 million cubic meters of toxic waste into surrounding rivers and waterways. The sudden rush of toxic waters was so powerful it took down trees in its wake.

There are important human rights considerations here as well, now that Imperial has compromised access to clean water throughout the region for who knows how long. Reassurances from Imperial Metals president Brian Kynoch that the water “in our tailings” is “very close to drinking water quality” are an insult to the intelligence, and make a mockery of serious human rights claims.

It’s not a question whether the mining company is a “bad actor,” or whether it’s “unfair” to portray them that way, as British Columbia energy minister Bill Bennett complained earlier today. It‘s a question of competence: who’s seated at the boardroom table before anything like this happens, and whether they are able to meet the serious responsibilities that go along with running a mining operation.

No one on the Imperials Metal board has environmental or human rights credentials. The company’s sulfide mining operations — and those of any mining company — require people with both. They should have a boardroom seat as well as a real say in how business gets done and how to mitigate mining’s risks. Until then, talking about “ultimate responsibility” is just guff.

 

“It Is Claiming that Gives Rights Their Special Moral Significance”

This passage from Feinberg’s “The Nature and Value of Rights” (here’s a Google books link ) helps me to frame and think further about what I said in my previous post on John Ruggie and respect, so I want to set it down here as a kind of postscript.

Where I used the word “demand,” which carries some sense of asking (like the French demander), and talked about respect as something we “ask” of others, Feinberg settles on the more legalistic “claim,” and most writers follow him. I can probably do the same and allow his work to inform what I have to say about “the power of asking.”

Claims are, after all, a kind of asking, a crying out (cf. Latin clamare); they call for an answer, and I think this becomes tolerably clear later on in the same essay, where Feinberg talks about “valid” claims; and in the passage below, where Feinberg offers the thought that  that “‘human dignity’ may simply be the recognizable capacity to assert claims.”

I would probably want to flip that point around or jostle it a little, to emphasize the role of recognition and the critical role second persons play in recognizing the dignity of first persons. If “it is claiming that gives rights their special moral significance,” then it’s fair to suggest that “moral significance” is something mutually created by those who make claims and those who recognize them, or at least recognize another’s capacity to make them.

Even if there are conceivable circumstances in which one would admit rights diffidently, there is no doubt that their characteristic use and that for which they are distinctively well suited, is to be claimed, demanded, affirmed, insisted upon. They are especially sturdy objects to “stand upon,” a most useful sort of moral furniture. Having rights, of course, makes claiming possible; but it is claiming that gives rights their special moral significance. This feature of rights is connected in a way with the customary rhetoric about what it is to be a human being. Having rights enables us to “stand up like men,” to look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others. Indeed, respect for persons (this is an intriguing idea) may simply be respect for their rights, so that there cannot be the one without the other; and what is called “human dignity” may simply be the recognizable capacity to assert claims. To respect a person then, or to think of him as possessed of human dignity, simply is to think of him as a potential maker of claims. Not all of this can be packed into a definition of “rights”; but these are facts about the possession of rights that argue well their supreme moral importance.