S1, Ep3 | The Cloud Forest Vs. The Mine

[00:00:00] Amy Westervelt: Welcome back to damages. I'm Amy Westervelt. So far, this season we've looked at how rights of nature has worked in both tribal court and district courts in the United States.

[00:00:21] Christopher Stone archival: What would the law have to look like to correspond to a state of affairs in which the river had rights, the suit would have to be brought in the name of the river. The river would be the plaintiff, not Jones.

[00:00:33] Amy Westervelt: But for most folks, if they've heard about rights of nature at all, it's not because of how the idea has played out in the U S but because of how it took hold in South America. Particularly in Ecuador. Monica Feria Tinta mentioned this in our last episode, you know, it's, it's, it's quite unique in the world.

[00:00:54] Monica Feria Tinta: The constitution has this acknowledgement, that nature has rights. Something that doesn't exist in other, in other constitution. In 2008, Ecuador became the first country in the world to write rights of nature into its constitution. Today, we're going to look at how that came about and why we're just now starting to see rulings come out of Ecuador that are shaping how the whole world understands rights of nature.

[00:01:28] Amy Westervelt: We're going to time travel a bit first, all the way back to the 1970s. When the oil industry first arrived in Ecuador.

Luis Yanza in Spanish

This is Luis Yanza. He moved to the Oriente area of the Ecuadorian Amazon, that's in the Eastern part of the country, as a kid in the seventies. He says when he stepped off the bus in Lago Agrio the largest city in the area at the time, the streets were literally filled with oil. As in there was oil running down the streets.

He stepped onto a street of oil.

Yanza says growing up, he would see big black clouds in the distance, nubes negras. He didn't know what caused them, but he found out later it was the oil refineries in the area later. He would see pits filled with wastewater and oil in the jungle as well. All of that, the oil streets, the black clouds, the waste pits –who created them and whose responsibility it was to clean them up, became the focus of a massive lawsuit that started in 1993 against the American oil company Texaco.

[00:02:56] Texaco archival ad: Whether you drive a mini compact, A medium sized car or a magnificent limousine. You can trust Texaco to have the great gasoline's exactly right for you.

[00:03:12] Amy Westervelt: That suit lasted through an acquisition– Chevron acquired Texaco in 2000 –multiple trials and settlements and appeals in courts in multiple countries. There are aspects of that case that are still going on today. It's long and really, really complicated. I did a whole 12 part podcast about it on my other show Drilled, but for our purposes today, it's important to understand a few key things about that case.

First, that some indigenous communities in the Amazon were literally obliterated by foreign oil companies in the seventies. Foreign companies started an oil industry and Ecuador that was many, many times more harmful and polluting than they would ever dare to be back home. Then it's important to note that the election of a new Ecuadorian president changed the course of that case and the country's relationship to oil.

And finally that Chevron technically lost that case, but instead of paying or cleaning up the oil pets, they took the lawyers to court and hauled the government of Ecuador in front of an international arbitration tribunal for daring to let it citizens sue Chevron. In a word, colonialism. Or to put a finer point on it, oil colonialism. Oil colonialism has cast a black cloud over the economy and government of Ecuador for 50 years. So imagine how exciting it was for Ecuadorians in 2006, to have someone running for president who promised to do something about. Remember, this was during a time period when George W. Bush was the president of the United States

[00:04:56] George W. Bush archival: Our enemies are innovative and resourceful. And so are we. They never stop thinking about new ways to harm our country and our people. And neither do we.

[00:05:07] Amy Westervelt: And Latin America was taking a big swing to the left.

[00:05:12] NPR Archival: The 46 year old Morales won the presidency in December with more popular support than any Bolivian president in decades. He's the latest in a string of left leaning leaders to assume power in south America in what many perceive as a backlash against U.S. backed free market policies.

[00:05:32] Amy Westervelt: In Bolivia and Brazil, socialist presidents had just been elected. And of course in Venezuela Hugo Chavez was the favorite socialist boogeyman of the capitalist West. Ecuador was poised to take a hard left too when Chavez made international headlines calling Bush the devil, and Ecuador's socialist candidate, Rafael Correa said that was an insult to the devil. Correa made indigenous rights a campaign promise, and he vowed to renegotiate the countries' contracts with foreign oil companies. That made him a huge threat to American corporate interests, but wildly popular with the people of Ecuador.

[00:06:11] NPR Archival: Correa's antiestablishment campaign didn't mince words. He called the Congress a sewer and vowed to overrun the old guard with a citizen revolution.

[00:06:23] Amy Westervelt: He was elected in 2006 and just two years later, made good on his campaign promises. He amended the constitution to include indigenous rights and a whole host of other sorts of civil rights. And yep. You guessed it, rights of nature. It was the first time any country in the world had put rights of nature and its constitution.

[00:06:45] Alberto Acosta: Personalmente….

[00:06:48] Amy Westervelt: This is Alberto Acosta an economist and the former minister of energy and mining for Ecuador. He says he spent a lot of years believing that nature was a subordinate object or resource to be used for development on the economy.

That it must be controlled by human beings. And then.

Years past and he says his thinking changed. He came to realize that his view of the world of you that's still shared by much of the rest of the world was completely.

Acosta went on to actually help write those amendments to the constitution. In 2008, he helped to write the rights of nature amendment, which was a big deal, both for Ecuador and for rights of nature advocates all over the world who started to look at Ecuador as a place to test out the idea of using rights of nature to hold corporations accountable.

In one of the very first cases, activists sued the government on behalf of a river that was being impacted by a developer and the river won.

Then, the deep water horizon spill happened in the Gulf of Mexico.

[00:08:08] Deepwater archival: The gusher unleashed in the Gulf of Mexico continues to spew crude oil. There are no reliable estimates of how much oil is pouring into the Gulf, but it comes to many millions of gallons since the catastrophic.

[00:08:22] Amy Westervelt: And some folks had the idea of filing a case in Ecuador.

[00:08:26] News archival: Environmentalist organizations from five countries filed a complaint on November the 26th against British petroleum BP for their spill of over 5 million or barrels and the environmental damage linked to that spill in the Gulf of Mexico. The complaint was filed before an Ecuadorian court because this is the only country that recognizes nature as a subject and protects its rights in its constitution.

[00:08:53] Amy Westervelt: If Ecuador's constitution protected mother nature, was that really just limited to ecosystems within the country's borders? It was an interesting test of Ecuador's rights of nature law, but ultimately unsuccessful. The case was thrown out for lack of jurisdiction. And then nothing much happened on rights of nature for a while.

No big cases, but Correa kept turning up in the news.

The international press could not get enough of this plan he had hatched to protect the Amazon, specifically Yasuni park where an enormous oil reservoir had been found beneath an exceptionally fragile part of the forest. Correa tried to sidestep the oil curse.

Instead of having to decide whether to preserve the forest or get the oil money, Correa proposed something along the lines of climate debt. Developed countries should pay Ecuador not to extract that oil. For just $3.6 billion over 13 years, Ecuador would agree to leave it in the ground. Avoiding more than 473 million tons of CO2 emissions.

It also would have protected one of the most biodiverse places on the planet. Five years later, though Correa was announcing a shockingly different plan to the country.

[00:10:37] News archival: The national assembly in national interest to explore for oil in Yasuni. But listen well, people of Ecuador, especially my dear young people, exploration will affect less than 1% of Yasuni park.

[00:10:55] Amy Westervelt: Developed nations had only kicked in $30 million to preserve the Ecuadorian Amazon and Correa's argument was that he couldn't say no to the economic development the country so desperately needed just to save a forest. For a lot of people, this officially marked the end of Correa's commitments to indigenous communities and the environment. By this point in his presidency, Correa had already survived a coup attempt and various corruption scandals. Chevron had gone after him really hard for supporting the case against it in Ecuador. And he was coming to grips with the fact that his country's economy had become entirely dependent on oil money.

He couldn't turn that off immediately and risk plunging the country deeper into poverty, and he couldn't allow more drilling without harming indigenous communities and the ecosystem. It's kind of like the position a lot of countries are finding themselves in today. So Correa went for a plan that made nobody happy: just a little bit of drilling. He moved forward with plans to drill in just 1% of Yasuni, which he thought was a great compromise, but it disappointed both environmentalist and indigenous leaders. And even the people who were for oil drilling didn't get what they wanted. Over the years Correa got kind of bitter about the whole thing.

Are we really going to put nature's rights over helping the poor? He asked. He complained about quote, infantile environmentalism. And people who just couldn't accept trade-offs. Between the coup attempt and the various scandals plaguing his administration from 2010 until he left office in 2017, Correa's government was marked by instability. And that included the courts, too.

His successor, president Lenin Moreno made it his goal to strengthen the country's institutions. In 2019, he tasked a council of citizen participation with appointing nine new judges to the constitutional court. Those judges announced that they would take on several rights of nature cases for the first time in a year.

[00:13:06] Melissa Troutman: This particular court has prioritized rights of nature specifically, and they have selected a few cases to concentrate on so that the parameters of rights of nature, how it is applied in practical ways, the scope of the law is worked out.

[00:13:25] Amy Westervelt: This is Melissa Troutman. She's a journalist and co-founder of the investigative news outlet Public Herald in the United States.

She made a documentary film about rights of nature called Invisible Hand that came out in 2020. And she's been following the rights of nature movement for several years.

[00:13:44] Melissa Troutman: And one of those cases before the constitutional court of Ecuador is a case to protect Los Cedros forest reserve from mining. It's a very, very ecologically diverse forest that will be gone if concessions for mining put forth by the Ecuadorian government go forward.

[00:14:08] Amy Westervelt: Los Cedros is a cloud forest. That's a type of rainforest with dense tree canopies and constant condensation that looks kind of like clouds. It's one of the most biodiverse forests in the world and is home to several endangered species, including the very adorable brown headed spider monkey.

It's also, already listed as a protected forest in Ecuador. So a lot of environmentalists in the country were asking if you can mine in a protected forest, what does the protected label even mean? It's important politically too. The Los Cedros case didn't just come before the court after new justices had been put in place, it came before the court during a much more business friendly presidency.

President Guillermo Lasso vowed to expand mining and oil extraction in the country and has so far done just that. Tossing mining permits in Los Cedros could shut down mining in any of the country's protected forests. And it could put both Lasso and various companies on notice about the court's intention to actually enforce rights of nature.

That story coming up after the break.

[00:15:27] Parody: Are you looking for a country with nicely low mining regulations, zero red tape and a responsibly low taxes. Look no further. Introducing a fabulous once in a lifetime opportunity to open your very own mind in the most bio-diverse country on the planet. And there is literally nowhere you can.

[00:15:50] Amy Westervelt: This is from a parody ad that some environmental groups made around the time that the last state of those case was going to court.

[00:15:57] Parody: Los Santos, ready to mind? Sibu good to blow John doll.

[00:16:03] Amy Westervelt: The complaints in the Los Cedros case centers on a 2017 policy change that allowed mining on 6 million acres in Ecuador, including more than half of Los Cedros. It was thought to be a quick move to replace declining oil revenues with mining.

Los Cedros was originally given protected forest status because it's home to so many rare and endangered species, dozens of them. So environmentalists immediately questioned the permits there. Environmental groups began working with indigenous leaders in the area and filed their case invoking rights of nature to block the mining, permits in Los Cedros. In 2019, the provincial court agreed with the activists. Mining Los Cedros was a clear rights of nature violation. The mining companies appealed that decision and it headed to the constitutional court in 2020. Here's Alberto Costa again,

[00:16:57] Alberto Acosta: Distintos partes de la naturaleza…

[00:17:06] Amy Westervelt: He says scientists from all over the world testified to defend spider monkeys, the plants, the water, and it was great. Magnificent.

[00:17:14] Alberto Acosta: Pero tenemos las preguntas…

[00:17:21] Amy Westervelt: We continue to defend isolated situations, he says. This wonderful, protected forest of why not all the forests? Why not all the forests and all the moors? Why not all of the water sources already? For Acosta, protecting entire ecosystems would be more in keeping with the intention of rights of nature, not just one case, one place at a time.

There's that problem again, of shoehorning this very different view of nature into a Western court system. The courts in Ecuador, like those in the U S, work case-by-case. So it's hard to make big shifts in philosophy. You can't really say forget specifics let's litigate how we treat forests overall.

Although rights of nature cases still have to be litigated one at a time, Los Cedros was seen as a case that could set enough of a precedent to protect lots of other forests.

So scientists and lawyers from all over the world, zoomed in to testify before the constitutional court in Ecuador on behalf of Los Cedros.

[00:18:42] Court archival: Representantes de las organizaciones, global Alliance for the rights of nature center of biological diversity. International Rivers. Great Lakes Environmental Law Center …

[00:18:55] Amy Westervelt: and then it was a waiting game until finally in December, 2021…

[00:19:14] Archival Jane Goodall: last week, there was some wonderful news for those of us who are fighting to protect the natural world. The Ecuadorian constitutional court in a landmark ruling agreed that the government should revoke the mining permits that it had granted for exploration in the Los Cedros protected forest in order to uphold the rights of nature.

[00:19:43] Amy Westervelt: The cloud forest won! Huge news. The court not only rejected the mining permits for Los Cedros, it made some pretty broad judgments in its ruling that will protect other forests too. I called up the Latin America legal director for Earth Law Center to get some more details.

[00:20:04] Constanza: Well, we decide to intervene in Los Cedros, uh, because it was such an important case.

[00:20:11] Amy Westervelt: Constanza Prietto is an expert on rights of nature and she says the Los Cedros ruling will impact not just future rights of nature cases, but also how the government thinks through permitting for things like mining and oil drilling. How rights of nature might come into play earlier on in the process.

[00:20:30] Constanza: What the Los Cedros does is very important because they talk about the forest, but not only the Forest. It talks about also the biodiversity and also about the water. They explained what it means for the authorities, all these rules . It's even like a class of what should mean for the authorities and also for the judge and also for the legislative power, what it means, rights of nature.

[00:20:58] Amy Westervelt: This is really key. This ruling sets a precedent and the court used this opportunity to not just say yes, Los Cedros wins, no mining there, but also to say, this is how authorities should think about rights of nature in these situations.

And this is how policy makers and the courts should think of it.

[00:21:18] Constanza: So that is the main importance of the case. Also because that's an important subject, mining.

[00:21:25] Amy Westervelt: Mining is a hot subject in Ecuador. In particular, since that 2017 law change that opened up millions of acres to mining, the government has granted permits for more than 7 million acres in Ecuador.

And a lot of those acres are in protected forests. So the court's decision to throw out the mining permits in Los Cedros could reverberate through the economy in a big way.

[00:21:48] Constanza: That is a big statement to say like no mine activities or similar to mining activities now in the future can be in this kind of forest.

[00:21:59] Amy Westervelt: It's really, it's a pretty sweeping ruling, no mining activities or activities similar to mining can be done in this kind of forest. But Prietta says it's not exactly the blanket ruling it might seem to be, it's not saying no mining in protected forests ever, period.

[00:22:17] Constanza: It's not clear. I think, I suppose it will be case by case, but I suppose the more fragile or biodiverse ecosystem will not allow this kind of destructive mining.

[00:22:30] Amy Westervelt: So at least in the most fragile and biodiverse ecosystems, it seems pretty certain that mining won't be allowed.

If Ecuadorian president Guillermo Lasso had his way, the ruling wouldn't impact anything outside of Los Cedros. The businessman president has pinned his hopes for building Ecuador's economy on mining. And there's an interesting twist. At least some of that mining will feed into the international supply chain for renewable energy and electric vehicles. In an interview with the financial times, Lasso said that Ecuador's deposits of copper and other valuable metals need to be mined to support the global energy transition away from fossil fuels.

This is a super interesting problem facing the entire world at the moment, as we turn towards electrification as part of the solution to climate change, how does that system rely on the same extractive processes that led to the climate crisis in the first place? And what can be done to address the impact of those processes.

Lasso has also okayed a lot of oil development and it's unclear just how much of the country's plan of mining is actually connected to electrification or how committed to that energy transition. The president actually is. But Lasso told the FT that he planned to try to win over public opinion by "explaining" what kind of mining this is. Responsible, sustainable mining, and defending the greater interest of the majority of Ecuadorians above the political interests of indigenous leaders. Meanwhile, just a few weeks after the Los Cedros decision, the constitutional court dealt Lasso another potential blow. In the same round of constitutional amendments, that added rights of nature to Ecuador's constitution back in 2008, remember the country also added various specific rights for indigenous communities.

One of those rights was the right to free prior and informed consultation around development or extraction projects taking place in their lands. In February, 2022, the court ruled that some indigenous communities rights to this type of consultation had been violated by various oil projects. The court called for stronger protections to guarantee indigenous communities' rights to decide over extractive projects in their territories. The one-two punch of Los Cedros and this indigenous rights ruling sends a clear signal to Lasso and to extractive industries that Ecuador's new court plans to take its constitution, including rights of nature and indigenous rights, seriously.

The tension between colonial governments and indigenous nations is something that often crops up in rights of nature cases. And in a lot of ways, rights of nature laws are seen as something of an attempt to bridge the two. That was certainly the case in New Zealand where a massive rights of nature case became the first step toward healing the harms done by colonialism. That's our story next week.

[00:26:07] Episode preview: The conundrum in the case is that the people lived in the environment, you know, um, it's quite, it was quite amusing for them to say, The government owns and controls this area. And the people were saying, well, we lived here, so you don't go in it and you don't control it.

Um, uh, one of the key witnesses for me, he described it in our languages Te Urewera is my mother and my father. It's where I grew up. It's where I go to pray. It's where I go to, um, partake of. That nourishes me and my future generations. So for you to suggest that you can own my mother and my father is completely antithetical to how our ideology or our relationships to that environment.

Come back for that. Thanks for listening. And we'll see you. Next time. Damages is an original, critical frequency production. Our editor and senior producer is Sarah Ventre. Sound design by Ray Pang. Mixing and mastering by Mark Bush. Our fact checker is Wudan Yan. Our first amendment attorney is James Wheaton of the first amendment project.

Our artwork was done by Matt Fleming. Our theme song is bird in the hand by Foreknown. Archival in this episode is courtesy of national public radio and Vanderbilt university. Damages is made possible in part by a generous grant from the file foundation. We appreciate their support. If you're enjoying this podcast, please rate or review it wherever you're listening.