Cleaning Up Greenwash: A critical evaluation of the activities of oil. Dr Angus Nurse

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1 Cleaning Up Greenwash: A critical evaluation of the activities of oil Postgraduate companies in the Course Niger Feedback Dr Angus Nurse A.nurse@mdx.ac.uk

2 Oil Spills in the Niger Delta Official estimates suggest 4.1 million barrels of oil spilled in the Gulf of Mexico Deepwater Horizon disaster. Estimates suggest 9 to 11 million barrels spilled in the Niger Delta in the 50 years of oil production. Independent estimates suggest at least 115,000 barrels (15,000 tons) spilled on average each year making the Niger Delta one of the most oil-impacted ecosystems in the world Professor Richard Steiner Former Professor of Environmental Policy and Marine Conservation University of Alaska November 2010 Report on behalf of Friends of the Earth Netherlands 2

3 Oil Corporations and Environmental Harm in Africa Decades of oil exploration in the Niger Delta have resulted in pollution of much of the region s vegetation, fishponds and drinking water. Problems include: oil spills and gas flaring contamination of the local environment and resultant impact on fishing and livelihoods inadequate clean-up Lowering of life expectancy (now under 50 years in Ogoniland). 3

4 The CER Landscape Corporations may adopt CSR/CER for a variety of reasons, principally: Acting ethically is the right way for the company to behave Doing what is right and fair is expected of an organisation Acting ethically is in the organisation s best interests. (Harris :39)

5 CER and Criminality : The Failures of Voluntary Compliance and Self- Regulation Numerous ways that voluntary compliance & Self-regulation can fail: Difference of opinion between stakeholders and the corporation about what is required Difference of opinion between NGOs and corporations about what is required Corporate culture that prizes success over compliance The value of profit and minimising costs over compliance Poor enforcement and inadequate penalties for noncompliance

6 The Shell Nigeria Oil Spills Case: Present Three oil spills from a leaking oil pipe result in pollution to fields and fishponds affecting the Nigerian villages of Goi (2004), Oruma (2005) and Ikot Ada Udo (2007) Pictures demonstrating the nature of Shell oil spills in Nigeria can be found online at: 3/shell-oil-spills-niger-delta-in-pictures 6

7 The Oil industry in Africa - Theoretical Considerations Green Criminology Concerns: Environmental Justice social inequality, marginalisation of indigenous communities (White 2007) Ecological Justice wider environmental harm, damage to sensitive environments (Halsey 1997) Environmental injustice lawbreaking around pollution and misuse of resources (Pearce and Tombs) Species Justice destruction of non-sustainable habitats and failure to address the needs of other species (Benton 1998 and 2007, Nurse 2013) Corporate Crime Concerns: Failure of CER and challenge to claims of responsibility Constructive and creative compliance (policies in place) A crime of the powerful Culture of non-compliance Difficulties in bringing legal action Neutralization techniques in evidence (we ll come back to that)

8 The Legal Case The Plaintiffs Claim Shell Nigeria failed in its duty of care standards by failing to: - carry out required maintenance - replace the pipeline in time - take measures to suspend the oil flow after the spill - clean up the spill in a timely manner; and - to completely clean up/remediate the spill Royal Dutch Shell (parent company) failed to ensure that its subsidiary Shell Nigeria extracts oil in Nigeria in a careful way. (Dutch Prosecution) 8

9 The Legal Case Shell s Position Royal Dutch Shell is not responsible for the activities of its Nigerian Subsidiary The damage took place in Nigeria, relates to alleged losses occurring in Nigeria and thus is solely a matter for jurisdiction in the Nigerian courts The oil spills were caused by sabotage so Shell is not liable Shell Nigeria acted quickly before during and after the event to deal with the Oruma spill Remediation efforts were blocked by the Oruma community but the spill was dealt with as soon as it was possible to do so. 9

10 Legal Action in Nigeria: The Problems Inaccessibility of legislation few paper copies/not online Access to legislation and legal remedies limited to the wealthy Lack of transparency in the legal system Alleged judicial corruption and Government interests in Shell s continued presence in Nigeria Prosecution in the Hague: Brought by Milieu Defensie (Friends of the Earth, Netherlands) and four Nigerian Farmers The corporate response, Neutralization techniques - Blaming the victim - Challenging the legitimacy of the prosecutor - denial of responsibility - denial of harm - contesting the jurisdiction of the Dutch court

11 The Judgements The Court dismissed the claims in respect of the Oruma spill noting that there was insufficient evidence that Shell Nigeria s clean up of the spill was insufficient, that the response amounted to action taken as soon as was reasonably possible. The Court dismissed the claims in respect of the Goi spill noting that Shell Nigeria s clean up of the spill land and fish ponds was sufficient, that the response amounted to action taken as soon as was reasonably possible. However, the court concluded that under Nigerian law Shell Nigeria were negligent in failing to secure the well near Ikot Ada Udo in Nigeria against the sabotage and accordingly have to pay compensation (amount pending) The case establishes that action can be taken in an EU state for environmental damage caused elsewhere The right of NGOs to participate in such claims is also bolstered by the case

12 Summary Criminological CER and Environmental Justice Points Most corporations prosecuted have CSR and/or CER policies yet this remains voluntary. Legal operation gives rise to illegal activity Shell claim to engage positively with communities in sustainable ways and to operate in environmentally responsible ways yet is responsible for significant environmental damage CER arguably now extends to monitoring the activities of subsidiaries and responsibility to ensure environmental compliance in a broad sense Regulation theory (White 2012) - NGOs are a vital tool in securing environmental justice for marginalised communities and developing world victims of environmental harms CER should be an enforceable standard

13 Any Questions?

14 Contact Dr Angus Nurse Senior Lecturer in Criminology Middlesex University WG27 School of Law The Burroughs Hendon NW4 4BT