Works in Progress Group 10: Environmental Justice

Go Back

Session Type: Works-in-Progress

Session Capacity: N/A

Hotel: N/A

Room: Union Square 8

Floor: 4th Floor

Group #10: Environmental Justice

Crossing the Line (5): Canada’s International Human Rights Obligations in the Line 5 Dispute
Lindsay Bailey, Georgetown University Law Center

Canadian company Enbridge operates pipelines that carry tar sands oil from Alberta, through the Midwest, and into Ontario and Quebec. These pipelines pose a grave environmental risk - both through climate change, and because an oil spill would cause irreversible pollution. Indigenous communities on both sides of the border have opposed the pipelines, who correctly view the pipelines as a threat to the land that forms the bedrock of their culture. Enbridge has fought dirty - in the courts, and by funding police violence against protestors. Canada has waded into the fray in support of Enbridge; in legal disputes regarding Line 5, it has invoked a Transit Pipeline Treaty from the 1970s to argue that Wisconsin Tribes and Michigan cannot withdraw easements for the pipeline, even though it poses a grave environmental risk.

This paper will examine Canada's obligations under international law regarding these pipelines, particularly Line 3 and Line 5, and the Transit Pipeline Treaty. Canada has an obligation to respect and protect fundamental rights, including the right to a healthy environment. As a signatory to UNDRIP, Canada also has an obligation to respect and protect Indigenous people's rights to free, prior, and informed consent. These rights extend outside of Canadian territory, particularly where Canadian corporations are violating these rights. By supporting Enbridge, financially and diplomatically, as well as failing to regulate Enbridge's actions, Canada breaches these obligations. Moreover, Canada's invocation of the Transit Pipeline Treaty is wrong; the treaty must be interpreted in accordance with these fundamental rights.

Relocating Justice
Ruhan S. Nagra, University of Utah S.J. Quinney College of Law

“Managed retreat”—the planned relocation of people out of harm’s way—is an inevitable part of future climate adaptation in the United States. Given that Black, Brown, and low-income communities are disproportionately vulnerable to climate hazards, retreat has significant justice implications. This article explores what I call an apparent “justice paradox”—two narratives that co-exist uneasily in academic and popular discourse, each with a different diagnosis of the “justice problem” with retreat. According to one narrative, the justice problem is that retreat is inaccessible to marginalized communities, who often lack the resources to navigate the relocation process. This narrative suggests that we should prioritize relocation of marginalized communities since they are in greater need of relocation assistance. But according to the other narrative, the justice problem is that retreat itself disproportionately harms marginalized communities, who may experience greater relocation-related harms. This narrative suggests that we should avoid relocation of marginalized communities.

Both narratives are true. I argue that although opposite solutions are indicated when each of these narratives is considered in isolation, both narratives reveal the same structural flaws with our current framework for climate-induced relocation. First, both narratives expose the serious limitations of market-based approaches to retreat. Second, both narratives display our failure to seize retreat as an opportunity to redress historic injustices. Third, both narratives reflect a lack of procedural justice for marginalized communities. These are the root causes of both justice problems. Tackling them will require the U.S. to overhaul its design and implementation of managed retreat.