This week, more than 25,000 people gather at the COP26 climate talks in Glasgow to address what is not only a global environmental catastrophe, but a global crisis of justice. In a series of four articles, Orion contributor and former board member Kathleen Dean Moore reports on an international human rights court ruling that transnational fossil fuel corporations and governments, in collusion, are directly violating rights guaranteed by the Universal Declaration of Human Rights.
BENZENE. Toluene. Ethylbenzene. Xylene. Arsenic. Cadmium. Formaldehyde. Hydrochloric acid. 2-Butoxyethanol. Ammonium chloride. Mercury. Glutaraldehyde. These are chemicals customarily used to kill insects, clean toilet bowls, strip paint, polish brass, etch glass, preserve corpses, and commit murder. Now, they are among an estimated 1,021 chemicals that the fossil fuel industry mixes with freshwater and forces underground to crack apart rock, releasing methane and oil—a process called hydraulic fracturing, “fracking.”
The chemicals used in fracking are customarily used to kill insects, clean toilet bowls, strip paint, polish brass, etch glass, preserve corpses, and commit murder.
At least 157 of the fracking chemicals are reproductive or developmental toxins, causing birth defects, breast and prostate cancer, miscarriage, and other heartbreaks. An additional 781 chemicals have not been studied. Yet fracking routinely injects the chemicals into the ground, forcing them through fissures in rock, where they contaminate aquifers, wells, and other sources of drinking water.
Tens of thousands of miles of oil pipelines crossing the U.S. contribute to this contamination. In 2019, the Keystone pipeline leaked 383,000 gallons of oil into wetlands in North Dakota. In 2013, an ExxonMobil pipeline ruptured, dumping more than 3,000 barrels of heavy crude in Arkansas. Data collected by the Pipeline and Hazardous Materials Safety Administration recorded more than 1,300 crude oil spills in the United States between 2010 and 2016—an average of one spill every other day.
Indigenous Water Protectors and other protesters try to block the pipelines and pumpjacks, but they are met by phalanxes of police with so-called “nonlethal weapons,” who earn overtime pay from Big Oil. The U.S. Safe Drinking Water Act might be expected to protect water, but U.S. legislators in thrall to Big Oil created the “Halliburton Loophole,” which exempts fracking from regulations that would otherwise prevent them from poisoning groundwater, rivers, and wells.
Fracking practices thus constitute “deadly, large-scale experiments in poisoning humans and nonhumans that the fracking industry is currently conducting in violation of the Nuremberg Code,” according to a recent judgment from an international human rights tribunal. This is a dreadful indictment; the Nuremberg Code is a code of medical ethics developed in 1947 by a panel of experts investigating Nazi doctors who conducted brutal medical experiments in concentration camps.
Fracking constitutes “deadly, large-scale experiments in poisoning humans in violation of the Nuremberg Code.”
This judgment comes from the Permanent Peoples’ Tribunal Special Session on Human Rights, Fracking, and Climate Change, a highly respected international human rights tribunal based in Rome. In 2018, the tribunal took up the question: Under what circumstances does fracking, along with its impacts on the climate system, breach substantive and procedural rights? After long deliberation, the ten judges from eight countries issued an advisory opinion, which is available online and in a recently published book, Bearing Witness: The Human Rights Case Against Fracking and Climate Change.
Among the rights the tribunal considered was the right to clean water. That right is articulated in United Nations Resolution 64/292: “The General Assembly . . . recognizes the right to safe and clean drinking water . . . [as] a human right that is essential to the full enjoyment of life and all other human rights.” Fracking, and the climate change it fuels, directly and indirectly violate that right, the tribunal ruled.
Fracking violates the right to clean water.
“Water is life.” “Mní wičhóni.” “El agua es vida.” The message is proclaimed by crowds marching against Big Oil’s trespasses around the world. It is undeniably true; the life of every person on the planet depends on the one percent of Earth’s water that is fresh and available. Of this limited supply, the U.S. fracking industry uses an average of 105 billion gallons each year—as much as the water use of 3 million citizens of Chicago—and renders it irredeemably poisonous.
“What does it mean, practically and morally, for humans to make fresh water disappear?” asks biologist Sandra Steingraber.
We’ve never done that before—to actually remove water from the hydrological cycle, ground water that is the mother of rivers that flow to the sea, that evaporates into clouds, that falls as rain or snow and rises again as sap or nectar, mist, and fog . . . This is a problem with no solution, because no technology exists to turn fracking waste back into drinkable water.
Because the fracking industries can’t clean the poisoned water, they store it in aboveground pools, some lined, some unlined, or dispose of it by injecting it into empty fracking wells. Ohio activist Maria Montanez halted a fracking operation by lying in the road, so afraid of fluid leaks that she would risk being run over by a truck. “There are more than 480,000 underground waste injection wells nationwide,” she said, “more than 30,000 of which shoot industrial fluids thousands of feet below the surface. [No one] knows how many sites are leaking. . . . Our rights to clean water would be decimated.”
Fracking industries breach the right to clean water with especially pernicious effect when they claim water in arid parts of the world. In Texas, where they suck water from rapidly shrinking Carrizo-Wilcox aquifer, laws prohibit local groundwater districts from putting any limits on the oil and gas industries’ takings. Worse is when fossil fuel companies seize water used by local people and leave them with dried springs and empty wells.
After considering extensive evidence from experts and eyewitnesses, the tribunal concluded that the secret toxic brews of the fracking industry, “combined with the [explosive disruption] of geological boundaries, make inevitable not only widespread, catastrophic toxic contamination but also devastation of hydrological systems.” Accordingly, the tribunal ruled that fracking should be banned worldwide.
Fossil fuel–fired climate change also violates the right to clean water.
One of the ways that fracking affects the “entire Earth community to which humans belong” is through its contribution to climate change, the tribunal wrote. For 9,000 years, the atmosphere has been relatively stable, the great gyres of wind and water bringing rain in its season, sun in its own time. Civilizations and agricultural practices grew abundantly in the reliable flow of water. But the hydrological cycles are no longer so reliable, or so innocent. As transnational oil corporations release plumes of carbon dioxide and methane pollution, they unleash the dogs of climate chaos.
The effect of global warming on the right to water has been devastating. The tribunal wrote:
Fossil fuel–caused climate changes become themselves threats to fresh water through the saltwater invasion of freshwater lakes and farmland subsoils, serious and prolonged droughts, destruction of ecological systems that purify water, melting of glaciers, and so forth.
According to the World Health Organization, “water scarcity impacts 40 percent of the world’s population, and as many as 700 million people are at risk of being displaced as a result of drought by 2030.”
Drought especially violates the rights of women and children, the tribunal noted, given their traditional roles as water-bearers. When nearby wells dry up, women are forced to carry water for miles, exposing themselves to assault and rape. When drought or severe floods ruin crops, children are the first to suffer malnutrition and, of those suffering malnutrition, children are the first to die. Then, the fossil fuel industry violates not only the right to clean water, but also the very right to life itself.
The violation of the right to water is linked to racism and colonialism.
“We’ve been at this fight against Enbridge [tar sands pipelines] for seven years already. It’s like an invasion,” said Winona LaDuke, the Anishinaabe leader of Honor the Earth. Wearing a water is sacred T-shirt, she kneels straight-backed on the ground. Her face is defiant and weary.
This time, the Water Protectors’ fight is against the Enbridge Line 3 pipeline in northern Minnesota. They are defending accustomed ways of life, which would be hit a hard blow if heavy oil leaking from the pipeline were to settle to the bottom of the lakes and streams in their land, poisoning the fish and rice. They are battling also for recognition of their Indigenous rights, guaranteed by United Nations Declaration on the Rights of Indigenous Peoples, Article 29: “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands.”
In this, they are up against a long history of contempt for Indigenous land and lifeways. The Permanent Peoples’ Tribunal took pains to point out that “the system of laws [regulating fracking] is underpinned, accompanied, and permeated by racism and colonialism.” Fracking is economically feasible, they wrote, only because it legally devalues the lifeways and history of the people displaced by fracking. Thus, fracking, in the court’s judgment, could not be made “nonracist” or “noncolonialist” without incurring costs that the industry is unwilling to pay.
Fracking could not be made “nonracist” or “noncolonialist” without incurring costs that the industry is unwilling to pay.
The judges’ argument parallels that made by Boston College scholar Ibram X. Kendi: It is not possible to frack without wrecking the land. It is not possible to wreck the land without destroying the livelihoods and homes of people. It is not possible to destroy peoples’ livelihoods and homes without devaluing their way of life. It is not possible to devalue entire ways of life without devaluing also the people. And that, both he and the tribunal point out, is racism.
And so, in regard to the right to clean water, the tribunal drew the connection between social justice and environmental thriving, each a necessary condition for the other, each threatened by extreme oil and gas extraction. The tribunal concluded that it is irrational, and potentially catastrophic, “to allow an industry that is unnecessary, known not to be sustainable for the long term, and inherently abusive of human and nature’s rights to continue operating.”
Bearing Witness: The Human Rights Case Against Fracking and Climate Change, published by Oregon State University Press and edited by Thomas A. Kerns and Kathleen Dean Moore, tells the story of the landmark case through carefully curated court materials, including eyewitness testimony, legal and moral testimony, and the Tribunal’s Advisory Opinion. Essays by leading climate writers such as Winona LaDuke, Robin Wall Kimmerer, and Sandra Steingraber and legal experts such as John Knox, Mary Wood, and Anna Grear give context to the controversy.
A forty-minute film about the Tribunal, Bedrock Rights: A New Foundation for Global Action Against Fracking and Climate Change, is available free online. The film, created by the Spring Creek Project, features appearances by Jacqueline Patterson, of the NAACP; Winona LaDuke, of Honor the Earth; Sandra Steingraber, author of Living Downstream; and many others. It powerfully showcases the Tribunal’s findings that the oil and gas industry and their government allies routinely violate the right to clean water, Indigenous rights to the land, the right to life and health, and the right to information and participation. Spring Creek offers assistance to any groups that would like to hold a community screening of the film. Contact them here.
Documentary production and videography was provided by Fire+Bird Films.