Court Watch Nigerian Village Sues Royal Dutch Shell
A Nigerian tribal king, His Royal Majesty, Emere Godwin Bebe Okpabi, and several leaders of the Ogale community, a small village located in Ni- geria’s oil-rich southern delta, have filed a lawsuit against oil giant, Royal Dutch Shell, seeking $1 bil- lion USD in damages to compensate for decades of pollution that wreaked havoc on their people and their land.
Filed on October 18, 2011 in the U.S. District Court, Eastern District of Michigan, Okpabi v. Royal Dutch Shell alleges that the oil company was “willfully negligent” in its exploration and production opera- tions. The plaintiffs allege that Shell failed to com- ply with internationally recognized standards to prevent and control pipeline oil spills, and that such failure directly led to severe pollution and environ- mental degradation in their community.
The plaintiffs’ claims largely rely on a report issued in August 2011 by the United Nations Environmen- tal Programme that detailed the extent of environ- mental contamination and threats to human health in the Niger Delta region. The report specifically stated that the most serious case of contamina- tion occurred in the plaintiffs’ locality and called for “emergency action” to alleviate damage in the area. The report cited observations of an 8 cm layer of refined oil floating on the ground water serving the community wells and noted that levels of the well-known carcinogen benzene found in the water were 900 times the levels prescribed by the World Health Organization.
The 32-page complaint lists the grievances suffered, alleging that the oil company’s activity violated the plaintiffs’ rights to: clean water, clean environment, life, minimum enjoyment of life, enjoyment of the best attainable state of physical and mental health, healthy and productive life, and environment favor- able to development. The plaintiffs claim that such rights are guaranteed by customary international law and treaties and laws of the United States. The plaintiffs further allege that the defendants can be
held liable for these violations through the Alien Tort Statute (ATS), a 200 year-old law that has con- troversially been used to create jurisdiction to allow U.S. courts to hear cases involving human rights violations that occurred abroad. Most recently, in Sosa v. Alvarez-Machain, the Supreme Court sug- gested that the scope of ATS should be limited to violations well-defined and specific international laws.
Just days before the plaintiffs filed their suit, the Supreme Court of the United States granted cer- tiorari in two landmark ATS cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub. Review of these two cases aims to resolve the controver- sial issue pertaining to political organizations’ and other corporations’ immunity under ATS for viola- tion of international law for actions that took place overseas. The Supreme Court’s decision is likely to significantly impact the outcome of Okpabi, which similarly concerns corporate liability in overseas tortious activity.
On December 28, 2011, the defendants filed a mo- tion to dismiss for lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim. More specifically, the defendants argued that their contacts in Michigan did not satisfy the state’s long-arm statute and, further, that exercis- ing jurisdiction would offend due process. The de- fendants also asserted that the plaintiffs’ claims did not arise out of a violation of international custom, U.S. treaty, or U.S. law. In addition, the defendants contended there could be no corporate liability un- der the ATS. Relying on the Second Circuit’s Kiobel decision, the defendants urged the court to consid- er that “(1) no international tribunal had ever held a corporate entity liable for human rights abuses in violation of the law of nations; (2) relatively few in- ternational treaties imposed any obligations on cor- porations; and (3) scholars ... also argued against corporate liability for human rights violations as a customary international law norm.”
The present case is not the first time Shell has faced legal action for its business activities in Nige-
ILSA Quarterly » volume 20 » issue 3 » February 2012 11
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