Faculty of law blogs / UNIVERSITY OF OXFORD

Legal Pipelines of the Green Transitions

What is the role of the law in the green transition? In last week’s Southernising Criminology Seminar, Professor Christine Schwobel-Patel shared her research on Global Criminology and Green Capitalism. As a Professor of Law at Warwick Law School, she started by illustrating how the law is instrumental in the energy and climate field, distinguishing its symbolic and material aspects. Climate litigation (i.e. litigation against private companies or states for insufficient climate action) and budding notions of ‘ecocide’ exemplify the symbolic side, which is more visible for non-lawyers. The material side, i.e. the side of the law that protects capital accumulation, is in fact more prominent, although less visible.

Author(s)

Aydin Orberk
Sophia Kjeldbjerg

Posted

Time to read

5 Minutes

(Undoing) Legal Pipelines?

 To make sense of the role played by law in extractivist capitalism, Prof. Schwobel-Patel proposes a ‘legal pipelines’ metaphor. Are lawyers instrumental in spinning the web, or are they trapped by legal pipelines, i.e. key dynamics between law and capitalism that support and legitimise the extractivist concentration of wealth? Prof. Schwobel-Patel argues the latter. Laws are not neutral and do not exist in a vacuum, and we need to recognise these legal pipeline dynamics and undo ‘legal networks of capital’ if there is to be a ‘just’ green transition. Indeed it is unclear whether the currently predominant conceptualisation of the ‘green transition’ is in fact ‘just’, as will be explored in the second half.

To give a concrete example of undoing legal pipelines, a crucial piece of law currently impeding a green transition is the Energy Charter Treaty (ECT). It is a binding international agreement for cooperation in the energy sector that was drafted three decades ago. It secures energy supply to the EU by protecting the interests of western energy companies in their exportation of fossil fuels from post-soviet States. Essentially, if companies are prevented from carrying out their projects and consequently incur losses, they can go to court to get financial compensation from the state. Up until now ECT settlements have cost governments 57.2 billion dollars, with the inter arbitration tribunals siding with corporate-friendly interpretations of the ECT.

Scheme of the ECT’s investor-state dispute settlement (ISDS) mechanism. Credit: Bonpote
Scheme of the ECT’s investor-state dispute settlement (ISDS) mechanism. Credit: Bonpote

Nowadays, the ECT protects the profits of energy companies by enabling them to sue states unfavourable to fossil fuel projects. It thereby curbs legal and political efforts to incentivise energy companies to drive out fossil fuels (see scheme on the right).

Exiting this treaty would concretely undo a legal pipeline. Yet, while some states are increasingly intent on exiting it, it comprises a ‘sunset clause’ (article 47 § 3) which provides that the treaty ‘shall continue to apply to investments made in the area of a contracting Party by a contracting State (...) as of the date when the Contracting Party’s withdrawal takes effect for a period of 20 years from such date’. This locks in states for another 20 years, exemplifying again how strong those legal instruments enabling extractivism are.

Zooming in on Denmark and Greenland: A just transition? New narratives of Extractivism

While reflecting on this October’s unusually warm days, Prof Christine Schwobel-Patel draws on Greenland to exemplify the colonial entanglements with the current climate crisis. Greenland is a frontier country for the legalised extraction of minerals, which are depicted in the media and political discourses as crucial to the green transition. This re-iteration of imperialism mirrors ‘old frontiers’ of extraction, such as the Democratic Republic of Congo. Due to climate change, Greenland is ‘greening’: it is about to become a ‘new frontier’ through its precious minerals revealed by the melting ice. In particular, billionaires are investing in Greenland for the extraction of minerals to build the batteries of electric cars.

The electric car reveals the paradox of green transitioning. Designed to reduce CO2 emissions, it succeeds ‘normal’ cars and is presented in the ‘Global North’s’ political discourse and marketing as a crucial tool of sustainability. However, rather than replacing the normal car, they are merely new consumption products only accessible to wealthy consumers. Rather than developing public transport and promoting cycling, buying an electric vehicle is framed as the right solution to sustainability. Rather than advocating for a shift in our habits, towards a slower (and healthier) way of living and moving around, technology becomes the solution to extending our current lifestyles, but in a ‘greener’ way. Denmark, which Prof. Schwobel-Patel draws on in her analysis, is dominated by electric cars. They, and hybrid models, made up 38% of new cars sold in 2022. Yet, the making of their batteries relies on the extraction of minerals from the earth, causing ecological destruction. Electric vehicles are paradoxically framed as tools in the green transition, while also contributing to the destruction of the green environment it claims to preserve.

Prof Schwobel-Patel describes how this process of extraction comes unnervingly close to Marxist theories of primitive accumulation, intrinsically linking capitalism with neo-colonialism. Marx, Fanon, and Luxembourg, and those inspired by their work, argue that processes by neo-colonial powers to encroach on former colonies aided by ‘legal pipelines’ are modern re-iterations of imperialism: colonising states grew their wealth through the extraction of natural resources from their colonies, without assent nor reparation. Ironically, neo-colonial states market themselves as leaders of the green transition, yet create laws to make the environment the object of their stewardship and provide legal grounds for destructive extraction projects. 

Indeed extraction and ‘climate bomb’ projects (i.e. projects to emit substantial CO2 beyond safe emission limits) such as the EACOP (East African Crude Oil Pipeline) are made possible through deals that build upon trade agreements negotiated by states and powerful legal corporations. Law has not only promoted capitalism for the last centuries, it also presently continues to save capitalism rather than the planet.

International laws are at the heart of such exploitative and insidious practices, as licences for energy production are all about monopolising who gets to extract, and thus are about power and wealth. And while some activists make headlines for starting legal challenges of climate or environment damaging projects, law firms such as Clifford Chance also start and win legal challenges for their clients to get approval for pipeline projects, which contributes to the neo-colonial processes of extraction inherent in the ‘green’ transition.

Greening Greenland. Credit: Pexels Free Images
Greening Greenland. Credit: Pexels Free Images

This is revealed in Prof Schwobel-Patel’s example of Denmark’s colonisation of Greenland, which persists to this day. Appearing in the Western imperial imagination in the 17th and 18th centuries, Greenland and its indigenous people were ‘discovered’ by Danish colonists, and in the 21st century, it remains a frontier of Danish imperialism. Although Greenland’s colonial status ended in 1953, it is considered a Danish colony due to its financial dependence on trade agreements with Denmark, which influences much of its political scene. Greenland requires financial independence for true decolonisation to be viable, and the Greenland government claims that the Kvanefjeld project, in ‘collaboration’ with Denmark, would provide this financial independence. Yet, the Greenland government’s agenda for complete decolonisation seems paradoxical in light of the extraction of their resources by their former colonising state that the Kvanefjeld project enables. The agreement for the latter was crafted by a Danish law firm and Clifford Chance. Ironically, the company that will facilitate the extraction of minerals calls itself ‘Greenland Minerals’, despite being Australian, and as such, will ship most of the wealth to neo-colonial states, rather than securing them for Greenland.

The indigenous people living on the land where these minerals will be extracted, and who will suffer the consequences of radioactive waste being released, are often depicted as the enemies of the minerals-greedy green transition marketed here. Prof Schwobel-Patel reminds us that this criminalisation of indigenous populations for protesting the industrial encroachment upon natural land is repeated in the Canadian government’s fight against Native Americans. The Australian government’s exclusion of Aboriginals in national politics, and the Line project in Saudi Arabia, amongst many others, mirror this effect.

The ‘Line’ is a high-tech urban imagination of sustainable city-living. However, media outlets are not covering the fact that it would displace tens of thousands of nomadic communities who have inhabited this desert land for centuries. Already, the Saudi Arabian government is resorting to violence against those who will not accept the financial incentive to move locations. Yet, this violent displacement is suspiciously absent in media-coverage of the Line, reflecting investors’ and state interests in the project and the nefarious process of greenwashing.

As such, former colonies and their indigenous peoples are framed as enemies to the green transition, despite their ideals often being based on protecting the environment. Further, the destructive effects of the climate crisis, such as extreme weather events, happen mainly in former colonies and they would therefore have the least cause to ‘oppose’ this ‘green’ transition. It is clear then, that this ‘green’ transition is not just at all, but a greenwashing of future capitalist, destructive endeavours, which continues to reinforce neo-colonial and imperialist hierarchies.

How to cite this blog post (Harvard style):

A. Orberk and S. Kjeldbjerg. (2023) Legal Pipelines of the Green Transitions. Available at:https://blogs.law.ox.ac.uk/centre-criminology-blog/blog-post/2023/10/legal-pipelines-green-transitions. Accessed on: 13/04/2024

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