As part of the Law’s Slow Violence workshop hosted by Osgoode Hall Law School next week (June 14) (complete information here or at the bottom of this post), we have solicited guest posts from academics attending the workshop and interested in the issues.
Find the other posts here, including Professor Dayna Nadine Scott of Osgoode arguing that understanding law’s slow violence means embarking on a widespread project of applying feminist epistemologies and re-orienting our legal and regulatory regimes to make them more receptive to experiential knowledge of harm, .
An Excerpt from Towards a Critical Poiesis: Climate Justice and Displacement
Pearl Kan is a 3L – an almost-graduate of UC Davis law. In this post, she explains how Kivalina v. Exxon Mobil 663 F. Supp. 2d 863, 868 (N.D. Cal. 2009) exemplifies the slow violence of climate change and the challenge of addressing it through law.
The age of climate change poses new challenges that are at once immense, urgent, and yet difficult to approach because it requires a radical shift away from the status quo. The world is rapidly entering an era of irretrievable loss and irreparable change, and there is no starker place to witness this than in the Arctic. By some calculations, the Arctic will be completely ice free in the summers by 2016. At a recent conference, the moderator presented this fact, of the Arctic possibly being ice-free in the summers by 2016, which completely stunned me into silence. Three years—the panel moved on. A maritime attorney started talking about new shipping routes through the Arctic that would be available once the sea ice melted enough to allow for safe passage. It’s already happening, he said. Everyone wants a seat at the table. Some wide dissonance settled within me, did anybody hear what the professor just said? The Arctic may be completely ice free in the summers within three years. Why are we talking about new shipping routes?
I mechanically scribbled some numbers down: London to Yokohama 15,700 kilometers through the Arctic. Or was it 13,841 kilometers. Through the Suez: 21,200 kilometers. It made no difference to me. I know it means something for somebody out there. Sitting there in a chilly conference room in Salt Lake City, with the nerves at the back of my neck constricting, the numbers seemed irrelevant at best and sinister when I thought about it, this efficiency, this calculation, this anticipation, and finally, to even talk about “savings of fuel” (quote, end-quote, enter footnote) seemed absurd at that moment. Did you not hear that the Arctic is melting? You should not have the right to use that word “save” in this context. To rescue or deliver from danger or harm. You do not get to talk about saving fuel right now. To preserve or guard from injury, destruction, or loss. How dare you use that word: save. It is too late to save the Arctic. It will be ice free in the summer months within three years. Save. Some violent catachresis.
Imagine somewhere up North, north of center, there is an 8-mile-long barrier reef island. There, a village of about four hundred people resides. This small village is named Kivalina. The people trace their ancestry thousands of years back to one of the very first settlements in the Americas. The village consists of mostly Iñupiat, Natives of northern Alaska. Like many Alaska Natives, the Native Village of Kivalina survive the harsh Arctic climate through a close understanding of the hunting and gathering seasons, retaining a largely subsistence way of life.
Imagine an aerial photo taken of this village, the coastline inches closer and closer to the houses, the school, the hospital. The coastline is eroded. The village looks dangerously close to being submerged by the sea. Soon it will happen. There is another photo, this one a close-up, a young girl, about nine or ten, with long dark hair and a wide toothy grin, smiling straight into the camera. Things that exist exist and everything is on their side. You now know that this is not entirely true, that you are talking about the law, not art, and what exists in art may have no place in the law. The first image sticks in your mind as an example of an enterprise gone awry, the culmination of the effects of anthropogenic climate change embodied in one single photograph. The second image, the one of the girl, is more harrowing: it speaks to you as an image of a lost future. These two images alone are enough for you to conclude that something is wrong, irrevocably wrong.
The lawsuit Native Village of Kivalina v. ExxonMobil has been on my mind. Earlier last year the Ninth Circuit affirmed the district court’s decision to dismiss the plaintiffs’, the Native Village of Kivalina’s, claim of nuisance caused by defendants’ greenhouse gas emissions. The defendants in the lawsuit are twenty-four large energy corporations. The Ninth Circuit in Kivalina concludes that the Clean Air Act (“CAA”) is comprehensive enough so it speaks to any federal common law claim of nuisance, regardless if the claim seeks injunctive relief or damages. But in Kivalina, the request for damages resulting from greenhouse gas emissions is precisely what distinguishes the case from the Supreme Court case Connecticut v. American Electric Power, which held that the CAA and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon dioxide emissions. AEP did not specifically address the question of damages. The Ninth Circuit held in Kivalina, that with regards to the CAA, there is no difference between a claim seeking pollution abatement, or injunction, and a claim seeking damages. Therefore, the CAA displaces Kivalina’s claims. But this decision leaves me unsettled. The test for whether a specific federal law displaces federal common law or not turns on the inquiry of whether the statute “speak[s] directly to [the] question” at issue. Regarding Kivalina, any new rulemaking promulgated by the EPA to limit greenhouse gas emissions would not “speak directly to the question at issue,” presented by the plaintiffs and their corresponding request for damages—indeed it could not speak directly to the question at issue because the statutory scheme of the CAA does not address the looming question of relocation. The CAA primarily addresses issues of air pollution. So how does the statute in question, the CAA and EPA’s delegated authority to carry out the Act, speak directly to the question at issue? It depends entirely on how you present your question doesn’t it? If the question is: does the CAA address population displacement attributed to climate change? It seems difficult to interpret the CAA as comprehensive enough so it speaks directly to the question of climate change induced displacement.
Within the growing narrative of climate justice, those harmed, like the Kivalina villagers, are directly experiencing the “contradictory state of becoming.” Life goes on, fractured and displaced, even as the Arctic melts. Climate change is perceived as incremental, not discrete, and yet Arctic ice as we know it may cease to exist completely well within our lifetime. Radical change to our ecosystems is experienced as slow violence. But is the violence really slow? I guess it depends on whom you talk to. For Kivalina, slow or fast, the violence has arrived, temporally and geographically. Your home will be no longer. The problem is how to see it. How can we really see what is happening to our world, to our people, in the midst of such vast contradictions? Compound myopia with moneyed corporations exerting their well funded influences to inject doubt into climate science, compound human folly with “hegemonic brevity or incessant promptness that . . . dominate[s] contemporary communications,” as Rob Nixon describes it. The question becomes how can we see things clearly and “maintain our attention over the longue duree as we seek to extend and sustain the pathways to environmental justice . . .” How can we continue to listen to one another, to empathize, to strive to understand one another, when our very world is “seething with virtual ecologies of connection and distraction”? When the structures of private power seek to obfuscate and sever routes of causation? How can we continue to understand integrity in a culture where everything is for sale? How can we cut through?
Law’s Slow Violence Workshop June 14, 2013
Law’s Slow Violence: A workshop at Osgoode Hall Law School
Friday June 14 2013
930AM to 430PM Osgoode Hall Law School IKB 1014
with Rob Nixon, Rachel Carson Professor of English at the University of Wisconsin-Madison,
Author of Law’s Slow Violence & the Environmentalism of the Poor, HUP 2012
Registration is Free but Limited
RSVP www.osgoode.yorku.ca/research/rsvp Event Code SLOW
Copies of the book are available at the York University Bookstore.
Read Professor Dayna’ Scott’s review of the book (published in the Osgoode Hall Law Journal) on SSRN, here:
With gripping urgency, Rob Nixon’s book “Slow Violence and the Environmentalism of the Poor” seeks to reveal the “occluded relationships” between transnational economic actors and the things that tie them to particular places, such as labour, land, resources and commodity dynamics.
He brings into view the bodies caught in the middle – those that have been raced and erased, made invisible, and wiped away — by exposing the violence perpetrated against them across time and space. Nixon’s work is a broad synthesis of a seemingly disparate set of literatures in post-colonial studies, eco-criticism and literary studies. His arresting narrative engages three primary concerns: the phenomenon of “slow violence,” the environmentalism of the poor; and the role of the writer-activist in the work of making the first two ‘visible.’
Slow violence, in Nixon’s conception, is “a violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all.”
Because he views a major aspect of the critical challenge to be representational – the problem of devising “stories, images and symbols adequate to the pervasive but elusive violence of delayed effects” – Nixon focuses on the storytellers themselves. And the storytellers he chooses are the writer-activists that have inspired an environmentalism of the poor, primarily in the Global south. They include Arundhati Roy, Ken Saro-Wiwa, Abdulrahman Munif, and Jamaica Kincaid, among others. They are all figures who, like Nixon, demonstrate a stubborn resistance to liberalism’s urge to “locate violence outside law.” Instead of treating law as that which contains violence, they plainly confront its complicity.
The organizers gratefully acknowledge
the financial support of
the Dean’s Conference Fund,
a Harry Arthurs Collaborative Grant,
Osgoode’s Law.Arts.Culture initiative.
the Institute for Feminist Legal Studies,
& York’s Vice-President’s Research and Innovation
the work of
Natalia Angel (Osgoode Doctoral Candidate)
the administrative & organizational expertise of
Lielle Gonsalves and Jody-Ann Rowe-Butler
Rob Nixon is currently the Rachel Carson Professor of English at the University of Wisconsin-Madison. Professor Nixon received his Ph.D. from Columbia University and is the author of London Calling: V. S. Naipaul, Postcolonial Mandarin (Oxford University Press); Homelands, Harlem and Hollywood: South African Culture and the World Beyond (Routledge); Dreambirds: the Natural History of a Fantasy (Picador); and Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011). Professor Nixon is a frequent contributor to the New York Times; his writing has also appeared in publications such as The New Yorker, Atlantic Monthly, London Review of Books, Times Literary Supplement, Village Voice, The Nation, The Guardian, Outside, Chronicle of Higher Education, The Independent, Critical Inquiry, PMLA, Social Text, Slate, South Atlantic Quarterly, Transition, Cultural Critique, Contemporary Literature, Journal of Commonwealth and Postcolonial Studies, Ariel, Modern Fiction Studies, New Formations, and Black Renaissance/Renaissance Noire. He has published over ninety journal articles, essays, and book chapters. Professor Nixon teaches environmental studies, postcolonial studies, creative nonfiction, African literature, world literature, and twentieth century British literature. He is a former chair of the Border and Transcultural Studies Research Circle and is affiliated with the Nelson Institute for Environmental Studies, the Center for Culture, History, and the Environment (CHE), the African Studies program, and the Creative Writing Program. Professor Nixon has been the recipient of a Guggenheim Fellowship, a Fulbright-Hays Fellowship, a MacArthur Foundation Peace and Security Fellowship, and a National Endowment for Humanities Fellowship. He is currently a Senior Fellow at the University of Wisconsin-Madison Institute for Research in the Humanities.
Amar Bhatia is completing his S.J.D. in the Faculty of Law at the University of Toronto. His work focuses on the status and authority of migrant workers and Indigenous peoples under Canadian immigration law, Indigenous legal traditions, and Canadian Aboriginal law. He received his LL.B. from Osgoode Hall and then articled and worked in union-side labour and employment law in Toronto before returning to graduate school, where he received the Howland Prize in U of T’s LL.M. program. His article entitled “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World” (2012) appeared in a special symposium issue of the Oregon Review of International Law on Third World Approaches to International Law. Another recent publication entitled “In a Settled Country, Everyone Must Eat’: Four Questions About Transnational Private Regulation, Migration, and Migrant Work” appeared in the German Law Journal (Dec. 2012).
Ruth Buchanan is Associate Professor at Osgoode Hall Law School. She has research and teaching interests in the areas of law and development, international human rights, international economic law, critical legal theory, and law and film. Her work frequently engages with issues of legal pluralism, resistance and affect. She is a co-editor of Reading Modern Law: Critical Methodologies and Sovereign Formations (2012). She has authored numerous articles and book chapters, including “Writing Resistance into International Law” (2008) International Community Law Review and “”Passing through the Mirror: Dead Man, Legal Pluralism, and the Deterritorialization of the West.” (2011) She holds an LLM and an SJD from the University of Wisconsin-Madison, and has also taught at the University of British Columbia, the University of New Brunswick, and University of Melbourne law schools.
Bryony Halpin is a PhD candidate in the Faculty of Environmental Studies (FES) at York University. She holds a Master of Arts in Public Policy and Administration from Ryerson University and a Bachelor of Arts in Political Science from Concordia University. Before joining FES, Bryony was awarded a Walter and Duncan Gordon Foundation water policy fellowship and conducted research for the non-profit sector in New York, Mumbai and Toronto. She has been a course director at both York University and Ryerson University. Bryony’s work is centered on environmental justice, racialization and the postcolonial city.
Douglas Hay is a Professor at York Universtity, cross-appointed to Osgoode Hall Law School and York’s Department of History since 1981, teaching the comparative history of criminal procedure, punishment, and crime, and the history of private law in the common law world. He is co-director of a continuing international project on the evolution of the contract of employment (Hay and Craven, Masters, Servants and Magistrates in Britain and the Empire, 1562-1955 (2004) and other titles.) Recent work includes the history of the English high court’s criminal jurisdiction (Crown Side Cases in the Court of King’s Bench, 2010), and Professor Hay is presently writing about the administration of the criminal law in Georgian England. He has published on the history of English and Quebec criminal law; comparative history of criminal procedure; social history of crime; judicial biography; courts and their political significance; and the history of employment law. He has been a visitor at Yale, Warwick, and Columbia law schools, and has been on the boards of the Canadian Historical Review, Law and History Review, the Law and Society Association, and the American Society for Legal History.
Sonia Lawrence is Associate Professor at Osgoode Hall Law School. She graduated from the University of Toronto’s joint LLB/MSW program, and went on to serve as law clerk to Chief Justice Beverley McLachlin of the Supreme Court of Canada. With the help of Fulbright and SSHRC Fellowships, she then attended Yale Law School where she focused on constitutional equality issues and welfare administration. A past member of the Board of Parkdale Community Legal Services, Professor Lawrence has also provided expertise to the African Canadian Legal Clinic, the Women’s Legal Education and Action Fund (LEAF), and the Court Challenges Program. She is the case comments editor of the Canadian Journal of Women and the Law. Her work centers on questions of equality and includes examinations of the Supreme Court of Canada’s equality jurisprudence, the influence of feminism in Canadian law, sentencing regimes for ‘drug mules,’ diversity on the bench, and section 28 of the Charter. She is the Director of the Institute for Feminist Legal Studies and the chair of the Academic Policy Committee. She teaches first-year State and Citizen (constitutional and public law) as well as Perspective Option/upper-year seminars including Law, Gender, Equality. Professor Lawrence runs a blog for the Institute for Feminist Legal Studies at http://ifls.osgoode.yorku.ca/ and is on Twitter as @OsgoodeIFLS.
Karin Mickelson is Associate Professor at The University of British Columbia, Faculty of Law. She has taught in the areas of international law, international environmental law, real property, environmental law and legal theory, and has supervised and co-supervised graduate students in a wide range of areas including international environmental law, international legal theory and international human rights. She has also served as the faculty advisor to UBC teams participating in the Jessup International Law Moot Court Competition. Professor Mickelson’s research activities have focused on the South-North dimension of international law; for example, she has explored the possibility of identifying a distinctive Third World approach to international law in “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wisconsin International Law Journal 353-419, and has analyzed the failure of international environmental law to respond to the concerns of the South in “South, North, International Environmental Law, and International Environmental Lawyers” (2000) 11 Yearbook of International Environmental Law 52-81. Her current research focuses on the impact of developing countries on the evolution of international environmental law. She is also a contributor to leading Canadian casebooks on international law and environmental law.
Usha Natarajan is an assistant professor in the Department of Law and the Center for Migration and Refugee Studies. She first joined AUC in 2010 as a visiting assistant professor of international law in the Department of Political Science. Professor Natarajan has a multidisciplinary academic background, with a PhD in international law from the Australian National University, a MA in international law from the United Nations University of Peace, and an LLB (law) and a BA (art history) from Monash University. She has taught international law at the Australian National University, and worked with various international organizations including UNDP, UNESCO and the World Bank. She has worked with law initiatives in Asia, including Indonesia during its democratic transition, and in post-independence Timor Leste. Natarajan serves as a legal research fellow on human rights and poverty eradication at the Center for International Sustainable Development Law at McGill University. Recent publications include ‘Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India’ (2012) and ‘TWAIL & the Environment: The State of Nature, the Nature of the State and the Arab Spring’ (2012).
Pooja Parmar is the inaugural Catalyst Fellow and visiting professor at the Osgoode Hall Law School. She has recently completed PhD in law at the UBC Faculty of Law. The focus of her doctoral research was a dispute over groundwater that began with adivasi (indigenous) protests against a Coca-Cola plant in Kerala, India. Based on extensive legal, ethnographic and archival research, her dissertation explores how claims central to such disputes are inadequately understood. Pooja received her LLM degree from UBC Law and her LLB degree from Panjab University in India. She has practiced law in New Delhi for several years, and has taught at UBC Law and Osgoode Hall. Her research interests include legal pluralism, intersections of law and colonialism, indigeneity in a global context, human rights, law and development, and TWAIL. Her most recent paper titled ‘Undoing Historical Wrongs: Law and Indigeneity in India’ was published in the current issue of the Osgoode Hall Law Journal.
Sundhya Pahuja is a professor in the Melbourne Law School, University of Melbourne and the director of the Law and Development Research Programme at the Institute for International Law and the Humanities. Pahuja’s scholarship is concerned with the relationship between international law and institutions and the question of global inequality. She researches, writes and teaches in the areas of law and development, international law, law and globalisation and legal theory. Her work engages with the practice, and praxis, of international law and development through political philosophy, political-economy and postcolonial theories. She has worked as a research associate in international law and human rights at the EUI in Florence, practiced as a commercial lawyer, and for several years chaired the committee of management at the Darebin Community Legal Centre. She is currently a member of the organising committee of the Legal Theory Interest group of the European Society of International Law and serves on the editorial boards of the Australian Feminist Law Journal * and the Law, Social Justice and Global Development Journal *(LGD) based at the University of Warwick. Her latest book, Decolonizing International: Development, Economic Growth and the Politics of Universality, was awarded the American Society of International Law Certificate of Merit.
Dayna Nadine Scott is Associate Professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University. She joined York in 2006 after completing a SSHRC Post-Doctoral Fellowship at McGill’s Faculty of Law and a Hauser Global Research Fellowship at NYU. Professor Scott’s teaching is in administrative law, environmental law, risk regulation and international environmental governance. She recently completed a SSHRC-funded research project in partnership with environmental justice activists from the Aamjiwnaang First Nation, near Sarnia`s Chemical Valley, which tackled the issue of chronic pollution on an Ontario reserve. The project applied a critical, feminist perspective to the examination of law’s treatment of the “risks” of long-term, low-dose exposures to pollutants. Professor Scott’s publications cover topics from international law’s “precautionary principle” and the regulation of toxic substances to the challenges posed for law and environmental health activism by the emerging endocrine disruption thesis. She is interested in questions of environmental regulation and governance from an interdisciplinary perspective, especially work that interrogates the interaction between local and global modes of governing and ways of knowing. The chapter, “Pollution and the Body Boundary: Exploring Scale, Gender and Remedy” appears in the recent volume, Feminist Perspectives on Tort Law, edited by Janice Richardson and Erica Rackley (Routledge, 2012). Professor Scott is the editor of `Consuming` Chemicals: Law, Science and Policy for Women`s Health, forthcoming from UBC Press, and the Director of the National Network on Environments and Women`s Health. She is currently working on research related to the environmental justice implications of the pipeline decisions being contemplated by the National Energy Board.
Kate Sutherland is Associate Professor and Assistant Dean, First Year, at Osgoode Hall Law School. She joined Osgoode’s faculty in 1998, and has taught law at the University of Saskatchewan. She has served as law clerk to Chief Justice Antonio Lamer of the Supreme Court of Canada, as well as Chief Justice E. D. Bayda of the Court of Appeal for Saskatchewan. Professor Sutherland is former Acting Director of the Centre for Constitutional Studies at the University of Alberta. She was the recipient of a Fulbright Fellowship in 1995 and the Law Society of Saskatchewan Gold Medal in 1989. Professor Sutherland has written and presented in areas such as charter equality rights, sexual harassment, childhood sexual abuse, and tort law. She has served as editor or co-editor of several publications, including Review of Constitutional Studies, Constitutional Forum, Points of View, and Saskatchewan Law Review . Professor Sutherland has also written several literary pieces, including “The Necklace” in The New Quarterly , Winter (1997), Summer Reading: A Collection of Short Fiction (Saskatoon: Thistledown Press, 1995), and “Lucia” in Prairie Fire (1992). Professor Sutherland’s community involvement has included her work for the Boston AIDS Care Project, University of Saskatchewan Women’s Centre, Her Story Calendar Collective, Saskatchewan Action Committee on the Status of Women, and the Saskatchewan Writers Guild.