Environmental Law Seminar


University of California

Hastings College of the Law


Professors Blaine Bookey and Brian Gray


Fall Semester 2013


Tuesdays: 9:40-11:50

Room 620A in the Library


Professor Bookey, 100 McAllister Street, 4th Floor, Room 409

(415) 703-8202

bookeybl@uchastings.edu


Professor Gray, 198 McAllister Street, 2nd Mezzanine, Room 216

(415) 565-4719

grayb@uchastings.edu

Welcome to the Environmental Law Seminar

The topic of this year’s seminar will be Haiti’s environment and natural resources, which have been exploited, denuded, and degraded for more that four centuries.  We will consider Haiti’s environmental problems from a variety of interdisciplinary perspectives, including Haitian law, international environmental and human rights law, comparative legal analysis, science, economics, history, and politics.  


Haiti suffers from just about every type of environmental problem, each of which is exacerbated by a history of international and domestic exploitation, poverty, political instability and corruption, and the absence of effective legal compliance and enforcement.  As such, the country presents a challenging and compelling case study of environmental decisionmaking under conditions of multifaceted uncertainty.


We will study an array of issues--including deforestation, unsafe drinking water and the cholera epidemic, inadequate public sanitation, agricultural policy, and creation of sustainable economic development.  We also will consider the respective roles and accountability of the Haitian government, international aid organizations such as the United Nations and the World Bank, foreign governments, NGOs, international companies, and Haitian community organizations.  The ultimate focus of the seminar, though, will be on recent proposals to mine Haiti’s gold and copper reserves.


Although there has not been any large-scale mining in Haiti since the early years of Spanish occupation of Hispaniola, several international mining companies are actively prospecting for gold and copper.  Current estimates are that Haiti possesses more than $20 billion worth of gold.  The international corporations, working with Haitian and Haitian-American controlled local companies, are in the process of exploration, planning, and securing permits to mine the gold.

 

Modern gold mining is one of the most environmentally disruptive and risky activities as it unearths millions of tons of rock and sediment and usually employs large quantities of cyanide to separate the gold from the rubble.  These processes create giant open pits in the ground (sometimes more than a mile in diameter and hundreds of feet deep), expose acids and heavy metals, foul surface streams with pollutants and sediment, threaten drinking water and farmland, and displace residents and communities.  Gold mining is often attractive to the host nation, however, because it promises employment and direct revenue in the form of royalties and taxes.


Last December, Haiti's Bureau of Mines and Energy issued three “exploitation” permits to two companies to begin mine construction.  Other exploitation permits are expected within the next several years, as are "concession" permits, which will authorize actual mining.  With assistance from the World Bank, the Haitian government is in the process of revising its Mining Law to address modern mining techniques, environmental protection and restoration, community rights, and fiscal policy.  The policy of the Haitian government is to promote mining, and it is uncertain whether the new law will effectively address these issues.  This is therefore an opportune time to take a detailed and comprehensive look at the array of environmental, economic, and human rights questions presented by the impending mining.


The class will be a hybrid seminar and clinical experience.  The first part of the semester will include an introduction to Haiti and its myriad environmental problems, as well as an overview of relevant legal principles.  The second part will focus on the mining controversy.  Students will work collaboratively under our supervision to research a variety of topics and write a report based on this research.  Each student will be responsible for one chapter of the report.


We are working with faculty and students at NYU Law School's Center for Human Rights & Global Justice and with members of the Haiti Justice in Mining Collective in Haiti to address the risks and externalities posed by mining and to help shape Haiti's mining laws and policies.  Student writing for the seminar may be included in the final report and other documents produced by this broader project. 


Our study of Haiti's gold will include the following questions:  


     •     What standards and resources are needed to ensure adequate environmental protection, monitoring, remediation, and enforcement?  


     •     Is Haiti adequately equipped to regulate mining and to enforce the applicable laws?  


     •     What bonding and other surety requirements should be imposed as a condition of mining?  


     •     What rights should displaced residents and farmers have, either to oppose mining or to be compensated for harm they incur?  


     •     Should the communities affected by the mining be granted a special share of the royalties and taxes that the companies must pay to the Haitian government?  


     •     What should these royalties and taxes be, and how should the companies’ financial obligations be structured to ensure that Haiti retains a fair share of its mineral wealth?  


     •     What questions of title are likely to arise and how should these questions be resolved--both to facilitate mining and to apportion compensation?  


     •     What lessons can be learned from other countries' experiences with mining?  


     •     What are the comparative benefits and risks to Haiti from the proposed mining, and should gold mining occur at all in Haiti given these anticipated benefits and risks?


Papers written for the seminar satisfy the College’s upper-division writing requirement.  If the Faculty approves the proposal for an Environmental Concentration, this will be the culminating seminar for the concentration.