Amy Sinden

An Emerging Human Right to Security from Climate Change: The Case Against Gas Flaring in Nigeria

Most of the oil wells in Nigeria are accompanied by a raging flame that burns twenty-four hours a day, reaching hundreds of feet into the sky, killing the surrounding vegetation with searing heat, emitting a deafening roar, and belching a cocktail of smoke, soot, and toxic chemicals into the air along with a potent mixture of greenhouse gases. In 2005, the Federal High Court of Nigeria ruled that the widespread practice of gas flaring by Shell and other oil companies in the Niger Delta constituted a human rights violation. This may be the first court ruling anywhere in the world to suggest that there is a human right to security from climate change. Such a right is warranted. It actually fits comfortably within the principles and values that underlie some of the oldest and most venerated rights in the civil and political rights tradition. Even though that tradition was born over two hundred years ago, long before anyone could have conceived of the idea of climate change, this problem - at least in its political aspects - is exactly the kind of problem that civil and political rights are aimed at combating. It is a problem that arises fundamentally from the distortion of government decision making by power. Nor does the fact that the actions complained of here were committed by private actors take this case outside the rubric of human rights. Even under traditional doctrine, the close relationship between Shell and the Nigerian government in this case may well warrant a finding of liability against Shell for acting in concert with the State. But even in cases where no joint venture with the government can be proved, it may be appropriate to hold the multi-national corporation liable. The same concerns that animated the conceptualization of civil and political rights in the eighteenth century as rights against the State, warrant the imposition of such rights directly against multinational corporations in the twenty-first century, when such corporations wield more wealth than many countries and the power of multinationals to affect the conditions of daily existence for individuals often rivals that of government.

The Problem of Unquantified Benefits

Many of the objections raised against the use of cost-benefit analysis (CBA) to evaluate government regulation, especially in the environmental context, center around the difficulties involved in quantifying and monetizing regulatory benefits. These difficulties implicate deep theoretical issues that have spawned a massive literature spanning many decades. But the difficulties posed by quantification also raise a straightforward empirical question that has been largely ignored: how often and to what extent does the problem of unquantified benefits actually arise in the practice of CBA, and how often is it attributable to the more prosaic problem of inadequate data? This Article presents methods and results of an empirical study aimed at this question. The study examined forty-five CBA’s prepared by the United States Environmental Protection Agency (EPA) in connection with major final rules issued between 2002 and 2015. In 80% of the CBAs analyzed, EPA excluded categories of benefits that the agency itself described as either actually or potentially “important,” “significant,” or “substantial” because they were unquantifiable due to data limitations. In order to understand the implications of these findings for the debate about CBA more generally, this Article lays out an analytic framework for understanding the role that quantification plays in CBA, detailing how significant unquantified benefits constrain the kind of CBA that can be performed, precluding more formal varieties. These results suggest that in developing environmental rules, agencies are rarely ever able to legitimately conduct formal CBA of the sort called for in the relevant executive orders and guidance documents, and that even the informal varieties of CBA they can conduct will produce only limited conclusions at best. This suggests that the connection between CBA and its normative foundations in efficiency or welfare is even more tenuous than most of its defenders have assumed, and bolsters the case for alternative tools, like feasibility and health-based

Cost-Benefit Analysis

Cost-benefit analysis (CBA) is one of three criteria by which the goals of environmental regulation can be set. (The other two are feasibility and health-based standards.) The term refers to any decision-making technique that weighs and compares the costs and the benefits of a course of action, and can range from an informal weighing of qualitatively described pros and cons to a highly formal and technical method that employs sophisticated mathematics and is grounded in economic theory. This more formal, economic version of CBA has sparked considerable controversy since its inception in the mid-twentieth century. But despite ongoing debate as to its validity and usefulness, in the 1980s, the US government began using a relatively formal version of CBA as a tool for centralized regulatory review. Since then, controversy has continued even as the idea of CBA as a tool for regulatory review has begun to spread to other parts of the world.