Sustinere, Volume 1 (2021), No. 1, pp. 145-156

Empowering Nature: Evaluating Corporate

HANNAH SALEH ALI AHAMEDI

What makes us human? Is it the ability to speak, think, or have some sense of a moral code? Similarly, if we are unable to define personhood, how can we determine its antonym? For more than a century, corporations within America have been granted personhood. The quest for so-called freedom in America is often at the expense of the individuality and autonomy of the environment. Relating to the climate action sustainable development goal (SDG 13), within this paper I will argue that a corporation's right to personhood in the U.S should be null in the case of fracking projects, specifically because of a corporation’s ability to infringe on environmental personhood. Re-imagining limitations to corporate personhood would not only strengthen the climate movement, but also provide rationale towards the . Ahamedi 146

INTRODUCTION What makes us human? Is it the ability to speak, think, or have some sense of a moral code? This is a question that cannot easily be answered. Yet, if we are unable to define personhood, how can we determine its antonym? This is an issue that arises in the discussion of corporations and their classification, despite the difficulty in defining and allocating personhood. A corporations is often identified as a mass of people working collectively under the title of an organization. This paper explores the ramifications of when corporations use this distinction toward financial gain.1 These stakeholders are seen as being independent of the individuals involved, providing a significant amount of power and leeway for them to act without repercussions or checks and balances. Corporations tend to be complex and large, usually consisting of both senior (CEO, COO, President) and junior roles (blue-collar job worker). Notably, this means that stakeholders, such as senior or junior members, are not liable in the legal system for the actions of their corporations.2 Within this essay, I will argue that a corporation's right to personhood in the should be null in the case of fracking projects, specifically because of a corporation’s ability to infringe on environmental personhood. Reimagining limitations to corporate personhood would not only strengthen the climate movement, but also provide rationale towards the rights of nature. Firstly, I will discuss how the fracking industry negatively impacts the environment and deprives it of its ability to exist. Secondly, I will argue that the act of denying corporations the ability to frack supports corporations’ own claim to personhood. Lastly, I will discuss how the global shift in perspectives regarding the climate crisis is represented in the United States through advocacy on the rights of nature. Before this, a brief context is needed regarding the fracking process.

THE NATURE OF FRACKING As industries have attempted to move away from coal, oil and gas have provided tremendous revenue potential. The increased interest in utilizing fracking in the United

1 Corporation. In Cambridge Dictionary, n.d.

2 “,” accessed December 10, 2020, https://www.law.cornell.edu/wex/legal_person. Ahamedi 147

States is understood when economic growth and potential jobs are considered.3 Examples of corporations with fracking projects would include Chesapeake Energy, Apache, and Chevron Corporations. Fracking consists of drilling large pipes into the earth in the search for oil and gas. Once an area is deemed as having the potential oil reserves, a mixture of water/sand/chemicals is pressurized into the earth. This cracks rock layers and allows for a flow of oil and gas to occur.4 Although this may seem incredibly high-tech and advanced, it also has a flip side. It contributes to loss of habitat, pollution, and groundwater depletion.5 North America is one of the few places in the world which relies heavily on fracking for resource extraction.6 For the process to occur, copious amounts of water are mixed with various acids, plastics and friction reducers.7 Cement is often used as a barricade to stop the liquid from contaminating its surroundings, but this can fail due to leaks or over-pressurization.8 These failures contribute to the pollution of water that interacts with the ecosystem. Additionally, methane from fracking projects is a “potent greenhouse gas that heats the atmosphere quicker than carbon dioxide.”9 With the temperature of earth increasing by over two

3 Hilary Boudet et al., “‘Fracking’ Controversy and Communication: Using National Survey Data to Understand Public Perceptions of Hydraulic Fracturing,” Energy Policy 65 (February 2014): 57, https://doi.org/10.1016/j.enpol.2013.10.017.

4 Hilary Boudet et al., “‘Fracking’ Controversy and Communication: Using National Survey Data to Understand Public Perceptions of Hydraulic Fracturing,” 58.

5 Anthony E. Ladd, Fractured Communities: Risk, Impacts, and Protest against Hydraulic Fracking in U.S. Shale Regions (New Brunswick, NJ: Rutgers University Press, 2018), 1.

6 Robert W. Howarth, Anthony Ingraffea, and Terry Engelder, “Should Fracking Stop?” Nature 477, no. 7364 (2011): 272.

7 Robert W. Howarth et al., “Should Fracking Stop?” 272.

8 Robert B. Jackson et al., “The Environmental Costs and Benefits of Fracking,” Annual Review of Environment and Resources 39, no. 1 (2014): p. 337.

9 Michael Gerrard, Chloe Williams, and Bill McKibben, “U.S. Fracking Boom Likely Culprit in Rapid Rise of Global Methane Emissions,” August 16, 2019, https://e360.yale.edu/digest/us- fracking-boom-likely-culprit-in-rapid-rise-of-global-methane-emissions. Ahamedi 148 degrees in the past two centuries, additional heating of the atmosphere should be discouraged — we are in the midst of a climate crisis.10 Oil companies, which are the prime investors in fracking projects, are “consistently ranked among the least trusted corporations and most in need of more regulations.”11 This is likely due to the lack of checks and balances within the status quo towards managing these groups. Knowing that corporations have a fragmented relationship with environmental standards is what generates anxiety among activists about fracking. Fracking projects increase the carbon monoxide distributed into the atmosphere while also creating methane emissions that contribute to a warmer climate.12 Moreover, the contamination of water, industrialization of land, potential chemical spills and disrupted habitats both inside and around sites, are just a few of the trade-offs of fracking.13 This does not even take into account the impact it has on global climate, rising sea levels and the depletion of the ozone. For example, fracking releases smog, ground level ozone, formaldehyde, to name a few.14 On top of that, greenhouse gas emissions will continue to rise because oil reserves are never left untouched. These emissions are a direct result of the fracking. Yet, the potential to extract and make profit is too irresistible.15 Although corporations are cognizant of their actions and their repercussions on the livelihood of flora and fauna, they often overlook it because of the immense capital that fracking creates. Everyday in 2018 saw the production of eleven million barrels of

10“Climate Change Evidence: How Do We Know?” NASA. NASA, May 10 2021, climate.nasa.gov/ evidence.

11 Francisca Farache et al., Responsible People the Role of the Individual in CSR, Entrepreneurship and Management Education (Cham, Switzerland: Palgrave Macmillan, 2019), 176.

12 Francisca Farache et al., Responsible People the Role of the Individual in CSR, Entrepreneurship and Management Education, 177.

13 Francisca Farache et al., 177.

14 Joe Hoffman, “Potential Health and Environmental Effects of Hydrofracking in the Williston Basin, Montana,” Geology and Human Health: Case Studies (Carleton University , February 15, 2019), https://serc.carleton.edu/NAGTWorkshops/health/case_studies/hydrofracking_w.html.

15 Philip L. Staddon and Michael H. Depledge, “Fracking Cannot Be Reconciled with Climate Change Mitigation Policies,” Environmental Science & Technology 49, no. 14 (February 2015): 8270, https://doi.org/10.1021/acs.est.5b02441. Ahamedi 149 oil.16 Importantly, this adds up to a large amount of money. Attention to the potential financial profit of fracking projects can be seen in , where in 2010 the state received upwards of 3000 companies requesting drilling permits.17 Although management, investors, and even the average company desk clerk understand the dangers fracking poses to the environment, the lack of hesitation is symbolic of agnotology, a discipline focusing on the “production of zones of ignorance.”18 Corporations are indifferent to the long term ramifications of their actions and are blinded by greed, because they have been raised in a society where the effects of the capitalization of natural resources are “minimized and nature [becomes] a mere externality, ” — that is, it becomes ours to ruin.19 We “disconnect [nature] from any material substratum” and view it as being worth destruction.20 We uproot the land, displace it; all without a second glance. However, fracking projects cannot necessarily be stopped. The corporation has a right to property, and thus possesses the ability to do as it pleases regardless of the negative environmental implications. This means that there is no process to evaluate the credibility of these projects, or whether they should be occurring to begin with. The environment, especially during a climate crisis, deserves the ability to thrive and exist without threat. Thus, the best solution to coping with this crisis is by ridding corporations of their ability to do further harm, especially since giving them the moral decision to help the environment is futile.

COMPETING CLAIMS FOR PERSONHOOD To contest a corporation’s right to property would support an identical cause in terms of the environment, as fracking denies the environment its own right to

16 Bethany McLean, Saudi America: the Truth about Fracking and How It's Changing the World (New York, New York: Columbia Global Reports, 2018), 8.

17 Bethany McLean, Saudi America: the Truth about Fracking and How It's Changing the World, 30.

18 Christophe Bonneuil and Jean-Baptiste Fressoz, The Shock of the Anthropocene: the Earth, History, and Us (London: Verso, 2017), 199.

19 Christophe Bonneuil and Jean-Baptiste Fressoz, The Shock of the Anthropocene, 206.

20 Christophe Bonneuil and Jean-Baptiste Fressoz, The Shock of the Anthropocene, 209. Ahamedi 150 personhood. In the 14th amendment of the United States constitution, Article Two describes that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens, nor shall any state deprive any person of life, liberty, or property.”21 The first committee that created the initial draft was said to have considered the amendment as not being “limited to natural persons.”22 This set the precedent of non-human entities being considered for personhood. In relation to corporate personhood, the Terrett v. Taylor case was groundbreaking.23 Although it had no correlation to the environment, the case was one of the first to advocate for the rights of a corporation. In 1815, an Episcopal Church argued that they should be considered a private enterprise which had the right to property.24 The church, being a creation of humans and their interests, was seen as providing enough justification for it to exist as its own entity.25 Gwendonlynne Gordon, a professor at Wharton School of Business, states that there is “no such thing as a plain-old person; it is law that defines the categories of persons.”26 This is important, as corporate personhood has set a model for the increasing role of rights for non-human entities. If you had mentioned to someone in the Dark Ages that guilds are equivalent to people, you would have easily been deemed a fool. Nevertheless, developments have happened that display personhood as a spectrum with all forms of validity. Imagining the environment as having its own rights and a safety net has the ability to change everything by allowing the environment to

21 U.S. Constitution. amend. XIV, sec. 1.

22 Clara Torres-Spelliscy, “Does ‘We the People’ Include Corporations?,” American Bar Association (Human Rights Magazine: Vol. 43, No. 2), accessed December 10, 2020, https:// www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/we-the-people/we- the-people-corporations/.

23 Clara Torres-Spelliscy, “Does ‘We the People’ Include Corporations?” American Bar Association.

24 McConnell, Michael W. “The Supreme Court’s Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic.” Tulsa Law Review 37, no. 1 (2001): p.7.

25 George F. Canfield, “The Scope and Limits of the Corporate Entity Theory,” Columbia Law Review 17, no. 2 (1917): p. 128, https://doi.org/10.2307/1111674, 128.

26 Gwendolyn J. Gordon, "Environmental Personhood," Columbia Journal of 43, no. 1 (2018): pg. 51. Ahamedi 151 challenge/defend itself against corporations. It would change the basis of the capitalist world. In regard to the environment, this is especially important because “personhood [is the only] tool to recognize interests that may not be adequately protected otherwise.”27 With corporations across America investing in harmful, unsustainable practices like fracking, time is of the essence to establish thorough guidelines for environmental personhood. This would be possible, for example, through pre-existing mechanisms of advocacy. Similar to patients in comatose, or a fetus, “guardians can be appointed to make sure that [the environments] rights are respected, and [...] to engage in negotiating a mutually beneficial cooperation with polluters.”28 In this case, environmental lawyers and policymakers could be able to stop a corporation from fracking. This would set forward a new direction in the fight against climate change. Denying the environment’s rights would inherently delegitimize the practice of corporate personhood as both have similar vouches for bearing rights. Notably, the status quo for non-human entities gaining personhood is illegitimate because it benefits some entities but not others. Both corporations and the environment lack the ability to express themselves but are considered entities used on behalf of the welfare of society. Knowing this, continuing to frack while understanding the tremendous harm it does would be to show that entities, regardless of their validity as a being with rights, can be mistreated. More importantly, environmental activists could use this as an opportunity to disrupt corporate projects on behalf of the voice of the environment. This could turn the entire corporate system on its head. To expose this double standard would be to delegitimize corporate rights which effectively would have a trickledown effect on all parts of society.

THE FINAL FRONTIER Global shifts in perspectives regarding extractive practices like fracking should be represented in U.S institutions. With a warming climate, humanity is becoming more

27 Michele Breton and Suzanne Zaccour, Games in Management Science: Essays in Honor of Georges Zaccour, 1st ed. (New York City, New York: Springer International Publishing, 2020), 240.

28 Michele Breton and Suzanne Zaccour, Games in Management Science: Essays in Honor of Georges Zaccour, 244. Ahamedi 152 understanding of the detriments of human activity, thus forcing states to rethink how they interact with the environment. This process is dependent on humanity seizing the opportunity to change the climate crisis in tangible ways.29 This can be seen specifically in America with the Green New Deal, the United States Climate Action Network, and Citizens Climate Lobby. Rethinking corporate personhood in regard to the environment would be to rethink modernity as a “discovery of the future.”30 Our ability to learn and understand how corporations and fracking impact the environment could allow us to endeavour towards a future that could be less harmful. These tremors must be supported and amplified by the states through institutions that have tangible change, such as the legal system, the United States Agency, as well as growing assistance for climate change activists and their advocacy work. Although obliterating the capitalist system would be the most effective, this is a solution that could help usher in a new era of societal upheaval in the name of Gaia. While “capitalist modernity [is] a successful project driven by various classes and a systemic imperative towards accumulation and expansion,” being able to adapt to this system and infiltrate it using these institutions will have the most beneficial effects for the environment because it will help sow the seeds of societal change.31 Rome did not appear in a day, and neither will revolution.

CONCLUSION Altogether, this paper argues that a corporation's right to personhood in the U.S should be null in the case of fracking projects, especially when a corporation infringes on the rights of the environment. Firstly, a detailed account was given supporting how the fracking industry negatively impacts the environment and its livelihood, while demonstrating how the act of corporate fracking is contradictory to the rights of personhood. Lastly, an analysis on shifts in perspective was provided that identified the

29 Nick Srnicek and Alex Williams, Inventing the Future: Postcapitalism and a World without Work (London: Verso, 2016), 71.

30 Nick Srnicek and Alex Williams, Inventing the Future: Postcapitalism and a World without Work, 72.

31 Nick Srnicek and Alex Williams, 74. Ahamedi 153 impact that changes in perspectives would have on United States institutions and the betterment of the climate movement. The potential to stop global warming is possible, but time is running out. This change can only happen if we collectively work together as a world, starting in countries like the United States that have significant onus on contributing to creating the climate crisis in the first place. New laws and legislation must be created that prioritize the betterment of eco-systems, whether that be in relation to sustaining clean water sources or lowering deforestation rates in the Southeast. Seeing as fracking continues to be a growing trend in the United States, using corporate personhood to support environmental rights could be the first step in establishing a stronger case for the rights of nature. Although fracking is only one aspect of environmental degradation, it still is a good place to start. At the end of the day, laws and legislation can be re-written, but we only have one earth. Ahamedi 154

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