Mining Thacker Pass: Environmental Justice and the Demands of Green Energy

INTRODUCTION

At the time of writing, a legal battle is being waged to determine the future of Thacker Pass or Peehee mu'huh as it is called by the Paiute people. ¹ The pass is a vast sea of sagebrush, located between the Montana Mountains and Double H Mountains in northern Nevada. A sweeping iconic vista of the American West and critical wildlife habitat, the pass is home to bobcats, deer, antelope, sage-grouse, pygmy rabbits, burrowing owls, and many other species. ¹ According to the U.S. Department of the Interior and U.S. Geological Survey, it also contains the largest lithium-clay deposit in the United States. ^{2 (p. 12)}

The legal conflict pits Lithium Americas, which, as of January 2021, has been approved by the U.S. Bureau of Land Management to mine Thacker Pass, against five environmental nonprofits (Deep Green Resistance, Western Watersheds Project, Great Basin Resource Watch, Basin and Range Watch, and Wildlands Defense), local ranchers, and Paiute and Shoshone tribal communities, who aim to halt construction of the mine. The ranchers worry about the project's intensive use of groundwater (a precious resource in Nevada) and the potential contamination of their land, air, and water.

The environmental non-governmental organizations (NGOs) claim that the mine poses a threat to old growth sagebrush, golden eagle nests, endemic spring snails, and endangered species, including Lahontan cutthroat trout, bighorn sheep, and pygmy rabbits. ¹ The Paiute and Shoshone tribal members (who call themselves collectively the People of Red Mountain) assert the mine will destroy sacred land, desecrate ancestral burial grounds, and undermine their ability to continue their traditional cultural practices.

Despite the environmental destruction and pollution the open-pit mine would indisputably cause, the case presents a dilemma for many environmentalists who have spent the last half century targeting coal, oil, natural gas, and the fossil fuel industry in favor of a transition to “green energy,” that is, replacing the global economy's usage of fossil fuels with new forms of energy production. These new forms of energy (e.g., hydroelectric, solar, geothermal, and wind) are dependent in many ways on rechargeable lithium-ion batteries, especially as a means of powering vehicles.

The quandary from an environmental and moral standpoint is determining whether the predicted environmental benefits of mining Thacker Pass (i.e., reducing CO₂ emission by substituting fossil fuels for lithium-ion batteries) trump the inevitable harm to the ecosystem. More generally, the question involves determining what (environmental) justice requires regarding policies and projects meant to combat worldwide environmental threats (e.g., global warming), yet achieve their stated purpose by way of degrading and destroying particular ecosystems.

OVERCOMING A LIMITATION OF ENVIRONMENTAL JUSTICE

Developing conceptual frameworks and guidelines for approaching clashes of this kind will become crucial in the arena of environmental justice moving forward. As James McCarthy explains, the move to “renewable resources,” unfortunately, will engender countless comparable tradeoffs: “renewable energy production, distribution, and consumption on a global scale [will] likely involve powerful new rounds of investment in, and claims on, rural areas, on scales potentially far exceeding even recent land grabs.” ^{3 (p. 2497)}

It appears that transitioning societies to more spatially extensive forms of energy production (e.g., building wind farms, solar farms, geothermal power plants, and hydroelectric dams, growing biofuels, and extracting rare earth minerals) will ensure future degradation and destruction of wilderness on a massive scale.

Environmental justice, narrowly construed, involves the equitable (re)allocation of environmental benefits and burdens. The fundamental weakness of this theoretical approach lies in the fact that it does not offer a means of deciding which acts of environmental destruction should prohibit tout court. From within its distributive schema, any act of environmental profiteering can be made permissible, so long as the consequences of the destruction are equitably shared. Such an approach is, therefore, likely to endorse habitat degradation and destruction committed in the name of a green energy future. This article aims to push environmental justice beyond the traditional discourse of distribution by offering a framework for determining when environmentally harmful activities are impermissible, regardless of their overall societal impact.

In a recent study, I have defended a notion of eco-relational pluralism that delineates when the pursuit of economic growth and development at the expense of local ecosystems violates basic principles of respect and toleration undergirding liberal societies. ⁴ In this study, I further develop the norm of ecorelational pluralism as a means of designating which class of environmental alterations should be wholly prohibited in a fair and just society, in lieu of viewing the injustice as merely a failure of achieving an equitable distribution of the burdens and benefits resulting from the activity.

ECOCIDE AND ECORELATIONAL PLURALISM

A central tenet of modern liberal theory, emphasized by key thinkers including John Stuart Mill, John Dewey, John Rawls, and Amartya Sen, is that states ought to remain neutral in their treatment of various reasonable life plans. In Rawlsian terms, the state ought to remain neutral such that its policies do not aim to promote one reasonable comprehensive doctrine or conception of the good over another.

Numerous conceptions of the good life are tethered to maintaining certain relationships with the natural world. Martha Nussbaum acknowledges this fact by including “relations with other species” and “control over ones' environment” as two of her central human capabilities, constitutive of a good life. ⁵

People living in the “developed” world frequently mistakenly assume that nearly all humans alive today derive their sustenance from participating in a globalized industrialized economy. It is paramount to correct this misconception by recognizing the multitudes who rely on localized subsistence practices. Glenn Albrecht estimates “about half of the world's population still lives in a small town or rural village and is mainly sustained by its hinterland.” ^{6 (p. 173)} Many of these people are not only materially dependent on their local ecosystem, but also have their identity and cultural traditions bound up with their natural surroundings.

Although policy makers often discuss industrial economic growth and development as if it were a universally affirmed good, this is far from the truth. As Arturo Escobar explains, developmentalism (i.e., the idea that more mining, drilling, building, and manufacturing is indubitably socially beneficial because it expands the economy), has been the hegemonic ideology driving international affairs at least since the second half of the twentieth century. ⁷

Once it is recognized that not everyone is dependent upon or interested in being integrated into the global industrial system, it undermines the justification for sacrificing inhabited ecosystems (e.g., Thacker Pass) to maintain and expand industrial society. Approving such environmentally destructive projects would thus be an abdication of states' responsibility to remain neutral regarding various reasonable life plans and comprehensive doctrines.

Ecorelational pluralism requires the state tolerate and respect citizens' desire to sustain intimate bonds with particular habitats and natural entities. When states pervasively privilege continued economic growth and development over protecting citizens' vital interests dependent on the health, stability, and continued functioning of their local environment, it constitutes a violation of basic rights and liberties. ⁸

Henceforth, the article defines any policy or project that knowingly degrades or destroys a habitat to such an extent that it undermines citizens' vital interests as an act of ecocide. Ecocidal activity constitutes a class of environmental harms that ought to be prohibited in a well-ordered and just society. There remain, however, certain cases that are difficult to adjudicate. For instance, what does environmental justice require in situations wherein ecocide is committed as a means of satisfying other citizens' vital interests (i.e., providing them with access to goods and services to meet their basic needs and/or pursue their purposeful self-development)?

ADJUDICATING CASES IN WHICH ECOCIDE IS NECESSARY TO MEET VITAL INTERESTS

It appears there may be at least one instance in which societies can justly pursue ecocide—when ecocide is perpetrated to satisfy the vital interests of certain other segments of the population, such as clearing and developing land to provide food, shelter, and water to the urban poor.

Even in such cases, however, it is unlikely that the state barring ecocidal activity will undermine vital interests to the same extent as permitting the activity. Satisfying the urban poor's subsistence needs and enabling them to pursue their life goals can be achieved by drawing resources from almost anywhere, whereas the citizens whose vital interests are tied to a specific ecosystem or natural entity can often only have their needs met by that particular place. There is a nonsubstitutability regarding their connection to their habitat. For example, impacted citizens might be unable to conduct religious ceremonies that were tied to a specific geographic location or natural entity if that place/object/entity has been destroyed or made inaccessible. ⁹

Ecocide, therefore, only triggers comparable justice concerns if preventing the exploitation of these specific resources necessitates that some citizens' vital interests are compromised, which is relatively unlikely. Nonetheless, suppose it is the case that the only way to meet certain citizens' vital interests is by extracting the lithium deposits at Thacker Pass. Is there a way to determine what environmental justice requires in such hypothetical tragic circumstances?

Jonathan Wolff and Avner De-Shalit develop a conceptual framework for deciding which policy ought to be prioritized over others in tragic situations (i.e., when the only way of meeting some citizens' vital interests is by sacrificing others). ¹⁰ Wolff and De-Shalit utilize a capabilities approach, which focuses on the evaluative space and practical reasoning underlying the decision-making process in combating injustice, rather than attempting to construct an ideal and perfectly just society.

Sen explains that the capabilities approach embraces “imperfect,” “partial,” and “limited agreements” for addressing injustice and improving the lives of those in need. ¹¹ The approach eschews determining what constitutes perfect justice (à la Rawls's constructivist theory of justice) and instead focuses on changing the world based on assessing what lives are actually like. The method thus allows practitioners and theorists to advance justice directly, by tracking the advancement or retreat of (in)justice through alterations in groups' functionings and capabilities over time.^{11(p.8), 12}

In summary, Wolff and De-Shalit emphasize that, in deciding how to proceed in tragic situations, practitioners and theorists must consider the “dynamic clustering” effect of promoting or discouraging a capability, that is, how gaining or losing a capability can cause accumulation and reproduction of (dis)advantage. ¹⁰ They argue that social policy can benefit from indexing “fertile functionings” (capabilities that “spread their good effects over several categories, either directly, or by reducing risk to the other functionings”) and “corrosive disadvantages” (capabilities that “have negative effects on other functionings”).^{10(pp. 121–122)}

In ecologically tragic situations, policy makers can evaluate whether ecocide will generate greater fertile flourishing than corrosive disadvantages in the society writ large. Such a determination will need to be made on a case-by-case basis. In general, however, it seems unlikely ecocide will promote human flourishing in a society, even when perpetrated to meet vital interests, as it is unlikely to generate greater social capabilities than it erodes. This is due to the fact that functioning ecological systems are necessary for having any of the other capabilities. As Breena Holland states, “functioning ecological systems create the physical conditions that are necessary for human life, conditions that enable the very possibility of human life.” ^{13 (p. 6)}

Functioning ecological systems are a prerequisite for achieving citizens' vital interests, in that they maintain the biochemical background conditions necessary for sustaining human flourishing, for example, facilitating food production, waste absorption, and maintenance of the appropriate chemical compositions of air and water. It may be true that, in certain circumstances, destroying an ecosystem may assist in meeting vital interests. In the long term, however, continually allowing such destruction will likely impede future generations in achieving their vital interests.

For ecocide to be justified, every other avenue (that does not generate comparable justice concerns) must be exhausted. Furthermore, it must be shown to generate greater fertile flourishing and less corrosion of capabilities than allowing some citizens' vital interests to go unfulfilled.

Lastly, this weighing of anticipated societal flourishing against corrosion only applies to tragic situations. In other words, if the ecocidal activity is not necessary to promote certain citizens' vital interests, then it is always impermissible even when, on aggregate, it generates greater societal flourishing. As such, respecting ecorelational pluralism offers environmental justice a powerful tool for challenging the developmentalist credo, by providing citizens a shield to protect them against the sacrificing of their local habitat for the good and profitability of the mass-productive and consumptive industrial economic order.

This brings us to another question: What about situations in which ecocide is undertaken to prevent future environmental degradation and destruction (i.e., battles of so-called green vs. green). For instance, acts of ecocide such as lithium mining are often justified as a means of combatting global warming and preventing the litany of environmental harms that will follow in its wake (sea level rise, desertification, forest fires, mass extinctions, etc.). How should these competing environmental claims be adjudicated?

Broadly, it must be the case that the supposed environmental benefits resulting from the ecocidal project must support more vital interests than it corrodes. In the concluding section, I analyze whether mining Thacker Pass can satisfy the mentioned condition. But first, I will apply the norm of ecorelational pluralism to the respective claims of the three classes of litigants (the local ranchers, Paiute and Shoshone tribal communities, and environmental NGOs) aiming to prevent the mining of Thacker Pass.

USING ECORELATIONAL PLURALISM TO PROTECT THACKER PASS

For states to respect ecorelational pluralism, their policies must not aim to promote one reasonable conception of the good over another. This means that governmental policies cannot aim to promote industrial developmentalism through environmentally harmful activity that undermines citizens' vital interest. The justice framework here discussed relies on an anthropocentric conception of environmental harms that identifies the wrongness of ecocide through its negative impact on humans.

The environmentalist NGOs' claim rests on the premise that the proposed lithium mine violates the Endangered Species Act. As such, the NGOs are defending the intrinsic value of the local flora, fauna, and conservation of ecological integrity. Since the NGOs are not asserting that they themselves are being harmed by the proposed mining project, it is difficult to express their claim as a violation of their vital interests, unless they specify a way in which the mine will undermine their ability to lead good lives and pursue their purposeful self-development. As such, if the environmental NGOs were the only claimants, then the proposed project would not constitute ecocidal activity the state is obligated to stop.

Critics may be dismayed that the framework here proffered is unable to incorporate biocentric or ecocentric conceptions of the value of nature. They may argue that successful environmentalism requires a deeper green appreciation of nature for its own sake. On pragmatic grounds, however, it is important to develop conceptual tools for addressing forms of environmental destruction that are already widely considered morally problematic and, therefore, have a greater chance of widespread political uptake.

It is prudent to employ an anthropocentric model, since, unfortunately, there is currently a lack of political consensus over whether natural entities and nonhuman wild animals have value for their own sake. As Nussbaum states, “since action protecting the environment is not a matter on which we can afford to wait, it is important to develop anthropocentric positions.”^{5(p. 318)}

Stressing the need for ecorelational pluralism in just societies may indirectly create space for engendering appreciation and respect for the wider natural world, in that it serves to protect citizens' commitment to environmental preservation. Furthermore, citizens advocating for their vital interests through reference to the ideal of ecorelational pluralism can continue to maintain their nonanthropocentric understanding of the intrinsic value of nature.

Pursuant to the framework here developed, the local ranchers have a stronger claim. Essentially, the ranchers are worried the mine will contaminate their land, air, and water, as well as siphon away precious groundwater. One might argue that mining Thacker Pass could occur without violating the ranchers' vital interests, in that they could be adequately compensated for any damages (i.e., be provided reparative support to offer the same or better position than they would have had with their land intact). This argument is plausible if it is true the ranchers are comfortable with substituting their relationship with their habitat for financial restitution and/or relocation to another habitat where they can resume their ranching practices.

If, however, the ranchers are connected to Thacker Pass in a nonmonetary sense (i.e., that the land itself is somehow key to their purposeful self-development or self-conception), then any attempt to compensate them to satisfy their vital interests may be doomed to fail. Determining whether mining Thacker Pass constitutes ecocide, with regard to the ranchers, rests on whether the operation will undermine their vital interests in a way that cannot be adequately rectified.

The litigants with the strongest claim pursuant to the framework on offer are the Paiute and Shoshone tribal members. These communities couch their grievances in terms intimately connected to Thacker Pass specifically, in that they assert the mine will destroy their sacred land, desecrate ancestral burial grounds, and undermine their ability to continue their traditional cultural practices. The People of Red Mountain's connection to Thacker Pass is nontransferable, as it relates to their memories, attachments, historical memorialization, relationships, aspirations, and identification with the area.

Severing the deep connection between these tribal communities and their habitat likely forecloses key aspects of their self-development and sense of self, frustrating core principles undergirding liberal societies. Thus, even if Paiute and Shoshone tribal communities were materially compensated for their losses or relocated to a region where they could continue their traditional subsistence practices, important aspects of their self-conception would be lost. This forecloses the possibility that mining Thacker Pass could be undertaken without sacrificing their vital interests.

Mining Thacker Pass would almost certainly constitute ecocide at least regarding the Paiute and Shoshone tribal communities inhabiting the region. Nonetheless, could mining Thacker Pass be justified on the grounds that it will prevent more dire environmental consequences in the future?

CONCLUSION: MINING THACKER PASS, “GREEN VERSUS GREEN”

For the purposes of this section, the article assumes that the primary goal of mining Thacker Pass is to prevent environmental catastrophe, rather than simply to maintain and expand the profitability of industrial economic activities (as the “new gold rush” for lithium likely is). Assuming such, the first hurdle the lithium mine will need to clear from an environmental justice perspective endorsing ecorelational pluralism is proving that the supposed environmental benefits of the mine will preserve/promote more vital interests than the project corrodes.

It must also be demonstrated that not mining Thacker Pass will generate or compound grave environmental harms at present or in the future. Such a counterfactual is difficult to prove in the case of global warming. Although it is true that people are already losing their homes, livelihoods, and lives to the floods, heat waves, droughts, and famines resulting from climate change, it is nearly impossible to show that any of these harms will be prevented by the reduction in CO₂ brought about by harnessing renewable energy from the batteries produced from the lithium mined at Thacker Pass.

The immense scope and scale of the climate crisis make it nearly impossible to show that the carbon offsets from a single lithium mine would amount to anything other than a vanishingly small impact on any specific environmental event. As such, it seems exceedingly unlikely that mining Thacker Pass would prevent any specific instance of ecocide.

Mining Thacker Pass most certainly constitutes an act of ecocide against the Paiute and Shoshone tribal communities, whereas it is unlikely that the supposed environmental benefits of the mine would prevent or forestall any countervailing ecocidal event. It thus seems on balance that the proposed mine cannot be justified from within the framework offered. If the United Stated wishes to live up to its liberal principles, it must respect ecorelational pluralism within its borders. This would entail preventing the mining of Thacker Pass, regardless of the supposed environmental benefits that may result from the project.

Although I have focused specifically on Thacker Pass, the framework I have articulated can be extended to numerous other pressing environmental justice concerns caused by projects aiming to extract critical resources or build renewable energy production facilities, such as Rio Tinto's proposed copper mine in Oak Flats (Chi'chil Bildagotee) on sacred Apache land; Lithuim Americas’ plan to mine the Salinas Grandes salt flats at the expense of Kolla indigenous communities; the Bolsonaro regime's aspiration to clear thousands of acres of Amazonian rainforest for biofuels that threatens the survival of hundreds of indigenous groups who call the region home; the intended construction of the Chinese state-funded 250-megawatt Kaliwa Dam Project that will displace thousands of Filipino villagers, and many more issues.

Finally, this article has highlighted important dilemmas within environmental justice and argued that preventing wanton ecocidal activity is a necessary feature of well-ordered liberal societies. Further related questions demanding exploration include “how ought societies react after ecocide has occurred” and “how ought societies transform to confront and overcome their ecocidal histories?” Future scholarship aimed at resolving or mitigating the injustice of ecocide must theorize the reparative, reconciliatory, and transformative practices/policies suitable for justly responding to such grave environmental harms.