As of April 24, 2024, atmospheric carbon dioxide rests around 428.42 parts per million (PPM)—well above 350 PPM, often cited as the safe carbon dioxide goalpost. The signs of climate change and the havoc it wreaks are everywhere. 2023 was the hottest year on record, and the early months of 2024 have broken various heat records. Extreme weather events are becoming more commonplace. In early January, the normally tropical US Gulf Coast was overtaken by an “arctic blast” cold front. In mid-April, nearly five and a half inches of rain fell on Dubai in the largest rain event ever recorded. Just weeks before, the UN Climate Chief announced a critical two-year period to reduce greenhouse gas emissions—what could be a last ditch effort to“sav[e] our planet.”
Enter the renewable energy transition, which many view as a welcome step toward a low carbon future, and not a moment too soon. This process is sometimes described as a “just transition,” a framing that emphasizes a socially and environmentally-conscious transition to renewable energy sources, taking into account impacts on workers and communities who have historically held energy jobs that will be phased out. Just this spring, the Biden Administration announced a new regulation that will require that most new cars sold in the US be electric or hybrid by 2032. The Biden Administration’s announcement appears in step with a series of decisions to encourage renewable energy production and consumption, in theory aligned with just transition principles.
While the just transition is gestured at as a solution to the climate crisis, the extraction of critical minerals that underlies the transition often violates human rights and causes environmental damage, underscoring the limitations of the growth-focused economic model. A truly just transition is ultimately a regenerative one, of ecological resilience and reduced resource consumption. But until that can be achieved, green energy supply chains must be improved. Workers and others directly impacted by the energy transition’s thirst for critical minerals must be treated with dignity, agency, and autonomy.
At the heart of the energy transition are critical minerals, like lithium, cobalt, and copper, which are required by renewable energy technologies. These minerals are deemed “critical” for their “vunerab[ility] to [supply chain] disruption” and “essential function in… energy technologies.” And as critical as these minerals are, their presence—in the batteries of electric cars and other “green” technologies—and their extraction—in modern day sacrifice zones, geographic areas subject to disproportionate harms from environmental pollution—are largely unseen. This includes communities in countries with large extractive industries for critical minerals, like the Democratic Republic of the Congo (DRC), which holds an estimated 70% of the world’s cobalt reserves.
The reality is that critical mineral harvesting is unjust. Extraction of these materials is dirty and dangerous, and those subjected to extracting it or living around it are often seriously harmed in the process. In the DRC, artisanal cobalt mining camps, though domestically illegal, are widespread, producing an estimated 20% of the country’s cobalt industry production. These camps often rely on child labor to extract cobalt in large, unregulated open-air pits, where the risk of avalanches in the mines is high and injuries are common. One figure estimates that at least 40,000 children work in these cobalt mines. These child laborers report long work hours—in one case, a child worker reported laboring in an underground mining tunnel for a 24 hour shift—and dangerous conditions, including physical and sexual abuse by mine personnel. Others report frequent illness due to limited occupational safety practices, like use of protective equipment. Investigations have found that workers touch cobalt directly, though the substance is “toxic to touch and breathe.” Child workers report limited or no access to school. And for their hard and dangerous work, cobalt miners make extremely low wages. By one estimate, workers make around $3.50 a day.
Those who live near cobalt mines face health risks. A recent report published by our friends at DRC-based nonprofit African Resources Watch (Afrewatch) highlighted that communities around copper and cobalt mines struggle to access clean water due to mine pollution, causing increased reproductive health issues for women living nearby, including more frequent miscarriages and infertility. Children living in the mine-adjacent communities report cases of “itchiness, rashes, eye irritations, coughing and diarrhea” where they have made contact with nearby bodies of water.
Extracting critical minerals needed for the energy transition often also harms the environment. Chemical leakages from cobalt mines are not uncommon, causing ecological damage to nearby waterways, destroying fish populations, harming local agriculture, and burning those in its pathway. Cobalt mining also pollutes air with toxic grit.
Given this unjust starting point, how can a just transition, reliant on critical minerals, live up to its name? One pathway is through improving industry practices, namely strengthening protections for workers involved in critical mineral extraction and holding corporate actors accountable for exploiting vulnerable communities along their supply chains. One such example of this is recent advocacy by the nonprofit International Right Advocates (IRAdvocates), which hopes to hold tech giants, including Apple, Tesla, Google, Microsoft, and Dell, who allegedly produce lithium-ion batteries with cobalt extracted by child laborers in the DRC, accountable under the Trafficking Victims Reauthorization Act (TVPRA). Recently, a case IRAdvocates filed under the TVPRA against these companies was dismissed for failing to demonstrate an “explicit connection between the tech companies and the mining operations.” Such an undertaking is challenging because these companies purposely conceal their cobalt supply chain information, IRAdvocates alleged in its complaint. “Tech companies are being rewarded here by a lack of transparency around their cobalt sourcing,” says Terry Collingsworth, IRAdvocates’ Executive Director. Even still, IRAdvocates plans to file a new case soon against these companies that meets the standard clarified by the court in this case.
Transparency in transnational supply chains may be further fortified by legislative action, both at the international and domestic levels, mandating binding human right and environmental protections. The UN Guiding Principles on Business and Human Rights are non-binding and only recommend certain actions for states and businesses to uphold human rights. Environmental protection is only selectively mentioned. Expanding these principles and establishing them as binding legal principles would improve labor conditions within supply chains, though the political viability for this is uncertain.
The damage wrought by the extractive sector and the need for improved corporate practice is also a case for reparations to formerly colonized states, whose budgetary restrictions may limit their capacity to regulate corporate malfeasance.
Beyond this, states and companies can and should incorporate the tenets of free, prior, and informed consent (FPIC) into their domestic legal frameworks and supply chain operations, respectively. FPIC requires engagement with Indigenous peoples where Indigenous land is subject to extractive dispossession or contamination, as is often the case. As the UN Declaration on the Rights of Indigenous Peoples sets out, Indigenous peoples have the right to free, prior, and informed consent where usage of their traditional collective ancestral territory is at issue, particularly as it relates to the dispossession and/or contamination. This also includes the “right to redress” where collective land is “confiscated, taken, occupied, used, or damaged without their free, prior, and informed consent.” And it includes the right to state action to “ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of Indigenous peoples without their free, prior and informed consent.” The adoption of UNDRIP into countries’ domestic legal frameworks will itself encourage recognition of Indigenous legal sovereignty.
If implemented, such litigation and legal advocacy will make the energy transition more just. However, under a growth model—where countries and industries endlessly extract natural resources towards fulfilling consumptive desires and industry demands—legal backstops may mitigate harms but will stop short of dispensing with them. For a true just transition to a sustainable, ecologically resilient planet, degrowth, or a “prioritiz[ation of] social and ecological well-being instead of corporate profits, over-production and excess consumption,” is necessary. Until degrowth is embraced, increased demand will result in increased extraction, including of critical minerals whose extraction has historically harmed people and the planet. Thus, the Biden Administration’s recent electric and hybrid vehicle mandate by 2032, while one step towards a more renewable future, will invariably harm workers in and communities near these supply chains. As the climate crisis grows more dire, so too does the need to critically examine and improve proposed solutions to it. The supply chain workers and communities at the front lines of the energy transition will be better off for it.
Imagery from Kolwezi, DRC, which has been referred to as a disappearing city, because of the encroachment of cobalt mines on its urban area. Image attributed to Map Data: Google, Airbus Technologies, 2023.
Mollie Cueva-Dabkoski is a CAL Legal Intern and rising 3L at UCLA School of Law.
