Case summaries.

1. ENVIRONMENTAL QUALITY

   1. Comprehensive Environmental Response Compensation and Liability Act

      1. ARC Ecology v. United States Department of Air Force, 411 F.3d 1092 (9th Cir. 2004).

         ARC Ecology and the Filipino/American Coalition for Environmental Solutions, two non-profit environmental organizations, along with thirty-six citizens and residents of the Philippines (ARC Ecology) appealed the dismissal of their claim against the United States Department of the Air Force, Department of the Navy, Department of Defense, and Secretary of Defense, Donald Rumsfeld (USDOD). Under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), (1) ARC Ecology sought to compel the U.S. government to conduct a preliminary assessment and cleanup of alleged contamination at the sites of two former U.S. military bases in the Philippines. The district court dismissed ARC Ecology's complaint for failure to state a claim. Upon appeal, the Ninth Circuit affirmed the dismissal because the relevant provision of CERCLA (2) does not apply extraterritorially.

         The U.S. operated Clark Air Force Base (Clark) and Subic Naval Base (Subic) in the Philippines for several decades until 1992 when the U.S. turned the bases over to the Filipino government. Appellants were individuals who live or travel in the vicinity of Clark and Subic or have family members who do so. Appellants alleged that due to their proximity to the bases they had been exposed or were likely to be exposed to contamination from Clark and Subic.

         In June 2000 ARC Ecology petitioned the U.S. Air Force and Navy to assess and clean up any contamination at Clark and Subic pursuant to section 105(d) of CERCLA, which provides: "Any person who is, or may be, affected by a release ... may petition the President (3) to conduct a preliminary assessment of the hazards to public health and the environment which are associated with such release." (4) The Air Force and Navy declined, claiming that CERCLA did not apply to property "located outside the territorial boundaries of the United States." (5) In December 2002 ARC Ecology commenced a CERCLA citizens' suit (6) seeking both a declaratory judgment asserting that CERCLA applied extraterritorially to the bases, and an order compelling the United States to conduct assessments and cleanups at the bases. In response, USDOD filed a motion to dismiss for failure to state a claim. (7) The district court granted the dismissal, concluding that section 105(d) of CERCLA does not apply extraterritorially.

         While reviewing de novo (8) the district court's dismissal of ARC Ecology's claim, the Ninth Circuit considered only the contents of the complaint, (9) accepted as true all the allegations of fact contained therein, and construed them in a light most favorable to the claimant. (10) Review of the dismissal began with a de novo review of the district court's interpretation of CERCLA. (11)

         The Ninth Circuit looked first to the plain language of section 105(d) of CERCLA and determined that the language of the provision could not overcome the court's strong presumption against applying statutes extraterritorially. The court concluded that even though the language of section 105(d) does not limit the locations and persons eligible to make use of the provision, "clear evidence" that Congress had intended for the statute to apply outside the U.S., was lacking. (12) Without clear evidence of congressional intent the presumption against extraterritorial application of the statute could not be overcome. (13)

         ARC Ecology argued that Congress intended CERCLA to apply extraterritorially because the definition of "United States" provided in CERCLA includes "any ... territory or possession over which the United States has jurisdiction." (14) To further this point ARC Ecology referred to the Defense Environmental Restoration Program (DERP), which requires the Secretary of Defense to respond in accordance with CERCLA to releases from sites that were under the jurisdiction of the Secretary and "possessed by the United States at the time of actions leading to contamination." (15) ARC Ecology contended that Congress meant for CERCLA to apply to bases like Clark and Subic because they were U.S. possessions at the time of the alleged contamination. The court acknowledged that this language "may be interpreted as bringing [the bases] within the geographic reach" of CERCLA but concluded that there was still not the necessary "clear evidence" of congressional intent that the statute be applied outside U.S. borders. (16)

         After concluding preliminarily that section 105(d) of CERCLA could not be applied extraterritorially, the Ninth Circuit went on to make the point that even ff extraterritorial application was valid, ARC Ecology would still have failed to state a claim because Clark and Subic were already under the "exclusive control of a foreign sovereign" at the time the suit was filed. (17) The court reasoned that the U.S. had not had possession of or control over the two bases since 1992 and therefore, at the time that the suit was filed the U.S. lacked the authority to address any alleged contamination, regardless of whether CERCLA applied to the situation. The court pointed out that Congress would offend the Executive's authority over foreign affairs ff Congress were to require under CERCLA an assessment and cleanup on foreign soils.

         The Ninth Circuit then returned to its argument that section 105(d) does not apply extraterritorially. The court indicated that ARC Ecology's claim was defeated by the doctrine of expressio unius est exclusio alterius, under which omissions in a statute are the equivalent of exclusions. (18) The court drew attention to a provision in CERCLA that expressly provides for claims by designated classes of foreign claimants seeking monetary compensation. (19) The appellants were not covered by the provision, first, because they were seeking equitable rather than monetary relief and, second, because they had not alleged any of the specific circumstances listed in the provision, such as a release by the U.S. into the navigable waters of a foreign country or that the suit was authorized by a treaty. (20) Even though the provision did not apply to ARC Ecology the court took the provision as evidence that Congress affirmatively designated the classes of foreign claimants intended to be covered under CERCLA. According to this reasoning, foreign claimants, like ARC Ecology, who do not satisfy the requirements of the provision, are intentionally excluded from those deemed eligible to bring suit under CERCLA.

         In this same line of reasoning, the court noted that when Congress provides a statutory basis for suits by foreign claimants, such as in the Foreign Claims Act for compensating victims of noncombat activities of U.S. armed forces, (21) it does so with "unmistakable intent." (22) The Ninth Circuit concluded that where there is no unmistakable congressional intent there is no avenue for a foreign claim. The court also mentioned on a side note that there are many different avenues of relief available to foreign claimants and ARC Ecology had not yet explored all of the options.

         Additionally, the Ninth Circuit determined that the language in many other provisions of CERCLA focuses specifically on releases within the United States. (23) The court stated that it would therefore be contrary to the basic rule of statutory construction that one provision should not be interpreted to contradict other provisions, (24) if ARC Ecology were permitted to bring suit under section 105(d). The court further supported its conclusion that appellants failed to state a claim by turning to the legislative history of and academic commentary on CERCLA, both of which suggested that CERCLA is domestically focused. (25)

         The Ninth Circuit then considered ARC Ecology's assertion that limiting CERCLA to primarily domestic applications would present a conflict between domestic and international law. According to ARC Ecology, under international law, "activities within a country's jurisdiction or control should not cause significant injury to the environment of another country." (26) The Ninth Circuit stated however that ARC Ecology failed to present an actual conflict between domestic and international law because the claim relied on the Restatement (Third) of Foreign Relations Law of the United States, which the court deemed does not create a cause of action. (27)

         To support the argument that CERCLA should be interpreted to avoid conflicting with international law, ARC Ecology also invoked the Charming Betsy canon of statutory construction. Under this canon statutes should be interpreted so as to avoid violating the law of nations or giving rise to foreign policy disputes. (28) The Ninth Circuit indicated that it would be more in accordance with the canon to deny ARC Ecology's claim than to allow it because permitting the claim would extend the effect of domestic legislation into the sovereign territory of another nation.

         In summary, the Ninth Circuit upheld the district court's decision to dismiss ARC Ecology's claim because the relevant provision of CERCLA does not apply extraterritorially. By looking at the plain language of CERCLA, the domestic focus of other provisions in CERCLA, the statute's legislative history, available academic commentary, and the absence of clearly conflicting international law, the court concluded that appellant's claim did not overcome the presumption against extraterritorial application of statutes. Furthermore, the Court indicated that even if CERCLA did apply extraterritorially as appellants had hoped, their claim would fail because, at the time of their filing, the United States no longer held any authority to conduct assessments or cleanups at Clark and Subic.

      2. Berg v. Popham, 412 F.3d 1122 (9th Cir. 2005).

         David and Marge Berg, former owners of a dry cleaning business in Anchorage, Alaska, sued Maytag...