ARC Ecology v. United States Department of the Air Force: extending the extraterritorial reach of domestic environmental law.

• Author: Stasch, Anna D.

1. INTRODUCTION II. AN OVERVIEW OF THE PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF DOMESTIC LAW AS IT APPLIES IN ENVIRONMENTAL LAW A. Congressional Intent Dictates Whether an Environmental Law Applies Extraterritorially B. The Presumption Prevents the Extraterritorial Application of Laws that Give Rise to Conflicts With the Laws of Other Sovereigns C. The Presumption Rests on the Principle that Congress Legislates Primarily to Address Domestic Concerns III. ARC ECOLOGY V. UNITED STATES DEPARTMENT OF THE AIR FORCE A CASE STUDY ON HOW COURTS APPLY THE PRESUMPTION IN THE ENVIRONMENTAL LAW CONTEXT A. A Typical Narrow Interpretation of Congressional Intent B. The General Principle of Avoiding Conflicts with the Laws of Other Nations Justifies Application of the Presumption C. The Commonsense Notion" that Congress Legislates with a Domestic Focus Justifies Application of the Presumption IV. OKINAWA DUGONG V. RUMSFELD: FACTORS THAT ENABLE AN ENVIRONMENTAL PROVISION TO OVERCOME THE PRESUMPTION A. Okinawa Dugong v. Rumsfeld B. Statutory Characteristics that Lead to Extraterritorial Application 1. Clear Statutory Language 2. Government Focus, Consultative Requirements, and Preemptive Obligations C. Other Statutes with Extraterritorial Potential: the Endangered Species Act and the National Environmental Policy Act V. PAKOOTAS V. TECK COMINCO METALS, LTD. AND FRIENDS OF THE EARTH V. WATSON: TAKING LESSONS FROM MARKET LAW TO AVOID THE PRESUMPTION IN ENVIRONMENTAL LAW A. The Erosion of the Presumption in Securities and Antitrust Law B. Pakootas v. Teck Cominco Metals, Ltd: Harm at Home C. Friends of the Earth v. Watson: Translating Environmental Harms Abroad into Domestic Misconduct to Avoid the Presumption D. Combining the Conduct and Effects Tests to Take the "Extra" out of "Extraterritorial" VI. CONCLUSION I. INTRODUCTION

   Upon withdrawing from the Philippines in 1992, the U.S. military conveyed to the Filipino government all remaining structures at Clark Air Force Base (Clark) and Subic Naval Base (Subic) (1) Along with facilities that now accommodate thriving residential and business communities, the U.S. military also left behind something not foreseen by the Filipino government: hazardous waste. Clark and Subic, located approximately fifty miles apart in the Philippines, presently contain "contaminated sites and facilities that would not be in compliance with U.S. environmental standards" and reportedly pose serious health and safety risks. (2)

   ARC Ecology and the Filipino/American Coalition for Environmental Solutions, two U.S. non-profit organizations, along with thirty-six residents of the Philippines filed a citizens' suit (3) against the United States Department of Defense, seeking an order compelling both assessment and cleanup at the bases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (4) That is, ARC Ecology sought to apply CERCLA to actions of the United States government in a foreign country. (5) On appeal in ARC Ecology v. United States Department of Air Force (ARC Ecology), (6) the Ninth Circuit concluded that CERCLA does not overcome the presumption against applying U.S laws extraterritorially (the presumption). (7)

   The presumption stipulates that absent explicit congressional authorization a statute may not apply extraterritorially to enforce laws against anyone, be it an individual, business entity, or government actor. (8) The presumption finds justification in the principles that Congress 1) hesitates to authorize the application of laws that conflict with the laws of another sovereign, (9) and 2) is "primarily concerned with domestic conditions." (10) In ARC Ecology, the Ninth Circuit examined section 105(d)'s language, and CERCLA's purpose, legislative history, and scope, to determine that Congress did not supply "clear evidence" of an intent that section 105(d) of CERCLA apply extraterritorially. (11) The court supported this conclusion by determining that application of the presumption would prevent the extension of potentially conflicting U.S. law into the sovereign territory of another nation, and that Congress designed CERCLA specifically to address domestic concerns. (12) The Ninth Circuit's reasoning and application of the presumption in ARC Ecology typifies courts' use of the presumption in the environmental law realm. (13)

   In contrast to the express congressional intent required for an environmental law to overcome the presumption, securities and antitrust laws frequently avoid the presumption, even absent a demonstration of congressional intent, because failure to apply such market laws abroad may pose a threat to the American economy. (14) Courts have developed flexible alternatives to the presumption that allow extraterritorial application of securities and antitrust laws. (15) First, under the effects test, courts apply market laws extraterritorially to avoid negative economic effects in the United States (16) and second, under the conduct test, courts regulate market conduct in the United States. (17) The effects and conduct tests allow for frequent extraterritorial application of market laws, regardless of whether those laws satisfy the stringent requirements of the presumption. Meanwhile the presumption persistently prevents extraterritorial application of environmental laws. The inconsistency between how courts apply the presumption in the environmental law context versus the market law context underlines both a need and an opportunity to develop means for overcoming the presumption in the environmental law realm.

   This Chapter draws out tactics for overcoming or avoiding the presumption in order to enforce U.S. environmental laws against American actors responsible for environmental harm abroad. Three recent cases from district courts within the Ninth Circuit demonstrate approaches to overcoming the presumption. First, Okinawa Dugong v. Donald Rumsfeld (Dugong) (18) offers an example of sufficiently expressed congressional intent that straightforwardly overcomes the presumption. Plaintiffs in Dugong brought a creative claim under a lesser-known provision of the National Historic Preservation Act (NHPA), (19) which requires consultation prior to activities that may harm a World Heritage Site or the domestic equivalent thereof, to challenge United States Department of Defense activities that posed a threat to the habitat of Okinawa's population of the dugong (Dugong dugon), an endangered marine mammal. Second, Pakootas v. Teck Cominco Metals, Ltd. (Pakootas), (20) in which U.S. citizens sought to enforce a contamination clean-up order that the United States issued to a Canadian corporation, demonstrates how a showing of harmful effects on U.S. territory can enable the extraterritorial application of an environmental law. Finally, Friends of the Earth v. Watson (FOE), (21) in which plaintiffs challenged U.S. agency non-compliance with the National Environmental Policy Act (NEPA) (22) in deciding to fund overseas projects that contribute disproportionately to worldwide greenhouse gas emissions, illustrates how a claim involving extraterritorial elements may nonetheless avoid discussion of the presumption by focusing on domestic conduct. These cases reveal present weaknesses in the presumption that open the door to extraterritorial application of environmental laws.

   Part II of this Chapter first scrutinizes the presumption, its justifications, and how it generally applies in the environmental realm. Part HI discusses ARC Ecology and how that case highlights the challenges to overcoming the presumption that environmental provisions face. Part IV examines Dugong and the guidance the case provides for determining which environmental provisions have a greater likelihood of achieving extraterritorial application. Part V considers the erosion of the presumption in securities and antitrust law and how the claims in Pakootas and FOE mirror approaches in the market law realm, and successfully avoid the presumption in the environmental realm. Finally, Part VI summarizes the approaches to overcoming the presumption introduced in prior sections. By analyzing several approaches to overcoming the presumption, set forth in these cases, this chapter highlights potentially successful strategies for making claims against American actors for environmental harms perpetrated abroad.

2. AN OVERVIEW OF THE PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF DOMESTIC LAW AS IT APPLIES IN ENVIRONMENTAL LAW

   The presumption against extraterritorial application of domestic laws is a judicial tool that assists courts in deciphering congressional intent regarding the reach of statutes. (23) Under the presumption, courts assume that a statute does not have extraterritorial reach unless Congress indicates otherwise. Thus, courts engage in statutory interpretation to assess whether Congress has affirmatively indicated its intent that a particular statute apply extraterritorially. This process of statutory interpretation is often influenced by the principles underlying the presumption. As Justice Blackmun of the United States Supreme Court, drawing on prior cases, summarized: "[t]he primary basis for the application of the presumption[,] besides the desire ... to avoid conflict with the laws of other nations[,] is the commonsense notion that Congress generally legislates with domestic concerns in mind." (24) To determine whether a provision applies extraterritorially, courts may not only apply tools of statutory construction to assess congressional intent, but often also consider these two main principles underlying the presumption.

   1. Congressional intent Dictates Whether an Environmental Law Applies Extraterritorially

      Although courts have not adhered to a uniform test to assess whether Congress intends a statute to apply extraterritorially, courts do consistently begin their assessments of whether a statute reaches outside the United States by examining...