Biodiversity and a new "best base" for applying the environmental statutes extraterritorially.

• Author: Boudreaux, Paul

1. INTRODUCTION II. THE PRESUMPTION AGAINST THE EXTRATERRITORIAL APPLICATION OF U.S. STATUTES A. The Supreme Court's Uneasy History of a Presumption B. The "Clash "Rationale III. PRECEDENT FOR AVOIDING THE PRESUMPTION A. The "Spillover" Rationale B. Decisions Made in the United States C. Limited Foreign Control D. Social Context? IV. APPLYING THE PRESUMPTION TO THE ESA's SECTION 7 AND CONGRESSIONAL INTENT A. The Bite of the ESA's Section 7 B. Lujan v. Defenders of Wildlife and the Evidence of intent in the ESA C. The interior Department's Reversal of Interpretation V. BIODIVERSITY, AMERICAN INTERESTS, AND OVERCOMING THE PRESUMPTION A. Cases Affecting interests Inside the United States B. The Special U.S. Interest in Preserving Future Biodiversity C. Cases in Which a Clash with a Foreign Nation Is Unlikely VI. CONCLUSION: THE BEST CASE FOR OVERCOMING THE PRESUMPTION I INTRODUCTION

   DO the U.S.' environmental statutes control the conduct of federal agencies and American companies when they act in other countries? For example, does an American aid agency have to consider the potentially adverse effects of a development project in Asia on an endangered elephant? (1) For the most part, the answer of the federal courts has been "no." The laws have been limited to the borders of the United States not because Congress has commanded so, but because the courts have applied a court-made presumption against extraterritoriality. It has been nearly a generation since two federal courts of appeals overcame the presumption and separately held that the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) did apply extraterritorially, at least in some circumstances. (2) And it has been nearly as long since these breakthroughs were frittered away by later decisions. (3)

   Meanwhile, new science has made clearer the fact that the globe's environment is a single unit. Pollution from the United States and Japan heats the world's climate and melts the icy habitat of the polar bear. (4) Fires generated by forest-cutting in southeast Asia blanket nearby nations with smoke. (5) And the anthropogenic extinction of species of animals and plants may change the world in ways that we do not yet understand. (6) Advocates for the environment have yet to press these scientific ideas into service for new arguments in favor of applying U.S. environmental statutes extraterritorially.

   This Article explores the law of extraterritorially primarily as it applies to one of environmental law's most famous provisions--section 7 of the Endangered Species Act. (7) This powerful provision, which requires federal agencies not to "jeopardize" endangered species, was the subject of one of environmentalism's greatest victories in the Supreme Court; (8) later, it was the subject of one of its most deflating losses, 1992's Lujan v. Defenders of Wildlife, (9) in which the Supreme Court ordered the dismissal, for lack of standing, of claims asserting that the ESA applies to agency actions overseas. (10) It is time to revive claims for the extraterritorial application of section 7 of the ESA.

   In this Article, I develop a "best case" for arguing that environmental laws, especially ESA's section 7, govern certain actions in other countries. First, the case should be one in which the conduct arguably affects interests within the United States. Preserving global genetic biodiversity is a strong example of such an effect because protecting endangered species may preserve valuable goods and services for the United States in the future. Second the federal action should be one for which the affected foreign county has not developed an expectation that the planned action will go forward, thus allowing for a minimization of the foreign "clash" argument that supports the law of the presumption against extraterritoriality.

   This argument is made from a perspective that is admittedly that of an advocate for broad application of the environmental laws. Even the "best case" would undoubtedly face an uphill battle in the federal courts, which have not been kind to claims of extraterritoriality for the environmental laws. But the new "best case" deserves to be asserted.

2. THE PRESUMPTION AGAINST THE EXTRATERRITORIAL APPLICATION OF U.S. STATUTES

   1. The Supreme Court's Uneasy History of a Presumption

      It is settled federal law that there is a presumption against the extraterritorial application of U.S. statutes. (11) More complex, however, is the question of determining whether a particular application would indeed be "extraterritorial." While some authorities refer to this body of law as the "Foley doctrine" after a 1949 Supreme Court decision, (12) this term is by no means universal; this Article will refer to it simply as "the Presumption." In order to apply the Presumption, however, it is worthwhile to scrutinize the rationales posited by the Supreme Court for this common-law doctrine.

      As the Supreme Court has asserted, it is likely that most members of Congress think most often about how legislation affects domestic parties and interests. (13) Occasionally, an explicit limitation to U.S. boundaries is placed in a statute. For example, the provisions prohibiting "take" of endangered species in the ESA's section 9 are divided into separate restrictions against take "within the United States or the territorial sea of the United States" and take "upon the high seas." (14) The federal Clean Water Act covers discharges into "navigable waters," which are defined as "waters of the United States, including the territorial seas." (15) The Marine Mammal Protection Act (MMPA) prohibits take "in waters or on lands under the jurisdiction of the United States" or "on the high seas." (16)

      For most statutory commands, however, Congress makes no reference to the nation's boundaries. The ESA's section 7(a)(2) fails to clarify whether its requirement that federal agencies not "jeopardize" an endangered species applies to agency actions undertaken in other countries, such as the funding of foreign aid projects. (17) Part IV of this Article explores this issue and concludes that there is not a convincing case that the statutory text reveals an "intent" to apply section 7 overseas: In any event, any argument that section 7 applies extraterritorially must take account of the Presumption against extraterritoriality, which is worth reviewing briefly.

      In Foley Bros., Inc. v. Filardo, (18) the Supreme Court in 1949 made its first clear explanation of the Presumption. The case concerned the federal Eight Hour Law, (19) which imposed eight-hour-work-day limits for laborers working for contractors and subcontractors with the federal government. (20) The statute contained no explicit reference to employment by a contractor or subcontractor outside the United States. (21) The plaintiff was an American who worked for an American company building public works projects in Iran and Iraq; the company's contract with the government stated that it would abide by all U.S. laws, but did not refer specifically to the Eight Hour Law. (22)

      The Supreme Court first conceded that Congress holds the authority to impose restrictions on U.S. companies acting overseas. (23) But the Court then concluded that the Eight Hour Law did not apply to employment in other countries because the statutory text did not clarify that it applied overseas. (24) "[A] canon of construction ... teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States," the Court wrote. (25) This Presumption arises, the Court explained, from an "assumption that Congress is primarily concerned with domestic conditions." (26)

      This method of reasoning is circular, of course: the Presumption is based on an assumption with no support other than the Court's sense of how Congress works. If it were untrue, for example, that Congress typically thinks only about domestic conditions for a certain category of legislation, it would make little sense to apply the Presumption for this category. Nonetheless, now that Foley and its Presumption have been established law for more than half a century, it seems unlikely that the Court would reverse its "assumption" of how Congress thinks and behaves. Today, if members of Congress affirmatively intend for a law to apply to conduct outside the United States, they should know enough to clarify their intent through precise language in the statute, or at least through some other expression of intent in the legislative history. ESA's section 9, for example, clearly and explicitly extends its prohibition of "take" to "the high seas." (27)

      The Foley decision also obliquely referred to another policy-based reason for the Presumption--the potential cultural troubles that might be stirred up by imposing the values and requirements of U.S. law inside the borders of another nation. (28) Foley pointed out that if the eight-hour law was applicable to American companies working in Iran, the law would benefit "a citizen of Iran who chanced to be employed on a public work of the United States ... although labor conditions in Iran were known to be wholly dissimilar to those in the United States." (29) This comment appears to raise the specter of a cultural clash between American values and those of other countries.

      Although the firmness of Foleys Presumption was sometimes questioned over the succeeding years, it was reaffirmed by an increasingly conservative Supreme Court in 1991, in Equal Employment Opportunity Comm'n v. Arabian American Oil Co. (Aramco). (30) This case concerned whether the U.S. law prohibiting discrimination in employment, Title VII of the Civil Rights Act of 1964, (31) applied to employment by an American company in a foreign country. (32) The plaintiff, who was a Lebanese-born naturalized American citizen, asserted that Aramco discriminated against him on account of his race and religion when he worked for...