Suing corporations in U.S. courts for environmental harms abroad may soon be possible under the Alien Tort Claims Act (ATCA). While several cases have been brought alleging environmental torts under the ATCA, no case has yet yielded corporate liability. Until courts accept environmental principles as part of the "law of nations," and therefore actionable under the ATCA, plaintiffs should use remedies available for human rights claims as proxies for their environmental claims. Because corporate international environmental law violations are frequently linked to human rights abuses, well-established human rights causes of action should be used to usher in the emerging justiciability of environmental claims.
When a multinational corporation operating in a developing country strips a hillside of its rainforest, forcibly removes the local population, carves a chasm in the earth and mines with chemicals that are washed into rivers and leached into the groundwater, plaintiffs are unlikely to find redress in U.S. courts. Although corporate environmental abuse abroad is common, successful litigation of the abuse is not. This Article examines why this is so, and argues that plaintiffs should benefit from a globalization of justice, just as corporations have benefited from a globalization of resources and labor.
Plaintiffs could use four methods in U.S. courts to seek redress and create accountability for corporate environmental abuses abroad. This Article discusses each method, focusing primarily on the Alien Tort Claims Act (ATCA) (1)--the best among four very weak alternatives for seeking redress of environmental wrongs. The other three methods for achieving corporate environmental accountability in U.S. courts include applying U.S. environmental law extraterritorially, using environmental treaties or customary international environmental law directly as causes of action, and applying foreign environmental law. These alternatives prove even more elusive than the ATCA and are not meaningful solutions to the problem of lack of corporate environmental accountability in U.S. courts.
Although each of the four methods has failed to create corporate environmental accountability, the ATCA failures are less substantive and more political and procedural in nature. For example, Sarei v. Rio Tinto, (2) an environmental ATCA case regarding environmental abuses on the island of Bougainville, Papua New Guinea, discussed in depth below, failed because the U.S. State Department intervened in the case and urged its dismissal based on the political question doctrine. There was a viable international environmental claim in Sarei (3)--demonstrating that without political or procedural obstacles, the ATCA may create international environmental corporate liability. However, due to Sarei's status as the only case to articulate a viable--yet politically untenable--environmental ATCA claim, this Article examines other methods of bringing ATCA claims that could create corporate environmental accountability--namely, using human rights litigation as a proxy for environmental claims.
The ATCA is valuable not because it is a solid cause of action against environmental abuses, but because it has evolved into a viable cause of action for human rights abuse committed abroad. Causes of action under the ATCA generally mirror development of international law. For ATCA purposes, state and individual practices and treaties must become "specific, universal, and obligatory" before they transform into customary international law. This standard creates a distinction between the principles recognized as international law generally, and the principles recognized, one at a time, by judges interpreting the "law of nations" under the ATCA. Until environmental law is recognized as part of the "law of nations," as human rights law is, there can be no actionable violations of environmental law under the ATCA. Depending on how the remedies are crafted, however, the ATCA may be used as a successful proxy for the environmental claims where human rights abuses and environmental wrongs overlap. Although the ultimate goal is recognition of international environmental principles as actionable independently under the ATCA, this Article discusses what methods can be used in the meantime so that corporate environmental harms may be addressed.
While recognition of international environmental law as actionable under the ATCA is desirable so that corporations do not benefit from low or no environmental standards in foreign countries, it is more appropriate given the state of the law at present to focus on litigation of the human rights violations that naturally flow from mass scale environmental degradation.
Section II of this Article examines the four possible substantive areas of law that could be used to sue corporations in U.S. courts: the ATCA; extraterritorial application of U.S. law; claims based on international environmental treaties and customary international law; and application of foreign environmental law. The focus of Section II is on the ATCA because it provides the most appropriate cause of action for plaintiffs, among other poor alternatives, and its complex issues deserve in depth examination. Particularly, Section II explores the ATCA cases that have contained environmental claims--Amlon v. FMC, (4) Aguinda v. Texaco, (5) Beanal v. Freeport McMoRan, (6) Bano v. Union Carbide Corp., (7) Flores v. Southern Peru Copper Corporation (8) and Sarei v. Rio Tinto (9)--and discusses why the environmental claims have failed.
Section III concludes that the ATCA is the most powerful of the litigation options and discusses how plaintiffs' attorneys should use it for environmental ends. This section argues that, although the ATCA is not yet a fully viable independent cause of action for most environmental claims, it could be effective to address environmental claims where they are combined with human rights claims. Because judicial recognition of environmental principles as actionable under the ATCA is overdue, Section III argues for further development of international environmental law to urge courts toward this finding.
Finally, Section IV concludes with discussion of the development of each of the potential causes of action in the future. As international environmental principles become accepted as part of the "law of nations" under the ATCA, which has already happened in the broader field of international law, the ATCA will become an even more important tool for plaintiffs seeking redress for corporate environmental harms abroad.
POSSIBLE CAUSES OF ACTION
The Alien Tort Claims Act
The ATCA is currently the strongest vehicle for bringing claims against corporations for environmental abuses abroad. Moreover, under the ATCA, in some cases corporate officers may be held individually liable for environmental torts abroad. (10) While there are severe hurdles to bringing a claim under current ATCA jurisprudence, (11) it is possible to find relief for plaintiffs seeking redress for environmental harms. This section discusses (i) a brief history of the ATCA, (ii) the statute's elements and legal standards, (iii) who may sue and be sued under the ATCA, and (iv) how the ATCA is used for suing corporations for environmental abuses abroad based on recent case law. Because much has been written on parts (i), (ii) and (iii), (12) this section focuses primarily on part (iv).
The ATCA, created under the Judiciary Act of 1789, states: "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (13) During the 190 years following its passage, the ATCA was used only 21 times. (14) Those cases include a few from shortly after the Act's passage in the late 1700s, (15) cases in 1907 (16) and 1958, (17) several cases in the 1960s, (18) and a handful of cases from the 1970s. (19) The latter cases involve mainly commercial disputes, a case seeking to enjoin nuclear testing on the Marshall Islands, and one child custody case where the law of nations regarding passports was violated. Then, in 1980, a Paraguayan father and sister used the ATCA against a former Paraguayan police inspector general for the torture and death of their son and brother, Joelito Filartiga. Filartiga v. Pena-Irala, (20) opened the door to subsequent use of the ATCA for litigation of human rights abuses. At the time of this writing, there have been at least sixty-two post-Filartiga ATCA cases brought in U.S. courts. The vast majority of these involve litigation of human rights abuses.
Structure and Elements of the ATCA
The ATCA contains a jurisdictional grant, but also provides a substantive cause of action for violations of U.S. treaties and the law of nations. (21) There are three elements to an ATCA claim. Plaintiffs must assert that (1) they are aliens, (2) they are suing for a tort, and (3) the tort violates the "law of nations." The third element is the focus of dispute in most cases, as it is the most difficult element for plaintiffs to show, and for judges to discern. The law of nations, as it was defined in 1789, is thought to have encompassed what we now call international law--both treaty-based and customary international law. (22) In ascertaining whether a tort violates the law of nations under the ATCA, courts claim to look to all the traditional sources of international law. (23) In practice, however, courts apply a definition of the law of nations to ATCA cases that is narrower than what international lawyers consider as customary international law. Because the ATCA additionally defines the law of nations as "specific, universal, and obligatory," some conduct that international lawyers may view as violating customary international law may not yet be recognized as a violation of the "law of nations" for purposes of the ATCA. Certain...