Chapter Nineteen: Extraterritorial Application of Domestic Environmental Law


. . . Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on international consensus.

Principle 12 of the Rio Declaration on Environment and Development (1992)

I. Introduction
U.S. Requires Environmental Review of Trade Agreements - Bill Clinton issues executive order requiring assessment and review of the potential environmental impact of major trade agreements

II. Authority to Regulate Extraterritorially (Jurisdiction to Prescribe)
American Banana v. United Fruit Co., 213 U.S. 347 (1909) - plaintiffs alleged that the actions of the defendant in Central America monopolized trade in bananas and violated U.S. law, raising the territorial principle

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) - stating that the Sherman Act applies to foreign conduct that was meant to produce and in fact produced some substantial effect in the United States, raising the effects principle

Marine Mammal Protection Act, 16 U.S.C. 1372 - prohibits any person or vessel subject to the jurisdiction of the U.S. from taking protected marine mammals within U.S. territorial waters or on the high seas, raising the nationality principle

III. Extraterritorial Reach of U.S. Statutes
Foley Bros. v. Filardo, 336 U.S. 281 (1949) - reviews whether the language and legislative history of a federal law concerning an eight hour work day applied to plaintiffs' claim for overtime pay for work performed in Iran and Iraq

EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) - reaffirms the Foley Doctrine's principle of statutory construction, holding that Title VII of the Civil Rights Act of 1964 does not apply to employment practices of U.S. employers who employ U.S. citizens abroad

IV. Extraterritorial Application of U.S. Environmental Statutes
    A. Resource Conservation and Recovery Act
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. - regulates the generation, transportation, treatment, storage, and disposal of hazardous wastes
    B. National Environmental Policy Act
National Environmental Policy Act, 42 U.S.C. 4321 et seq. - seeks to ensure that government decision-making takes account of the environmental consequences expected to result from governmental actions and approvals

Extraterritorial Application of NEPA - provides briefs of the cases, Greenpeace USA v. Stone and Environmental Defense Fund v. Massey

Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) - addresses whether the Nuclear Regulatory Commission (NRC) complied with the National Environmental Policy Act when it considered whether to permit Metropolitan Edison Co. to resume operation of the Three Mile Island Unit 1 nuclear powerplant

1. Executive Order 12114

Executive Order 12114 - Environmental Effects Abroad of Major Federal Actions - sets forth the requirements for analysis of environmental impacts abroad from major federal actions without determining the extent or limitations of NEPA's extraterritorial reach

    C. Endangered Species Act
Endangered Species Act, 16 U.S.C. 1536 - requiring federal agencies to consult with the Fish and Wildlife Service or the National marine Fisheries Service when a proposed agency action may adversely affect a listed endangered or threatened species

Lujan v. Defenders of Wildflife, 504 U.S. 555 (1992) - environmentalists challenged a decision by the Secretary of the Interior that the ESA's consultation requirements do not apply when federal agency activities may harm or destroy critical habitat for endangered species outside the U.S. and in other countries

    D. Marine Mammal Protection Act
Marine Mammal Protection Act, 16 U.S.C. 1372 - prohibits the unauthorized taking of a marine mammal by any person subject to the jurisdiction of the U.S.
V. Trade Sanctions
    A. Fisheries Conservation
1971 Pelly Amendment to the Fisherman's Protective Act of 1967, 22 U.S.C. 1971-1980 - permits trade restrictions for actions that diminish the effectiveness of international wildlife agreements

1979 Packwood-Magnuson Amendment to the Fishery Conservation and Management Act of 1976, 16 U.S.C. 1821(e) - imposes trade measures on countries diminishing the effectiveness of international fisheries conservation

VI. Foreign Claims in Domestic Courts
    A. In Personam Jurisdiction
Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97 (1987) - affirms a circuit court ruling dismissing claims against British defendants in an action under the Commodity Exchange Act because the Act did not provide for nationwide service of process and the requirements of the Louisiana long-arm statute were not met
    B. Standing
Lujan v. Defenders of Wildflife, 504 U.S. 555 (1992) - stating that harm to an ecosystem did not provide sufficient injury to establish standing of paintiffs who worked in the ecosystem
    C. Forum Non Conveniens
Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947) - identifying factors for determining when jurisdiction would be refused on the basis of forum non conveniens

Rain Forest Indians File Suit Against Texaco - U.S. district judge will hear suit in New York instead of dismissing it and allowing it to be heard in an Ecuadorian court if he deems the Ecuadorian court to be partial, especially in light of the recent military coup in Ecuador

1. The Bhopal Cases

Union Carbide Corporation: Bhopal Fact Sheet - provides background information on the Bhopal gas leak tragedy, a chronology of Union Carbide's Bhopal aid and relief efforts and the size of the Bhopal settlement and humanitarian aid to victims

2. Dow Chemical v. Alfaro

Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (1990) - the trial court held that it did have jurisdiction over the case in which Costa Rican residents and employees of the Standard Fruit Company sued Dow Chemical Company and Shell Oil Company alleging that they manufactured a pesticide (DBCP) with improper labelling despite full knowledge of health consequences, but dismissed the case based on the doctrine of forum non conveniens