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New York-Environmental claims do not rise to the level of clear violations of international law needed to bring an action under the Alien Tort Claims Act, the 2d U.S. Circuit Court of Appeals has ruled. Holding that assertions of “right to life” and “right to health” are “insufficiently definite to constitute rules of customary international law,” the court, which broke new ground for recognizing claims under the act, rejected pollution as a basis for a cause of action. The court’s decision in Flores v. Southern Peru Copper Corp., No. 02-9008, was the latest in a line of cases that began with its seminal decision in Filartiga v. Pe�a-Irala, 630 F.2d 876 (1980). The controversial Filartiga decision recognized that the Alien Tort Claims Act (ATCA) afforded subject-matter jurisdiction over claims that the international prohibition against official torture was violated by the torture and murder of two Paraguayan citizens by a former Paraguayan police official. Generating strong criticism from some scholars and the U.S. Circuit Court for the District of Columbia, the Filartiga court also recognized a private right of action for aliens seeking only recompense for violations of international law. In Flores, the plaintiffs are residents of Ilo, Peru, or representatives of deceased Ilo residents who claim that Southern Peru Copper Corp.’s operations generated so much pollution that many residents suffer from lung disease. U.S. District Judge Charles S. Haight Jr. dismissed the case, saying the plaintiffs had “not demonstrated that high levels of industrial pollution . . . violate any well-established rules of customary international law.” Writing for the 2d Circuit, Judge Jose A. Cabranes said that “neither Congress nor the Supreme Court has definitively resolved the complex and controversial questions regarding the scope and meaning of the ATCA.” “Whatever the differing perspectives among jurists and scholars-differences that can be resolved only by Congress and the Supreme Court- Filartiga remains the law of this Circuit,” he said. The body of customary international law that can provide a basis for suit under the Alien Tort Claims Act, Cabranes said, consists only of “those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern.” The plaintiffs in Flores asked the 2d Circuit to expand the scope of the law to include “shockingly egregious” acts that are distinct from those torts that concern mere violations of domestic law. Cabranes and judges Amalya Kearse and Dennis Jacobs declined to do so. Allowing alien tort claims based on the “boundless and indeterminate” principles of “right to life” or “right to health” would be a mistake, Cabranes wrote. “They express virtuous goals understandably expressed at a level of abstraction needed to secure the adherence of States that disagree on many of the particulars regarding how actually to achieve them.” The claims in Flores are a far cry from those accepted in Filartiga, Cabranes said, where the “Court cited extensive studies that States, in their domestic and international practices, repudiate official torture.” Peter J. Nickles of Washington-based Covington & Burling, who argued the case for Southern Peru Copper at the 2d Circuit, said the decision from a court that has been “out in front” on the Alien Tort Claims Act “has really toughened up the requirements to get into court.” “The court is saying you can’t prove an allegation by having a lot of scholars come in and say, in their opinion, what the law is,” Nickles said. “They are saying, ‘We look at what the law is, not what it is evolving to be-and the law is those treaties and conventions that provide concrete standards and are enforceable.’ “ Plaintiffs’ lawyer Wallace A. Showman said the circuit’s insistence on a treaty or convention for a claim that customary international law has been violated is “an unreasonably high standard.” “Certainly, if you have a convention or a treaty, your case is stronger,” Showman said, “but it has never been stated before that, for a court to recognize a rule, there must be a convention or a treaty.” Showman, who may appeal, said “My take is that courts just don’t want to touch these environmental claims. They are very leery because they really affect other nations’ decision-making about how much pollution to allow, how much development to pursue and at what cost.”

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