In previous columns, I have discussed the challenges faced by foreign plaintiffs seeking relief in U.S. federal courts for environmental damage abroad by U.S. or foreign transnational corporations. (See, e.g., " After ‘Sosa’: Environmental Claims Under the Alien Tort Claims Act-Part II," Oct. 26, 2004; " International Standards for Corporate Conduct," April 30, 2012.) Within the past month, there have been major developments in three unrelated casesone in the U.S. Supreme Court, one in the U.S. Court of Appeals for the Second Circuit and one in the Southern District of New Yorkthat both narrow opportunities for foreign plaintiffs to seek federal judicial relief for environmental injury abroad and demonstrate why the courts should be more open to at least some of those claims.
ATS Decisions
On April 17, the Supreme Court issued its long-awaited decision in Kiobel v. Royal Dutch Petroleum, 569 U.S. (2013), in which the court took a major step backward in the protection of human rights by U.S. federal courts. In an opinion by Chief Justice John Roberts for the five-justice majority, the court held that the 1789 Alien Tort Statute (ATS) is subject to a presumption against extraterritorial application and thus did not create a federal cause of action for foreign plaintiffs injured by the complicity of a foreign corporation, with offices in New York, in environmentally triggered human rights abuses (including torture and murder) by the Nigerian government.
