In dispute over duty of U.S. to carry out environmental clean-up of its abandoned U.S. bases in Philippines, Ninth Circuit holds that CERCLA generally does not apply outside U.S. territory
During 1992, the United States vacated the Clark Air Force Base and the Subic Naval Base in the Philippines. Eight years later, the present plaintiffs unsuccessfully petitioned the U.S. Air Force and Navy to conduct an environmental assessment of the bases. The plaintiffs then filed this lawsuit against these branches, contending that they have been exposed, or are likely to be exposed to, environmental contamination at the abandoned military bases.
Plaintiffs alleged that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Section 9601 required that the U.S. investigate and possibly clean up its former military bases. CERCLA (42 U.S.C. Section 9605(d)) provides that "[a]ny person who is, or may be, affected ... may petition the President to conduct a preliminary assessment of the hazards to public health and the environment which are associated ... If the President has not previously conducted a preliminary assessment of such release, the President shall ... complete such assessment ..."
The District Court for the Northern District of California dismissed the complaint for failure to state a CERCLA claim. The court relied on the canon of statutory interpretation that legislation of Congress is presumed to apply only within the territorial jurisdiction of the U.S., unless Congress has indicated otherwise. The U.S. Court of Appeals for the Ninth Circuit affirms.
The CERCLA does not generally provide for extraterritorial application. It does, however, authorize a very limited class of foreign claimants to sue where U.S. vessels or facilities have released hazardous substances into the navigable waters, territorial sea or shoreline of the claimants' country. 42 U.S.C. Section 9611(l). This, of course, does not help the plaintiffs here.
The Court then points out that CERCLA Section 9605(d) is silent as to the locations it covers and who may petition for a preliminary assessment. The plaintiffs, however, argued that Congress clearly intended to have CERCLA apply to former military bases. CERCLA's definition of the "United States" includes "the several States ... and any other territory or possession over which the United States has jurisdiction ..." 42 U.S.C. Section 9601(27). The Government contended that "possession" refers to U.S. property that is not within the territory of another sovereign nation.
Since the plaintiffs still have to show that they could state a substantive claim at the time of filing their action, however, the Court does not have to decide the issue of scope. "The [plaintiffs] cannot state a claim under CERCLA due to the ... presumption against extraterritoriality. The Supreme Court and this court have adhered to the longstanding principle of American law that legislation is presumed to apply only within the territorial jurisdiction of the United States unless the contrary affirmative intention of Congress is clearly expressed. ... Courts must assume that Congress legislates with knowledge of the presumption that a statute "is primarily concerned with domestic conditions.' ..." [...]
"Applying the presumption against extraterritoriality to the case at bar, we can find no evidence that Congress expressly (or implicitly) intended to authorize suits under CERCLA by foreign claimants allegedly affected by contamination occurring on a U.S. military base located in a foreign country. ..."
"Even if we were to accept that the language in CERCLA cited by the appellants may be interpreted as bringing such sites within the geographic reach of the statute, this would not overcome the statutory presumption against extra-territoriality, which applies with force and counsels against interpreting CERCLA to provide a cause of action to foreign claimants such as the appellants. ..." [Slip op. 12-14]
Furthermore, the plaintiffs did not state a claim that existed when they filed their lawsuit. After all, the military bases had been under Philippine control for ten years. Having surrendered possession of the bases, the U.S. no longer has the authority to do an environmental assessment or clean-up.
Finally, the plaintiffs contended that the Court should interpret CERCLA to apply extraterritorially to make it conform to international law. "Perhaps recognizing the tenuous nature of their claims under domestic law, the [plaintiffs] suggest that we should interpret CERCLA to apply extraterritorially so as not to run afoul of international law. The [plaintiffs] rely on international principles espousing the view that activities within a country's jurisdiction or control should not cause significant injury to the environment of another country. The Restatement ... appears to support this view. ... RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES Sections 601-602 (1987)."
"Even if we were to accept the [plaintiff's] gloss on international law -- that one nation should not injure another nation's environment -- it does not follow that denying the [plaintiffs] a cause of action as of 2002 violates international law. The [plaintiffs] offer no authority for the proposition that international law recognizes a current claim for a preliminary assessment or cleanup of Philippine territory based on actions taken over a decade ago."
"Furthermore, assuming that the United States "injured' the Philippines during its operation of Clark and Subic, compensation presumably was, or should have been, negotiated between the two nations when the United States turned the bases over to the Philippines. Thus, we do not find that the [plaintiffs] have presented an actual conflict between domestic and international law." [Slip op. 25-27]
Citation: ARC Ecology v. U.S. Department of Air Force, 2005 WL 1398736; No. 04-15031 (9th Cir. June 15, 2005); background on this case is available on website of ARC Ecology at www.arcecology.org.
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