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District of Columbia Circuit holds that the Migratory Bird Treaty Act does not prohibit the hunting of non-native bird species; Court considers canon that ambiguous statute should not be construed in a way to abrogate a treaty; concurrence distinguishes non-self-executing treaties
The U.S. has concluded several international conventions with Canada and Mexico to protect migratory birds. In 1918, the U.S. first implemented these conventions with the Migratory Bird Treaty Act (MBTA). 16 U.S.C. Sections 703-712. It makes it unlawful to hunt or kill migratory birds “included in the terms of the conventions.” 16 U.S.C. Section 703(a). Congress subsequently amended the Migratory Bird Treaty Act for it to apply “only to migratory bird species that are native to the United States or its territories.” 16 U.S.C. Section 703(b)(1).
The bird at issue in this case is the mute swan, which is not native to the U.S. It is probably a European species that was introduced in the U.S. for ornamental purposes. Before the amendment, the mute swan was covered by the MBTA, but the amendment arguably eliminated that protection.
In the Spring of 2005, the Maryland Department of Natural Resources informed the Humane Society that it would begin killing mute swans in the Chesapeake Bay because they endangered the ecosystem. The Fund for Animals, Inc., an affiliate of the Humane Society, and three individuals brought action, claiming that the mute swan is still protected under the MBTA. The district court held that the mute swan is no longer protected.
The U.S. Court of Appeals for the District of Columbia finds that the mute swan is not protected based on the plain meaning of the statute.
Here, the parties agree that the mute swan is not a native migratory bird species. The Plaintiff claim that the amended statute conflicts with the conventions, and ambiguous statutes should not be interpreted to abrogate a treaty (meaning the conventions’ protection of the mute swan). The Court disagrees. This canon only applies to ambiguous statutes, and this statute is not ambiguous.
“The Constitution establishes that statutes enacted by Congress with the concurrence of the President (or over his veto) have no less weight than treaties made by the President with the advice and consent of two-thirds of the Senate. See U.S. CONST. art. II, Section 2, cl. 2; U.S. CONST. art. VI, cl. 2 … Consistent with this doctrine, the Supreme Court has long recognized that a later-enacted statute trumps an earlier-enacted treaty to the extent the two conflict. This is known as the last-in-time rule. See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (if self-executing treaty and statute ‘are inconsistent, the one last in date will control the other’) … At the same time, the Supreme Court also has stated that an ambiguous statute should be construed where fairly possible not to abrogate a treaty. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) … The combination of the last-in-time rule and the canon against abrogation has produced a straightforward practice: Courts apply a statute according to its terms even if the statute conflicts with a prior treaty (the last-in-time rule), but where fairly possible, courts tend to construe an ambiguous statute not to conflict with a prior treaty (the canon against abrogation).”
“The canon against construing ambiguous statutes to abrogate prior treaties does not help plaintiffs here, however, because the amended Migratory Bird Treaty Act is unambiguous, as we concluded above. To accept plaintiffs’ argument with respect to the canon, we would have to distort the plain meaning of a statute in an attempt to make it consistent with a prior treaty. The Supreme Court has not extended the canon that far, and for good reason: Distorting statutory language simply to avoid conflicts with treaties would elevate treaties above statutes in contravention of the Constitution.”
“The Migratory Bird Treaty Act implements the migratory bird conventions. The Migratory Bird Treaty Reform Act amends that earlier statute and makes clear that mute swans are not protected by the Act. The canon against interpreting a statute to abrogate a treaty does not apply because the amended statute is plain. …” [Slip op. 9]
Thus, the amended MBTA permits the hunting or killing of non-native migratory birds such as the mute swan.
The concurring Judge opines that the canon of construction should not apply in cases that involve non-self-executing treaties such as the migratory bird conventions. The migratory bird conventions are plainly non-self-executing (meaning that they must still be implemented into national law). The canon against interpreting ambiguous statutes to abrogate treaties applies to self-executing treaties (those that operate without the aid of any legislative provision). Therefore, the canon does not apply to the MBTA.
Citation: Fund for Animals, Inc. v. Kempthorne, No. 05-5352 (D.C. Cir. December 15, 2006).
Filed in: 2006 International Law Update, Issue12
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As matter of first impression, District of Columbia Circuit determines in context of Montreal Protocol that “decisions” of parties made within framework of international agreements do not constitute “laws” which are enforceable in U.S. courts
The U.S. belongs to the Montreal Protocol on Substances that Deplete the Ozone Layer (Sept. 16, 1987), S. Treaty Doc. No. 100-10, 1522 U.N.T.S. 29 (Protocol). It obliges signatory states to reduce the use of chemicals that affect the stratospheric ozone layer. One of the substances at issue here is Methyl Bromide, a toxic gas used as a fumigant.
The Environmental Protection Agency (EPA) issued a “critical use” exemption from the Protocol’s general ban on Methyl Bromide. See 40 C.F.R. pt. 82. The Parties to the Protocol agreed to the U.S.’s continued use of the substance in certain categories, and from existing stocks.
The Natural Resources Defense Council (NRDC), however, challenged that EPA exemption. The NRDC charged that it violated decisions under the Protocol in three ways. These were that the U.S. (1) failed to disclose the full amount of existing stocks; (2) neglected to offset new production and consumption by the full amount of these stocks; and (3) declined to reserve the stocks for critical uses. The District of Columbia Circuit, however, denies the NRDC’s petition for review of the EPA rule.
The NRDC claimed that the Clean Air Act (CAA) (42 U.S.C. Section 7607 (d)(9)(A)) required the EPA to abide by the Protocol. Because the Protocol did allow for future inter-party agreements on the scope of critical-use exemptions, the NRDC submits that those agreements serve to define the scope of EPA’s authority under the CAA. In other words, the “decisions” under the Protocol constitute “law” within the CAA to be applied by U.S. courts.
The Circuit Court disagrees. “NRDC’s interpretation raises significant constitutional problems. If the ‘decisions’ are ‘law’—enforceable in federal court like statutes or legislative rules—then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification (sic), in violation of Article II of the Constitution. The Supreme Court has not determined whether decisions of an international body created by treaty are judicially enforceable.”
“But there is a close analogy in this court. The United States is party to a treaty establishing the International Court of Justice (ICJ). In Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988), we held that rulings of the ICJ do not provide ‘substantive legal standards for reviewing agency actions,’ … because the rulings, though authorized by the ratified treaty, were not themselves self-executing treaties. … [...]”
“The legal status of ‘decisions’ of this sort appears to be a question of first impression. There is significant debate over the constitutionality of assigning lawmaking functions to international bodies. … A holding that the Parties’ post-ratification side agreements were ‘law’ would raise serious constitutional questions in light of the non-delegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers.” [Slip op. 8]
In addition, the Parties’ post-ratification actions support the treatment of “decisions” as international political commitments rather than enforceable domestic law. For example, when the Protocol parties agreed to the latest critical-use exemptions, they did not censure the U.S. over the EPA rule at issue here.
This holding in no way curtails the Executive’s power to enter into international agreements that constrain that Branch’s own behavior. The Executive may implement ongoing collective endeavors with other countries. Without congressional action, however, “decisions” or side agreements made after the President has ratified a treaty do not become the law of the land. They are enforceable solely through international negotiations. Thus, the EPA rule—even if inconsistent with these decisions—does not violate any domestic law within the meaning of the CAA.
Citation: Natural Resources Defense Council v. Environmental Protection Agency, No. 04-1438 (D.C.Cir. August 29, 2006).
Filed in: 2006 International Law Update, Issue8
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Ninth Circuit holds that applying CERCLA to Canadian company where slag dumped in Canada became deposited along banks of Columbia River within U.S. and was releasing toxic metals into its waters did not involve extraterritoriality
Joseph A. Pakootas and Donald R. Michel as individuals and as enrolled members of the Confederated Tribes of the Colville Reservation in Washington state (Plaintiffs) sued to enforce a Unilateral Administrative Order (UAO) issued by the U.S. Environmental Protection Agency (EPA) against Teck Cominco Metals, Ltd., a Canadian corporation (Defendant). The Order would require Defendant to conduct a remedial investigation/feasibility study (RI/FS) along a segment of the Columbia River lying entirely within the United States, where hazardous substances disposed of by Defendant in Canada have come to be located. On this interlocutory appeal of the district court’s denial of Defendant’s motion to dismiss, the main transnational issue is whether a citizen suit based on Defendant’s alleged non-compliance with the UAO is a domestic or an extraterritorial application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. Sections 9601-9675, a strict liability statute.
In August 1999, the Colville Tribes petitioned the EPA to assess the hazardous substance contamination in and along the Columbia River in northeastern Washington state. The EPA found ongoing contamination including heavy metals such as arsenic, cadmium, copper, lead, mercury and zinc.” The “EPA also observed the presence of slag, a by-product of the smelting furnaces, containing glassy ferrous granules and other metals, at beaches and other depositional areas at the Assessment Area.” The EPA decided that the Upper Columbia River Site (the Site) was eligible to be listed on the National Priorities List (NPL).
Defendant owns and operates a lead-zinc smelter (Trail Smelter) in Trail, British Columbia. Between 1906 and 1995, Defendant has been generating and disposing of hazardous materials, in both liquid and solid form, into the Columbia River. Before mid-1995, the Trail Smelter had been dumping up to 145,000 tons of slag per year into the Columbia River. Although the discharge itself took place within Canada, the EPA concluded that the river’s current bore Defendant’s wastes southward into the U.S. where it settled out in slower-flowing quiescent areas.
A substantial quantity of slag has built up and adversely affects the surface water, ground water, sediments, and biological resources of the Upper Columbia River and Lake Roosevelt. Technical evidence shows that the Defendant’s Smelter is the main source of pollution at the Site.
Plaintiffs filed this action in Washington federal court under the citizen suit provision of CERCLA. They asked for a declaration that Defendant has violated the EPA Order, for injunctive relief enforcing the Order against Defendant, as well as for penalties for non-compliance and recovery of costs and fees. Defendant moved to dismiss the complaint for failure to state a CERCLA claim and for lack of subject matter jurisdiction, on the ground that the district court could not enforce and EPA Order against activities carried out by Defendant in Canada. The District Court denied the motion but certified the issues for interlocutory appeal. In a July 3 opinion, the U.S. Court of Appeals for the Ninth Circuit affirms.
Defendant’s primary argument is that, in absence of a clear statement by Congress that it intended CERCLA to apply extraterritorially, the presumption against extraterritorial application of United States law precludes CERCLA from applying to Defendant in Canada. The Court needs to address whether the presumption against extraterritoriality applies only if this case does involve an extraterritorial application of CERCLA.
“Unlike other environmental laws such as the Clean Air Act (CAA), the Clean Water Act (CWA), and [the] Resource Conservation and Recovery Act (RCRA), CERCLA is not a regulatory statute. Rather, CERCLA imposes liability for the cleanup of sites where there is a release or threatened release of hazardous substances into the environment. [Cite]..” [1073].
“CERCLA liability attaches when three conditions are satisfied: (1) the site at which there is an actual or threatened release of hazardous substances is a ‘facility, …’ (2) a ‘release’ … of a hazardous substance from the facility has occurred, … and (3) the party is within one of the four classes of persons subject to liability.”
“CERCLA defines the term ‘facility’ as, in relevant part, ‘any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.’ Section 9601(9). The Order defines the ‘facility’ in this case as the Site, which is described as the ‘extent of contamination in the United States associated with the Upper Columbia River.’ UAO at 2 (emphasis added). The slag has ‘come to be located’ at the Site, and the Site is thus a facility under Section 9601(a). [Cite].”
” … Defendant does not argue that the Site is not a CERCLA facility. Because the CERCLA facility is within the United States, this case does not involve an extraterritorial application of CERCLA to a facility abroad. The theory of Plaintiffs’s complaint, … does not invoke extraterritorial application of United States law precisely because this case involves a domestic facility.” [1074].
“The second element of liability under CERCLA is that there must be a ‘release’ or ‘threatened release’ of a hazardous substance from the facility into the environment. … CERCLA defines a ‘release,’ with certain exceptions not relevant here, as ‘any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.’ Section 9601(22).”
“Plaintiffs has (sic) alleged that the leaching of hazardous substances from the slag that is in the Site is a CERCLA release, and Defendant has not argued that the slag’s interaction with the water and sediment of the Upper Columbia River is not a release within the intendment of CERCLA. Our precedents establish that the passive migration of hazardous substances into the environment from where hazardous substances have come to be located is a release under CERCLA. [Cites]. We hold that the leaching of hazardous substances from the slag at the Site is a CERCLA release. That release — a release into the United States from a facility in the United States — is entirely domestic.” [1075].
The Court then refers to the ‘domestic effects’ exception to the presumption against extraterritorial application of United States law. See Steele v. Bulova Watch Co., 344 U.S. 280, 287-88 (1952) (finding jurisdiction in a trademark suit against a person in Mexico who manufactured counterfeit Bulova watches that then entered and caused harm within the United States). “In Steele the prohibited conduct, … took place in Mexico but the harm, the dilution of Bulova’s trademark, took place in the United States. Id. at 287. The Court therefore held that there was jurisdiction in that case.”
“The location where a party arranged for disposal or disposed of hazardous substances is not controlling … Because the actual or threatened release of hazardous substances triggers CERCLA liability, and because the actual or threatened release here, … took place in the United States, this case involves a domestic application of CERCLA.” … [1079].
Citation: Pakootas v. Teck Cominco Metals, Ltd., 36 Envtl. L. Rep. 20, 130, 452 F.3d 1066 (9th Cir. 2006).
Filed in: 2006 International Law Update, Issue8
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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.
Filed in: 2005 International Law Update, Issue 6
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Noting similarity between CERCLA and provincial cleanup legislation, British Columbia Court of Appeal holds that governmental certificate that site is contaminated is not prerequisite to suit by private remediator against polluter to recover remediation costs
The CAE Machinery Ltd (defendant) ran an iron and brass foundry within the city of Vancouver, B.C. between 1924 and 1949. A recent survey had found copper and zinc pollution, presumably caused by the dumping of those components of brass when defendant was operating the foundry. After Workshop Holdings Ltd. (plaintiff) acquired, and set out to develop, the site, it set up a remediation plan to treat the contamination.
For business reasons, Workshop chose to remediate independently in co operation with the Waste Management Branch. It hoped thereby it could get approval in principle for its plan and ultimately a certificate of compliance. It did not ask for, nor did the Regional Waste Manager suggest, that a final governmental determination first has to be made under Section 26.4(2) or (3).
After approving the plan only in principle in January 1998, however, the Manager gave the land a contaminated-site designation and number, and entered it into the Contaminated Sites Registry in February 1998. No one told the defendant about the remediation process until plaintiff had finished it in April 1998. In July of that year, the Manager issued a final Certificate.
In March 1999, the plaintiff sued defendant for $119 million under Section 27(4) of the Waste Management Act, R.S.B.C. 1996, c. 482. Section 27(4) provides that “…any person, including, but not limited to, a responsible person and a manager, who incurs costs in carrying out remediation at a contaminated site may pursue in an action or proceeding the reasonably incurred costs of remediation from one or more responsible persons in accordance with the principles of liability set out in this Part.”
The defendant moved to dismiss the action which the first instance court granted. The plaintiff appealed, contesting the ruling below that a Manager’s final determination under Section 26.4 that a site was contaminated is a statutory prerequisite to a cost recovery claim under Section 27(4). The British Columbia Court of Appeal rules for the plaintiff and remands the case to the lower court.
In tracing the legislative history of the provincial legislation, the Court notes, inter alia, the influence of the U.S. approach to allocating the costs of cleaning up contaminated sites. “The [1993] amendments drew on United States Superfund legislation, The Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA], enacted in 1980 in response to the Love Canal scandal and intended to address U.S. contaminated sites. The U.S. statute also provided for absolute, retroactive joint and several liability; designated current or past owners or operators of contaminated sites as well as transporters as potentially responsible persons; and created a private cause of action.”
“As with the Superfund legislation, the basic idea of Part 4 is that sites become contaminated over many years of use by many different users. The policy underlying the new scheme is to strive to hold those who benefited economically from that contamination responsible for its remediation.” [¶¶ 42, 43]
“… Judge Edward Weinfeld wrote of the comparable Superfund private cause of action in New York v. Exxon Corp. 633 F. Supp. 609 (S.D.N.Y. 1986). ‘The private recovery provisions of the statute … assure an incentive for private parties, including those who may themselves be subject to liability under the statute, to take a leading role in cleaning up hazardous waste facilities as quickly as possible.’ He went on to conclude that governmental approval or expenditure is not a condition precedent to the bringing of a private action under the statute because: ‘…to require private parties to await governmental approval would be to restrict the overall national effort to the volume of activity which the federal government could centrally supervise, and this would defeat the Act’s basic intent.” [¶ 47]
In reversing the dismissal below, the Court summarizes its conclusion. “The coercive remediation order is available to the manager to implement government’s cleanup priorities. Voluntary and independent remediation permit private parties to remediate under the manager’s supervision. The cost recovery action permits all those who remediate to recover their reasonably incurred costs of doing so, however they came to remediate, from those who a court finds were responsible for the pollution.”
“Simply put, Section 27 is not ambiguous when read alone. It does not become so when read in the context of Part 4, or its object or its purpose. It creates a new civil cause of action, entire unto itself, as a means of requiring the polluter to pay and encouraging an owner to remediate.” [¶¶ 69, 70]
Citation: Workshop Holdings Ltd. v. CAE Machinery Ltd., 2003 A.C.W.S. J. 125; 119 A.C.W.S. (3d) 679 (B.C.C.A. Jan. 28).
Filed in: 2003 International Law Update, Issue3
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EU issues new Directive on genetically modified organisms (GMOs) which includes, inter alia, legal definitions as well as requirements for notification, tracking and specific labeling
On February 16, 2001, the European Parliament and the Council of Ministers adopted a major overhaul of European requirements for genetically modified organisms (GMOs). Directive 2001/18/EC on the release into the environment of genetically modified organisms aims to control the use and release of such organisms in food, medicine, feed and seed. It repeals the previous directive on the same subject, Directive 90/220/EEC. The Member States have until October 17, 2002 to transpose the Directive into national law.
The Directive defines “Organism” as “any biological entity capable of replication or of transferring genetic material.” (Article 2). It also describes in detail what it considers “genetic modification.” It includes the formation of new combinations of genetic material by inserting nucleic acid molecules and cell fusion. (See Article 2 and Annex I A, Annex I B).
The purpose of the Directive is to control such organisms better (1) through mandatory labeling, (2) by monitoring (for example through public registers where GMOs are used and released), and (3) through increased expert consultations. The Directive, however, contains an exemption for pharmaceutical research.
The Directive essentially sets up a general notification and tracking system for GMOs, similar to those for hazardous chemicals and pesticides. A party planning to use or release GMOs must first carry out an environmental risk assessment (Article 4), and then notify a designated government agency in the EU Member State where the release will occur (Article 6). The notification must include, for example, a technical dossier, the conditions of release, and a plan for monitoring (see Articles 6 and 13). Also, parties must properly label all products containing GMOs unless the GMOs content is de minimis. The words “This product contains genetically modified organisms” must appear on the label itself or in an accompanying document (Articles 21 and 26).
In a related matter, the United Nations Food and Agriculture Organization (FAO) and the World Health Organization (WHO) have jointly published recommendations to prevent any health risks from consuming GMOs, e.g., in foods. They seek to protect consumers from risks that GMOs could pose for people suffering from food allergies by preventing allergy-provoking foods (such as Brazil nuts) from ending up in bio-engineered products.
Citation: Directive 2001/18/EC …, 2001 O.J. of European Communities (L 106) 1, 17 April 2001; Commission of European Communities RAPID (February 16, 2001); European Union in US press release No. 03/01 (February 16, 2001); United Nations press release of April 12, 2001.
Filed in: 2001 International Law Update, Issue4
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First Circuit holds that shipment of vitrified nuclear waste on U.K. vessel sailing from France to Japan through United States’ Exclusive Economic Zone in Caribbean was not “major federal action” so as to require U.S. to file Environmental Impact Statement under NEPA
On February 3, 1998, the Pacific Swan, a British-flag freighter, passed through the Mona Passage between the Islands of Puerto Rico and Hispaniola bound for Japan via the Panama Canal. Because it carried a cargo of high-level, vitrified nuclear waste, Mayaguezanos por la Salud y el Ambiente (MSA) and other environmental organizations along with fishermen groups were afraid of an accident or maritime disaster. Several groups filed suit against the United States and others to enjoin the vessel’s passage until the U.S. had filed an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA).
The voyage in question forms part of a regular pattern of circumferential trade in fissionable material. The U.S. sends uranium to Japan to fuel its nuclear reactors. When the fuel is spent, Japan ships the material to COGEMA for recycling at its plant in La Hague in France. This process turns out a substantial portion of fissionable material reusable as fuel plus high-level waste containing trace amounts of uranium and plutonium.
The French company vitrifies the waste and puts it in casks that meet safe transport criteria laid down by the International Atomic Energy Agency (IAEA). The vitrification process changes the waste into a solid glass form which is claimed to be very insoluble in water, resistant to heat, and extremely stable. In sending the fuel and waste back to Japan, the parties use specially-designed private ships that meet the safety standards of the International Maritime Organization (IMO). The private shippers have a choice of three routes back to Japan: the Cape of Good Hope, Cape Horn, or the Panama Canal.
The parties filed cross-motions for summary judgment. The District Court denied injunctive relief and dismissed the complaint. MSA and others noted an appeal. The U. S. Court of Appeals for the First Circuit affirms.
The U.S. has two links to this trade. In the first place, the U.S. had originally supplied the uranium to Japan pursuant to a 1988 agreement to cooperate on the peaceful uses of atomic energy [see 1988 WL 582501, at 3]. Secondly, the transport of the waste through the Mona Passage means that the ship sailed through non-territorial waters in which the U.S. has an interest.
On appeal, MSA first argued that the transport of this waste involved a “major federal action” under NEPA because the U.S. has a significant role in transporting the waste under various international agreements and customary international law. In reply, the U.S. contended that the fact that private parties, not the U.S., are the primary ones who handle the shipping deprived the voyage of any federal character.
This Court approves the Fourth Circuit’s reading of NEPA as involving whether federal approval was a prerequisite to the private parties’ activity and whether a federal agency had some type of authority over the outcome. MSA basically contended that the U.S. has impliedly consented to the shipments under the U.S.–EURATOM Agreement as well as acted under the 1954 Atomic Energy Act (AEA) and the Nuclear Non-Proliferation Act (NNPA) of 1978. It also argued that the U.S. had the power to stop shipments like this from transiting the waters of its Exclusive Economic Zone (EEZ); its failure to do so amounted to an implicit grant of authority.
The Court disagrees with plaintiffs. It explains that the AEA and the NNPA require the U.S. to ship nuclear materials abroad only pursuant to international agreements containing adequate safeguards and effective controls. The 1988 Agreement with Japan exercised this authority.
When the irradiated material leaves Japan for France, the U.S.-EURATOM Agreement of 1996 applies. France and the U.K. are parties thereto along with thirteen other European nations. This agreement also demands the taking of “safeguards” against the misuse of nuclear materials for other than peaceful purposes.
Once one of the parties has determined the materials to be no longer usable for nuclear activity or to have become “practically irrecoverable,” the Agreement ceased to apply. Here, the appropriate authority, which was not the United States, made that determination. For the same reason, the IAEA also terminated its safeguards as to this shipment. As a result, no “major federal action” was involved
The second string to MSA’s bow was that there was federal action when the U.S. allowed the Pacific Swan to make use of the Mona Passage. The Court preliminarily notes that there is at least a fifteen-mile-wide channel of international waters in the straits between Puerto Rico and Hispaniola. Moreover, even as to U.S. territorial waters, customary international law recognizes a foreign vessel’s right of innocent passage.
Though the Pacific Swan indisputably did not pass through U.S. territorial waters, it presumably did transit its EEZ. The limited EEZ interests of coastal states largely center on the development of natural resources, the availability of scientific research and preventing oceanic pollution
For example, there may be clear evidence that a foreign vessel has discharged material that pollutes the EEZ or that may damage the coastline or other national resources. In such a case, the coastal state may stop the vessel, investigate its papers and otherwise conduct a relevant physical inspection of the ship. In serious cases, the coastal state may file proceedings to detain the vessel.
Foreign ships do not need U.S. permission to pass through its EEZ. Moreover, no violation of U.S. economic interests has taken place here. Although the U.S. has chosen to forego regulating shipments of nuclear waste through its EEZ, the Court sees it as far from clear that it would have the power to regulate under the facts of this case.
“Under these circumstances, there is no major federal action. Where this country’s multilateral relationships are involved there is a particularly heavy burden on Mayaguezanos to demonstrate a “�major federal action’ for NEPA purposes, and thus to involve the courts. It has not come close. That is not to say that Mayaguezanos’s concerns about the safety of the shipments are frivolous, a matter that we do not judge, only that such concerns should be presented elsewhere. The grant of summary judgment for defendants is affirmed.” [Slip op. 7-8]
Citation: Mayaguezanos por la Salud y el Ambiente v. United States, No. 99-1412 (1st Cir. December 20, 1999).
Filed in: 2000 International Law Update, Issue 1
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Fifth Circuit dismisses environmental law action brought by Indonesian citizen that challenged mining operations and “cultural genocide” by U.S. companies in Indonesia as not violating customary international law under Alien Tort Claims Act
Tom Beanal is a community leader in Irian Jaya, Indonesia. He brought an action in a Louisiana federal court against Freeport-McMoran, Inc. and Freeport-McMoran Copper & Gold, Inc. (Delaware corporations, hereinafter jointly referred to as Freeport). Freeport operates an open pit copper, gold and silver mine in the Jayawijaya Mountain in Irian Jaya, Indonesia, known as the “Grasberg Mine.” The mine covers approximately 26,400 square kilometers.
In his complaint, Beanal alleged that the mining operations violate international law, through human rights violations and “cultural genocide,” destroying the environment and religious symbols of his tribe, the Amungme.
Beanal invoked jurisdiction under (1) 28 U.S.C. Section 1332 on diversity or alienage jurisdiction, (2) The Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350, and (3) The Torture Victim Protection Act of 1991 (TVPA), Section 1, 28 U.S.C. 1350 note.
The district court initially dismissed the complaint for failure to state a claim and instructed Beanal to restate his claims with more specificity. The district court later dismissed Beanal’s second and third amended complaints. Beanal appealed but the U.S. Court of Appeals for the Fifth Circuit affirms.
ATCA confers subject matter jurisdiction when (1) an alien sues, (2) for a tort, (3) that was committed in violation of the “law of nations” or a treaty of the United States. See Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) [1995 Int'l Law Update, December issue, page 5]. Since Beanal does not claim any violation of a United States treaty, the issue is whether Beanal states a claim for violations of the “law of nations,” that is, customary international law.
As for individual human rights violations, Beanal alleges under ATCA that Freeport has committed mental torture, death threats and house arrests. Beanal’s allegations, however, lack any names, dates, locations, times or any facts that would put Freeport on notice as to what conduct supports the nature of the claims.
The Court agrees with the district court that Beanal’s claims lack factual specificity. Therefore, it does not reach the issue of whether state action is required to sustain an ATCA action for individual human rights violations. The Court notes that Beanal had alleged some specific instances of abuses that third parties had experienced in his second amended complaint, but the district court had struck them because Beanal lacked standing to assert the rights of third parties.
As for environmental torts and abuses, Beanal alleges that Freeport dumps 100,000 tons of tailings per day in nearby rivers and thereby impairs aquatic life and may cause flooding.
“Nevertheless, “it is only where the nations of the world have demonstrated that the wrong is of mutual and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation in the meaning of the [ATCA].’ … Thus, the [ATCA] ‘applies only to shockingly egregious violations of universally recognized principles of international law.’ … ”
“The sources of international law cited by Beanal and the amici merely refer to a general sense of environmental responsibility and state abstract rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international environmental abuses or torts. Although the United States has articulable standards embodied in federal statutory law to address environmental violations domestically [see, e.g., The National Environmental Policy Act (42 U.S.C. Section 4321 et seq.) and The Endangered Species Act (16 U.S.C. Section 1532)], nonetheless, federal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments.” [Slip op. 14-15]
Finally, as for genocide and “cultural genocide,” the Court once again finds that Beanal’s allegations were conclusory and lacked specificity. In particular, it is doubtful that the international community has universally accepted “cultural genocide” as a violation of international law. Thus, the Court declines to recognize cultural genocide as a discrete violation of international law.
The conventions, agreements and declarations cited by Beanal and the amici curiae proclaim amorphous rights to enjoy culture or cultural development. They do not, however, identify what constitutes an act of cultural genocide. Therefore, it would be difficult to apply these vague and declaratory international documents to Beanal’s claim.
Citation: Beanal v. Freeport-McMoran, Inc., No. 98-30235 (5th Cir. November 29, 1999).
Filed in: 1999 International Law Update, Issue 12
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Under its turtle protection laws, U.S. has certified that 41 nations are in compliance and thus may resume shrimp exports to U.S.
The U.S. State Department has approved 41 nations so far as meeting U.S. standards for protecting sea turtles and, for those nations, has lifted its ban on exporting shrimp to the U.S.
Section 609 of Pub.L. 101-162 prohibits the import of shrimp harvested in ways that harm sea turtles unless the State Department certifies that the harvesting nation either has a sea turtle protection program comparable to the U.S. or has a fishing environment that does not endanger sea turtles. The protected species of sea turtles are Loggerhead, Kemp’s Ridley, Green, Leatherback and Hawksbill.
The chief components of the U.S. turtle conservation program are “sea turtle excluder devices” (TEDs) that prevent the accidental drowning of sea turtles in shrimp trawls. Most recently, the State Department certified Costa Rica, Guyana, Panama, and Suriname as meeting Section 609 requirements.
In a related development, State has issued Revised Guidelines for the Implementation of Section 609. The Guidelines explain the requirements of the U.S. sea turtle protection program and how fisherman should harvest shrimp in order not to harm sea turtles. The Guidelines also explain how State reviews the shrimp harvesting practices and the fishing environments of foreign nations. The certification process is also described.
Citation: U.S. Department of State press statements of May 3, May 19 (Panama and Costa Rica), June 8, 1999 (Guyana), and July 5, 1999 (Suriname)[certification of shrimp exporting countries]; 64 Federal Register 36946 (July 8, 1999) [Revised Guidelines]. [More information on sea turtle protection is available on the website of the NWF Sea Turtles Campaign www.nwf.org/international/trade/turtles].
Filed in: 1999 International Law Update, Issue 7
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U.S. Commerce Department issues rule designed to abolish incidental deaths of marine mammals in course of commercial fishing operations
Under the U.S. Marine Mammal Protection Act (MMPA), commercial fisheries must gradually reduce incidental mortality and serious injury to marine mammals to zero by April 30, 2001. The U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Services (NMFS), has issued a final rule to reduce injury and death to four large whale stocks. The protected species include the North Atlantic humpback whale, the fin whale, as well as the minke whale of the Canadian East Coast stock.
The rule provides for time and area closures for lobster harvesting, as well as for anchored gillnet and shark gillnet fisheries. It also sets fishing gear requirements such as by banning long surface lines.
Finally, the rule provides for fishing gear studies, scientific research, and the improvement of methods to disentangle whales caught in fishing gear.
The effective date of the rule will be April 1, 1999.
Citation: 64 Federal Register 7529 (February 16, 1999).
Filed in: 1999 International Law Update, Issue 3
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