Kiobel and the Future of Environmental Claims against Corporations under the Alien Tort Statute: Part I

On February 28, the Supreme Court is scheduled to hear oral argument in Kiobel v. Royal Dutch Petroleum, a major corporate personhood case with important ramifications for international environmental law claims. The issue the Court will decide is whether corporations can be treated in the same manner as any other private party defendant under the Alien Tort Statute (ATS). The ATS was passed by the First Congress in 1789 and allows non-U.S. citizens to hold violators of the law of nations or a U.S. treaty accountable in U.S. courts. The Second Circuit hearing of this issue held that a corporation being sued for egregious human rights violations was exempt from liability under the ATS.

The outcome of this case will have a major impact on the future of environmental claims brought against corporate entities under the ATS. The ATS was first used as a tool to challenge corporate accountability for human rights violations in the landmark case Filártiga v. Peña-Irala. After this case, it seemed possible that the ATS could be used to address environmental harm caused by corporations. A number of such cases have been brought over the last two decades, although none have been successful. Some believe that the only circumstance in which environmental harm allegations brought in an ATS case may be addressed is where human rights abuses and environmental wrongs overlap. If the Supreme Court affirms the Second Circuit’s holding, then all ATS claims brought against corporations will effectively be barred. The Second Circuit’s decision has already made an impact on environmental claims, with the U.S. District Court for the Southern District of Indiana dismissing an ATS claim based on alleged environmental pollution in Brazil that Brazilian residents had brought against various American corporations.

A number of parties, including the U.S. government and numerous International Human Rights organizations (including EarthRights International, a nonprofit concerned with human rights and environmental abuses), have filed amicus briefs in support of the petitioners. One important issue the court is expected to address is whether corporate civil tort liability under the ATS is a merits question, or a matter of subject matter jurisdiction. The D.C. Circuit, ruling on a similar ATS claim against Exxon Mobil and rejecting the Second Circuit’s analysis in Kiobel, said that in evaluating an ATS claim, courts should look at whether the cause of action is “clearly established in the law of nations,” and then ask whether a corporation would generally be held liable for such an action in a domestic lawsuit. In his concurring opinion in Kiobel, Judge Leval stressed that the opinion “deals a substantial blow to international law and its undertaking to protect fundamental human rights” but that international law to date “[does] not provide civil liability against any private actor and [does] not provide for any form of liability of corporations.” The Supreme Court’s decision will have a significant impact on the role international law plays in future ATS claims.

Part II of this post will discuss the issues raised in oral argument on February 28, and implications for the future of environmental claims under the ATS in the context of international law.

Written by Ingrid Seggerman, GIELR staff

One response to “Kiobel and the Future of Environmental Claims against Corporations under the Alien Tort Statute: Part I

  1. Pingback: Surprising Kiobel Update « Georgetown International Environmental Law Review·

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