Case of the Month: Sarei v. Rio Tinto (by John Knox)
My vote for the most important international case for the month of August is Sarei v. Rio Tinto. I have already given you my quick read of the case here. So I have invited one of the leading international environmental law professors to give his take on this important case. Here is what John Knox of Wake Forest Law School (formerly of Penn State’s Dickinson School of Law) has to say about the case:
Sarei v Rio Tinto has a number of interesting angles, but I’m going to focus on one in particular: its relevance to the use of ATCA for claims arising from environmental degradation. Many ATCA cases, like Sarei, have arisen from major resource extraction projects in developing countries. The projects are typically alleged to have caused widespread environmental degradation that itself violated international norms, as well as (often) leading to or being intertwined with a wider set of abuses of human rights. Courts, including the Second and Fifth Circuits have generally given the claims for environmental degradation short shrift, concluding either that the norms alleged to be violated are too general, not part of international law, or not concerned with “intranational” pollution.
The mining operation that led to the Sarei litigation was unusual in the degree to which the environmental consequences triggered a much broader conflict. Rio Tinto, a large mining company, agreed with Papua New Guinea in the 1960s to open a copper mine in Bougainville, an island east of New Guinea. During the mine’s operation, from 1972 to 1988, Rio Tinto dumped over one billion tons of waste and tailings into the Jaba River, thereby causing immense damage to the environment of the island and to the bay into which the river flows. According to the plaintiffs, the environmental degradation eventually induced the Bougainvilleans to sabotage the mine. Rio Tinto threatened to leave unless PNG quelled the uprising. A ten-year civil war ensued in which “PNG, at the behest of its joint venture partner, Rio Tinto, committed atrocious human rights abuses and war crimes.” There’s no doubt that the civil war caused terrible loss: 15,000 deaths and 70,000 people dislocated, out of a total population of no more than 200,000. In 2001, the parties entered into a peace agreement, which led to the creation in June 2005 of an autonomous Bougainville government.
Understandably, the attorneys for the plaintiffs in Sarei based much of their suit on the non-environmental claims, arguing that Rio Tinto was complicit in PNG’s war crimes and crimes against humanity during the civil war. But they also claimed that Rio Tinto’s operation of the mine violated the Bougainvilleans’ rights to life and health, the principle of sustainable development, and provisions of UNCLOS on marine pollution, as well as discriminating against them on racial grounds. In July 2002, the district court held that most of the claims, including those based on UNCLOS (but not the life/health/sustainable development claims), may provide the basis for an ATCA action. It nevertheless dismissed all of the claims on the basis of the political question doctrine, and the environmental and discrimination claims additionally on act-of-state and comity grounds.
The Ninth Circuit heard argument before the Supreme Court granted cert. in Sosa, then heard a second argument and another round of briefs to allow the parties to take the effect of Sosa into account. Since Sosa was generally seen (well, by me, anyway) as making it more difficult, if not impossible, for plaintiffs to bring environmental degradation claims under ATCA, the plaintiffs seemed to face an uphill battle in convincing the Ninth Circuit to reinstate their environmental claims. The plaintiffs may well have agreed; they didn’t even appeal the dismissal of the life/health/sustainable development claims. But, mirabile dictu, in its August 2006 decision the panel reinstated, by a 2-1 vote, the UNCLOS claim along with the plaintiffs’ war, humanity, and discrimination claims.
How significant a decision is this for international environmental law in U.S. courts? Has the Ninth Circuit found a way to squeeze environmental claims through the door Sosa left ajar? Well, if so, it kept its reasoning to itself. Its analysis, for want of a better word, of whether the UNCLOS meets the Sosa standard is, in its entirety: “As for the UNCLOS claim, the treaty has been ratified by at least 149 nations, which is sufficient for it to codify international law that can provide the basis of an ATCA claim.” This is astoundingly sloppy. First, and most obviously, there is no rule whereby treaties are magically converted to customary international law upon reaching 149 parties. Second, the two sources cited for the statement don’t support it. One is to a 1992 Supreme Court opinion stating that UNCLOS’ provisions on baselines reflect CIL; the other is to the Damrosch Henkin casebook stating that most provisions of UNCLOS reflect CIL, but not specifically referring to the articles in question. Third, it ignores the requirement that the norm be “sufficiently definite to support a cause of action.”
What if one “completes the analysis,” as the WTO Appellate Body likes to say? Did the Ninth Circuit reached the right result anyway? The UNCLOS provisions in question are Articles 194 and 207, which require parties to take measures “necessary to prevent, reduce and control pollution of the marine environment from any source,” and to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.” One can make a serious argument that these articles are currently CIL. Philippe Sands’ treatise, for example, says that they are. So far, so good.
But there can’t be a serious argument that the provisions are specific enough to meet the Sosa test, especially not during the period of the mine’s operation. As Sands says, “It should be recalled that these provisions are general in character, their detailed obligations being informed by the content of applicable and relevant international rules, whether global or regional.” UNCLOS itself wasn’t signed until 1982 and didn’t enter into force until 1994, so there’s some question as to whether there was any CIL norm at all for land-based marine pollution (LBMP) during the 1970s and 1980s. (One of the many questions the Ninth Circuit doesn’t bother to address is exactly when it thinks UNCLOS began to reflect CIL.) But even today, states are only beginning to develop specific, universal norms for LBMP. The chief global effort to address LBMP is a cooperative UN program called the Global Programme of Action,which wasn’t adopted until 1995. Most states, even rich countries like the US, still have a deplorable record of dealing with major LBMP problems, and developing countries have only recently begun to restrict dumping tailings into the ocean. Even if one makes the stretch of assuming that such norms are sufficiently well-developed to inform the UNCLOS standards today, there’s no way that they were in place during the 1970s and 1980s. Had the panel actually taken the question seriously, it would have had to reach that conclusion.
I think the carelessness of the panel on this issue is typical of its entire decision. Sosa told lower courts to consider the questions of corporate liability, government statements of interest, and exhaustion of remedies carefully, at the same time warning them to use “great caution” and “vigiliant doorkeeping” in exercising their limited jurisdiction. Sarei raised all three questions: a corporation was being sued for violating rules normally directed against states; a statement of interest discouraged the court from accepting jurisdiction; and PNG courts were at least arguably available to here the suit. (The district court’s dismissal was contingent on the defendants’ consent to allow the action to proceed in PNG courts.) The Ninth Circuit breezed through two of the three, barely discussing corporate liability and treating the statement of interest under the nearly-impossible-to-meet political question doctrine, and while it did spend more time on exhaustion, it cited Sosa’s cautions as a reason not to impose an exhaustion requirement. Unfortunately, the case reads as an inadvertent vindication of Scalia’s warning in dissent that lower courts would ignore Sosa’s effort to limit the application of the “specific, universal and obligatory” standard while keeping its language, and instead treat the decision as an endorsement of the standard they had already been using. If other courts follow this approach (and I’m not suggesting that they will), I would predict that the Supreme Court would take another case soon to put a doorstop behind the door it left ajar in Sosa.