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Team # 39
Dockets No. 18-000123
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
__________________________________________________________________
ORGANIZATION OF DISAPPEARING ISLAND NATIONS,
APA MANA, and NOAH FLOOD,
Petitioner,
-v.-
HEXONGLOBAL CORPORATION,
Respondent,
and
THE UNITED STATES OF AMERICA,
Respondent.
________________________________________________________________
Appeal from the United States District Court for New Union Island
in No. 66-CV-2018, Judge Romulus N. Remus
________________________________________________________________
BRIEF OF ORGANIZATION OF DISAPPEARING ISLAND NATIONS
Petitioner
i
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF JURISDICTION............................................................................................... 1
STATEMENT OF ISSUES ............................................................................................................ 1
STATEMENT OF THE CASE ....................................................................................................... 2
STATEMENT OF THE FACTS .............................................................................................. 2
PROCEDURAL HISTORY...................................................................................................... 3
SUMMARY OF THE ARGUMENT ............................................................................................. 4
ARGUMENT .................................................................................................................................. 6
I. AN ALIEN TORT STATUTE CLAIM MAY BE BROUGHT AGAINST A DOMESTIC
CORPORATION BECAUSE MULTIPLE INTERNATIONAL TREATIES AND THE
LAW OF NATIONS HAVE RECOGNIZED CLIMATE-CHANGE RELATED
HARMS, AND THE LANGUAGE OF THE ALIEN TORT STATUTE DOES NOT
BAR CLAIMS AGAINST CORPORATIONS. ................................................................. 6
II. THE TRAIL SMELTER PRINCIPLE IS A PRINCIPLE OF CUSTOMARY
INTERNATIONAL LAW, WHICH SHOULD BE RECOGNIZED AS A LAW OF
NATIONS UNDER THE ALIEN TORT STATUTE. ....................................................... 9
A. The Trail Smelter Principle is an international norm which is universal and obligatory.
............................................................................................................................................ 10
B. The norm is definable: a state or state actor violates international law when it fails to
exercise due diligence and the transboundary environmental harm is significant...... 16
III. THE TRAIL SMELTER PRINCIPLE IMPOSES A DUE DILIGENCE REQUIREMENT
ON HEXONGLOBAL, WHO IS A STATE ACTOR...................................................... 18
ii
IV. THE TRAIL SMELTER PRINCIPLE IS NOT DISPLACED BY THE CLEAN AIR ACT
BECAUSE IT CONSTITUTES FEDERAL COMMON LAW AND THE CLEAN AIR
ACT DOES NOT DIRECTLY SPEAK TO THE CAUSE OF ACTION BEING
BROUGHT IN THIS CASE. ............................................................................................ 21
A. The Trail Smelter principle, as a customary international law enforceable by the
“Law of Nations,” is considered federal common law. ............................................. 21
B. The Clean Air Act does not displace the Trail Smelter Principle because the Clean
Air Act does not directly speak to the issue of the production and sale of fossil fuels,
which is the claim being brought under the Trail Smelter Principle. ......................... 22
C. The claim brought in this case, regarding the production and sale of fossil fuels, is
distinct from the claims brought in AEP and Kivalina because those cases were about
the federal common law of public nuisance being displaced by the Clean Air Act in
regulating greenhouse gas emissions......................................................................... 24
V. THE FAILURE TO PROTECT THE GLOBAL ATMOSPHERIC CLIMATE SYSTEM
FROM DISRUPTION DUE TO THE PRODUCTION, SALE AND BURNING OF
FOSSIL FUELS IS PROTECTED UNDER THE FIFTH AMENDMENT BECAUSE
THE RIGHT TO A HEALTHY AND STABLE CLIMATE SYSTEM IS A
FUNDAMENTAL RIGHT. .............................................................................................. 26
A. The right to a healthy and stable climate system is a fundamental right protected by
the Due Process Clause of the Fifth Amendment. ........................................................ 26
B. The United States Government has infringed on the fundamental right to a healthy
and stable climate system by promoting production and combustion of fossil fuels.28
VI. PLAINTIFFS’ LAW OF NATIONS CLAIM UNDER THE ALIEN TORT STATUTE
AND PUBLIC TRUST DOCTRINE CLAIM ARE JUSTICIABLE ISSUES AND NOT
POLITICAL QUESTIONS BECAUSE THERE ARE MANY CASES WITH VERY
SIMILAR ISSUES THAT HAVE BEEN ADJUDICATED UNDER BOTH THE
STATUTE AND THE DOCTRINE, AND A QUESTION OF A CONSTITUTIONAL
VIOLATION IS DECIDED BY THE COURTS. ............................................................ 29
CONCLUSION ............................................................................................................................. 34
iii
TABLE OF AUTHORITIES
U.S. CONSTITUTION
U.S. Const. amend. V.................................................................................................................... 26
STATUTES
28 U.S.C. § 1291 (2017) ................................................................................................................. 1
28 U.S.C. § 1331 (2017) ................................................................................................................. 1
28 U.S.C. § 1350 (2017) ....................................................................................................... 1, 6, 30
42 U.S.C. § 1983 (2017) ............................................................................................................... 18
42 U.S.C. § 7401 (2017) ......................................................................................................... 20, 23
42 U.S.C. § 7415 (2017) ............................................................................................................... 23
42 U.S.C. § 7617 (2017) ............................................................................................................... 23
SUPREME COURT
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011) .............................................................................................. 22, 24, 25
Baker v. Carr,
369 U.S. 186 (1962) .......................................................................................................... 31
Bd. of Regents v. Roth,
408 U.S. 564 (1972) .......................................................................................................... 27
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .......................................................................................................... 21
Dennis v. Sparks,
449 U.S. 24 (1980) ............................................................................................................ 18
DeShaney v. Winnebago Cmty. Dep’t of Soc. Servs.,
489 U.S. 189 (1989) .................................................................................................... 26, 32
Erie R. Co. v. Tompkins,
304 U.S. 64, 78, 79 (1938) .................................................................................................. 9
iv
First Nat’l City Bank v. Banco para el Comercio Exterioir de Cuba,
462 U.S. 611 (1983) .......................................................................................................... 22
Hyde v. United States,
225 U.S. 347 (1912) .......................................................................................................... 20
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) ............................................................................................................ 21
Jesner v. Arab Bank, PLC,
138 S. Ct. 1386 (2018) .................................................................................................. 9, 10
Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108 (2013) ...................................................................................................... 7, 30
Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982) .......................................................................................................... 18
Meyer v. Nebraska,
262 U.S. 390 (1923) .......................................................................................................... 27
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ...................................................................................................... 27
Palko v. Connecticut,
302 U.S. 318 (1937) .......................................................................................................... 27
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007) .......................................................................................................... 28
Phillips Petroleum Co. v. Mississippi,
484 U.S. 469 (1988) .......................................................................................................... 31
Poe v. Ullman,
367 U.S. 497 (1961) .......................................................................................................... 27
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) .......................................................................................................... 28
v
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ................................................................................ 8, 9, 10, 11, 16, 30
Texas Indus., Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) .......................................................................................................... 21
The Paquete Habana,
175 U.S. 677 (1900) .......................................................................................................... 10
U.S. Dep't of Commerce v. Montana,
503 U.S. 442 (1992) .......................................................................................................... 30
United States v. Smith,
18 U.S. (5 Wheat) 153 (1820) ........................................................................................... 16
United States v. Windsor,
570 U.S. 744 (2013) .................................................................................................... 28, 29
Williamson v. Lee Optical of Okla., Inc.,
348 U.S. 483, 491 (1995) .................................................................................................. 28
SECOND CIRCUIT
Filartiga v. Pena–Irala,
630 F.2d 876 (2d Cir.1980)............................................................................................... 10
Kadic v. Karadzic,
70 F.3d 232 (2d Cir. 1995)................................................................................................ 18
Kiobel v. Royal Dutch Petroleum Co.,
621 F.3d 111 (2d Cir. 2010)............................................................................................ 7, 8
Velez v. Sanchez,
693 F.3d 308 (2d Cir. 2012).............................................................................................. 10
FIFTH CIRCUIT
United States v. Jobe,
101 F.3d 1046 (5th Cir. 1996) .......................................................................................... 18
vi
SIXTH CIRCUIT
Demjanjuk v. Petrovsky,
776 F.2d 571 (6th Cir. 1985) ............................................................................................ 22
Taveras v. Taveraz,
477 F.3d 767 (6th Cir. 2007) ...................................................................................... 11, 16
NINTH CIRCUIT
Doe I v. Unocal Corp.,
395 F.3d 932 (9th Cir. 2002) ............................................................................................ 18
Fonda v. Gray,
707 F.2d 435 (9th Cir. 1983) ............................................................................................ 18
George v. Pacific–CSC Work Furlough,
91 F.3d 1227 (9th Cir.1996) ............................................................................................. 18
In re Estate of Ferdinand E. Marcos Human Rights Litig.,
978 F.2d 493 (9th Cir. 1992) ............................................................................................ 22
In re Estate of Marcos Human Rights Litigation,
25 F.3d 1467, 1475 (9th Cir. 1994) .................................................................................... 6
Native Village of Kivalina v. ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012) ...................................................................................... 22, 25
Penilla v. City of Huntington Park,
115 F.3d 707 (9th Cir. 1997) ............................................................................................ 32
Sarei v. Rio Tinto, PLC,
671 F.3d 736 (9th Cir. 2011) ............................................................................................ 16
United States v. Boone,
951 F.2d 1526 (9th Cir. 1991) .......................................................................................... 19
ELEVENTH CIRCUIT
Baloco v. Drummond Co.,
640 F.3d 1338 (11th Cir. 2011) ........................................................................................ 16
vii
DISTRICT COURTS
Aragon v. Che Ku,
277 F. Supp. 3d 1055 (D. Minn. 2017) ............................................................................... 9
Beanal v. Freeport-McMoRan, Inc.,
969 F.Supp. 362 (E.D.La. 1997) ................................................................................. 13, 18
Doe v. Unocal Corp.,
963 F. Supp. 880 (C.D. Cal. 1997) ................................................................................... 18
Forti v. Suarez-Mason,
694 F. Supp. 707 (N.D. Cal. 1988) ................................................................................... 11
Juliana v. United States,
217 F. Supp.3d 1224 (D. Or. 2016) ...................................................................... 28, 31, 32
INTERNATIONAL COURTS
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica),
Judgment, 2015 I.C.J. Rep. 665 (Dec. 16, 2015) ...................................................................... 14
Corfu Channel (United Kingdom v. Albania v. Alb.), Judgment, 1949 I.C.J. 4 (Apr. 9, 1949) .... 15
Gabcikovo-Nagymaros Project (Hungary-Slovakia), Judgment, 1997 I.C.J. 7 (Sept. 25, 1997) . 14
Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8, 1996)
................................................................................................................................................... 14
Nicaragua v. United States, 1986 I.C.J. 14 (June 27, 1986) ......................................................... 11
Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. 14 ................................... 14
INTERNATIONAL SOURCES
1992 U.N. Framework Convention on Climate Change, 31 I.L.M. 851 (1992) ........................... 13
Convention on Biological Diversity, June 5, 1992, art. 3, 31 I.L.M. 822 (1992) ......................... 13
ILC Draft Articles, Commentary to Art. 2, (Sept. 7, 2011) .......................................................... 17
Lac Lanoux (Spain v. France), 12 R.I.A.A. 281 (1957) ............................................................... 15
viii
Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 13,
2015, in Rep. of the Conference of the Parties on the Twenty-First Session, U.N. Doc.
FCCC/CP/2015/10/Add.1 (2016) .............................................................................................. 14
Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1965 (1941) ................................ 6, 11, 12, 22
U.N. Conference on Environment and Development, June 3-14, 1992, Rio de Janeiro, Braz., Rio
Declaration on Environment and Development, 3, U.N. Doc. A/CONF.151/26/REV. 1
(VOL.I) (1992) .......................................................................................................................... 12
U.N. Conference on the Human Environment, Stockholm, June 5-16, 1972, Declaration of the
United Nations Conference on the Human Environment, 5, U.N. Doc A/CONF.48/14/Rev. 1
(June 16, 1972) ...................................................................................................................... 8, 12
U.N. Convention on the Law of the Sea, Dec. 10, 1982, art. 194(2), 21 I.L.M. 1261 .................. 13
U.N. General Assembly Resolution 2995 (XXVII), Co-operation between States in the field of
the environment (Dec. 15, 1972) ............................................................................................... 15
U.N. General Assembly Resolution 3281 (XXIX), Charter of Economic Rights and Duties of
States, A/RES/29/3281 (December 12, 1974) ........................................................................... 15
SECONDARY SOURCES
Erin L. Deady, Why the Law of Climate Change Matters: From Paris to A Local Government
Near You, Fla. B.J., November 2017 ........................................................................................ 13
Frédéric Gilles Sourgens, Climate Commons Law: The Transformative Force of the Paris
Agreement, 50 N.Y.U. J. Int'l L. & Pol. 885 (2018) ................................................................. 14
Michael J. Robinson-Dorn, The Trail Smelter: Is What's Past Prologue? EPA Blazes a New Trail
for CERCLA, 14 N.Y.U. Envt’l. L.J. 233, 251–53 (2006) .......................................................... 7
Restatement (Third) of Foreign Relations Law of the United States (1987) .................... 10, 11, 17
Shawkat Alam, The United Nations’ Approach to Trade, the Environment and Sustainable
Development, 12 ILSA J. Int’l & Comparative Law, 606 (2006) ............................................. 12
1
STATEMENT OF JURISDICTION
This case arises under The Alien Tort Statute, 28 U.S.C. § 1350 and the Constitution of the
United States. The Alien Tort Statute grants federal district courts jurisdiction over “any civil
action by an alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350 (2017). District Courts also have original jurisdiction over all
civil actions that arise under the Constitution. § 1331. Appellant’s filed a timely appeal from a
final decision of a district court of the United States. Therefore, this Court of Appeals has proper
jurisdiction over the case. § 1291.
STATEMENT OF ISSUES
I. Whether an Alien Tort Statute claim can be brought against a domestic corporation
when the language of the Alien Tort Statute does not bar such a claim and the Law
of Nations and international treaties allow for such claims to be brought.
II. Whether the Trail Smelter Principle, holding that emissions into the environment
in one nation’s territory must not be allowed to cause substantial harm in another
nation’s territory, is a recognized principle of customary international law
enforceable as the “Law of Nations” under the Alien Tort Statute when there is
universal consensus that action must be taken to combat the alarming condition of
the world’s environment.
III. Whether the Trail Smelter Principle imposes obligations enforceable against non-
governmental actors such as HexonGlobal when Hexon has become a state actor
after receiving support developmentally and financially from the government for
years.
IV. Whether the Trail Smelter Principle is displaced by the United States Clean Air Act
when the Trail Smelter Principle is a recognized customary international law
principle and the Clean Air Act does not directly speak to the issue at hand.
V. Whether failure to protect the global atmospheric climate system is protected under
the Fifth Amendment substantive Due Process Clause when the right to a healthy
and stable climate system is a fundamental right and this right has been disrupted
2
by the United States government promoting the production, sale, and burning of
fossil fuels.
VI. Whether the plaintiffs’ law of nations claim under the Alien Tort Statute and public
trust doctrine claim present a non-justiciable political question when previous case
law assessing similar issues have been adjudicated and constitutional violations are
decided by the court.
STATEMENT OF THE CASE
STATEMENT OF THE FACTS
Earth’s climate depends on the fragile balance between the amount of solar radiation that
radiates off of Earth back into space and is retained in the Earth’s atmosphere. Record (“R”) at 4.
Greenhouse gases play a vital role in this balancing act. Id. Too low a quantity of greenhouse gases
trapped in the Earth’s atmosphere can lead to a decrease in the Earth’s atmospheric temperatures.
Id. Too high a quantity of greenhouse gases trapped in the Earth’s atmosphere can lead to an
increase in the Earth’s atmospheric temperatures. Id. Both carbon dioxide and methane are
considered greenhouse gases. Id. Human production, distribution, and burning of fossil fuels has
created an increase of carbon dioxide in the atmosphere. Id. Methane, mainly from natural gas
production, has also been increasing in the atmosphere. Id. These emissions, compounded by the
greenhouse gas emissions from agriculture and other industries has led to a change in the global
climate. Id. If global greenhouse gas emissions continue to rise it will likely lead to a rise in sea
level “between one-half and one meter by the end of this century.” Id.
The United States has historically been the largest single national contributor of
greenhouses gases to the environment. Id. at 5. The United States, up until recently, has not limited
the amount of fossil fuels produced, distributed, or combusted. Id. at 6. To the contrary, the United
States government has in fact promoted production and combustion of fossil fuels through agency
policies, programs, and tax incentives. Id. Although actions were taken by the United States
3
government beginning in 2009 up until 2016 to begin to regulate greenhouse gas emissions, only
a slight decrease in emissions has been seen and overall global greenhouse gas emissions
increased. Id. at 6-7. In fact, the Trump Administration has proposed reversing many of the
regulatory commitments and emission reductions planned. Id. at 7.
Both Mana and Flood are members of the Organization of Disappearing Island Nations. Id.
at 3. The Organization of Disappearing Island Nations is a not-for-profit membership organization
“devoted to protecting the interest of island nations threatened by sea-level rise.” Id. “Noah Flood
is a U.S. citizen resident of the New Union Islands, a U.S. possession.” Id.. “Apa Mana is an alien
national of the island nation of A’Na Atu.” Id. The New Union Island and A’Na Atu are located
in the East Sea and has a maximum height above sea level of less than three meters. Id. at 3-4.
Flood’s and Mana’s homes, respectively, are at less than one-half meter above sea level and as sea
level continues to rise due to climate change, their homes and the islands they reside on are soon
to be uninhabitable. Id. at 6. Both suffered seawater damage to their homes, incurring substantial
expenses to repair past damage and prevent future damage. Id.. at 5. Seawater intruded into their
drinking water wells and increasing temperatures heighten their risk to both heat stroke and
mosquito borne diseases. Id. Both also depend upon locally caught seafood as a means of
subsistence, which is impacted by ocean acidification, warming, and loss of coastal wetlands. Id.
PROCEDURAL HISTORY
The District Court for New Union Island dismissed both the Alien Tort Statute claim and
the public trust claim for failure to state a claim for relief against HexonGlobal. After the issuance
of the Order of the District Court under the Honorable Judge Romulus N. Remus on August 15,
2018, the Organization of Disappearing Island Nations, Mr. Noah Flood and Ms. Apa Mana filed
a Notice of Appeal.
4
SUMMARY OF THE ARGUMENT
The district court erred in dismissing the Alien Tort Statute claim against HexonGlobal.
According to the language of the statute, which references the law of nations, this claim is viable.
As has been ruled in U.S. courts on issues coming in under the Alien Tort Statute, in order to be
considered international law, something has to be widely accepted and specific. Under the Trail
Smelter Principle, the United States’ action in knowingly allowing HexonGlobal to affect the
environment of another country is punishable. The principle has been adopted in multiple
international treaties as well as within countries’ own laws. There was nothing preventing Mana
from suing a corporation, as the Trail Smelter company was private, and the language of the statute
does not bar it. Therefore, the claim should be allowed.
The Trail Smelter Principle qualifies as a “law of nations” under the Alien Tort Statute.
The Supreme Court in Sosa provided that for an international principle to be considered a “law of
nations”, the principle must be “specific, universal, and obligatory.” The Principle is universally
accepted and obligatory, as evidenced by multilateral treaties and decisions by international courts
and arbitration tribunals subsequent to Trail Smelter. Additionally, the Principle is definable: state
actors who emit transboundary pollution must exercise due diligence to ensure that neighboring
states are not significantly harmed by the pollution. The Trail Smelter Principle is a “law of
nations” because it qualifies under the definition set out in Sosa.
The Trail Smelter principle provides enforceable obligations against non-governmental
entities who are state actors. Due to the symbiotic relationship between HexonGlobal and the
government of the United States, HexonGlobal has become a state actor. In doing so, they have
not exercised their due diligence to ensure the massive amount of pollution they are emitting
5
worldwide does not cause significant harm to their neighbors; in fact, they are making their
neighbors land inhabitable, which was also the case in Trail Smelter.
The lower court erred in determining the Trail Smelter Principle is displaced by the Clean
Air Act. The Trail Smelter Principle constitutes a matter having international implications and is
a uniquely federal interest. Therefore, the Trail Smelter Principle is considered federal common
law. Nowhere within the Clean Air Act did Congress speak directly to the issue being raised in
this case. Mana’s claim is that HexonGlobal’s fossil fuel related business activities, namely fossil
fuel production and sales activities, constitutes a violation of the Law of Nations, specifically a
violation of the Trail Smelter Principle. The Clean Air Act does not regulate the production and
sales of fossil fuels, therefore the federal common law claim in this case is not displaced.
The lower court erred in dismissing Flood’s Due Process claim. The right to a healthy and
stable climate system is a fundamental right protected by the Due Process Clause of the Fifth
Amendment. Since a fundamental right is being infringed the Court must review the government’s
action with strict scrutiny. The strict scrutiny test upholds a government action only if the
government action is narrowly tailored to achieve a compelling government interest. The
government action of promoting the production and combustion of fossil fuels through tax
subsidies, leasing public lands, and developing fossil fuel plants is not narrowly tailored to a
compelling government interest; therefore Flood’s due process claim should prevail.
The plaintiffs’ claims under the Alien Tort Statute and public trust doctrine present
justiciable issues. They are not merely political questions solely because the claims address things
that have political elements. Courts have identified criteria in order to identify political questions;
these claims do not satisfy the criteria. Under the Alien Tort Statute, various courts have heard
claims regarding harms originating with private corporations. Under the public trust doctrine,
6
courts have heard cases, especially recently, having to do with plaintiffs experiencing harms
because of environmental changes. There is no reason to exclude these claims from the court
system just because climate change is a political issue. On the contrary, many courts have heard
claims similar to both of these in recent years, showing that these issues are justiciable. Therefore,
the lower court’s dismissal of these claims should be reversed and remanded.
ARGUMENT
I. AN ALIEN TORT STATUTE CLAIM MAY BE BROUGHT AGAINST A
DOMESTIC CORPORATION BECAUSE MULTIPLE INTERNATIONAL
TREATIES AND THE LAW OF NATIONS HAVE RECOGNIZED CLIMATE-
CHANGE RELATED HARMS, AND THE LANGUAGE OF THE ALIEN TORT
STATUTE DOES NOT BAR CLAIMS AGAINST CORPORATIONS.
This court should overturn the district court’s ruling that A’na Atu does not have a claim
against HexonGlobal under the Alien Tort Statute. The statute simply reads, “[t]he district courts
shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation
of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350 (2017). “Actionable
violations of international law must be of a norm that is specific, universal, and obligatory.” In re
Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994).
In 1938 and 1941, Canada and the United States entered into arbitration over pollution that
was coming from British Columbia over the U.S.-Canada border. Part of Washington state was
experiencing detrimental effects, including poor air quality, from the pollution. See Trail Smelter
Arbitration (U.S. v. Can.), 3 R.I.A.A. 1965 (1941). An international arbitral panel held that these
harms were a violation of international principles of liability. Id. The company was allowed to
continue running if it adopted a stricter regime in which the pollution would comply with
international standards, and the U.S. could recover for future damages if the company did not
7
comply or if landowners in the United States experienced harms in the future. See Michael J.
Robinson-Dorn, The Trail Smelter: Is What's Past Prologue? EPA Blazes a New Trail for
CERCLA, 14 N.Y.U. Envt’l. L.J. 233 (2006). “[U]nder principles of international law, as well as
the law of the United States, no State has the right to use or permit the use of its territory in such
a manner as to cause injury by fumes in or to the territory of another or the properties or persons
therein, when the case is of serious consequence and the injury is established by clear and
convincing evidence.” Trail Smelter, 3 R.I.A.A. at 1965. This is known as the Trail Smelter
Principle.
The district court in the present case ruled that a private corporation could not be sued
under the Alien Tort Statute, citing Kiobel v. Royal Dutch Petroleum Co. In that case, the Second
Circuit wrote, “No corporation has ever been subject to any form of liability (whether civil,
criminal, or otherwise) under the customary international law of human rights. Rather, sources of
customary international law have, on several occasions, explicitly rejected the idea of corporate
liability.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148–49 (2d Cir. 2010), aff'd, 569
U.S. 108, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013). The Supreme Court affirmed this reasoning
and ruled that claims in international tort must be claims that arise under federal common law.
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013).
The Court in Sosa v. Alvarez-Machain wrote that although Congress has not meaningfully
changed the Alien Tort Statute since its enactment, it should be read within the context of the
“norms of international character accepted by the civilized world and defined with a specificity
comparable to the features of the 18th century paradigms we have recognized.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 725 (2004). The Court in that case mentions that one of the main three
“torts” of the time was “violation of safe conducts.” See id.
8
However, there are many international norms that would encompass the present issue. The
Court in Kiobel ruled that no corporation has ever been liable in any way under the customary
international law of human rights. See Kiobel, 621 F.3d 111. This may be true in the courts, but in
the influential Trail Smelter arbitration between Canada and the United States, a private
corporation was liable under principles of international law. Since then, the idea has been adopted
by multiple international treaties including the Declaration of the 1972 Stockholm Conference on
the Human Environment as well as the Paris Agreement. U.N. Conference on the Human
Environment, Stockholm, June 5-16, 1972, Declaration of the United Nations Conference on the
Human Environment, 5, U.N. Doc A/CONF.48/14/Rev. 1 (June 16, 1972). When a principle has
been adopted by multiple international agreements spanning multiple decades, it should be
considered “universal” in international law. It is a specific issue having to do with the actions of
one nation harming the land or occupants of another.
Although the Court in Sosa denied the claim under the Alien Tort Act in that case, the
mention of “violation of safe conducts” as an acceptable tort under the statute should encompass
this situation. Also, the fact that Congress has had the opportunity to amend the language of the
Alien Tort Statute but has not should not be overlooked. The United States has allowed the sole
surviving oil producing corporation, HexonGlobal, to continue running its fossil fuel related
business while fully aware of the dangers it imposes and its contribution to climate change. This
has affected the foreign nation of A’na Atu in many senses of the word, including the possibility
of the entire nation being under water as a result. This is clearly a “violation of safe conducts.”
Importantly, the text of the statute does nothing to bar liability of corporations under it.
With the major arbitral decision regarding Trail Smelter, it is clear that corporations can be and
are held accountable under international norms of liability. Any decisions to the contrary are not
9
looking to the text of the statute. Although not precedent, a U.S. District Court ruled that under the
Alien Tort Statute, “[w]hether Plaintiffs ultimately prove that the alleged conduct is sufficiently
egregious to violate this international norm is not the issue presented here. A plaintiff need not
prove its case at the pleadings stage. Allowing this litigation to proceed will provide the parties
the opportunity to develop the record on this issue.” Aragon v. Che Ku, 277 F. Supp. 3d 1055,
1069 (D. Minn. 2017). Because of the text of the statute, the evidence of international norms
encompassing this specific issue, and the great harms being suffered internationally, we ask that
this court overturn the district court’s ruling that Mana failed to state a claim for relief under the
Alien Tort Statute.
II. THE TRAIL SMELTER PRINCIPLE IS A PRINCIPLE OF CUSTOMARY
INTERNATIONAL LAW, WHICH SHOULD BE RECOGNIZED AS A LAW OF
NATIONS UNDER THE ALIEN TORT STATUTE.
In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that “federal
courts, exercising their authority in limited circumstances to make federal common law, may create
causes of action that aliens may assert under the ATS.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386,
1409 (2018) (Thomas, J., concurring). Although the Court’s decision in Erie R. Co. v. Tompkins,
304 U.S. 64 (1938) eliminated general federal common law, “federal courts could still exercise
their authority to create so-called ‘federal common law’ for those ‘few and restricted’ areas ‘in
which Congress has given the courts the power to develop substantive law.’” Jesner, 138 S. Ct. at
1409 (citation omitted). The Sosa Court interpreted the ATS as being one of the few restricted
areas where federal courts are still authorized to develop common law.
Justice Thomas, concurring in Jesner, explained the Court’s ruling in Sosa as:
As a result, Sosa held that federal courts, subject to certain
conditions, may “recognize private causes of action [under the ATS]
for certain torts in violation of the law of nations.” But before doing
10
so, Sosa stressed, courts should follow a two-step process. First, they
should ensure that the contemplated cause of action reflects an
international law norm that is “‘specific, universal and obligatory.’”
Second, if a suitable norm is identified, federal courts should decide
whether there is any other reason to limit “the availability of relief.”
Jesner, 138 S. Ct. at 1409 (Thomas, J., concurring) (citations omitted).
A. The Trail Smelter Principle is an international norm which is universal and
obligatory.
These sources of law, the Court explained, are “the customs and usages of civilized
nations.” Sosa, 542 U.S. at 734 (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)).
Customary international law is defined as that which is “the general and consistent practice
of states that is followed out of a sense of legal obligation.” Restatement (Third) of Foreign
Relations Law of the United States §§ 102, 103 (1987). “To decide whether conduct violates the
law of nations—referred to as customary international law—a court should first determine whether
a rule is ‘well-established’ and ‘universally recognized’ as a ‘norm [ ] of international law.’” Velez
v. Sanchez, 693 F.3d 308, 316 (2d Cir. 2012) (quoting Filartiga v. Pena–Irala, 630 F.2d 876, 888
(2d Cir.1980)).
Modern ATS jurisprudence plainly establishes that violations of international norms
unmentioned in Sosa can provide grounds for ATS causes of action. As recognized by the Sixth
Circuit, “[t]he ATS holds great potential to bring justice to certain serious violations of human,
civil, and environmental rights in a federal forum.” Taveras v. Taveraz, 477 F.3d 767, 771 (6th
Cir. 2007) (emphasis added). While norms must be “universal and obligatory” to be actionable,
Sosa, 542 U.S. at 732, unanimous conformity with or recognition of a norm is not required. To
qualify as an international norm, it is “sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent with a given rule should
11
generally have been treated as breaches of that rule.” Nicaragua v. United States, 1986 I.C.J. 14,
96 (June 27, 1986); Forti v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) (“[P]laintiffs need
not establish unanimity among nations. Rather, they must show a general recognition among
states” of prohibition of a specific practice.).
A universal and obligatory international norm is violated when States, or State actors, fail
to prevent activities within their jurisdiction or control from causing significant transboundary
environmental harm. A state’s failure to prevent pollution originating under its jurisdiction or
control from causing significant injury to persons in another state is a violation of international
law. Restatement (Third) of Foreign Relations Law, § 601.
Preventing transboundary environmental harm is a specific obligation and a binding norm
of customary international law. This has been clear at least since the 1941 decision in Trail Smelter
Arbitration (U.S. v. Can.), where a tribunal heard the U.S. Government’s claims that a privately-
owned Canadian smelter caused significant cross-border pollution and recognized liability, and
enjoined the smelter from producing further harmful pollution. 3 R.I.A.A. at 1965–66. The rule,
known as the Trail Smelter Principle, was stated in the Arbitration as:
Under the principles of international law, as well as the law of the
United States, no State has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein, when the
case is of serious consequence and the injury is established by clear
and convincing evidence.
Id. at 1965.1 This principle has been repeatedly reaffirmed by near-universally adopted
international declarations and treaties, the International Court of Justice, international arbitral
tribunals, and other state practice and is now a principle of customary international law.
1 The Tribunal relied in part on “international decisions” and “a great number” of
pronouncements by leading authorities dating back at least as far as 1928, while also finding
basis for much of the principle in United States’ law. Id. at 1963–65.
12
For example, the norm requiring the prevention of transboundary environmental harm has
been recognized and codified in a variety of multilateral declarations and treaties. In its most direct
treatment of the issue, the world community affirmed in Principle 2 of the Rio Declaration on
Environment and Development (1992), and Principle 21 of the Stockholm Declaration on the
Human Environment (1972) that “[S]tates have . . . the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States . . . ” See
Stockholm Declaration, 5, U.N. Doc A/CONF.48/14/Rev. 1; U.N. Conference on Environment
and Development, June 3-14, 1992, Rio de Janeiro, Braz., Rio Declaration on Environment and
Development, 3, U.N. Doc. A/CONF.151/26/REV. 1 (VOL.I) (1992). Both the Rio and Stockholm
Declarations were unanimously adopted at the conferences at which they were proposed—the Rio
Declaration by 178 nations, including the United States, and the Stockholm Declaration by 113
nations, again including the United States. Shawkat Alam, The United Nations’ Approach to
Trade, the Environment and Sustainable Development, 12 ILSA J. Int’l & Comparative Law, 606,
612, 621 (2006).
In Beanal v. Freeport-McMoRan, Inc., the district court found this principle is “the
cornerstone of international environmental law,” and approvingly cited the conclusion that it is
“sufficiently substantive at this time to be capable of establishing the basis of an international cause
of action; that is to say, to give rise to an international customary legal obligation the violation of
which would give rise to a legal remedy.” 969 F.Supp. 362, 384 (E.D.La. 1997), aff'd, 197 F.3d
161 (5th Cir. 1999) (citation omitted).
This international law obligation has been reiterated by multilateral treaties. For instance,
the Convention on Biological Diversity, which has 193 State Parties, requires that “States
have…the responsibility to ensure that activities within their jurisdiction do not cause damage to
13
the environment of other States…” Convention on Biological Diversity, June 5, 1992, art. 3, 31
I.L.M. 822 (1992) (entered into force Dec. 29, 1993) (signed by the United States on June 4, 1993;
status available at: http://treaties.un.org/pages/ParticipationStatus.aspx). Similarly, 162 State
Parties affirmed in the UN Convention on the Law of the Sea that: States shall take all measures
necessary to ensure that activities under their jurisdiction or control are so conducted as not to
cause damage by pollution to other States and their environment, and that pollution arising from
incidents or activities under their jurisdiction or control does not spread beyond the areas where
they exercise sovereign rights in accordance with this Convention. U.N. Convention on the Law of
the Sea, Dec. 10, 1982, art. 194(2), 21 I.L.M. 1261 (entered into force Nov. 16, 1994) (status
available at: http://treaties.un.org/pages/ParticipationStatus.aspx). The United States, along with
195 other State Parties, acknowledged the same responsibility in the 1992 U.N. Framework
Convention on Climate Change as a component of the principles of international law. 31 I.L.M.
851 (1992) (entered into force Mar. 21, 1994) (status available at:
http://treaties.un.org/pages/ParticipationStatus.aspx).
The norm was most recently codified in the Paris Climate Agreement. The Agreement is
an international one which has been ratified by 149 countries, including the United States. Erin L.
Deady, Why the Law of Climate Change Matters: From Paris to A Local Government Near You,
Fla. B.J., November 2017, at 54. Those who have ratified the Agreement have done so aiming to
reduce “greenhouse gas emissions, with the explicit goal of keeping the rise of global temperature
levels to well below two degrees Celsius pre-industrial levels.” Frédéric Gilles Sourgens, Climate
Commons Law: The Transformative Force of the Paris Agreement, 50 N.Y.U. J. Int'l L. & Pol.
885, 888 (2018); see Paris Agreement to the United Nations Framework Convention on Climate
Change, Dec. 13, 2015, in Rep. of the Conference of the Parties on the Twenty-First Session, U.N.
14
Doc. FCCC/CP/2015/10/Add.1, annex (2016). The ratification of this Agreement symbolizes all
agreeing parties will work to not use their resources to pollute the environment so as to cause
irreversible damage to the property of their neighbors.
International courts have approved of the principle. The International Court of Justice (ICJ)
affirmed that there exists in the “corpus of international law relating to the environment” a “general
obligation of States to ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control.” Pulp Mills on the River Uruguay
(Argentina v. Uruguay), 2010 I.C.J. 14, 68, ¶ 93 (citing Legality of Threat or Use of Nuclear
Weapons, Advisory Opinion, 1996 I.C.J. 226, 241–42, ¶ 29 (July 8, 1996)); see also Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica),
Judgment, 2015 I.C.J. Rep. 665 (Dec. 16, 2015) (adopting the Trail Smelter Principle, finding that
there was a general State duty “to ensure that in its territory conditions prevail which guarantee
the safety of persons and property,” but finding that the plaintiff had failed to establish a significant
injury by clear and convincing evidence); Gabcikovo-Nagymaros Project (Hungary-Slovakia),
Judgment, 1997 I.C.J. 7, 41, ¶53 (Sept. 25, 1997) (quoting Nuclear Weapons, 1996 I.C.J. at 241–
42, ¶29) (holding that “the environment is not an abstraction but represents the living space, the
quality of life and the very health of human beings, including generations unborn,” and recognizing
that the obligation “of States to ensure that activities within their jurisdiction and control respect
the environment of other States or of areas beyond national control is now part of the corpus of
international law.”); Corfu Channel (United Kingdom v. Albania v. Alb.), Judgment, 1949 I.C.J. 4,
22 (Apr. 9, 1949) (affirming based on “general and well-recognized principles…every State's
15
obligation not to allow knowingly its territory to be used for acts contrary to the rights of other
States”).
International arbitral tribunals have concluded consistently with the Trail Smelter tribunal
post-1941. In Gut Dam Claims (Can. v. U.S.), the Tribunal held Canada was liable for U.S.
property damage caused by rising water levels resulting from a dam built by the country in between
different islands owned by the U.S. and Canada. 8 I.L.M. 118 (1969); see also Lac Lanoux (Spain
v. France), 12 R.I.A.A. 281 (1957), reprinted in 53 Am. J. Int'l L. 156, 169–70 (1959) (holding
that states have a duty to cooperate and account for the interests of other states).
Other state procedures have followed the requirements inherent in this international law
norm. Plaintiffs are aware of no State which claims the right to use its territory, or allow its territory
to be used, in a way which produces significant transboundary environmental harm. Rather,
nations have collectively “emphasized” that “States must not produce significant harmful effects
in zones situated outside their national jurisdiction.” U.N. General Assembly Resolution 2995
(XXVII), Co-operation between States in the field of the environment (Dec. 15, 1972); see also
U.N. General Assembly Resolution 3281 (XXIX), Charter of Economic Rights and Duties of
States, A/RES/29/3281, art. 30 (December 12, 1974) (“All states have the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the environment of other
states.”). This obligation has become the basis for bilateral agreements between States to cooperate
in the prevention of transboundary environmental harms.
16
B. The norm is definable: a state or state actor violates international law when it
fails to exercise due diligence and the transboundary environmental harm is
significant.
Plaintiffs do not contend that every transboundary environmental harm violates
international law. Rather than an absolute duty to prevent any transboundary environmental harm,
only the prevention of “significant” harms are required by international law.
Even though a norm must be “specific” or “definable”, Sosa, 542 U.S. at 732, specifically
prohibited conduct will provide a cause of action even if the broader norm’s contours are not
precisely defined. For instance, Sosa cited to United States v. Smith, 18 U.S. (5 Wheat) 153 (1820)
to demonstrate the level of specificity with which the law of nations defined piracy. See Sosa, 542
U.S. at 732. In Smith, the Supreme Court expressly acknowledged how there were many
definitions of piracy, but it also held that in spite of the diversity, there was universal recognition
of certain core aspects of piracy, for instance, that robbery or forcible depredations upon the sea
constituted piracy. Smith, 18 U.S. at 160–62. This approach is consistent with the Sosa Court’s
approach to the conduct at issue there: instead of focusing on whether arbitrary detention was
prohibited in general, the Court focused on whether such a prohibition would reach “a relatively
brief detention in excess of positive authority.” 542 U.S. at 737.
Post-Sosa ATS authority is consistent with the Smith approach that considers whether the
conduct alleged violates the international law norm at issue, rather than whether the norm has a
single, universally identifiable definition. See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir.
2011) (finding that a plaintiff could adequately state a claim where they alleged those who intend
to commit genocide by intending to wipe out a distinct group of people); Taveras, 477 F.3d at
781–82 (addressing viability of cross-border child abduction claim by considering whether specific
17
conduct alleged violated international law); Baloco v. Drummond Co., 640 F.3d 1338 (11th Cir.
2011) (finding that conduct alleged violates international law).
Significant harms is a definite term, which has been defined by many international sources.
As the Restatement, the ICJ, the International Law Commission, and the UN General Assembly
have all found, the international norm at issue requires “significant” transboundary harm. This
“significance” threshold “excludes minor incidents causing minimal damage.” Restatement
(Third) §601, comment c. The International Law Commission, drawing on a survey of national
and international invocations of the term “significant” as a legal threshold governing
transboundary environmental effects, concluded that the term requires that the harm “lead to a real
detrimental effect” capable of measurement by “factual and objective standards” on matters such
as “human health, industry, property, environment or agriculture in other
States.” ILC Draft Articles, Commentary to Art. 2, (Sept. 7, 2011), http://untreaty.un.org/ilc/texts
/instruments/english/commentaries/9_7_2001.pdf.10. The Espoo Convention, in requiring an
environmental impact assessment where proposed activities are likely to cause “significant adverse
transboundary impact,” further clarified the meaning of “significant” in international law by
identifying a list of activities that inherently carry the risk of such significant adverse impact, and
a list of factors to consider for all other activities. Id.
Regardless of where the outer limits of the threshold may lie, the Sosa standard is met in
this case. Any significance standard chosen by the court would be met by the devastating and
widespread impact on the lives, health, subsistence and property of plaintiff and thousands of
others who call Ana A’tu home.
18
III. THE TRAIL SMELTER PRINCIPLE IMPOSES A DUE DILIGENCE
REQUIREMENT ON HEXONGLOBAL, WHO IS A STATE ACTOR.
As stated, courts have traditionally held that customary international law principles are
enforceable obligations against non-governmental actors under the ATS. Private actors can be held
liable under the ATS if the actors are violating norms such as genocide, war crimes, piracy, and
slavery. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). Otherwise, private actors can be held liable
if they act under color of under the “color of law” in accordance with 42 U.S.C. § 1983 (2017).
Beanal, 969 F. Supp. at 380.
There are a few different ways which private actors can act under color of law. A private
individual acts under color of law within the meaning of § 1983 when he acts together with state
officials or with significant state aid. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
The Supreme Court has developed four separate tests to assess “color of law” claims, which are:
public function, symbiotic relationship, nexus, and joint action. Doe v. Unocal Corp., 963 F. Supp.
880, 890 (C.D. Cal. 1997), aff'd in part, Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002).The
Ninth Circuit explained the Joint Action test as follows:
Under the joint action approach, private actors can be state actors if
they are ‘willful participant[s] in joint action with the state or its
agents.’ Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66
L.Ed.2d 185 [ ] (1980). An agreement between government and a
private party can create joint action. See, e.g., Fonda v. Gray, 707
F.2d 435, 437 (9th Cir. 1983) (“A private party may be considered
to have acted under color of state law when it engages in a
conspiracy or acts in concert with state agents to deprive one's
constitutional rights.”).
George v. Pacific–CSC Work Furlough, 91 F.3d 1227, 1231 (9th Cir.1996), cert. denied, 519 U.S.
1081 (1997).
In order to establish conspiracy, government must prove existence of agreement between
two or more people to violate law of United States, that one of the conspirators committed overt
19
act in furtherance of that agreement, and that defendants knew of conspiracy and voluntarily
participated in it. United States v. Jobe, 101 F.3d 1046, 1063 (5th Cir. 1996), cert. denied 549 U.S.
987 (1997). The agreement element of conspiracies “need not be explicit”; instead, ”implicit
agreement may be inferred from facts and circumstances.” United States v. Boone, 951 F.2d 1526,
1543 (9th Cir. 1991).
In the present case, defendant HexonGlobal’s actions are wreaking havoc upon worldwide
communities. The worldwide fossil fuel sales of Hexon constitute nine percent of global fossil fuel
related emissions. R. at 5. The products sold by Hexon and its predecessors account historically
for 32% of the United States cumulative fossil fuel-related greenhouse gas emissions. Hexon has
been aware that the sale and use of their fossil fuels would result in “substantial harmful global
climate change and sea level rise” since the 1970s. R. at 5. In short, Hexon is a dynastic corporation
built at the expense of the world’s destruction, its environment, and if action is not taken soon,
many of the world’s communities.
In addition, the United States is “historically, the largest single national contributor to
emissions of greenhouse gases.” R. at 5. The U.S. is historically responsible for twenty percent of
the human-caused greenhouse emissions. Until recently, the U.S. promoted the production and
combustion of fossil fuels through programs such as “tax subsidies for fossil fuel production,”
public land and sea leases “for coal, oil, and gas production,” and creating the interstate highway
system. R. at 6.
The correlation between the United States programs promoting the use of fossil fuels and
Hexon’s success through selling fossil fuels represents circumstantial evidence of a conspiracy in
between Hexon and the government. The overt act is that the government and Hexon have profited
from the sale and use of fossil fuels to the detriment of their worldwide neighbors. Hexon has been
20
aware that the fuels would result in “substantial harmful global climate change and sea level rise”
since the 1970s. The United States would likewise have been aware of the effect of greenhouse
gas emissions, as evidenced by the Clean Air which was enacted in 1963. 42 U.S.C. § 7401 (2017).
The United States has attempted to withdraw from the conspiracy over the past decade.
Withdrawal from a conspiracy requires a participant to disavow or defeat the purpose of a
conspiracy. Hyde v. United States, 225 U.S. 347 (1912). In recognition of the effects of greenhouse
gas emissions, the United States has acknowledged climate change and attempted to reduce its
own carbon footprint through various regulations, climate agreements, and other preventive
measures. R. 6-7. That the United States also agrees that the customary international law norm
from Trail Smelter provides obligations enforceable upon HexonGlobal is further evidence of the
United States attempt to break away from the conspiracy.
Hexon, on the other hand, is in no way attempting to stop its massive contributions to the
problem of climate change. While Hexon represents nearly 6.4% of historical greenhouse gas
emissions,2 Hexon’s sales now represent 9% of global fossil fuel-related emissions. R. 5-6. This
is objective proof that Hexon has no intention of stopping, but is instead ramping up production
and setting up refineries throughout the world. R. at 5.
Through the conspiracy which the United States is attempting to disavow, Hexon has
become a state actor pursuant to the Joint Action test. Under the Trail Smelter Principle, a state
actor violates international law when it fails to exercise due diligence and the transboundary
environmental harm is significant. Hexon is not exercising due diligence in continuing to create
and distribute fossil fuels, but has been distributing the fossil fuels for nearly a half-century when
2 HexonGlobal’s historical GHS emissions are 32% of American’s historical GHG emissions.
America is responsible for 20% of the historical GHG emissions worldwide. This means that
HexonGlobal is responsible for 6.4% of the world’s historical GHG emissions.
22
air and water in their ambient or interstate aspects, there is a federal common law.” Illinois v. City
of Milwaukee, 406 U.S. 91, 103 (1972). Additionally, although in dicta, the Supreme Court has
stated international law is “part of our law,” which has been understood to mean federal common
law governs suits regarding international relations. First Nat’l City Bank v. Banco para el
Comercio Exterioir de Cuba, 462 U.S. 611, 623 (1983); see, e.g., In re Estate of Ferdinand E.
Marcos Human Rights Litig., 978 F.2d 493, 502 (9th Cir. 1992) (“It is . . . well settled that the law
of nations is part of federal common law.”); Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir.
1985) (“The law of the United States includes international law.”).
The Trail Smelter Principle is considered federal common law. The Trail Smelter Principle
is an international principle stating that, “emissions into the environment within the territory of
one nation must not be allowed to cause substantial harm in the territory of other nations.” 3
U.N.R.I.A.A. 1965 (1941). The Trail Smelter Principle constitutes a matter having international
implications and is a uniquely federal interest. Adhering to Milwaukee I, the international principle
regarding ambient air discussed in the Trail Smelter Principle would come under federal common
law.
B. The Clean Air Act does not displace the Trail Smelter Principle because the
Clean Air Act does not directly speak to the issue of the production and sale of
fossil fuels, which is the claim being brought under the Trail Smelter Principle.
“The test for whether congressional legislation excludes the declaration of federal common
law is simply whether the statute ‘speaks directly to the question’ at issue.” Am. Elec. Power Co.
v. Connecticut, 564 U.S. 410, 424 (2011). Having the question be answered by generally applicable
laws is not enough. Instead, whether the federal common law is displaced is an issue-specific
inquiry. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856 (9th Cir. 2012). The
23
national legislative power encompasses environmental protection and allows for federal courts to
fill in “statutory interstices.” Am. Elec. Power Co., 564 U.S. at 421.
The first of the four purposes stated at the outset of the Clean Air Act is “to protect and
enhance the quality of the Nation’s air resources so as to promote the public health and welfare
and the productive capacity of its populations.” 42 U.S.C. § 7401(b)(1) (emphasis added). The
Clean Air Act is primarily designed as a harm-based statute that considers the impacts of various
domestic air pollution sources on surrounding domestic communities and sets national ambient air
quality standards and state implementation plans to manage the air quality for U.S. citizens. 42
U.S.C. § 7409–7410. As noted in the purpose of the Act and by the standards and plans the Act
strives to implement, The Clean Air Act is focused on managing the air resources within the United
States.
The Clean Air Act mentions international air pollution only once in discussing
“endangerment of public health or welfare in foreign countries from pollution emitted in the United
States.” 42 U.S.C. § 7415 (2017). Section 7415 of the Clean Air Act is focused on ensuring air
pollution emitted in the United States does not “cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or welfare in a foreign country.” 42 U.S.C. §
7415(a). Another section of the Clean Air Act mentions international cooperation regarding air
emissions stating the President “shall undertake to enter into international agreements to foster
cooperative research which complements studies . . . to develop standards and regulations which
protect the stratosphere . . .” 42 U.S.C. § 7617p(a) (2017). However, neither of these sections
provide for any actionable mechanisms to be taken to prevent international air pollution.
Nowhere within the Clean Air Act did Congress speak directly to the issue being raised in
this case. Mana’s claim is that HexonGlobal’s fossil fuel related business activities, namely fossil
24
fuel production and sales activities, constitutes a violation of the Law of Nations. The Clean Air
Act is focused on domestic air emissions. When the Clean Air Act does briefly mention impacts
those domestic emissions may have on international nations, it provides no discussion of
production and sale of fossil fuels and the impact that activity has on foreign nations. The Clean
Air Act does not regulate the production and sales of fossil fuels, therefore the claim in this case
is not displaced.
C. The claim brought in this case, regarding the production and sale of fossil fuels,
is distinct from the claims brought in AEP and Kivalina because those cases were
about the federal common law of public nuisance being displaced by the Clean
Air Act in regulating greenhouse gas emissions.
In American Electric Power Company v. Connecticut, the Court held “[t]he Clean Air Act
and the EPA actions it authorizes displace any federal common-law right to seek abatement of
carbon-dioxide emissions from fossil-fuel fired powerplants.” Am. Elec. Power Co., 564 U.S. at
424. The plaintiffs in the case, eight states and New York City along with three nonprofit land trust
groups, brought a common-law interstate public nuisance claim against five power companies. Id.
at 415. The plaintiffs sought injunctive relief, requesting the court set carbon-dioxide emission
caps for each defendant, which would be reduced annually. Id. at 415. The Court found that
Congress delegated to the EPA “the decision whether and how to regulate carbon-dioxide
emissions from powerplants,” thus this delegation replaced the federal common law claim being
brought. Id. at 426.
In justifying its holding in AEP, the Supreme Court found the Second Circuit erred in
determining federal judges may set greenhouse gas emission limitations when a law exists
empowering the EPA to set greenhouse gas limitations. Id. at 429. The Court stated federal judges
lacked “the scientific, economic and technological resources” to properly set greenhouse gas
25
limitations. Id. at 428. Additionally, the Court was concerned that if it decided this federal common
law claim the court would become a venue for “thousands or hundreds or tens” of other defendants,
which fit the description of “large contributors” of greenhouse gases. Id. at 428–29.
In Kivalina, the Ninth Circuit, adhering to AEP held the Clean Air Act displaced the
plaintiff’s claim of damages against various energy producers. Native Village of Kivalina, 696 F.3d
at 853. A small Alaskan city brought the claim against multiple oil, energy, and utility companies.
Id. The small city claimed the energy producer’s massive greenhouse gas emissions contributed to
global warming, which eroded away land thus threatening the city. Id. The plaintiff in Kivalina
was seeking damages for the harm caused from the previous emissions, rather than seeking
abatement of the emissions themselves like in AEP. Id. at 857. The Ninth Circuit stated Kivalina’s
dire circumstances of being displaced by the rising sea was an issue to be solved by the executive
and legislative branches, rather than the federal common law. Id. at 858.
Here, unlike in AEP and Kivalina, where the claim being brought was related to domestic
carbon-dioxide emissions from fossil-fuel fired powerplants, the claim is related to the production
and sales of fossil fuels. AEP’s holding is confined to the Clean Air Act displacing federal common
law with regards to a particular source of emissions. In this case, Mana is not requesting the court
to venture into scientific, economic, or technological arenas. Mana requests the court consider the
fact that one company’s fossil fuel products account for 32% of the United States cumulative fossil
fuel-related emissions. R. at 5. HexonGlobal is the only remaining oil producing corporation in
the United States. R. at 5. Therefore, the court finding for Mana would not subject the court to
“thousands or hundreds or tens” of other defendants being brought in. There is only one
HexonGlobal and the impact from the company’s production and sale of fossil fuels needs to be
halted.
26
V. THE FAILURE TO PROTECT THE GLOBAL ATMOSPHERIC CLIMATE
SYSTEM FROM DISRUPTION DUE TO THE PRODUCTION, SALE AND
BURNING OF FOSSIL FUELS IS PROTECTED UNDER THE FIFTH
AMENDMENT BECAUSE THE RIGHT TO A HEALTHY AND STABLE
CLIMATE SYSTEM IS A FUNDAMENTAL RIGHT.
The lower court erred in dismissing Flood’s due process claim. Flood successfully stated a
claim upon which relief could be granted under the Fifth Amendment to the Constitution. Flood’s
claim is based on a fundamental right, which the United States Government has deprived him of.
The Fifth Amendment of The Constitution states no citizen should be deprived of life,
liberty, or property. U.S. Const. amend. V. These inalienable rights are the basis on which the
American people rest to ensure the government will not infringe on their basic freedoms. The
purpose of the Due Process Clause is to protect United States citizens from the arbitrary exercise
of government power and to avoid oppression of the people. DeShaney v. Winnebago Cmty. Dep’t
of Soc. Servs., 489 U.S. 189, 196 (1989).
There are two distinct types of due process claims – procedural and substantive.
Substantive due process claims are those in which citizens are categorically obligated to be
protected in a certain set of circumstances. Id. at 195. Substantive due process limits the power of
the government to regulate certain areas of life and asks whether the government has an adequate
reason for taking away a person’s life, liberty, or property. Certain types of state limits on human
conduct are held to so unreasonably interfere with important human rights that they amount to an
unconstitutional denial of liberty.
A. The right to a healthy and stable climate system is a fundamental right protected
by the Due Process Clause of the Fifth Amendment.
Fundamental rights are determined based on precedent, history, and societal tradition, such
that “neither liberty nor justice would exist if they were sacrificed.” Palko v. Connecticut, 302 U.S.
27
318, 326 (1937). Identifying and protecting fundamental rights is an ongoing part of the judicial
branch’s duty; however, this responsibility “has not been reduced to any formula.” Poe v. Ullman,
367 U.S. 497, 542 (1961) (Harlan, J., dissenting). Instead, the court must undergo an exercise of
reasoned judgment to determine if the rights at issue are so fundamental that the right ought to be
accorded respect from the government. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
There is not a finite definition to “liberty” and “property” when invoked within the meaning
of the Due Process Clause. Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972). Thus, these
fundamental rights are not static; but rather are “entrusted to future generations [as] a charter
protecting the right of all persons to enjoy liberty as we learn its meaning.” Obergefell, 135 S. Ct.
at 2598. The term “liberty” has been found to be broader than just the freedom from bodily
restraint. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “Liberty” also includes the right to choose
the occupation you engage in, to marry, and “generally to enjoy those privileges long recognized
. . . as essential to the orderly pursuit of happiness by free men.” Id. “Property” benefits are not
created by the Constitution; but rather are created by “existing rules or understandings that stem
from an independent source such as state law.” Roth, 408 U.S. at 577.
“[T]he global climate system is a common property owned in trust by the United States
that must be protected and administered for the benefit of current and future generations.” R. at
10. The basis for life, liberty, and property is the need for the citizens of the United States to have
a stable climate in which they can live, grow, and prosper in. The fundamental right being asserted
in this case is not the right to have a pristine environment, free from any pollution; but rather to
have a climate system able to sustain human life. Juliana v. United States, 217 F. Supp.3d 1224,
1250 (D. Or. 2016) (holding “the right to a climate system capable of sustaining human life” to be
30
at 108. The entire question in that case was whether the law of nations applied to a corporate entity,
a question that was brought about by aliens. See id. The Alien Tort Statute provides that, “[t]he
district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.
This provides United States district courts the jurisdiction to hear claims encompassed within the
language of this statute. Kiobel, 569 U.S. at 114–15. Speaking of this statute, the Supreme Court
wrote that, “the reasonable inference from the historical materials is that the statute was intended
to have practical effect the moment it became law.” Sosa, 542 U.S. at 724. In Sosa v. Alvarez-
Machain, aliens brought an Alien Tort Statute claim against a private bank that had allegedly
violated international law. See id.
Issues having to do with climate change are “political” in that they have “motivated
partisan and sectional debate during important portions of our history.” U.S. Dep't of Commerce
v. Montana, 503 U.S. 442, 458 (1992). But a case does not only present a political question
because it “raises an issue of great importance to the political branches.” Id. The public trust
doctrine is incorporated by the 5th Amendment’s substantive due process guarantee against
government action that deprives people to their right to life, liberty, and property. U.S. Const.
amend. V. In Phillips Petroleum Co. v. Mississippi, the Court ruled that the American public trust
doctrine at the federal level only covers certain classes of waters and did not more broadly protect
the environment in that case over state law. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469
(1988).
In order to identify a political question, the Supreme Court identified six criteria that could
signal its presence:
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[(1)] textually demonstrable constitutional commitment of the issue
to a coordinate political department; [(2)] a lack of judicially
discoverable and manageable standards for resolving it; [(3)] the
impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion; [(4)] the impossibility of a
court's undertaking independent resolution without expressing lack
of the respect due coordinate branches of government; [(5)] an
unusual need for unquestioning adherence to a political decision
already made; or [ 6)] the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question.
Baker v. Carr, 369 U.S. 186, 217 (1962). A dismissal by a court on political question grounds is
appropriate only if one of these criterion is “inextricable” from the case. Id. In Juliana v. United
States, an Oregon federal district court ruled that the plaintiffs’ claim alleging harms from climate
change did not constitute a political question and could therefore be heard in the courts. See
Juliana, 217 F. Supp.3d 1224. In the same opinion, the court wrote that the plaintiffs’ public trust
claim was not barred because it was a federal case and cited other district courts that had allowed
federal trust claims to be heard. Id. Further, it wrote that it does not matter how far-reaching the
effects of climate change are. As long as its effects are concrete and personal to the plaintiffs, the
issue is justiciable. See id. In Juliana, the plaintiffs’ Fifth Amendment claim of due process
violation and, further, the public interest doctrine claim were held to be valid and justiciable claims.
See id.
In Deshaney v. Winnebago Cnty. Dep’t of Soc. Servs., the Court ruled that there were
exceptions to the Due Process Clause not imposing on the government an affirmative obligation
to act. 489 U.S. 189. One of these exceptions, the “danger exception,” allows a substantive due
process claim when government conduct “places a person in peril in deliberate indifference to their
safety[.]” Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th Cir. 1997). In Juliana, the
32
court held that the danger exception applied to the plaintiffs’ Fifth Amendment arguments
regarding climate change. See 217 F. Supp. 3d 1224.
In the present case, plaintiffs Mana and Flood brought claims under the Alien Tort Statute
and the public interest doctrine claiming very similar harms due to climate change as the plaintiffs
did in Juliana. Both Mana and Flood are experiencing rising waters that are engulfing their
respective island homes. R. at 4. They both own homes and live in communities that are less than
one meter above sea level. R. at 4-5. Their homes have been under water during recent storms,
which, without the climate change-induced sea level rise, normally would not have had this effect.
R at 5. This has put undue expense on plaintiffs and their communities and will continue to do so
if the greenhouse gas effects remain on their current track. Id. Human health, industry, and the
plaintiffs’ ability to continue to live in these communities are all being affected by the greenhouse
gas emission-induced sea level rise. Id.
Regarding Mana’s claim under the Alien Tort Statute, it is a justiciable issue due to the text
of the statute, and this is also evident by looking at similar claims under the statute that have been
adjudicated. Although Kiobel ruled negatively on a similar issue regarding corporate liability, the
case went all the way to the United States Supreme Court. The case involved aliens bringing claims
against a private corporation under the law of nations. The present case is very similar. Sosa
brought a different claim against a private corporation under the law of nations. The courts have
been willing to hear these claims brought about by aliens in regards to private corporations. At the
very least, the initial court here, the federal district court, should not be able to throw out these
motions for failure to state a claim when very similar claims have been entertained by the highest
court in the land. Even if the lower court disagrees with Mana’s argument as to her Alien Tort
Statute claim, there is certainly enough evidence to prove that the issue is justiciable and must not
33
be thrown out at such an early stage. The text of the Alien Tort Statute itself does not bar this
claim, and it says that it may be brought about in a federal district court. Therefore, Mana’s claim
constitutes a justiciable issue.
As for plaintiff Flood’s claim under the public trust doctrine, there is an abundance of
evidence that essentially the same claims involving damages from climate change under this
doctrine have been heard by the courts. As was stated in the language of U.S. Dep't of Commerce
v. Montana, just because an issue has some political aspects does not itself render a claim a non-
justiciable political question. To the contrary, the language in that case suggested that many claims
that are adjudicated are in some way “political.” In addition to the many aforementioned cases that
dealt with issues of climate change coming up under the public trust doctrine, the Court in
DeShaney wrote that under the “danger exception” to government conduct in due process claims,
substantive due process claims were allowed to be brought against the government when it was
placing people in peril with deliberate indifference to their safety. The United States knows the
effects of the pollution that comes from HexonGlobal, and the government is aware that
HexonGlobal is one of the largest contributors of pollution coming out of the country. Pgs. 5-6.
The United States is one of the largest contributors as a country to climate change globally. Id.
Recently, after years of being aware of the dangers of pollution and resulting climate change, the
United States has acknowledged and made some efforts to curb climate change. The fact that the
country knows of the risk, has tried to some degree to lessen it through conventions are programs,
and still does nothing about HexonGlobal’s massive pollution shows the sort of indifference to
human peril that the “danger exception” references. Although HexonGlobal is a private actor, the
United States often subsidizes, taxes, or otherwise controls or regulates the actions of private actors
in almost every commercial realm. The United States had the option to step in and do something
34
about HexonGlobal’s effect on the environment but did not. The “danger exception” here for
substantive due process claims provides an avenue in and of itself for Flood’s claim to be a
justiciable issue. The “danger exception” along with the evidence that many similar cases are being
adjudicated are evidence enough that this is not a political question. Finally, the purpose of the
judiciary is to answer questions of constitutionality. There is no better place for this Constitutional
issue to arise than the courts.
For these reasons, we ask that this court reverse the district court’s dismissal of these
claims.
CONCLUSION
For the foregoing reasons, the Organization of Disappearing Island Nations respectfully
requests that this Court reverse and remand the decision of the District Court for New Union Island
for further consideration.
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