Remember Kiobel v. Royal Dutch Petroleum, argued before the Supreme Court last term? It’s back – the Court will hear argument again Monday – and bigger than before.
A brief recap: For decades, Shell has extracted oil from the Niger Delta, causing extensive environmental degradation. The government of Nigeria, with the alleged support of Shell, cracked down on protests by the local residents, the Ogoni tribe, by executing their leader, Ken Saro-Wiwa, and eight others in 1995. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. They relied on the Alien Tort Statute (ATS), a law enacted by the First Congress in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law.
In 2010, the Second Circuit put the brakes on their effort by holding that corporations can neverbe liable under the ATS because corporations can never violate international law. Other circuit courts disagreed, as did many commentators. So when the Supreme Court issued cert. in 2011, the plaintiffs had reason to be cautiously optimistic that they would prevail.
But after oral argument in early 2012, the Court surprised everyone by dramatically changing the issue, from corporate liability to extraterritoriality. Specifically, it set the case for another round of briefing and argument on whether the ATS applies to any suits against any defendant for violations occurring within foreign territory. As I wrote in March, that raised the stakes for human rights advocates. Plaintiffs could try to work around a “can’t sue corporations” rule by suing individual corporate officials. But there may not be many foreign human rights claims of any kind – against corporations, individuals, or governments – that will survive if the rule is “can’t sue for anything that happens in another country.”
Given the history of the case, it would be rash to make predictions, but it probably isn’t a good sign for the plaintiffs that the Solicitor General has urged the Court to decide against them. The U.S. government says that corporations can be liable under the ATS, and it suggests that the Court should not adopt a flat rule against all extraterritorial application. But it also argues that in circumstances like these, where the plaintiffs, the defendants, and the location of the alleged tort are all foreign, the Court “should not fashion a federal common-law cause of action” because “the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company’s actions, while the nations directly concerned could.”
Of course, whether the other nations involved actually would provide such a remedy is another story, one that the Solicitor General seems disinclined to tell. The simple reason why plaintiffs like Esther Kiobel often seek remedies in U.S. courts for atrocious human rights violations is that they believe the remedies here are more effective than those offered in other forums, if they are available at all. It seems increasingly likely, though, that she and many others like her will soon have to take their chances elsewhere.
Showing 2,823 results
| September 28, 2012
Remember Kiobel v. Royal Dutch Petroleum, argued before the Supreme Court last term? It’s back – the Court will hear argument again Monday – and bigger than before. A brief recap: For decades, Shell has extracted oil from the Niger Delta, causing extensive environmental degradation. The government of Nigeria, with the alleged support of Shell, […]
Robert Verchick | September 27, 2012
I’ll forego reporting on India today to address a new development in the post-Hurricane Katrina litigation: Judge Jerry Smith’s breathless hairpin turn in the “Katrina Canal Breaches Litigation.” On Monday, Judge Smith, writing for a three-judge panel of the Fifth Circuit U.S. Court of Appeals, dismissed a lawsuit against the U.S. Army Corps of Engineers […]
Rena Steinzor | September 27, 2012
This post was written by CPR President Rena Steinzor and Policy Analyst Wayland Radin. Today CPR releases Cozying Up: How the Manufacturers of Toxic Chemicals Seek to Co-opt Their Regulators, exposing the work of the International Life Sciences Institute (ILSI) and Toxicology Excellence for Risk Assessment (TERA), two industry advocacy groups that have undue influence on […]
John Echeverria | September 25, 2012
The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed. The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation […]
Aimee Simpson | September 24, 2012
Today, CPR releases a new white paper examining criminal enforcement of water pollution laws in Maryland. In Going Too Easy? Maryland’s Criminal Enforcement of Water Pollution Laws Protecting the Chesapeake Bay, CPR President Rena Steinzor and I analyze a number of key questions concerning the critical, deterrence-based enforcement mechanism of criminal prosecution and its role […]
Ben Somberg | September 20, 2012
A host of concerned groups and individuals wrote to Secretary of Agriculture Tom Vilsack today urging him to withdraw proposed changes to poultry inspection rules until food safety and worker safety concerns are addressed. The letter was signed by a range of food safety and worker safety groups and individual signers, including CPR Member Scholars […]
Daniel Farber | September 19, 2012
Cross-posted from Legal Planet. Obesity is an environmental issue because the food system (from farm to table) uses a lot of energy and produces significant water pollution. More food equals a bigger environmental footprint. Sweetened soft drinks are a good example: they use corn sweetener, and corn production has a large footprint because so much […]
Rebecca Bratspies | September 18, 2012
a(broad) perspective Today’s post is the last in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these treaties. Previous posts are here. United Nations Convention on the Law of the Sea (UNCLOS) and […]
Robert Verchick | September 17, 2012
I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man […]