The use of the Alien Tort Statute for toxic torts and environmental harm must now satisfy the threshold test of prudential exhaustion before the case may move forward

When residents of a foreign country are subject to harm from alleged acts or omissions of entities that also have a presence in the U.S., one of the tools that has traditionally been used to bring a case in a U.S. Federal court is the Alien Tort Statute. 28 U.S.C. § 1350. However, the jurisprudence of such ATS actions was significantly reinterpreted by the U.S. Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Supreme Court noted that the ATS is a jurisdictional statute which creates no new causes of action, and that the jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability. Thus, courts were to require any claim based on the present-day law of nations under 28 U.S.C. § 1350 to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the recognized 18th-century paradigms. The effect of this ruling is well demonstrated by a case in the Ninth Circuit in which the Sosa case was handed down while the matter was on appeal. In the case the current and former residents of Bougainville, Papua New Guinea (PNG), brought suit under the ATS claiming various war crimes, crimes against humanity, racial discrimination, and environmental torts that alleged arose out of Rio Tinto's mining operations. Plaintiffs alleged that Rio Tinto's action lead to a civil war, and further that Rio Tinto was vicariously liable for actions of the PNG government, acting as Rio Tinto's agent or partner. The District Court found that the plaintiffs stated cognizable claims for war crimes, crimes against humanity, racial discrimination, and violation of the U.N. Convention on the Law of the Sea. However, the District Court dismissed the complaint on the grounds that it presented nonjusticiable political questions. In the alternative, it dismissed the environmental torts and racial discrimination claims under the act of state doctrine and international comity. The District Court also held that the ATS did not require exhaustion of local remedies, and thus did not address that issue. The plaintiffs appealed, and while their appeal was pending, the Sosa case was handed down. In Sarei et al v. Rio Tinto PLC et al, Docket No. 02-56256 and 02-56390 (9th Cir.: 12/16/08), the 9th Circuit en banc considered the impact of Sosa on the case. The Court noted that as a result of Sosa, a prudential or judicially imposed exhaustion requirement for ATS claims should be considered in appropriate cases. If the case has little nexus to the U.S., then courts should consider the exhaustion issue particularly, but not exclusively, if the claims do not involve matters of "universal concern" [war crimes and crimes against humanity would likely be of universal concern, although the Court was less than crystal clear]. Because the District Court did not address this issue, the Court of Appeals returned the case for consideration of this issue. The Court then spent much of the opinion seeking to define the issues in general. For example, it noted that normally a state would not consider a claim involving an injury to the national of another state unless the national had exhausted domestic remedies, unless such remedies are clearly sham or inadequate or futile, or their application unreasonably prolonged. [The latter ironically would describe many "legal systems" around the world, including some such as the Philippines, India, and many in South America, just to mention a few that get repeated press criticism for a never-ending process.] The Court also noted that the exercise of criminal jurisdiction is often viewed more favorably than civil, but even there the Court appears to tread softly. The Court also noted that the remedy which is available domestically must be considered; obtaining a judgment (for example) that cannot be enforced is seen as an ineffective remedy. Thus, ATS cases will now have a new and complex threshold to meet before the actions can go forward. It is possible that the majority simply wants to reserve the ATS for truly egregious circumstances [e.g., crimes against humanity, war crimes], and to stop the slide toward more individual toxic torts and environmental harms. However, since this was a case of first impression, it will likely be many more years before the jurisprudence becomes clear.