Georgetown Law - Georgetown International Environmental Law Review

This article discusses the application of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) as it relates to the Trail Smelter dispute. The dispute involves a Canadian smelter that polluted a river that flowed into the United States . The author outlines the elements involved in this transboundary environmental dispute, including the nature of the pollution, the various parties involved, and the choices of forums for dispute resolution. Hess then examines the kinds of claims allowed under CERCLA to investigate and decontaminate the affected area, as well as the potential to impose the cost of cleanup on the responsible party or parties. The author then analyzes and compares the extraterritorial application of U.S. statutes with those of CERCLA in the context of claims arising out of the Trail Smelter dispute. Hess notes that U.S. courts have not come to a consensus about the underlying purposes and policies in the extraterritorial application of U.S. statutes, and several statutes are apparently at odds with one another. The author discusses the authority that Congress has to give extraterritorial application to statutes such as CERCLA, and contrasts that authority with the presumption articulated by the U.S. Supreme Court against extraterritoriality. He then discusses four approaches used in domestic cases to overcome that presumption – “Congressional intent” approach, “effects” approach, “reasonableness” approach, and “avoiding the presumption” approach. Hess concludes that the extraterritorial application of CERCLA in the Trail Smelter case would further the substantive goals of the act, which are to create a mechanism to compel private parties to clean up hazardous waste sites and to impose costs of the cleanup on the responsible party. In conclusion, Hess explores unresolved issues in the analytical framework for the extraterritorial application of U.S. statutes in general, and CERCLA in particular.

The Day After Tomorrow: Ocean CO 2 Sequestration and the Future of Climate Change

By Karen N. Scott

The author sets forth the international legal framework for several new methods of reducing CO2 that do not involve cutting greenhouse gas emissions. The scientific approaches that Ms. Scott discusses include 1) the sequestration of CO2 within deep saline aquifers or depleted oil and gas reserves on land and under seabed, 2) the direct injection of CO2 into the ocean from land, vessel, or offshore installation, and 3) the enhancement of biological uptake of CO2 by means of fertilization. While the legality of each approach depends mainly on the manner of disposal, the author explores each method separately and discusses the impact of the United Nations Convention on the Law of the Sea (UNCLOS) and the 1992 Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR Convention). Discussing each method’s legality in succession, the author discusses how UNCLOS grants a basic right of most states, coastal and even many non-coastal states, to geological storage of CO2, with some important limits based on the prevention of pollution and protection of the marine environment. UNCLOS’ mandate of sequestration monitoring and the “precautionary approach” to potential problems is given a depth of description, and is further discussed in a section on OSPAR’s approach to CO2 sequestration. Under OSPAR, no actual prohibition covers seabed storage, but discharges must be regulated by the coastal state to minimize pollution emissions. Within UNCLOS framework, the author discusses direct injection rights and the obligations imposed to protect the marine environment; many of the contemporary storage procedures are prohibited. Finally, Ms. Scott analyzes the legality of ocean fertilization techniques, in many ways the most controversial measure, because of its potential impact on the Antarctic ecosystem and the scientific uncertainty with implementation. Although the politics surrounding the legitimacy of the conventions and treaties that govern CO2 sequestration remain paramount, varying legal interpretation of these approaches may have significant impact on the state of CO2 sequestration as an alternative to reduction in greenhouse gas emissions.

Half Full … or Completely Empty?: Environmental Alien Tort Claims Post Sosa v. Alvarez-Machain

By James Boeving

This paper discusses the impact of the Supreme Court’s recent decision, Sosa v. Alvarez-Machain, on plaintiffs and other actors seeking to utilize the Alient Tort Statute (ATS) to protect the environment. The author begins with a discussion of the pre-Sosa jurisprudence. The discussion of case law focuses the reader on the dominant rationales for ATS suits, and their effectiveness in succeeding on the merits in federal courts. Next, the author discusses the Sosa opinion and the ramifications of domestic litigation as a result of the Supreme Court’s disagreement over the role of ATS for environmental plaintiffs. The paper then magnifies the potential routes that plaintiffs may have for successful ATS litigation. Specifically in this area the author focuses on the human rights proxy rationale, the treaty prong of the ATS, and invocation of treaties as evidence of custom. While the author argues that the Supreme Court left the door “ajar” for foreign plaintiffs to bring ATS claims, the author then argues that the international legal scholar has an interesting new role to take up, through amici submissions and otherwise, on how ATS jurisprudence should play out. The paper concludes with a final assessment of the impact of Sosa on future interpretation of the ATS and the subsequent effect of the interpretation on environmental plaintiffs and foreign investment.

Water Justice in South Africa: Natural Resources Policy at the Intersection of Human Rights, Economics, and Political Power

By Rose Francis

This Essay critically evaluates post-Apartheid South African water law. Apartheid created a system of natural resource inequities, including a maldistribution of water resources. Although establishing equal access to fresh water as a basic right has been a focus of post-Apartheid water policy, to date significant inequities remain. The Essay examines in detail the effects of the Water Resources Act of 1997, which codifies a constitutional right to water, and the National Water Act of 1998 (NWA), which establishes a seemingly progressive water permitting system but also commodifies water in ways that perpetuate pre-existing inequities. The Essay argues that the NWA’s cost recovery and privatization provisions undermine the progressive features of the Act. Although the South African judicial system is open to litigation of water rights as a basic human right, the Essay concludes that courts are not the most effective forums for challenging existing distributive inequities.

Revised December 20, 2006 (BEM)