Punishing Today’s Pirates: The Alien Tort Statute as a Remedy for Climate Change Refugees
January 24, 2019 by Gregory Harned
By Scott Novak, Staff Contributor
Whereas the Refugee Convention does not provide relief for climate change refugees like Teitiota, the Alien Tort Statute (ATS) might.
Climate models predict that the Pacific island nation of Kiribati, which consists of thirty-three coral atolls and reef islands, will be underwater by 2100. Tidal surges already impact the nation, and some Kiribati communities could be overtaken by sea-level rise and storm surges by 2050.
In 2012, Ioane Teitiota, a Kiribati citizen, applied for asylum in New Zealand as the first would-be climate change refugee, stating that he could not grow food or find potable water in his home country because of saltwater intrusion. However, the New Zealand courts deported him and his family, reasoning that Teitiota did not qualify as a refugee under the UN’s 1951 Refugee Convention because he did not face political persecution in Kiribati.
Whereas the Refugee Convention does not provide relief for climate change refugees like Teitiota, the Alien Tort Statute (ATS) might. The ATS states that “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.” Under the ATS, plaintiffs like Teitiota could sue domestic fossil fuel companies like ExxonMobil, who knowingly contributed to greenhouse gas emissions and climate destabilization, for the damages climate change inflicted on their homelands.
Most circuits have held or assumed that domestic corporations are liable under the ATS for violating the law of nations. Additionally, because domestic corporations like ExxonMobil have extracted and sold fossil fuels within the United States, concerns about extraterritoriality would not apply. Thus, the primary question would be whether knowingly exacerbating climate destabilization by enabling an increase in greenhouse gas emissions constitutes a violation of the law of nations.
Although Congress passed the ATS to deal with problems like piracy, courts must “interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” In order to determine customary international law norms, which constitute the law of nations, courts can look to “the general usage and practice of nations,” such as international treaties, or “judicial decisions recognizing and enforcing that law.” The norms must also be “specific, universal, and obligatory.”
Under these standards, the knowing and reckless exacerbation of climate change by corporations should constitute a violation of the law of nations. International arbitrators in the Trail Smelter Arbitration held that a smelter operated by a private corporation in British Columbia could not continue to pollute the air with sulfur fumes in a way that seriously harmed agricultural interests in the State of Washington. In issuing this ruling, the arbitration panel announced what is now referred to as the Trail Smelter Principle. It concluded, “[N]o 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.” The panel based this principle on multiple U.S. Supreme Court cases governing transboundary pollution.
Multiple international agreements reflect the Trail Smelter Principle as well. For example, Principle 21 of the Declaration of the 1972 Stockholm Conference on the Human Environment, a conference attended by 113 nations, reads: “States have, in accordance with the Charter of the United Nations and the principles of international law . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” The 1992 Rio Declaration on Environment and Development, endorsed by 190 nations, reasserted this same language in Principle 2. Most recently, every single nation in the world signed the Paris Agreement, which “[r]ecogniz[es] the need for an effective and progressive response to the urgent threat of climate change,” and aims to have nations reduce their future GHG emissions to mitigate the harm inflicted on other nations. Although the United States has announced plans to withdraw from the agreement, it cannot officially do so until 2020.
These agreements are not procedurally self-enforcing, but this in no way detracts from the Trail Smelter Principal’s universality. Instead, it means that every nation has undertaken an obligation to abide by the Trail Smelter Principle, and now each nation’s legislature must pass laws to give the obligation legal teeth. Thus, knowingly exacerbating climate change by engaging in major fossil fuel production violates the law of nations as enshrined in the Trail Smelter Principle and the multiple international agreements formed since.
However, even if knowingly exacerbating climate change to dangerous levels is indeed a tort, a court might rule that (1) the large number of domestic and foreign actors potentially responsible for this tort and (2) whether increased greenhouse gas emissions in exchange for energy production is desirable present nonjusticiable political questions, as some courts have determined in similar climate change tort cases. Nevertheless, at least one court has found harms from increased greenhouse gas emissions to be justiciable, and as these harms become ever more concrete in the future, more courts may be willing to provide remedies to address them.
Despite the inevitable challenges to bringing a novel claim, an ATS case against domestic fossil fuel corporations may be one method for Kiribati citizens like Teitiota to hold accountable the modern-day pirates robbing current and future generations of a sustainable environment.
 Mike Ives, A Remote Pacific Nation, Threatened by Rising Seas, N.Y. Times (July 2, 2016, at A10), https://www.nytimes.com/2016/07/03/world/asia/climate-change-kiribati.html.
 Refugees under the 1951 Convention must have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” U.N. Convention Relating to the Status of Refugees, art. 1(A), July 28, 1951, 189 U.N.T.S. 137.
 AFP, New Zealand deports would-be first ever ‘climate change refugee’, The Telegraph (Sept. 24, 2015), https://www.telegraph.co.uk/news/worldnews/australiaandthepacific/newzealand/11887139/New-Zealand-deports-would-be-first-ever-climate-change-refugee.html.
 28 U.S.C. § 1350 (2012).
 Shannon Hall, Exxon Knew about Climate Change almost 40 years ago, Scientific American (Oct. 26, 2015), https://www.scientificamerican.com/article/exxon-knew-about-climate-change-almost-40-years-ago/.
 Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017–21 (7th Cir. 2010); Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. 2008) (en banc); Romero v. Dummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Herero People’s Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1193, 1195 (D.C. Cir. 2004); Beanal v. Freeport–McMoran, Inc., 197 F.3d 161, 163 (5th Cir. 1999).
 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) (holding ATS claims must sufficiently “touch and concern” the United States); see also Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018) (barring ATS claims against foreign corporations).
 Filártiga v. Peña-Irala, 630 F.2d 876, 881 (2d Cir. 1980).
 United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–61 (1820); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004).
 Sosa, 542 U.S. at 732, 734.
 Trail Smelter Arbitration (U.S. v. Can.), 3 U.N.R.I.A.A. 1907, 1965, Judgment, (1941).
 Id. at 1964–65 (citing, among other cases, New Jersey v. City of New York, 283 U.S. 473, 476–77 (1931) (enjoining New York City from disposing sewage into the sea, a practice harming New Jersey’s coastal waters); New Jersey v. New York, 283 U.S. 336, 343, 346 (1931) (banning New York’s untreated industrial waste from entering the Delaware and Neversink Rivers); and Georgia v. Tenn. Copper Co., 206 U.S. 230, 236 (1907) (enjoining Tennessee copper company from discharging emissions negatively impacting Georgia citizens’ health)).
 U.N. Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, 5 U.N. Doc A/CONF.48/14/Rev. 1 (June 16, 1972).
 U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc A/CONF/151/26/Rev.1(Vol. 1) (Aug. 12, 1992).
 Paris Agreement to the U.N. Framework Convention on Climate Change, opened for signature Apr. 22, 2016, U.N. Doc. FCCC/CP/2015/L.9 (entered into force Nov. 4, 2016) (intending to limit global average temperature increase to 1.5 degrees Celsius above pre-industrial levels).
 Robinson Meyer, Syria Is Joining the Paris Agreement. Now What?, The Atlantic (Nov. 8, 2017), https://www.theatlantic.com/science/archive/2017/11/syria-is-joining-the-paris-agreement-now-what/545261/.
 Abdullahi v. Pfizer, Inc. 562 F.3d 163, 176 (2d Cir. 2009) (“Agreements that are not self-executing or that have not been executed by federal legislation . . . are appropriately considered evidence of the current state of customary international law.”).
 See Medellín v. Texas, 552 U.S. 491, 536 (2008) (Stevens, J., concurring) (holding that the United States had an international law obligation, but it was not enforceable in Texas).
 See, e.g., City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017, 1028–29 (N.D. Cal. 2018); Ctr. for Biological Diversity v. Hagel, 80 F. Supp. 3d 991, 994 (N.D. Cal. 2015), aff’d in part, rev’d in part and remanded sub nom. Ctr. for Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017); Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012).
 See Juliana v. United States, 217 F. Supp. 3d 1224, 1235-42 (D. Or. 2016) (holding a climate change-related public trust constitutional claim to be justiciable).