ARC ECOLOGY V. UNITED STATES DEPARTMENT OF THE AIR FORCE: EXTENDING THE EXTRATERRITORIAL REACH OF DOMESTIC ENVIRONMENTAL LAW

摘要

The Ninth Circuit determined in ARC Ecology v. United States Department of the Air Force (ARC Ecology) that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not extend to address contamination on former U.S. military bases in the Philippines. As ARC Ecology illustrates, U.S. laws that prevent and remediate domestic environmental harms committed by American government agencies, corporations, and individuals rarely extend outside of U.S. borders. Consequently, environmentally damaging activities carried out by American actors abroad may go unchecked. The judicial presumption against extraterritorial application of domestic laws plays a major role in hmiting the scope of U.S. environmental laws to domestic territory. With the general understanding that congressional legislation is domestically focused, and with the objective of preventing the application of U.S. laws in ways that would give rise to a conflict of laws, courts readily apply the presumption to environmental laws and thus disallow their extraterritorial use. In contrast, the presumption has eroded in the realm of securities and antitrust laws and courts have developed alternative tests that more leniently allow for the extraterritorial application of such laws in order to avoid harms to American markets. The inconsistency between how courts apply the presumption in environmental law as compared to in market law, combined with the reality of ever increasing American activities overseas, signals both an opportunity and a necessity to overcome the presumption in the context of environmental law. This Chapter examines ARC Ecology and three other contemporary cases from the Ninth Circuit to create an overview of the analysis courts typically employ to apply the presumption against extraterritorial application of environmental laws. This chapter then assesses how to preempt a standard presumption analysis to avoid application of the presumption and to achieve extraterritorial application of suitable environmental provisions.