The White House's Environmental Problems

The White House's Environmental Problems

Horner Letter In The Washington Times
March 18, 2003

The article "Old law finds new use against oppressors" (World, Monday) is correct that the 1789 Alien Tort Claims Act (ATCA), passed as part of the first Judiciary Act, poses a tremendous threat to global, and particularly U.S., economic well-being by its increasing use beyond the original intent. The real threat, however, is actually beyond the human rights context.

Most suits charging improper foreign-state activity purportedly abetted by U.S. companies doing business on their shores will continue to be dismissed on the grounds of forum non conveniens that is, so long as a judicial system of some transparency and reliability exists in that state, the witnesses, evidence, damage and the lawsuits' other relationship to that foreign state dictate that U.S. courts are not the appropriate venue.

One major threat the story cited vicarious liability for Chinese human rights abuses could foreseeably survive that defense, although those State Department protestations of the potential disruptive effect upon relations of allowing particular suits to proceed would likely persuade a court to deny U.S. jurisdiction. The more pressing exposure, however, lies in the looming threat of environmentalist groups and Third World natives seeking to impute liability to U.S. companies for their domestic operations purportedly causing severe weather events. Such claims face no diplomatic impediments or defenses that the United States is an inconvenient forum and are, therefore, likely to be the next generation of troubling ATCA litigation.

But how could U.S. companies possibly be held to account for Third World weather-related damage? Because the Bush administration says so. Through two formal positions on file with the United Nations, the administration holds forth that the United States accepts the theory of catastrophic anthropogenic global warming and the prescription of dramatic energy use reductions by industrialized countries. These are due to our still-valid signature on the Kyoto Protocol, inexplicable since President Bush announced the as-yet-unexecuted U.S. rejection more than two years ago. Valid signatures on even unratified treaties are routinely recognized in our courts as evidence of accepting the underlying principle(s), persuasive if accompanied by other consistent actions (such as the recent ATCA action Sarei et al. v. Rio Tinto). Such action is found in, for example, the "Climate Action Report 2002," filed with the United Nations by the Environmental Protection Agency despite the contents having been previously disavowed by the White House. This disavowal was in order to resolve litigation brought by my organization and several lawmakers exposing the document to be biased, scientifically useless and unlawfully produced. Yet, the combination of these two U.S. submissions could actually be deemed to acknowledge an actionable climate "law of nations" that will be up to the same system under which "navigable waterways" (wetlands) no longer must be wet.

Until the Bush administration gets its house in order on the climate front, it creates tremendous, unwarranted financial exposure for its citizens.