Extraterritorial Application of RCRA: Is Its Exportability Going to Waste?
By Lee I. Raiken
INTRODUCTION
Over the last forty years, the global volume of hazardous waste has increased by six thousand percent. Producers in the United States generated most of this waste. Exacerbating the exponential increase in the domestic volume of hazardous waste is a decrease in proper disposal space and a corresponding increase in cost of adequate disposal. Many American corporations have confronted these circumstances by shipping their hazardous waste abroad. Typically, a foreign importer contracts to receive the waste from the American producer, and in most cases the importer's government is alerted of its arrival.
In a recent case, however, toxic hazardous waste from the United States was allowed to menace the environment in a public rail station in Leeds, England. According to allegations, an American corporation fraudulently shipped toxic chemicals to an English company located there. The defendant shipped hazardous waste to one of the plaintiffs in England, who had contracted to receive only non-hazardous waste products. The usual remedies for environmental harm were unavailable to the injured parties, however. After bringing suit in the United States under the Resource Conservation and Recovery Act (“RCRA”), which allows private citizens to claim damages from violators of hazardous waste laws, the federal district court addressed the question of whether RCRA applies beyond the borders of the United States. In this case of first impression, the District Court for the Southern District of New York held that RCRA's citizen suit provision does not apply once waste leaves the country. The decision in Amlon Metals, Inc. v. FMC Corporation brought to light a dangerous loophole in the regulation of hazardous waste and its transnational shipment. Congress must now reexamine RCRA and its purposes with a view toward assessing whether territorial limits to its application are appropriate.
Extraterritorial application of laws is the exercise of jurisdiction over persons, objects, and events beyond the traditionally recognized limits of the land and citizenry of the legislating state. The extraterritorial application of United States law has been a dynamic topic since the nation's founding. As the country and its interests abroad have expanded, so have the principles governing the exportation of its laws. Although the jurisdiction of congressional legislation was once easy to discern, a diversity of standards in different fields of law, and even a number of standards within a single field, now govern. There are several models available for determining whether and, more importantly, in what circumstances RCRA should apply outside U.S. territory. Since Amlon was a case of first impression, its holding has significant implications for the future of RCRA's extraterritorial application.
This Article first analyzes whether RCRA applies extraterritorially and finds that, given the current state of the law on the topic, it does not. After surveying the application of domestic law abroad by U.S. courts, this Article next reviews the standards those courts used. Applying these standards, this Article suggests that Congress should amend RCRA so that its citizen suit provision applies when the illegal conduct is committed within U.S. borders. Congress can accomplish this by adopting a clear statement of congressional intent to apply RCRA extraterritorially. Additionally, the Article examines whether alternative grounds for U.S. jurisdiction exist based upon the Alien Tort Statute, and it considers the possible implications of the Basel Convention, a multilateral treaty on international hazardous waste transfers. This Article concludes that neither alternative avenue is available to pursue illegal U.S. exporters of hazardous waste, and that RCRA, once amended, would be an effective vehicle for such regulation.
Part II of this article outlines the pertinent aspects of RCRA, including relevant statutory language and legislative history. Part III sets forth the facts and holdings of Amlon v. FMC, the case that first demonstrated the lack of an adequate remedy for victims of the unlawful exportation of U.S. hazardous waste. Part IV analyzes the principles that have governed extending the application of U.S. law extraterritorially, both as suggested by the Restatement of Foreign Relations Law and as applied by U.S. courts in the key areas of antitrust, securities and employment discrimination. Part V applies these principles to the Amlon facts and suggests that the principles allow for expanding RCRA's application to include specific types of illicit international hazardous waste transactions. Part VI examines the potential for addressing claims under international law and the Alien Tort Statute, while Part VII investigates the potential impact of the multilateral Basel Convention. The article concludes that international law provides an insufficient remedy for transborder environmental torts, leaving an amended RCRA as the best proximate solution to violations of hazardous waste export law.
Over the last forty years, the global volume of hazardous waste has increased by six thousand percent. Producers in the United States generated most of this waste. Exacerbating the exponential increase in the domestic volume of hazardous waste is a decrease in proper disposal space and a corresponding increase in cost of adequate disposal. Many American corporations have confronted these circumstances by shipping their hazardous waste abroad. Typically, a foreign importer contracts to receive the waste from the American producer, and in most cases the importer's government is alerted of its arrival.
In a recent case, however, toxic hazardous waste from the United States was allowed to menace the environment in a public rail station in Leeds, England. According to allegations, an American corporation fraudulently shipped toxic chemicals to an English company located there. The defendant shipped hazardous waste to one of the plaintiffs in England, who had contracted to receive only non-hazardous waste products. The usual remedies for environmental harm were unavailable to the injured parties, however. After bringing suit in the United States under the Resource Conservation and Recovery Act (“RCRA”), which allows private citizens to claim damages from violators of hazardous waste laws, the federal district court addressed the question of whether RCRA applies beyond the borders of the United States. In this case of first impression, the District Court for the Southern District of New York held that RCRA's citizen suit provision does not apply once waste leaves the country. The decision in Amlon Metals, Inc. v. FMC Corporation brought to light a dangerous loophole in the regulation of hazardous waste and its transnational shipment. Congress must now reexamine RCRA and its purposes with a view toward assessing whether territorial limits to its application are appropriate.
Extraterritorial application of laws is the exercise of jurisdiction over persons, objects, and events beyond the traditionally recognized limits of the land and citizenry of the legislating state. The extraterritorial application of United States law has been a dynamic topic since the nation's founding. As the country and its interests abroad have expanded, so have the principles governing the exportation of its laws. Although the jurisdiction of congressional legislation was once easy to discern, a diversity of standards in different fields of law, and even a number of standards within a single field, now govern. There are several models available for determining whether and, more importantly, in what circumstances RCRA should apply outside U.S. territory. Since Amlon was a case of first impression, its holding has significant implications for the future of RCRA's extraterritorial application.
This Article first analyzes whether RCRA applies extraterritorially and finds that, given the current state of the law on the topic, it does not. After surveying the application of domestic law abroad by U.S. courts, this Article next reviews the standards those courts used. Applying these standards, this Article suggests that Congress should amend RCRA so that its citizen suit provision applies when the illegal conduct is committed within U.S. borders. Congress can accomplish this by adopting a clear statement of congressional intent to apply RCRA extraterritorially. Additionally, the Article examines whether alternative grounds for U.S. jurisdiction exist based upon the Alien Tort Statute, and it considers the possible implications of the Basel Convention, a multilateral treaty on international hazardous waste transfers. This Article concludes that neither alternative avenue is available to pursue illegal U.S. exporters of hazardous waste, and that RCRA, once amended, would be an effective vehicle for such regulation.
Part II of this article outlines the pertinent aspects of RCRA, including relevant statutory language and legislative history. Part III sets forth the facts and holdings of Amlon v. FMC, the case that first demonstrated the lack of an adequate remedy for victims of the unlawful exportation of U.S. hazardous waste. Part IV analyzes the principles that have governed extending the application of U.S. law extraterritorially, both as suggested by the Restatement of Foreign Relations Law and as applied by U.S. courts in the key areas of antitrust, securities and employment discrimination. Part V applies these principles to the Amlon facts and suggests that the principles allow for expanding RCRA's application to include specific types of illicit international hazardous waste transactions. Part VI examines the potential for addressing claims under international law and the Alien Tort Statute, while Part VII investigates the potential impact of the multilateral Basel Convention. The article concludes that international law provides an insufficient remedy for transborder environmental torts, leaving an amended RCRA as the best proximate solution to violations of hazardous waste export law.
