THE INTERSECTION OF EQUAL AND ENVIRONMENTAL PROTECTION… · ENVIRONMENTAL PROTECTION: A NEW...

THE INTERSECTION OF EQUAL AND ENVIRONMENTAL PROTECTION:

A NEW DIRECTION FOR ENVIRONMENTAL ALIEN TORT CLAIMS AFTER SAREI AND

SOSA

Sarah M. Morris*

“In our time, the idea of racial equality has acquired far greater force than its eighteenth-century companions of (personal) liberty and fraternity.”1

~

“International law must be based on values, the fundamental values of this century being human rights and the environment.”2

I. INTRODUCTION

Few jurisdictional statutes generate the amount of controversy that has surrounded the Alien Tort Statute (ATS) over the last three decades. Though the First Congress enacted the ATS in 1789, it was not until nearly two centuries later, in Filártiga v. Peña-

* Sarah M. Morris is a 2010 J.D. candidate at Columbia Law School. The

author would like to thank Sarah Cleveland, Gail Suchman, Laird Nelson, and Philip Gary for their generous guidance in writing this Note.

1. Egon Schwelb, The International Convention on the Elimination of All Forms of Racial Discrimination, 15 Int’l & Comp. L.Q. 996, 1057 (1966).

2. U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm’n on Prevention of Discrimination and Prot. of Minorities, Review of Further Developments in Fields with which the Sub-Commission Has Been Concerned: Human Rights and the Environment, ¶ 257, U.N. Doc. E/CN.4/Sub.2/1994/9 (July 6, 1994) (prepared by Fatma Zohra Ksentini) [hereinafter U.N. Human Rights and Environment Report]; accord Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 Stan. J. Int’l L. 103, 138 (1991–1992) [hereinafter Shelton, Human Rights] (“Human rights and environmental protection are two of the most fundamental concerns of modern international law.”).

276 COLUMBIA HUMAN RIGHTS LAW REVIEW [41:275

Irala, that the ATS reemerged as a new avenue for the adjudication of international human rights violations.3 In 2004, the Supreme Court, in Sosa v. Alvarez-Machain, affirmed that the ATS provides jurisdiction for violations of customary international law, including human rights violations, but significantly narrowed the scope of that jurisdiction.4 After Sosa, plaintiffs may only bring ATS suits for violations of widely accepted, highly definite norms of customary international law.5

Since Filártiga, and even after Sosa’s restrictions, human rights advocates have brought ATS claims to vindicate a multitude of human rights. Thus far, victims of environmental harms have been among the least successful ATS plaintiffs. Courts have closed their doors to Peruvian miners, residents of Bhopal, India, and Indonesian villagers, declining to recognize claims based on the rights to life, health, or development.6 Sosa’s strict standard means that such claims are unlikely to succeed in the future. Yet in Sarei v. Rio Tinto, PLC, a case alleging environmental and other human rights violations arising from the operation of a copper mine, both the district court and the Ninth Circuit indicated that plaintiffs’ claims of racial discrimination were cognizable under the ATS.7

This Note argues that certain environmental justice claims are cognizable under the ATS as violations of customary international law’s prohibition of racial discrimination. The concept of racial discrimination in the environmental context shall be referred to as “environmental racism” throughout this Note. Part II discusses the passage of the ATS and relevant modern case law, particularly Sosa and its implications for future litigation. Part III analyzes whether racial discrimination and environmental racism

3. Filártiga v. Peña-Irala, 630 F.2d 876, 877–78 (2d Cir. 1980). 4. Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). 5. Id. at 725. 6. Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003) (Peruvian

miners); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) (Bhopal residents); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999) (Indonesian villagers).

7. Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1221 (9th Cir. 2007), vacated on reh’g en banc, 550 F.3d 882 (9th Cir. 2008) (en banc plurality opinion), remanded to CV 00-11695 MMM (MANx), 2009 U.S. Dist. LEXIS 83903 (9th Cir. July 31, 2009). The Ninth Circuit vacated and reheard the case en banc to consider the role of exhaustion under the ATS and did not opine on the merits of the racial discrimination claim. Sarei v. Rio Tinto, PLC, 550 F.3d 822, 826 (2008) (en banc plurality opinion).

2009] EQUAL AND ENVIRONMENTAL PROTECTION 277

are sufficiently “definite . . . and accept[ed]”8 norms of customary international law to support future ATS suits. Part IV finds that customary international law has identified four forms of environmental racism: discrimination as to (1) concentration of environmental burdens; (2) environmental deprivations of human rights; (3) particularly vulnerable racial communities; and (4) procedural environmental rights. This part concludes that environmental racism is sufficiently definite to be cognizable under the ATS as a violation of customary international law. After analyzing the four types of environmental racism, Part V determines that systematic, discriminatory interference with property and procedural rights, especially when targeted at particularly vulnerable racial groups such as indigenous peoples, are the claims most likely to succeed in future ATS suits. In so concluding, this Note hopes to offer a way forward for environmental claims under the ATS.

II. LEGAL FRAMEWORK OF THE ATS

A. Before Sosa v. Alvarez-Machain

In 1789, the First Congress passed the Alien Tort Statute (ATS), granting “[t]he district courts . . . original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”9 The law of nations is more commonly known today as customary international law.10 Customary international law “results from a general and consistent

8. Sosa, 542 U.S. at 732 (providing the standard against which courts must

measure customary international norms in ATS suits). 9. Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77 (1789), codified at 28

U.S.C. § 1350 (2009) [hereinafter ATS]; Beth Stephens et al., International Human Rights Litigation in U.S. Courts 1 (2d ed. 2008). The ATS is also known as the Alien Tort Claims Act, but shall be referred to as the ATS in this Note.

10. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) (defining customary international law as “the direct descendant of the law of nations”); Restatement (Third) of Foreign Relations Law of the United States, Introductory Note to Part IV, ch. 2 (1987) (explaining that the law of nations has come to be referred to as international law). Customary international law is one of three recognized sources of international law, the remaining two of which are international agreements and general principles common to the world’s major legal systems. Restatement.§ 102(1).


practice of states followed by them from a sense of legal obligation.”11 Widely accepted international agreements may lead to the creation of customary international law.12

The ATS lay dormant for nearly two centuries, until Filártiga v. Peña-Irala construed the ATS to provide federal jurisdiction over certain human rights violations.13 Since then, the ATS and its potential to open U.S. courts to international human rights litigation have generated much controversy and scrutiny by courts, commentators, and media.14 The controversy, however, exceeds the results, as only about two dozen ATS cases had resulted in final judgments as of 2004, and the overwhelming majority of ATS suits have been unsuccessful.15

B. Sosa v. Alvarez-Machain

After Filártiga, U.S. courts agreed that the ATS provided jurisdiction for causes alleging violations of the law of nations, but did not agree if it also conferred a private cause of action.16 The

11. Restatement (Third) of Foreign Relations Law of the United States § 102(2) (1987).

12. Id. § 102(3). This includes international human rights agreements. See id. at Introductory Note to Part VII (“The international law of human rights also includes a number of international human rights agreements.”).

13. 630 F.2d 876, 878 (2d Cir. 1980) (holding that torture is a violation of customary international law actionable under the ATS); Stephens et al., supra note 9, at 1. The Filártiga court held that the ATS provides jurisdiction when (1) an alien sues (2) for a tort (3) committed in violation of the law of nations. Filártiga, 630 F.2d at 887. Though the third criterion also includes violations of a “treaty of the United States,” this addition is of little import, because the United States’ practice is to declare non-self-executing the human rights treaties it ratifies, thereby precluding private causes of action under those treaties. See generally, Louis Henkin, Foreign Affairs and the United States Constitution 198–203 (2d ed. 1996). The ATS also requires state action. While it may be possible to hold non-state defendants liable under the ATS, the state action requirement is beyond the scope of this Note. See also infra note 46.

14. Beth Stephens, Sosa v. Alvarez-Machain: “The Door is Still Ajar” for Human Rights Litigation in U.S. Courts, 70 Brook. L. Rev. 533, 534–35 (2004–2005) (summarizing the post-Filártiga history of ATS litigation).

15. Id. at 534. 16. See id. at 534, 541–43 (detailing lower court disagreement over

whether the statute was purely jurisdictional or if it also conferred a private cause of action). Compare Filártiga, 630 F.2d at 887 (determining that the ATS creates federal jurisdiction over “rights recognized by international law” without requiring congressional authorization) with Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 801–08 (D.C. Cir. 1984) (Bork, J., concurring) (arguing that the ATS’s jurisdiction is limited only to violations of the law of nations recognized in


Supreme Court took up the controversy in 2004 with Sosa v. Alvarez-Machain.17 In Sosa, Mexican national Alvarez-Machain alleged a violation of a norm of customary international law prohibiting arbitrary detention. The suit arose after Alvarez was abducted in Mexico by Mexican nationals, held overnight, and brought to the United States to be arrested, allegedly at the behest of the U.S. government.18

The Sosa decision defined the types of claims that are actionable under the ATS. The Court held that the ATS is “in terms only jurisdictional . . . [but] at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.”19 Today, that “very limited category” must consist of “norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms” known to the First Congress when it passed the ATS.20 Only those norms with “definite content and acceptance among civilized nations” meet this standard.21 Furthermore, the Court emphasized the need for judicial restraint in recognizing new norms of international law.22 Citing lack of authority for “a rule so broad . . .

1789 and that jurisdiction over additional violations does not exist absent express congressional authorization). Many commentators agreed with Judge Bork’s position in Tel-Oren, though no court ever followed it. Stephens et al., supra note 9, at 12–13. Sosa ultimately adopted Filártiga’s position. Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004).

17. 542 U.S. 692. 18. Id. at 698. 19. Id. at 712; see Stephens et al., supra note 9, at 33–36 (explaining Sosa’s

discussion of this point and detailing the source of a cause of action under the ATS after Sosa).

20. Sosa, 542 U.S. at 725. The Court defined those paradigms to be violation of safe conducts, infringement of the rights of ambassadors, and piracy. Id. at 724. The Court looked to William Blackstone to generate this list and found it to be exhaustive as to the paradigms that the First Congress contemplated. Id. at 715.

21. Id. at 732; see Stephens et al., supra note 9, at 50–54 (explaining Sosa’s “definite . . . and accept[ed]” standard). On this point, the Court essentially endorsed the test used by the lower courts before Sosa, which required that a norm be “specific, universal, and obligatory.” Sosa, 542 U.S. at 732 (citing In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)); see Stephens et al., supra note 9, at 48–50, 57–59 (describing the similarities between Sosa and lower court decisions).

22. Sosa, 542 U.S. at 732–33. The Court cautioned that “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical


[that the] implications would be breathtaking,”23 the Court rejected Alvarez’s claim, finding that a single-day detention “violates no norm of customary international law so well defined as to support” an ATS claim.24 Hence, after Sosa, an ATS plaintiff must prove (1) a sufficiently definite norm of customary international law and (2) facts that amount to a violation of that norm.25

C. Sosa’s Guidance on Establishing Norms of Customary International Law

Sosa simultaneously defined the types of claims actionable under the ATS and provided guidance for future plaintiffs to make out successful claims. As to the sources that plaintiffs may cite to prove a norm has become customary international law, the Sosa Court turned to the existing legal framework. This framework was established in United States v. Smith, reaffirmed in The Paquete Habana, and catalogued in the Restatement of Foreign Relations of the United States.26 Under this framework, customary international

consequences of making that cause available to litigants in federal courts.” Id.; see Stephens et al., supra note 9, at 54–57 (explaining Sosa’s cautionary principles and arguing that any court finding that a norm is actionable has necessarily evaluated the practical consequences of that finding); Ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 Vand. L. Rev. 2241, 2265 (2004) (citing Sosa’s “repeated rhetoric of caution”).

23. Sosa, 542 U.S. at 736. 24. Id. at 738; see Stephens et al., supra note 9, at 53–54 (observing that

Sosa noted an international consensus prohibiting arbitrary detention, but characterized that consensus as too imprecise to determine “what behavior falls within it”). The Sosa Court thus did not reach the question of whether there exists a norm of customary international law prohibiting arbitrary detention. Stephens et al., supra note 9, at 54.

25. See Stephens et al., supra note 9, at 47 (explaining that an ATS court must analyze whether the norm at issue meets the Sosa standard and whether the specific conduct alleged amounts to a violation of that norm); Stephens, supra note 14, at 554 (describing the Supreme Court’s holding as an objection, not to the standard of arbitrary detention, but to the application of that standard to Sosa’s facts).

26. Sosa, 542 U.S. at 734 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)); see United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820); Restatement (Third) of Foreign Relations Law of the United States § 103(2) (1987); Stephens et al., supra note 9, at 67 (explaining that The Paquete Habana “reaffirmed” Smith’s standard and noting the Restatement’s similar categorization of the sources of customary international law). As these similar, yet not identical, formulations show, there is no universal agreement as to the definition of customary


law “may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law.”27 After Sosa, the amount and depth of supporting sources required is quite high, as Sosa found that a survey of national constitutions, one International Court of Justice case, and “some authority drawn from the federal courts” did not suffice to establish a norm of customary international law.28

As to the level of consensus required to prove a norm has become binding customary international law, the Sosa Court looked to Smith.29 In Smith, the Supreme Court asked whether piracy “is defined by the law of nations with reasonable certainty.”30 The Smith Court noted that “scarcely a writer on the law of nations . . . does not allude to piracy as a crime” and concluded that “whatever may be the diversity of definitions, in other respects, all writers concur . . . that robbery . . . upon the sea, animo furandi, is piracy.”31 The Smith standard therefore requires a high degree of consensus, yet notes that such a consensus may exist even among a “diversity of definitions.”32

international law. Restatement (Third) of Foreign Relations Law of the United States § 102 reporter’s note 2 (1987).

27. Smith, 18 U.S. (5 Wheat.) at 160–61; see The Paquete Habana, 175 U.S. at 700; Restatement (Third) of Foreign Relations Law of the United States §§ 102–03 (1987).

28. Sosa, 542 U.S. at 736 n.27. 29. Id. at 732 (citing Smith, 18 U.S. (5 Wheat.) at 153); Stephens et al.,

supra note 9, at 51 (discussing Sosa’s citation of Smith “as a model of the specificity needed for modern application of the ATS”).

30. Smith, 18 U.S. (5 Wheat.) at 160. 31. Id. at 161. 32. Id.; see Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (“It

is not necessary that every aspect of what might comprise a [norm] . . . be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law . . . .”); Stephens et al., supra note 9, at 49–53, 133–34 (noting that both Sosa and Smith tolerate some disagreement, provided plaintiffs can prove a sufficiently precise general consensus); Richard Herz, Litigating Environmental Abuses Under the Alien Tort Claims Act: A Practical Assessment, 40 Va. J. Int’l L. 545, 557 (2000) (“A plaintiff, however, need not show that sufficient criteria exist regarding every aspect of the norm.”); Steinhardt, supra note 22, at 2262 (noting that Sosa reaffirmed that the correct methodological approach is to “look for . . . redundancy”); Stephens, supra note 14, at 553 (noting that Smith did not require unanimity of definition and held that it was sufficient that commentators agreed on the “core definition” of piracy).


The Sosa Court also opined on the specific sources Alvarez cited in support of his customary international law claim. According to the Court, neither the Universal Declaration of Human Rights (UDHR) nor the International Covenant on Civil and Political Rights (ICCPR) create legal obligations enforceable in U.S. courts.33 However, many decisions before Sosa considered non-self-executing and non-binding agreements not as “themselves establish[ing] . . . international law,” but as evidence that a norm has become customary international law.34 Sosa itself did not disapprove of this method of discerning customary international law.35 After Sosa, such agreements remain relevant to ATS suits, as they may be cited as proof that a norm has crystallized into customary international law.36

The Sosa Court also considered the Restatement (Third) on the Foreign Relations Law of the United States (Restatement), a document frequently cited by ATS plaintiffs.37 Section 702, titled “Customary International Law of Human Rights,” is the most cited provision, and it provides:

33. Sosa, 542 U.S. at 734–35. The Court noted that the UDHR’s drafters

described it as a “statement of principles” not intended to impose legal obligations. Similarly, Congress ratified the ICCPR “on the express understanding that it . . . did not itself create obligations enforceable in the federal courts.” Id.

34. Id. at 735 (emphasis added); see Restatement (Third) of Foreign Relations Law of the United States § 102(3) (1987) (“International agreements . . . may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.”); Stephens et al., supra note 9, at 67–69 (describing how lower courts have cited such agreements not as themselves binding but as evidence of customary international law). International human rights agreements have the same evidentiary value in this context as other international agreements. Restatement (Third) of Foreign Relations Law of the United States, Introductory Note to Part VII (1987).

35. Sosa, 542 U.S. at 734–35; Stephens et al., supra note 9, at 68. Indeed, the Sosa Court only considered whether the ICCPR established a privately enforceable cause of action. Sosa, 542 U.S. at 734–35; see infra note 53 (citing the ICCPR). The Court did not consider the ICCPR in its discussion of customary international law. Stephens et al., supra note 9, at 69.

36. Stephens et al., supra note 9, at 69 (“Sosa certainly did not rule out reference to . . . non-self-executing treaties, or non-binding resolutions to determine the content of customary international law as part of a broader review of international law sources.”).

37. Sosa, 542 U.S. at 737; see Herz, supra note 32, at 555 (noting that, because of the amorphous nature of customary international law, judges are likely to defer to the Restatement, as it exemplifies the type of work to be considered under Smith’s expert writings prong).


A state violates international law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.38

Yet the Sosa Court noted that the Restatement’s “limits are only the beginning of the enquiry, because . . . it may be harder to say which policies cross [the Restatement’s] line with the [requisite] certainty.”39 This statement reiterates Sosa’s requirement that future plaintiffs must prove not only a norm of customary international law, but also facts amounting to a violation of that norm.40 Mere citation of a norm, with little support beyond the Restatement, will not suffice to establish a violation.41

D. Additional Methods of Establishing Norms of Customary International Law

Other principles of international law, upon which the Sosa Court did not comment, may support future ATS claims. For instance, conduct proscribed by jus cogens or subject to universal jurisdiction is likely so widely condemned that it would meet Sosa’s standard.42 The Restatement suggests that jus cogens “norms might

38. Restatement (Third) of Foreign Relations Law of the United States §

702 (1987); see Stephens et al., supra note 9, at 70 (documenting that many ATS plaintiffs invoke Restatement § 702 as proof of customary international law).

39. Sosa, 542 U.S. at 737. 40. See supra note 25 and accompanying text. 41. Stephens et al., supra note 9, at 70 (detailing how the Restatement

alone may not “provide the clear definition required to trigger ATS jurisdiction” after Sosa).

42. Jus cogens norms are rules of international law recognized as peremptory and permitting no derogation. Vienna Convention on the Law of Treaties arts. 53, 64, May 23, 1969, 1155 U.N.T.S. 331, 334, 347; Restatement (Third) of Foreign Relations Law of the United States § 102 cmt. k (1987); see David S. Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 Duke J. Comp. & Int’l L. 219, 228 (2005) (explaining that jus cogens means higher law and refers to those principles whose perceived importance renders them superior to another principle, norm, or rule). Before Sosa, some lower courts required plaintiffs to prove a violation of a jus cogens norm in order to make out a valid ATS claim. Several commentators argued against this requirement. See, e.g., William S. Dodge, Which Torts in Violation of the Law of Nations?, 24 Hastings Int’l &


include rules prohibiting genocide, slave trade and slavery, apartheid and other gross violations of human rights.”43 The Restatement also lists offenses that may be subject to universal jurisdiction, because of their status as offenses “of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, [and] war crimes.”44 Such jurisdiction is not limited to criminal law.45 To attain jus cogens status or to be subject to universal jurisdiction, a norm must be universally accepted and the underlying behavior widely condemned. As such, that norm is likely to meet Sosa’s standard.46

Comp. L. Rev. 351, 358 (2001); Herz, supra note 32, at 554. The Sosa Court did not suggest that such a showing is required. See Hugh King, Sosa v. Alvarez-Machain and the Alien Tort Claims Act, 37 Vict. U. Wellington L. Rev. 1, 17–18 (2006) (stating that the Sosa standard is not equivalent to a jus cogens standard).

43. Restatement (Third) of Foreign Relations Law of the United States § 102 reporter’s note 6 (1987).

44. Id. § 404. 45. Id. § 404 cmt. b. 46. The jus cogens and universal jurisdiction concepts are also relevant to

the state action requirement. Lower courts have recognized “a handful of other private acts” to which individual liability may attach even in the absence of state action, though courts have not agreed on which acts comprise the handful. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 794–95 (D.C. Cir. 1984) (Edwards, J., concurring) (suggesting that torture committed by a non-state actor does not violate the “law of nations” under the ATS); see, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 447–48 (2d Cir. 2000) (citing Kadic v. Karadzic, 70 F.3d 232, 241–43 (2d Cir. 1995) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 795 (D.C. Cir. 1984))) (finding that prohibitions of genocide and war crimes apply to private individuals); Herz, supra note 32, at 551 (arguing that state action is required for “some but not all customary international law claims”). However, courts have rejected a related argument that jus cogens supersedes sovereign immunity. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718–19 (9th Cir. 1992) (determining that the Foreign Sovereign Immunities Act does not impliedly contain a jus cogens exception and that any such exception must come expressly from Congress). Further analysis of the state action requirement, however, is beyond the scope of this Note. See also supra note 13. Also beyond the scope of this Note are other issues common to ATS suits, including questions of corporate or vicarious liability, immunities, and prudential doctrines including act of state, forum non conveniens, international comity, and political question. It is, however, worth noting that the act of state doctrine includes the caveat that the “greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964). Given that racism is a subject on which there is a high degree of consensus, see infra Part III.A, a racial discrimination claim could help plaintiffs overcome the prudential doctrines that have barred previous ATS suits. For a further explanation of Sabbatino’s effect on claims of discriminatory expropriation of property, see infra notes 298–301 and accompanying text.


After Sosa, therefore, ATS suits face a strict standard. However, that standard is not insurmountable. Customary international law is neither static nor universally, exhaustively defined.47 The Supreme Court itself recognized that Sosa does not shut U.S. courtroom doors to international human rights litigation under the ATS; rather, Sosa ensures that the “door is still ajar subject to vigilant doorkeeping.”48 Even after Sosa, the most egregious violations of international law still present viable ATS claims.49

III. SAREI V. RIO TINTO, PLC, RACIAL DISCRIMINATION, AND THE ATS

Plaintiffs bringing environmental claims under the ATS have had little success.50 In such cases, there is generally no dispute that a tort has occurred; instead, the dispute centers on whether the tort is cognizable under the ATS.51 Likewise, the case law does not suggest that the ATS forecloses suits based on environmental harms; instead it shows that plaintiffs have not yet established environmental norms that are sufficiently definite to found an ATS suit.52 Courts

47. See Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995) (citing H.R. Rep.

No. 102-367 at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86) (noting that the ATS “should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law”); Restatement (Third) of Foreign Relations Law of the United States, § 702 cmt. a (1987) (noting that § 702’s list of the customary international law of human rights “is not necessarily complete, and is not closed”); Stephens et al., supra note 9, at 59–61 (detailing Sosa’s recognition of customary international law’s ability to evolve); Claire Charters, Developments in Indigenous Peoples’ Rights Under International Law and Their Domestic Implications, 21 N.Z.U. L. Rev. 511, 516 (2005) (describing the “indeterminacy of international law” and uncertainty regarding “the attributes of customary international law, especially in the context of human rights”).

48. Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004). 49. Stephens et al., supra note 9, at 2, 47; Steinhardt, supra note 22, at

2264. 50. See generally Stephens et al., supra note 9, at 205–09 (detailing how

environmental claims under the ATS have been largely unsuccessful). 51. Hari M. Osofsky, Learning from Environmental Justice: A New Model

for International Environmental Rights, 24 Stan. Envtl. L.J. 71, 95 (2005) (citing two environmental ATS cases, Flores and Sarei, and noting that neither court questioned whether a tort had occurred).

52. See, e.g., Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 370 (E.D. La. 1997) (discussing the requirement that a claim assert a violation of the laws of nations), aff’d, 197 F.3d 161 (5th Cir. 1999); see also Herz, supra note 32, at


have rejected claims based on violations of the right to life,53 the right

551 (stating that environmental suits can succeed under the ATS, though such suits “face many obstacles”); Russell Unger, Note, Brandishing the Precautionary Principle Through the Alien Tort Claims Act, 9 N.Y.U. Envtl. L.J. 638, 647 (2001) (“[D]istrict courts that have heard environmental claims under the AT[S] agree that the statute may apply to international environmental torts.”).

53. While “the right to life” is certainly established under U.S. and international law, this right is generally interpreted to confer protection solely against the arbitrary deprivation of life. See, e.g., International Covenant on Civil and Political Rights art. 6(1), opened for signature Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR] (“Every human being has the inherent right to life . . . No one shall be arbitrarily deprived of his life.”); Doe v. Liu Qi, 349 F. Supp. 2d 1258, 1328 n.45 (N.D. Cal. 2004) (finding that living plaintiffs asserted no claims based on the right to life, as such claims must be “predicated on actions resulting in the taking of human life”); Robin Geiss, Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-up Assessment of Long-term Effects, 18 Harv. Hum. Rts. J. 167, 181 (2005) (noting that the right to life under the ICCPR protects against arbitrary deprivation of life, but “not . . . the deprivation of life in general”). Some, including plaintiffs in environmental ATS suits, have taken a different approach to the right to life. They assert that severe environmental pollution may amount to a violation of the right to life. See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233, 237–38 (2d Cir. 2003); Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1156 (C.D. Cal. 2002), vacated on reh’g en banc, 550 F.3d 882 (9th Cir. 2008) (en banc plurality opinion), remanded to CV 00-11695 MMM (MANx), 2009 U.S. Dist. LEXIS 83903 (9th Cir. July 31, 2009); Neil A. Popovic, In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment, 27 Colum. Hum. Rts. L. Rev. 487, 515 (1996) (observing that environmental problems that endanger life may implicate the right to life). ATS suits have cited the ICCPR, as well as the UDHR, the Rio Declaration on Environment and Development, and the charters of the regional human rights systems in support of such an interpretation. See Flores, 414 F.3d at 254–55, 257–58; Sarei, 221 F. Supp. 2d at 1156; see also Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 art. 25 (Dec. 10, 1948) [hereinafter UDHR] (enshrining “the right to a standard of living adequate for the health and well-being of himself and of his family”); U.N. Conference on Environment and Development, Rio de Janeiro, Braz., June 3–14, 1992, Rio Declaration on Environment and Development, princ. 1, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I) (Aug. 12, 1992) [hereinafter Rio Declaration] (declaring the universal right “to a healthy and productive life in harmony with nature”). A number of international bodies and courts in other countries have been receptive to this interpretation. See, e.g., Inter-American Comm’n on Human Rights, Ecuador Country Report, Ch. VIII § 2, http://www.cidh.org/countryrep/ecuador-eng/Chaper-8.htm#N_17_ (1997) [hereinafter IACHR Ecuador Country Report]; Jona Razzaque, Linking Human Rights, Development, and Environment: Experiences from Litigation in South Asia, 18 Fordham Envt’l. L. Rev. 587, 592–93 (2007) (explaining cases from high courts in India, Bangladesh, and Pakistan finding that environmental harm


to health,54 and the right to sustainable development.55 The UDHR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Rio Declaration on Environment and Development (Rio Declaration),56 the Stockholm Declaration on the Human Environment (Stockholm Declaration),57 and principles of international environmental law58 have each been deemed too

violates the right to life); Nickie Vlavianos, Public Participation and the Disposition of Oil and Gas Rights in Alberta, 17 J. Envtl. L. & Prac. 205, 225 (2005) (detailing the growing body of European Court of Human Rights law recognizing the link between environmental harm and the right to life). U.S. courts, however, have thus far rejected this interpretation of the right to life for purposes of an ATS suit. See Flores, 414 F.3d at 254 (characterizing such an interpretation of the right to life as “insufficiently definite” to support an ATS claim); Sarei, 221 F. Supp. 2d at 1158, 1160 (determining that the right to life is not sufficiently specific to state an ATS claim, in part because nations do not “universally recognize [the rights to life and health] can be violated by perpetrating environmental harm”); Stephens et al., supra note 9, at 197–98, 208 (describing ATS courts’ refusal to recognize within the right to life the harms caused by environmental degradation).

54. See Flores, 343 F.3d at 160 (characterizing the right to health as “insufficiently definite” to support an ATS claim).

55. See Flores v. S. Peru Copper Corp., 253 F. Supp. 2d 510, 525 (S.D.N.Y. 2002) (dismissing the plaintiffs’ claims based on the right to life, right to health, and right to sustainable development), aff’d, 414 F.3d 233 (2d Cir. 2003). On appeal, plaintiffs did not pursue the claim based on the right to sustainable development. Flores, 414 F.3d at 238 n.3. See also Lucien J. Dhooge, Lohengrin Revealed: The Implications of Sosa v. Alvarez-Machain for Human Rights Litigation Pursuant to the Alien Tort Claims Act, 28 Loy. L.A. Int’l & Comp. L. Rev. 393, 406 (2006) (arguing that even if such claims had not been dismissed, granting them would contravene the international law principle that permits states to exploit their natural resources without injury to other states). For a discussion of a sovereign state’s right to exploit its own resources, see infra notes 239–240 and accompanying text.

56. See Flores, 414 F.3d at 254–55 (rejecting as “boundless and indeterminate” the rights to life and health contained in the UDHR, the ICESCR, and the Rio Declaration); Beanal, 197 F.3d at 167 (rejecting the Rio Declaration as establishing customary international law).

57. See Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 671 (S.D.N.Y. 1991) (rejecting the Stockholm Declaration principles as “refer[ing] only in a general sense to the responsibility of nations” to avoid transboundary pollution); U.N. Conference on the Human Environment, Stockholm, Swed., June 5–16, 1972, Report of the United Nations Conference on the Human Environment, 4, U.N. Doc. A/CONF.48/14 (1972) [hereinafter Stockholm Declaration].

58. See Beanal, 197 F.3d at 167 (rejecting the Rio Declaration and the Polluter Pays Principle, the Precautionary Principle, and the Proximity Principle as “merely refer[ing] to a general sense of environmental responsibility and stat[ing] abstract rights and liberties devoid of articulable or discernable standards”).


indeterminate to support an ATS claim. In Sarei v. Rio Tinto, PLC, the Ninth Circuit initially held that the United Nations Convention on the Law of the Sea could provide the foundation for an ATS claim, but withdrew that holding in a reissued decision.59

Nevertheless, Sarei is instructive, because of its finding that the plaintiffs’ racial discrimination claims were cognizable under the ATS.60 In Sarei, Papua New Guinean villagers sued Rio Tinto for, inter alia, environmental devastation and racial discrimination arising from its operation of a copper mine in their village.61 The plaintiffs alleged that they, as black workers, were paid lower wages than white workers and lived in “slave-like conditions.”62 Their complaint further alleged that the Australian Minister of Labor accused Rio Tinto of paying black workers “slave wages” after visiting the mine in 1969.63 The plaintiffs also contended that Rio Tinto’s environmental destruction “ripped apart” their culture and economy while undermining their health.64 Rio Tinto’s conduct, the plaintiffs alleged, resulted from its belief that the villagers and their land were “inferior and expendable.”65

The Sarei plaintiffs were not the first ATS plaintiffs to allege racial discrimination in an ATS suit. Sarei was, however, the first case that reached and upheld a racial discrimination claim, rather than dismissing on procedural or prudential grounds.66 After Sarei,

59. Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1078 (9th Cir. 2006),

withdrawn, 487 F.3d 1193 (9th Cir. 2007), vacated on reh’g en banc, 550 F.3d 882 (9th Cir. 2008) (en banc plurality opinion), remanded to CV 00-11695 MMM (MANx), 2009 U.S. Dist. LEXIS 83903 (9th Cir. July 31, 2009). The Ninth Circuit ultimately vacated the decision finding racial discrimination actionable under the ATS, but did so in favor of considering the role of exhaustion under the ATS. Sarei v. Rio Tinto, PLC, 550 F.3d 822, 826 (2008) (en banc plurality opinion). Subsequent opinions in the case have not discussed the merits of the racial discrimination claim. Id.

60. Sarei, 487 F.3d at 1221 (including “systematic racial discrimination” among the “modern substantive equivalents” of piracy for which the ATS provides jurisdiction after Sosa).

61. Id. at 1197–98. 62. Id. at 1198. 63. Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1124 (C.D. Cal. 2002),

vacated on reh’g en banc, 550 F.3d 882 (9th Cir. 2008) (en banc plurality opinion), remanded to CV 00-11695 MMM (MANx), 2009 U.S. Dist. LEXIS 83903 (9th Cir. July 31, 2009).

64. Id. 65. Id. 66. See, e.g., Bancoult v. McNamara, 445 F.3d 427, 431 (D.C. Cir. 2006)

(Indian Ocean islander plaintiffs alleging racial discrimination in their eviction


alleging racial discrimination is a promising post-Sosa way forward for plaintiffs seeking to vindicate environmental harms under the ATS.67 Under Sosa’s framework, such plaintiffs will need to prove (1) a customary international law prohibition of racial discrimination and (2) facts (i.e., instances of environmental racism) amounting to a violation of that norm.68 This part addresses each of these two prongs in turn.

A. Customary International Law Prohibition of Systematic Racial Discrimination

“Systematic racial discrimination” is among the violations of the customary international law of human rights cited in Restatement section 702.69 The Restatement’s comments elaborate that “occasional official practices of racial discrimination” do not amount to a violation; rather, the section is intended to reach racial discrimination “when it is practiced systematically as a matter of state policy, e.g., apartheid.”70 Numerous courts, before and after Sosa, have cited racial discrimination as a definite norm upon which ATS suits may be founded.71 Even more courts have cited section 702 from their land in favor of a naval base); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 420, 439–40 (S.D.N.Y. 2002) (Zimbabwean plaintiffs alleging racial discrimination under Robert Mugabe’s regime), aff’d in part, rev’d in part, 386 F.3d 205 (2d Cir. 2004); Bano v. Union Carbide Corp., No. 99 Civ. 11329(JFK), 2000 WL 1225789, at *5 (S.D.N.Y. Aug. 28, 2000) (Indian plaintiffs alleging racial discrimination in the practices that led to the Bhopal industrial disaster), aff’d in part, vacated in part, 273 F.3d 120 (2d Cir. 2001). Neither Bancoult nor Bano reached the merits of the racial discrimination claim. The district court in Tachiona granted the racial discrimination claim, but the court of appeals later dismissed the suit on other grounds.

67. See Osofsky, supra note 51, at 129 (noting that courts were less hostile to the argument that environmental harm was part of a pattern of discrimination); James Boeving, Essay, Half Full . . . or Completely Empty?: Environmental Alien Tort Claims Post Sosa v. Alvarez-Machain, 18 Geo. Int’l Envtl. L. Rev. 109, 130 (2005) (“[H]uman rights based [ATS] suits that have an environmental component, but that do not rely solely on environmental harm, are more likely to have success.”).

68. See supra note 25 and accompanying text. 69. Restatement (Third) of Foreign Relations Law of the United States §

702(f) (1987). 70. Id. § 702 cmt. i. 71. See Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1209 (9th Cir. 2007),

vacated on reh’g en banc, 550 F.3d 882 (9th Cir. 2008) (en banc plurality opinion), remanded to CV 00-11695 MMM (MANx), 2009 U.S. Dist. LEXIS 83903 (9th Cir. July 31, 2009); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 426 (S.D.N.Y. 2002), aff’d in part, rev’d in part, 386 F.3d 205 (2d Cir. 2004); Stephens et al., supra note


in general as an authoritative source codifying customary international law.72 In this context, it is important to recall Sosa’s warning that “[e]ven the Restatement’s limits are only the beginning of the enquiry.”73 This caution will require plaintiffs to prove that customary international law prohibits environmental racism and that their facts fall under this prohibition, as discussed infra in Part III.B.74

Myriad human rights instruments prohibit racial discrimination,75 most notably the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)76 and the

9, at 202–04 (discussing courts’ recognition of systematic racial discrimination claims under the ATS). One case, however, dismissed an ATS claim based in part on racial discrimination. See Mendonca v. Tidewater, Inc., 159 F. Supp. 2d 299 (E.D. La. 2001). The claim was based on a threat and damage to the plaintiff’s car, two alleged statements indicating work-related discrimination against Native Americans, and allegations that plaintiff’s passport was withheld and he was forced to pay bribes. Id. at 301. The court emphasized that this conduct did not “rise to the level recognized by the law of nations.” Id. at 302. Though it preceded Sosa, Mendonca seemingly fails on Sosa’s second prong, by not alleging facts amounting to a violation of the law of nations, rather than holding that racial discrimination is not prohibited under customary international law. See supra note 25 and accompanying text.

72. See, e.g., Sarei, 487 F.3d at 1221; Bigio, 239 F. 3d at 448; Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1996); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 204 (S.D.N.Y. 2003); Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 371 (E.D. La. 1997), aff’d, 197 F.3d 161 (5th Cir. 1999); Stephens et al., supra note 9, at 70 (documenting that many courts cite Restatement § 702 as evidence of customary international law). At least one court has not held the Restatement in such authoritative regard. See Amlon Metals Inc. v. FMC Corp., 775 F. Supp. 668, 671 (S.D.N.Y. 1991) (asserting that the Restatement “[a]t most . . . iterates the existing U.S. view on the law of nations”). The Supreme Court’s citation of the Restatement in Sosa, albeit with caution, should supersede any doubts regarding its authority. Sosa v. Alvarez-Machain, 542 U.S. 692, 737 (2004).

73. Sosa, 542 U.S. at 737. 74. See also supra note 25 and accompanying text. 75. Stephens et al., supra note 9, at 203. These agreements are relevant to

proving that racial non-discrimination is a norm of customary international law; however, as the Restatement cautions, it is only systematic racial discrimination, practiced by the state as a matter of state policy, that violates customary international law. Restatement (Third) of Foreign Relations Law of the United States § 702 cmt. i (1987); see supra notes 69–70 and accompanying text.

76. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, S. Exec. Doc. C, 95-2 (1978), 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter ICERD]; see Kevin Boyle & Anneliese Baldaccini, A Critical Evaluation of International Human Rights Approaches to Racism, in Discrimination and Human Rights: The Case of


International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention).77 The principle of non-discrimination was the only human right expressly recognized in the United Nations Charter.78 The International Court of Justice has listed protection from racial discrimination among “the basic rights of the human person.”79 Every major international human rights agreement contains a commitment to equal protection and a prohibition against racial discrimination.80 In addition, the Racism 135, 149 (Sandra Fredman ed., 2001) (noting that ICERD was the most widely ratified international human rights treaty until 1993, when the Convention on the Rights of the Child surpassed it). For a list of States Parties to the ICERD, see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsg_no=IV-2&chapter=4&lang=en. Notably, the ICERD imposes duties on States Parties that are “more than merely promotional,” Schwelb, supra note 1, at 1016, which adds to its authority. See Jeffrey M. Blum & Ralph G. Steinhardt, Federal Jurisdiction Over International Human Rights Claims, 22 Harv. Int’l. L.J. 53, 89 (1981) (noting that the most authoritative international norms are those that create immediate legal obligations, as compared to non-obligatory norms that merely encourage appropriate action).

77. International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature Nov. 30, 1973, 1015 U.N.T.S. 243 (entered into force July 18, 1976) [hereinafter Apartheid Convention]. Unlike the ICERD, the Apartheid Convention has not been widely ratified, especially among Western countries. Beth Van Schaack, The Definition of Crimes Against Humanity: Resolving the Incoherence, 37 Colum. J. Transnat’l L. 787, 823 (1999). For a list of States Parties to the Apartheid Convention, see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-7 &chapter=4&lang=en.

78. U.N. Charter art. 1(3); Louis Henkin et al., Human Rights 248 (2d ed. 2009). Moreover, “[t]he aim of racial equality has permeated the law-making, the standard-setting and the standard-applying activities of the United Nations family of organisations since 1945.” Schwelb, supra note 1, at 1057.

79. Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).

80. See U.N. Charter art. 55(c); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families arts. 1, 7, opened for signature Dec. 18, 1990, 30 I.L.M. 1521, G.A. Res. 45/158 annex, U.N. GAOR, 45th Sess., Supp. 49A, U.N. Doc. A/45/49 (1991) (entered into force July 1, 2003); Convention on the Rights of the Child art. 2(2), opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1448 (entered into force Sept. 2, 1990); Convention on the Elimination of All Forms of Discrimination Against Women pmbl., opened for signature Dec. 18, 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (entered into force Sept. 3, 1981) [hereinafter Women’s Convention]; ICCPR, supra note 53, arts. 2(1), 4, 20(2), 23, 25–27; International Covenant on Economic, Social and Cultural Rights art. 2(2), opened for signature Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR]; Convention Relating to the Status of Refugees art. 3, adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954); Convention on the Prevention and


conventions establishing the three regional human rights systems contain similar provisions.81 International bodies have also made declarations to the same effect.82 In the environmental context, the Punishment of the Crime of Genocide art. 2, opened for signature Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention]; United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, pmbl., arts. 2, 9, 21(1), 46(3), U.N. Doc. A/61/L.67 and Add.1 (Sept. 13, 2007); Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res. 47/135, U.N. Doc. A/RES/47/135 (Feb. 3, 1993); Declaration on the Right to Development, G.A. Res. 41/128, arts. 5–6, U.N. Doc. A/RES/41/128 (Dec. 4, 1986); UDHR, supra note 53, arts. 1, 2, 7, 23; U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, ¶ 11, U.N. Doc. E/C.12/2000/13 (Jan. 22–26, 1997). Non-discrimination and equality are generally taken to be positive and negative expressions of the same principle and will be used interchangeably for the purposes of this Note. E.W. Vierdag, The Concept of Discrimination in International Law 7 (1973) (stating that the relationship between discrimination and equality is so close, “an inquiry into the former necessarily entails consideration of the latter”); Anne F. Bayefsky, The Principle of Equality or Non-discrimination in International Law, 11 Hum. Rts. L.J. 1, 1 n.1 (1990) (proposing that equality and non-discrimination are positive and negative statements of the same principle). For an explanation of why, after Sosa described the ICCPR as non-self-executing, ATS plaintiffs may continue to cite the ICCPR as evidence of customary international law, see Stephens et al., supra note 9, at 69.

81. African Charter on Human and Peoples’ Rights (Banjul Charter) pmbl., arts. 2, 3, 19, adopted June 27, 1981, 21 I.L.M. 59 (1981) (entered into force Oct. 21, 1986) [hereinafter African Charter]; American Convention on Human Rights arts. 1, 24, opened for signature Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 (entered into force July 18, 1978) [hereinafter American Convention]; [European] Convention for the Protection of Human Rights and Fundamental Freedoms art. 14, Europ. T.S. No. 5, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953); see also Charter of Fundamental Rights of the European Union art. 37, 2000 O.J. (C 364/8) (requiring states to ensure a “high level of environmental protection and the improvement of the quality of the environment”); Council Directive 2000/43/EC, 2000 O.J. (L 180/22) (implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and recognizing both “direct” and “indirect” racism).

82. G.A. Res 49/146, UN. Doc. No. A/RES/49/146 (Feb. 7, 1995) (reiterating that racism is one of the world’s worst problems); U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 20, ¶ 2, U.N. Doc. E/C.12/GC/20 (July 2, 2009) (“Non-discrimination and equality are fundamental components of international human rights law . . . .”); Declaration on Race and Racial Prejudice, U.N. Educational, Scientific and Cultural Organization (UNESCO), 20th Sess., gen. conf., U.N. Doc E/CN.4/Sub.2/1982/2/Add.1, annex V (Oct. 17, 1982) [hereinafter UNESCO Declaration on Race]; Int’l Law Comm’n, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, *33, U.N. Doc. A/CN.4/L.702 (July 18, 2006); Juridical Condition and Rights of


Stockholm Declaration recognizes the fundamental right to equality and calls for the elimination of discrimination.83 Many commentators argue that racial discrimination is so universally condemned as to have attained the status of jus cogens.84 In one scholar’s words, “[o]f all the norms in international human rights law, the norm against nondiscrimination is the strongest.”85 With this pedigree, the prohibition against racial discrimination clearly meets Sosa’s requirement of “definite content and acceptance.”86

the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 1 (Sep. 27, 2003) (Pesantes, J., concurring) (“[E]quality and non-discrimination are rights that form a platform on which others are erected . . . .”).

83. Stockholm Declaration, supra note 57, at 4 at princ. 1. 84. Ian Brownlie, Principles of Public International Law 546–49 (Oxford

University Press 6th ed. 2003) (1966); Boyle & Baldaccini, supra note 76, at 144; Keith R. Fisher, Repudiating the Holmesian “Bad Man” Through Contextual Reasoning: The Lawyer as Steward, 2008 Prof. Law. 13, *21 n.36; Herz, supra note 32, at 599; Steven Wheatly, The Security Council, Democratic Legitimacy and Regime Change in Iraq, 17 Eur. J. Int’l L. 531, 543 (2006). The Inter-American Commission on Human Rights is in accordance. See Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 101 (Sept. 27, 2003). Lucien Dhooge describes racial discrimination as jus cogens, Dhooge, supra note 55, at 486, yet argues it is not actionable under the ATS absent an additional grant of a private cause of action. Id. at 475–81. The Supreme Court rejected the latter part of this argument in Sosa. Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004); see Stephens, supra note 14, at 544–50; supra note 16 and accompanying text. Moreover, even commentators who do not believe racial discrimination has attained the status of jus cogens agree that it is a highly codified norm. See, e.g., Andrew Yianni & David Tinkler, Is There a Recognized Legal Doctrine of Odious Debts?, 32 N.C. J. Int’l L. & Com. Reg. 749, 751 n.7 (2007) (“Although a rule with strong support, it is not yet clear that the prohibition on racial discrimination is a rule of jus cogens.”).

85. Paul L. Hoffman, The Application of International Human Rights Law in State Courts: A View from California, 18 Int’l Law. 61, 64 (1984); accord Int’l Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies 23 (2002) (“The prohibition against discrimination is at the heart of human rights law . . . .”); Popovic, supra note 53, at 510 (“The right to be free from discrimination is among the most fundamental and undisputed norms of human rights.”); see also Schwelb, supra note 1, at 1057 (“In our time, the idea of racial equality has acquired far greater force than its eighteenth-century companions of (personal) liberty and fraternity.”).

86. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes 19–25 and accompanying text. Notably, no court has held that systematic racial discrimination does not meet Sosa’s standard. Stephens et al., supra note 9, at 204.


Therefore, the prohibition against systematic racial discrimination is a more definite and widely accepted norm than the rights to life, health, or development upon which previous environmental ATS suits have been based. Courts have found the latter rights to “refer only in a general sense to the responsibility of nations”87 and to be “devoid of articulable or discernable standards.”88 By contrast, many courts have cited the prohibition of racial discrimination as a norm upon which an ATS claim could be based.89 Moreover, unlike the rights to health, development, and certain interpretations of the right to life, the right to be free from systematic racial discrimination is a well-established right under U.S. constitutional law.90 Accordingly, courts may be more willing to entertain ATS suits based upon the right to be free from racial discrimination than they have been to prior suits based on these other rights.91

87. Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 671 (S.D.N.Y.

1991). 88. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999). 89. See supra note 71 and accompanying text. 90. See, e.g., Shaw v. Hunt, 517 U.S. 899, 907 (1996) (“Racial classifications

are antithetical to the Fourteenth Amendment . . . .”); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289–90 (1978) (Powell, J., announcing the judgment of the Court) (“The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.”); Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (holding that racial segregation in public schools is unconstitutional); Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind . . . .”); Warren Christopher, Letter of Submittal to the President, 95th Cong., Four Treaties Pertaining to Human Rights, S. Exec. Doc. No. 95-2, at v (1978) (stating that the ICERD and ICCPR “are in the legal and ethical tradition of the West. They give expression to human rights that are, for the most part, accepted in United States law and practice.”); Tseming Yang, International Environmental Protection, in Justice and Natural Resources: Concepts, Strategies, and Applications 87, 106 (Kathryn M. Mutz et al. eds., 2002) (stating that equality is one of the United States’ “core constitutional values”). For an explanation of some ATS plaintiffs’ interpretation of the right to life, see supra note 53.

91. See Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (stating that the content of an international norm that overlaps with a U.S. constitutional provision can be fleshed out by U.S. constitutional law).


1. The Standard of Proof Under Customary International Law

Any claim of racial discrimination in a U.S. court will be faced with the question of whether discriminatory intent is a required element of proof or whether proof of discriminatory effect suffices.92 Claims of environmental racism are no different, and this question recurs throughout U.S. case law and legal literature on the topic.93 Yet, while the debate over discriminatory intent is prevalent in U.S. domestic discrimination law, that debate is not mirrored in international law.94 Because the ATS is predicated on customary

92. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976).

93. Michael Fisher, Note, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 Envtl. L. 285, 290 (1995); see, e.g., S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 774 (3d Cir. 2001) (dismissing environmental justice group’s disparate impact claim for failure to prove the requisite intentional discrimination); Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement 64 (2001) (characterizing the intent standard as “myopic” for failing to recognize that racism in contemporary forms “has become appreciably more subtle and structural”); David H. Getches & David N. Pellow, Beyond “Traditional” Environmental Justice, in Justice and Natural Resources: Concepts, Strategies, and Applications 3, 11 (Kathryn M. Mutz et al. eds., 2002) (“Whether or not they can muster proof of racially discriminatory intent . . . residents argue persuasively that they have been deprived of environmental justice.”); Friends of the Earth Int’l, Environmental Justice Movement, Rights, Aug. 2004 at 50, available at http://www.foei.org/en/publications/pdfs/human_rights.pdf (including both acts that “target[ ]” and acts that “harm[ ]” in its definition of environmental racism). Another debate within the environmental justice movement is the extent to which environmental injustices extend beyond race to include discrimination based on class, gender, and other categories. See, e.g., Belinda Dodson, Searching for a Common Agenda: Ecofeminism and Environmental Justice, in Environmental Justice in South Africa 81, 103 (David A. McDonald ed., 2002). Proponents of a broader conception do not refute that racism is at play in environmental injustice; instead they argue that the concept should be expanded. Accordingly, these commentators should not be seen as challenging the existence of environmental racism.

94. See Women’s Convention, supra note 80, art. 1 (defining discrimination against women to include both purpose and effect); ICERD, supra note 76, art. 1 (defining racial discrimination to include both purpose and effect); South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 I.C.J. 6, 314 (July 18) (Tanaka, J., dissenting) (“The unreasonableness and injustice [of apartheid] do not depend upon . . . intention or motive . . . .”); U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 20, ¶¶ 7, 10, U.N. Doc. E/C.12/GC/20 (July 2, 2009) (defining discrimination as used in the ICESCR to include both intent and effect and “direct” and “indirect” discrimination); U.N. Human Rights Comm., General Comment No. 18, ¶ 7, U.N. Doc.


international law, a court entertaining an ATS suit must look to the international standard to determine the content of the prohibition of racial discrimination.95 That prohibition, as discussed supra in Part III.A, requires systematic discrimination, but does not demand proof of discriminatory intent.96 The systematic requirement sets a high

CCPR/C/21/Rev.1/Add.1 (Oct. 11, 1989) (defining discrimination as used in the ICCPR to include both intent and effect); Bayefsky, supra note 80, at 8 (“[I]nternational legal materials suggest a discriminatory intention is not a necessary element of discrimination or a denial of equality.”), 34 (“[O]ne might summarize the consistent definitional pieces of the concept of equal treatment or non-discrimination in international law this way: . . . a discriminatory purpose or intention is not a requirement of discrimination . . . .”); Alan Jenkins & Kevin Shawn Hsu, American Ideals & Human Rights: Findings from New Public Opinion Research by the Opportunity Agenda, 77 Fordham L. Rev. 439, 440 (2008) (noting that international protections against racial discrimination include discriminatory effect, thus extending further than the U.S.’s intent standard). The Genocide and Apartheid Conventions define their respective crimes to include intent, but that intent requirement is of a different character than required for “mere” discrimination. The Genocide Convention requires proof of intent to commit the specific act at issue, with “the intent to destroy . . . [a] group, as such.” Genocide Convention, supra note 80, art. 2. The Apartheid Convention defines apartheid as acts committed with the “purpose of establishing and maintaining [racial] domination.” Apartheid Convention, supra note 77, art. 2. Because these are the highest crimes “recognized by the community of nations as of universal concern,” Restatement (Third) of Foreign Relations Law of the United States § 404 (1987), a higher showing is required. Moreover, the Genocide Convention was completed over a decade before the ICERD. Had the international community desired to limit its definition of racial discrimination solely to intent, then, it knew how to do so and had precedent to support such a formulation. That the international community did not so limit thus evinces its desire to define discrimination to include acts with discriminatory effect.

95. See Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004) (concluding that the ATS provides jurisdiction, even without a separate grant of a private cause of action, for “certain torts in violation of the law of nations”) (emphasis added); Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284, 1288 (11th Cir. 2006) (Barkett, J., dissenting) (stating that Sosa requires proof of international acceptance of a norm and an analysis of the definitions of that norm in international treaties, tribunals, and scholarly works); Stephens et al., supra note 9, at 32–36 (stating that Sosa concluded that the ATS provides federal subject matter jurisdiction over a narrow set of international law violations). Sosa itself thus frames the ATS’s cause of action in international terms, leaving no doubt that the standard under which ATS claims must be judged is international.

96. Neither Restatement § 702, its comments, nor its reporter’s notes require proof of discriminatory intent in regard to racial discrimination. Restatement (Third) of Foreign Relations Law of the United States § 702 (1987). By contrast, the Restatement reaffirms that genocidal intent is required to prove genocide. Id. § 702 cmt. d. Expressio unius suggests that, were intent likewise


bar and does not extend to mere “occasional official practices of racial discrimination,”97 which should allay any fears of opening the floodgates to more claims than would be permitted under U.S. law. While in practice an American court would be inclined to apply American standards to a discrimination claim,98 a court holding true to the ATS’s text should resist this impulse and look solely to customary international law.99

More relevant than the intent question is the question of whether environmental racism rises to the Restatement standard of “racial discrimination . . . practiced systematically as a matter of state policy” rather than “occasional official practices of racial discrimination.”100 Since the founding of the environmental racism movement, proponents have argued that environmental racism rises to the level of a violation of international law.101 Furthermore, two

required to prove systematic racial discrimination, the Restatement’s drafters would have expressly included it.

97. Restatement (Third) of Foreign Relations Law of the United States § 702 cmt. i (1987); see supra notes 69–70, infra notes 100–104 and accompanying text.

98. See Herz, supra note 32, at 565 (noting that U.S. courts will likely be reluctant to find that an act permitted under U.S. law violates customary international law).

99. See Roper v. Simmons, 543 U.S. 551, 627 (2005) (Scalia, J., dissenting) (“[T]o invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”); Mayagna (Sumo) Awas Tingni Cmty. Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, at 74 (Aug. 31, 2001) (“The terms of an international human rights treaty have an autonomous meaning, for which reason they cannot be made equivalent to the meaning given to them in domestic law.”); cf. Stephens et al., supra note 9, at 212 (“Courts have clearly distinguished between violations of the Constitution and violations of international law.”). Though Stephens focuses on courts’ refusal to recognize some violations of the U.S. Constitution as violations of international law, the converse must also be true. That is, courts must recognize that some wrongs, while not triggering the protections of the U.S. Constitution, may be so universally reviled as to be prohibited under customary international law and thus actionable under the ATS. Indeed, the Supreme Court itself has acknowledged that U.S. practices may fail to comply with international norms. See Roper, 543 U.S. at 576–78 (2005) (discussing the widespread international consensus against the juvenile death penalty as part of its holding that the practice is unconstitutional).

100. Restatement (Third) of Foreign Relations Law of the United States § 702 cmt. i (1987); see supra notes 69–70 and accompanying text.

101. First National People of Color Environmental Leadership Summit, Washington, D.C., U.S., Oct. 24–27, 1991, Principles of Environmental Justice (1991), princ. 10, available at http://www.ejnet.org/ej/principles.pdf [hereinafter Principles of Environmental Justice] (deeming “governmental acts of


founders of the environmental racism movement, Robert Bullard and Benjamin Chavis, suggest that environmental racism is indeed systematic. Both define environmental racism as a systemic problem, involving discriminatory state policies and unequal enforcement of the law.102 Other scholars agree that structural, systemic problems lie at the heart of environmental racism. For instance, segregation’s lasting influence on housing and zoning patterns, as well as colonialism’s shaping of race, power, and wealth dynamics, have all caused and perpetuated environmental racism.103 To the extent a state propagates such policies and tolerates such discriminatory results, that state engages in systematic racism.104

environmental injustice a violation of international law”). Held in October 1991, the First National People of Color Environmental Leadership Summit is often identified as the most important event in the movement’s history. See Robert D. Bullard et al., Toxic Wastes and Race at Twenty: Why Race Still Matters After All These Years, 38 Envtl. L. 371, 376–77 (2008) (explaining the summit and its importance). The summit convened 650 advocates from around the United States to share action strategies and develop common plans to address environmental problems affecting people of color. Id. at 377. The summit served to broaden the environmental racism movement’s focus to include public and occupational health, land use, transportation, housing, resource allocation, and community empowerment. Id. At the conclusion of the summit, the leaders adopted 17 Principles of Environmental Justice to guide the movement going forward. Id.

102. Robert Bullard defines environmental racism as “any policy, practice, or directive that differentially affects or disadvantages (whether intended or unintended) individuals, groups, or communities based on race or color”; Benjamin Chavis defines environmental racism as “deliberate targeting” and “[r]acial discrimination in environmental policy making and the unequal enforcement of the environmental laws and regulations . . . . It is also manifested in the history of excluding people of color from the leadership of the environmental movement.” Stephen Sandweiss, The Social Construction of Environmental Justice, in Environmental Injustices, Political Struggles: Race, Class, and the Environment 31, 36 (David E. Camacho ed., 1998).

103. See Cole & Foster, supra note 93, at 54–79 (detailing how environmental racism results from structural inequities, including past discrimination and its effects, as well as present discriminatory practices); Jeff Romm, The Coincidental Order of Environmental Justice, in Justice and Natural Resources: Concepts, Strategies, and Applications 117, 117 (Kathryn M. Mutz et al. eds., 2002) (“The causes [of environmental injustice] are embedded in the social order of environmental governance itself . . . .”); Yang, supra note 90, at 94–95 (describing colonialism as a root cause of environmental racism).

104. See Romm, supra note 103, at 130–31 (detailing how systematic racial discrimination underlies all aspects of the concept of “environment,” including housing patterns, land use, health protections, pollution governance, and procedural environmental rights); infra notes 333–337 and accompanying text. Beyond the environmental racism context and relating to discrimination in general, at least one U.N. body has stated that systemic discrimination violates


B. Environmental Racism and Customary International Law

Yet proving that racial discrimination is prohibited under customary international law will not be the end of the inquiry for plaintiffs, like those in Sarei, alleging environmental harms stemming from racial discrimination.105 Such plaintiffs must further prove that systematic environmental racism is a type of racial discrimination prohibited under customary international law and that the facts in their case amount to systematic racial discrimination.106 To so prove, plaintiffs must cite the types of sources that United States v. Smith, The Paquete Habana and the Restatement characterize as evidence of customary international law.107 Sosa’s high standard requires plaintiffs to present copious evidence that the norm of customary international law prohibiting environmental racism possesses “definite content and acceptance” similar to those historical norms existing when the ATS was enacted.108

The multitude of international agreements prohibiting racial discrimination is the most convincing evidence of customary international law prohibiting racism in any and all of its forms.109

international law. See U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 20, ¶¶ 12, 39, U.N. Doc. E/C.12/GC/20 (July 2, 2009) (explaining that states are obligated to eliminate systemic discrimination and defining systemic discrimination as legal rules and practices “in either the public or private sector which create relative disadvantages for some groups, and privileges for others”). This definition parallels those of Chavis and Bullard, see supra note 102, suggesting that environmental racism meeting these definitions violates international law. While it may be possible to hold non-state defendants liable under the ATS, the state action requirement is beyond the scope of this Note. See supra notes 13 and 46.

105. Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1209 (9th Cir. 2007), vacated on reh’g en banc, 550 F.3d 882 (9th Cir. 2008) (en banc plurality opinion), remanded to CV 00-11695 MMM (MANx), 2009 U.S. Dist. LEXIS 83903 (9th Cir. July 31, 2009).

106. See supra note 25 and accompanying text. 107. See supra notes 26–27 and accompanying text. 108. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see id. at 723 n.27

(rejecting Alvarez’s survey of national constitutions, federal court authority, and one International Court of Justice case as insufficient to establish a norm of customary international law).

109. See Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 86 (Sep. 27, 2003) (“The fact that the principle of equality and non-discrimination is regulated in so many international instruments is evidence that there is a universal obligation to respect and guarantee the human rights arising from that general


The agreements’ language broadly proscribes racial discrimination,110 suggesting that the international community widely condemns racism, whether it surfaces in familiar or evolved forms.111 The sheer number of states, especially influential states, that have ratified the ICERD and similar provisions in other agreements gives this language substantial authority.112 Additionally, United Nations bodies have repeatedly cautioned states to guard vigilantly against new forms of racism and recognize that racism may surface as interference with other fundamental rights.113 This part analyzes the sources that may be cited to prove that environmental racism is one

basic principle.”). Indeed, ICERD imposes a duty on States Parties “to eliminate racial discrimination in all its forms.” ICERD, supra note 76, art. 5. For an enumeration of the agreements prohibiting racial discrimination, see supra notes 75–83 and accompanying text. These agreements are particularly relevant given that ATS courts, in practice, “look first for any relevant international treaties.” Stephens et al., supra note 9, at 67.

110. See, e.g., ICERD, supra note 76, art. 2(1) (“States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms . . . .”); ICCPR, supra note 53, art. 2(1) (“Each State Party . . . undertakes to respect and to ensure . . . the rights recognized in the present Covenant, without distinction of any kind, such as race . . . .”); see also Boyle & Baldaccini, supra note 76, at 153 (describing ICERD’s provisions as “far-reaching”).

111. See Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 62 (Sep. 27, 2003) (Cancado, J., concurring) (arguing that broad prescriptions against discrimination “really aim . . . to eliminate a whole discriminatory social structure”).

112. See Flores v. S. Peru Copper Corp., 414 F.3d 233, 257 (2d Cir. 2003) (observing that the more states, especially influential states, that have ratified a treaty, the greater its evidentiary value); Stephens et al., supra note 9, at 67 (stating that widely ratified treaties may reflect a norm of customary international law); Blum & Steinhardt, supra note 76, at 89 (noting that the most authoritative agreements are those that represent a broad consensus of states); supra note 76 and accompanying text.

113. See U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 20, ¶¶ 1, 27, U.N. Doc. E/C.12/GC/20 (July 2, 2009) (observing that socioeconomic inequality persists, “often because of entrenched historical and contemporary forms of discrimination” and cautioning that “[t]he nature of discrimination varies according to context and evolves over time”); UNESCO Declaration on Race, supra note 82, pmbl. (cautioning states to protect individuals from “ever-changing forms” of racial prejudice). Regional bodies have similarly cautioned. See, e.g., Maya Indigenous Cmtys. of the Toledo District v. Belize, Case 12.053, Inter-Am. C.H.R., Report No. 40/04, ¶ 163 (2004), http://www.cidh.org/annualrep/2004eng/Belize.12053eng.htm (“[The] principle of non-discrimination is a particularly significant protection that permeates the guarantee of all other rights and freedoms.”).


such form that, as such, is prohibited under customary international law. Though United States v. Smith, The Paquete Habana, and the Restatement each state the sources that may be cited as such proof, no universal agreement exists as to the definition of customary international law.114 For the purpose of clear categorization, this part is organized according to the Smith standard. Specifically, this part finds that jurists, states, and courts have identified at least four forms of environmental racism: discrimination as to (1) concentration of environmental burdens, (2) environmental deprivations of human rights, (3) particularly vulnerable racial communities and (4) procedural environmental rights.

1. Works of Jurists

Smith provides that the works of jurists may be cited as evidence of customary international law.115 Such works are traditionally viewed as secondary sources of customary international law.116 In its reaffirmation of Smith, The Paquete Habana cautioned that courts may consider “works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”117 ATS courts therefore only consider the views of jurists that describe existing international law obligations and disregard those views determined to be “speculations” or opinions on international law obligations.118 Against this framework, this part analyzes scholarly

114. See supra notes 26–27 and accompanying text. 115. United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–61 (1820). 116. Statute of the International Court of Justice art. 38(1)(d), June 26,

1945, 59 Stat. 1055, 3 Bevans 1179; Restatement (Third) of Foreign Relations Law of the United States §§ 103(2)(c), 103 reporter’s note 1 (1987); Stephens et al., supra note 9, at 71.

117. The Paquete Habana, 175 U.S. 677, 700 (1900). 118. The Paquete Habana, 175 U.S. at 700; Stephens et al., supra note 9,

at 71–72 (discussing the nature of scholarly works that ATS courts will consider and finding that only “sound discussions of existing international law norms” warrant ATS courts’ attention). Compare Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284, 1286 (11th Cir. 2006) (Barkett, J., dissenting) (crediting a scholarly affidavit concerning the status of, inter alia, torture and arbitrary detention under international law) and Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257, 272 n.17 (E.D.N.Y. 2007) (referencing affidavits from international law scholars “regarding current international law”) with Flores v. S. Peru Copper Corp., 414 F.3d 233, 265 (2d Cir. 2003) (citing The Paquete Habana, 175 U.S. at 700) (cautioning against crediting as evidence of customary international law the “policy-driven or theoretical work of advocates”).


articulations of environmental racism and its status under international law. In so doing, this part also evaluates whether the prohibition has the “definite content and acceptance” Sosa requires to establish a norm of customary international law.119

As to the content of the prohibition on environmental racism, as a starting point, jurists agree that environmental racism is merely “a new manifestation of racial oppression.”120 At its most basic, the environmental racism movement seeks to remedy inequality and prohibit discrimination in the distribution of environmental burdens and benefits.121 Jurists have elucidated this core goal with additional specific content, identifying a number of forms of environmental

119. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 120. Deborah M. Robinson, Environmental Racism: Old Wine in a New

Bottle, Echoes, Issue 17/2000, available at http://www.wcc-coe.org/wcc/ what/jpc/echoes/echoes-17-00.html; accord Romm, supra note 103, at 130; J. Timmons Roberts & Melissa M. Toffolon-Weiss, Chronicles from the Environmental Justice Frontline 11 (2001); Laura Westra & Bill E. Lawson, Introduction to Faces of Environmental Racism: Confronting Issues of Global Justice xvii, xvii–xviii (Laura Westra & Bill E. Lawson eds., 2d ed. 2001). This suggests that environmental racism is prohibited under customary international law, as customary international law prohibits all forms of racial discrimination, new and old. See supra Part III.A.

121. See World Comm’n on Dams, Dams and Development: A New Framework for Decision-Making 130 (2000) (including ethnic minorities among the groups “likely to bear a disproportionate share of the social and environmental costs of large dam projects without gaining a commensurate share of the economic benefits”); Robert D. Bullard, Environmental Justice for All, in Unequal Protection: Environmental Justice and Communities of Color 3, 11 (Robert Bullard ed., 1994) (noting that the environmental justice movement questions the present allocation of environmental benefits and seeks to redistribute equitably those benefits); Bill Lawson, Living for the City: Urban United States and Environmental Justice, in Faces of Environmental Racism: Confronting Issues of Global Justice 41, 48 (Laura Westra & Bill E. Lawson eds., 2d ed. 2001) (including “distributive justice” as an element of the environmental justice movement); David Monsma, Equal Rights, Governance, and the Environment: Integrating Environmental Justice Principles in Corporate Social Responsibility, 33 Ecology L.Q. 443, 450 (2006) (“The environmental justice movement . . . organized around the idea that the burdens of environmental pollution should not fall disproportionately . . . .”); Osofsky, supra note 51, at 88 (describing the environmental justice movement as a struggle to address disproportionate burdens of environmental harm); James L. Wescoat, Jr. et al., Water, Poverty, Equity, and Justice in Colorado, in Justice and Natural Resources: Concepts, Strategies, and Applications 57, 69 (Kathryn M. Mutz et al. eds., 2002) (“Concern about inequality lies at the heart of environmental justice movements.”); Yang, supra note 90, at 93 (noting that both U.S. and international environmental justice advocates complain of “substantive distributional issues regarding heavy burdens” of environmental harms).


racism. One such form is discrimination in hazardous waste facility siting and consequent concentration of environmental burdens, such as health risks and property degradation. The environmental racism movement was founded in the United States on claims of such discrimination, and those claims have since gained wide acceptance in the United States and abroad.122 U.N. special rapporteurs have documented instances of environmental racism in the concentration of environmental burdens, citing in one report the “flagrant discrimination to which marginalized persons, vulnerable groups, minorities and indigenous peoples are subjected vis-à-vis ecological risks.”123 Scholars have also recognized that siting discrimination includes the transfer of hazardous waste from the developed to the developing world.124

122. See, e.g., Cole & Foster, supra note 93, at 10 (documenting environmental justice advocates’ work to apply Title VU of the Civil Rights Act of 1964 to remedy widespread siting discrimination); Getches & Pellow, supra note 93, at 6–7 (detailing the studies, government and otherwise, documenting siting discrimination); Monsma, supra note 121, at 444 (citing evidence that siting discrimination is “one of the leading causes” of environmental racism); infra notes 206–215 and accompanying text. Most commentators credit a 1987 report from the United Church of Christ with the founding of the environmental racism movement. See, e.g., Getches & Pellow, supra note 93, at 6; Monsma, supra note 121, at 451–52. The United Church of Christ report found that race was the most significant predictor of the siting of hazardous waste facilities. Comm’n for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States xiii, 23 (1987), available at http://www.ucc.org/about-us/archives/pdfs/ toxwrace87.pdf [hereinafter UCC Toxic Wastes and Race Report].

123. U.N. Human Rights and Environment Report, supra note 2, ¶ 44. 124. See David N. Pellow et al., The Environmental Justice Movement:

Equitable Allocation of the Costs and Benefits of Environmental Management Outcomes, 14 Soc. Just. Res. 423 (2003), available at http://www.northwestern.edu/ipr/publications/papers/2004/schnaiberg/19_EnvJustMvts&Env.pdf (characterizing the transnational trade in hazardous waste as “global environmental racism” and comparing the situation to siting discrimination within the United States). The dumping of foreign toxic waste in Africa has been described as “smack[ing] of racism of the worst kind.” Segun Gbadegesin, Multinational Corporations, Developed Nations, and Environmental Racism: Toxic Waste, Exploration, and Eco-Catastrophe, in Faces of Environmental Racism: Confronting Issues of Global Justice 187, 190 (Laura Westra & Bill E. Lawson eds., 2d ed. 2001). In addition, the Special Rapporteur on adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights has related claims of racial discrimination in three of the last seven annual reports to the Commission on Human Rights. Special Rapporteur on adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, 2006 Annual Report, ¶¶ 55, 75, delivered to the Comm’n on Human Rights, U.N. Doc. E/CN.4/2006/42 (Feb. 20, 2006); 2004 Annual Report, ¶¶ 71, 87,


Another recognized form of environmental racism is environmental deprivations of rights: human rights violations resulting from environmental harm.125 The right to property may be affected in this context, as may the rights to life, health, housing, food, and more.126 Such deprivations may occur in connection with any type of natural resource management, extraction, and access.127 The concept thus has a broad reach, both as to the number of rights affected and the number of ways in which it manifests itself. delivered to the Comm’n on Human Rights, U.N. Doc. E/CN.4/2004/46 (Dec. 15, 2003); 2001 Annual Report, ¶¶ 60, 66–71, delivered to the Comm’n on Human Rights, U.N. Doc. E/CN.4/2001/55 (Jan. 19, 2001).

125. Lynda Collins, Are We There Yet? The Right to Environment in International and European Law, 3 McGill Int’l J. Sustainable Dev. L. & Pol’y 119, 127–29 (2007) (explaining the concept of environmental deprivations of rights); see Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 92 (Sept. 25) (separate opinion of Weeramantry, V.-President) (“[D]amage to the environment can impair and undermine all . . . human rights . . . . ”); Sumudu Atapattu, The Right to a Healthy Life or the Right to Die Polluted? The Emergence of a Human Right to a Healthy Environment Under International Law, 16 Tul. Envtl. L.J. 65, 98 (2001) (describing how environmental problems may amount to violations of human rights); Boeving, supra note 67, at 129–30 (documenting the trend in ATS litigation toward asserting that environmental degradation infringes human rights); Popovic, supra note 53, at 514 (detailing how human rights may be affected in the context of environmental degradation); Shelton, Human Rights, supra note 2, at 112 (noting that environmental degradation implicates, inter alia, the rights to life, health, privacy, and political participation). These jurists have documented environmental deprivations of rights even absent racial discrimination. Because racial discrimination is so widely condemned, claiming that discrimination caused a deprivation should only render the claim more likely to be actionable. See supra Part III.A. For a discussion of prior ATS suits alleging environmental deprivations of the right to life, albeit without alleging racial discrimination, see supra note 53 and accompanying text.

126. Collins, supra note 125, at 127–29. This concept dates to the founding of the environmental racism movement. Principles of Environmental Justice, supra note 101, princ. 4 (“Environmental justice calls for universal protection from extraction, production, and disposal of toxic/hazardous wastes and poisons that threaten the fundamental right to clean air, land, water and food.”). For the Committee on Economic, Social, and Cultural Rights’ concurrences on this point, see infra notes 266–274 and accompanying text.

127. Kathryn M. Mutz et al., Introduction to Justice and Natural Resources: Concepts, Strategies, and Applications, supra note 90 at xxxi, xxxi; see, e.g., Jacklyn Cock & David Fig, From Colonial to Community-Based Conservation, in Environmental Justice in South Africa 131, 132 (David A. McDonald ed., 2002) (noting that one form of environmental racism in South Africa was “double exclusion” from national parks: denial of access to the parks themselves and exclusion from influence in decision- and policy-making regarding the parks).


Commentators agree that environmental racism has such a broad reach because it is rooted in a “volatile mix of racism and economic incentive.”128 Jurists have thus identified a root cause and specific manifestations of environmental deprivations of rights. In so doing, they have given definite content to the concept.

Moreover, certain communities may be especially vulnerable to environmental racism.129 The most prominent example is that of indigenous communities and their unique ties to their traditional lands.130 Because of these ties, “the human rights of indigenous peoples are inextricably and uniquely linked to environmental rights.”131 U.N. experts have warned that racial discrimination

128. Herz, supra note 32, at 599; see Cole & Foster, supra note 93, at 54–

79; Sandra Fredman, Combating Racism with Human Rights: The Right to Equality, in Discrimination and Human Rights: The Case of Racism 9, 10–11 (Sandra Fredman ed., 2001) (“The oppression of indigenous . . . [peoples] manifests as a noxious combination of economic imperatives and legitimating ideologies based on caricatures of inferiority and hate.”); Peter Wenz, Just Garbage, in Faces of Environmental Racism: Confronting Issues of Global Justice 57, 57–59 (Laura Westra & Bill E. Lawson eds., 2d ed. 2001) (detailing the interplay between environmental racism and economic considerations); Friends of the Earth Int’l, Environmental Justice Movement, Rights, Aug. 2004 at 51, available at http://www.foei.org/en/publications/pdfs/human_rights.pdf (“Environmental racism goes hand-in-hand with economic globalization.”). An example is found by comparing Union Carbide’s facilities in Bhopal and West Virginia, the latter of which “was designed with significantly higher parameters for safety and emergency-preparedness.” Brief for Plaintiffs-Appellants at 5, Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) (No. 00-9250) (characterizing the facilities’ differences as “evidence of . . . discriminatory imposition of double standards . . . . ”). The United Nations is one organization among many that has documented and sought to address the allegations of discrimination stemming from the Bhopal disaster. See Special Rapporteur on adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, Summary of communications sent to and replies received from Governments and other actors during 2005, ¶ 17, delivered to the Comm’n on Human Rights, U.N. Doc. E/CN.4/2006/42/Add.1 (Mar. 27, 2006).

129. Getches & Pellow, supra note 93, at 4–5 (arguing that expansion of the environmental justice movement should be limited to communities, as communities may uniquely suffer particular shared environmental harms).

130. See, e.g., J. Mijin Cha, Environmental Justice in Rural South Asia: Applying Lessons Learned from the United States in Fighting for Indigenous Communities’ Rights and Access to Common Resources, 19 Geo. Int’l Envtl. L. Rev. 185, 187 (2007) (noting that indigenous communities are forced to bear a disproportionate environmental burden when they are denied access to and use of natural resources and that their struggle is one for environmental justice).

131. John Alan Cohan, Environmental Rights of Indigenous Peoples Under the Alien Tort Claims Act, the Public Trust Doctrine and Corporate Ethics, and


against indigenous peoples is “practised through the rejection of indigenous . . . values, and the utilization of so-called ‘modern’ . . . justifications for development, land expropriation, labour exploitation, and other practices.”132 The same experts warned that indigenous peoples are “historical victims of racism”133 who have suffered “unreasonable limitations” on their resources.134 These experts further demanded that all states recognize and respect indigenous peoples’ rights to their traditional resources and provide restitution for past infringements.135 Advances in state practice and jurisprudence regarding indigenous rights are discussed infra in Parts III.B.2 and III.B.3, respectively.

Jurists also agree that environmental racism encompasses discrimination in procedural environmental rights.136 Procedural environmental rights include access to environmental information, meaningful participation in environmental decision-making, and access to legal redress for environmental wrongs.137 Such rights are Environmental Dispute Resolution, 20 UCLA J. Envtl. L. & Pol'y 133, 152 (2001–2002).

132. Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States, Geneva, Switz., Jan. 16–20, 1989, Report on the United Nations Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States, 10, U.N. Doc. E/CN.4/1989/22 (Feb. 8, 1989) [hereinafter ECOSOC Indigenous Peoples Report]. The Inter-American Commission has echoed this view. See Inter-Am. Comm’n on Human Rights, Res. on the Problem of Special Protection for Indigenous Populations, Inter-Am. C.H.R., OEA/Ser.L/V/II.29, doc. 38, rev. (1972).

133. ECOSOC Indigenous Peoples Report, supra note 132, at 69. 134. Id. at 52. 135. Id. at 13. 136. See, e.g., Gary C. Bryner, Assessing Claims of Environmental Justice,

in Justice and Natural Resources: Concepts, Strategies, and Applications 31, 44–47 (Kathryn M. Mutz et al. eds., 2002) (defining the environmental racism movement’s demands for procedural justice); Jan Buhrmann, A Framework to Assess Proposed Federal Projects, in Justice and Natural Resources: Concepts, Strategies, and Applications 253, 258 (Kathryn M. Mutz et al. eds., 2002) (noting that environmental justice requires fair process); Collins, supra note 125, at 129 (explaining environmental procedural rights and characterizing such rights as one of three types of recognized environmental human rights). Executive Order 12,898 is largely aimed at enhancing procedural environmental rights. See infra notes 210–215 and accompanying text.

137. Collins, supra note 125, at 129 (explaining procedural environmental rights); see also Luis E. Rodriguez-Rivera, Is the Human Right to Environment Recognized Under International Law? It Depends on the Source, 12 Colo. J. Int’l Envtl. L. & Pol’y 1, 15–16 (2001) (discussing the breadth of environmental rights); Shelton, Human Rights, supra note 2, at 117–21 (describing the meaning


widely accepted.138 Founders of the U.S. environmental racism movement recognized that discrimination as to procedural environmental rights is one of the fundamental wrongs underlying environmental racism.139 Since the founding of the U.S. movement, scholars have accepted the concept and documented instances of such discrimination within the U.S. and beyond.140

Plaintiffs must couple jurists who define the content of the norm prohibiting environmental racism with jurists who offer “trustworthy evidence of what the law really is.” 141 The latter must

of environmental rights). Importantly, these rights contribute to a participatory, transparent decisionmaking process and increase governmental accountability. Atapattu, supra note 125, at 90, 96 (explaining procedural environmental rights and describing their importance).

138. See Atapattu, supra note 125, at 96 (“It is widely believed that these environmental procedural rights are now part of contemporary international law.”); Collins, supra note 125, at 131 (stating that procedural environmental rights “have emerged as binding legal entitlements entailing correlative duties on the part of states”); Benjamin W. Cramer, The Human Right to Information, the Environment, and Information About the Environment: From the Universal Declaration to the Aarhus Convention, 14 Comm. L. & Pol’y 73, 73 (2009) (noting that the international community recognizes access to environmental information as a “fundamental human right”); Ole W. Pedersen, European Environmental Human Rights and Environmental Rights: A Long Time Coming?, 21 Geo. Int’l Envtl. L. Rev. 73, 111 (2008) (stating that procedural environmental rights have attained the status of regional customary law in Europe).

139. Principles of Environmental Justice, supra note 101, princ. 7 (“Environmental justice demands the right to participate as equal partners at every level of decision-making including needs assessment, planning, implementation, enforcement and evaluation.”); id. at princ. 13 (“Environmental justice calls for the strict enforcement of principles of informed consent . . . . ”).

140. See Robert D. Bullard, Essays on Environmental Justice: Environmental Racism and “Invisible” Communities, 96 W. Va. L. Rev. 1037, 1037 (1994) (“Environmental racism is not just a domestic practice. It is global.”); Cock & Fig, supra note 127, at 132 (noting that one form of environmental racism in South Africa was “double exclusion” from national parks: denial of access to the parks themselves and exclusion from influence in decision- and policy-making regarding the parks); Wescoat et al., supra note 121, at 80 (observing that environmental justice problems are problems that “have intentionally not been addressed by . . . [inter alia] political participation processes . . . . ”); Yang, supra note 90, at 93 (observing that domestic and international environmental racism claims include complaints of exclusion from environmental decision-making processes); Cam Walker, Environmental Racism in Australia, Chain Reaction, Autumn 2006, available at http://www.foe.org.au/resources/chain-reaction/ editions/96/environmental-racism-in-australia/ (documenting the environmental racism movement in Australia, which has focused on discrimination in siting decisions and discrimination against indigenous peoples).

141. The Paquete Habana, 175 U.S. 677, 700 (1900).


prove the status of environmental racism under existing international law. Absent such proof, plaintiffs risk an ATS court disregarding their scholarly evidence as mere “speculation.”142 Since the environmental racism movement’s founding, its leaders have characterized environmental racism as a violation of international law.143 Though this statement risks being deemed a speculation, subsequent scholars have agreed that environmental racism is presently prohibited under customary international law. Procedural environmental rights in particular are widely characterized as having attained the status of customary international law.144 It is similarly extensively accepted that customary international law includes a protection against discrimination for indigenous peoples, in the environmental context and beyond.145 Jurists have also suggested that prohibitions of environmental deprivations of rights

142. See id.; supra notes 117–118 and accompanying text. 143. See Principles of Environmental Justice, supra note 101, princ. 10

(“Environmental Justice considers governmental acts of environmental injustice a violation of international law . . . . ”).

144. See, e.g., supra note 138 and accompanying text. 145. See S. James Anaya & Robert A. Williams, Jr., The Protections of

Indigenous Peoples’ Rights Over Lands and Natural Resources Under the Inter-American Human Rights System, 14 Harv. Hum. Rts. J. 33, 53–55 (2001) (documenting the recent customary international law norm providing equal protection for indigenous peoples’ land rights); Cohan, supra note 131, at 154 (“[T]here appears to be little doubt that the international community now regards indigenous peoples as having environmental rights that rise to the status of international norms.”); Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples, 41 Vand. J. Transnat’l L. 1141, 1152–59 (2008) (documenting the history and sources that have led to existing customary international law protections for indigenous peoples, including protections for their environmental rights). Even when scholars do not state that protections for indigenous rights have crystallized into customary international law, those scholars typically characterize such protections as emerging norms of customary international law. See, e.g., Thomas T. Ankersen & Thomas K. Ruppert, Defending the Polygon: The Emerging Human Right to Communal Property, 59 Okla. L. Rev. 681, 710-33 (2006) (documenting the emerging right under international law to communal property, which has developed in part because of acceptance that failure to recognize indigenous peoples’ communal property systems is a form of racial discrimination); E. Rania Rampersad, Note, Indigenous Adaptation to Climate Change: Preserving Sustainable Relationships Through an Environmental Stewardship & Trust Fund Remedy, 21 Geo. Int'l Envtl. L. Rev. 591, 596–97 (2009) (citing progress toward universal recognition of indigenous peoples’ environmental rights). Given customary international law’s ability to evolve, these rights may come to support future ATS suits alleging environmental racism. See supra note 47 and accompanying text.


have attained customary international law status, even without allegations that discrimination led to such deprivations.146 These pronouncements, however, are more cautious and less plentiful than pronouncements regarding the former types of environmental racism.147 Similarly, while many jurists identify distributive discrimination as a form of environmental racism, few characterize such discrimination as an existing violation of customary international law. Accordingly, a court may deem jurists’ statements regarding the latter two types of environmental racism to be solely “speculation.”148 While a lack of scholarly citations is not fatal to an ATS claim, it will likely decrease plaintiffs’ chances of success.149

a. Jurists and the Sosa Standard

Jurists have thus accepted and worked to define the concept of environmental racism, expanding it in both geographic and substantive scope. This expansion has been fueled by the similarities among environmental injustices around the world.150 These injustices

146. U.N. Human Rights and Environment Report, supra note 2, ¶ 175

(citing R.G. Ramcharan, The Right to Life 310–11 (1983)) (stating that criminal and civil international law liability may arise from environmental harm that threatens the right to life); Collins, supra note 125, at 129 (suggesting environmental deprivations of rights have become customary international law because of recognition of this concept by international, regional, and domestic courts). Amici in Flores argued that environmental deprivations of rights violate customary international law, but their assertions are unlikely to be persuasive given Flores’ sound rejection of their authority. Flores v. S. Peru Copper Corp., 414 F.3d 233, 265 (2d Cir. 2003) (citing The Paquete Habana, 175 U.S. 677, 700 (1900)).

147. Compare Collins, supra note 125, at 129 (suggesting, without expressly stating, that environmental deprivations of rights are censured under customary international law) with Cohan, supra note 131, at 154 (stating that there is “little doubt” that indigenous peoples’ environmental rights are protected under customary international law).

148. Flores, 414 F.3d at 265 (citing The Paquete Habana, 175 U.S. at 700); see supra notes 117–118 and accompanying text.

149. This is so because jurists are a secondary source of customary international law. See supra note 116 and accompanying text. Even absent scholarly sources attesting to the status of customary international law, plaintiffs may be able to succeed on an ATS claim by producing sufficient primary evidence to satisfy Sosa’s standard.

150. See Sarah Krakoff, Tribal Sovereignty and Environmental Justice, in Justice and Natural Resources: Concepts, Strategies, and Applications 161, 167 (Kathryn M. Mutz et al. eds., 2002) (noting the similarities between African American and Native American struggles for environmental justice); Kathryn M. Mutz, Mineral Development: Protecting the Land and Communities, in Justice


are grounded in “similar roots”151 and share a “core definition”152 of environmental racism as discrimination in the distribution of environmental benefits and burdens. Commentators agree that this core definition includes environmental racism in the form of discrimination as to: (1) concentration of environmental burdens; (2) environmental deprivations of human rights; (3) particularly vulnerable racial communities; and (4) procedural environmental rights. Jurists also agree that the latter two types in particular are prohibited under existing customary international law. By contrast, plaintiffs may face difficulty proving scholarly acceptance that the former two types are similarly prohibited. In toto, by enumerating and recognizing the commonalities among these harms, jurists have provided environmental racism with the type of “definite content and acceptance”153 required under Sosa to establish an existing norm of customary international law.

2. General Usage and Practices of Nations

Under Smith, The Paquete Habana, and the Restatement, the general usage and practices of nations may be cited as proof of customary international law.154 The Restatement reiterates that such practices, like all evidence of customary international law, must be “general and consistent . . . followed by [states] from a sense of legal obligation,” or opinio juris.155 The practice need not be universally followed, but should reflect “wide acceptance among the states particularly involved in the relevant activity.”156 That acceptance,

and Natural Resources: Concepts, Strategies, and Applications 307–09 (Kathryn M. Mutz et al. eds., 2002) (comparing the similar environmental injustices created by urban siting and rural mining policies); Yang, supra note 90, at 90 (observing that “foreign environmental problems . . . appear to exhibit many of the same wealth and race characteristics” that spurred the U.S. environmental racism movement).

151. Yang, supra note 90, at 108. 152. Stephens, supra note 14, at 553; see supra notes 30–32 and

accompanying text. 153. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes

19–25 and accompanying text. 154. The Paquete Habana, 175 U.S. 677, 700 (1900); United States v.

Smith, 18 U.S. (5 Wheat.) 153, 160–61 (1820); Restatement (Third) of Foreign Relations Law of the United States § 102 (1987).

155. Restatement (Third) of Foreign Relations Law of the United States §§ 102(2), 102 cmt. c (1987).

156. Id. § 102 cmt. b; Prosper Weil, Toward Relative Normativity in International Law?, 77 Am. J. Int’l L. 413, 434–35 (1983).


however, must be substantive, for a practice that is generally followed but “states feel legally free to disregard does not contribute” to opinio juris.157 Opinio juris may be inferred, and the Restatment acknowledges that it is often difficult to discern precisely when a norm has crossed the line into opinio juris.158 This part analyzes whether state practices prohibit environmental racism in this manner and whether those practices provide the “definite content and acceptance” required to establish a norm of customary international law under Sosa.159

a. International and Regional Agreements

International agreements, including those concerning human rights, represent state practice and can contribute to customary international law.160 Indeed, in practice, ATS courts typically look first to relevant international agreements.161 To this end, several U.N. documents address environmental racism. The Stockholm Declaration, discussed supra in Part III.A, speaks to the widespread acceptance of the prohibition on environmental racism. It impliedly prohibits environmental racism by recognizing the fundamental right to equality in an environment that permits a life of dignity and well being.162 The African Charter and the San Salvador Protocol provide


102 cmt. c (1987). 158. Id. 159. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes

19–25 and accompanying text. 160. Restatement (Third) of Foreign Relations Law of the United States §§

102(3), 102 cmt. i, Introductory Note to Part VII (1987); see Stephens et al., supra note 9, at 67 (noting that widely ratified international agreements, even those that are non-binding, may reflect a norm of customary international law); Blum & Steinhardt, supra note 76, at 89 (“Obligatory norms typically are expressed in numerous international instruments, including those that are most authoritative in that they reflect a broad consensus of states.”). This may be true even when the agreements do not purport to codify customary international law. Restatement (Third) of Foreign Relations Law of the United States § 102 reporter’s note 5 (1987). For a discussion of the citation of non-binding or non-self-executing agreements as proof of customary international law, see supra notes 34–36 and accompanying text.

161. Stephens et al., supra note 9, at 67. 162. Stockholm Declaration, supra note 57, at 4 at princ. 1. The United

Nations acknowledges that “Principle 1 of the Stockholm Declaration established a foundation for linking human rights and environmental protection.” Joint United Nations Environmental Programme-Office of the High Commissioner of Human Rights Expert Seminar on Human Rights and the Environment, Geneva,


the same principle on a regional level within Africa and the Americas, respectively, by recognizing the right to environment alongside the obligation of non-discrimination.163 Together, these concepts prohibit environmental deprivations of rights. The intersection of the right to non-discrimination and the right to environment is discussed infra in Part III.B.2.b.

In addition to agreements evidencing acceptance of the norm prohibiting environmental racism, several conventions proscribe specific forms of environmental racism, thereby lending definite content to the concept. The Apartheid Convention’s definition of “the crime of apartheid” includes any measure designed to divide the population along racial lines, including the expropriation of property and labor exploitation of a racial group.164 Both the Apartheid and Genocide Conventions prohibit the deliberate imposition on a racial group of living conditions calculated to cause its physical destruction.165 Such conditions would surely entail violations of social and economic rights, for example, the rights to life, health, housing, or food. By prohibiting the larger wrong, therefore, the international community also sought to prohibit the lesser wrongs included therein. The Conventions thus seek to prevent environmental deprivations of rights, especially the rights to life, health, and property. Switz., Jan. 14–16, 2002, Human Rights and Environment Issues in Multilateral Treaties Adopted between 1991 and 2001 (prepared by Dinah Shelton), available at http://www2.ohchr.org/english/issues/environment/environ/bp1.htm; accord U.N. Human Rights and Environment Report, supra note 2, ¶¶ 32, 50. The 1992 Rio Declaration, issued 20 years after the Stockholm Declaration, reaffirms the international community’s commitment to these principles. See Rio Declaration, supra note 53, pmbl.

163. African Charter, supra note 81, art. 2 (non-discrimination), art. 21 (right to environment); Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights art. 3 (obligation of non-discrimination), art. 11 (right to environment), Nov. 17, 1988, O.A.S.T.S. No. 69 (entered into force Nov. 16, 1999) [hereinafter San Salvador Protocol]. The Restatement recognizes the existence of regional customary international law. Restatement (Third) of Foreign Relations Law of the United States § 102 cmt. e (1987).

164. Apartheid Convention, supra note 77, art. II(d) (expropriation of property), art. II(e) (labor exploitation).

165. The Apartheid Convention limits its definition of group solely to racial groups, while the Genocide Convention contains a slightly broader definition. Apartheid Convention, supra note 77, art. II(b); Genocide Convention, supra note 80, art. II(c) (defining “group” as shared national, ethnic, racial or religious origin). For a discussion of the intent requirements of the Apartheid and Genocide Conventions, see supra note 94.


On a regional level, Europe has agreed to prevent environmental racism’s interference with procedural environmental rights under the Aarhus Convention. The Aarhus Convention enshrines procedural environmental rights into European law,166 representing the culmination of many European Union measures affirming and protecting such rights.167 The Convention expressly addresses environmental racism by providing, “[T]he public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination . . . . ”168 The Aarhus rights have been significantly implemented throughout Europe;169 such adherence suggests that states are acting in accordance with opinio juris.170

Thus, the international and regional communities have sought to eradicate environmental racism broadly, via the Stockholm Declaration and San Salvador Protocol, and in its particularly reviled forms, via the Apartheid, Genocide, and Aarhus Conventions. In so doing, the international community and its subsets have accepted, and given definite content to, the prohibition of environmental racism.

166. United Nations Econ. Comm’n for Europe, Convention on Access to

Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447 [hereinafter Aarhus Convention]; Pedersen, supra note 138, at 92–100 (analyzing the Aarhus Convention and characterizing it as “a significant step in elevating procedural environmental rights to the level of customary norms in Europe”). The Aarhus Convention is binding on more than 40 European and Central Asian states. Cramer, supra note 138, at 73. The Restatement recognizes the existence of regional customary international law. Restatement (Third) of Foreign Relations Law of the United States § 102 cmt. e. (1987). Common constitutional protections are also relevant in this context. Restatement (Third) of Foreign Relations Law of the United States § 701 reporter’s note 1 (1987).

167. See Collins, supra note 125, at 139–40 (noting that the Aarhus Convention was preceded by many directives recognizing procedural environmental rights); Pedersen, supra note 138, at 104–08 (discussing the numerous directives and other measures enshrining procedural environmental rights into European Union law). For two examples of such directives, see European Union sources cited supra note 81.

168. Aarhus Convention, supra note 166, art. 3(9). 169. Collins, supra note 125, at 140. 170. Cf. Restatement (Third) of Foreign Relations Law of the United States

§ 102 cmt. c (1987) (“[A] practice that is generally followed but which states feel legally free to disregard does not contribute to customary law.”); see supra notes 155–157 and accompanying text.


b. National-Level Protections

National-level protections are relevant to the state practice inquiry as “strong indicators of national opinio juris [that] represent the highest level of national law operating as a lex suprema.”171 This part first analyzes the prevalence of constitutional protections of the right to environment and the right to non-discrimination, arguing that in tandem these rights evince strong national protections against environmental racism. This part then analyzes national-level statutory protections against environmental racism.

Environmental protection is addressed in the constitutions of over 100 nations, over 50 of which expressly recognize the right to environment and nearly 100 of which impose a duty on the government to prevent environmental harm.172 Such recognition is the international trend, as the vast majority of constitutions enacted since 1970 contain one or both of these types of provisions.173 Some

171. Pedersen, supra note 138, at 111; accord Stephens et al., supra note 9,

at 69–70 (stating that domestic law sources are proof of the universal nature of a norm of customary international law); James R. May, Constituting Fundamental Environmental Rights Worldwide, 23 Pace Envtl. L. Rev. 113, 118 (2005–2006) (characterizing constitutional rights as the “highest level of legal norms”). In addition, principles that are common to the world’s major legal systems may serve as an independent, secondary source of international law. Restatement (Third) of Foreign Relations Law of the United States §§ 102(4), 102 cmt. l (1987).

172. Edward Cameron, The Human Dimension of Global Climate Change, 15 Hastings W.-Nw. J. Envtl. L. & Pol’y 1, 11 (2009) (noting that over 100 national constitutions recognize environmental rights); Collins, supra note 125, at 135 (citing the prevalence of such provisions as strong evidence of the emergence of a customary international law norm guaranteeing the right to environment); see generally Alan Boyle, Human Rights or Environmental Rights? A Reassessment, 18 Fordham Envtl. L. Rev. 471, 478–82 (2007) (comparing environmental provisions of selected national constitutions). For a compilation of such provisions, see Earthjustice, Environmental Rights Report 2008 app. (2008), available at http://www.earthjustice.org/library/reports/2008-environmental-rights-report.pdf. There is some disagreement about whether the right to environment has attained the status of a norm of customary international law. See, e.g., Pedersen, supra note 138, at 75, 81 (characterizing the right to environment as an “emerging” norm of customary international law and describing ongoing debate on the topic). However, that debate is not entirely pertinent to this Note, as this Note solely concerns whether environmental racism is prohibited under customary international law. The relevant inquiry in this part is whether states may discriminate in the provision of environmental rights, rather than whether the right to environment itself is a norm of customary international law. The latter inquiry is relevant to, but not dispositive of, the former.

173. Collins, supra note 125, at 135. At the same time, constitutions,


opine that this trend raises the right to environment to the level of customary international law, at least in the regions where constitutional protections are the most widespread;174 at a minimum, the norm is “nationally shared.”175 More specifically, constitutional protections for procedural environmental rights are notably prevalent.176 In addition, many states that lack constitutional provisions nevertheless allow for protection of environmental rights via liberal use of public interest litigation and judicial review.177

The right to non-discrimination is equally widely recognized, as it is enshrined in over 100 national constitutions.178 Similarly, non-discrimination is recognized as the “strongest” 179 norm at the “heart”180 of international human rights law.181 Furthermore, it is well-settled in international law that once a state undertakes to provide a right, it must do so without discrimination.182 Thus, in the

especially in Europe, have been amended to include protections for environmental rights. Pedersen, supra note 138, at 111.

174. See Pedersen, supra note 138, at 111 (suggesting that the substantive right to environment exists as a norm of customary international law in Africa and Central and South America).

175. May, supra note 171, at 122. 176. Carl Bruch et al., Constitutional Environmental Law: Giving Force to

Fundamental Principles in Africa, 26 Colum. J. Envtl. L. 131, 132–33, 176 (2001); Pedersen, supra note 138, at 110; see, e.g., Fr. 1958 Const. Charter for the Env’t art. 7, available at http://www.assemblee-nationale.fr/english/8ab.asp (“Everyone has the right, in the conditions and to the extent provided for by law, to have access to information pertaining to the environment in the possession of public bodies and to participate in the public decision-making process likely to affect the environment.”).

177. Boyle, supra note 172, at 482 (citing the United States, the United Kingdom, Canada, Australia, and India as countries following this trend).

178. M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 258–59 n.104 (1993).

179. Hoffman, supra note 85, at 64. 180. Int’l Council on Human Rights Pol’y, supra note 85, at 22. 181. See supra notes 75–85 and accompanying text. 182. See, e.g., ICCPR, supra note 53, art. 2(1) (“Each State Party . . .

undertakes to respect and to ensure . . . the rights recognized in the present Covenant, without distinction of any kind . . . . ”); ICESCR, supra note 80, art. 2(2) (“The States Parties . . . undertake to guarantee all the rights enunciated in the present Covenant will be exercised without discrimination . . . . ”); Audrey R. Chapman, A “Violations Approach” for Monitoring the International Covenant on Economic, Social, and Cultural Rights, 18 Hum. Rts. Q. 23, 43 (1996) (observing that the ICESCR imposes an immediate duty to ensure non-discrimination); Berta Esperanza Hernández-Truyol, Out of the Shadows: Traversing the


intersection of state recognition of the right to environment and states’ obligation not to discriminate, lies a widely accepted prohibition on environmental racism.

Furthermore, the right to environment extends beyond an aspirational goal; it is a norm with concrete content.183 States have fleshed out the content of the right in statutes, and courts have followed suit with statutory interpretation. Kenyan law, for example, provides that the right to environment includes access to resources and confers a private cause of action to, inter alia, stop an environmentally harmful action, compel an environmental audit, restore environmental harm, and pay compensation for environmental damage.184 The Constitution of the Philippines provides a “self-executory and actionable right to a sound and a healthy ecology”;185 the courts have construed this right to grant broad standing that extends to allowing minors, as representatives of future generations, to sue for violations.186 The Argentine, Nepali, Slovenian, and Peruvian courts have similarly granted broad standing to sue for violations of their respective constitutional rights to environment.187 Courts in Costa Rica and Colombia have also

Imaginary of Sameness, Difference, and Relationalism—A Human Rights Proposal, 17 Wis. Women’s L.J. 111, 136 (2002) (noting that human rights norms “confirm that freedoms are to be enjoyed without discrimination”); Popovic, supra note 53, at 510 (explaining that the right to be free from discrimination must inform the interpretation and application of all rights).

183. See Blum & Steinhardt, supra note 76, at 88–89 (noting that the most authoritative international norms are those that create immediate legal obligations, as compared to non-obligatory norms that merely encourage appropriate action); May, supra note 171, at 121 (stating that the right to environment “possess[es] the hallmarks of traditional fundamental rights” such as free speech and equal protection).

184. Environmental Management and Coordination Act, (1999) Cap. 8 § 3 (Kenya).

185. Joint United Nations Environmental Programme-Office of the High Commissioner of Human Rights Expert Seminar on Human Rights and the Environment, Geneva, Switz., Jan. 14–16, 2002, Human Rights and the Environment: The national experience in South Asia and Africa, http://www.unhchr.ch/environment/bp4.html (prepared by Jona Razzaque); see Const. (1987), art. II, § 16 (Phil.).

186. See Oposa v. Factoran, G.R. No. 101083, (S.C., July 30, 1993) (en banc), available at http://www.lawphil.net/judjuris/juri1993/jul1993/gr_101083_ 1993.html.

187. Bruch et al., supra note 176, at 148–49 (Nepal), 156 (Peru); Pedersen, supra note 138, at 110 (Slovenia); Dinah Shelton, Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized?, 35


deemed the right enforceable.188 Moreover, the Chilean, Ecuadorean, French, Indian, Philippine, and South African courts have translated the constitutional right to environment into definite terms, citing that right when denying environmental permits and issuing orders to close industrial plants whose pollution breaches the right.189 A right so defined is not the type of aspirational statement that ATS courts have rejected as “merely refer[ing] to a general sense of environmental responsibility.”190 Instead, such a right creates immediate, enforceable legal duties and must thus be characterized as definite and obligatory.191

In addition to providing definite content to the right to environment, many nations have granted additional protections under extensive environmental statutes.192 South Africa is a particularly striking example of a state that has spoken directly to environmental racism with its environmental laws.193 South Africa is among the states whose constitution guarantees the right to environment and freedom from racial discrimination.194 In addition, it recognizes that apartheid reached the right to property and

Denv. J. Int’l L. & Pol’y 129, 165 (2006) [hereinafter Shelton, Specific Environmental Rights] (Argentina).

188. May, supra note 171, at 134–35. 189. Bruch et al., supra note 176, at 150–51 (Philippines and South Africa),

154–55 (Chile and Ecuador); Pedersen, supra note 138, at 108–09 (France); Shelton, Specific Environmental Rights, supra note 187, at 165 (India).

190. Beanal v. Freeport-McMoran, Inc., 197 F.3d 151, 167 (5th Cir. 1999); cf. Stephens, supra note 14, at 553 (noting that environmental claims have been thus far rejected because of international environmental law’s failure to impose clearly defined obligations).

191. See Blum & Steinhardt, supra note 76, at 88–89 (defining an obligatory norm as one that creates immediate legal obligations, as compared to non-obligatory norms that merely encourage appropriate action).

192. See John Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law, 25 Colum. J. Envtl. L. 283, 289 (2000) (noting that many nations possess extensive environmental laws and regulations).

193. South Africa is an especially instructive example, as its 1996 Constitution is widely characterized as transformative and inspiring, enshrining the ideals of international human rights law. See, e.g., Mitra Ebadolahi, Note, Using Structural Interdicts and the South African Human Rights Commission to Achieve Judicial Enforcement of Economic and Social Rights in South Africa, 83 N.Y.U. L. Rev. 1565, 1565 (2008) (“In 1996, South Africa's transformative Constitution inspired human rights activists worldwide by incorporating justiciable economic and social rights . . . . ”).

194. S. Afr. Const. 1996 art. 9 (equality and non-discrimination), art. 24 (right to environment).


provides remedies to victims whose right to property was violated as a result of past racially discriminatory laws or practices.195 The constitution protects against future discrimination targeting property ownership, by providing that property rights may not be interfered with, except by a law of general application.196 Thus, like the Apartheid and Genocide Conventions,197 the South African Constitution establishes that discriminatory expropriation of, or interference with, property is a form of environmental racism. The Constitution thus seeks to prevent environmental deprivations of rights.

South Africa also protects its citizens against environmental racism under its National Environmental Management Act (NEMA), which mandates that “[e]nvironmental justice must be pursued.”198 This mandate is to be met by the requirements that adverse environmental impacts not be discriminatorily distributed, equitable access to environmental amenities be ensured, and special measures be taken where such access is prevented by discrimination.199 Under both its constitution and statutes, then, South Africa affirmatively seeks to undo its “deep-rooted legacy” and “institutionalism of environmental racism.”200 This is to be effected by preventing discriminatory concentration of environmental burdens and ensuring equitable distribution of environmental benefits. These provisions thus provide concrete content against which protection from environmental racism can be measured.

Australian law extends strong protections against environmental racism to indigenous peoples, thus recognizing the vulnerability of specific racial groups to environmental racism. Australia’s Racial Discrimination Act, enacted to implement the ICERD into Australian law, codifies the right to equality under the law and expressly states that it applies to laws concerning third-

195. Victims whose land tenure is insecure are entitled to secure tenure or comparable redress. S. Afr. Const. 1996 art. 25(6). Victims dispossessed of property are entitled to restitution or equitable redress, as provided by an Act of Parliament. Id. art. 25(7). That Act is codified under the Restitution of Land Rights Act 22 of 1994 (S. Afr.).

196. S. Afr. Const. 1996 art. 25, §1. 197. See supra notes 164–165 and accompanying text. 198. National Environmental Management Act 107 of 1998, § 2(4)(c) (S.

Afr.). 199. Id. §§ 2(4)(c), 2(4)(d) (S. Afr.). 200. Farieda Khan, The Roots of Environmental Racism and the Rise of

Environmental Justice in the 1990s, in Environmental Justice in South Africa 15, 20, 42 (David A. McDonald ed., 2002).


party management of indigenous lands and to the right of indigenous peoples to manage their land.201 The Australian High Court applied the Act to strike down a law that purported to extinguish an indigenous community’s title to its traditional lands.202 This holding, and recognition of native title, was later codified into law under the Native Title Act,203 in part because of a directive from the court that lack of recognition of native title “demand[ed] reconsideration.”204 The court’s directive, and the legislature’s choice to act upon it, suggests Australia was acting because of a sense of legal obligation, or opinio juris. Australian case law is further discussed infra in Part III.B.3.c, but these legislative acts alone prove that Australia recognizes that environmental racism targets particularly vulnerable racial groups, indigenous peoples in particular. The acts also seek to prevent environmental deprivations of rights, specifically the right to property. In so doing, the acts lend content to and contribute to acceptance of the prohibition of this form of environmental racism.

c. United States Practice

The United States, where the environmental racism movement began, has also adopted practices to address environmental racism. First, a small number of U.S. state constitutions recognize the right to environment; 205 when considered

201. Racial Discrimination Act, 1975, s. 10 (Austl.); see Koowarta v. Bjelke-

Petersen (1982) 153 C.L.R. 168 (Austl.) (determining that the Racial Discrimination Act was a constitutionally valid implementation of Australia’s obligations under the ICERD).

202. Mabo v. Queensland (1989) 166 C.L.R. 186 (Austl.); see infra notes 277–280 and accompanying text.

203. The Act provides that native title may only be extinguished by agreement or by means of a non-discriminatory takings process. Native Title Act, 1993 (Austl.). Though subsequent amendments to the Native Title Act have garnered criticism from ICERD’s treaty body, Australia maintains that the amendments have resulted in a “strengthened non-discriminatory regime.” U.N. Comm. on the Elimination of Racial Discrimination [CERD], Documents Submitted in Compliance with a Request of the Committee under Article 9, Paragraph 1, of the Convention: Australia, ¶¶ 3, 46, U.N. Doc. CERD/C/347 (Jan. 22, 1999); see Native Title Amendment Act, 1998 (Austl.); Native Title Amendment Act, 2007 (Austl.).

204. Mabo v. Queensland II (1992) 175 C.L.R. 1, 42 (opinion of Brennan, J.) (Austl.).

205. Barry E. Hill et al., Human Rights and the Environment: A Synopsis and Some Predictions, 16 Geo. Int'l Envtl. L. Rev. 359, 390–91 (2003–2004); see, e.g., Mont. Const. art. II, § 3 (classifying the right to a clean and healthful


alongside similar protections from discrimination, those states may be said to prohibit environmental deprivations of rights as outlined supra in Part III.B.2.b. The U.S. federal government recognized the connection between racial discrimination and environmental harms as early as 1971 in the Council on Economic Quality’s annual report; this finding was cemented throughout the 1980s.206 Today, the U.S. Environmental Protection Agency’s (EPA) definition of environmental justice encompasses procedural environmental rights, impliedly recognizing the risk of discrimination in such rights.207 Moreover, the EPA agrees that environmental racism is, at its core, the disproportionate allocation of environmental burdens and benefits.208

While U.S. case law has denied suits alleging environmental racism for failure to prove intentional discrimination,209 the U.S. executive branch has accepted and sought to address claims of environmental racism. Executive Order 12,898, issued in 1994, mandates that “each Federal agency make achieving environmental justice part of its mission.”210 This mandate requires each agency to

environment as an inalienable right), § 4 (recognizing the right to equal protection and freedom from discrimination).

206. Getches & Pellow, supra note 93, at 3, 6. For an example of a U.S. nongovernmental actor’s recognition of the issue, see UCC Toxic Wastes and Race Report, supra note 122.

207. U.S. Envtl. Prot. Agency, Environmental Justice, Nov. 19, 2009, http://www.epa.gov/compliance/environmentaljustice (“Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”).

208. U.S. Envtl. Prot. Agency, Final Guidance for Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analyses 7–8 (1998), http://www.epa.gov/compliance/resources/policies/ej/ej_guidance_nepa_ epa0498.pdf (setting forth the EPA’s definition of environmental justice, which requires that “no group . . . should bear a disproportionate share of . . . negative environmental consequences”).

209. Getches & Pellow, supra note 93, at 7 (detailing this case law). The intent requirement, however, is not applicable in ATS cases, because the ATS obligates courts to apply customary international law, which does not require proof of discriminatory intent. See supra notes 92–99 and accompanying text.

210. Exec. Order No. 12,898, § 1–101, 59 Fed. Reg. 7,629 (Feb. 11, 1994) [hereinafter Exec. Order 12,898]. Some, but not all, agencies have read the order broadly to include a wide range of activities. Getches & Pellow, supra note 93, at 17. However read, the order recognizes, and seeks to remedy, discrimination in the concentration of environmental burdens and in procedural environmental rights.


identify and address the adverse environmental effects of its activities on minority and low-income communities.211 The order also requires federal agencies to develop agency-wide environmental justice strategies, and some state agencies have followed suit.212 Lastly, the order requires federal agencies to ensure procedural environmental rights as the primary method of meeting the order’s mandate.213 In addition to establishing environmental justice as a national priority,214 Executive Order 12,898 is strong evidence that the U.S. is undertaking to combat environmental racism out of a sense of legal obligation, as executive orders are a recognized form of opinio juris.215 Similarly, U.S. actions as a whole lend acceptance and definite content to the international prohibition of environmental racism.

d. Usage and Practice and the Sosa Standard

This survey of state practice and usage thus provides convincing evidence that environmental racism is prohibited under customary international law. Unanimity of state practice is not required;216 thus, the agreement of over 100 nations on non-discrimination and at least some kind of environmental rights is sufficient. Most commentators agree that non-discrimination as a general matter is opinio juris.217 The environmental treaties and

211. Exec. Order 12,898, supra note 210, § 1–101. 212. Id. § 1–103; see, e.g., Cal. Envtl. Prot. Agency, Intra-

Agency Environmental Justice Strategy (2004), available at http://www.calepa.ca.gov/EnvJustice/Documents/2004/Strategy/Final.pdf.

213. Exec. Order 12,898, supra note 210, § 5-5. 214. Clarice E. Gaylord & Elizabeth Bell, Environmental Justice: A

National Priority, in Faces of Environmental Racism: Confronting Issues of Global Justice 29, 33 (Laura Westra & Bill E. Lawson eds., 2d ed. 2001).

215. Anthony Clark Arend, Legal Rules and International Society 91 (1999) (citing executive orders as evidence of opinio juris). Though three environmental justice bills introduced to Congress around the time of Exec. Order 12,898 met with defeat, this does not likewise defeat the argument that U.S. actions to combat environmental racism are taken because of a sense of legal obligation. Instead, the bills’ defeat is best understood as due at least in part to congressional inaction in the face of risk-assessment and cost-benefit requirements, hampered especially by the problems of scientific uncertainty inherent to environmental law and industry’s use of the Takings Clause. Gaylord & Bell, supra note 214, at 34–35.

216. See supra notes 155–156 and accompanying text. 217. Rebecca J. Barber, Protecting the Right to Housing in the Aftermath of

Natural Disaster: Standards in International Human Rights Law, 20 Int’l J. Refugee L. 432, 455 (2008); Myres McDougal, Human Rights and World Public


constitutional provisions discussed supra are also “strong indicators of national opinio juris.”218 In the overlap of non-discrimination and environmental rights thus lies a widespread prohibition of environmental racism, spurred by opinio juris.

Furthermore, international agreements and national-level actions provide definite content to the norm against environmental racism. That international and regional blocs have enacted conventions protecting against environmental racism also proves widespread acceptance of the norm, as well as opinio juris. Like the jurists discussed supra in Part III.B.1, states recognize environmental racism surfaces as discrimination as to (1) concentration of environmental burdens; (2) environmental deprivations of rights; (3) particularly vulnerable racial groups, especially indigenous peoples; and (4) procedural environmental rights. Thus, international, regional, and national practices lend the prohibition of environmental racism the “definite content and acceptance”219 Sosa requires.

3. Judicial Decisions

Finally, ATS plaintiffs are required to present proof of “judicial decisions recognising and enforcing” the norm sought to be established.220 This part analyzes decisions recognizing and

Order: The Basic Policies of an International Law of Human Dignity 564 (1980). Those that dissent do so primarily on the ground that gender discrimination is frequently tolerated. Barber, supra, at 455. Thus, such objections are not relevant to the issue of racial discrimination. Indeed, many scholars agree that racial discrimination is so widely prohibited as to rise to the status of jus cogens. See supra notes 42–43, 84–85 and accompanying text.

218. Pedersen, supra note 138, at 111; see also Collins, supra note 125, at 135 (citing Rodriguez-Rivera, supra note 137, at 27) (arguing that states do not enter into agreements that limit their sovereignty absent recognized legal or moral obligations to do so, especially in the environmental context, given that environmental treaties rarely create political and economic gains and instead impose liabilities). Contra Joshua P. Eaton, Note, The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment, 15 B.U. Int’l L.J. 261, 297–99 (1997) (determining, over a decade ago, that state practice regarding environmental rights is neither widely accepted nor undertaken out of a sense of obligation).

219. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes 19–25 and accompanying text.

220. United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–61 (1820). Proof of enforcement complements the Restatement’s directive that “a practice that is generally followed but which states feel legally free to disregard does not


condemning environmental racism, inquiring whether those decisions provide the prohibition of environmental racism with the “definite content and acceptance” Sosa requires to establish a norm of customary international law.221

a. Regional Human Rights Bodies

Two of the three regional human rights bodies have decided cases concerning environmental racism.222 Regional human rights bodies have jurisdiction over the States Parties to their respective charters.223 While only legally binding as to the parties before them, their pronouncements may be cited as evidence of customary international law.224 The Inter-American system225 has the most

contribute to customary law.” Restatement (Third) of Foreign Relations Law of the United States § 102 cmt. c; see supra notes 155–157 and accompanying text.

221. Sosa, 542 U.S. at 732; see supra notes 19–25 and accompanying text. 222. In addition, the third regional system, the European Court of Human

Rights, found in Lopez Ostra v. Spain that Spain had failed to “strik[e] a fair balance” between a town’s interest in having a waste treatment plant and the applicant’s “effective enjoyment of her right[s].” 303 Eur. Ct. H.R. (ser. A) 38, ¶ 58 (1995). The case, like most environmental cases in the European system, alleged violations of the right to home and private life, without alleging discrimination. Yet it is relevant here for imposing on the state a duty to balance individual rights with state interests, especially in siting decisions. See generally Pedersen, supra note 138, at 83–92 (discussing the European Court of Human Rights’ environmental jurisprudence).

223. See infra notes 225 and 245. 224. See Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284,

1286 (11th Cir. 2006) (Barkett, J., dissenting) (citing regional human rights decisions among the sources establishing a norm of customary international law prohibiting cruel, inhuman, and degrading treatment); Restatement (Third) of Foreign Relations Law of the United States §§ 102 cmt. i, 103, 321, 324 cmt. e, Introductory Note to Part VII (1987); Mark Allan Gray, The International Crime of Ecocide, 26 Cal. W. Int’l L.J. 215, 254 (1996) (citing regional human rights instruments as evidence that ecocide violates the customary international law of human rights). At a minimum, such pronouncements may contribute to regional customary international law. See Restatement (Third) of Foreign Relations Law of the United States § 102 cmt. 3 (1987) (recognizing the existence of regional customary international law); see also supra notes 163 and 166 and accompanying text.

225. The Inter-American system includes a commission and a court and extends to members of the Organization of American States (OAS). OAS members that have ratified the American Convention, supra note 81, are subject to the Court’s jurisdiction under the Convention. OAS members that have not yet ratified the Convention are not subject to the Court’s jurisdiction; instead, human rights complaints against these members must be brought before the Commission. See generally Caroline Bettinger-Lopez, Human Rights at Home:


developed jurisprudence on the topic. Its case law is rooted in Mayagna (Sumo) Awas Tingni Community v. Nicaragua, which alleged Nicaragua violated an indigenous community’s rights by granting a timber concession on the community’s ancestral land.226 The Court found Nicaragua violated the right to judicial protection and the right to property in relation to its duty to respect and ensure rights without discrimination.227 The case emphasized Nicaragua’s duty to provide a remedy to indigenous communities denied a role in environmental decisions regarding their land.228 Thus, Awas Tingni condemns environmental racism in the form of environmental deprivations of rights—here, the right to property—and discrimination in procedural environmental rights—here, the rights comprising judicial protection. In addition, Awas Tingni recognizes the risk of environmental racism targeted at indigenous peoples, a particularly vulnerable racial group.

Dann v. United States further expanded on the Inter-American system’s condemnation of environmental racism directed at indigenous peoples.229 The Danns, members of the Western Shoshone indigenous people, argued that the United States discriminated against them by failing to accord their aboriginal property rights protection equal to non-Native-American property rights.230 The Danns alleged that this discrimination toward their property rights was part of the larger pattern of racial discrimination against indigenous peoples, citing that pattern as documented by the

Domestic Violence as a Human Rights Violation, 40 Colum. Hum. Rts. L. Rev. 19, 29–33 (2008) (explaining how the Inter-American system functions).

226. Mayagna (Sumo) Awas Tingni Cmty. Case, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001).

227. Id. at 82. 228. Id. at 57–69; see Ursula Kazarian, The Forgotten North: People and

Lands in Peril, 8 Sustainable Dev. L. & Pol’y 46, 50 n.49 (2008) (describing the case as “establishing the norm that reparations must be made to indigenous communities when destructive environmental practices are forced upon [their] lands without consultation . . . or agreement”).

229. Dann v. United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02, OEA/Serv.L./V/II.117, doc. 1 rev. 1 (2002), available at http://www.cidh.org/annualrep/2002eng/USA.11140.htm.

230. Id. ¶ 53. Specifically, the Danns claimed that the U.S. government had interfered with their use and occupation of their ancestral land by appropriating the land using an unfair procedure, threatening and removing their livestock from the land, permitting gold prospecting activities on the land, and prohibiting subsistence hunting on the land. Id. ¶¶ 2, 38–41.


United Nations.231 The Inter-American Commission agreed, holding that the United States failed to ensure the Danns’ right to property under conditions of equality.232 The Commission further recognized indigenous peoples’ right to use and occupy their traditional lands.233 The Commission found that states may only deprive indigenous peoples of this right “under conditions of equality,”234 thereby requiring states to provide equal protection of substantive and procedural environmental rights. Dann thus reinforces Awas Tingni’s recognition of environmental deprivations of rights and discrimination in procedural environmental rights.

The Commission again strengthened its protection of indigenous peoples in Maya Indigenous Communities of the Toledo District v. Belize, a case arising from Belize’s grant of logging and oil concessions on the Maya’s ancestral lands without their consent.235 Stating that protection of indigenous property rights “is mandated by the fundamental principle of non-discrimination,”236 the Commission found Belize violated, inter alia, the Maya’s rights to equality, equal protection under the law, and non-discrimination,237 under international law.238 Importantly, the Commission emphasized the importance of economic development such as the concessions at issue in the case, but held that such development may “not proceed at the expense of fundamental rights.”239 Accordingly, a state’s right to

231. Id. ¶ 54 (citing ECOSOC Indigenous Peoples Report, supra note 132); see supra note 133 and accompanying text.

232. Id. ¶ 172. 233. Id. ¶ 131. Commentators describe the holding of the case as implying

a charge of racism against the United States. See, e.g., Thomas T. Ankersen & Thomas K. Ruppert, Defending the Polygon: The Emerging Human Right to Communal Property, 59 Okla. L. Rev. 681, 736 (2006) (explaining this charge).

234. Dann, ¶ 131. 235. Maya Indigenous Cmtys. of the Toledo District v. Belize, Case 12.053,

Inter-Am. C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 (2004), available at http://www.cidh.org/annualrep/2004eng/Belize.12053eng.htm.

236. Id. ¶ 119. 237. Id. ¶ 195. 238. Id. ¶ 115. Notably, the remedies ordered by the Commission connected

Belize’s discrimination against the Maya to the environmental damage at issue. The Commission ordered Belize to adopt and effect measures recognizing the Maya’s property rights in their land and to repair the environmental damage. Id. ¶ 197. In so doing, the Commission thus identified that the discrimination amounted to an environmental deprivation of property rights, as well as a discriminatory imposition of environmental burdens.

239. Id. ¶ 150; accord IACHR Ecuador Country Report, supra note 53, at Ch. VIII (recognizing the state’s right to exploit its natural resources yet noting that doing so without adequate regulation or supervision may “create serious


exploit its resources is not a defense to discrimination in the Inter-American system.240 As in Awas Tingni and Dann, the Commission censured environmental racism in the form of environmental deprivations of rights targeted at particularly vulnerable racial groups.

The Inter-American system has also condemned environmental deprivations outside the courtroom. Its 1997 Ecuador Country Report recognized that severe environmental pollution may affect the enjoyment of fundamental rights and may trigger a state’s duty to take reasonable measures to protect those rights.241 Given the primacy of the right to be free from racial discrimination, within the Inter-American system and beyond,242 such measures must include anti-discrimination and equal protection actions. Moreover, the Commission found that Ecuador, having chosen to protect the rights to life, health, and environment under positive law, had a duty to ensure “that the law be effectively applied and enforced.”243 Again, given the fundamental nature of the prohibition against discrimination, this duty encompasses the obligation to ensure environmental harms do not fall disproportionally upon one racial subset of citizens. This duty extends to indigenous peoples and other groups similarly vulnerable to environmental racism.244 problems with respect to the environment which translate into violations of human rights”).

240. A sovereign’s right to exploit its own natural resources is widely agreed to be a principle of customary international law. Eaton, supra note 218, at 280–81; see, e.g., ICCPR, supra note 53, art. 1(2); ICESCR, supra note 80, art. 1(2); Stockholm Declaration, supra note 57, at 5. This right is commonly cited in defense of environmentally destructive practices and environmental ATS suits. See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233, 263 n.41 (2d Cir. 2003) (noting that the lower court was correct in its observation that the Rio Declaration recognizes the right of nations to “control the level of environmental exploitation within their borders”); Dhooge, supra note 55, at 406 (discussing the dismissal of environmental ATS suits because of the international law principle that permits states to exploit their natural resources without injury to other states). In this context, the Inter-American system’s rejection of this defense is significant.

241. IACHR Ecuador Country Report, supra note 53, at Ch. VIII. 242. See supra notes 75–85 and accompanying text. 243. IACHR Ecuador Country Report, supra note 53, at Ch. VIII. 244. Joint United Nations Environmental Programme-Office of the High

Commissioner for Human Rights Expert Seminar on Human Rights and the Environment, Geneva, Switz., Jan. 14–16, 2002, Human Rights and the Environment: Jurisprudence of Human Rights Bodies, http://www.unhchr.ch/environment/bp2.html (prepared by Dinah Shelton) (noting that indigenous rights jurisprudence “sets general standards for environmental


The African Commission on Human and Peoples’ Rights245 has also confronted environmental racism and, in response, denounced environmental deprivations of rights. In SERAC v. Nigeria, the Commission heard a case arising from oil exploration activities in the Niger Delta, a situation described as “as good an example of environmental racism as you’ll find anywhere.”246 The Commission found that Nigeria violated the African Charter provisions guaranteeing non-discrimination and the rights to life, property, health, environment, protection of the family, as well as the right to freely dispose of natural resources.247 The holding as to this final right is unique, because states usually invoke the right to dispose of resources as a defense in suits challenging environmental decisions.248 By finding the Nigerian government liable for failing to protect this right, the Commission flipped the usual formulation of

rights in the Inter-American system”). The duty to protect indigenous peoples arises from, inter alia, their special vulnerabilities due to past discrimination. See Sawhoyamaxa Indigenous Cmty. Case, 2006 Inter-Am. Ct. H.R. (ser. C) No. 146, at 62, 84 (Mar. 29, 2006) (referencing the lingering negative effects of past discrimination against the indigenous community); Yakye Axa Indigenous Cmty. Case, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125, at 58 (June 17, 2005); Dann v. United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02, OEA/Serv.L./V/II.117, doc. 1 rev. ¶ 126 (2002) (emphasizing that effective state remedies must account for special vulnerability of indigenous people). By the same token, protections must extend to any group similarly vulnerable to environmental racism. See U.N. Human Rights and Environment Report, supra note 2, ¶¶ 54, 249 (noting that minority groups are among those most affected by environmental degradation because “they are more vulnerable to ecological risks and repercussions” due to such factors as the absence of legal and material means of protection, lack of access to information, and lack of suitable health care).

245. The Commission has jurisdiction to receive complaints regarding parties to the African Charter, which includes every member of the African Union. See African Charter, supra note 81, arts. 30–59; see generally Christof Heyns, The African Regional Human Rights System: The African Charter, 108 Penn St. L. Rev. 679 (2004) (explaining the African regional human rights system).

246. Friends of the Earth Int’l, Climate Change and Environmental Racism in the Niger Delta, Rights, Aug. 2004 at 54, available at http://www.foei.org/en/publications/pdfs/human_rights.pdf. Specifically, the communication alleged that Nigeria exploited oil reserves without regard for local health or environment, failed to prevent oil spills, failed to require oil companies to produce environmental impact statements or consult with communities, and violently attacked villages in response to a nonviolent local movement opposing oil activities. Soc. and Econ. Rights Action Ctr. (SERAC) v. Nigeria, Communication 155/96, ACHPR/COMM/A044/1, at 3–4 (2002).

247. SERAC at 15. 248. See supra note 240 and accompanying text.


the right, vesting it in and rendering it actionable by the people. This formulation suggests that a sovereign’s right to exploit resources is not a defense within the African regional human rights system. More broadly, the Commission emphasized that “environmental rights . . . are essential elements of human rights in Africa,” thus elevating environmental rights to the plateau of other fundamental rights.249 With environmental rights at this position, under a charter that requires all rights to be afforded without discrimination,250 environmental deprivations of rights, and environmental racism in other forms, are certainly prohibited.

b. Treaty Bodies

A number of treaty bodies have addressed environmental racism. Treaty body decisions bind only the State Parties in the case, but their decisions and other pronouncements may evince a norm of customary international law.251 The Human Rights Committee (HRC), the ICCPR’s treaty body,252 has primarily addressed environmental racism via ICCPR Article 27, which guarantees minorities’ rights to enjoy their own culture.253 Complaints have come from indigenous peoples, alleging denials of their Article 27 rights arising from states’ development decisions regarding use of their traditional territories. Thus, as in the Inter-American cases, the “human rights violations at issue almost always arise as a

249. SERAC at 14; see also Pedersen, supra note 138, at 82, 111 (arguing that environmental rights have attained the status of regional customary international law in Africa, as well as in Latin America).

250. African Charter, supra note 81, art. 2. The principle that rights must be respected and ensured without discrimination is a broader norm of international human rights. See supra note 182 and accompanying text.

251. Restatement (Third) of Foreign Relations Law of the United States §§ 102 cmt. i, 103, 321, 324 cmt. e, Introductory Note to Part VII (1987); Kerstin Mechlem, Treaty Bodies and the Interpretation of Human Rights, 42 Vand. J. Transnat’l L. 905, 945 (2009) (stating that treaty bodies contribute to the formation of customary international law).

252. See ICCPR, supra note 53, arts. 28–45; see generally Henkin et al., supra note 78, at 444 (describing the Human Rights Committee’s structure and competency to receive complaints).

253. ICCPR, supra note 53, art. 27. Notably, Article 27 may protect economic activities that are an “essential element” of culture. U.N. Human Rights Comm., Communication No. 197/1985 (Kitok v. Sweden), ¶ 9.2, U.N. Doc. CCPR/C/33/D/197/1985 (Aug. 10, 1988). Such protection is not limited to traditional means of livelihood. U.N. Human Rights Comm., Communication No. 511/1992 (I. Länsman v. Finland), ¶ 9.3, U.N. Doc. CCPR/C/52/D/511/1992 (Nov. 8, 1994) [hereinafter I. Länsman v. Finland].


consequence of land rights violations and environmental degradation and indeed are inseparable from these factors.”254 By failing to ensure minority rights in this context, states discriminate against minorities and engage in environmental racism.

The HRC has considered both the process and substance of development decisions. As to process, the HRC has asked whether a State Party has included indigenous communities and considered historic inequities in the course of its decision. Where a state has included and considered indigenous interests, the HRC has typically found that no violation of the ICCPR occurred.255 By contrast, the HRC found Canada violated Article 27 when it expropriated indigenous land for the benefit of private corporate development without such consideration.256 Even in cases where it has found no violation, the HRC has emphasized states’ continuing obligations under Article 27, noting that future development projects on the complainant’s lands, if accompanied by adverse impacts or by failure to consult, might breach Article 27.257 The HRC has therefore enforced strong protections against discrimination in procedural environmental rights.

As to the substance of development decisions, the HRC has asked whether the impact of the development project “is so substantial that it effectively den[ies] to the authors the right to enjoy their cultural rights.”258 Measures that amount to a denial of rights violate Article 27; measures with “a certain limited impact . . . will not necessarily” violate Article 27.259 The HRC thus protects

254. U.N. Human Rights and Environment Report, supra note 2, ¶ 88 (comparing the cases that have come before the HRC and the Inter-American system).

255. U.N. Human Rights Comm., Communication No. 547/1993 (Apirana Mahuika v. New Zealand), ¶ 9.8, U.N. Doc. CCPR/C/70/D/547/1993 (Nov. 16, 2000) [hereinafter Apirana Mahuika v. New Zealand] (finding New Zealand had not violated Article 27 in regard to a fisheries agreement, because it consulted the community before acting and had paid special attention to the cultural significance of fishing); I. Länsman v. Finland, supra note 253, ¶ 9.6 (finding no Article 27 violation where Finland considered indigenous interests, consulted the indigenous community, and traditional activities were not adversely affected).

256. The decision was based in part on the historical inequities suffered by the indigenous group. U.N. Human Rights Comm., Communication No. 167/1984 (Ominayak and the Lubicon Lake Band v. Canada), ¶¶ 2.3, 33, U.N. Doc. CCPR/C/38/D/167/1984 (May 10, 1990).

257. Apirana Mahuika v. New Zealand, supra note 255, ¶ 9.9; I. Länsman v. Finland, supra note 253, ¶¶ 9.7–9.8.

258. I. Länsman v. Finland, supra note 253, ¶ 9.5. 259. Id. ¶ 9.4.


indigenous interests in their land, and in development decisions, by obligating States Parties to consider those interests and account for historic inequities in such decisions. This suggests that while states have a sovereign right to exploit their resources,260 they may not do so in ways that compound historic discrimination, continuously burdening the same communities with ever-increasing environmental harms. The HRC thus censures discrimination in the concentration of environmental burdens, especially when targeted at vulnerable groups.

Other treaty bodies have also considered claims of environmental racism. The Committee on the Elimination of Racial Discrimination (CERD), ICERD’s treaty body,261 has “consistently affirmed that discrimination against indigenous peoples falls under the scope of the [ICERD] and that all appropriate means must be taken to combat and eliminate such discrimination.”262 Such means include measures to recognize and protect indigenous rights to own, develop, and use their traditional lands and resources.263 The CERD reinforced this holding in 2005, finding that New Zealand discriminated against indigenous peoples by extinguishing the possibility of establishing customary titles and failing to guarantee a right of redress for that wrong.264 By contrast, the CERD noted with approval Australia’s recognition of native title under law and the Mabo cases’ invalidation of attempts to extinguish native title outside an agreement or a non-discriminatory takings process.265 The

260. See supra notes 239–240 and accompanying text. 261. Like the Human Rights Committee, the CERD’s jurisdiction is limited

to those states that have recognized its competency to receive complaints. See ICERD, supra note 76, arts. 8–16; see generally Schwelb, supra note 1, at 1032–53 (describing the CERD’s structure and competency to receive complaints).

262. U.N. Comm. on the Elimination of Racial Discrimination, General Comment No. 23, ¶ 1, U.N. Doc. A/52/18, annex V (Aug. 18, 1997); see, e.g., U.N. Comm. on the Elimination of Racial Discrimination, Report of the Comm. on the Elimination of Racial Discrimination, ¶¶ 382, 386, U.N. Doc. A/50/18 (Sept. 22, 1995) (recognizing the discrimination suffered by indigenous peoples in regard to land use).

263. U.N. Comm. on the Elimination of Racial Discrimination, General Comment No. 23, ¶ 5, U.N. Doc. A/52/18, annex V (Aug. 18, 1997).

264. U.N. Comm. on the Elimination of Racial Discrimination, Decision 1 (66): New Zealand Foreshore and Seabed Act 2004, ¶ 6, U.N. Doc. CERD/C/DEC/NZL/1 (Apr. 27, 2005).

265. U.N. Comm. on the Elimination of Racial Discrimination, Report of the Comm. on the Elimination of Racial Discrimination: Decision 2(54) on Australia, ¶ 5, U.N. Doc. A/54/18 (Mar. 1–19, 1999). While the Committee praised the initial 1993 Native Title Act, it expressed concern over subsequent


CERD has thus been particularly attentive to environmental racism as directed against indigenous peoples’ property and procedural rights.

The Committee on Economic, Social, and Cultural Rights (CESCR), the body that monitors States Parties’ implementation of the ICESCR,266 has primarily addressed environmental racism in the form of environmental deprivations of human rights. CESCR defines the right to adequate housing to mean, inter alia, the right to housing not built on polluted sites or in close proximity to pollution sources that threaten the right to health of inhabitants.267 The right to housing is “indivisible from and indispensable to” the right to environmental health and the right to be free from discrimination.268 In addition, states violate their obligation to fulfill the right to health if they fail to enact or enforce laws to reduce pollution.269 Similarly, in implementing the right to water, states must protect access to water from pollution and give special solicitude to minorities and others “who have traditionally faced difficulties” exercising this right.270 State interference, including unregulated pollution, amounts to a violation of the right to water.271 The right to food also requires adoption of appropriate environmental policies and prohibits discrimination in either natural resources policy or access to food itself.272 In fact, all state actions to realize the rights cited above must be undertaken without discrimination, given the primacy of the right

amendments to the Act. Id. ¶¶ 6, 7; see supra notes 201–204 and accompanying text; infra notes 277–280 and accompanying text.

266. For a description of the CESCR’s history and functions, see http://www2.ohchr.org/english/bodies/cescr/ (last visited Nov. 19, 2009).

267. U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 4, ¶ 8(f), U.N. Doc. E/1992/23 (Dec. 13, 1991); accord Special Rapporteur on the right to adequate housing, The Right to Adequate Housing: Progress Report, ¶ 90, delivered to Sub-Comm’n on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1993/15 (June 23, 1993).

268. Special Rapporteur on the right to adequate housing , The Right to Adequate Housing: Second Progress Report, at 28, delivered to Sub-Comm’n on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1994/20 (June 21, 1994).

269. U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 14, ¶¶ 36, 51, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).

270. U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 15, ¶ 16, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003).

271. Id. ¶ 44(a). 272. U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights,

General Comment No. 12, ¶¶ 4, 18, 26, U.N. Doc. E/C.12/1999/5 (May 12, 1999).


to non-discrimination in the ICESCR.273 CESCR has thus condemned the discriminatory concentration of environmental burdens and the risk that such concentration may lead to environmental deprivations of rights.274

Numerous treaty bodies have hence lent definite content to the prohibition of environmental racism. The treaty bodies, the CERD in particular, have uniformly condemned environmental racism in the form of discrimination targeted at vulnerable racial groups, especially indigenous peoples. The treaty bodies have also prohibited environmental deprivations of rights, with the CESCR’s proscriptions of certain actions and requirements of others providing the most concrete content. The CESCR has especially sought to prevent and remedy discriminatory concentration of environmental burdens. The HRC has echoed these concerns and leads the way in protecting procedural environmental rights from environmental racism. The extensive exposition of environmental racism in international fora such as treaty bodies thus strongly suggests that prohibition of environmental racism is as definite and widely accepted as Sosa requires.275

c. National-Level Cases

A number of national-level high courts have censured environmental racism. Their decisions are proof of a norm of customary international law prohibiting environmental racism.276 As disussed supra, the Australian High Court has addressed environmental racism targeted at indigenous groups. In Mabo v. Queensland I, the court cited the Racial Discrimination Act, which

273. See U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural

Rights, General Comment No. 20, ¶ 7, U.N. Doc. E/C.12/GC/20 (July 2, 2009) (“Non-discrimination is an immediate and cross-cutting obligation in the Covenant.”); U.N. Econ. & Soc. Council, Comm. on Econ., Soc., and Cultural Rights, General Comment No. 3, ¶ 1, U.N. Doc. E/1991/23 annex III (1990).

274. The U.N. Special Rapporteur on human rights and the environment concurs with CESCR’s understanding of the many rights affected by environmental racism. See U.N. Human Rights and Environment Report, supra note 2, ¶ 248 (citing the rights to life, health, housing, culture, and non-discrimination as those potentially affected).

275. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes 19–25 and accompanying text.

276. See Stephens et al., supra note 9, at 69–70 (stating that domestic court decisions are proof of the universal nature of a norm of customary international law).


expressly protects indigenous peoples’ property rights from discrimination, to strike down a law that purported to extinguish native title.277 The court extended this holding in Mabo v. Queensland II, when it struck down the doctrine of terra nullius, upon which British claims to acquisition of Australia were based.278 In writing for the court, Justice Gerard Brennan characterized terra nullius as a “common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights” and recognized that “[t]o maintain [its] authority . . . would destroy the equality of all Australian citizens before the law.”279 More broadly, the court cautioned that “it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.”280 The Mabo cases thus represent Australia’s actions to protect particularly vulnerable groups from environmental racism.

In addition, the Mabo cases have informed a number of other national high courts around the world, leading them to recognize the validity of native title and adding to the level of acceptance of the prohibition of environmental racism.281 The Botswanan High Court

277. Mabo v. Queensland I (1989) 166 C.L.R. 186 (Austl.); see also supra

notes 201–204 and accompanying text. 278. Mabo v. Queensland II (1992) 175 C.L.R. 1 (Austl.). Terra nullius (“the

land of no one”) means a territory not belonging to any particular country. Black’s Law Dictionary 1512 (8th ed. 2004). For an explanation of how terra nullius was used as the legal foundation for the acquisition of land by colonizing nations, see Mabo II, 175 C.L.R. at 33 (opinion of Brennan, J.).

279. Mabo II, 175 C.L.R. at 42, 58 (opinion of Brennan, J.). Many nations share Australia’s opinion of terra nullius as a racist, legally invalid doctrine. See ECOSOC Indigenous Peoples Report, supra note 132, at *43, *51.

280. Mabo II, 175 C.L.R. at 41–42 (opinion of Brennan, J.). 281. See, e.g., Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

(Can.); Selangor v. Tasi [2005] 6 M.L.J. 289 (Malay.); Alexkor Ltd. and Another v. Richtersveld Community and Others 2004 (5) SA 460 (CC) (S. Afr.). Alexkor is notable for its application of the provisions of the South African Constitution concerning property rights and past discrimination. See supra note 195 and accompanying text. The United States’ position is that Native Americans hold a right of occupancy on their traditional lands, rather than ownership in fee simple absolute. See generally Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955); Johnson v. M’Intosh, 21 U.S. 543 (1823). This position is, however, controversial, and some commentators have characterized it as racist. See, e.g., Ankersen & Ruppert, supra note 233, at 736 (detailing the charge that United States’ practices toward Native American property rights are racist). The Inter-American Commission on Human Rights is among this group, as it found in Dann v. United States that the United States failed to ensure the Shoshone plaintiffs’ right to property under conditions of equality. See supra notes 229–234 and accompanying text.


relied in part on Mabo II in finding that the government violated the rights of indigenous peoples when it evicted them from reserve land, over which the court determined the community had a right of use and occupancy.282 Emphasizing the government’s inadequate consultation with and explanation to the indigenous group the Bushmen, the court held that the eviction was effected forcibly or wrongly and without their consent.283 Procedural environmental rights were thus of the utmost importance to the court.

The Sesana court also recognized the risk of environmental deprivations of rights. It held that the government’s refusal of hunting permits and restrictions on entry to the reserve violated the Bushmen’s constitutional rights.284 Justice Dow opined, “[Natural resource and welfare promotion] decisions require a balancing of rights, a consideration of who benefits and who is adversely affected . . . . ”285 Justice Dow is thus among the ranks of those who consider distribution of environmental benefits and burdens to be a core element of environmental justice.

National high courts have thus censured environmental racism targeted at indigenous peoples and their property rights. The courts’ jurisprudence, Mabo and its ilk in particular, demonstrates that the prohibition of environmental racism is widely accepted; it also lends content by prohibiting specific forms of environmental racism based on discriminatory conceptions of indigenous peoples.286 National courts have made it clear that the international community will no longer tolerate environmental racism in the form of discrimination against indigenous property rights.287 These courts’ decisions therefore support the characterization of the prohibition of

282. Sesana v. Attorney Gen., Misca. No. 52/2002, (2006) B.W.H.C. 1, 353–

61 (Bots.). 283. Id. at 121. 284. Id. at 122. 285. Id. at 256 (opinion of Dow, J.). 286. Mabo v. Queensland II (1992) 175 C.L.R. 1, 58 (opinion of Brennan, J.)

(noting that terra nullius was based on a perception of indigenous Australians “as people too low on the scale of social organization to be acknowledged as possessing rights and interests in land”); Sesana, at 171 (opinion of Dow, J.) (describing the Bushmen’s disadvantaged position in society, due in part to traditional characterizations of their people as “uncivilized” and “wild”).

287. Cf. Filártiga v. Peña-Irala, 630 F.2d 876, 884 (2d Cir. 1980) (“Although torture was once a routine concomitant of criminal interrogations in many nations, during the modern and hopefully more enlightened era it has been universally renounced.”).


environmental racism as definite and widely accepted, as Sosa requires.288

d. United States Case Law

In addition to the ATS case law discussed supra in Part II, one line of ATS cases is particularly relevant to the issue of environmental racism. As a fundamental matter, the seizure of property via eminent domain is simply not a human rights violation actionable under the ATS. Accordingly, this line of cases questions whether a state’s expropriation of its own citizens’ property violates international law, finding that actions amounting to the exercise of eminent domain do not violate international law, but that expropriation in tandem with other human rights violations may.289 The reasoning in this line of cases can be divided into three categories: (1) such action is not “so universally abhorred”290 as to violate customary international law, (2) failure to allege state action, and (3) prudential considerations. This part analyzes each of these three categories in turn.

The first category of cases holds that a state’s expropriation of its own citizens’ property does not violate customary international law. These cases are grounded in the idea that “violations of international law do not occur when the aggrieved parties are nationals of the acting state.”291 Also present in these cases is the

288. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes

19–25 and accompanying text. 289. Stephens et al., supra note 9, at 210 (“Property seizures that are part

of a broader set of violations, such as genocide, war crimes, or crimes against humanity, are actionable under the ATS.”).

290. Jafari v. Islamic Republic of Iran, 539 F. Supp. 209, 215 (N.D. Ill. 1982).

291. Dreyfus v. von Finck, 534 F.2d 24, 31 (2d Cir. 1976); see Chuidian v. Phil. Nat’l Bank, 912 F.2d 1095, 1105 (9th Cir. 1990) (citing de Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1396–98 (5th Cir. 1985)) (citing Dreyfus, 534 F.2d at 30–31) (“Expropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law.”); Guinto v. Marcos, 654 F. Supp. 276, 280 n.1 (S.D. Cal. 1986) (quoting de Sanchez, 770 F.2d at 1397) (referring to a taking by a foreign government of its own national’s property as not cognizable under the ATS); Jafari, 539 F. Supp. at 215 (citing Dreyfus, 534 F.2d at 30–31) (“[The} law of nations does not prohibit a government’s expropriation of the property of its own nationals.”); F. Palicio y Compania, S. A. v. Brush, 256 F. Supp. 481, 487 (S.D.N.Y. 1966) (discussing the Hickenlooper Amendment’s exemption of foreign states from takings adjudication as long as those takings are not in violation of international law); Stephens et al.,


notion that socialist states did not recognize the principle of just compensation for expropriation, which precluded the consensus required to establish a norm of customary international law.292 Perhaps informed by this second consideration, at least one court sensed a temporal restriction in this holding.293 Similarly, Filártiga recognized in 1980 that the holding that states’ treatment of its own nationals could never violate international law was “clearly out of tune with the current usage and practice of international law.”294 As such, the holding that a state’s violation of its citizens’ rights does not violate international law must be understood as among the category of cases recognized as “remnant[s] of a prerights jurisprudence.”295

The second category of cases also suggests that this holding is no longer an accurate statement of international law. More recent cases, while still finding that expropriation of property does not violate customary international law, have based their reasoning on failure to allege state action.296 These more recent cases, unlike the supra note 9, at 210 (noting that courts have held states do not violate international law simply by taking the property of their own citizens).

292. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 430 (1964); Jafari, 539 F. Supp. at 215.

293. See de Sanchez, 770 F.2d at 1397 (“At present, the taking by a state of its national's property does not contravene the international law of minimum human rights.”) (emphasis added).

294. Filártiga v. Peña-Irala, 630 F.2d 876, 884 (2d Cir. 1980); see Louis Henkin, The Age of Rights 13–20 (1990) (asserting that with the emergence of the human rights movement following World War II, a state’s treatment of its own citizens became a proper matter of international concern).

295. Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 862 (1987). It is now accepted that a state’s treatment of citizens and aliens alike is a proper subject of international law. Restatement (Third) of Foreign Relations Law of the United States, Introductory Note to pt. VII (1987). The U.S. executive branch has also espoused the position that “[i]t is no longer acceptable, in the eyes of the international community, for a Government to claim that the way it treats its own citizens is solely an internal matter if the treatment in question is violative of international instruments which set human rights standards.” U.N. GAOR, 39th Sess., 93rd plen. mtg. at 11–12, U.N. Doc. A/39/PV.93 (Dec. 12, 1984) (statement of U.S. Ambassador upon the U.N. General Assembly’s adoption of the Convention Against Torture). This proposition is especially likely given customary international law’s accepted ability to evolve, such that this holding may have been in line with international norms at the time the cases were decided, but has since become outdated. See supra note 47 and accompanying text.

296. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 313 (S.D.N.Y. 2003) (citing Bigio v. Coca-Cola Co., 239 F.3d 440,


first category of cases, do not deny the possibility of ATS jurisdiction over a claim of discriminatory expropriation of property.297 This trend signals courts’ recognition, in light of the more contemporary, widespread recognition of property rights and human rights generally, that a state violates international law when it discriminatorily expropriates the property of its own citizens.

The third category of cases, stemming from Banco Nacional de Cuba v. Sabbatino,298 does not refute this trend. In Sabbatino, the Supreme Court held that, absent a treaty or similar agreement, the judiciary will decline to inquire into a state’s expropriation of property within its borders, “even if the complaint alleges that the taking violates customary international law.”299 Because Sabbatino involved a state’s expropriation of an alien’s property, it does not mandate judicial abstention from cases involving expropriation of citizens’ property. Furthermore, Sabbatino is among the cases in the first category that cited socialist practice as part of its finding that expropriation does not violate the law of nations.300 This suggests that its rationale may not have as much weight today. Lastly, Congress expressly disagreed with Sabbatino’s reasoning; shortly after the decision, it enacted the second Hickenlooper Amendment, which prohibits courts from declining on the act of state doctrine to

448 (2d Cir. 2000)) (noting that discriminatory expropriation of property is not a jus cogens violation and thus requires state action to violate international law); Bigio, 239 F.3d at 448 (declining to find discriminatory expropriation of property violated international law, but grounding its reasoning on the fact that the defendant was not a state actor). The analysis of the state action requirement is beyond the scope of this Note. See supra notes 13 and 46.

297. See Bigio, 239 F.3d at 448 (noting that racial discrimination and discriminatory expropriation of property are listed in Restatement §§ 702 and 712, “which describe conduct that violates international law when undertaken by a state actor”). Even Banco Nacional de Cuba v. Sabbatino did not suggest that discriminatory expropriation of property does not violate international law; rather, the Court held that even if that were true, it would be unwise for courts to so determine. 376 U.S. 398, 429, 433 (1964). Indeed, Justice Black, in dissent, stated that the Court was “alone among the civilized nations of the world” in deeming the issue non-justiciable, id. at 440 (Black, J., dissenting), and suggested that there might likely “be a consensus among nations in this area, as for example upon the illegality of discriminatory takings of alien property based on race . . . . ” Id. at 455.

298. 376 U.S. 398 (1964). 299. Id. at 428. 300. Id. at 429–30.


decide on the merits a claim alleging interference with property rights in violation of international law.301

The second Hickenlooper Amendment is therefore a useful tool, provided plaintiffs can prove a violation of international law. Here a claim of environmental racism may again help plaintiffs surmount the obstacles that hindered previous cases. While isolated incidents of property expropriation are unlikely to violate international law, interference with property rights as “part of a broader set of violations” is an actionable violation under the ATS.302 In particular, the case law recognizes expropriation as actionable when committed as part of genocide or war crimes.303 Systematic racial discrimination is a crime of the same caliber, as evidenced by its inclusion alongside those crimes in Restatement section 702.304 Accordingly, interference with property rights committed as part of systematic racial discrimination may be actionable under the ATS as a violation of international law, and the second Hickenlooper Amendment may preclude a court from deferring on the act of state doctrine.

e. Judicial Decisions and the Sosa Standard

Judicial decisions, in international fora and on the national level, thus recognize and enforce the prohibition on environmental racism. Like the jurists and states discussed supra in Parts III.B.1 and III.B.2, respectively, judicial decisions identify environmental racism as discrimination as to (1) concentration of environmental burdens; (2) environmental deprivations of rights; (3) particularly vulnerable racial groups, especially indigenous peoples; and (4) procedural environmental rights. The HRC has condemned discriminatory imposition of environmental burdens, going so far as

301. 22 U.S.C. § 2370(e)(2) (2009); see Anthony J. Bellia Jr. & Bradford R.

Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 87 n.470 (2009) (describing the enactment of the second Hickenlooper Amendment and noting its intent to override Sabbatino). The statute does, however, permit a presidential override in the name of foreign policy interests. Plaintiffs would likely have difficulty overcoming such an override if the President were indeed to exercise it in their case.

302. Stephens et al., supra note 9, at 210. 303. Id. at 210–11; see, e.g., Presbyterian Church of Sudan v. Talisman

Energy, Inc., 244 F. Supp. 2d 289, 324–325 (S.D.N.Y. 2003), dismissed on other grounds, 453 F. Supp. 2d 633 (S.D.N.Y. 2006).

304. Restatement (Third) of Foreign Relations Law of the United States § 702 (1987).


to frame its inquiry into minority rights in those terms.305 Environmental deprivations of rights are censured in both the Inter-American and African regional human rights systems and decried and defined most strongly by the CESCR.306 Protection against environmental racism targeted at indigenous peoples and their property rights is strong across the world, as evidenced by Inter-American, HRC, and CERD jurisprudence as well as Australia’s Mabo decision and its numerous successors in other countries.307 Similar protections have been extended to prevent discrimination in procedural environmental rights, with the Inter-American system, the HRC, and Botswana as examples.308 As a whole, judicial decisions evince an especially strong protection of the right to property and procedural rights. The number of decisions suggests that the norm prohibiting environmental racism is widely accepted, as Sosa requires. By condemning concrete instances of environmental racism, these decisions suggest that the norm has definite content, thereby meeting Sosa’s first prong.309

In addition, this survey of judicial decisions reveals that two common ATS defenses may not be applicable to an environmental racism claim. First, the decisions suggest that a sovereign’s right to exploit its own resources may not be a defense to otherwise discriminatory actions.310 Second, the decisions may render inapposite the line of cases holding that expropriation of property is not actionable under the ATS.311 In this way, too, a claim of environmental racism may help future ATS plaintiffs succeed on environmental claims where others have failed.

305. See supra notes 252–260 and accompanying text. 306. See supra notes 225–244 (Inter-American), 245–250 (African), 266–

274 (CESCR) and accompanying text. 307. See supra notes 225–244 (Inter-American), 253–260 (HRC), 261–265

(CERD), 277–281 (Australia) and accompanying text. 308. See supra 225–244 (Inter-American), notes 253–260 (HRC), 282–285

(Botswana) and accompanying text. 309. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see supra notes

19–25 and accompanying text. 310. See supra notes 239–240, 247–250, 258–260 and accompanying text. 311. See supra Part III.B.3.d.


IV. SUCCEEDING ON A CLAIM OF ENVIRONMENTAL RACISM UNDER THE ATS

As described supra in Part II, after Sosa the ATS is reserved for the most egregious violations of international law.312 Part III indicates that racial discrimination, in all its forms, is within this contemptuous category, as is environmental racism in particular. This part outlines how victims of environmental racism might successfully bring a claim under the ATS, focusing on the four types of environmental racism enumerated supra in Part III.B. Those four types are discrimination as to (1) concentration of environmental burdens, (2) environmental deprivations of rights, (3) particularly vulnerable groups, especially indigenous peoples, and (4) procedural environmental rights. Parts IV.A and IV.B discuss Sosa’s first prong, which requires plaintiffs to prove that environmental racism itself is prohibited by a norm of customary international law. Part IV.C analyzes Sosa’s second prong, which requires plaintiffs to prove specific facts amounting to a violation of the norm prohibiting environmental racism.313

A. Proving Agreement on a Core Definition of Environmental Racism

Sosa first requires that a norm of customary international law have definite content and acceptance.314 In practice, plaintiffs must prove acceptance of a core definition of the norm.315 The analysis of jurists, states, and judicial decisions in Part III.B proves that environmental racism possesses such a core. However environmental racism is formulated, jurists, states, and courts agree that environmental racism is discrimination in the distribution of environmental benefits and burdens.316 Discriminatory siting and concentration of environmental burdens is the clearest example of distributional discrimination. When, for example, race is the most significant predictor of the siting of hazardous waste facilities,317 it suggests that discrimination informs the distribution of environmental benefits and burdens. Environmental deprivations of

312. See supra notes 47–49 and accompanying text. 313. See supra note 25 and accompanying text. 314. Sosa, 542 U.S. at 732; see supra notes 19–25 and accompanying text. 315. See supra notes 29–32 and accompanying text. 316. See supra notes 121, 150–153, 208, 285 and accompanying text. 317. UCC Toxic Wastes and Race Report, supra note 122 and

accompanying text.


rights are equally informed by distributional discrimination. When the Indians abutting Union Carbide’s Bhopal plant are deprived of their rights to life and health while the Americans abutting Union Carbide’s West Virginian plant remain protected by better safety measures,318 distributional discrimination has occurred. Similarly, when the U.S. government protects non-indigenous property rights, yet deprives indigenous people of the use of their land and removes their livestock in favor of gold prospecting, discrimination has inequitably distributed environmental benefits.319 Likewise, when Botswanan officials dispossess indigenous people of their land, restrict entry, and deny hunting permits, all with inadequate consultation,320 discrimination has prevented the equitable distribution of environmental benefits. The similarities and level of condemnation shared by these claims prove agreement on the core definition of environmental racism as discrimination in the distribution of environmental burdens and benefits. Accordingly, plaintiffs are likely to convince a court that the norm prohibiting environmental racism is definite and accepted.

Though Sosa’s standard essentially mirrors the pre-Sosa lower court standard of “specific, universal, and obligatory,”321 plaintiffs would be wise to address this alternate standard. While the “specific” and “universal” prongs are analogous to Sosa’s “definite content and acceptance” standard, plaintiffs should especially address the “obligatory” prong.322 Most relevant here is the evidence of opinio juris, discussed supra in Part III.B.2, and the judicial decisions enforcing protections against environmental racism,

318. Bano v. Union Carbide Corp., No. 99 Civ. 11329(JFK), 2000 WL 1225789, at *5 (S.D.N.Y. Aug. 28, 2000), aff’d in part, vacated in part, 273 F.3d 120 (2d Cir. 2001); see supra notes 66, 128 and accompanying text.

319. Dann v. United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02, OEA/Ser.L./V/II.117, doc. 1 rev. 1 (2002), available at http://www.cidh.org/annualrep/2002eng/USA.11140.htm; see supra notes 229–234 and accompanying text.

320. Sesana v. Attorney Gen., Misca. No. 52/2002, (2006) B.W.H.C. 1 (Bots.); see supra notes 282–285 and accompanying text.

321. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004) (citing In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)); see supra note 21 and accompanying text.

322. Sosa, 542 US. at 732; see supra note 21 and accompanying text. The “obligatory” inquiry asks whether a norm is considered a requirement, rather than an aspiration that can be contravened in favor of other concerns. Stephens et al., supra note 9, at 49. The issue is whether the norm creates legal obligations or merely encourages states to take appropriate action. Blum & Steinhardt, supra note 76, at 88–89.


discussed supra in Part III.B.3. The ICERD obligates States Parties to “eliminate all forms of racial discrimination,” which includes environmental racism.323 National constitutions guarantee the right to environment as well as the right to be free from discrimination; together, these two rights impose a legally binding duty on states not to discriminate in the environmental realm.324 Both rights as implemented are markedly more specific than the more vague rights to life, health, and development that previous ATS courts have rejected.325 In 1994, the U.S. President made environmental justice a national priority, a status that continues today.326 States are not in the habit of ratifying international agreements, enacting constitutional provisions, or issuing government-wide policy directives absent a sense of legal obligation to do so.327 Likewise, the vast national and supranational jurisprudence enforcing protections against environmental racism reinforces that the norm creates binding legal obligations.328 In this context, the norm prohibiting environmental racism must be understood to be obligatory, in addition to “definite and . . . accept[ed].”329

Plaintiffs should make one final point with regard to Sosa’s first prong. Sosa urges courts to be cautious when recognizing new norms of customary international law.330 Plaintiffs should thus note that the multitude of sources used to prove the norm of customary international law prohibiting environmental racism also prove that there are no cautionary principles that militate against recognition.331 The widespread acceptance of the norm prohibiting environmental racism, as well as the condemnation of concrete instances of environmental racism, support an ATS court’s recognition of the norm.

323. ICERD, supra note 76 (emphasis added); see supra notes 76, 109–113

and accompanying text. 324. See supra notes 172–182 and accompanying text. 325. See supra notes 52–55 and accompanying text. 326. Exec. Order 12,898, supra note 210; see supra notes 210–215 and

accompanying text. 327. See supra notes 215, 218 and accompanying text. 328. See supra Parts III.B.2 and III.B.3. 329. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 330. Id.; see supra notes 22–24 and accompanying text. 331. See Stephens et al., supra note 9, at 54–57 (observing that a norm

that passes Sosa’s “definite content and acceptance” test necessarily passes Sosa’s cautionary standard, because the former is such a high standard).


B. Proving that Environmental Racism is Systematic

Plaintiffs are also required to prove that environmental racism is the type of “systematic racial discrimination” prohibited under customary international law.332 Discrimination must be deemed systematic when the State strips indigenous peoples of the land on which they have lived since time immemorial,333 produces and tolerates a society in which race is the single most significant predictor of the siting of hazardous waste facilities,334 and takes years or utterly fails to remedy environmental harms that have been adjudged discriminatory.335 Such occurrences are not mere “occasional official practices of racial discrimination.”336 Instead, these are systematic harms, entrenched in government processes and structures.337 As such, these are precisely the types of harms that the customary international law prohibition on systematic racial discrimination intends to reach. Accordingly, plaintiffs alleging facts of this type are likely to prove they are victims of systematic environmental racism.

C. Specific Types of Environmental Racism

After proving that the prohibition of environmental racism is a norm of customary international law, plaintiffs must also prove that the facts in their case amount to a violation of that norm.338 While jurists, states, and courts may have independently recognized


702 (1987); see supra note 25 and accompanying text. 333. See, e.g., Mabo v. Queensland II (1992) 175 C.L.R. 1, 216 (Dawson, J.)

(Austl.); see supra notes 201–204, 277–280 and accompanying text. 334. See UCC Toxic Wastes and Race Report, supra note 122 and

accompanying text. 335. Press Release, Inter-Am. Comm’n on Human Rights, IACHR Hails

Titling of Awas Tingni Community Lands in Nicaragua, No. 62/08 (Dec. 18, 2008), available at http://www.cidh.org/Comunicados/English/2008/62.08eng.htm (praising the titling of the Awas Tingni community’s land, a remedy that the Commission ordered in 2001); Press Release, Sandy Sorenson, United Church of Christ, New UCC Report Shows Racism Still Tied to Environmental Injustice (July 1, 2007), available at http://www.ucc.org/ucnews/june-july-2007/new-ucc-report-shows-racism.html (announcing a follow-up study finding that environmental racism “is as much or more prevalent today than 20 years ago” when the group issued its landmark 1987 study, supra note 122).

336. Restatement (Third) of Foreign Relations Law of the United States § 702 cmt. i; see supra notes 70, 100–104 and accompanying text.

337. See supra notes 100–104 and accompanying text. 338. See supra note 25 and accompanying text.


various forms of environmental racism, it does not follow that each form is actionable under the ATS. That is, a court may find under Sosa’s second prong that the facts in one plaintiff’s case do not violate customary international law. Accordingly, this part analyzes which specific forms of environmental racism are the most definite and widely condemned and, therefore, the most likely to succeed under the ATS.

Regardless of the form of environmental racism at issue, however, it is worth noting that an environmental racism claim may supplant a common defense to previous environmental claims. This common defense is that international law protects a state’s sovereign right to exploit its own resources, however a state acts to carry out that right.339 The ATS plaintiff’s rebuttal is that the environmental racism movement does not seek to abrogate this right; instead, it seeks to force states to use their resources in light of their international legal obligations and citizens’ established rights.340 Thus, states may exploit their resources, but must do so without discrimination and without environmental racism. By framing their claims in this light, victims of environmental racism may circumvent one of the largest hurdles to previous environmental ATS suits.

1. Discriminatory Concentration of Environmental Burdens

The U.S. environmental racism movement was founded on claims of discriminatory concentration of environmental risks, harms, and other burdens.341 Jurists have since documented many instances of this form of environmental racism in siting decisions and in the failure to distribute equitably environmental benefits, such as access to and management of natural resources.342 Jurists, however, have not readily asserted that distributive discrimination violates customary international law, which may render it more difficult, though not impossible, for plaintiffs to succeed on such a claim.343 Botswana’s decision in Sesana censures discrimination in environmental access and management,344 and the U.N. has agreed that discrimination may influence the concentration of

339. See supra note 240 and accompanying text. 340. See supra notes 239–240, 258–259 and accompanying text. 341. See supra note 122 and accompanying text. 342. See supra notes 122–124, 127 and accompanying text. 343. See supra notes 146–149 and accompanying text. 344. See supra notes 282–285 and accompanying text.


environmental burdens.345 South African statutory environmental law expressly prohibits environmental racism in this context;346 the U.S. EPA defines environmental justice to preclude this form of environmental racism.347 The U.N. HRC frames its analysis of minority rights and development decisions in these very terms, censuring those decisions that distribute environmental burdens so inequitably as to deny minorities’ rights to enjoy their culture.348 The European Court of Human Rights has recognized a state’s obligation to balance public and private interests in environmental decisions, even absent evidence of discrimination.349 Lastly, much of the CESCR’s work focuses on States Parties’ obligations to prevent inequitable concentration of pollution, including adoption of environmental policies that achieve this result.350

While U.S. courts have not been receptive to claims of discriminatory concentration of environmental burdens, their rationale is based on the requirement of discriminatory intent under U.S. domestic law.351 This requirement does not exist under customary international law and is thus irrelevant in an ATS case. 352 As a practical matter, however, U.S. courts may still be loathe to recognize claims via the ATS that domestic courts have repeatedly rejected, despite the ATS’s requirement that claims be governed by customary international law.353 Lack of scholarly assertions that distributive discrimination violates existing customary international law may increase courts’ reticence in this context.354 In light of this possibility, plaintiffs would be wise to couple a claim of discriminatory concentration with claims of other forms of environmental racism, such as discriminatory interference with property and procedural rights, as discussed infra in Part IV.C.2 and Part IV.C.4, respectively. Such coupling would not be difficult, given that the human rights violations that environmental racism causes

345. See supra note 123 and accompanying text. 346. See supra notes 198–200 and accompanying text. 347. See supra notes 207–208 and accompanying text. 348. See supra notes 258–260 and accompanying text. 349. See supra note 222. 350. See supra notes 266–274 and accompanying text. 351. See supra notes 92–98, 209 and accompanying text. 352. See supra notes 95–99 and accompanying text. 353. See supra notes 98–99 and accompanying text. 354. See supra notes 147–149 and accompanying text.


are “inseparable” from the discriminatory concentration of environmental burdens.355

2. Discriminatory Environmental Deprivations of Rights

Discrimination as to environmental deprivations of rights is perhaps the most documented form of environmental racism. At the international level, the Stockholm Declaration proscribes this type of discrimination.356 This proscription is echoed at the regional level in the African Charter and the San Salvador Protocol, as all three documents grant the right to environment while prohibiting discrimination.357 The Apartheid and Genocide Conventions prohibit the deliberate imposition on a racial group of living conditions calculated to cause its physical destruction.358 These conditions would surely entail the lesser-included violations of the rights to life, health, housing, food, and other fundamental human rights, as the CESCR has exhaustively detailed. The CESCR has also repeatedly outlined how the obligation to fulfill the rights to life, health, housing, food, and other social and economic rights includes the prevention of discrimination and environmental degradation.359

At a regional level, the Inter-American and African human rights systems have often censured environmental deprivations of rights. The African Commission’s SERAC decision found that Nigeria’s oil exploration activities violated the rights to non-discrimination, life, property, health, family, environment, and the right to freely dispose of wealth and natural resources.360 Similarly, the Inter-American Commission has also imposed a duty on states to ensure that development does “not proceed at the expense of . . . fundamental rights.”361 In Awas Tingni, Dann, and Belize Maya, the Commission obligated the state at issue to ensure equal protection of property rights and censured environmental racism as to property

355. U.N. Human Rights and Environment Report, supra note 2, ¶ 88; see supra notes 128, 254 and accompanying text.

356. See supra notes 83, 162 and accompanying text. 357. See supra note 163 and accompanying text. 358. See supra note 165 and accompanying text. 359. See supra notes 266–274 and accompanying text. 360. See supra notes 246–250 and accompanying text. 361. Maya Indigenous Cmtys. of the Toledo Dist. v. Belize, Case 12.053,

Inter-Am. C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1, ¶ 150 (2004), available at http://www.cidh.org/annualrep/2004eng/Belize.12053eng.htm; see supra notes 239–240 and accompanying text.


rights.362 Regional entities have thus sought to prevent environmental racism from resulting in deprivations of a host of human rights.

States have also sought to address this issue. The large number of states that guarantee the right to environment alongside the right to be free from discrimination amounts to recognition, and prohibition, of environmental racism.363 The South African Constitution in particular provides content and measurable standards to its prohibition of environmental racism, with particular attention to property rights.364 The Australian Racial Discrimination Act provides equally definite and extensive protections against racially discriminatory interference with property rights, and its courts have strongly enforced those protections in the Mabo cases.365 The Botswanan high court similarly censured environmental racism’s interference with property rights in Sesana.366 Commentators have decried environmental racism’s infringement of fundamental rights since the founding of the movement, though there is a relative paucity of commentators willing to state that such infringements violate an existing norm of customary international law.367

Thus states, jurists, and courts have accepted that environmental racism operates to deprive individuals of their human rights. These sources recognize deprivations of two types of rights: social and economic rights and property rights. While deprivations of both types of rights are widely documented, courts may continue to be reticent to recognize social and economic rights in any context.368 Relative scarcity of scholarly assertions that such deprivations violate existing customary international law may support this result.369 Moreover, previous ATS cases have rejected environmental suits based on the rights to life, health, and development.370 This seems unlikely to change, due to skepticism toward economic and social rights in general and conceptions of the right to life as

362. See supra notes 226–240 and accompanying text. 363. See supra notes 172–182 and accompanying text. 364. See supra notes 193–196 and accompanying text. 365. See supra notes 201–204, 277–280 and accompanying text. 366. See supra notes 282–285 and accompanying text. 367. See supra notes 125–128, 146–149 and accompanying text. 368. See generally Henkin et al., supra note 78, at 1373 (explaining the

opposition to and reluctance to enforce social and economic rights). 369. See supra notes 146–149 and accompanying text. 370. See supra notes 53–55 and accompanying text.


conferring protection only against the arbitrary deprivation of life.371 Though the addition of racial discrimination adds an element not present in the previous cases, courts have so strongly resisted the enforcement of social and economic rights that even conduct as condemned as racial discrimination is unlikely to change this result in practice.

By contrast, the right to property has a much longer tradition in law, particularly in American law.372 In the face of widespread agreement that environmental racism surfaces as discriminatory interference with property rights, then, a court is more likely to recognize an ATS claim founded upon this theory. Here, plaintiffs will face the hurdle of the ATS cases holding expropriation of property does not violate international law.373 However, as discussed supra in Part III.B.3.d, that case law is neither unanimous, in line with current law, nor truly founded on the tenet that discriminatory expropriation itself is not actionable.374 Instead, the overwhelming support for the right to enjoy property free from racial discrimination would lend strong support to such an ATS claim.

371. See supra note 53 and accompanying text. 372. See, e.g., U.S. Const. amends. V, XIV. Though the right to property is

absent from the ICCPR and the ICESCR, its absence is due to lack of consensus on public takings and compensation. Henkin et al., supra note 78, at 217. Therefore its omission “can hardly be construed as rejecting the existence in principle of a human right to own property and not be arbitrarily deprived of it.” Louis Henkin, Introduction to The International Bill of Rights: The Covenant on Civil and Political Rights 1, 21 (Louis Henkin ed., 1981). Similarly, while the Restatement notes “wide disagreement among states as to the scope and content” of the right to property, the Restatement was published in 1987. Restatement (Third) of Foreign Relations Law of the United States § 702 cmt. k (1987). This statement therefore predated the fall of communism and the rise of protections for indigenous property rights. See Anaya & Williams, supra note 145, at 33–34 (tracing the development and recognition of the modern indigenous rights movement, noting that the movement has truly gathered steam since the late 1970s). Accordingly, this statement is at least arguably no longer an accurate representation of the status of the right to property under international law. Indeed, the Restatement’s chief reporter, Louis Henkin, indicated in 1996 that if he were drafting the Restatement at that time, he would have included the right to property in section 702. Richard B. Lillich, The Growing Importance of Customary International Human Rights Law, 25 Ga. J. Int'l & Comp. L. 1, 6–7 n.43 (1995–1996).

373. See supra Part III.B.3.d. 374. See supra notes 290–304 and accompanying text.


In framing their claim, plaintiffs must recall that the character of the violation is essential. “Occasional”375 state contravention of property rights will not violate the norm of customary international law prohibiting environmental racism. Instead, states must have systematically discriminated by interfering or failing to ensure equal protection of plaintiffs’ property rights.376 Facts akin to those in Dann or Awas Tingni are likely to be the most compelling.377 Hence, where states have systematically discriminated against plaintiffs by denying them use and occupation of their land, expropriating their land, or allowing environmentally destructive projects to proceed on their land in contravention of their rights, ATS liability likely arises.

3. Environmental Racism Targeted at Vulnerable Racial Groups, Especially Indigenous Peoples

The sources discussed supra in Part III.B recognize that environmental racism often targets particularly vulnerable groups. The group most often identified in this context is indigenous peoples, though the reasoning extends by analogy to other vulnerable racial groups. Indeed, increased protections for indigenous peoples are one of the most notable features of contemporary human rights law.378 Specifically as to environmental racism, the United Nations has denounced discrimination against indigenous peoples and expressly cautioned that such discrimination may arise as interference with property rights and procedural environmental rights.379 The HRC and the CERD have echoed these denunciations, condemning discriminatory interference with property rights when effected


702 cmt. i (1987); see supra note 70 and accompanying text. 376. See supra notes 70, 100–104 and accompanying text. While it may be

possible to hold non-state defendants liable under the ATS, the state action requirement is beyond the scope of this Note. See supra notes 13 and 46.

377. See supra notes 226–228 and accompanying text (Awas Tingni); supra notes 229–233 and accompanying text (Dann). Indigenous plaintiffs could also draw on the reserve of scholars asserting that discriminatory interference with indigenous property rights violates an existing norm of customary international law. See supra notes 131–135, 145–146 and accompanying text. This reserve could solve the problem of having few scholars to cite for the same assertion regarding environmental deprivations of rights more generally. See supra note 149 and accompanying text.

378. Anaya & Williams, supra note 145, at 33–34 (discussing the trend of increasing protections for indigenous peoples under international law).

379. See supra notes 132–135 and accompanying text.


without consultation or with inequitable impacts on indigenous rights to culture.380 The Inter-American human rights system has enforced the strongest protections for indigenous rights, and its jurisprudence serves as a strong indicator that violations of indigenous rights also violate the norm of customary international law prohibiting environmental racism.381 Inter-American jurisprudence has repeatedly censured state development decisions that interfere with indigenous rights,382 as have high courts in Australia and the host of states following the Mabo decision.383 Botswana’s High Court has similarly protected indigenous property rights.384 Moreover, legislatures have codified the protections these courts have enforced, as in Australia’s Racial Discrimination Act.385 Jurists agree that an existing norm of customary international law protects indigenous peoples from environmental racism.386

In this context, claims alleging environmental racism against indigenous groups are particularly appropriate for future ATS suits. Property and procedural rights are the most cited indigenous rights among the sources noted supra. Thus, claims alleging discriminatory interference with either or both of these rights present the most viable ATS suits. The analysis of property rights would be the same as discussed supra in Part IV.C.2; likewise, the analysis of procedural rights would be the same as discussed infra in Part IV.C.4. Given the widespread condemnation of environmental racism targeting indigenous peoples, the addition of indigenous plaintiffs to such claims regarding property or procedural rights would increase those claims’ likelihood of success.

4. Discriminatory Infringement of Procedural Environmental Rights

Procedural environmental rights are perhaps the most codified of environmental rights, and discrimination as to such rights is widely prohibited. On the supranational level, Europe’s Aarhus

380. See supra notes 252–260 and accompanying text (HRC); supra notes 261–265 and accompanying text (CERD).

381. See supra notes 226–244 and accompanying text. 382. See supra notes 226–228 (Awas Tingni property rights), 229–234

(Dann property rights), 235–239 (Belize Maya property rights) and accompanying text.

383. See supra notes 277–281 and accompanying text. 384. See supra notes 282–285 and accompanying text. 385. See supra notes 201–204 and accompanying text. 386. See supra notes 130–135, 145 and accompanying text.


Convention expressly prohibits discrimination as to procedural environmental rights.387 The HRC’s inquiry into minorities’ cultural rights and development decisions is framed in terms of whether states have equitably afforded access to information and consulted with affected communities.388 The CERD similarly values access to environmental information and consultation and has held that discrimination in this context violates the ICERD.389 Inter-American jurisprudence also enforces strong protections of environmental procedural rights, recognizing that discrimination can interfere with these rights.390 In addition, jurists have documented instances of discrimination in procedural environmental rights around the world, from South African parks policy to U.S. waste facility siting decisions.391 Jurists also agree that such discrimination amounts to an existing norm of customary international law.392

On the national level, many states have enshrined procedural environmental rights into their national constitutions alongside the right to non-discrimination.393 Together, these provisions prohibit discrimination as to procedural environmental rights. The United States is a leader in its prohibition of discriminatory interference with procedural environmental rights. The Executive Order making environmental justice a national priority affords numerous procedural rights and prohibits discrimination as to those rights.394 In accordance with the Executive Order, the U.S. EPA defines environmental justice to include, inter alia, the provision of procedural rights without discrimination. Outside the United States, national courts have enforced protections against discrimination in procedural environmental rights, as evidenced in Botswana’s Sesana decision and Australia’s Mabo decision.

Given the strong supranational, national, and scholarly acceptance of procedural environmental rights, and the recognition that such rights must be afforded without discrimination, such rights are likely to form a successful ATS claim. As a practical matter,

387. See supra notes 166–170 and accompanying text. 388. See supra notes 255–257 and accompanying text. 389. See supra notes 263–265 and accompanying text. 390. See supra notes 227–228 (Awas Tingni procedural rights), 234 (Dann

procedural rights), 235–238 (Belize Mayan procedural rights) and accompanying text.

391. See supra notes 136–140 and accompanying text. 392. See supra note 144 and accompanying text. 393. See supra notes 176, 178–182 and accompanying text. 394. See supra notes 210–215 and accompanying text.


courts will likely look more favorably on claims that resemble those recognized under U.S. domestic law. Though courts are likely to continue to be skeptical of claims involving social and economic rights, as discussed supra in Part IV.C.2, procedural rights are well-recognized under U.S. law and should not suffer the same fate.

As described supra in Part IV.B, plaintiffs must recall that the character of the violation is essential, as only systematic environmental racism will support ATS liability.395 It is not the case that every person denied a role in, or redress for, a state’s environmental policy decision has a cognizable ATS suit. Instead, claims must allege that the state has perpetuated a system that discriminates, on grounds of race, against plaintiffs by denying them access to environmental information, environmental decisionmaking, and legal redress for environmental wrongs.396 This standard is high, and only the most egregious, systematic violations of procedural environmental rights, of the caliber at issue in Dann and Awas Tingni, will meet it.397 Thus, as with the property claims discussed supra in Part IV.C.2, facts akin to those in Dann or Awas Tingni are likely to be the most compelling.398 Where states, in the course of destructive environmental decisions, have systematically, on grounds of race, failed to provide equal access to the decisionmaking process, failed to consult affected communities, and failed to provide methods of legal redress, ATS liability may lie.

V. CONCLUSION

Plaintiffs seeking to vindicate environmental rights under the ATS have not yet succeeded. Yet as demonstrated in Sarei, claims of racial discrimination should be a way forward for such plaintiffs. The right to be free from systematic racial discrimination is sufficiently definite and widely accepted to be actionable under the ATS after Sosa. Environmental racism is one of racism’s worst contemporary incarnations and is itself prohibited under customary international law, as evidenced by jurists, states, and courts from around the world. As such, environmental racism is actionable under

395. See supra notes 70, 100–104 and accompanying text. 396. While it may be possible to hold non-state defendants liable under the

ATS, the state action requirement is beyond the scope of this Note. See supra notes 13 and 46.

397. See supra note 49 and accompanying text. 398. See supra notes 226–228 and accompanying text (Awas Tingni); supra

notes 229–233 and accompanying text (Dann).


the ATS. Furthermore, a state’s sovereign right to exploit its own resources may not be a defense to discrimination, potentially neutralizing one of the biggest barriers to previous environmental ATS suits.

Discriminatory interference with property and procedural rights are the most widely condemned badges and incidents of environmental racism. Those claims are thus most likely to succeed, where Alvarez-Machain failed, in proving that a plaintiff’s facts amount to a violation of international law.399 Indigenous plaintiffs may draw on the extensive jurisprudence and commentary condemning discrimination against indigenous peoples, thus enhancing the likelihood that their claim will succeed. Using this strategy, plaintiffs may see that the environmental racist, like the pirate, slave trader, and torturer before him, joins the ranks of “hostis humani generis, an enemy of all mankind.”400

399. See Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004); supra notes

24–25 and accompanying text. 400. Filártiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

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