Transnational Liability in U.S. Courts for Environmental Harms Abroad

Abstract

Modern energy and natural resource development has always been, at heart, a global enterprise. Energy companies and developers, by necessity, frequently work in far-flung locations scattered among nations with vastly different legal systems and environmental regulatory systems. If one of their operations causes spills or releases that injure the local environment, they can quickly find themselves facing legal actions to force them to pay for damages or to remediate the contamination. Those lawsuits can take place in the nation where the spill occurred under that nation’s laws; alternatively, a liability claim can dog the developers back to their own countries and their domestic courts. With resolute tenacity, many foreign plaintiffs have also sought to enlist the U.S. domestic legal system to enforce foreign tort judgments based on the plaintiff’s local laws to seek large payments or remediation commitments. This type of border-jumping liability litigation has always had its own complex rules, and recent decisions in the United States have made these claims even more opaque. This paper explores developments in case law on the use of U.S. courts to impose transnational environmental liabilities, and it examines how courts in differing nations sort out the responsibilities imposed by competing jurisdictions. In particular, it focuses on two scenarios: collection lawsuits in the United States to enforce foreign environmental tort judgments obtained under the plaintiff’s domestic laws, and lawsuits brought directly in the United States to hold defendants responsible for damages caused by their actions outside the United States.