343 F.3d 140 (2nd Cir. 2003), 02-9008, Flores v. Southern Peru Copper Corp.

Docket Nº:02-9008
Citation:343 F.3d 140
Party Name:Flores v. Southern Peru Copper Corp.
Case Date:August 29, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 140

343 F.3d 140 (2nd Cir. 2003)

Rodolfo Ullonoa FLORES, Luisa Torres Cheequiezol, on behalf of Veronica Velazco Torres, Maxima Quispe Canargo, on behalf of William Angelo Caronado, Elena Casilla, on behalf of Henry Anderson Casilla; David Bacangel Aguilar; Juana Jaillita Manani; Able Valdivia Acevedo and Mario Herrera, for the Estate of Mario Vitaliano Herrera Salinas, Plaintiffs-Appellants,

v.

SOUTHERN PERU COPPER CORPORATION, Defendant-Appellee.

No. 02-9008.

United States Court of Appeals, Second Circuit

August 29, 2003

Argued: April 15, 2003.

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[Copyrighted Material Omitted]

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Wallace A. Showman, Taub & Showman LLP, New York, N.Y. (Malcolm S. Taub, Taub & Showman, New York, NY, Andrew C. Shirrmeister III and Dana S. Speer, Houston, TX, on the brief), for Plaintiffs-Appellants.

Peter J. Nickles (Thomas L. Cubbage III, of counsel, Oscar M. Garibaldi and Elie Honig, on the brief), Covington & Burling, Washington, D.C., for Defendant-Appellee.

Richard L. Herz, EarthRights International, Washington, D.C., for Amici Curiae International Law Scholars.

Before: KEARSE, JACOBS and CABRANES, Circuit Judges.

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JOSÉ A. CABRANES, Circuit Judge.

The question presented is whether plaintiffs' claims are actionable under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350. 1

Plaintiffs in this case are residents of Ilo, Peru, and the representatives of deceased Ilo residents. They brought personal injury claims under the ATCA against Southern Peru Copper Corporation ("SPCC"), a United States company, alleging that pollution from SPCC's copper mining, refining, and smelting operations in and around Ilo caused plaintiffs' or their decedents' severe lung disease. The ATCA states that "[t]he district courts shall have 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." 28 U.S.C. § 1350. Plaintiffs claimed that defendant's conduct violates the "law of nations"--commonly referred to as "international law" or, when limited to non-treaty law, as "customary international law." 2 In particular, they asserted that defendant infringed upon their customary international law "right to life," "right to health," and right to "sustainable development."

The United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge), held that plaintiffs had failed to establish subject matter jurisdiction or to state a claim under the ATCA because they had not alleged a violation of customary international law--i.e., that they had not "demonstrated that high levels of environmental pollution within a nation's borders, causing harm to human life, health, and development, violate well-established, universally recognized norms of international law." Flores v. Southern Peru Copper Corp., 253 F.Supp.2d 510, 525 (S.D.N.Y.2002) (internal quotation marks omitted). The Court further held that even if plaintiffs had alleged a violation of customary international law, the case would have to be dismissed on forum non conveniens grounds because Peru provides an adequate alternative forum for plaintiffs' claims and because the relevant public and private interest factors weigh heavily in favor of the Peruvian forum. Id. at 544. Accordingly, the District Court granted defendant's motion to dismiss.

BACKGROUND

I. Statement of the Case

In reviewing a ruling on a motion to dismiss, we accept as true all well-pleaded factual allegations set forth in the complaint. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Resnik v. Swartz, 303 F.3d 147, 150-51 (2d Cir. 2002). We recount below only such facts as are necessary to our disposition of this appeal.

Plaintiffs in this case are residents of Ilo, Peru, and the representatives of deceased Ilo residents. Defendant, SPCC, is a United States corporation headquartered in Arizona with its principal place of operations in Peru. It is majority-owned by Asarco

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Incorporated ("Asarco"), a Delaware corporation with its principal place of business in Peru. Asarco is a wholly-owned subsidiary of Grupo Mexico, S.A. de C.V., which is a Mexican corporation with its principal place of business in Mexico City. SPCC has operated copper mining, refining, and smelting operations in and around Ilo since 1960.

SPCC's operations emit large quantities of sulfur dioxide and very fine particles of heavy metals into the local air and water. Plaintiffs claim that these emissions have caused their respiratory illnesses and that this "egregious and deadly" local pollution constitutes a customary international law offense because it violates the "right to life," "right to health," and right to "sustainable development." Am. Compl. ¶¶ 1, 59-75. 3

SPCC's activities, as well as their environmental impact, are regulated by the government of Peru. Since 1960, commissions of the Peruvian government have conducted annual or semi-annual reviews of the impact of SPCC's activities on the ecology and agriculture of the region. These commissions have found that SPCC's activities have inflicted environmental damage affecting agriculture in the Ilo Valley and have required SPCC to pay fines and restitution to area farmers. In addition to imposing fines and permitting area residents to seek restitution, the government of Peru also has required SPCC to modify its operations in order to abate pollution and other environmental damage. Under the direction of Peru's Ministry of Energy and Mines ("MEM"), SPCC has conducted studies to ascertain the environmental impact of its operations and the technical and economic feasibility of abating that impact. 4 SPCC is required to meet levels of emissions and discharges set by the MEM under Peruvian environmental laws enacted in 1993, and is subject to the jurisdiction of the courts of Peru. 5

II. Proceedings Before the District Court

A. Procedural History

Plaintiffs commenced this action by filing a complaint on December 28, 2000. They filed an Amended Complaint on February 7, 2001. On March 5, 2001, SPCC filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim, arguing that plaintiffs failed to allege a violation of the law of nations. SPCC also moved to dismiss the Amended Complaint on the grounds of forum non conveniens and international comity, and moved, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. While these motions were pending, the District Court requested, and the parties provided, extensive supplemental briefing to apprise the Court fully of all relevant questions of customary international law and of the adequacy of the Peruvian forum.

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B. The District Court's Opinion

On July 16, 2002, the District Court filed a comprehensive and scholarly opinion in which it carefully analyzed plaintiffs' claims and documentary evidence. The District Court held that plaintiffs had failed to state a claim under the ATCA because they had not pleaded a violation of any cognizable principle of customary international law. Flores, 253 F.Supp.2d at 525. The Court noted that it did not need to reach the question of forum non conveniens because it had determined that it lacked subject matter jurisdiction, but it nonetheless concluded that, even if plaintiffs had pleaded a violation of customary international law, dismissal on the ground of forum non conveniens would have been appropriate. Id. at 544.

In its analysis, the District Court discussed the requirements for a claim under the ATCA. It noted that "[t]he ATCA provides for federal court jurisdiction where a plaintiff's claim involves a violation of [i] a treaty of the United States or [ii] the law of nations, which consists of rules that 'command the general assent of civilized nations.' " Id. at 513-14 (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980) (internal quotation marks omitted)). Because plaintiffs did not claim any violation of a United States treaty, the Court turned to the issue of whether plaintiffs had alleged a violation of customary international law. Id. at 514. The District Court noted that, in order to allege a violation of customary international law, "a plaintiff must demonstrate that a defendant's alleged conduct violated 'well-established, universally recognized norms of international law.' " Flores, 253 F.Supp.2d at 514 (quoting Filartiga, 630 F.2d at 888; citing Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995)).

The District Court rejected plaintiff's suggestion that, "in order to distinguish ordinary torts from torts that violate [customary] international law, courts should 'make a factual inquiry into whether the allegations rise to the level of egregiousness and intentionality required to state a claim under international law.' " Flores, 253 F.Supp.2d at 522. It held that "[p]laintiffs' suggested approach--a factual assessment to determine whether the defendant's alleged conduct is 'shockingly egregious'--would displace the agreement of nations as the source of customary international law and substitute for it the consciences and sensibilities of individual judges." Id. at 523. Instead, the Court applied our instruction in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that courts should seek "to determine whether a rule is well-established and universally recognized 'by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.' " Flores, 253 F.Supp.2d at 514 (quoting Filartiga, 630 F.2d at 880 (quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57...

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