Flores v. Southern Peru Copper Corp.

• Decision Date: 16 July 2002
• Docket Number: No. 00 CIV. 9812(CSH).,00 CIV. 9812(CSH).
• Parties: 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, v. SOUTHERN PERU COPPER CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

253 F.Supp.2d 510

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, v. SOUTHERN PERU COPPER CORPORATION, Defendant.

No. 00 CIV. 9812(CSH).

United States District Court, S.D. New York.

July 16, 2002.

COPYRIGHT MATERIAL OMITTED

Taub & Showman, LLP, New York, NY, Schirrmeister Ajamie, Houston, TX, for Plaintff, Wallace A. Showman, Andrew C. Schirrmeister III, of counsel.

Covington & Burling, New York, NY, for Defendants, Eric Hellerman, Peter J. Nickles, of counsel.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

The eight plaintiffs in this case, who are residents of Peru,¹ claim that they have suffered asthma and lung disease as a result of environmental pollution from defendant Southern Peru Copper Corporation's mining and refinery operations in and around Ilo, Peru. Southern Peru Copper Corporation ("Southern Peru" or "SPCC"), a Delaware corporation with its principal place of business in Peru, is owned in majority part by a company headquartered in Arizona, which in turn is wholly owned by a Mexican corporation. Plaintiffs contend that Southern Peru has violated international law and that this Court therefore has jurisdiction to adjudicate their claims under the Alien Tort Claims Act, 28 U.S.C. § 1350 ("ATCA"),² and under the federal question jurisdiction statute, 28 U.S.C. § 1331. Defendant moves to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim under international law and consequently a lack of federal jurisdiction; in the alternative, defendant moves to dismiss the action on the grounds of forum non conveniens and comity among nations.

1. The Alien Tort Claims Act and International Law

A. General Principles

The ATCA states: "The 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. The ATCA was originally enacted as part of the Judiciary Act of 1789 and was rarely invoked for nearly two hundred years. "As the result of increasing international concern with human rights issues, however, litigants have recently begun to seek redress more frequently under the ATCA." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104 (2d Cir.2000). The Second Circuit's decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), marked the beginning of this recent increase in litigation brought under the ATCA. In that case, the court held that contemporary international law does not just govern the relations among states and the relations between a state and citizens of another state, but also governs certain acts, such as torture, committed by a state against its own citizens. Id. at 884-85. Then in Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), the Second Circuit went a step further to hold that, under modern international law, "certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals." Id. at 239.

As is evident from the holdings of Filartiga and Kadic, "courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." Filartiga, 630 F.2d at 881; accord Kadic, 70 F.3d at 238, 241. The ATCA provides for federal court jurisdiction where a plaintiffs claim involves a violation of a treaty of the United States or the "law of nations," which consists of rules that "command the `general assent of civilized nations,' " Filartiga, 630 F.2d at 881.<sup>3</sup> The requirement that a rule achieve general assent before it becomes binding on all nations as international law is "stringent" "[w]ere this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law." Id.; see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-30, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (expressing reluctance to adjudicate issue of "a state's power to expropriate the property of aliens" under international law, given divergence of opinion between capitalist and communist nations). Thus, a plaintiff must demonstrate that a defendant's alleged conduct violated "well-established, universally recognized norms of international law" in order to establish federal subject matter jurisdiction under the ATCA. Filartiga, 630 F.2d at 888; accord Kadic, 70 F.3d at 239. Courts 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.'" Filartiga, 630 F.2d at 880, quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820); accord Kadic, 70 F.3d at 238.⁴

B. Plaintiffs' Claims Under International Law

Plaintiffs claim that Southern Peru's acts of egregious environmental pollution violated their rights to life, health, and sustainable development, which plaintiffs contend are protected under international law. Plaintiffs rely on the affidavits of Professor Jordan Paust from the Law Center of the University of Houston and Professor Gunther Handl from Tulane University Law School, who cite numerous international documents as evidence of the rights asserted by plaintiffs under international law. Defendants dispute that any binding rule of international law applies to environmental pollution within a nation's borders. Furthermore, defendants argue that such a rule of international law, were it to exist, would apply only to the conduct of nations, not the conduct of private corporations such as Southern Peru. Defendants rely on the affidavits of Professor John Yoo from the University of California at Berkeley School of Law.⁵

Plaintiffs contend that no relevant caselaw in the United States bears on the viability of their particular claims under international law. It may be true that courts in this country have not previously considered the existence and scope under international law of the "right to life," "right to health," and "right to sustainable development," expressed in those particular terms, but courts in a handful of cases have considered claims similar to those raised in the present case. I turn first to those cases to see what guidance they may provide.

The case of Aguinda v. Texaco, Inc., which was brought in this district, involves claims under international law for personal injuries and environmental harms resulting from oil exploration conducted in Ecuador. The defendants made a motion to dismiss, which generated multiple opinions by the district court and one opinion by the Second Circuit; the case is currently pending on appeal again before the Second Circuit. No. 93 Civ. 7527 (VLB), 1994 WL 142006 (S.D.N.Y. Apr. 11, 1994) (Broderick, J.); 945 F.Supp. 625 (S.D.N.Y.1996) (Rakoff, J.);⁶ 175 F.R.D. 50 (S.D.N.Y.1997) (Rakoff, J.); vacated sub nom. Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir.1998); 142 F.Supp.2d 534 (S.D.N.Y.2001) (Rakoff, J.); appeal argued, 303 F.3d 470 (2d Cir. 2002).

In their motion to dismiss, the defendants in Aguinda challenged whether the plaintiffs had stated a claim under the ATCA and international law. Judge Broderick, in the first opinion of the district court, gave some initial consideration to the viability of the plaintiffs' claims under international law but then reserved decision on the issue and authorized limited discovery. 1994 WL 142006, at *6-7. Judge Broderick found the Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev. 1, 31 I.L.M. 874 (June 13, 1992) ("Rio Declaration"),⁷ to be especially pertinent and opined that it was possible that "misuse of hazardous waste of sufficient magnitude" might violate international law. Id. at 7. On the other hand, he also stated that caution was necessary "in order to assure that decision making by other countries is not interfered with by adjudication in the United States under necessarily highly general concepts." Id. Judge Broderick concluded that because the plaintiffs' claims involved "a massive industrial undertaking extending over a substantial period of time and with major consequences," and because the plaintiffs claimed that "steps in the United States were an integral part of the events at issue," discovery was warranted on the subject of the "events, if any, initiated or assisted in the United States which might violate international law." Id.

The case was reassigned to Judge Rakoff after Judge Broderick's death. After discovery, Judge Rakoff granted the motion to dismiss on the grounds of forum non conveniens, international comity, and failure to join indispensable parties, not reaching the question of whether the plaintiffs had stated a claim under international law. 945 F.Supp. at 627-28. On the question of forum non conveniens, Judge Rakoff largely adopted the findings and rationale of the court in Sequihua v. Texaco, Inc., 847 F.Supp. 61 (S.D.Tex.1994), which dismissed on forum non conveniens grounds comparable claims asserted by residents of the same region in Ecuador against Texaco for contamination of the air, ground, and water in Ecuador. 945 F.Supp. at 627. The Second Circuit vacated the dismissal and remanded for reconsideration. 157 F.3d at 155. The court of appeals directed the district court to obtain Texaco's consent to jurisdiction in Ecuador and to reweigh independently the forum non conveniens factors rather than simply relying on Sequihua. Id. at 159. The court of appeals noted that Sequihua did not involve claims under the ATCA for ...