Federal Judicial Center

International Litigation Guide

International Environmental Law

A Guide for Judges

2015

Federal Judicial Center

International Litigation Guide

International Environmental Law

A Guide for Judges

Roger R. Martella, Jr.

Sidley Austin LLP

James W. Coleman

University of Calgary, Faculty of Law and Haskayne School of Business

Federal Judicial Center

2015

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory 

mission to develop and conduct education programs for the judicial branch. While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the 

Board of the Federal Judicial Center.

International Environmental Law Guide v

Contents

I. The Increasing Prevalence of International Environmental Law in Federal 

Courts, 1

II. Sources of International Environmental Law, 3

A. International Environmental Law Treaties and Agreements, 3

B. Multilateral Trade Agreements and Bilateral Investment Treaties, 4

C. International Partnerships, 5

D. International Standards and Standard-Setting Organizations, 6

E. Cross-Border and Extraterritorial Application of Domestic 

Environmental Laws, 7

III. Major Topics in International Environmental Law, 11

A. Climate Change, 11

1. International Climate Change Negotiations and the Kyoto Protocol, 

11

2. Other International Greenhouse Gas Initiatives, 12

B. Hazardous Chemicals and Materials, 15

1. Chemical Weapons Convention, 15

2. Basel Convention, 16

3. Hazardous Chemical Regulation, 17

4. Hazardous Waste Regulation, 17

C. Protected Species, 18

D. Water Pollution, 22

E. Air Pollution, 23

F. Environmental Disaster Response, 24

G. Transborder	Enforcement of Environmental Regulations, 24

IV. Conclusion, 29

Table of Authorities, 31

About the Authors, 35

International Environmental Law Guide 1

I. The Increasing Prevalence of International 

Environmental Law in Federal Courts

International environmental law is becoming increasingly prevalent in federal 

court litigation. This is the result of several broad trends, including the following:

• Increased international trade—particularly in energy commodities, natural 

resources, and complex manufactured products—can subject companies 

operating in the United States to environmental law in other nations 

within the supply chain. Conversely, such international trade can subject 

foreign companies to environmental regulations that apply in the United 

States, in the foreign nation, or through international agreements and 

conventions.

• An increase in bilateral investment treaties and multilateral trade agreements may create legal rights and may result in federal court litigation

when domestic and foreign companies engage in activities that conflict 

with domestic and foreign environmental laws, or with substantive requirements in the treaties and trade agreements themselves.

• U.S. environmental agencies are increasing efforts to regulate and enforce 

environmental laws “at the border” in order to ensure that products and 

commerce imported into the United States comply strictly with domestic 

environmental standards even if standards used abroad are less stringent. 

Examples are emission standards for motor vehicle engines, restrictions on 

natural resources that can be utilized in domestic products, and bans on 

the trade of endangered species.

• There are growing efforts by both developed and developing nations to 

strengthen environmental standards and pollution controls, including efforts to seek recourse for pollution and other environmental impacts that 

cross international borders. Examples are controls for water pollution in

rivers flowing between the United States and Canada, and the international 

transportation of mercury across nations and continents.

• There is growing recognition that the most serious environmental issues,

such as climate change, are truly global in nature, and thus their solution 

requires a coordinated policy and control regime among nations, as well as 

additional efforts by the United States to “lead by example” in setting domestic standards for global pollutants.

• The increasing extraterritorial application of domestic environmental laws 

seeks to hold multinational companies operating abroad to standards that 

would apply in the United States.

This guide is intended to provide an introduction to the wide range of issues

that fall under the category of international environmental law, and it focuses on 

those that have arisen or are likely to arise in federal court litigation. Although the 

prevalence of international environmental law is likely to grow in coming years for 

the reasons discussed above, at this time the development of case law is in its infancy. Thus, this guide includes discussions of general international environmen-
2 International Environmental Law Guide

tal law concepts and frameworks to assist judges in analyzing issues that are relatively novel or of first impression. 
International Environmental Law Guide 3

II. Sources of International Environmental Law

International environmental law is an extremely broad field, and there is little

consensus about the boundaries that define its scope. The subject matter encompasses numerous sources of domestic, foreign, and pure international law, and 

affects a vast range of human and commercial activities. Sources of international 

environmental law include the following:

• international environmental law treaties and agreements;

• multilateral trade agreements and bilateral investment treaties between the 

United States and other nations;

• international partnerships; 

• international standards set by multilateral organizations and adopted

through either laws or regulations, or on a voluntary basis, by the United 

States; and

• domestic and foreign laws that are intended to apply either at the border 

or abroad.

A. International Environmental Law Treaties and Agreements

For most of the twentieth century, treaties and agreements between nations constituted the central focus of international environmental law. Key treaties, such as 

the Convention on International Trade in Endangered Species of Wild Fauna and 

Flora (CITES),1 the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,2 and the Framework Convention 

on Climate Change and Kyoto Protocol,

3 continue to have significant force today 

in signatory nations. These treaties and agreements are generally not independently enforceable in U.S. federal courts. For example, in Greenpeace USA v. Stone,

4 the 

U.S. District Court for the District of Hawaii held that an international convention on hazardous waste disposal could not be enforced to prevent disposal of 

chemical weapons at a disposal site in Hawaii because there was no implementing 

statute or regulation.

To make international environmental law treaties and agreements enforceable 

in federal courts, Congress must pass domestic laws implementing them and 

providing for a cause of action. For example, the Migratory Bird Convention between the United States and Great Britain on behalf of Canada5 is enforced not 

under the convention, but through the Migratory Bird Treaty Act of 1918 enacted 

by Congress.6 When considering litigation brought pursuant to an international 

 

1. Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.

2. Mar. 22, 1989, 1673 U.N.T.S. 126, 28 I.L.M. 657. 

3. May 9, 1992 and Dec. 11, 1997, 2303 U.N.T.S. 162.

4. 748 F. Supp. 749, 767 (D. Haw. 1990).

5. Convention for the Protection of Migratory Birds, U.S.–Gr. Brit., Aug. 16, 1916, 39 Stat. 

1702. 

6. 16 U.S.C. §§ 703–712 (§ 709 omitted) (1918); see Andrus v. Allard, 444 U.S. 51 (1979).
4 International Environmental Law Guide

treaty, courts first must determine whether any implementing legislation provides 

jurisdiction for enforcing the treaty and the obligations it creates.

Even when international treaties do not give rise to federal causes of action for 

direct enforcement of obligations, they can be relevant in federal court litigation 

for auxiliary reasons. For example, treaties may be cited as a measure of the validity of a federal or state law. In Japan Whaling Association v. American Cetacean Society,

7 the Supreme Court upheld the Secretary of Commerce’s determination that 

Japan’s whaling would not “diminish the effectiveness” of the International Convention for the Regulation of Whaling, because Japan agreed to a phase-out of 

commercial whaling. Treaties also may invalidate local laws because federal treaties preempt state law.

8 And finally, treaties may be relevant to the reasonableness 

of federal regulation. In Defenders of Wildlife, Inc. v. Endangered Species Scientific 

Authority,

9 the D.C. Circuit relied extensively on CITES10 in interpreting the government’s duties under the Endangered Species Act.11

B. Multilateral Trade Agreements and Bilateral Investment Treaties

The most rapidly growing sources of international environmental law are bilateral 

investment treaties and multilateral trade agreements, which create judicially enforceable environmental obligations for the signatory countries. Examples of such 

obligations and agreements are the Commission for Environmental Cooperation 

established by the North American Free Trade Agreement for the United States, 

Canada, and Mexico,12 and the environmental specifications on goods that can be 

traded between the United States and South Korea in the Korean Free Trade 

Agreement.

13

In recent years, there has been an increase in accession to both bilateral investment treaties and multilateral trade agreements, such as those enforced by the 

World Trade Organization (WTO). Bilateral investment treaties, sometimes called 

BITS, are nation-to-nation agreements designed to encourage foreign investment 

by granting protection to private investors. Issues that arise under trade agreements are likely to be presented in federal court when the dispute settlement procedures are not triggered, which often occurs with bilateral investment treaties.

Although these agreements typically provide that disputes should be resolved in 

international arbitration,14 the judgment resulting from arbitration is enforced in 

domestic courts, and the parties may attempt to involve federal courts for other 

reasons. The resulting litigation can raise sensitive issues concerning both sover-

 

7. 478 U.S. 221 (1986).

8. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 175 (1999).

9. 659 F.2d 168, 180 (D.C. Cir. 1981).

10. Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.

11. 16 U.S.C. §§ 1531, 1538, 1540 (2012).

12. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 

(1993).

13. United States-Korea Free Trade Agreement Implementation Act, Pub. L. No. 112-41, 125 

Stat. 428 (2011).

14. See Jennifer L. Tobin & Marc L. Busch, A BIT Is Better Than a Lot: Bilateral Investment 

Treaties and Preferential Trade Agreements, 62 World Pol. 1 (2010).
International Environmental Law Guide 5

eignty and the environment. For instance, in Republic of Ecuador v. Chevron 

Corp.,

15 one of the many judicial decisions in the decades-long fight over environmental damage allegedly caused by the oil company’s exploration in Ecuador’s 

rainforest, the Second Circuit gave priority to the relevant treaty’s arbitration process over federal court jurisdiction. Specifically, the court refused to stay an international arbitration process Chevron initiated under a bilateral investment treaty 

and declined a request to entertain claims in federal court instead. Companies and 

investors also may cite jurisdictional provisions in bilateral investment treaties in 

an effort to establish federal court jurisdiction over claims that seek to invalidate 

the application of foreign environmental laws that they allege are inconsistent with 

the treaties.

16

Multilateral trade agreements also frequently contain important standard environmental provisions, many of which are administered by the World Trade Organization (WTO). In particular, Article XX of the General Agreement on Tariffs 

and Trade contains two important exceptions that prevent the agreement from 

abrogating measures that (1) are “necessary to protect human, animal or plant life 

or health,” Art. XX(b), and (2) relate “to the conservation of exhaustible natural 

resources if such measures are made effective in conjunction with restrictions on 

domestic production or consumption,” Art. XX(g).17 WTO disputes are resolved 

between countries under the WTO’s dispute settlement procedures rather than in 

federal courts. However, WTO provisions may be cited during federal court litigation as principles that inform federal agency action. For instance, the U.S. Court 

of Appeals for the Federal Circuit upheld the State Department’s decision to allow 

imports of shrimp from nations that did not protect turtles, citing a WTO decision to that effect.18 This decision illustrates the deference federal courts have 

given to international decisions and bodies that are duly authorized under treaties 

and other international agreements.

C. International Partnerships

It takes many years, if not decades, to ratify treaties and trade agreements. To expedite the development of international environmental law norms, the United 

States increasingly relies on international partnerships. In some instances, a partnership is designed to help implement a treaty and may even be implemented before treaty negotiations are complete. 

 

15. 638 F.3d 384 (2d Cir. 2011).

16. Eric Neumayer, Greening Trade and Investment: Environmental Protection Without Protectionism (London: Earthscan 2001); Rahim Moloo & Justin Jacinto, Environmental and Health 

Regulation: Assessing Liability Under Investment Treaties, 29 Berkeley J. Int’l L. 1 (2011).

17. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Sts. A11, T.I.A.S. 1700, 55 

U.N.T.S. 194.

18. See Turtle Island Restoration Network v. Evans, 284 F.3d 1282, 1297 (Fed. Cir. 2002); Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products, 

WT/DS58/AB/R (Oct. 12, 1998) (in which the WTO appellate body held that the United States

could not prohibit imports of shrimp from countries that did not take steps to prevent turtles from 

being endangered by shrimp fishing). 
6 International Environmental Law Guide

Since the 2002 World Summit on Sustainable Development (WSSD), the 

United States has been at the forefront of efforts to move multilateral institutions

toward partnerships aimed at practical and results-focused actions involving governments, businesses, and other organizations. For example, one of the most significant North American partnerships is the U.S.–Mexico Border Partnership, a 

ten-year effort to achieve measurable environmental results, such as reducing

water contamination, air pollution, land contamination, and exposure to all hazardous materials, and improving environmental health and performance. 

Other examples include partnerships aimed at reducing water contamination, 

air pollution, land contamination, leaded gasoline, mercury, and methane emissions. These partnerships have three measures in common: (1) clear, quantifiable, 

and achievable goals; (2) clear communication and transparency; and (3) credible 

and measurable results.

Although currently there are no examples of international partnerships being 

litigated in federal courts, given the increasing prevalence of these partnerships, it 

is likely that parties will turn to the courts to enforce the commitments of the 

United States under such agreements. International partnerships alone may not 

automatically provide causes of action for enforcement in federal courts. Courts 

will look to whether Congress has ratified legislation that provides an enforcement 

mechanism in federal courts. In addition, many partnerships are voluntary in nature even if they come with commitments of significant federal resources to aid in 

implementation. Thus, courts should assess whether the partnership provides 

mandatory, enforceable rights or obligations, or merely sets forth aspirational 

goals and resource commitments for the parties involved.

D. International Standards and Standard-Setting Organizations

In the past half-century, as industry has become increasingly global the need for 

common standards has led to a proliferation of international standards and standards-setting organizations. The most prominent actor in this movement has been 

the International Organization for Standardization (ISO),

19 a nonprofit that works 

with national standard setters around the globe to achieve common international 

standards. ISO sets standards in numerous areas, including important environmental standards. For example, there are standards for air quality (ISO 13.040), 

water quality (ISO 13.060), radiation protection (ISO 13.280), environmental 

management (ISO 14001), and greenhouse gases (ISO 14064).

Like international treaties, ISO standards may arise in U.S. courts in connection with the reviewing of the reasonableness of federal regulation. For instance, in 

Forester v. Consumer Product Safety Commission,

20 the D.C. Circuit struck down an 

agency safety standard for bicycles, but noted that “[c]ongruence of the regulation 

with . . . ISO standards suggests that the standard is a reasonable one.”21 Private 

contracts, particularly contracts with the government or among companies seek-

 

19. The abbreviation does not match the initial letters of the organization in recognition that 

the initials would be different in every language.

20. 559 F.2d 774 (D.C. Cir. 1977).

21. Id. at 793.
International Environmental Law Guide 7

ing to purchase manufactured goods, often incorporate ISO environmental standards. Even though ISO standards may not legally bind parties to specific requirements, courts have considered the standards as evidence in litigation assessing the 

reasonableness of a party’s conduct.22

E. Cross-Border and Extraterritorial Application of Domestic Environmental 

Laws

Certain U.S. environmental laws are explicitly or implicitly extraterritorial in their 

language, or apply with equal force to imported products at the border and activities that have impacts abroad. Examples include (1) the regulation of pollution 

that originates in the United States but has transboundary effects; (2) domestic environmental regulations (such as chemical and air emission requirements) for 

imported products at the time they attempt to clear U.S. Customs; and (3) controversially, state environmental laws that take into account the international 

impacts of commerce and link formally with international regulatory regimes.

U.S. courts apply a presumption against extraterritorial application of domestic law. As the Supreme Court explained in Morrison v. National Australia Bank

Ltd.,

23 “unless there is the affirmative intention of the Congress clearly expressed 

to give a statute extraterritorial effect, we must presume it is primarily concerned 

with domestic conditions.”24 But the Morrison Court also emphasized that the 

anti-extraterritoriality “principle represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit upon Congress’s power to 

legislate.”25 The increasing focus on international and cross-border pollution has 

put pressure on this principle, leading to litigation that implicates the extraterritorial application of domestic environmental law.

As industry in the United States continues to make progress in protecting 

clean air and water, environmental groups have begun scrutinizing the environmental impacts of U.S. actors when these impacts are felt outside the nation’s 

borders. To date, cases have largely addressed situations in which there has been 

some nexus to either conduct or pollution occurring within the United States. For 

example, in Environmental Defense Fund v. Massey,

26 the D.C. Circuit held that the 

United States National Environmental Policy Act (NEPA) of 196927 could be applied to the National Science Foundation’s decision to incinerate waste in Antarctica. In doing so, the court emphasized that the government’s decision was made 

in the United States and the United States exerts substantial control over Antarctica. At least one court, following this reasoning, held that NEPA applied to export 

credit agencies funding overseas development so long as their decisions took place 

 

22. See, e.g., Hicks v. United States, No. 04-00810, 2006 WL 5186501, at *1 (N.D. Ala. Feb. 2, 

2006) (citing compliance with ISO standards as a basis for denying motion to exclude expert 

report).

23. 561 U.S. 247 (2010).

24. Id. at 255.

25. Id. 

26. 986 F.2d 538 (D.C. Cir. 1993).

27. 42 U.S.C. §§ 4321–4347 (1969).
8 International Environmental Law Guide

within the United States and could have effects within the United States.28 In a 

third decision, the Ninth Circuit upheld the application of the Comprehensive 

Environmental Response, Compensation, and Liability Act

29 to a Canadian smelting facility on the basis that pollution from the smelter ended up in the United 

States.30

These decisions suggest a willingness by courts to hold U.S. actors accountable 

for compliance with domestic environmental laws when certain conduct or impacts are felt in the United States. However, the decisions to date have not addressed the more difficult situation in which a U.S. actor is sued for environmental harms occurring outside the United States and the relevant decision making 

was also extraterritorial. In this context, courts might consider the extent to which

decisions made abroad followed a chain of command that issued from the United 

States.

Climate change, in particular, has placed strains on traditional conceptions of 

extraterritorial jurisdiction, because global greenhouse gas concentrations are the 

cumulative result of greenhouse gas emissions from all over the world and cannot 

be traced to any particular polluter or any particular nation. Consequently, disputes regarding the extraterritorial application of environmental law are likely to 

increase as both the federal government and individual states enact environmental 

laws that seek to curb greenhouse gas emissions, including laws that look beyond 

the specific jurisdiction to emissions anywhere in the world.

31 For example, the 

U.S. Environmental Protection Agency (EPA) issued a finding in 2010 that domestic greenhouse gas emissions were endangering both the domestic and international environments; it relied heavily on the International Panel on Climate 

Change in making the finding.32 Based on this finding, the EPA adopted a series of 

regulations pursuant to the Clean Air Act that established—for the first time—

restrictions and standards governing greenhouse gas emissions from vehicles and 

stationary sources across the United States.

These greenhouse gas emission regulations were ultimately affirmed in part 

and reversed in part in a decision the U.S. Supreme Court issued on June 23, 2014, 

Utility Air Regulatory Group v. EPA33(UARG). That decision did not disapprove of 

the EPA’s authority to regulate greenhouse gas emissions in general under the 

Clean Air Act, but it stated that the agency must exercise that authority in accordance with congressional intent and the statute’s purpose.34 In particular, the Court 

said, the EPA was not free to radically expand the scope of its regulatory programs 

 

28. Friends of Earth, Inc. v. Mosbacher, 488 F. Supp. 2d 889 (N.D. Cal. 2007).

29. 42 U.S.C. §§ 9601–9675 (1980).

30. Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006).

31. James W. Coleman, Importing Energy, Exporting Regulation, 83 Fordham L. Rev. 1357, 

1359 (2014) (explaining this dynamic). 

32. Environmental Protection Agency, Endangerment and Cause or Contribute Findings for 

Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Rule, 40 C.F.R. 1 (2009), available at http://www.epa.gov/climatechange/Downloads/endangerment/Federal_Register-EPA-HQOAR-2009-0171-Dec.15-09.pdf.

33. 134 S. Ct. 2427 (2014).

34. Id. at 2439–46.
International Environmental Law Guide 9

to cover any and all sources of greenhouse gas emissions when there was no indication that Congress expected or intended that result when it passed the relevant 

statutory provisions.35 Thus, the EPA could continue to regulate greenhouse gas 

emissions from vehicles and from stationary sources that were already subject to 

permitting under the Clean Air Act by virtue of emissions of other, traditional air 

pollutants. However, it could not impose permitting requirements on sources for

their greenhouse gas emissions alone, as doing so would drastically expand the 

scope of the statutory permitting programs.36 The UARG decision, while not precluding the EPA from adopting further regulations addressing greenhouse gas 

emissions, may have a restraining influence on the agency as its considers further 

rule making, including specifically rules that may have extraterritorial reach (and 

that would more likely be outside of Congress’s intent).

California recently enacted legislation that seeks to address the extraterritorial 

nature of greenhouse gas emissions.37 This legislation covers a low carbon fuel 

standard that addresses crude oil produced in Canada and that is being challenged 

in the Ninth Circuit, and a state cap-and-trade law that is being linked to other international climate change regimes. This type of state law raises constitutional 

questions, including the domestic and foreign Commerce Clauses, the federal affairs preemption doctrine, and the Treaty Clause.

In recent years, because of the global nature of greenhouse gas emissions, climate change has dominated popular discussion of international environmental 

law. The numerous efforts at combating climate change—public and private as 

well as international, national, and local—implicate each of the environmental law 

sources discussed above. For example, the European Union implements a capand-trade system that recently sought—unsuccessfully—to regulate foreign registered aircraft while they moved through Europe, and the State of California recently proposed the first linkage between a domestic greenhouse gas cap-andtrade program and a foreign one. 

While climate change will most likely be the most visible focus of international 

environmental law and litigation in coming years, the growing global nature of 

environmental challenges and the rapidly rising international trade in natural resources, energy commodities, and complex manufactured goods are increasing the 

prevalence of international environmental law in disputes among sovereigns, 

companies, and nongovernmental organizations. Although to date such disputes 

largely have been addressed outside of federal court, as the stakes rise it is likely 

that federal courts will become the adjudicator of some of these complex matters. 

 

35. Id. 

36. Id.

37. California’s Global Warming Solutions Act of 2006, California Health & Safety Code 

§§ 38500–38599.

International Environmental Law Guide 11

III. Major Topics in International Environmental Law

International environmental law’s substantive scope is as broad as its sources are 

diverse. The law addresses nearly every aspect of the modern economy, and it is 

aimed at pollution prevention and remediation as well as natural resource conservation. This section provides an introduction to some of the major areas of international environmental law and examines how the law might arise in federal litigation involving (a) climate change, (b) hazardous chemicals and materials, 

(c) protected species, (d) water pollution, (e) air pollution, (f) environmental disaster response, and (g) transborder enforcement of environmental regulations. 

A. Climate Change

International climate change law has proceeded on two levels: (1) efforts to 

achieve an international treaty to comprehensively control greenhouse gas emissions; and (2) regional, domestic, and local efforts to address greenhouse gas 

emissions without defined geographic boundaries. Although the climate change 

discussion is decades old, these issues have begun to reach the federal courts only 

recently. It is likely that the future will bring litigation regarding climate change 

laws, regulations, and, potentially, torts. Given the uniqueness and complexity of 

the topic, some background regarding efforts to address climate change may be 

helpful.

1. International Climate Change Negotiations and the Kyoto Protocol

Climate-change-related litigation is most likely to involve the United Nations 

Framework Convention on Climate Change (UNFCCC), a nonbinding international instrument that came into force in 1994.

38 The treaty aimed to reduce 

greenhouse gas emissions to 1990 levels by the year 2000 and maintain them “at a 

level that would prevent dangerous anthropogenic interference with the climate 

system.”39

In an effort to fulfill the UNFCCC’s goals, countries adopted the Kyoto Protocol in 1997,40 which set binding commitments on thirty-eight countries to reduce 

greenhouse gas emissions beginning in 2008. One hundred and ninety-one nations (but not the United States) ultimately ratified the protocol. Nations attempted to fulfill their Kyoto Protocol commitments using a variety of mechanisms, including energy efficiency measures, taxes on carbon-based fuels, and capand-trade programs that place an overall cap on greenhouse gas emissions from 

an economy. 

The Kyoto Protocol covers only a fraction of global emissions because the 

United States never ratified it and because it does not place commitments on de-

 

38. United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. 

No. 102-38, 1771 U.N.T.S. 107 (1992).

39. Id. art. 2.

40. Framework Convention on Climate Change and Kyoto Protocol, May 9, 1992 and Dec. 11, 

1997, 2303 U.N.T.S. 162.
12 International Environmental Law Guide

veloping nations, including China, now the largest greenhouse-gas-emitting nation. More recent UNFCCC negotiations have focused on a successor agreement.

But hard divisions between developing and developed countries have emerged, 

and no new agreement has been reached. On June 25, 2013, President Obama announced a renewed commitment to seeking an international agreement on binding reductions in greenhouse gas emissions before the end of his administration in 

2016.41 If the United States commits to such an international agreement, it is likely 

that it will include obligations to enact regulations that seek greenhouse gas reductions—obligations that may be challenged as part of enforcement proceedings 

in federal courts.

2. Other International Greenhouse Gas Initiatives

At the national level, the United States is in the midst of enacting comprehensive

regulations to control greenhouse gases, while at the state and local levels, governments are developing laws and regulations to address the emissions of the 

global pollutants. As discussed elsewhere in this guide, private parties and nongovernmental organizations are bringing lawsuits to spur government action 

against and seek damages and remedies from emitters of greenhouse gases for 

their climate change impacts. These efforts are now working their way through the 

federal courts and most likely will be a source of litigation for many years.

Because of the global nature of greenhouse gases, climate change efforts have 

sometimes led to regulations and lawsuits that push the boundaries of traditional 

territorial jurisdiction. For example, there has been increased scrutiny of greenhouse gas emissions associated with the production of fuels overseas when those 

fuels are used in the United States. Congress recently amended the Clean Air Act

to require that the nation’s transportation fuel market contain increasingly mandated volumes of fuel each year that meet standards for “lifecycle greenhouse gas 

emissions.”42 Such a lifecycle analysis includes all the emissions associated with 

producing the fuel overseas and transporting it in international territory, as well as 

all the emissions that could result from international land use change if farmers 

place more land under cultivation for energy crops used to make ethanol.43

A federal district court originally enjoined California from implementing a 

similar regulation of California motor fuels, holding that attempting to control 

greenhouse gas emissions from fuel production in other countries violated the 

dormant Commerce Clause.

44 In its holding, the court found that the Constitution’s Commerce Clause prohibited California from regulating conduct beyond 

the state’s borders, and that taking such international emissions into account effectively amounted to extraterritorial regulation. On appeal, however, both a divided panel and en banc court reversed the district court, finding that California’s 

 

41. President Barack Obama, Remarks by the President on Climate Change, Georgetown 

University, Washington, D.C. (June 25, 2013), https://www.whitehouse.gov/the-press-office/

2013/06/25/remarks-president-climate-change.

42. 42 U.S.C. § 7545(o)(1)(B) (2007).

43. Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 

Fed. Reg. 14670 (Mar. 26, 2010) (to be codified at 40 C.F.R. pt. 80).

44. Rocky Mountain Farmers Union v. Goldstene, 843 F. Supp. 2d 1071 (E.D. Cal. 2011).
International Environmental Law Guide 13

interests in addressing climate change gave it broad interests in controlling a 

broad range of conduct that might have ramifications outside the state’s borders.45

In June 2014, the Supreme Court denied certiorari; however, the litigation is 

moving back through the federal courts on remand and could be presented to the 

Supreme Court again following further review by the district court and the Ninth 

Circuit. 

Environmental groups have sought to challenge international emissions of 

greenhouse gases in the U.S. courts.46 One coordinated effort focuses on emissions 

that result from oil exported to the United States from the Canadian oil sands.

This oil is produced by particularly energy-intensive methods, resulting in higher 

greenhouse gas emissions than those associated with the extraction of oil in other 

areas. Environmental groups have lodged several NEPA challenges to permits for 

pipeline projects that would bring oil to the United States from Canada. The 

courts have rejected such challenges on the grounds that the government examined the potential environmental consequences of the projects, including those 

that could occur both in the United States and abroad in Canada.47 A similar challenge was raised to the Department of Defense’s use of fuel produced in Canada. 

This suit also was dismissed, on the grounds that the nongovernment plaintiff 

lacked standing to challenge the Defense Department policy and had not demonstrated harm from the use of petroleum from the Canadian oil sands.48

In a number of recent cases, both individuals and environmental groups have 

sought—so far unsuccessfully—to litigate global climate change issues on the basis 

of common law theories that, if accepted, could be used to bring international 

greenhouse gas emitters into U.S. courts. The most prominent of these cases involve claims brought under the federal common law alleging that climate change 

constitutes a “nuisance” and that sources of greenhouse gas emissions, wherever 

located, are therefore liable for any harms or risks of harm attributed to the effects 

of global warming.

In American Electric Power Co. v. Connecticut49 (AEP), the U.S. Supreme Court 

dismissed a suit by a group of states demanding injunctive relief against electric 

utilities, on grounds that the Clean Air Act authorizes the EPA to undertake regulatory efforts to address greenhouse gas emissions and climate change and there-

 

45. Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013); petition for 

rehearing en banc denied, 740 F.3d 507 (9th Cir. 2014).

46. See Sierra Club v. Clinton, 689 F. Supp. 2d 1147 (D. Minn. 2010); Natural Res. Def. Council v. Dep’t of State, 658 F. Supp. 2d 105 (D.D.C. 2009); see also Complaint, Ctr. for Biological Diversity v. Dep’t of State, No. 11-cv-00345 (D. Neb. Oct. 5, 2011).

47. Despite the lack of success in court, President Obama initially did reject an application for 

the most recent pipeline from Canada, known as the Keystone XL Pipeline. However, the Administration’s ultimate decision on the Keystone XL Pipeline remains under further review as of August 2014. Presidential Memorandum, Implementing Provisions of the Temporary Payroll Tax Cut 

Continuation Act of 2011 Relating to the Keystone XL Pipeline Permit, Jan. 18, 2012, https:// 

www.whitehouse.gov/the-press-office/2012/01/18/presidential-memorandum-implementingprovisions-temporary-payroll-tax-cu.

48. Sierra Club v. U.S. Def. Energy Support Ctr., No. 01-11-cv-41, 2011 WL 3321296 (E.D. Va. 

July 29, 2011).

49. 131 S. Ct. 2527 (2011).
14 International Environmental Law Guide

fore displaces claims challenging such emissions under federal common law.50 The 

Ninth Circuit subsequently concluded that AEP’s holding also applies to federal 

common law claims seeking monetary relief, and it dismissed a lawsuit by an 

Alaskan tribal village against oil companies and others for damage to the village 

allegedly caused by global warming.51

AEP expressly left open the question whether a state common law claim for 

global warming owing to greenhouse gas emissions could proceed.52 However, a 

federal district court in Mississippi dismissed state common law claims by gulf 

coast landowners for damages from Hurricane Katrina, which the complaint 

linked to global warming; the court found the claims preempted by the Clean Air 

Act, based on the reasoning of AEP.

53 That decision was later affirmed on different, unrelated grounds of res judicata.

54

Notwithstanding these unfavorable decisions, litigants may continue to bring 

similar actions under other common law theories that were not addressed in AEP.

The environmental group Our Children’s Trust, for example, has filed lawsuits in 

jurisdictions across the United States alleging that the atmosphere is a natural resource that state and federal governments have an affirmative obligation to protect 

for the public good under the “public trust” doctrine.55 None of these claims has 

been successful, and indeed most have been dismissed on grounds that they would 

improperly interfere with the government’s legislative and regulatory authority, 

including a claim against the federal government in Alec L. v. Jackson.

56 However, 

some courts have expressed sympathy for the claims, even when disallowing 

them.57

If any of these claims are successful, future plaintiffs may seek to internationalize this common law climate change litigation. Domestic emitters have no greater 

effect on climate change than foreign emitters, because the impact of greenhouse 

gases is global. Plaintiffs from the United States may attempt to hold foreign 

emitters liable, either in U.S. courts or in foreign tribunals. Indeed, the environmental group responsible for the “public trust” climate change litigation in the 

United States, Our Children’s Trust, has also brought or supported similar litigation in Ukraine, Uganda, the Philippines, and the Netherlands.58

Defendants in federal court litigation have also relied on the unique global 

characteristics of greenhouse gases as a defense. In a suit brought by residents of 

Kivalina, an Alaskan village, against ExxonMobil Corp., the defendants argued 

that tort suits generally should include all parties responsible for the alleged envi-

 

50. Id. at 2536–37. 

51. Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858–59 (9th Cir. 2012), cert. 

denied, 133 S. Ct. 2390 (2013).

52. AEP, 131 S. Ct. at 2540.

53. Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (S.D. Miss. 2012).

54. Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 469 (5th Cir. 2013).

55. Our Children’s Trust, US Legal Actions, http://ourchildrenstrust.org/legal/US-Action.

56. 863 F. Supp. 2d 11 (D.D.C. 2012) (appeal pending).

57. See, e.g., id.

58. Our Children’s Trust, International Legal Actions, http://ourchildrenstrust.org/legal/ 

international.
International Environmental Law Guide 15

ronmental harm.59 Given the global nature of greenhouse gas emissions and climate change, ExxonMobil argued that defendants should include “all human beings and entities engaged in man-made greenhouse-gas emitting activity anywhere 

on the planet over the last two centuries—including car and truck drivers, construction and farming vehicle operators, manufacturing plants, and foreign emitters of every kind.”60 While the majority in Kivalina dismissed the case on grounds 

that under AEP, the federal common law claims were displaced by the Clean Air 

Act, a concurring member of the panel specifically agreed with the district court 

that the plaintiffs lacked standing.61 At least one other district court reached a 

similar conclusion.62 If litigants are to raise such challenges in the future, they may 

ask courts to revisit long-established precedent relating to standing, the burden of 

proof for showing distinct harm, and joinder of necessary parties.

B. Hazardous Chemicals and Materials

Hazardous chemicals and materials have been the subject of much international 

regulation in recent years, which could lead to federal court litigation in the future. Older international agreements, such as the Chemical Weapons Convention 

and the Basel Convention, have been the subject of recent federal court litigation. 

1. Chemical Weapons Convention 

The Convention on the Prohibition of the Development, Production, Stockpiling 

and Use of Chemical Weapons and on their Destruction (CWC) is an international treaty that was ratified by the United States in 1997.63 The convention prohibits countries from manufacturing, storing, or using chemical weapons. The 

convention orders countries with existing chemical weapons in storage to destroy 

those weapons.64 In 1998, the United States passed the Chemical Weapons Convention Implementation Act,

65 which laid out the criteria courts should consider 

before imposing civil penalties for CWC violations.66 Shortly after the United 

States ratified the convention, the Tenth Circuit ruled that Congress could authorize the incineration of the weapons stockpiles, even if that process might lead 

to health-related risks.67 The Tenth Circuit’s decision is consistent with the theme 

 

59. Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 853 (9th Cir. 2012).

60. Brief of Defendant-Appellant at 69–70, Native Vill. of Kivalina v. ExxonMobil Corp., 696 

F.3d 849 (9th Cir. 2012) (No. 09-17490) (emphasis added). 

61. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 879–80 (N.D. Cal. 

2009).

62. Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 857–62 (S.D. Miss. 2012).

63. 32 I.L.M. 800 (1993).

64. The Organisation for the Prohibition of Chemical Weapons, an independent association 

based in The Hague, Netherlands, oversees compliance with the treaty. Most nations are members 

of the convention, and 190 United Nations members signed the agreement. Among those nations 

not included in the 190, Myanmar and Israel have signed but not yet ratified the treaty; Angola, 

Egypt, North Korea, and South Sudan have not signed the treaty.

65. 22 U.S.C. § 6761(a)(2)(D) (1998).

66. See United States v. Complex Machine Works, 23 Ct. Int’l Trade 942, 1315 n.12 (1999).

67. See Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485 

(10th Cir. 1997).
16 International Environmental Law Guide

of cases discussed throughout this guide: deference is given to government action 

that is intended to enforce international commitments and agreements.

The passing of the April 2012 convention deadline for the destruction of all 

chemical weapons stored in the United States could lead to federal litigation.68

One case that has already been decided involves the planned destruction of more 

than 2,600 tons of chemical weapons and other materials stored at the Pueblo 

Chemical Depot. Before implementing the destruction of weapons required under 

the convention, the State of Colorado challenged the method and timing of the 

destruction.69 Congress specifically required the Department of Defense’s Assembled Chemical Weapons Assessment program to develop alternative means for 

destroying the nation’s chemical weapons stockpile. When the State of Colorado 

challenged the federal government’s decision on how and when the weapons 

would be destroyed, a federal district court determined, based on Congress’s actions in compliance with the CWC, that Congress had “superior authority” to determine how the destruction would occur.70

As the United States continues to implement the requirements for weapons 

destruction in other localities new litigation challenging the time, place, and manner of the destruction activities and their consequences (such as the storage of any 

waste) may be filed. The Colorado decision suggests that courts may give the federal government wide discretion, over state and local opposition, as to how the 

convention should be implemented.

2. Basel Convention

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal71 was enacted in 1992 as a comprehensive global 

agreement on hazardous waste. As of August 2011, 175 parties are covered by the 

agreement, which controls the production, handling, “transboundary movements,” and destruction of hazardous waste. 

The convention has important implications for both the federal government 

and companies that trade in materials that may be considered hazardous or that 

seek to recycle waste-containing hazardous materials in other countries. To the 

extent U.S. courts have considered the convention, they have not yet permitted 

claims under the convention to be litigated in federal courts. Congress has not enacted implementing legislation for the Basel Convention, as it did for the CWC.

To date, courts have held that it is non–self-executing and may not be enforced 

absent implementing legislation.72

 

68. See Chemical Weapons Demilitarization: Before the S. Subcomm. on Emerging Threats 

and Capabilities, S. Armed Services Comm., 106th Cong. (Apr. 11, 2005) (statement of Donald A. 

Mahley, Deputy Assistant Secretary for Arms Control Implementation), available at http://2001-

2009.state.gov/t/ac/rls/rm/44633.htm.

69. Colorado Dep’t of Public Health and Env’t v. United States (Colorado), No. 08-CV-01883-

RPM, slip op. (D. Colo. Sept. 22, 2009).

70. Id.

71. 1673 U.N.T.S. 126, 28 I.L.M. 657 (1989).

72. Greenpeace USA v. Stone, 748 F. Supp. 749, 767 (D. Haw. 1990); Doe v. Nestle, 748 F. 

Supp. 2d 1057, 1137 (C.D. Cal. 2010).
International Environmental Law Guide 17

Looking to older agreements, such as the Basel Convention and similar treaties 

on the production, movement, and disposal of hazardous substances, many 

countries have enacted their own regulations on hazardous materials. Given the 

comprehensiveness and strength of these foreign laws and regulations, there may 

be efforts to hold U.S. companies liable for conduct claimed to be inconsistent 

with these requirements.

3. Hazardous Chemical Regulation

In 2007, the European Union enacted the Regulation on Registration, Evaluation, 

Authorisation, and Restriction of Chemicals (REACH).

73 That agreement, which 

binds all twenty-seven member-states of the European Union, addresses the scrutiny given to products shipped throughout the world that contain certain chemicals. REACH applies not only to EU chemical manufacturers, but also to importers of chemicals into the European Union, even users who manufacture products 

that include the chemicals. REACH does include some exemptions for certain 

highly regulated products, such as cosmetics and pharmaceuticals, but the scope 

of these exemptions vary. REACH uses the “precautionary principle,” which states 

that if there is a suspected risk, the burden is placed on the actor to prove that the 

chemical is not harmful. Chemical manufacturers face a heavy informational burden from the regulation. 

Even though REACH does not apply within the United States, the vast data it 

generates could lead to litigation in federal courts. REACH requires American 

companies that export their chemicals to EU nations to produce certain data; 

these data may create new disclosure obligations for the companies under the 

United States’ Toxic Substances Control Act (TSCA),

74 which is the domestic law 

that regulates hazardous chemicals. The heightened requirements for the collection of data about certain chemicals manufactured in the United States also may 

implicate toxic tort claims in federal courts. Although toxic tort suits are already 

prevalent in federal courts, REACH may provide an additional argument that 

companies should have made consumers aware of the results of the data that 

American companies generate pursuant to REACH. If raised as part of U.S.-based 

environmental litigation, such arguments will present novel questions regarding 

the admissibility of data collected pursuant to an international regulatory regime.

4. Hazardous Waste Regulation

The disposal of hazardous waste has also been the subject of much recent international regulation. For example, even though the Basel Convention is in place, the 

exportation of old electronic equipment for disposal remains a major issue. These 

materials, which usually make their way to recycling plants in Africa and Asia, are 

 

73. Regulation 1907/2006, concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 

1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) 

No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 

93/67/EEC, 93/105/EC and 2000/21/EC, 2006 O.J. (L. 396) 1.

74. 15 U.S.C. § 2601 (1976).
18 International Environmental Law Guide

cited as a health risk to plant employees. The European Union banned the export 

of hazardous materials in the mid-1990s, and since then it has been trying to stop 

such exportation and dumping in developing countries; but reports suggest that 

many shipments still slip through.75 Unlike the European Union, the United States 

has not established laws implementing the exportation bans established by the 

Basel Convention. Because other countries with which the United States regularly 

does business have recently begun a concentrated effort to end these exports, 

groups may seek to put additional pressure on the United States by filing litigation 

to implement the Basel Convention.

Many nations are well under way in implementing the Globally Harmonized 

System of Classification and Labeling of Chemicals (GHS). First proposed at the 

United Nations in 1992, GHS aims to standardize the classification and labeling of 

chemicals worldwide. Dozens of countries have partially implemented GHS, particularly those portions related to the transport of dangerous goods. The European 

Union recently fully aligned its chemical labeling requirements with GHS. In the 

United States, several agencies with overlapping responsibility for chemical management have taken initial steps toward full implementation of GHS. For example, 

in 2012, the Occupational Safety and Health Administration (OSHA) finalized a 

rule to align the agency’s Hazard Communication Standard with GHS.76 OSHA 

and other agencies have taken steps to implement GHS, resulting in final agency 

rules and decisions, the sufficiency of which may be challenged in federal courts. 

C. Protected Species

In the United States, the Department of Justice (DOJ) prosecutes violations of international endangered species laws, usually in conjunction with claims under 

U.S. law. The Endangered Species Act of 1973 (ESA)

77 implements provisions under the United Nations Convention on International Trade in Endangered Species 

of Wild Fauna and Flora (CITES).78 This convention and the U.S. implementing 

legislation seek to prevent the commercial exploitation of endangered species by 

outlawing international trafficking of these species.

The ESA provides strict domestic protections for endangered and threatened 

species and outlaws the import and export of those species in accordance with 

regulations for those categories of species detailed in CITES.

79 The ESA also as-

 

75. Aidan Lewis, Europe Exporting Electronic Waste Despite Ban, BBC News, Aug. 4, 2010, 

available at http://www.bbc.co.uk/news/world-europe-10846395.

76. Hazard Communication, 77 Fed. Reg. 17,574 (Mar. 26, 2012).

77. 16 U.S.C. § 1531 (2012).

78. In 1975, the United Nations enacted the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.

79. 16 U.S.C. § 1538 (2012). It provides regulations for three categories of species: all species in 

present danger of extinction (listed in Appendix I to CITES), art. II(1), 27 U.S.T. 1092, 993 

U.N.T.S. 245; species that are not in imminent danger of extinction but may become endangered 

without strict trade regulations (Appendix II), art. II(2); and species that party states have 

identified as endangered within their respective jurisdictions (Appendix III), art. II(3). CITES does 

not contain provisions for the enforcement of its terms; rather, each party to the convention agrees 
International Environmental Law Guide 19

sesses civil and criminal penalties for violations of these regulations.80 The ESA is a 

common subject of litigation in the federal courts, including the U.S. Supreme 

Court. Over several decades, the ESA has generated a significant legacy of federal 

cases interpreting its key provisions, most of which govern the federal government’s obligations to comply with NEPA in administering federal programs.81 The 

ESA establishes criminal penalties for the trafficking of listed fish and wildlife, including those brought across the border into or outside the United States, and it 

requires only general intent to establish liability.82 In other words, DOJ may prosecute without showing that the defendant knew the wildlife was protected or intended to violate the ESA.

Despite its broad scope, the ESA is not the exclusive enforcement mechanism 

for CITES regulations.83 DOJ also prosecutes international trafficking of protected 

species under the Lacey Act.84 Enacted in 1900, the Lacey Act was originally aimed 

at combating the importation of invasive species harmful to native wildlife.85 In its 

current form, the Act makes it illegal to “import, export, transport, sell, receive, 

acquire, or purchase in interstate or foreign commerce” any wildlife, plant, or fish 

that has been “taken, possessed, transported, or sold” in violation of any federal, 

state, or foreign law.86 Liability under the Lacey Act “relies on the violation of a 

predicate law,” including foreign laws that prohibit the trade, transport, or possession of a particular species.87 For example, in United States v. Labs of Virginia, 

Inc.,

88 the court found that the defendants violated the Lacey Act by importing 

wild-caught, crab-eating macaques, a protected species in Indonesia.89 The Act is 

not limited to live species; any “part, product, egg, or offspring” of wildlife or fish 

 

to implement and enforce the permit requirements specified in each of these categories, art. IX(1), 

27 U.S.T. 1103, 993 U.N.T.S. 251. As of 2010, 175 states are parties to CITES.

80. See 16 U.S.C. § 1540 (2012). 

81. See, e.g., Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) (holding that the ESA did not require the Environmental Protection Agency to consider species-related 

considerations in issuing a water discharge permit and outlining the history of ESA litigation in 

federal courts).

82. See United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998).

83. See United States v. Manghis, No. 08-10090-NG, 2011 U.S. Dist. LEXIS 56491, at *4 (D. 

Mass. May 26, 2011) (“[CITES] is enforced by the Endangered Species Act, the Lacey Act, general 

criminal statutes, and a series of regulations”).

84. 16 U.S.C §§ 3371–3378 (2012).

85. See Laura T. Gorjanc, Combating Harmful Invasive Species Under the Lacey Act: Removing 

the Dormant Commerce Clause Barrier to State and Federal Cooperation, 16 Fordham Envtl. L. Rev. 

111, 114 (2004).

86. 16 U.S.C. § 3372 (2012). 

87. In this respect, the Lacey Act is similar to the Foreign Corrupt Practices Act of 1977, Pub. 

L. No. 95-213, §§ 101-5, 201–04, 91 Stat. 1494 (1977), now codified under 15 U.S.C. § 78, 78(a), 

78dd-2, 78ff(a), 78m, 78n, 78q(b).

88. 272 F. Supp. 2d 764, 770 (N.D. Ill. 2003).

89. See also Gorjanc, supra note 85, at 116. 
20 International Environmental Law Guide

is subject to its regulations as well.90 In 2008, Congress amended it to also include 

plant products, such as seeds and timber.91

Several types of civil and criminal penalties may be imposed for violations of 

the Lacey Act, depending on the value of the trafficked species or products and the 

defendant’s knowledge of their illegal nature.92 Individuals who “knowingly” import or export illegal species valued at more than $350 can face criminal felony 

charges punishable by a $250,000 fine and up to five years in prison; those who 

traffic in species without taking “due care” to ensure their legality are subject to 

civil fines of less than $10,000.93 The government need not show that the species 

was obtained using illegal means to establish that a defendant “knowingly” violated the Act; it is enough that the defendant knew the export violated a foreign 

law.94 Even if an individual does not have the requisite knowledge to be charged, 

all animals and goods trafficked in violation of the Act are subject to forfeiture on 

a strict liability basis.95

The United States has also enacted laws protecting wildlife pursuant to numerous treaties and U.N. conventions. Table 1 lists these treaties, laws, and regulations, as well as the non-U.S. signatories.

 

90. 16 U.S.C. § 3371(a) (2012).

91. 16 U.S.C. § 3371(f) (2012); see also U.S. Dep’t of Agric., Animal and Plant Health Inspection Serv., Lacey Act Primer and Updates (Aug. 2013), available at https://www.aphis.usda.

gov/plant_health/lacey_act/downloads/LaceyActPrimer.pdf (last visited Oct. 6, 2015) (explaining 

the 2008 amendments to the Lacey Act). 

92. See 16 U.S.C. § 3373 (2012) (listing the requisite knowledge and corresponding penalties 

for civil and criminal violations). 

93. Id.

94. See United States v. Labs of Va., Inc., 272 F. Supp. 2d 764, 770 (N.D. Ill. 2003) (holding 

that the defendants violated the Lacey Act when they exported wild-caught macaques contrary to 

Indonesian law, regardless of whether the Indonesian officials who issued their license were bribed 

to do so).

95. 16 U.S.C. § 3374 (2012). 
International Environmental Law Guide 21

Table 1. U.S. Laws That Protect Wildlife Pursuant to 

Treaties and U.N. Conventions

Treaty or Convention

U.S. Law 

Implementing Treaty Non-U.S. Signatories Summary of Regulations

Agreement on the 

International Dolphin 

Conservation 

Program, May 21, 

1998, 11 Stat. 1122

International Dolphin 

Conservation Act, 16 

U.S.C. § 1411 (1992)

Costa Rica, Ecuador, 

El Salvador, 

Guatemala, 

Honduras, Mexico, 

Nicaragua, Panama, 

Peru, Vanuatu, 

Venezuela

Limits use of purse 

seining to catch 

yellowfin tuna to reduce 

incidental dolphin 

takings; permits trade 

embargoes against 

countries that do not 

comply with the Act 

Convention for the 

Conservation of 

Anadromous Stocks in 

the North Pacific 

Ocean, Feb. 11, 1992, 

T.I.A.S. 11465

National Oceanic and 

Atmospheric 

Administration 

Authorization Act, 15 

U.S.C. § 1511 (1992)

Japan, South Korea, 

Russia

Prohibits directed 

fishing for anadromous 

fish in the convention 

area and retention of 

incidentally taken 

anadromous fish 

Convention for the 

Protection of 

Migratory Birds, U.S.-

Gr. Brit., Aug. 16, 

1916, 39 Stat. 1702

Migratory Bird Treaty 

Act of 1918, 16 U.S.C. 

§§ 703–712 (§ 709 

omitted) (1918)

(As amended): 

United Kingdom, 

Mexico, Japan, 

Russia

Restricts taking of 

migratory birds

Convention for the 

Conservation of 

Salmon in the North 

Atlantic Ocean, Mar. 

2, 1982, T.I.A.S. 10789 

Atlantic Salmon 

Convention Act of 

1982, 16 U.S.C. § 3601

(1982)

Canada, Denmark, 

European 

Community, Iceland, 

Norway

Limits salmon fishing to 

designated fisheries 

within certain distances 

of coastal land

International 

Convention for the 

Regulation of Whaling, 

Dec. 2, 1946, 62 Stat. 

1716, 161 U.N.T.S. 72, 

177 U.N.T.S. 396, and 

364 U.N.T.S. 1953; 

Convention on the 

Conservation of Polar 

Bears, Nov. 15, 1973, 

U.N. Reg. No. 50540

Marine Mammal 

Protection Act of 

1972, 16 U.S.C. § 1361

(1972)

43 signatories; see 

http://www.iwc.int/ 

members

Prohibits taking, import, 

export, or sale of marine 

mammals

Pacific Salmon Treaty, 

U.S.-Can., Jan. 28, 

1985, T.I.A.S. 11091

Pacific Salmon Treaty 

Act of 1985, 16 U.S.C. 

§ 3631 (1985)

Canada Limits harvesting of 

salmon in the Pacific

Ocean

Northwest Atlantic 

Fisheries Convention, 

Feb. 8, 1948, 64 Stat. 

1067

Northwest Atlantic 

Fisheries Act of 1950, 

16 U.S.C. § 5601

(1950)

Canada, Cuba, 

Denmark, France, 

Iceland, Japan, South 

Korea, Norway, 

Russia, Ukraine

Limits number of fish 

allowed to be caught in 

specified Northwest 

Atlantic zone
22 International Environmental Law Guide

By the end of the last decade, approximately 5,000 animal species and 25,000 

plant species had been recognized by the Convention on International Trade in

Endangered Species of Wild Fauna and Flora, and the number of signatory nations had grown to 175.96 Many of these laws place obligations on nation states 

themselves, and thus disputes between nations that arise under them may be ill 

suited for federal courts. For example, in a high-profile dispute between the 

United States and Mexico in 2011, the World Trade Organization sided with 

Mexico in a complaint against the United States over dolphin-safe tuna labeling 

requirements, and it rejected the United States’ position that the North American 

Free Trade Agreement (NAFTA) was the proper venue for the dispute.97

D. Water Pollution

The international law of water pollution, like the international law of climate 

change, has global and regional dimensions, and as has occurred with climate 

change law, efforts to create a binding global agreement have not been realized.

Issues relating to cross-boundary water pollution raise novel questions that test 

the typical territorial limits of U.S. environmental law. One case involved pollution that originated in Canada and reached the waters of the United States. The 

Ninth Circuit held that the application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)98 was not extraterritorial 

when it imposed liability for the release of hazardous substances into the U.S. 

portion of the Columbia River from waste that entered the river in Canada.99

There has been a dearth of cases addressing transnational water pollution (in part, 

owing to the strong incentive of sovereigns to reach accommodation on such 

issues). However, Pakootas may be interpreted to suggest that pollution originating elsewhere but reaching the United States can trigger domestic environmental 

laws.100

 

96. Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243. At a recent meeting of CITES, proposals to 

recognize a number of threatened species, including the polar bear and the Atlantic bluefin tuna 

failed. Similarly, the International Whaling Commission (IWC) failed to agree on a proposal to lift 

its whaling moratorium, in place since 1986, in exchange for reductions in whaling by nations already engaged in the practice, particularly Japan. The proposal was strongly opposed by Australia. 

Even before its opposition at the IWC, Australia instituted an action against Japan in the International Court of Justice, alleging violations of the International Convention for the Regulation of 

Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72, 177 U.N.T.S. 396, and 364 U.N.T.S. 1953. 

See also Whaling in the Antarctic (Australia v. Japan), 2010 I.C.J. 148 (May 31). 

97. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 

(1993); Dispute D5381, United States—Measures Concerning the Importation, Marketing, and 

Sale of Tuna and Tuna Products (2011).

98. 42 U.S.C. §§ 9601–9675 (1980).

99. Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1074–75 (9th Cir. 2006) (upholding the application of CERCLA to a Canadian smelting facility after it disposed of waste that subsequently leached hazardous substances into the Columbia River at a site located in Washington 

State). 

100. Id.
International Environmental Law Guide 23

Efforts to establish an international approach to transnational water pollution 

have received significant attention but not resolution. In 1997, the United Nations 

adopted the Convention on the Law of the Non-navigational Uses of International 

Watercourses,

101 which governs water that crosses international borders. The convention has not entered into force because it has not yet been ratified by thirty-five 

nations. Although the convention has not entered into force, analogous principles 

have informed the United States’ interactions with Canada and Mexico, and such 

principles, in turn, could influence any federal court litigation seeking to enforce 

laws against transnational pollution. 

E. Air Pollution

Conventional air pollution, unlike greenhouse gases, has effects that are realized 

locally, regionally, or in cases such as mercury, across several nations as a result of

air transport and deposition patterns. The United States’ most important international collaborations in this area are with Canada and Mexico. Indeed, the case 

decided by an international arbitration tribunal that many consider the foundation for later cases addressing transborder pollution concerned air emissions that 

crossed the border into the United States from a smelter in British Columbia.102 In 

the early twentieth century, sulfur dioxide fumes from the smelter were damaging 

agriculture and wildlife in Washington State.103 When disputes continued concerning ongoing pollution, the countries created a special tribunal, which held 

that under international law,

no State has the right to use or permit the use of its territory in such a manner as to cause 

injury by fumes in or to the territory of another or the properties or persons therein when 

the case is of serious consequence and the injury is established by clear and convincing 

evidence.104

The tribunal prescribed a detailed system of control and monitoring, and possible 

compensation for fumes from the smelter.105

The United States’ Clean Air Act contains one provision that specifically addresses international air pollution and may be enforced in federal court. Section 

115(a) of the Act applies when the EPA receives reports from a “duly constituted 

international agency” that give it “reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which 

may reasonably be anticipated to endanger public health or welfare in a foreign 

country.” Under § 115, the EPA must order the polluting U.S. state to revise its 

Clean Air Act pollution controls “to prevent or eliminate the endangerment,”106 so 

long as the foreign country “has given the United States essentially the same rights 

 

101. 21 May 1997, 36 I.L.M. 700 (1997).

102. See Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938). 

103. The International Joint Commission, created by the 1909 Boundary Water Treaty, 36 

Stat. 2448 (1909), decided that Canada should pay $350,000 for damages caused through 1932; 

Trail Smelter Arbitration, 3 R.I.A.A. at 1946.

104. Trail Smelter Arbitration, 3 R.I.A.A. at 1965.

105. Id. at 1966–81; see also Trail Smelter Arbitration, 3 R.I.A.A. 1938 (1941) (further 

proceedings).

106. 42 U.S.C. § 7415(a), (b) (1970).
24 International Environmental Law Guide

with respect to the prevention or control of air pollution occurring in that country.”107 Although this provision has not been litigated, in 2012, environmental 

groups filed a petition with the EPA to regulate air pollution pursuant to § 115.

The groups have indicated that they will consider filing litigation in federal court 

to force such regulation if the EPA does not act sooner.108

F. Environmental Disaster Response

Two major ecological disasters in recent years have highlighted the international 

aspects of environmental disaster response. The 2010 Deepwater Horizon oil spill 

in the Gulf of Mexico released almost 5 million barrels of crude oil into the ocean 

over a roughly two-month period, causing enormous damage to both the marine 

environment and the regional economy. The spill containment and cleanup process is an example of multifaceted engagement between private transnational industry and government regulators. Ultimately, the scores of legal issues unresolved 

by settlements, including civil and criminal liability, environmental remediation, 

tort claims, and private actions seeking recovery of economic harm and compensation for medical damages, are being managed by the U.S. District Court for the 

Eastern District of Louisiana through the federal courts’ multidistrict litigation 

procedures. 

The Fukushima nuclear disaster, caused by the March 11, 2011, earthquake 

and tsunami in Japan, has led to stronger global responses, which, in turn, are

leading to regulations that are likely to be litigated in federal courts. For example,

in the United States, the Nuclear Regulatory Commission (NRC) has developed 

an initial set of proposals for tightening safety regulation of U.S. nuclear power 

plants, which have drawn mixed reviews from Congress. The NRC is currently 

undertaking a larger study of the Fukushima disaster in order to develop more 

comprehensive policy recommendations.

G. Transborder Enforcement of Environmental Regulations

An area of international environmental law that is likely to be increasingly active 

in federal courts is enforcement to ensure that products that enter the United 

States from other countries are compliant with the environmental laws applicable 

in the United States. Transnational environmental regulation and enforcement 

occurs at both the federal and state levels. For example, in California, Proposition 

65109 regulates the import of products containing chemicals that have not been 

tested according to California’s standards. At the national level, the Lacey Act110

prohibits the trade of protected plants and animals, and it was expanded in the 

2000s to include timber in the definition of plants. Transborder enforcement has 

 

107. 42 U.S.C. § 7415(c) (1970).

108. Ben Geman, Petition Seeks New EPA Pathway to Require Greenhouse Gas Curbs, The Hill 

(Feb. 19, 2013, 11:42 AM), http://thehill.com/policy/energy-environment/283689-petition-seeksnew-epa-pathway-to-require-greenhouse-gas-curbs.

109. The Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, California 

Health & Safety Code §§ 25249.6–25249.13.

110. 16 U.S.C. §§ 3371–3378 (2012).
International Environmental Law Guide 25

large-scale implications for American corporations and is a growing initiative for 

the EPA. 

International environmental law enforcement can implicate several different 

industries, but two primary areas of focus have been the import of motor vehicles 

and other engines (mobile sources) that do not meet Clean Air Act emissions 

standards, and the import of pesticides and toxic chemicals. Beginning in 2003, 

the EPA began working with U.S. Customs and Border Protection to investigate 

the nature of noncompliant goods that were entering the United States.111 Most of 

the products were motor vehicles and engines (ranging from chainsaws to motorcycles and ATVs). These mobile sources are a significant source of nitrogen oxide 

(NOx) and volatile organic compound (VOC) emissions in the United States. Beginning in the mid-2000s, the EPA began to ramp up its enforcement efforts involving illegal equipment imports—going from four cases in 2003 to approximately ninety cases by 2007. 

Historically, the EPA has faced challenges in identifying and tracking imports

with transborder environmental impacts. More recently, if the EPA identifies a

shipment of goods that are noncompliant with the Clean Air Act, it will follow up 

with an information request to determine whether there is a pattern and practice 

of noncompliance. The EPA is also turning to other parties in the supply and distribution chain that may be liable in the United States, including retailers and distributors of the noncompliant goods who are positioned to compel compliance 

through contractual relationships and the free market. There is also some extension of U.S. jurisdiction to foreign corporations through the use of a Certificate of 

Conformity—a document that allows a corporation to manufacture products and 

import them into the United States for approximately one year.

Two cases provide examples of the EPA’s approach of examining multiple levels of a corporate transaction in enforcing environmental laws against domestic 

companies at the border: United States v. McCulloch Corp.112 and United States v.

Volvo PowerTrain Corp.113 In McCulloch, a Taiwanese manufacturer and three 

American corporations agreed to pay a $2 million penalty and $5 million in air 

pollution reduction projects in order to resolve their liability related to the manufacture of chainsaws and their importation into and sale in the United States. The 

chainsaws were manufactured by Jenn Feng Industrial Co. of Taiwan; its subsidiary, McCulloch, an American corporation, obtained certificates of conformity 

from the EPA. Two additional American corporations, MTD Products and MTD 

Southwest, purchased the engines from Jenn Feng and imported and distributed 

them using retailers throughout the United States. After examining this transaction, the EPA discovered that the engines had been sold without a catalytic converter that would reduce emissions. The EPA was alerted to the issue by a retailer 

 

111. Press Release, Environmental Protection Agency, U.S. EPA and U.S. Customs Service 

Sign Agreement to Share Information on Hazardous Waste, Chemical, Pesticide Imports (Jan. 15, 

2003) (on file with author).

112. No. 08-CV-0699-RCL (D.D.C. 2008). Environmental Protection Agency, MTD and Jenn 

Feng Clean Air Act (CAA) Settlement (Apr. 24, 2008), http://www2.epa.gov/enforcement/mtd-andjenn-feng-clean-air-act-caa-settlement.

113. 758 F.3d 330 (D.C. Cir. 2014).
26 International Environmental Law Guide

who suspected that the products might not comply with the Clean Air Act. The 

EPA argued that the Clean Air Act assigns liability broadly, to not just a manufacturer/importer, but any entity that causes the manufacture/import of a good. The 

EPA ultimately reached a consent decree settlement with all four companies. 

In PowerTrain, PowerTrain and its subsidiaries imported into the United 

States nearly 80,000 engines and pieces of equipment from 2002 to 2008 that were 

not covered by a Clean Air Act certificate of conformity. PowerTrain originally 

obtained a certificate on the engines in 2002 and rolled over the certificate when it 

began importing its products from a Chinese company. The EPA allows for the 

rollover of a certificate if the products continue to conform to the same characteristics and configuration and are manufactured in a similar way. However, the 

EPA discovered that after they were distributed in the United States, the products 

PowerTrain imported were actually different models, had different power ratings,

and were made by a different manufacturing entity than what was represented on 

the certificate. In 2011, PowerTrain agreed to pay $2 million to resolve its liability, 

to provide subsidies to consumers to replace their old appliances, and to implement a plan to ensure that its future products are compliant. 

More recently, in March 2015, a Chinese importer, Shanghai Howhit Machinery Manufacture Co. Ltd., and four Texas importers settled claims alleging that 

they violated the Clean Air Act’s provisions governing the manufacture, testing,

and certification of motor vehicles prior to sale in the United States.114 The EPA 

had alleged that the companies imported and sold off-road recreational vehicles 

without proper certification from 2007 to 2011. Additionally, some of the imported vehicles lacked emissions control systems or were manufactured by a company different from the one listed in the certificate application. The EPA discovered the alleged violations during inspections at several ports. The companies 

agreed to pay $560,000 to settle the claims, but were not required to admit wrongdoing under their consent decree with the EPA. 

The transnational enforcement of environmental regulations has emphasized 

the need for U.S. purchasers, distributors, and retailers to actively ensure that foreign suppliers are complying with U.S. requirements, performing required tests,

and obtaining appropriate certificates for their products. For example, under the 

Lacey Act, it is illegal to import into the United States a product containing wood 

that was taken in violation of the source country’s laws and regulations.115 If the 

government can make the case that the wood was illegally taken, it can pursue 

strict liability for the U.S.-based importer or distributor. Furthermore, if the government demonstrates that a company, through negligence or knowingly, allowed 

a component to enter a product stream, it may pursue criminal penalties.116

 

114. Geason Enterprises Consent Agreement (Environmental Appeals Board Docket # CAAHQ-2013-8050) (Mar. 31, 2015).

115. 16 U.S.C. § 3372 (2012).

116. The most high-profile case involved guitar manufacturer Gibson Guitar Corp. In 2012, 

the company entered a criminal enforcement agreement with the U.S. Department of Justice 

(DOJ) to resolve a criminal investigation into whether the company violated the Lacey Act by illegally importing ebony wood from Madagascar and India. Under the terms of the agreement, prosecution was deferred in exchange for payment of a $300,000 penalty and a $50,000 community 
International Environmental Law Guide 27

Exports are also an emerging transnational environmental enforcement issue. 

Under the Resource Conservation and Recovery Act (RCRA),

117 exporters are required to inform the EPA when they plan to export goods for reuse or recycling.

The EPA has found that it is not receiving the required notices and, in many cases, 

is not informed about exports until the receiving country notifies it that there is a 

problem with contamination. The EPA is currently focusing on identifying new 

approaches for handling this issue. 

 

service payment to promote conservation. Department of Justice, Gibson Guitar Corp. Agrees to 

Resolve Investigation into Lacey Act Violations (Aug. 6, 2012), http://www.justice.gov/opa/pr/

gibson-guitar-corp-agrees-resolve-investigation-lacey-act-violations.

117. 42 U.S.C. §§ 6901–6908a (1976).

International Environmental Law Guide 29

IV. Conclusion

As the global economy grows more complex environmental challenges become 

more interconnected. As a result, international and extraterritorial environmental 

laws will become increasingly important to U.S. citizens and U.S. companies. A 

clear understanding of these laws will be important for U.S. judges tasked with the 

responsibility of applying them to the environmental, economic, and legal challenges of the coming decades.

International Environmental Law Guide 31

Table of Authorities

Cases

Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C. 2012) (appeal pending), 14

Am. Elec. Power Co. v. Connecticut (AEP), 131 S. Ct. 2527 (2011), 13, 14, 15

Andrus v. Allard, 444 U.S. 51 (1979), 3

Brief of Defendant-Appellant at 69–70, Native Vill. of Kivalina v. ExxonMobil Corp., 696 

F.3d 849 (9th Cir. 2012) (No. 09-17490), 15

Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485 (10th 

Cir. 1997), 15

Colorado Dep’t of Public Health and Env’t v. United States (Colorado), No. 08-CV01883-RPM, slip op. (D. Colo. Sept. 22, 2009), 16

Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012), 14, 15

Comer v. Murphy Oil USA, Inc., 718 F.3d 460 (5th Cir. 2013), 14

Complaint, Ctr. for Biological Diversity v. Dep’t of State, No. 11-cv-00345 (D. Neb. Oct. 

5, 2011), 13

Defenders of Wildlife, Inc. v. Endangered Species Scientific Auth., 659 F.2d 168 (D.C. Cir. 

1981), 4

Doe v. Nestle, 748 F. Supp. 2d 1057 (C.D. Cal. 2010), 16

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999), 4

Environmental Def. Fund v. Massey, 986 F.2d 538 (D.C. Cir. 1993), 7

Forester v. Consumer Prod. Safety Comm’n, 559 F.2d 774 (D.C. Cir. 1977), 6

Friends of Earth, Inc. v. Mosbacher, 488 F. Supp. 2d 889 (N.D. Cal. 2007), 8

Greenpeace USA v. Stone, 748 F. Supp. 749 (D. Haw. 1990), 3, 16

Hicks v. United States, No. 04-00810, 2006 WL 5186501, at *1 (N.D. Ala. Feb. 2, 2006), 7

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986), 4

Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010), 7

Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007), 19

Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), 15

Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), cert. denied, 

133 S. Ct. 2390 (2013), 14, 15

Natural Res. Def. Council v. Dep’t of State, 658 F. Supp. 2d 105 (D.D.C. 2009), 13

Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006), 8, 22

Republic of Ecuador v. Chevron Corp., 638 F.3d 384 (2d Cir. 2011), 5

Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013); petition for

rehearing en banc denied, 740 F.3d 507 (9th Cir. 2014), 13

Rocky Mountain Farmers Union v. Goldstene, 843 F. Supp. 2d 1071 (E.D. Cal. 2011), 12

Sierra Club v. Clinton, 689 F. Supp. 2d 1147 (D. Minn. 2010), 13

Sierra Club v. U.S. Def. Energy Support Ctr., No. 01-11-cv-41, 2011 WL 3321296 (E.D. 

Va. July 29, 2011), 13

Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938), 23

Trail Smelter Arbitration, 3 R.I.A.A. 1938 (1941) (further proceedings), 23

Turtle Island Restoration Network v. Evans, 284 F.3d 1282 (Fed. Cir. 2002), 5
32 International Environmental Law Guide

United States v. Complex Machine Works, 23 Ct. Int’l Trade 942 (1999), 15

United States v. Labs of Va., Inc., 272 F. Supp. 2d 764 (N.D. Ill. 2003), 19, 20

United States v. Manghis, No. 08-10090-NG, 2011 U.S. Dist. LEXIS 56491, at *4 (D. Mass. 

May 26, 2011), 19

United States v. McCulloch Corp., No. 08-CV-0699-RCL (D.D.C. 2008), 25–26

United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998), 19

United States v. Volvo PowerTrain Corp., 758 F.3d 330 (D.C. Cir. 2014), 25, 26

Utility Air Regulatory Group v. EPA (UARG), 134 S. Ct. 2427 (2014), 8, 9

Whaling in the Antarctic (Australia v. Japan), 2010 I.C.J. 148 (May 31), 22

Statutes

Atlantic Salmon Convention Act of 1982, 16 U.S.C. § 3601 (1982), 21

Chemical Weapons Convention Implementation Act, 22 U.S.C. § 6761(a)(2)(D) (1998),

15

Clean Air Act, 42 U.S.C. §§ 7415, 7545(o)(1)(B) (2007), 8, 9, 12, 13, 14, 15, 23, 24, 25, 26

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),

42 U.S.C. §§ 9601–9675 (1980), 8, 22

Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531, 1538, 1540 (2012), 4, 18, 19

Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, §§ 101-5, 201–04, 91 Stat. 

1494 (1977), now codified under 15 U.S.C. §§ 78, 78(a), 78dd-2, 78ff(a), 78m, 78n, 

78q(b), 19

Hazard Communication, 77 Fed. Reg. 17,574 (Mar. 26, 2012), 18 

International Dolphin Conservation Act, 16 U.S.C. § 1411 (1992), 21

Lacey Act, 16 U.S.C. §§ 3371–3378 (2012), 19, 20, 24, 27

Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 (1972), 21

Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703–712 (§ 709 omitted) (1918), 3, 21

National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §§ 4321–4347 (1969), 7

National Oceanic and Atmospheric Administration Authorization Act, 15 U.S.C. § 1511 

(1992), 21

Northwest Atlantic Fisheries Act of 1950, 16 U.S.C. § 5601 (1950), 21

Pacific Salmon Treaty Act of 1985, 16 U.S.C. § 3631 (1985), 21

Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 

Fed. Reg. 14670 (Mar. 26, 2010) (to be codified at 40 C.F.R. pt. 80), 12

Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901–6908a (1976), 27

Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, California 

Health & Safety Code §§ 25249.6–25249.13, 24

Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 (1976), 17

United States-Korea Free Trade Agreement Implementation Act, Pub. L. No. 112-41, 125 

Stat. 428 (2011), 4

Other Authorities

1909 Boundary Water Treaty, 36 Stat. 2448 (1909), 23

Agreement on the International Dolphin Conservation Program, May 21, 1998, 11 Stat. 

1122, 21
International Environmental Law Guide 33

Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp 

Products, WT/DS58/AB/R (Oct. 12, 1998), 5

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes 

and Their Disposal, Mar. 22, 1989, 1673 U.N.T.S. 126, 28 I.L.M. 657 (1989), 3, 16, 17, 

18

Chemical Weapons Demilitarization: Before the S. Subcomm. on Emerging Threats and 

Capabilities, S. Armed Services Comm., 106th Cong. (Apr. 11, 2005) (statement of 

Donald A. Mahley, Deputy Assistant Secretary for Arms Control Implementation), 

available at http://2001-2009.state.gov/t/ac/rls/rm/44633.htm, 16 

James W. Coleman, Importing Energy, Exporting Regulation, 83 Fordham L. Rev. 1357

(2014), 8

Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, Feb. 

11, 1992, T.I.A.S. 11465, 21

Convention for the Conservation of Salmon in the North Atlantic Ocean, Mar. 2, 1982, 

T.I.A.S. 10789, 21

Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 

1702, 3, 21

Convention on International Trade in Endangered Species of Wild Fauna and Flora 

(CITES), Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243, 3, 4, 18, 19, 22

Convention on the Conservation of Polar Bears, Nov. 15, 1973, U.N. Reg. No. 50540, 21

Convention on the Law of the Non-navigational Uses of International Watercourses, 21 

May 1997, 36 I.L.M. 700 (1997), 23

Convention on the Prohibition of the Development, Production, Stockpiling and Use of 

Chemical Weapons and on their Destruction (CWC), 32 I.L.M. 800 (1993), 15, 16

Department of Justice, Gibson Guitar Corp. Agrees to Resolve Investigation into Lacey Act 

Violations (Aug. 6, 2012), http://www.justice.gov/opa/pr/gibson-guitar-corp-agreesresolve-investigation-lacey-act-violations, 27

Dispute D5381, United States—Measures Concerning the Importation, Marketing, and 

Sale of Tuna and Tuna Products (2011), 22

Environmental Protection Agency, Endangerment and Cause or Contribute Findings for 

Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Rule, 40 C.F.R. 1 

(2009), available at http://www.epa.gov/climatechange/Downloads/endangerment/

Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf, 8

Environmental Protection Agency, MTD and Jenn Feng Clean Air Act (CAA) Settlement

(Apr. 24, 2008), http://www2.epa.gov/enforcement/mtd-and-jenn-feng-clean-air-actcaa-settlement, 25

Framework Convention on Climate Change and Kyoto Protocol, May 9, 1992 and Dec. 

11, 1997, 2303 U.N.T.S. 162, 3, 11

Geason Enterprises Consent Agreement (Environmental Appeals Board Docket # CAAHQ-2013-8050) (Mar. 31, 2015), 26

Ben Geman, Petition Seeks New EPA Pathway to Require Greenhouse Gas Curbs, The Hill 

(Feb. 19, 2013, 11:42 AM), http://thehill.com/policy/energy-environment/283689-

petition-seeks-new-epa-pathway-to-require-greenhouse-gas-curbs, 24

General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Sts. A11, T.I.A.S. 1700, 55 

U.N.T.S. 194, 5
34 International Environmental Law Guide

Laura T. Gorjanc, Combating Harmful Invasive Species Under the Lacey Act: Removing the 

Dormant Commerce Clause Barrier to State and Federal Cooperation, 16 Fordham Envtl. 

L. Rev. 111 (2004), 19

International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 

U.N.T.S. 72, 177 U.N.T.S. 396, and 364 U.N.T.S. 1953, 4, 21, 22

Aidan Lewis, Europe Exporting Electronic Waste Despite Ban, BBC News, Aug. 4, 2010, 

available at http://www.bbc.co.uk/news/world-europe-10846395, 18

Rahim Moloo & Justin Jacinto, Environmental and Health Regulation: Assessing Liability 

Under Investment Treaties, 29 Berkeley J. Int’l L. 1 (2011), 5

Eric Neumayer, Greening Trade and Investment: Environmental Protection Without 

Protectionism (London: Earthscan 2001), 5

North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 

(1993), 4, 22

Northwest Atlantic Fisheries Convention, Feb. 8, 1948, 64 Stat. 1067, 21

President Barack Obama, Remarks by the President on Climate Change, Georgetown 

University, Washington, D.C. (June 25, 2013), https://www.whitehouse.gov/the-pressoffice/2013/06/25/remarks-president-climate-change, 12

Our Children’s Trust, International Legal Actions, http://ourchildrenstrust.org/legal/

international, 14

Our Children’s Trust, US Legal Actions, http://ourchildrenstrust.org/legal/US-Action, 14

Pacific Salmon Treaty, U.S.-Can., Jan. 28, 1985, T.I.A.S. 11091, 21

Presidential Memorandum, Implementing Provisions of the Temporary Payroll Tax Cut 

Continuation Act of 2011 Relating to the Keystone XL Pipeline Permit, Jan. 18, 2012,

https://www.whitehouse.gov/the-press-office/2012/01/18/presidential-memorandumimplementing-provisions-temporary-payroll-tax-cu, 13

Press Release, Environmental Protection Agency, U.S. EPA and U.S. Customs Service Sign 

Agreement to Share Information on Hazardous Waste, Chemical, Pesticide Imports 

(Jan. 15, 2003) (on file with author), 25

Regulation 1907/2006, concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and 

Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and 

Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, 2006 O.J. 

(L.396), 1, 17

Jennifer L. Tobin & Marc L. Busch, A BIT Is Better Than a Lot: Bilateral Investment 

Treaties and Preferential Trade Agreements, 62 World Pol. 1 (2010), 4

United Nations Framework Convention on Climate Change (UNFCCC), May 9, 1992, S. 

Treaty Doc. No. 102-38, 1771 U.N.T.S. 107 (1992), 3, 11

U.S. Dep’t of Agric., Animal and Plant Health Inspection Serv., Lacey Act Primer and 

Updates (Aug. 2013), available at https://www.aphis.usda.gov/plant_health/lacey_act/ 

downloads/LaceyActPrimer.pdf (last visited Oct. 6, 2015), 20 
International Environmental Law Guide 35

About the Authors

Roger Martella coleads the Environmental practice group at Sidley Austin LLP. He 

rejoined Sidley Austin LLP after serving as the General Counsel of the U.S. Environmental Protection Agency, concluding ten years of litigating and handling 

complex environmental and natural resource matters at the Department of Justice 

and the EPA. In 2015, Mr. Martella was recognized by Who’s Who Legal as the 

environmental lawyer of the year globally. He also is the co-editor of the American

Bar Association’s book International Environmental Law: The Practitioner’s Guide 

to the Laws of the Planet (2014).

James Coleman is an assistant professor at the University of Calgary, Faculty of 

Law and Haskayne School of Business. His scholarship addresses regulation of 

North American energy companies, focusing on how industry responds to competing pressures from regulators and investors, and on how countries account for 

and influence regulation in their trading partners. Professor Coleman came to 

Calgary from Harvard Law School, where he served on the faculty as a Climenko 

Fellow and Lecturer on Law. He received his undergraduate degree from Harvard 

University in Biology, magna cum laude with highest honors in field, and his J.D. 

from Harvard Law School, cum laude. After law school, he clerked for the Honorable Steven M. Colloton of the U.S. Court of Appeals for the Eighth Circuit and 

practiced energy, environmental, and appellate law at Sidley Austin LLP in Washington, D.C.
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of New York 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael J. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial system. It was 

established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the 

director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial 

Conference. 

The organization of the Center reflects its primary statutory mandates. The Education Division 

plans and produces education and training for judges and court staff, including in-person programs, 

video programs, publications, curriculum packages for in-district training, and Web-based programs 

and resources. The Research Division examines and evaluates current and alternative federal court 

practices and policies. This research assists Judicial Conference committees, who request most Center 

research, in developing policy recommendations. The Center’s research also contributes substantially 

to its educational programs. The Federal Judicial History Office helps courts and others study and 

preserve federal judicial history. The International Judicial Relations Office provides information to 

judicial and legal officials from foreign countries and informs federal judicial personnel of developments in international law and other court systems that may affect their work. Two units of the Director’s Office—the Information Technology Office and the Editorial & Information Services Office—

support Center missions through technology, editorial and design assistance, and organization and 

dissemination of Center resources.