Biodiversity and a New Best Case for Applying the Environmental Statutes Extraterritorially

Abstract

The federal courts have applied a presumption that environmental statutes do not apply to conduct overseas. Efforts to overcome this presumption through the supposed intent of Congress have largely failed. This Article argues for a new best case for applying environmental laws extraterritorially, focusing on the Endangered Species Act's powerful section 7. This best case would assert that (1) the overseas action affects interests within the United States, such as the interest in preserving biodiversity for future needs, and (2) the action would not create a clash with the expectations of foreign governments or culture.

Keywords: Environmental Law, Natural Resources Law, Endangered Species Act, Extraterritoriality, Biodiversity

JEL Classification: K32, K33