The Presumption Against Extraterritoriality: Pakootas v. Teck Cominco Metals Ltd. and Transboundary Environmental Harm after Morrison v. National Australia Bank Ltd.
32 Pages Posted: 30 May 2012
Date Written: May 30, 2012
The presumption against extraterritoriality is a canon of construction that applies when a court is considering a dispute that would involve the application of U.S. law “beyond the territorial boundaries of the United States.” While Congress has the power to enforce its laws extraterritorially, the court assumes that Congress intends for its laws to apply within the territorial boundaries of the United States unless a contrary intent appears in the statute. The rationale behind the presumption is to avoid conflict with other nations’ laws and “international discord.” The Supreme Court has struggled to find a consistent rule to apply uniformly in cases involving the potential application of U.S. law extraterritorially.
This Article focuses on how the Supreme Court’s most recent discussion of the presumption, found in Morrison v. National Australia Bank Ltd., will effect transboundary environmental cases in the future. First, by looking to Pakootas v. Teck Cominco Metals, Ltd., a Ninth Circuit case involving domestic environmental harm, this Article considers how Pakootas fits with the Supreme Court’s recent treatment of the presumption against extraterritoriality, specifically after Morrison. Second, looking to courts’ treatment of presumption cases in the environmental context in combination with Morrison, this Article discusses how future transboundary environmental cases will fair in federal court.
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