Emitting Injustice? Foreign State-Owned Enterprises That Cause Transboundary Pollution and the Foreign Sovereign Immunities Act of 1976
45 Pages Posted: 19 Jun 2020
Date Written: May 26, 2020
This Note presents an analysis of whether the Foreign Sovereign Immunities Act of 1976 (FSIA) provides immunity from suit in U.S. courts for foreign state-owned enterprises (SOEs) when those entities cause trans-boundary pollution with effects inside the borders of the United States. Foreign SOEs around the world are uniquely involved in the energy sector, which makes them a very likely class of defendants in cases involving trans-boundary pollution. However, it is possible that under the FSIA foreign SOEs are protected from the jurisdiction of U.S. courts. While the activities of SOEs that result in trans-boundary pollution seem to be commercial in nature and therefore fall under the commercial activity exception to the FSIA, a number of cases hold that, to varying extents, activities involving the exploitation of natural resources are sovereign in nature and therefore protected by the FSIA. In this Note, I argue that because the relevant case law is ultimately based on the right of states to control their natural resources under international law, the application of such cases should be limited when that international legal right is also limited. Because international law balances control over natural resources with an obligation to not cause trans-boundary harm, I argue that acts of foreign SOEs resulting in trans-boundary pollution should not be viewed as sovereign acts. Therefore, the commercial activity exception to the FSIA should apply in such cases, submitting foreign SOEs to the jurisdiction of U.S. courts.
Suggested Citation: Suggested Citation