Conflict of Laws

Atty. Fernando B. Alonzo

Professor
Transboundary Pollution
Transboundary Pollution
Pollution cuts across national boundaries. The
effects and impacts are not localized in one place or
within the borders of the source state. Sometimes,
pollution may originate in one place and travel to the
territorial boundaries of another state.
Thus, pollution is a grave concern for everybody.
Transboundary Pollution; Climate
Change
The more pressing problem at the moment is
climate change. In the UN Framework Convention
on Climate Change (UNFCC), climate change was
defined as “a change of climate that is attributed
directly or indirectly to human activity that alters
the composition of the global atmosphere and that
is in addition to natural climate variability
observed over comparable time periods.”
Georgia v. Tennessee Copper Co.
Facts:
The State of Georgia sued Tennessee Copper Co.
and Ducktown Sulphus, Copper and Iron Company,
Ltd. for injunction seeking to enjoin defendant
companies from discharging noxious gases to its
territory. Georgia alleged that the discharge damaged
the vegetations in its territory.
Georgia v. Tennessee Copper Co.
Issue:
Whether Georgia is entitled to injunction and
damages?
Georgia v. Tennessee Copper Co.
Held:
Yes.
This is a suit by a state for an injury to it in its
capacity of quasi-sovereign. In that capacity, the
State has an interest of and behind the titles of its
citizens, in all the earth and air within its domain.
Georgia v. Tennessee Copper Co.
Held:
It is fair and reasonable demand on the part of a
sovereign that the air over its territory should not be
polluted on a great scale by sulphurous acid gas, that
the forests on the mountains, be they better or worse,
and whatever domestic destruction they have
suffered, should not be further destroyed or
threatened by the act of persons beyond its control,
that the crops and orchards on its hills should not be
endangered from the same source.
Georgia v. Tennessee Copper Co.
Held:
Thus, the State of Georgia is entitled for
injunction plus damages.

Note: The appropriate query to be asked is

what law shall govern?
Approaches to Transboundary
Pollution..
Approaches to Transboundary
Pollution..
1. Governmental Interest Analysis - This approach
indulges courts to consider governmental interests
when two or more states have conflicting laws and
interests. In government interest analysis, courts
compare the laws and interests of two states,
determine if there is a real conflict, and if a real
conflict exists, apply the law of the state whose
interest is more impaired.
Going back to the case
1. State of Georgia – suffers the effect of pollution;
2. Corporation’s acts are within the State of
Tennessee;

What State is more impaired?

Approaches to Transboundary
Pollution..
2. Lex Loci delicti – this calls for the application of
the law of the place where the damage is suffered or
inflicted. It looks to the domestic law of a state
which shall be applied to polluting activities whose
source is foreign. Hence, so long as the effects are
felt locally even if the source comes from outside the
country, domestic law may even be applied to govern
the act complained of.
Pakootas v. Teck Cominco Metals,
Ltd.
Facts:
Teck operates a lead-zinc smelter in Trail, British
Columbia, which generated and disposed of hazardous
materials into the Columbia River located in the US.
The Environment Protection Agency issued an order
directing Teck to conduct a Remedial Investigation
/Feasibility Study under the Comprehensive
Environment Response, Compensation, and Liability
Act (CERCLA) for site contamination.
Pakootas v. Teck Cominco Metals,
Ltd.
Facts:
Teck did not comply with the order, so Pakootas
filed a citizen suit in federal district court to force
Teck to comply with the order. Teck moved to
dismiss on the ground the CERCLA has no
extraterritorial application and that the US has no
jurisdiction over Teck, it being a Canadian
Corporation not operating in the US. The court
denied Teck’s motion to dismiss.
Pakootas v. Teck Cominco Metals,
Ltd.
Issue:
Whether the application of CERCLA to
Teck involves an extraterritorial application
of a domestic law of the US?
Pakootas v. Teck Cominco Metals,
Ltd.
Held: NO.
The location where a party arranged for disposal
or disposed of hazardous substance is not controlling
for purposes of assessing whether CERCLA is being
applied extraterritorially, because CERCLA imposes
liability for the releases or threatened releases of
hazardous substances, and not merely for disposal or
arranging of such substance.
Pakootas v. Teck Cominco Metals,
Ltd.
Held: NO.
Because the actual or threatened release of
hazardous substance triggers CERCLA liability, and
because the actual or threatened release here, the
leaking of hazardous substances from slag that
settled at the Site, took place in the US, this case
involves a domestic application of CERCLA.
Approaches of Transboundary
Pollution…
Approaches to Transboundary
Pollution..
3. Most significant approach – an examination is
made as to the state that has most connection to a
case. The law of the state which has the most
connection shall be applied in the resolution of the
conflict.
Approaches to Transboundary
Pollution..
3. Most significant approach –
a. the place where the injury occurred;
b. the place where the conduct causing the injury
occurred;
c. the domicile, residence, nationality, place of
incorporation, and place of business of the parties; and
d. the place where the relationship, if any, between
the parties is centered.
Nnadili v. Chevron USA, Inc.
Facts:
Plaintiffs, current and former owners/residents of Riggs
Park neighborhood in Washington, D.C., sued Chevron
for having operated a gasoline station in Chillum,
Maryland, which is near the border between Maryland
and Washington, D.C. Plaintiffs claimed that the gas
station’s operation contaminated the air, soil, and
groundwater of the properties currently or formerly
owned or occupied by plaintiffs, resulting in the
diminished values of their properties. Chevron filed a
motion for summary judgment with the district court.
Nnadili v. Chevron USA, Inc.
Issue:
Whether Maryland law or District of Columbia
law governs plaintiff’s claim?
Nnadili v. Chevron USA, Inc.
Held:
District of Columbia law applies.
1. When deciding state-law claims under
diversity or supplemental jurisdiction, federal courts
apply the choice-of-law rules of the jurisdiction in
which they sit. The District of Columbia has adopted
the substantial interest approach to choice of law
questions.
Nnadili v. Chevron USA, Inc.
Held:
2. The court finds that between the District of Columbia and
Maryland, the District of Columbia has the greater interest
in the outcome of this litigation. While Chevron’s conduct
occurred mainly in Maryland, where its former service
station and USTs [underground storage tanks] are situated,
and a handful of plaintiffs currently reside in that state, all of
the alleged contamination at issue in this litigation occurred
in the DC. Accordingly, the court concludes that all of the
tort claims asserted in these consolidated cases are governed
by the laws of the District of Columbia.
In summary,..
The conflict of law issues that involves pollution
shall be resolved in the same manner as Tort.
Thank You…