Florida’s St. Lucie Estuary Environmental Disaster and the Clean Water Act

A toxic algae bloom in the St. Lucie River and Caloosahatchee River estuaries in Florida has caused an unfolding environmental disaster of enormous proportions. The algae outbreaks are triggered by fertilizer sewage and manure pollution that the State has failed to properly regulate. “It’s like adding miracle grow to the water and it triggers massive algae outbreaks,” Earthjustice spokeswoman Alisa Coe told CNN. The Miami Herald describes the devastated area as being engulfed in blue-green colored water that resembles “guacamole.” NPR reports that the smell of hundreds or thousands of dead animals and fish baking in the sun has created a stench that is unbearable.

A State of Emergency was declared over to July Fourth weekend, emptying the beaches and bringing fishing, boating and swimming to a halt, as the waters covered by green slime were declared too toxic to touch. The tourist industry in the Stuart and Port St. Lucie areas rapidly ground to a complete halt, thus decimating by far the largest industry in the area.  According to the Florida Department of Environmental Protection, toxic blooms can damage the gastrointestinal system, liver, nervous system and skin. The blue-green algae is called cyanobacteria. It can release toxins that affect the liver and nervous system. No wonder that the tourists and many residents have fled the area.

While Governor Rick Scott has insisted that the problem is primarily a water storage issue, and that the federal government had been negligent in failing to properly fix the aging dike system and to provide for sufficient water storage in Lake Okeechobee during the wet season, there can be little question that the source of the toxic algae bloom is the huge amounts of fertilizer-related nitrogen and phosphorous from the Big Sugar companies and other polluters that has ended up in the Lake and then been released into the St. Lucie and other estuaries.

Most of the public and press attention has focused on the Army Corp’s decision to release polluted lake water into the estuaries to the east and west, rather than permitting more of the natural flow of water southward from the Lake through the drainage basin and complex canal system that has been developed there. The area to the south of the Lake includes the Everglades Agricultural Area, comprising former wetlands that were converted into farm use and have become dominated by what has become known as “Big Sugar,” primarily the U.S. Sugar Corporation, Florida Crystals, and the Sugar Cooperative Corporations. The Army Corp, which maintains jurisdiction of the dike system and the regulation of water releases under the Rivers and Harbors Act of 1899 and the Clean Water Act, has responded by stating that these huge releases of polluted waters were necessary to prevent a breach in the old and outdated Herbert Hoover Dike system surrounding the southern shore of Lake Okeechobee.

Serious allegations have been made that the Army Corp. has failed in its mission to properly regulate and maintain the infrastructure that was designed to keep this complex and delicate ecosystem in balance. There have been many calls for reforms, including the February 2014 letter from the Florida Senate to Congress requesting that it transfer authority over water releases from the Lake from the Army Corps to the Florida Department of Environmental Protection (FDEP). Meanwhile, Governor Rick Scott, who was forced to recently declare a State of Emergency in the area due to the dangerous concentrations of toxic algae in the area, has sought to focus on the need to upgrade the septic systems of property owners and businesses in the area.

However, neither the Army Corp nor the homeowners and residents of the area are primarily responsible for the dangerous build up in the levels of nitrogen and phosphorous “nutrients” in the Lake Water. Rather the primary parties responsible for the agricultural “run-off” of these chemicals are the Big Sugar interests controlling thousands of acres of cane sugar south of the Lake in the Everglades Agricultural Area (EAA).   These huge sugar companies are the continuing beneficiaries of the 1981 Farm Bill, repeatedly renewed in Washington, which guarantees sugar prices for the corporations at levels that are sometimes twice the price of the world market.

Under the federal Clean Water Act, polluters such as the Big Sugar companies, are required to clean up waters polluted by fertilizers or pesticides that are part of the agricultural process before such waters are permitted to be released back into navigable water system. Nevertheless, the Big Sugar companies have failed to adequately clean up the huge quantities of water that they use as part of the cane sugar agricultural process, resulting in the release of significant quantities of pollutants back into the Lake and eventually, the St. Lucie River and other estuaries.

The Clean Water Act (“CWA”) was originally enacted in 1948 to address the growing water pollution problems throughout the United States, with its primary enforcement authority given to the states. See Federal Water Pollution Control Act, Pub. L. No. 80-845, current version at 33 U.S.C. §§ 1251-1387. Since that time, Congress has amended the CWA on several occasions, including an amendment in 1972 establishing a system of effluent limitations, water quality standards, discharge permits and other regulatory mechanisms “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

One important issue addressed by the U.S. Supreme Court in 2006 was whether wetlands were “navigable waters” covered by the CWA. In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court narrowed the EPA’s broad definition of “waters of the United States” to wetlands adjacent to traditional navigable waters, with Justice Kennedy establishing a test, known as the “significant nexus” test, requiring that for wetlands to be covered by the CWA, there must be “a significant nexus between the wetlands in question and navigable waters in the traditional sense.”

One of the best-known provisions of the CWA is Section 402, which regulates discharges of pollutants from “point sources”, and any entity wishing to discharge pollutants into a water of the United States must obtain a National Pollutant Discharge Elimination System (NPDES) permit from the EPA or from a state agency authorized to run the program. In Florida, the EPA authorized the FDEP to manage the NPDES permitting program within the state. In addition, Congress left control over “nonpoint” and “agricultural” source pollution to the states to manage as each seed fit, so long as minimum federal water quality standards were met. In Florida, the FDEP developed these water quality standards and implemented them with the aid of the five water management districts. In addition, the Army Corps actually transferred operational control of the Lake Okeechobee watershed system to the South Florida Water Management District (SFWMD), including operational control of the complex network of canals and pump stations that artificially divert agricultural, industrial and residential runoff away from the agricultural lands to the south of Lake Okeechobee, which is where the Big Sugar lands are located, into the Lake itself.

Thus, the fertilizer contaminants in the water runoff from the Big Sugar plantations to the south of the Lake are theoretically regulated by the FDEP and SFWMD under the provisions of the CWA requiring states to create and implement water quality-based standards, including standards for nonpoint source pollution from agricultural properties, and must determine the “total maximum daily load” (TMDL) for each pollutant and allocate the allowable daily amount among all of the water body’s polluters. However, since the FDEP and SFWMD claim that they have a lack of resources to properly enforce these standards themselves, they have largely relied upon Big Sugar and other agricultural polluters to “self-regulate” the degree to which they produce phosphorous and nitrogen laced polluted runoff, which is then pumped by the SFWMD into the Lake. In other words, Florida has basically put the wolves in charge of the henhouse leaving it up to the sugar companies themselves to decide whether or not they are in compliance with the state regulations regarding the release of potentially toxic pollutants into the Lake. Not surprisingly, the instances where Big Sugar has turned themselves into the regulators for failing to comply with these emission standards are rare or non-existent.

Adding further confusion and lack of public protection to this regulatory scheme, while the Florida state entities (FDEP and SFWMD) have responsibility for setting standards regarding pollution-levels from agricultural properties and the adjacent canals being dumped into the Lake, only the Army Corps has the responsibility for releasing polluted Lake waters into the St. Lucie and other estuaries. While the Army Corps and the state agencies are, in theory, supposed to coordinate together so that the pollution levels of the billions of gallons of water being released by the Army Corps are known, in practice, it appears that this coordination is far from perfect and that the Army Corps may have no precise idea how much in the way of harmful phosphorous and other pollutants are being released into the estuaries.

As part of the 1972 amendments to the CWA, private citizens were permitted for the first time, to bring a civil action in federal court against any person or government that violated the requirements of the CWA. FWPCA § 505(a)(1), 33 U.S.C. § 1365(a). However, in order for an individual or group to bring a CWA suit under the citizen suit provisions, 33 U.S.C. § 1365 (a), that individual, business or group must have “standing to sue,” which means that the individual business or group must have suffered an “injury in fact” that is actual or imminent, not just conjectural or hypothetical. Sierra Club v SCM Corp. 580 F. Supp. 862 (1984).  Damage to a plaintiff’s aesthetic or recreational interest is sufficient to confer standing, as long as the plaintiff can show that he or she “use[s] the affected area and [is a] person ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 183 (2000). In Laidlaw, the court found sufficient injury for standing in the testimony of the plaintiffs’ members that they had ceased use of the river because of their concern that the defendant’s discharges were polluting the river and causing a depreciation in the value of one of the members’ homes. Laidlaw, 120 S. Ct. at 703.  The loss of recreational and aesthetic benefits, or just the loss of enjoyment caused by the pollution, is sufficient to confer standing. See Mt. Graham Red Squirrel v. Espy, 986 F. 2d 1568 (9th Cir. 1992). Even the probability of future harm, even though none has occurred yet, is sufficient to confer standing. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F. 3d 149, 160 (4th Cir. 2000).

There must also be a causal connection between the injury and the conduct complained of, but a plaintiff need not demonstrate that his or her injuries are caused specifically by the actions of the defendants. SPRIG v. Tenneco Polymers, 602 F. Supp. 1394 (1984). The plaintiff need only how that the defendant caused an unlawful discharge of pollutants; that the pollutants were discharged into a waterway in which plaintiffs have in interest that are or may be adversely affected by the pollutant; and that this pollution caused or contributed to the kinds of injuries alleged by the plaintiffs. See Public Interest Research Group of New Jersey v. Yates Industries Inc., 757 F. Supp. 438, 443 (D. N.J. 1991).

The Clean Water Act requires that a citizen give notice of their claims to any person, including the United States, and/or any other governmental entity sixty (60) days before bringing suit against the alleged violator. See 33 U.S. C. § 1365(a)(1) and (b)(1). This is a mandatory provision and compliance must be pleaded in the complaint. National Environmental Foundation v. ABC Rail Corp., 926 F. 2d 1096 (11th Cir. 1991); Walls v. Waste Resource Corp., 761 F. 2d 311 (6th Cir. 1985). Notice of a violation must be served on the alleged violator or violators. 40 C.F.R. § 135.2(c).

If, after the date that the suit is filed, the defendant continues to violate the CWA, the plaintiff may request both injunctive relief and civil penalties under the Act. See Weiszmann v. District Engineer, U.S. Army Corps of Engineers, 526 F. 2d 1302, 1304 (5th Cir. 1976); U.S. v. Context-Marks Corp., 729 F. 2d 1294, 1297 (11th Cir. 1984). Injunctive relief may be granted under a common law standard to enjoin a continuing a abatable nuisance or trespass. A court may also award costs of litigation, including reasonable attorneys’ and expert witness fees to the prevailing party. 33 U.S. C. § 1365(d).

In addition to statutory claims under the CWA, plaintiffs also have state common law damages claims for nuisance (interference with use and enjoyment of property), trespass (unauthorized entry on another’s property), negligence (breach of a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm, and violations of Florida state statutory law.

It is unlikely that there would be a cause of action for damages to “riparian rights” since, in Midenberger v U.S., No. 2010-5084 (U.S. Ct. of Appeals, Federal Circuit June 30, 2011), in a case brought by plaintiffs in the St. Lucie River area, the court found that the plaintiffs had failed to make a showing that Florida law permitted a cause of action for damages to riparian rights by property owners that was different or separate from the rights of the general public.

In short, individuals, businesses and associations who have suffered damages as a result of the toxic pollution of the St. Lucie Estuary have both federal and state law causes of action against the Big Sugar polluters, the relevant Florida state agencies and the Army Corp for the damages that they have sustained as a result of this major environmental disaster.

The Alien Tort Statute and International Human Rights

The Alien Tort Statute (28 U.S.C. § 1350), also called the Alien Tort Claims Act (ATCA), was one of the first statutes enacted by the U.S. Congress as part of the Judiciary Act of 1789. It opened the doors of the U.S. courts to all foreign citizens (i.e. “aliens”) with regard to any civil wrongs (i.e. torts) committed in violation of customary international law. The language of the statute is both short and simple: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Immediately after its passage, the Alien Tort Statute (“ATS”) fell into virtual obscurity. There were only two reported court cases in the almost 200 years between 1789 and 1980.

Since 1980, however, there have been a virtual avalanche of ATS cases brought in federal courts on behalf of foreign nationals, and the courts have generally interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. Lawyers associated with The Center for Constitutional Rights started the ball rolling in Filartiga v. Pena-Irala, a case brought on behalf of two Paraguayan citizens resident in the U.S against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS.

At first, the case hit a stone wall in the district court, which dismissed the complaint for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens. However, the  U.S. Court of Appeals for the Second Circuit reversed the decision of the district court. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). First, it held that the ATS was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within the federal-question jurisdiction of the U.S. courts. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture, and that various United Nations declarations, such as the Universal Declaration on Human Rights, also prohibited official torture. The court therefore held that the right to be free from torture had become a principle of customary international law.

Following the Second Circuit’s decision in Filartiga, several cases brought in the U.S. courts against individuals and major corporations under the ATS proved to be successful. For example, in one 2007 case, Wang Xiaoning v. Yahoo!, the World Organization for Human Rights USA filed a lawsuit in the U.S. District Court for the Northern District of California against Yahoo! on behalf of Chinese dissidents Wang Xiaoning and Shi Tao (Guao Quingsheng), claiming jurisdiction under the ATS. No. C07-02151 (N.D. Cal. Nov. 13, 2007). According to the complaint, Wang and Shi Tao used Yahoo! accounts to share pro-democracy material, and a Chinese subsidiary of Yahoo! gave the Chinese government identifying information that allowed authorities to identify and arrest them. The Complaint alleges that the plaintiffs were subjected to “torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor.” Yahoo! settled the case in November 2007 for an undisclosed amount of money, and it agreed to cover the plaintiff’s legal costs as a part of the settlement. In a statement released after the settlement was made public, Yahoo! said that it would “provide ‘financial, humanitarian and legal support to these families’ and create a separate ‘humanitarian relief fund’ for other dissidents and their families.” See Joint Stipulation of Dismissal, Xiaoning v. Yahoo!, Inc., No. C07-02151 (N.D. Cal. Nov. 13, 2007).

The first U.S. Supreme Court case directly addressing the ATS is the 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The plaintiff in Sosa (Alvarez) brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the U.S. for torturing and murdering a Drug Enforcement Administration officer. When the U.S. was unable to secure Alvarez’s extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his “arrest” by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez’s abduction constituted arbitrary arrest in violation of international law. However, the Supreme Court reversed, holding that the ATS did not create a cause of action, but instead merely “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. at 720. According to the Sosa decision, such actions must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Although the Court noted that scope of the ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the court’s opinion stated that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.” The Court further noted that under the ATS, any cause of action for violations of international norms must be as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Finally, the Supreme Court, in Sosa, found that the following categories to be actionable under the ATS: torture; cruel, inhuman, or degrading treatment; genocidewar crimescrimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.

Specifically addressing Alvarez’s claims, the Supreme Court in Sosa concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.  Although not explicitly stated, the Supreme Court’s narrow interpretation of the ATS may have been influenced by a growing uneasiness that the U.S. courts really had no business resolving disputes solely involving foreigners, and that the U.S. taxpayers should not be required to foot the bill for costly court litigation relating to conduct that occurred outside the U.S.

The U.S. courts have almost always recognized that the ATS is an effective vehicle for foreign nationals who have been subjected to torture or other international law violations to pursue their claims, as long as the human rights abuses rise to the level where they may be considered to be in violation of international law. For example, in Kpadeh v. Emmanuel, Charles McArthur Emmanuel (also known as “Chuckie Taylor” or “Taylor Jr.”), the son of Charles Taylor, former President of Liberia, was the commander of the infamously violent Anti-Terrorist Unit (ATU), commonly known in Liberia as the “Demon Forces”. In 2006, U.S. officials arrested Taylor Jr. upon entering the U.S. (via the Miami International Airport) and the Department of Justice later charged him based on torture he committed in Liberia. He was convicted of multiple counts of torture and conspiracy to torture, and was sentenced to 97 years in prison.

The World Organization for Human Rights USA and the Florida International University College of Law then filed a civil suit in the Southern District of Florida on behalf of five of Taylor Jr.’s victims pursuant to the Alien Tort Statute and the Torture Victim Protection Act. See Rufus Kpadeh et al. v. Charles McArthur Emmanuel, No. 09-20050-civ (S.D. Fla. Feb. 5, 2010). The plaintiffs won by default judgment as to liability on all counts, and in February 2010, following trial on damages at which Taylor appeared, the court found Taylor liable to the plaintiffs for damages of over $22 million.  261 F.R.D. 687 (S.D. Fla. 2009).

While the U.S. courts have always recognized the jurisdiction under the ATS against individuals who commit human rights abuses, the liability of corporations under the ATS has been an entirely different matter. Until October 2011, there was a split in the federal circuit courts regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010 the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that “customary international law has steadfastly rejected the notion of corporate liability for international crimes” and thus that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS”. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss on two grounds. First, they argued that customary international law itself – not the ATS — provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors, as opposed to individuals. Thus, the Second Circuit dismissed the case against Royal Dutch Shell, not because there was not ample evidence indicating that it had been deeply involved in the Nigerian governments efforts to suppress any popular opposition to Shell’s oil exploitation, but because it reached the startling conclusion that there apparently are no international codes of conduct or ethics for corporations.  It has often been said that it is difficult to hold multi-national corporations liable under international law because they neither have a body to be jailed nor a soul to be damned. Yet even I was surprised that a U.S. court would basically grant corporations immunity from liability under the ATS, which is basically what the Second Circuit did in Kiobel.

However, in 2011, the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals declined to follow the Second Circuit’s reasoning in Kiobel, all of them ruling that corporate liability was possible under the statute. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court issued a decision affirming the Second Circuit Court of Appeals but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved. 569 U.S. ___(2013).

With its Kiobel decision, the Justice Robert’s Supreme Court thus left its unenviable mark as the most pro-corporate Supreme Court in history, severely restricting the ability of human rights victims to seek redress in U.S. courts against corporations from their commission and complicity in human rights abuses abroad. The plain language of the Alien Tort Statute itself and extensive jurisprudence starting with the trials of Nazi war criminals at Nuremburg had established that fundamental human rights violators may be prosecuted in the courts of all civilized countries, including the United States. With its decision in Kiobel, rogue corporations and executives were given some hope that they could seek “safe haven” for their participation in such human rights abuses, just as Nazi war criminals sought safe haven in Paraguay or Brazil at the end of World War II. The United States was never meant to harbor the enemies of mankind; on the contrary, it was – and hopefully will continue to be – a beacon of home for the downtrodden and oppressed who have been victims of violations of their fundamental human rights.

The Supreme Court again addressed the question of whether there is corporate liability under the ATS in Sarei v. Rio Tinto, a case brought by residents of the island of Bougainville in Papua New Guinea brought suit against multinational mining company Rio Tinto. The lawsuit, which was based on a 1988 revolt against Rio Tinto, alleged that the Papua New Guinea government, using Rio Tinto helicopters and vehicles, killed about 15,000 people in an effort to put down the revolt. On October 25, 2011, the Ninth Circuit Court of Appeals, sitting en banc, issued a divided opinion holding that certain claims against a foreign corporation implicating the conduct of a foreign government on foreign soil could proceed under the ATS. The company filed a petition for a writ of certiorari in the Supreme Court for review of the decision.  On April 22, 2013, the Supreme Court sent the case back to the Ninth Circuit for further consideration in the light of its decision in the Kiobel case, and on July 9, 2013, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, based upon the Kiobel decision.

The U.S. courts have also generally required a fairly high standard of proof for ATS violations. For example, several courts have found that it is not enough for a defendant to just have knowledge of the human rights abuses to be liable under the ATS; a defendant must actively participate or aid and abet such abuses to be held liable, For example, on October 2, 2009, the Court of Appeals for the Second Circuit, in Presbyterian Church of Sudan v. Talisman Energy, Inc., held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” 582 F.3d 244 (2nd Cir.2009). In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that “plaintiffs have not established Talisman’s purposeful complicity in human rights abuses.” In reaching that conclusion, the Second Circuit stated that “the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.”

For an ATS case to be successful, therefore, an ATS complaint must set forth specific allegations of a defendant’s participation in the alleged human rights abuses; vague general allegations are insufficient. For example, on August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in “the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists.” Sinaltrainal union members in Colombia launched the website “killercoke.org” which called for the boycott of Coke.

However, the district court dismissed the Sinaltrainal complaint and the Eleventh Circuit upheld that ruling.  In doing so, the Eleventh Circuit relied upon the Supreme Court’s recent Ashcroft v. Iqbal decision, 556 U.S. 662 (2009), in addressing the adequacy of the complaint, which has must have “facial plausibility” to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Eleventh Circuit then applied the Iqbal standard to plaintiffs’ allegations against Coca-Cola and held that they were insufficient to survive dismissal.

Another major ATS case is Doe v. Unocal, which was filed in September 1996 by four Burmese villagers against Unocal and its parent company, the Union Oil Company of California. In October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma. In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court.  Doe vUnocal, 395 F.3d 932 (9th Cir. 2002), opinion vacated and rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated. According to a joint statement released by the parties, while the specific terms were confidential, “the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region.”

Thus, the Alien Tort Statute, while severely bruised, remains alive and well as to human rights abuses occurring internationally as long as there is some direct connection to the U.S., and where there is strong evidence that the conduct complained of violates customary international law norms. Corporations operating in the U.S. still must think twice before they ignore human rights standards in their insatiable quest to improve their bottom line.

The Supreme Court Further Undercuts the Fourth Amendment

On Monday, June 20, 2016, the U.S. Supreme Court further vitiated the Fourth Amendment’s prohibition against unlawful searches and seizures. In Utah v. Strieff (No. 14-1373), Justice Clarence Thomas wrote the majority opinion, joined by Chief Justice Roberts, and Justices Kennedy, Breyer and Alito. Justices Sotomayor, Ginsburg and Kagan dissented.

In this case, narcotics detective Douglas Fackrell was conducting a surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week led him to suspect that the occupants were dealing drugs. When he observed defendant Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The Supreme Court reversed, holding that the evidence Officer Fackrell seized incident to Strieff’s arrest was not subject to the “exclusionary rule,” which requires that evidence unlawfully seized be excluded from evidence. In his majority opinion, Justice Thomas found that the evidence found on Strieff’s person was admissible based on an application of the “attenuation factors” originally articulated by the Court in Brown v. Illinois, 422 U. S. 590. This attenuation doctrine provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593. The basic argument applied by Justice Thomas in his majority opinion was that although the initial investigatory stop of Strieff was admittedly unlawful, since it was assumed that the officer did not have sufficient “reasonable suspicion” that Strieff was engaged in an illegal activity, the causal connection between the unlawful search and the seizure of evidence from his person was “attenuated” by the fact that Officer Fackrell’s discovered there was a valid, pre-existing arrest warrant for him.

As Justice Sotomayor pointed out in a blistering dissent, the majority decision basically means that any tainted evidence unlawfully seized after an illegal investigatory stop of a person may be used as evidence to convict that person of a crime as long as the officer later learns that there is an outstanding traffic ticket or moving violation outstanding against that person. Thus, this decision almost completely undercuts the exclusionary rule, which is the primary judicial remedy for deterring Fourth Amendment violations, and encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796, 804.

Sotomayor’s remarkably strong dissent criticized the majority opinion as excusing clear-cut violation of the Fourth Amendment right to be free of unlawful searches and seizures, while saying “that your body is subject to invasion” even though your rights have been violated. Her dissent cited to the Department of Justice’s recent report on police misconduct in Ferguson, Missouri, as well as to various books that and books like Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’ “Between the World and Me” and James Baldwin’s 1963 classic “The Fire Next Time.”

Sotomayor noted that, although Strieff is white, the majority opinion could be used by police officer to justify racial profiling: “The white defendant in this case shows that anyone’s dignity can be violated in this manner … But it is no secret that people of color are disproportionate victims of this type of scrutiny … For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

This decision is the latest in a long line of decisions that have been chipping away at the Fourth Amendment and the Exclusionary Rule’s deterrence against police misconduct and arbitrary stops without any reasonable suspicion. This is but another reason why the selection of the ninth Supreme Court justice to fill the vacant seat on the Supreme Court is so critical to important issues raised by this case and so many others.