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Kiobel and the Future of Environmental and Product Liability Litigation Under the Alien Tort Statute

By Daniel J. Herling, Eric Gotting, Michelle Gillette and Leila Qutami

Assume your client, a chemical company, is doing business in a foreign country. It has a pesticide manufacturing facility located in a rural area and also sells its products for use on nearby, government-owned plantations. To its credit, the company's environmental practices have gotten better in recent years, but it has a history of disposing of hazardous wastes from the manufacturing process in a less than environmental-friendly manner, resulting in extensive contamination. Questions have also been raised about the toxic effects of the pesticide and its by-products on human health. Nearby residents and plantation workers come to believe that numerous health problems seen in the local population can be attributed to the company's pesticides and disposal methods.

Can these foreign citizens sue your corporate client in U.S. federal court where the alleged harm occurred entirely outside the United States? The U.S. Supreme Court will likely answer this question in Kiobel v. Royal Dutch Petroleum Co., a case heard by the Court on Oct. 1, 2012 that was filed under the Alien Tort Statute (ATS).

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