I. Introduction

In its recent decision in Flores v. Southern Peru Copper Corp., the U.S. Court of Appeals for the Second Circuit dismissed claims brought under the Alien Tort Claims Act (ATCA) by a group of Peruvian plaintiffs against a U.S. corporation for the environmental fallout of copper smelting operations in Peru. The Flores court dismissed the suit for failure to allege a violation of "clear and unambiguous" international law. Specifically, they ruled that the plaintiffs had "failed to establish the existence of a customary international law 'right to life' or 'right to health'" or "that intranational pollution violates customary international law."

Coming from the circuit that in essence created the modern ATCA suit, this decision carries more weight than an average circuit opinion. The Second Circuit, in Filártiga v. Peña-Irala, was the first circuit to allow foreign plaintiffs to use the ATCA to seek redress in U.S. courts for torts committed abroad in violation of international law. In the absence of a U.S. Supreme Court pronouncement on the issue, the Filártiga opinion remains the main authority for modern ATCA claims. As a result, the Flores decision, which relied upon and applied the Filártiga framework, has dampened hopeful predictions made by members of the environmental community about the utility of the ATCA for attaining redress for environmental torts committed abroad. Looking beyond the environmental context, the Flores decision may limit the growth of progressive theories of international law for ATCA purposes in the federal courts. Filártiga previously held that courts should look to evolving norms of international law. However, the Flores court was willing only to look to very traditional sources of international law. Thus, the ability of courts to accept progressive theories of international law offered by human rights activists may be severely limited.