After many months of waiting, we are finally proceeding to a hearing on the US military’s motion to dismiss our petitions for action to conduct environmental investigations for Clark and Subic. Below is an email to me from our attorney Scott Allen, which includes an attached PDF file containing the motion from the military. The memo from Scott is complete and explains the status of the lawsuite and addresses the various delays that have lead to the November hearing date. I will be forwarding a press advisory for your review next week. Given the tentative nature of the type of hearing we will receive, I would suggest that we organize a small delegation of people to attend the hearing in San Jose; should it take place. If you wish more information, please feel free to contact me.
Subject: Philippines Case
As I told you on the phone, the Defendant’s motion (to dismiss our case) is set to be heard on November 3, 2003 at the courthouse in San Jose. The judge may decide to cancel the oral hearing on the case, and simply decide the matter based on the briefs submitted by the attorneys. Therefore, if you intend to go to the courthouse to hear oral argument, make sure you contact me the on about October 31, 2003 to find out if the hearing will go forward.
The hearing was initially scheduled for late August, 2003, but the court has postponed the hearing several times due to other commitments by the Department of Justice lawyer who is handling the case for the defendants, and once because I received an unexpected motion in a separate case that conflicted with the hearing in this case.
As we previously discussed, the Defendants have filed their motion to dismiss the case (a move that was fully expected when we filed the case). The defendants argue that CERCLA (the Superfund statute) does not apply outside the territorial boundaries of the United States.
While it is true that federal laws are generally interpreted to apply only within the United States, the Supreme Court has clearly held that Congress has the power to enact statutes that apply extraterritorially. In this case, we have argued that Congress clearly expressed its intent to have CERCLA apply to military bases (and former military bases) located outside the geographic boundaries of the United States.
This interpretation of CERCLA is also supported by principles of international law — including Principle 21 of the Stockholm Principles (an international accord to which the United States is a signatory), which states that all countries have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other [countries] or of areas beyond the limits of national jurisdiction.” A copy of our opposition brief is attached to this e-mail (it has been converted from WordPerfect to pdf format, so some formatting errors may have occurred in the conversion).
Of course, there is no telling what the judge will do with these arguments.
Nevertheless, we should know within the next month or so how the judge will rule.
The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2002