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.
Saul Bloom
-----Original Message-----
Subject: Philippines Case
Saul:
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.
