article: ARC Ecology v. United States Department of the Air Force: extending the extraterritorial reach of domestic environmental law

ARC Ecology v. United States Department of the Air Force: extending the extraterritorial reach of domestic environmental law.
Environmental Law | June 22, 2025 | Stasch, Anna D.

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I. INTRODUCTION
II. AN OVERVIEW OF THE PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF DOMESTIC LAW AS IT APPLIES IN ENVIRONMENTAL LAW
A. Congressional Intent Dictates Whether an Environmental Law Applies Extraterritorially
B. The Presumption Prevents the Extraterritorial Application of Laws that Give Rise to Conflicts With the Laws of Other Sovereigns
C. The Presumption Rests on the Principle that Congress Legislates Primarily to Address Domestic Concerns
III. ARC ECOLOGY V. UNITED STATES DEPARTMENT OF THE AIR FORCE A CASE STUDY ON HOW COURTS APPLY THE PRESUMPTION IN THE ENVIRONMENTAL LAW CONTEXT
A. A Typical Narrow Interpretation of Congressional Intent
B. The General Principle of Avoiding Conflicts with the Laws of Other Nations Justifies Application of the Presumption
C. The Commonsense Notion" that Congress Legislates with a Domestic Focus Justifies Application of the Presumption
IV. OKINAWA DUGONG V. RUMSFELD: FACTORS THAT ENABLE AN ENVIRONMENTAL PROVISION TO OVERCOME THE PRESUMPTION
A. Okinawa Dugong v. Rumsfeld
B. Statutory Characteristics that Lead to Extraterritorial Application
1. Clear Statutory Language
2. Government Focus, Consultative Requirements, and Preemptive Obligations
C. Other Statutes with Extraterritorial Potential: the Endangered Species Act and the National Environmental Policy Act
V. PAKOOTAS V. TECK COMINCO METALS, LTD. AND FRIENDS OF THE EARTH V. WATSON: TAKING LESSONS FROM MARKET LAW TO AVOID THE PRESUMPTION IN ENVIRONMENTAL LAW
A. The Erosion of the Presumption in Securities and Antitrust Law
B. Pakootas v. Teck Cominco Metals, Ltd: Harm at Home
C. Friends of the Earth v. Watson: Translating Environmental Harms Abroad into Domestic Misconduct to Avoid the
Presumption
D. Combining the Conduct and Effects Tests to Take the "Extra" out of "Extraterritorial"
VI. CONCLUSION


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