As noted in a prior post, the Alien Tort Statute has been used in the past as a vehicle to raise environmental and toxic tort causes of action involving defendants and plaintiffs from third countries. The recent post describing a 9th Circuit case brought to the fore the issue of prudential exhaustion, and seemed to imply without stating so explicitly that the Alien Tort Statute should be reserved for truly horrendous violations of international norms, such as genocide and mass killings. If such killings occur in the context of environmental issues (such as having opponents to certain policies killed or demonstrations put down with deadly force), then the overlap may allow this body of law to be applied to what are fundamentally disagreements over environmental policy. Now, in Romero v. Drummond Co., 2008 U.S. App. LEXIS 25861 (11th Cir.: 12/22/08), the Eleventh Circuit addresses the Alien Tort Statute and the Torture Act. Again, the case does not involve environmental or toxic tort issues, but the general principles discussed help to define the extent to which the Alien Tort Statute and the Torture Act may, or may not, be used in the future to address environmental or toxic tort harms. In Romero, a union, its leaders, and the relatives of those killed sued the president of the Columbian mining operations of Drummond, Ltd., a Columbian company, who were accused (with the knowledge of company executives in the United States) of hiring paramilitaries affiliated with the United Self-Defense Forces of Colombia [see http://en.wikipedia.org/wiki/United_Self-Defense_Forces_of_Colombia] to torture and kill union leaders in Columbia. [The organization has been classified as a terrorist organization by the and E.U., and in recent years has become a narco militia trafficking heavily in cocaine.] The complaint also named the Columbian company, its parent company, and the company President. The complaint included claims of torture, extrajudicial killing, and denials of the right to associate under the Alien Tort Statute, claims of torture and extrajudicial killing under the Torture Act, a claim of wrongful death under Colombian law, and claims for assault, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent supervision, and false imprisonment under Alabama law. Drummond filed various FRCP 12(b) and 56 motions, which were granted in part; upon trial, the jury found for defendants. On appeal, Drummond argued that the Alien Tort Statute and the Torture Act do not permit lawsuits against corporations. Citing to a recent U.S. Supreme Court case, the Eleventh Cir. noted that the Alien Tort Statute is jurisdiction, and does not create a separate cause of action; it also contains no exception for corporations. As to the Torture Act, the Court noted that Eleventh Cir. precedent has held that such a cause of action can be stated against a corporation. The Court also noted that extrajudicial killings and torture can be brought as claims under the Alien Tort Statute as long as it violates the law of nations, and that the Torture Act is not the sole remedy for claims involving torture. In examining precedent, the Court described the burden upon plaintiffs. "First, there must be proof of a symbiotic relationship between a private actor and the government that involves the torture or killing alleged in the complaint to satisfy the requirement of state action under the Torture Act. Second, a plaintiff may prove that relationship. by presenting evidence of the active participation of a single official." The Court agreed with the District Court that plaintiffs failed to prove this element. Showing a general relationship with the government (as alluded to by the U.N. and the U.S. State Department) was not sufficient; there must be a tie-in to the acts alluded to in the complaint. The Court also held that the District Court properly did not take supplemental jurisdiction over the wrongful death claim under Columbian law, and did not consider the causes of action under Alabama law since Alabama law does not apply outside of the State of Alabama . Finally, the Court addressed various discovery related issues. Basically these boiled down to saying that the District Court did not abuse its discretion to not permit the use of and testimony from witnesses disclosed late. Like the earlier 9th Cir. case, this case demonstrates that the use of the Alien Tort Statute to establish jurisdiction and the use of the Torture Act will be difficult in the context of environmental and toxic tort matters occurring in third countries.