Amicus Curiae Brief — The Doe Run Resources Corporation, et al., Petitioners v. Kate Reid, et al.

No. 24-601

In the Supreme Court of the United States

THE DOE RUN RESOURCES CORPORATION, ET AL.,

Petitioners,

v.

KATE REID, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE NATIONAL MINING

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

ANDREW J. PINCUS

Counsel of Record

TIMOTHY J. KEELER

WAJDI C. MALLAT

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amicus Curiae

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TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE....................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..........................................................2

ARGUMENT ...............................................................4

I. The TPA’s Text, Implementing Legislation,

And History Make Clear That Each Nation

Sets And Enforces The Environmental

Standards For Facilities Located In Its

Territory. ................................................................5

A. The TPA’s Text Clearly Affirms Each

Nation’s Exclusive Authority To

Establish, And Adjudicate Compliance

With, Environmental Standards......................5

B. The TPA’s Implementing Legislation

Confirms The Political Branches’

Judgment Rejecting Suits Like

Respondents’ Action. ...................................... 12

C. The TPA’s Negotiating History

Confirms Each Party’s Exclusive

Authority Over Facilities Within Its

Territory. ......................................................... 15

II. The Eighth Circuit’s Ruling Would

Significantly Expand Transnational

Litigation, Infringing Upon Both The

United States’ And Its Treaty Partners’

Sovereignty........................................................... 19

CONCLUSION .......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Al Shimari v. CACI Int’l, Inc.,

679 F.3d 205 (4th Cir. 2012) ................................ 21

Choctaw Nation of Indians v. United

States,

318 U.S. 423 (1943) .............................................. 15

Coubaly v. Cargill, Inc.,

610 F. Supp. 3d 173 (D.D.C. 2022) ...................... 21

GE Energy Power Conversion France

SAS, Corp. v. Outokumpu Stainless

USA, LLC,

590 U.S. 432 (2020) ................................................ 6

Hilton v. Guyot,

159 U.S. 113 (1895) ................................................ 4

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) .............................................. 21

Kiyemba v. Obama,

561 F.3d 509 (D.C. Cir. 2009) ................................ 7

Medellín v. Texas,

552 U.S. 491 (2008) ...................................... 4, 5, 15

Nestlé USA, Inc. v. Doe,

593 U.S. 628 (2021) .............................................. 21

iii

Oetjen v. Central Leather Co.,

246 U.S. 297 (1918) ................................................ 5

Pielage v. McConnell,

516 F.3d 1282 (11th Cir. 2008) ........................ 6, 12

RJR Nabisco, Inc. v. European Cmty.,

579 U.S. 325 (2016) .............................................. 14

Rodriguez v. Pan Am. Health Org.,

29 F.4th 706 (D.C. Cir. 2022) .............................. 15

Schooner Exch. v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) ............................... 7

Sea Hunt, Inc. v. Unidentified

Shipwrecked Vessel or Vessels,

221 F.3d 634 (4th Cir. 2000) ............................ 6, 11

Territory of Guam v. United States,

593 U.S. 310 (2021) .............................................. 13

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004) .................. 4, 11, 18

Zicherman v. Korean Air Lines Co.,

516 U.S. 217 (1996) .............................................. 15

Statutes & Rule

19 U.S.C. 4012(b)(1) .................................................. 20

19 U.S.C. 4512(b)(1) .................................................. 20

Pub. L. No. 110-138, 121 Stat. 1457

(2007) .................................................................... 13

Pub. L. No. 112-43, 125 Stat. 497 (2007) .................. 20

iv

S. Ct. R. 37.6 ................................................................ 1

Other Authorities

CRS, RL34108, U.S.-Peru Economic

Relations and the U.S.-Peru Trade

Promotion Agreement (2009),

https://bit.ly/4gwgQBw ........................................ 13

I.M. Destler, American Trade Politics in

2007: Building Bipartisan

Compromise, Peterson Inst. For Int’l

Econ. (May 2007).................................................. 16

Dominican Republic-Central America

Free Trade Agreement,

https://bit.ly/3D1pqpP .......................................... 19

Draft U.S.-Peru Trade Promotion

Agreement (Jan. 6, 2006),

https://bit.ly/46xahdB .......................................... 18

Draft U.S.-Peru Trade Promotion

Agreement (June 25, 2007),

https://bit.ly/44gzjfp ............................................. 18

Katherine Florey, State Law, U.S.

Power, Foreign Disputes:

Understanding the Extraterritorial

Effects of State Law in the Wake of

Morrison v. National Australia

Bank, 92 B.U. L. Rev. 535 (2012) ........................ 21

H.R. Rep. No. 110-421 (2007).................................... 14

v

Office of the U.S. Trade Rep., Schwab

Statement on Amendments to U.S.Peru Trade Promotion Agreement

(June 25, 2007), https://bit.ly/46xiiz9 .................. 17

Press Release, House Ways & Means

Committee, FTA to Include

Stronger Labor, Environmental Provisions (June 25, 2007),

https://bit.ly/4iPQ6xB. ......................................... 17

S. Rep. No. 110-249 (2007) ........................................ 14

Secretariat for Submissions on

Environmental Enforcement

Matters, Air Quality and Climate

Emergency (May 10, 2023),

https://bit.ly/448FQcb ............................................ 9

U.S.-Australia Free Trade Agreement,

https://bit.ly/3XGgYWt ........................................ 19

U.S.-Bahrain Free Trade Agreement,

https://bit.ly/3rhM6Qh ......................................... 19

U.S.-Chile Free Trade Agreement,

https://bit.ly/44dEiNT .......................................... 19

U.S.-Colombia Trade Promotion

Agreement, https://bit.ly/437SZkk ...................... 19

U.S.-Korea Free Trade Agreement,

https://bit.ly/3pBNDjv .......................................... 19

U.S.-Morocco Free Trade Agreement,

https://bit.ly/3rfvwAt ............................................ 19

vi

U.S.-Oman Free Trade Agreement,

https://bit.ly/3raEAX7 .......................................... 19

U.S.-Panama Trade Promotion

Agreement, https://bit.ly/44cAqgc ....................... 20

U.S. State Dep’t, U.S.-Peru TPA

Investor-State Arbitrations,

https://bit.ly/44hHWqg........................................... 9

U.S. Trade Representative, Bipartisan

Trade Deal (May 2007),

https://bit.ly/3ptfm67 ........................................... 16

United States-Mexico-Canada

Agreement, https://bit.ly/46BhclV ............. 5, 19, 20

United States-Peru Trade Promotion

Agreement .........................................................2-19

INTEREST OF THE AMICUS CURIAE1

The National Mining Association (NMA) is a national trade association representing over 350 companies and organizations involved in every aspect of

mining, from producers and equipment manufacturers to service providers. The NMA’s members produce

most of America’s coal, metals, and industrial and agricultural minerals. America’s mining industry supplies the essential materials necessary for nearly

every sector of our economy—from technology and

healthcare to energy, transportation, infrastructure,

and national security—all delivered under worldleading environmental, safety, and labor standards.

The NMA is the only national trade association that

serves as the voice of the U.S. mining industry and the

thousands of American workers it employs before

Congress, the federal agencies, and the judiciary, advocating for public policies that will help America

fully and responsibly utilize its vast natural resources.

The NMA and its members have important interests at stake in this case. Its members own and operate facilities across Missouri and the United States.

Many of its members also operate internationally. If

lawsuits like Respondents’ are allowed to proceed

without proper consideration of the determinations

embodied in trade agreements and their implementing legislation, such as the Eighth Circuit’s ruling

here, then the NMA’s members could well face similar

Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

or entity other than amicus, its members, or its counsel made a

monetary contribution to its preparation or submission. Counsel

of record for all parties received notice at least 10 days before the

due date of the intention to file this brief.

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lawsuits in the United States seeking to apply U.S.

tort law to the operation of facilities around the world.

And they could face lawsuits in foreign nations seeking to regulate facilities located in the United States.

Other nations’ courts can—and will—rely on the decision below to open the doors to such lawsuits.

These actions will be expensive to defend, and the

resulting cost and uncertainty will discourage international investment, directly undercutting the purpose of free trade agreements such as the United

States-Peru Trade Promotion Agreement. The NMA

therefore files this brief to explain the flaws in the

lower court’s interpretation of that Agreement, which

led to its erroneous determination allowing this case

to proceed.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The NMA agrees with the Eighth Circuit in one

respect: “Th[is] litigation * * * does not follow customary pleading practices.” Pet. App. 8a. Respondents are

Peruvian citizens alleging injuries from a Peruvian

company at a Peruvian facility subject to Peru’s environmental laws. And Respondents do not seek to enforce Peruvian law. Instead, they seek to impose Missouri’s laws on a facility located wholly outside Missouri’s, and the United States’, borders.

International comity requires abstention when a

court risks intruding on another sovereign’s legitimate jurisdiction. In determining whether to dismiss

an action under principles of international comity,

courts assess the interests of the United States and

those of the other Nation.

The United States-Peru Trade Promotion Agreement (TPA) guides the comity analysis here. Even

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without the TPA, settled international comity principles would require dismissal of this wholly extraterritorial lawsuit. But the TPA eliminates any need for

judicial balancing of relative national interests. The

Agreement embodies the U.S. government’s determination regarding the appropriate balance—and it expressly and repeatedly reaffirms each Nation’s sovereign authority to establish and enforce the environmental standards governing facilities within its borders. That determination controls the comity analysis.

The TPA was the culmination of a years-long negotiation between the United States and Peru and between the United States’ Executive and Legislative

Branches. The Agreement’s text is clear that each Nation’s environmental standards apply exclusively

within that Nation’s borders, and any enforcement of

that Nation’s standards must occur in its own courts.

The legislative history confirms this understanding of

the TPA.

The Eighth Circuit’s contrary conclusion turns the

TPA and comity analysis on their heads. The court

acknowledged that the TPA “contemplates more traditional mechanisms for environmental enforcement.”

Pet. App. 8a. But the court read those “traditional enforcement mechanisms” as an opening to enforce Missouri tort law in Peru via Missouri courts—and, logically, Peruvian law in the United States via Peruvian

courts. Nothing in the TPA, its implementing legislation, or their negotiating history supports that bizarre

result.

If left unreviewed, the Eighth Circuit’s reasoning

would allow litigants across the world to impose foreign nations’ environmental standards on facilities located in the United States that are owned by foreign

4

companies—through lawsuits filed in non-U.S. courts.

And it will inspire copycat suits seeking to impose

U.S. states’ laws to facilities located in foreign jurisdictions. The Court should grant certiorari.

ARGUMENT

“The extent to which the law of one nation * * *

shall be allowed to operate within the dominion of another nation, depends upon * * * ‘the comity of nations.’” Hilton v. Guyot, 159 U.S. 113, 163 (1895). The

question in this case is whether a U.S. court should

entertain an action brought by Peruvian citizens relating to the operation of a facility operating in Peru

under Peruvian law. Because the issue involves the

potential “operat[ion]” of U.S. law “within the dominion of” Peru, it is governed by international comity

principles. Ibid.

Comity analysis turns on judicial balancing of “the

strength of the United States’ interest in using a foreign forum, the strength of the foreign governments’

interests, and the adequacy of the alternative forum.”

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227,

1238 (11th Cir. 2004).

The TPA guides the comity analysis here. It embodies the determination of both the Executive

Branch and Congress regarding which environmental

standards should govern and where enforcement of

those standards should take place. That determination, resulting from a lengthy and intense treaty negotiation process, is that each party to the TPA has

exclusive responsibility for setting and enforcing the

environmental standards governing the facilities

within its boundaries. Courts should defer to the political Branches’ determination. Ungaro-Benages, 379

F.3d at 1239-1240; see also Medellín v. Texas, 552 U.S.

5

491, 511 (2008) (reaffirming “the principle that ‘[t]he

conduct of the foreign relations of our Government is

committed by the Constitution to the Executive and

Legislative—“the political”—Departments’” (quoting

Oetjen v. Central Leather Co., 246 U.S. 297, 302

(1918))).

Moreover, the adverse consequences of the lower

court’s decision cannot be confined to the TPA. Other

trade agreements, such as the United States-MexicoCanada Agreement (USMCA), contain analogous provisions. The failure to accord them proper respect in

comity analysis will open the door to lawsuits in U.S.

courts seeking to apply state law to facilities in nations such as Canada, Mexico, and beyond.

I.

The TPA’s Text, Implementing Legislation,

And History Make Clear That Each Nation

Sets And Enforces The Environmental

Standards For Facilities Located In Its Territory.

The TPA’s text leaves no doubt that each Nation

is responsible for facilities within its territory. And

that conclusion is further confirmed by Congress’s implementation of the TPA, the TPA’s negotiating history, and the dramatic intrusion on U.S. and Peruvian

sovereignty that would result from the Eighth Circuit’s erroneous view.

A. The TPA’s Text Clearly Affirms Each Nation’s Exclusive Authority To Establish,

And Adjudicate Compliance With, Environmental Standards.

“The interpretation of a treaty, like the interpretation of a statute, begins with its text.” GE Energy

Power Conversion France SAS, Corp. v. Outokumpu

6

Stainless USA, LLC, 590 U.S. 432, 439 (2020) (internal quotation marks omitted). And “[i]n treaty interpretation as in statutory interpretation, particular

provisions may not be divorced from the document as

a whole.” Sea Hunt, Inc. v. Unidentified Shipwrecked

Vessel or Vessels, 221 F.3d 634, 646 (4th Cir. 2000);

Pielage v. McConnell, 516 F.3d 1282, 1288 (11th Cir.

2008). The TPA’s text, read as a whole, clearly embodies the parties’ determination that a U.S. court should

not adjudicate claims by Peruvian plaintiffs alleging

injuries caused by emissions from a Peruvian facility,

and such a facility is subject only to Peruvian environmental laws.

First, Chapter 18 of the TPA, which contains the

agreement’s environmental provisions, begins by specifically affirming each Nation’s sovereign authority

within its borders. It “[r]ecogniz[es] that each Party

has sovereign rights and responsibilities with respect

to its natural resources,” and “[r]ecogniz[es] the sovereign right of each Party to establish its own levels of

domestic environmental protection and environmental development priorities.” TPA art. 18 & 18.1, Pet.

App. 99a.

These provisions expressly recognize, and reaffirm, the United States’ and Peru’s authority over

their own “domestic” territory. Setting the standards

governing facilities located within a Nation’s borders

and enforcing those standards are critical elements of

that sovereign authority. And it is difficult to imagine

a greater intrusion on sovereignty than a Nation applying its laws and enforcement processes extraterritorially to control the operation of a facility in another

Nation’s territory. “It is a longstanding principle of

our jurisprudence that ‘[t]he jurisdiction of [a] nation,

within its own territory, is necessarily exclusive and

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absolute.’” Kiyemba v. Obama, 561 F.3d 509, 515 (D.C.

Cir. 2009) (quoting Schooner Exch. v. McFaddon, 11

U.S. (7 Cranch) 116, 136 (1812)).

Second, the TPA goes on to make clear that each

Nation is obligated to establish the environmental

standards governing facilities within its territory. It

states that “each Party shall strive to ensure that

those laws and policies”—i.e., its own laws and policies addressing environmental threats within its territory—“provide for and encourage high levels of environmental protection.” TPA art. 18.1, Pet. App. 99a.

Similarly, Article 18.2 states that each “Party shall

adopt, maintain, and implement laws, regulations,

and all other measures to fulfill its obligations” under

the TPA. Id. art. 18.2, Pet. App. 100a.

The TPA’s emphasis on each Nation’s obligation

to adopt laws providing for “high levels of environmental protection” further confirms the Parties’ determination that each country has exclusive responsibility for the standards governing facilities within its territory. Otherwise, each Nation could supplement the

other’s standards through extraterritorial application

of its own laws.

Third, Article 18.3 addresses the enforcement of

each country’s environmental laws—making clear

that each Party is responsible for enforcing environmental standards for the facilities within its territory.

It provides that each “Party shall not fail to effectively

enforce its environmental laws * * * in a manner affecting trade or investment between the Parties.” TPA

art. 18.3.1(a), Pet. App. 100a. But it also preserves enforcement discretion, stating that “[t]he Parties recognize that each Party retains the right to exercise prosecutorial discretion and to make decisions regarding

8

the allocation of environmental enforcement resources.” Id. art. 18.3.1(b)(i), Pet. App. 100a-101a.

Importantly, this section of the agreement specifically affirms that “[n]othing in this Chapter shall be

construed to empower a Party’s authorities to undertake environmental law enforcement activities in the

territory of another Party other than as specifically

provided in Annex 18.3.4.” TPA art. 18.3.5, Pet. App.

102a. The exception—which relates to a specific requirement that Peru adopt new environmental standards in logging2—further confirms the Parties’ agreement that each Nation enforces the standards governing facilities within its territory.

Fourth, the TPA’s only exceptions to its repeated

recognition of territorial sovereignty are provisions allowing one Nation to commence an arbitration against

the other to resolve disputes under the TPA’s environmental provisions. TPA art. 18.12.6, Pet. App. 119a.

This arbitration process is governed by Chapter 21,

the general dispute-resolution mechanism of the TPA.

If a Party is found to have violated the environmental

chapter, the non-violating Party may suspend the

preferential tariff treatment for the affected industry.

Id. art. 21.16.4, https://bit.ly/3VYsehl.3

For private citizens, the only enforcement process

the TPA provides is a narrow mechanism for seeking

Annex 18.3.4 sets forth procedures allowing the United States

to undertake certain actions to enforce the new logging requirements in Peru on a State-to-State basis.

2

Chapter 21 of the TPA further clarifies that “[n]o Party may

provide for a right of action under its law against any other Party

on the ground that the other Party has failed to conform with its

obligations under” the TPA. TPA art. 21.20.

3

9

non-binding recommendations to enforce environmental laws. Under Articles 18.8 and 18.9, “[a]ny person

of a Party may file a submission [with the Secretariat

appointed by the two Parties] asserting that a Party

is failing to effectively enforce its environmental

laws.” TPA art. 18.8.1, Pet. App. 110a. If the complaint is deemed to be meritorious, the Environmental

Affairs Council, which oversees implementation of the

TPA and associated agreements, may provide “recommendations related to the further development of the

Party’s mechanisms for monitoring its environmental

enforcement.” Id. art. 18.9.8, Pet. App. 115a.4

The TPA thus creates a mechanism by which aggrieved citizens of either country may solicit recommendations to improve either country’s enforcement

of its own environmental standards. Citizens of Peru

have invoked this process with respect to the Peruvian

government’s enforcement of environmental standards. See, e.g., Secretariat for Submissions on Environmental Enforcement Matters, Air Quality and Climate

Emergency

(May

10,

2023),

https://bit.ly/448FQcb. The existence of that mechanism—and the Parties’ determination to limit it to

nonbinding recommendations—further confirms the

Parties’ intent to preserve their sovereign power to establish and enforce the standards governing facilities

within their borders.

The only binding private right of action in the TPA is Chapter

10, Section B, Investor-State Dispute Settlement. TPA art.

10.15-.27. This chapter is “designed to protect foreign investors

and their investments.” U.S. State Dep’t, U.S.-Peru TPA Investor-State Arbitrations, https://bit.ly/44hHWqg. All other binding

dispute settlement for violations of the TPA’s qualifying obligations, including for environmental obligations, is State-to-State.

4

10

The Eighth Circuit’s decision gives a Party’s citizens access to a more expansive extraterritorial remedy for environmental disputes than the one created

for the States that are parties to the TPA. Article

18.12 allows a State to initiate binding arbitration if

it believes the other State is shirking its “obligations

under a covered agreement.” TPA art. 18.12.5-.6, Pet.

App. 118a-119a. But before a State may resort to arbitration, it must engage in a mediation process. See

id. art. 18.12.1-.5, Pet. App. 117a-119a. The aggrieved

State may then begin arbitration proceedings 60 days

after this mediation has failed. Id. art. 18.12.6, Pet.

App. 119a.

Contrary to the TPA’s framework, the Eighth Circuit’s decision allows private citizens to be the first

movers, enabling them to bring their grievances to foreign courts faster than the State parties could even

begin arbitration. Moreover, private citizens would

get the benefit of expansive judicial remedies while

the Parties would be limited to the remedies (e.g., imposition of tariffs) specified in the TPA.

Fifth, the Eighth Circuit’s ruling rested on a misreading of Article 18.4.4. The court conceded that Respondents’ “specific claims and methods for relief are

not explicitly addressed by the TPA, which contemplates more traditional mechanisms for environmental enforcement.” Pet. App. 8a. But despite that acknowledgment, the court went on to reach the atextual conclusion that Article 18.4.4’s “plain language

* * * does provide a pathway for the plaintiffs to sue

the defendants.” Ibid. That interpretation is incorrect

and, in addition, is precluded by the other TPA provisions just discussed.

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Article 18.4.4 states:

“[e]ach Party shall provide persons

with a legally recognized interest under its law in a particular matter appropriate and effective access to remedies for violations of that Party’s environmental laws or for violations of a legal duty under that Party’s law

relating to the environment or environmental conditions affecting human

health, which may include rights such

as: (a) to sue another person under that

Party’s jurisdiction for damages under

that Party’s laws.”

Pet. App. 103a.

Even read in isolation, this provision does not authorize suits in the United States with respect to the

environmental standards applicable to facilities in

Peru. Instead, it obligates each country to allow persons to sue others “under that Party’s jurisdiction,”

i.e., operators of facilities within that Nation; in a local

forum; and “under that Party’s laws.” It thereby ensures the “adequacy of” each Nation’s adjudicative forum. See Ungaro-Benages, 379 F.3d at 1238.

In addition, the Eighth Circuit’s construction violates the cardinal principle that “[i]n treaty interpretation as in statutory interpretation, particular provisions may not be divorced from the document as a

whole.” Sea Hunt, 221 F.3d at 646.

As just discussed, the TPA at every turn reaffirms

the Parties’ sovereignty over their own territory’s environmental standards—including (1) expressly recognizing the Parties’ territorial sovereignty in broad

12

terms; (2) imposing obligations that would be unnecessary if a Party could apply its law and enforcement

mechanisms extraterritorially; (3) incorporating tailored enforcement mechanisms both for the Parties

and their citizens; and (4) expressly stating that the

agreement does not “empower a Party’s authorities to

undertake environmental law enforcement activities

in the territory of another Party.” TPA art. 18.3.5, Pet.

App. 102a.

Moreover, the Eighth Circuit’s decision violates

the principle that “[t]reaties, like statutes, should be

construed so that no words are treated as being meaningless, redundant, or mere surplusage.” Pielage, 516

F.3d at 1288 (quotation marks omitted). As explained

above, the TPA allows private citizens to lodge complaints, which, if meritorious, can result in the issuance of non-binding recommendations. See pp. 8-9, supra. But the court of appeals’ construction undermines those mechanisms. If the TPA permits private

citizens simply to file lawsuits and obtain binding orders in the other Party’s courts, its private citizen

complaint process would be rendered a dead letter.

In sum, the TPA’s text unambiguously embodies

the Parties’ determination that each Nation should

set and enforce its own environmental standards with

respect to facilities within its borders.

B. The TPA’s Implementing Legislation

Confirms The Political Branches’ Judgment Rejecting Suits Like Respondents’

Action.

The Eighth Circuit found support for its erroneous

reading in the TPA’s implementing legislation. But

Congress’s implementation of the TPA instead further

confirms that the agreement preserves each Nation’s

13

sovereignty, subject to the express enforcement mechanisms contained in the agreement.

The implementing legislation prohibits any “person other than the United States” from “hav[ing a]

cause of action or defense under the” TPA or “challeng[ing], * * * under any provision of law, any action

* * * of the United States [or] any State * * * on the

ground that such action * * * is inconsistent with the”

TPA. United States – Peru Trade Promotion Agreement Implementation Act, Pub. L. No. 110-138

§ 102(c), 121 Stat. 1455, 1457 (2007). As the Congressional Research Service, a nonpartisan, analytical

arm of Congress, explained, the TPA amendments

commit “both parties to effectively enforce their own

domestic environmental laws,” which “would be enforceable through the [TPA’s] dispute settlement procedures.” CRS, RL34108, U.S.-Peru Economic Relations and the U.S.-Peru Trade Promotion Agreement

10-11

(2009)

(emphasis

added),

https://bit.ly/4gwgQBw.

The Eighth Circuit did not address this provision

of the implementing legislation. Instead, it focused on

a provision stating that “No State law, or the application thereof, may be declared invalid as to any person

or circumstance on the ground that the provision or

application is inconsistent with the [TPA].” Pub. L.

No. 110-138 § 102(b)(1), 121 Stat. at 1457. In fixating

on this provision and ignoring the section discussed

above, the court disregarded the principle that “statutes must be read as a whole.” Territory of Guam v.

United States, 593 U.S. 310, 316 (2021) (internal quotation marks and alterations omitted). Its construction also disregards the text of the TPA that Congress

was implementing by enacting that statute. And in

any event, the preservation-of-state-law provision is

14

inapposite here. Missouri law is not rendered “invalid” by the TPA; Respondents’ attempt to invoke Missouri law in this particular case simply is precluded

by the comity principle.

The legislative history of the implementing legislation further undermines the Eighth Circuit’s interpretation. The report of the Senate Finance Committee (the Senate committee with jurisdiction over approval and implementation of trade agreements such

as the TPA) states, in summarizing Article 18.4.4,

that “[e]ach Party commits to make judicial, quasi-judicial, or administrative proceedings available to

sanction or remedy violations of its environmental

laws.” S. Rep. No. 110-249, at 32 (2007) (emphasis

added). And the report defined the United States’ “environmental laws” as “environmental statutes and

regulations enforceable by the federal government.”

Ibid.

Similarly, the House Ways and Means Committee

(the House committee with jurisdiction over approval

and implementation of agreements like the TPA) reiterated that under the TPA, “[t]he United States and

Peru commit to enforce their own domestic environmental laws.” H.R. Rep. No. 110-421, at 38 (2007) (emphasis added). Given that “federal laws will be construed to have only domestic application” “[a]bsent

clearly expressed congressional intent to the contrary,” RJR Nabisco, Inc. v. European Cmty., 579 U.S.

325, 335 (2016), it is clear that the Senate and House

committees of jurisdiction understood Article 18.4.4

not to create a private extraterritorial enforcement

mechanism, but instead as a guarantee that private

citizens aggrieved by facilities in their country would

have recourse to their own country’s courts to ensure

compliance with their country’s environmental laws.

15

The Committees’ descriptions of the TPA make

clear that Congress understood the TPA to allow a Nation’s courts to be the forum for adjudicating environmental claims relating to facilities within that Nation.

The absence of any mention of the drastic departure

from the traditional principle of territorial sovereignty represented by suits such as this one further

demonstrates that the TPA’s allocation of responsibility, and reaffirmation of the Parties’ sovereignty, precludes such a private extraterritorial enforcement

mechanism.

C. The TPA’s Negotiating History Confirms

Each Party’s Exclusive Authority Over

Facilities Within Its Territory.

The TPA’s negotiating history confirms that the

Parties ruled out suits in the courts of one Nation regarding facilities located in the territory of the other

Nation.

“Because a treaty ratified by the United States is

‘an agreement among sovereign powers,’” this Court

also considers “as ‘aids to its interpretation’ the negotiation and drafting history of the treaty as well as ‘the

postratification understanding’ of signatory nations.”

Medellín, 552 U.S. at 507 (quoting Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996)). This

Court thus looks to “the negotiating and drafting history (travaux préparatoires)” of the treaty to understand its meaning. Zicherman, 516 U.S. at 226; see

also Choctaw Nation of Indians v. United States, 318

U.S. 423, 431-432 (1943) (courts “look beyond the written words” more often when interpreting a treaty than

when interpreting a contract); Rodriguez v. Pan Am.

Health Org., 29 F.4th 706, 717-718 (D.C. Cir. 2022).

16

Here, the negotiating history of the TPA confirms

that the TPA reflects a commitment by the United

States and Peru that each Party would enforce its own

standards with respect to facilities within its territory.

1. Executive-Congressional Negotiations.

The negotiations between the Executive and Legislative Branches confirm that the TPA affirms each

Party’s sovereign authority within its borders, with

one exception not applicable here.

After control of Congress switched parties in the

2006 elections (from Republicans to Democrats),

members of Congress raised concerns over certain labor and environmental standards in the TPA and

other trade agreements. See I.M. Destler, American

Trade Politics in 2007: Building Bipartisan Compromise, Peterson Inst. For Int’l Econ. 8-9 (May 2007).

Following months of negotiation, lawmakers and

the U.S. Trade Representative reached a bipartisan

agreement on these concerns—the “May 10 Agreement.” See Office of the U.S. Trade Representative,

Bipartisan

Trade

Deal

(May

2007),

https://bit.ly/3ptfm67.

Under the May 10 Agreement, the Executive and

Legislative Branches agreed to a first-of-its-kind enforcement mechanism for environmental standards.

The agreement provided that “all of our [Free Trade

Agreement] environmental obligations will be enforced on the same basis as the commercial provisions

of our agreements,” meaning they would be subject to

the “same remedies, procedures, and sanctions.” May

10 Agreement 2. In lieu of the previously agreed-upon

“environmental dispute settlement procedures,”

17

which “focused on the use of fines,” the May 10 Agreement provided that the United States for the first time

would be willing to employ trade sanctions (e.g., tariffs) to enforce the environmental obligations. Id. at 23.

The May 10 Agreement confirms that the TPA recognized the limits on one Nation’s ability to dispute

the environmental standards applied by the other Nation to facilities within that Nation’s territory. Congressional leaders had voiced concerns that the environmental enforcement mechanisms in the TPA were

not sufficiently expansive, but the compromise was to

create a State-to-State dispute-resolution procedure.

See Press Release, House Ways & Means Committee,

FTA to Include Stronger Labor, Environmental Provisions (June 25, 2007), https://bit.ly/4iPQ6xB. In other

words, a narrow exception to the general rule that

each Nation would enforce its own environmental

laws. Thus, by limiting the enforcement mechanism to

a State-to-State procedure, Congressional leaders and

the Executive Branch rejected private citizens’ ability

to seek extraterritorial application and enforcement of

their laws to facilities located in the other Nation.

2. U.S.-Peru Negotiations. Pursuant to the May

10 Agreement, the United States reopened negotiations with Peru over the TPA. In June 2007, the U.S.

government announced an agreement with the Peruvians to enact “legally binding amendments to the

agreement’s provisions on labor [and] the environment * * * reflect[ing] the bipartisan” May 10 Agreement. Office of the U.S. Trade Rep., Schwab Statement on Amendments to U.S.-Peru Trade Promotion

Agreement (June 25, 2007), https://bit.ly/46xiiz9.

18

That State-to-State enforcement mechanism was

the only means by which one State could seek enforcement of any environmental laws in another state.

Compare Draft U.S.-Peru Trade Promotion Agreement (June 25, 2007), https://bit.ly/44gzjfp (including

Article 18.12), with Draft U.S.-Peru Trade Promotion

Agreement (Jan. 6, 2006), https://bit.ly/46xahdB

(lacking any binding State-to-State dispute-resolution

provision for environmental obligations).

Also added in these negotiations was the mechanism for private parties to seek nonbinding recommendations regarding enforcement of environmental

laws. See pp. 8-9, supra.

The negotiating history thus provides further evidence that the Parties rejected extraterritorial judicial enforcement of environmental standards by private parties. Rather, the TPA’s specification of enforcement mechanisms, and the addition of one available to private parties, is consistent with the text—

allocating to each Party the responsibility for promulgating and enforcing its own environmental standards

with respect to the facilities within its borders, subject

to the enforcement mechanisms expressly specified in

the TPA.

*

*

*

*

In sum, the TPA’s text, its implementing legislating, and its negotiating history confirm the Parties’

determination that each Nation would promulgate

and enforce the environmental standards governing

facilities within its borders.

That determination controls the comity analysis.

See Ungaro-Benages, 379 F.3d at 1239-1240. The TPA

was the culmination of a years-long negotiation in

which the two Parties codified “the strength of the

19

United States’ interest[s]” and “the strength of

[Peru’s] interests” with respect to setting and enforcing environmental standards. Id. at 1238. The TPA

also obligated both Nations to take affirmative steps

to guarantee that each country’s citizens would have

access to fair procedures and internal judicial remedies with respect to facilities within its borders. International comity principles therefore require dismissal

of this action.

II. The Eighth Circuit’s Ruling Would Significantly Expand Transnational Litigation, Infringing Upon Both The United States’ And

Its Treaty Partners’ Sovereignty.

If left unreviewed, the Eighth Circuit’s rationale

will open the door to a significant expansion in extraterritorial litigation—with U.S. courts applying U.S.

law to facilities located in, and conduct occurring

within, those nations’ sovereign territory. And U.S.

citizens could commence actions in foreign courts

seeking to apply foreign law to facilities within the

United States.

That is because other U.S. trade agreements contain language virtually identical to Article 18.4.4, the

provision relied upon by the Eighth Circuit.5 The

Other free trade agreements have similar or identical language to Article 18.4.4. See Dominican Republic-Central America Free Trade Agreement art. 17.3.4, https://bit.ly/3D1pqpP;

U.S.-Oman

Free

Trade

Agreement

art.

17.3.4,

https://bit.ly/3raEAX7; U.S.-Australia Free Trade Agreement

art. 19.3, https://bit.ly/3XGgYWt; U.S.-Bahrain Free Trade

Agreement art. 16.3, https://bit.ly/3rhM6Qh; U.S.-Chile Free

Trade Agreement art. 19.8, https://bit.ly/44dEiNT; U.S.-Colombia Trade Promotion Agreement art. 18.4, https://bit.ly/437SZkk;

U.S.-Korea

Free

Trade

Agreement

art.

20.4,

https://bit.ly/3pBNDjv; U.S.-Morocco Free Trade Agreement art.

5

20

Eighth Circuit’s construction of the TPA could also be

invoked to guide the comity analysis for those agreements.

For example, when the United States negotiated

the USMCA, it agreed to a provision similar to Article

18.4.4. USMCA Article 24.6.2 requires each Party to

“ensure that persons with a recognized interest under

its law * * * have appropriate access to administrative, quasi-judicial, or judicial proceedings for the enforcement of the Party’s environmental laws, and the

right to seek appropriate remedies or sanctions for violations of those laws.” USMCA, art. 24.6.2,

https://bit.ly/46BhclV.

Under the Eighth Circuit’s view, the USMCA

would allow a U.S. court to impose state-law standards on a facility in Canada or Mexico. And a Canadian or Mexican court could assert jurisdiction over a

Canadian or Mexican company with facilities in the

United States, hold that the facility was obligated to

comply with Canadian or Mexican environmental

standards, and impose liability for failure to comply

with those standards.6

That result is not merely theoretical. Numerous

NMA member mining companies that have a U.S.

17.4, https://bit.ly/3rfvwAt; U.S.-Panama Trade Promotion

Agreement art. 17.4, https://bit.ly/44cAqgc.

Nor does the legislative text relied on by the Eighth Circuit

offer a limiting principle. The same language exists in other

trade agreements, including the USMCA. 19 U.S.C. 4512(b)(1);

see also, e.g., Pub. L. No. 112-43 § 102(b)(1), 125 Stat. 497, 499

(2007) (U.S.-Panama Trade Promotion Agreement); 19 U.S.C.

4012(b)(1) (Dominican Republic-Central America Free Trade

Agreement).

6

21

nexus also have subsidiaries with operations or facilities in Canada or Mexico. That means the Eighth Circuit’s decision creates a significant risk of lawsuits in

the United States seeking to apply U.S. environmental standards to those facilities and operations.

The Eighth Circuit’s decision is especially troubling in light of the proliferation of claims based on

extraterritorial application of state law in the wake of

this Court’s decisions in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), and Nestlé USA, Inc. v.

Doe, 593 U.S. 628 (2021), limiting the extraterritorial

application of the Alien Tort Statute. See, e.g., Coubaly v. Cargill, Inc., 610 F. Supp. 3d 173, 179 (D.D.C.

2022); First Amended Compl. ¶¶ 222-246, F.C. v. Jacobs Sols. Inc., No. 23-cv-02660 (D. Colo. Mar. 18,

2024), ECF No. 52; Compl. ¶¶ 229-246, Ali v. Nahyan,

No. 23-cv-00576 (D.D.C. Mar. 2, 2023), ECF No. 1.

These cases raise serious foreign-policy concerns.

As one legal expert has noted, “the potential applicability of state law to primarily foreign disputes * * *

may prove troubling for U.S. policy and interests” in

ways that exceed even those that exist when a federal

statute is applied extraterritorially. Katherine Florey,

State Law, U.S. Power, Foreign Disputes: Understanding the Extraterritorial Effects of State Law in

the Wake of Morrison v. National Australia Bank, 92

B.U. L. Rev. 535, 539 (2012). And “given that the Constitution entrusts foreign affairs to the federal political branches, limits state power over foreign affairs,

and establishes the supremacy of federal enactments

over state law, the presumption against extraterritorial application is even stronger in the context of state

tort law.” Al Shimari v. CACI Int’l, Inc., 679 F.3d 205,

231 (4th Cir. 2012) (Wilkinson, J., dissenting).

22

To prevent this circumvention of the Court’s decisions, the Court should grant review to make clear

that comity principles require deference to the political branches’ determinations embodied in international agreements.

23

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ANDREW J. PINCUS

Counsel of Record

TIMOTHY J. KEELER

WAJDI C. MALLAT

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amicus Curiae

DECEMBER 2024