federal statute is enough for jurisdiction. If it is held that
federal law does not provide for the remedy, the dismissal
should be on the merits rather than for want of
jurisdiction."). Defendant's 12(b)(1) motion is thus denied
with respect to the RCRA claim.
When considering Alien Tort Statute claims on a 12(b)(1)
motion, courts typically engage "in a more searching
preliminary review of the merits than is required, for example
under the more flexible "arising under formulation."
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). This
Court will do likewise.
An allegation of conduct constituting a treaty violation or
a violation of the law of nations is a threshold jurisdictional
requirement under the Alien Tort Statute, 28 U.S.C. § 1350. See
Filartiga, 630 F.2d at 880. If this requirement is not met, an
action under section 1350 cannot be maintained. See id. at 887.
Here, the complaint does not allege any treaty violation that
is actionable under the Alien Tort Statute. Therefore, the
complaint must allege facts that, if true, would constitute a
violation of the law of nations.
Plaintiffs assert that the complaint does allege facts that
constitute a violation of the law of nations. In particular,
plaintiffs argue that FMC's conduct is violative of the
Stockholm Principles, United Nations Conference on the Human
Environment (adopted June 16, 1972), to which the U.S. is a
signatory.*fn2 Plaintiffs also cite the Restatement (Third) of
Foreign Relations Law § 602(2) (1987), in support of their
But these invocations of international law do not establish
a violation of such law under the Alien Tort Statute. In
Filartiga, one of the few cases to find the Statute applicable,
the court stressed that "It is only where the nations of the
world have demonstrated that the wrong is of mutual and not
merely several, concern, by means of express international
accords, that a wrong generally recognized becomes an
international law violation within the meaning of the statute."
Filartiga, 630 F.2d at 888. Subsequent decisions have
emphasized the narrow scope of Filartiga's holding. For
example, in Zapata v. Quinn, 707 F.2d 691, 692 (2d Cir. 1983)
(per curiam) the Second Circuit, citing Filartiga, held that
the Alien Tort Statute "applies only to shockingly egregious
violations of universally recognized principles of
Plaintiffs' reliance on the Stockholm Principles is
misplaced, since those Principles do not set forth any specific
proscriptions, but rather refer only in a general sense to the
responsibility of nations to insure that activities within
their jurisdiction do not cause damage to the environment
beyond their borders. Nor does the Restatement of Foreign
Relations law constitute a statement of universally recognized
principles of international law. At most, as plaintiffs' own
brief suggests, the Restatement iterates the existing
U.S. view of the law of nations regarding global environmental
Because the complaint contains no clear allegation of a
violation of the law of nations, plaintiffs' second cause of
action is dismissed.
B. Defendant's 12(b)(6) Motion
A motion to dismiss for failure to state a claim tests only
the sufficiency of a
complaint, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 1686, 40 L.Ed.2d 90 (1974), and should not be granted
"unless it appears beyond a doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
101-02, 2 L.Ed.2d 80 (1957); Anderson v. Coughlin, 700 F.2d 37,
40 (2d Cir. 1983). A court must accept as true the allegations
of the complaint and draw all reasonable inferences in favor of
the plaintiff. See Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686.
The RCRA Claim
In their complaint, plaintiffs assert as their Second Claim
for Relief a cause of action under RCRA's citizen suit
provision, 42 U.S.C. § 6972. Specifically, they seek injunctive
relief and damages under Section 6972(a)(1)(B), which provides
that any person may commence a civil action
against any person . . . including any past or
present generator, past or present transporter, or
past or present owner or operator of a treatment,
storage, or disposal facility, who has contributed
or who is contributing to the past or present
handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment
to health or to the environment.
Plaintiffs contend that they are entitled to relief under
this provision because potentially toxic chemicals may
evaporate from or leak out of containers in which they have
stored the copper residue, posing an imminent and substantial
danger to workers nearby and the community at large if the
chemicals pollute the local water supply. Complaint ¶¶ 65-66.