Congress has the authority to enact laws beyond the territorial boundaries of the United States. However, whether Congress intended to exercise extraterritorial authority in a given statute is a matter for the courts to ascertain through statutory interpretation. When considering the reach of federal legislation, courts are guided by a presumption against extraterritoriality. Part I of this Article discusses the origins and evolution of the presumption against extraterritoriality before and after the landmark decision in Aramco. Part II addresses the continuum of context paradigm from Massey and describes the extraterritorial application of U.S. environmental statutes. Part III of the Article addresses two cases that will help define the future of the extraterritorial application of U.S. environmental laws: the extraterritorial application of CERCLA in Pakootas v. Teck Cominco Metals, Ltd., and the extraterritorial application of NEPA in Friends of the Earth, Inc. v. Watson. Part IV draws on the continuum of context paradigm discussed in Part II and argues that the extraterritorial application of CERCLA is inappropriate because of sovereignty concerns as evident in Pakootas v. Teck Cominco Metals, Ltd. Conversely, the analysis in Part IV supports the extraterritorial application of NEPA in Friends of the Earth, Inc. v. Watson as an effective and appropriate avenue to protect the Earth's atmosphere by providing a procedural check on the impacts from sources that contribute to climate change.
Randall S. Abate, Dawn of a New Era in the Extraterritorial Application of U.S. Environmental Statutes: A Proposal for an Integrated Judicial Standard Based on the Continuum of Context, 31 Colum. J. Envtl. L. 87 (2006)