Partner David L. Attanasio spoke on the U.S. litigation risks facing energy and natural resources companies based on their operations abroad. This overview of those risks is adapted from the remarks he delivered on April 2, 2025 at the Foundation for Natural Resources and Energy Law’s Special Institute in Lima, Peru—part of a panel on legal claims regarding human rights and the environment brought before courts of countries other than those where the claims originated.
Energy and natural resources businesses in the United States continue to face legal risk in the United States from the human rights and environmental impacts of their operations abroad. However, these legal risks have declined in recent years. Most notably, U.S. courts have curtailed high-profile Alien Tort Statute (“ATS”) litigation and have applied doctrines such as forum non conveniens to block other cases.
Over the next few minutes, I will provide an overview of where U.S. courts stand in handling litigation related to human rights and environmental impacts abroad, and I will highlight some of the main risks still facing businesses in the energy and natural resources sectors.
Current Risks from Alien Tort Statute Litigation
Because plaintiffs have frequently invoked the ATS in cases involving often-shocking factual allegations, the statute has become relatively well known—even beyond its bar of practitioners. The ATS gives U.S. federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” First enacted as part of the Judiciary Act of 1789, the ATS has, over the past four decades, underpinned numerous lawsuits concerning alleged violations of human rights, humanitarian law, and related international legal norms.
A wide range of businesses and individuals have been subject to ATS litigation. However, companies in the energy and natural resources sectors have been frequent targets. Examples include:
- Drummond Company, accused of aiding and abetting paramilitary forces in Colombia;
- Royal Dutch Petroleum and Royal Dutch Shell, accused of human rights violations related to the suppression of community opposition to oil development; and
- Unocal, accused of forced labor and wrongful death in connection with a gas pipeline project in Myanmar.
The Progressive Curtailment of the ATS
In recent decades, the U.S. Supreme Court has progressively narrowed the reach of the ATS—particularly as applied to corporations. These developments have significantly reduced, but not eliminated, the exposure of energy and natural resources companies to ATS suits.
The current framework for ATS litigation dates back to 2004, when the Supreme Court decided Sosa v. Alvarez-Machain. There, the Court ruled that the ATS is a purely jurisdictional statute and that neither the ATS itself nor the “law of nations” creates the causes of actions necessary to bring an ATS suit in the US federal courts. Nevertheless, it decided that the federal courts may recognize limited causes of action for torts in violation of “the law of nations”—which would allow ATS suits to proceed.
However, the Court also held that such causes of action could be recognized only when comparable to certain paradigm offenses that existed at the time of the ATS’s enactment in the 18th century. These paradigm offenses, coming from the “law of nations” in that era, included “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” The Court therefore concluded that ATS causes of action would have “to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”
In Kiobel v. Royal Dutch Petroleum Co., from 2013, the Court turned to the question of the ATS’ extraterritorial application. Notwithstanding the ATS’ concern for violations of “the law of nations,” the Court held that ATS claims are subject to a presumption against extraterritoriality and that such claims could concern extraterritorial conduct under only limited circumstances. However, it accepted that claims could displace the presumption against extraterritoriality if they “touch and concern the territory of the United States” with “sufficient force.” The Court provided little guidance in Kiobel on what that meant. It did later clarify that “general corporate activity” in the United States, such as decision-making, is insufficient on its own.
Finally, in Jesner v. Arab Bank, decided in 2018, the Supreme Court added that “foreign corporations may not be defendants in suits brought under the ATS.” However, it left undecided whether ATS claims may be brought against U.S. corporations.
Following these developments over the last 20 years, ATS claims against corporations are now limited to U.S. entities and can proceed only where the underlying conduct both “touches and concerns” U.S. territory and violates well-defined international legal norms. While the Supreme Court’s decisions have significantly narrowed potential corporate ATS liability, they have not entirely eliminated it.
Future of the ATS
Despite the Supreme Court’s whittling down of the ATS, it has not disappeared entirely. U.S. corporations still have potential exposure to ATS-based lawsuits. Some federal courts have upheld jurisdiction over claims against U.S. corporations accused of aiding and abetting international law violations, even where the alleged violations occurred abroad, so long as key corporate conduct occurred in the U.S.
A notable example is the Ninth Circuit’s recent decision in Doe I v. Cisco Systems. The plaintiffs alleged that Cisco had aided and abetted human rights abuses in China—such as arbitrary detention, forced labor, and torture—by “design[ing], implement[ing] and help[ing] to maintain a surveillance and internal security network” targeting the Falun Gong. They also alleged that Cisco had directed, controlled, and performed engineering work on the network in San Jose, California.
After confirming that aiding and abetting liability is available under the ATS, the Ninth Circuit specified that such liability requires the defendant to have provided “knowing” “assistance . . . with substantial effect on an international law violation.” According to the Court, Cisco allegedly provided the necessary assistance though the development and use of the “technology to identify, detain, and torture Falun Gong practitioners.” And Cisco was allegedly aware that the Chinese authorities had the goal of using the technology “to target Falun Gong adherents” and that their efforts “involved significant and ongoing violations of international law, especially torture and arbitrary detention.”
The Ninth Circuit then turned to the most interesting part of the decision: the treatment of extraterritoriality. It rejected Cisco’s argument that the plaintiffs had alleged “only domestic conduct amounting to general corporate activity.” The court emphasized the allegations that Cisco designed and developed the surveillance system in the United States, manufactured key hardware there, and delivered support from that location. It also noted that Cisco, in the United States, allegedly had knowledge of the likely international law violations. The court therefore concluded that “the domestic activities alleged . . . constituted essential, direct, and substantial assistance for which aiding and abetting liability can attach.”
Cisco has petitioned the Supreme Court to review the Ninth Circuit’s decision. If the Court grants certiorari, it could overrule the Ninth Circuit and potentially further narrow ATS exposure for U.S. corporations. But unless and until that happens, companies remain at risk—at least in some U.S. jurisdictions—for ATS-based aiding and abetting claims tied to human rights violations abroad.
Other Litigation Risks in the United States
While ATS litigation is perhaps the most prominent mechanism for asserting human rights and environmental claims in the United State, other legal avenues also present risks to energy and natural resources companies. Traditional jurisdictional doctrines may still permit these claims to proceed, at least in some cases.
Federal Court Diversity Jurisdiction
Foreign plaintiffs have pursued such claims in the U.S. federal courts based on the standard subject matter jurisdiction that these courts enjoy when the parties are citizens of different states or countries—diversity jurisdiction. For example, in Aguinda v. Texaco (the initial US litigation in the well-known Lago Agrio dispute), the Ecuadorian and Peruvian plaintiffs asserted claims against New York-headquartered Texaco including for negligence, public and private nuisance, and strict liability. In support, they “alleged that between 1964 and 1992 Texaco's oil operation activities polluted the rain forests and rivers in Ecuador and Peru.”
Cases brought on this basis have often, but not always, been unsuccessful. This is not necessarily for a lack of subject matter jurisdiction. The U.S. district courts have “jurisdiction of all civil actions . . . between . . . citizens of a State and citizens or subjects of a foreign state” so long a minimum amount is in controversy. Such jurisdiction would appear to cover claims like those at issue in Aguinda, where the plaintiffs were foreign nationals from Ecuador and Peru and Texaco was a U.S. corporation.
Instead, the U.S. federal courts have often (but not always) dismissed such cases based on the doctrine of forum non conveniens. This is a doctrine that allows dismissal when a more convenient forum exists to hear the dispute. While formulations of the doctrine vary, the assessment usually requires first, establishing that an adequate alternative forum exists and, second, balancing the private and public interests in litigating before the available fora. The defendants in human rights and environmental cases typically argue, often successfully, that the courts of the jurisdiction where the events occurred afford a superior forum.
State Court General Jurisdiction
Plaintiffs have brought similar claims state courts, which enjoy broad subject matter jurisdiction, often extending to most or all claims. For example, in Maynas Carijano v. Occidental Petroleum, the Peruvian plaintiffs filed claims—including for negligence, strict liability, battery, wrongful death, and public and private nuisance—against Occidental in a California state court on this basis. They alleged that “Occidental knowingly utilized out-of-date methods for separating crude oil . . . , resulting in the discharge of millions of gallons of toxic oil byproducts into the area’s waterways.”
The difficulties for plaintiffs in these cases are similar to those in cases initially filed in the federal courts. The U.S. federal courts enjoy what is called “removal” jurisdiction, which allows a defendant to “remove” a case filed in state court to a federal district court when that federal court also has jurisdiction over the case.
This is what happened in Maynas Carijano. While the plaintiffs had filed the case in a California state court, Occidental removed the case to federal district court and then sought dismissal based on forum non conveniens. However, Occidental was ultimately unsuccessful in this case. Although the district court ruled in favor of Occidental and dismissed the suit, the Ninth Circuit reversed. After the Supreme Court declined review, the parties reached a settlement.
Risk of Exposure to U.S. Discovery
Perhaps the most underappreciated source of legal risk in the United States comes from the expansive discovery available there—even where the claims are being heard before a foreign court. By contrast with many or most foreign jurisdictions, the U.S. legal system typically permits very broad discovery, both of documents and of witness testimony. And it often extends this broad discovery to provide assistance to foreign proceedings.
Parties to foreign litigation have access to U.S. discovery under 28 U.S.C. § 1782—often referred to as Section 1782 discovery. It is available, subject to a court-assessed balancing of factors, to obtain evidence for use in a foreign judicial proceeding. Section 1782 discovery can provide key evidence unavailable in the foreign forum and thus can increase the legal risk to companies from litigation abroad.
A relatively recent case—although unsuccessful—illustrates the risk. After their claims were dismissed in the United States, the plaintiffs in Kiobel v. Royal Dutch Petroleum sought to refile in the Netherlands. They also pursued Section 1782 discovery against Cravath, Swaine & Moore LLP, former counsel for Royal Dutch Petroleum in the U.S. litigation. Because they were entitled to use documentary evidence disclosed during the U.S. litigation only in that proceeding, they sought—through a Section 1782 petition—to compel Cravath to re-produce the documentary evidence. While the effort ultimately failed, the decision turned on this specific procedural history rather than inherent limitations on Section 1782 discovery.
In other cases, Section 1782 discovery has the potential to provide plaintiffs in foreign litigation with significant evidence to support their claims. Since similarly expansive discovery may well not be available before a foreign court, Section 1782 has the potential to provide plaintiffs with an important procedural tool. Energy and natural resources companies should take note of this U.S.-based legal risk.
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While the legal risks in the United States confronting energy and natural resources companies from such human rights and environmental claims have narrowed in recent years—particularly under the Alien Tort Statute—they have not disappeared. Corporate strategies that rely solely on existing judicial limitations are not enough to avoid legal exposure. Proactive due diligence, robust compliance frameworks, and strategic anticipation of procedural tools such as Section 1782 discovery remain essential for effectively managing U.S. legal risk.
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