ERI filed an amicus curiae (friend of the court) brief (PDF) this past week in the Ninth Circuit Court of Appeals in Galvis Mujica v. Occidental Petroleum, a case involving allegations that the California oil company was complicit in the Colombian military’s attack on a civilian community in that country's civil war.
Los Angeles-based Occidental Petroleum (Oxy) has been one of the biggest oil producers in Latin America, and it is currently involved in oil production in Colombia, among other places. (ERI is also suing Oxy for toxic contamination from its former operations in Peru.) On December 13, 1998, the Colombian military bombed the village of Santo Domingo, guided by an airplane provided by Oxy and piloted by its security contractor. According to the plaintiffs, Oxy instigated the raid in a meeting with the military at its own offices. The bombing killed seventeen people, including three family members of Luis Galvis Mujica, who sued Oxy in California for its role in the bombings.
This is not the first time that Mujica has been heard at the appeals court. The case was first dismissed by the district court in 2005, and the plaintiffs appealed. (ERI submitted an amicus brief (PDF) in this appeal as well). This first appeal was sent back to the district court in 2009, to evaluate whether or not the plaintiffs should have exhausted all their legal options in the Colombian courts before coming to the United States. The district court sided with the plaintiffs on this question and sent the case back to the appellate court to review the remaining issues from the original dismissal; the new amicus brief relates to this latest stage in the case.
ERI’s brief focuses on the issue of federal preemption of transnational legal claims brought under state law. During the Bush administration, a State Department official submitted a letter to the court stating that it was U.S. policy to let the case play out in Colombia rather than in American courts. Citing this letter, the district court ruled that the plaintiffs could not bring claims under California law (such as wrongful death) because to do so would conflict with federal foreign policy.
In its brief, ERI shows that this kind of preemption is not consistent with the legal doctrines that maintain delicate balance of federalism in this country. States, not the federal government, have traditionally had authority over tort law, including in cases arising abroad, and California also has a strong interest in regulating its corporations. In these circumstances, a unilateral declaration of foreign policy by an executive official cannot displace state laws. Moreover, allowing these claims to proceed would not even conflict with the foreign policy interests expressed, because litigation in California would not prevent a case from proceeding in Colombia as well. To allow executive officials to prevent the application of state tort laws – simply by stating that they conflict with foreign policy – would badly upset the balance between state and federal power underlying the U.S. federal system, and would hinder victims’ ability to seek justice in U.S. courts.
