Reach of Superfund law at issue
on Jun 4, 2007 at 12:39 pm
With the support of the Canadian government, the government of its British Columbia province, and others, a Canadian metal smelting company has asked the Supreme Court to insulate it from U.S. environmental law on the ground that the law cannot reach across the border into another nation. The Ninth Circuit Court, however, concluded that, because there were clear effects inside the U.S. of the Canadian company’s operations, the U.S. Superfund law can reach that aspect of the operations. This extra-territorial question is one of two on which the Supreme Court is now soliciting the views of the federal government. In a brief order Monday, the Court invited the U.S. Solicitor General to offer some legal advice on the case of Teck Cominco Metals., Ltd., v. Pakootas, et al. (06-1188). Those views are not likely to be filed until sometime in the next Court Term, opening Oct. 1. The basic filings in this case can be found here.
Teck is a Canadian company that operates the world’s largest lead and zinc smelter. It has operated that facility in the British Columbia community of Trail, about ten miles north of the Canada-U.S. border. For many decades, up to 1995, Teck dumped “slag” — solid and liquid wastes from the smelter — directly into the Columbia River; the smelter is located on the river’s bank.
The slag allegedly flowed down the river, and crossed into the U.S., where it came to rest in the beds and banks of the Upper Columbia River and of Lake Roosevelt — a lake stored behind the Grand Coulee Dam. Over time, this dumping operation is said to have deposited more than 13 million tons of slag into the river. The slag contains heavy metals, including arsenic, cadmium, copper, mercury, lead and zinc, plus other hazardous substances. The slag that allegedly has accumulated on the U.S. side of the border is decarying, releasing the heavy metals into the waters and polluting the lake and the river.
In 1999, the U.S. Environmental Protection Agency, responding to a plea from the Confederated Tribes of Colville Indians, who live on a reservation in upper Washington State, assessed the environmental hazard the slag may have been posing. It ordered Teck to clean up the waste dump in the river and lake, under the Superfund law (technically, the Comprehensive Environmental Response, Compensation and Liability Act — CERCLA). EPA found that the potential migration of the waste from the Trail site in Canada amounted to a release of substances in violation of CERCLA.
The Canadian government entered into negotiations, and the company promised to do the required cleanup. In June 2006, an agreement was reached with a U.S. affiliate of Teck agreeing to study the problem under EPA supervision. EPA then withdrew its cleanup order.
While those negotiations proceeded, two members of the Colville tribe, Joseph A. Pakootas and Donald R. Michel, filed a citizen lawsuit against Teck under CERCLA, demanding that the company comply with the EPA order and demanding penalties for the pollution to date. The state of Washington entered the lawsuit with the same complaints and claims.
Teck moved to dismiss the lawsuit, on the ground that it was not a responsible party under CERCLA, because it was wholly Canadian in nature and operation. Since U.S. laws customarily do not apply to other nations, Teck argued, CERCLA should not reach its operations based in Canada. A U.S. District Court denied the challenge, allowing the lawsuit to proceed. The 9th Circuit Court ruled that applying U.S. law in this instance was not an extra-territorial enforcement, but rather was an application to activities occurring within the U.S. itself. That is the ruling that Teck has challenged in its Supreme Court appeal.
The Circuit Court ruling at issue resolved two legal questions: allowing the case to proceed because it found no extra-territorial application, and because Teck could be held liable as an “arranger” of the dumping of hazardous wastes into a river that flowed into the U.S. Teck had argued that CERCLA’s application to an “arranger” requires involvement of a third party; it was being challenged only for its own actions as an “arranger,” when there was no separate arranger, the company contended. The Ninth Circuit found that a company acting alone could qualify as an “arranger.”
It is on the latter point, the “arranger” liability question, on which Teck contends the Ninth Circuit Court is in conflict with the First Circuit. The First Circuit had ruled in the 2004 decision in American Cyanamid v. Capuano that, for “arranger” liability to exist, the disposal or treatment of the waste had to be performed by another party or entity.
Teck’s appeal poses the questions it presents this way:
“1. Whether the Ninth Circuit erred in concluding, in dereogation of numerous treaties and established diplomatic practice, that CERCLA (and, by extension, other American environmental laws) can be applied unilaterally to penalize the actions of a foreign company in a foreign country undertaken in accordance with that country’s laws; and
“2. Whether the Ninth Circuit erred in concluding, in direct and acknowledged conflict with the First Circuit, that ‘arranger’ liability under CERCLA does not require the involvement of any ‘other party or entity.'”
The Court has given the Solicitor General no deadline for offering the federal government’s views on these issues. The Court will not decide whether to hear the case until after it has received the government’s comments.
The Teck case was filed in the Supreme Court by Theodore B. Olson of Gibson, Dunn & Crutcher’s Washington, D.C., office. Opposing Supreme Court review were Washington Attorney General Robert M. McKenna, for the state of Washington, and Paul J. Dayton of Short Cressman & Burgess in Seattle, for the members of the Colville tribe.
