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A Canadian smelter in Trail, British Columbia, that triggered a seminal case in environmental law half a century ago is again the target of litigation by disgruntled American neighbors on the Columbia River south of Canada’s border. Last week, the 9th U.S. Circuit Court of Appeals heard an interlocutory appeal arising from a federal district court ruling that held for the first time that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) can be enforced against a foreign corporation for contamination in the U.S. Pakootas v. Teck Cominco Metals Ltd., No. 05-35153 (9th Cir.). The act holds companies liable for cleaning up the pollution they create, no matter how long ago. The case may have even wider ramifications. U.S. industrial and mining interests-worried about retaliatory litigation from the other side of the border-have weighed in on the Canadians’ side. The von Braun connection The case stems from an action filed by two members of the Confederated Tribes of the Colville Reservation to enforce a U.S. Environmental Protection Agency (EPA) order directing Teck Cominco of Vancouver, British Columbia, in December 2003 to perform a study on its smelter’s alleged contamination of the Columbia River south of the Canada border. Kevin M. Fong of Pillsbury Winthrop Shaw Pittman’s San Francisco office, a lawyer for Teck Cominco, told a three-judge 9th Circuit panel sitting in Seattle last week that the EPA does not have jurisdiction because both the arrangement for the disposal and the disposal of the slag took place in Canada. However, U.S. District Senior Judge William W Schwarzer (sitting on the circuit panel by designation from the Northern District of California) said that this sounded “like Wernher von Braun, who said ‘I only send the missiles up. I don’t care where they land.’ “ Schwarzer asked Fong if the company’s position is: “We just dump it in the water, we don’t care where it lands.” The other two members of the 9th Circuit panel were judges Ronald M. Gould and Marsha S. Berzon. Fong told the panel that the U.S. Supreme Court crafted a presumption to help courts “avoid unintended international discord” when considering cases in an international context. EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). David K. Mears, who teaches environmental law at Vermont Law School and is assistant director of the school’s environmental and natural resources law clinic, predicted that the 9th Circuit will affirm the district court ruling. “The retroactive liability [CERCLA] imposes has forced companies to think very carefully about their liability issues; has helped to make it one of the most effective environmental laws,” Mears said. Mears said he expects the courts will see precisely the domestic hazardous waste site in Roosevelt Lake, formed by a Columbia River dam, that CERCLA was written to address. Senior U.S. District Judge Alan A. McDonald, who denied Teck Cominco’s motion to dismiss the case in November 2004, said that there is “no doubt that Congress intended CERCLA to clean up hazardous substances at sites within the jurisdiction of the United States.” Pakootas v. Teck Cominco Metals Ltd., No. 04-cv-256 (E.D. Wash 2004). “The Upper Columbia River is a ‘domestic condition’ over which the United States has sovereignty and legislative control. Extraterritorial application of CERCLA in this case does not create a conflict between U.S. laws and Canadian laws,” McDonald wrote. But Mears noted that the court will need the cooperation of the Canadian legal system to enforce any order against Teck Cominco. Douglas H. Horswill, Teck Cominco’s senior vice president for environment and corporate affairs, said that the company is working on a negotiated solution of the issue with the U.S. State Department. Quentin Riegel, vice president of litigation for the National Association of Manufacturers in Washington, which joined the National Mining Association in an amicus brief in Teck Cominco’s support at the 9th Circuit, echoed the company’s position that such disputes should be resolved through established international arbitration mechanisms rather than by the courts. The United States and Canada submitted airborne sulfur dioxide contaminant issues to arbitration twice between 1928 and 1941, resulting in a damages award to the United States and certain restrictions on emissions. Trail Smelter (U.S. v. Canada), 3 R.I.A.A. 1905 (1938); Trail Smelter (U.S. v. Canada), 3 R.I.A.A. 1938, 1965 (1941).

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