Erin F. Greenfield, Cercla's Applicability Abroad: Examinging the Reach of a U.s. Environmental Statute in the Face of a Cross-border Pollution Dispute

• Citation: Vol. 19 No. 3
• Publication year: 2005

CERCLA'S APPLICABILITY ABROAD: EXAMINING THE REACH OF A U.S. ENVIRONMENTAL STATUTE IN THE FACE OF A CROSS-BORDER POLLUTION DISPUTE

INTRODUCTION

The Upper Columbia River area in northern Washington State is deeply rooted in Tom Louis' history and remains a central factor to his well-being. As a member of the Confederated Tribes of the Colville Reservation ("Tribes"), Louis lives in a Native American community near the banks of the river in the

State of Washington.¹He grew up swimming in the river; he eats the fish and has built his house along the shore where he is presently raising a family.²

Now, pollution from an upstream Canadian mining and metals smelter plant threatens the livelihood, safety, and welfare of Louis, his children, and other residents of northern Washington State.

For nearly a century, the smelter plant, owned by Teck Cominco Metals, Ltd. ("Teck") and located in British Columbia several miles north of the U.S.- Canada border, has unloaded tons of hazardous waste into the Columbia River. The company allegedly dumped the equivalent of one full dump truck an hour for sixty years,³or a total of 10 to 20 million tons during this period.⁴The hazardous substances have flowed downstream into the U.S. portion of the river and have accumulated in Washington State's Lake Roosevelt. In response, following an initial investigation by the U.S. Environmental Protection Agency (EPA), individual members of the Tribes have turned to the judicial system for relief. A lawsuit filed in federal district court in July 2004 by two tribal members, on the Tribes' behalf, aims to hold Teck responsible for the pollution caused to the Upper Columbia and Lake Roosevelt. The company does not deny that its smelter is one of the causes of the pollution and is even willing to assume some responsibility and provide compensation under its own terms.⁵The controversy lies in the Tribes' attempt to compel Teck to fund a study and to clean up the area under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),⁶a U.S. environmental statute. The suit has sparked a debate over extraterritorial enforcement of a U.S. statute and raises questions concerning liability for cross-border pollution along Canada's and the United States' shared waterways.

This action is believed to be the first time that private citizens have filed suit under CERCLA against a foreign company in a foreign territory.⁷

CERCLA's provisions do not specifically allow a foreign entity to be subjected to liability, and there is no direct evidence that Congress intended for extraterritorial application. However, the statute does have a broad scope as to party liability, obligating "the owner and operator of a vessel or a facility" or one who "arranged for disposal" of waste to pay for costs incurred by the U.S. government or individuals due to environmental damage.⁸By looking at the language of CERCLA and other cases where domestic statutes were extended to foreign territories, this Comment focuses on the viability of the Tribes' attempt to enforce an EPA clean-up order against Teck. It analyzes whether private citizens can apply CERCLA's liability provisions to a foreign corporation, specifically whether the U.S. district court has subject matter jurisdiction over Teck under this statute. It argues that CERCLA can and should apply to a foreign company and advocates for clarification of this law with respect to its applicability to entities outside U.S. territory for transboundary pollution.

Part I reviews customary international law principles governing transboundary water disputes and incorporates a brief history of how the United States and Canada have previously managed and resolved such disputes. It then examines the relevant provisions of CERCLA and its clean- up and liability requirements.

Part II provides background on the Lake Roosevelt and Upper Columbia River regions as well as the Colville Tribes, including the effects of the pollution on the residents and natural environment. This section also describes the history and events leading up to the current lawsuit. It reviews the extent of the EPA's initial involvement, Teck's resistance to comply with CERCLA's clean-up requirements, the Tribes' eventual filing of a complaint in federal court, and Teck's attempt to dismiss the case. It also briefly discusses the involvement that the Canadian and U.S. governments have had in the dispute.

Part III analyzes the current rules of law that govern applying domestic statutes to entities in foreign nations. The Supreme Court applies a presumption against extending a statute extraterritorially unless Congress has demonstrated an affirmative intent to broaden its reach.⁹However, courts are less likely to apply this presumption if the extraterritorial conduct causes harmful effects to U.S. territory.¹⁰Even if adverse effects are felt within the United States, jurisdiction over a foreign entity must be reasonable to avoid conflict of law problems and damage to foreign policy.¹¹

Part IV argues that applying CERCLA to hold Teck liable is a valid exercise of judicial enforcement. First, the existing presumption against extraterritorial application should not apply because Teck has caused substantial environmental harm to domestic territory. The district court's exercise of jurisdiction does not pose conflict of law problems because the Tribes are seeking remedial damages, as opposed to trying to regulate Teck's disposal activities, and because both Canada and the United States stand behind the principle of placing responsibility on the polluting party. Second, the language, overall scheme, and legislative history of the statute demonstrate sufficient congressional intent to extend CERCLA's reach beyond the boundaries of the United States.

This Comment concludes by arguing that, while it should not always be the first option, legal action by the Tribes is the most effective way to clean up the Upper Columbia River area and receive compensation for individual and environmental damages. It proposes solutions for avoiding future confusion and conflict over transboundary pollution issues. Congress should amend CERCLA to clarify its applicability by incorporating what the Restatement of Foreign Relations Law and the judiciary have recognized as the "effects doctrine."¹²The judiciary can play an important role by ruling for the Tribes in the present lawsuit and setting the stage for reform in this area. However, for the time being, private litigation against Teck may be the quickest and most rewarding clean-up solution for the Tribes, as history has shown that diplomatic negotiations or tribunals can often delay a final outcome for decades.

I. GENERAL PRINCIPLES OF ENVIRONMENTAL POLLUTION

A. Transboundary Pollution and Sources of International Environmental Law

Transboundary pollution has been defined as "disturbances that originate in one country, are transmitted through a shared natural resource, and take effect in another [country]."¹³In the last several decades, the increasingly global nature of commerce and consumption has caused transboundary pollution to emerge as an important field in international law.¹⁴During the 1992 United Nations Conference on Environment and Development, also known as the Rio Conference, members of the world community for the first time addressed and documented the growing concern of transboundary pollution in the resulting document, the Rio Declaration on Environment and Development.¹⁵As a member of this conference and as a nation bordering two major countries, the United States must address these transboundary pollution problems in areas such as acid deposition, air pollution, freshwater quality, and waste in international trade.¹⁶

The United States and Canada share nearly 5,000 miles of border and more than 150 rivers and lakes.¹⁷Although the two nations have historically had cooperative relations and share social and economic similarities, the sheer level of common boundaries and resources periodically raises issues as to transboundary pollution and responsibility. The countries have largely relied on customary principles of law and formal treaties to resolve disputes across their borders.

1. Customary International Law Principles

Customary international law is an important source of law governing transboundary environmental issues between the United States and Canada. This body of law is not codified or established by treaty, but develops over time after nations repeatedly follow a principle, believing that they are legally bound to adhere to it.¹⁸Although non-binding and non-codified law, customary international law can obligate other nations to adhere to certain principles and can lead to responsibility for harm to other nations, including consequences of environmental pollution.

One example where customary law played an integral role was the Trail Smelter arbitration during the first half of the twentieth century.¹⁹This thirteen-year dispute began when a smelter facility in Trail, British Columbia emitted hazardous substances into the atmosphere and caused widespread air pollution and property damage to areas in Washington State.²⁰Initial complaints came from a group of Washington citizens before the U.S. government finally initiated diplomatic activity with Canada.²¹The United States and Canada first tried to settle matters through diplomacy, then through the International Joint Commission (IJC),²²and finally via an ad hoc arbitration tribunal.²³In its final judgment in 1941, the tribunal held that Canada was responsible for the activities of the smelter.²⁴

More importantly, the arbitration established that under the principles of international law, as well as of the law of the

United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.²⁵

Today, this principle...