A Missed Opportunity: How Pakootas v. Teck Cominco Metals, Ltd. Could Have Clarified the Extraterritoriality Doctrine

• Publication year: 2009

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 4SUMMER 2009

NOTE

A Missed Opportunity: How Pakootas v. Teck Cominco Metals, Ltd. Could Have Clarified the Extraterritoriality Doctrine

Jennifer S. Addis(fn*)

I. Introduction

The Trail Smelter, which has operated just north of the U.S.Canadian border for more than 100 years, was the basis of a landmark arbitration decision in international environmental law: the Trail Smelter Arbitration.(fn1) Years after the decision, however, the lessons that should have been learned from this historic international compromise have gone unheeded.

In a water pollution dispute involving the same smelter, the Ninth Circuit Court of Appeals held that the Comprehensive Environmental Response, Compensation, and Liability Act(fn2) (CERCLA) applied to a Canadian company's disposal of hazardous waste in Canada.(fn3) But by characterizing its holding as a domestic application of CERCLA, the court avoided discussing the presumption against extraterritorial application of domestic statutes.(fn4) This presumption discourages courts from asserting U.S. legislative jurisdiction over foreign persons or conduct, absent legislative intent to the contrary.(fn5) Although the Ninth Circuit did not articulate the policy considerations underlying its decision,(fn6) one concern was that an extraterritorial application of CERCLA could provoke retaliatory reciprocal application of Canadian environmental laws to pollution emanating from the United States.(fn7)

Extraterritorial application of domestic statutes is rarely advisable; international disputes are better handled internationally. Especially at the U.S.-Canadian border, a number of international tribunals exist just to handle international environmental disputes.(fn8) However, these tribunals are both ineffective and inaccessible for individual private litigants seeking redress from environmental harms.(fn9) In their present form, these tribunals will most always be rejected in favor of the faster, more accessible, and more effective domestic court system.(fn10)

Because the accessibility and effectiveness of international dispute resolution systems are unlikely to improve in the near future, courts must clarify the murky and inconsistent law surrounding the extraterritorial application of domestic statutes. Specifically, the Ninth Circuit could have and should have adopted an explicit position regarding when the extraterritorial application of domestic statutes is proper. Such clarification would have both short- and long-term benefits: it would improve consistency in the application of domestic environmental laws; it would provide plaintiffs in transboundary disputes with effective remedies; and it would spur the development of a bilateral dispute resolution system by which to deal effectively with transboundary pollution issues.

Part II of this Note relays the facts surrounding Pakootas v. Teck Cominco, Ltd.,(fn11) gives a brief history of CERCLA and its liability requirements, and then summarizes the reasoning of both the district court and the Ninth Circuit. Part II also includes an overview of the presumption against extraterritoriality and the possible means of rebutting it. Part III addresses the question of whether the application of CERCLA in Pakootas was in fact extraterritorial and discusses some of the flaws in the Ninth Circuit's reasoning. After concluding that this was an extraterritorial application of CERCLA, this Part III then examines the Ninth Circuit's current stance on the extraterritoriality doctrine. Next, Part IV considers the ways in which the Ninth Circuit might have held the application of CERCLA to be extraterritorial in Pakootas without disregarding its existing precedent and then explores the international and policy considerations that may have been a part of the Ninth Circuit's deliberation. Part IV then discusses the existing problems with the international dispute resolution avenues available to transboundary pollution plaintiffs, and concludes with a proposal for a simple solution that will allow United States and Canadian courts to work hand in hand to develop an interdependent jurisprudence that will help to equitably address future transboundary disputes.

II. Background

A. Summary of the Facts

Teck Cominco Metals, Ltd., a Canadian corporation, owns and operates the Trail Smelter, one of the world's largest lead and zinc smelters.(fn12) Located on the Columbia River, about ten river miles north of the U.S.-Canadian border,(fn13) the smelter is estimated to have dumped between 450 and 800 tons of slag into the Columbia River every day until it stopped routine dumping in 1995.(fn14) Teck Cominco itself estimates that it dumped between 145,000 and 186,700 tons of slag into the river annually.(fn15) To put this number into perspective, until as late as 1994 and 1995, Teck Cominco was "discharging more copper and zinc into the Columbia River than the cumulative totals of all permitted U.S. discharges for those materials."(fn16)

Downriver, Washington State's Lake Roosevelt(fn17) felt the brunt of the environmental impact.(fn18) This region is a part of the Confederated Tribes of the Colville Reservation, and in 1999, the Colville Tribes petitioned the Environmental Protection Agency (EPA) to conduct a preliminary assessment of the health and environmental hazards present in the river and lake.(fn19) Not only was the Colville Tribes' request unprecedented,(fn20) the EPA's grant of the petition was a step never before taken:(fn21) the EPA had never before issued a Unilateral Administrative Order (UAO) to a Canadian company doing no business in the United States.(fn22)

After assessing the Lake Roosevelt and upper Columbia River site, the EPA found "contaminants ... including, but not limited to, heavy metals such as arsenic, cadmium, copper, lead, mercury and zinc."(fn23) In addition, the EPA "observed the presence of slag, a by-product of the smelting furnaces, containing glassy ferrous granules and other metals, at beaches and other depositional areas at the Assessment Area."(fn24) Completing the assessment in early 2003, the EPA concluded that, under CERCLA's Hazard Ranking System, the site was eligible for listing on the National Priorities List and thus qualified for remedial action.(fn25) At this point, the EPA and Teck Cominco entered into months of fruitless negotiations over how to resolve the dispute.(fn26) When the talks finally broke down, the EPA issued a UAO directing Teck Cominco to conduct a Remedial Investigation/Feasibility Study (RI/FS) to determine the extent of the contamination and develop remedial strategies.(fn27)

Teck Cominco sought help from the Canadian Government, which sent a diplomatic note to the U.S. State Department making clear its disapproval of the EPA's position: "Canada does not believe that CERCLA applies to Teck Cominco Metals and is concerned that the issuance of the Unilateral Administrative Order may set an unfortunate precedent, by causing transboundary environmental liability cases to be initiated in both Canada and the United States."(fn28)

Teck Cominco refused to comply with the UAO,(fn29) and the EPA showed no inclination to enforce it. As a result, two members of the Colville Tribes, Joseph A. Pakootas and Donald R. Michel, filed a citizen suit(fn30) against Teck Cominco in the Eastern District of Washington.(fn31)

B. CERCLA: A Summary

In December 1980,(fn32) Congress enacted CERCLA, the Superfund Act, to ensure prompt and effective remediation of hazardous waste sites.(fn33) The product of last-minute negotiations by a lame-duck Congress, CERCLA essentially combined three previously proposed bills that no one could agree on into something that everyone could live with.(fn34) In a last-ditch effort to get a bill through both houses before the end of its session and before President-elect Reagan took over,(fn35) Congress cobbled CERCLA together by adopting language "almost verbatim" from § 311 of the Clean Water Act and lifting the rest from bills amending the Resource Conservation and Recovery Act(fn36) (RCRA).(fn37)

CERCLA is one of the most ambiguous and incomprehensible of the environmental statutes.(fn38) It is said that judges hope that "if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain."(fn39) This degree of ambiguity makes CERCLA's overarching policies and objectives difficult to interpret. CERCLA is unique among environmental statutes in that it lacks even a statement of goals and purposes.(fn40) Courts, however, have divined two general goals of the Act: ensuring that hazardous waste sites are adequately cleaned up and ensuring that those responsible for the sites bear the responsibility for remediation.(fn41)

CERCLA is also unique because it is not directly a regulatory statute.(fn42) Instead, the Act's operation is primarily remedial, kicking in once the regulatory provisions of the RCRA have been violated.(fn43) Thus, CERCLA imposes liability on actors who have already violated RCRA by disposing of hazardous waste.(fn44) To present a prima facie case under CERCLA, a party must show that three elements are met: (1) there was an actual or threatened "release"(fn45) of a hazardous substance; (2) the release was from a "facility";(fn46) and (3) the defendant falls within one of the four categories of "covered persons" (fn47) subject to...