After the Environmental Protection Agency issued a Unilateral Administrative Order to a Canadian company to conduct a study on contamination of the Columbia River in this country from its smelter in Canada, an Indian tribe sued to enforce the order. The company argued that the EPA does not have jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but the U.S. federal district court ruled otherwise. The company appealed, and the Ninth Circuit affirmed, ruling 7/3/06 that the EPA’s order only applied to a “facility,” as it’s defined in CERCLA, within the territorial boundaries of the United States. Even though the smelter was located in Canada, the definition of a facility under CERCLA is an area where a hazardous substance has been deposited or otherwise comes to be located. This is a very broad definition of facility that subjects foreign companies to liability for pollution in the United States.The court also ruled that the slag located in the United States was leaching hazardous substances, thus satisfying the legal requirement for liability that there be a “release” from the facility into the environment. EPA’s jurisdiction did not extend to the smelter across the border, but does cover the underwater facility and hazardous releases in the United States.
The NAM joined with the National Mining Association supporting Teck Cominco’s appeal. In an amicus brief filed 6/13/05, we argued that CERCLA applies only within this country unless Congress clearly expresses an intent to apply it extraterritorially, which it did not. These kinds of disputes are quintessentially an international concern, not for unilateral action by one country's EPA. Private litigation upsets the resolution of such disputes through diplomatic means, or through the long-standing model of an arbitration group that was specifically established for the smelter in the 1930s. Allowing such litigation in U.S. courts opens them up to worldwide claims, particularly as environmental science improves, and could subject U.S. firms to retaliatory litigation abroad, imposing multiple and conflicting standards on environmental behavior.
Teck Cominco appealed for rehearing. On 7/24/2006, the NAM and the National Mining Association filed a brief in support of this appeal, arguing that the site of the release is irrelevant for resolving the question whether the United States is improperly applying its law to an entity based in another country. The decision ignores the history of negotiated international disputes and transforms CERCLA into a global environmental statute. Rehearing was denied on Oct. 30, 2006.