Petition for Writ of Certiorari — Teck Metals Ltd., fka Teck Cominco Metals, Ltd., Petitioner v. The Confederated Tribes of the Colville Reservation, et al.

Supreme Court briefMar 4, 2019

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No. 18IN THE

Supreme Court of the United States

_________

TECK METALS LTD., formerly known as TECK

COMINCO METALS, LTD.,

Petitioner,

THE CONFEDERATED TRIBES OF THE COLVILLE

RESERVATION, et al.,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

KEVIN M. FONG

PILLSBURY WINTHROP SHAW

PITTMAN LLP

Four Embarcadero Center

San Francisco, CA 94111

(415) 983-1000

THOMAS A. CAMPBELL

AMANDA G. HALTER

CHRISTOPHER J. MCNEVIN

PILLSBURY WINTHROP SHAW

PITTMAN LLP

2 Houston Center

909 Fannin, Suite 2000

Houston, TX 77010

(713) 276-7600

CATHERINE E. STETSON

Counsel of Record

SEAN MAROTTA

MATTHEW J. HIGGINS

BENJAMIN A. FIELD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Petitioner

QUESTIONS PRESENTED

Petitioner Teck Metals Ltd. (Teck) owns a smelter

that has operated in British Columbia, Canada for

over a century. During that time, Teck and its

predecessors have reached agreements with U.S.

authorities, with the support of the Canadian government, to address cross-border air and water

pollution concerns associated with the smelter’s

operations.

Respondents nevertheless brought

private suits under the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) for declaratory relief, response costs, and

natural-resource damages for smelter discharges into

the Columbia River in Canada that were carried into

and ultimately settled in Washington State.

The questions presented are:

1. Whether the Ninth Circuit, in conflict with Morrison v. National Australia Bank Ltd., 561 U.S. 247

(2010), and RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), correctly concluded that

holding Teck liable for its discharges in Canada was

not an impermissible extraterritorial application of

CERCLA.

2. Whether the Ninth Circuit, in conflict with this

Court’s decision in Walden v. Fiore, 571 U.S. 277

(2014), and the Second, Fifth, and Seventh Circuits,

correctly held that a State may exercise specific

personal jurisdiction over a defendant because the

defendant knew its conduct would have in-state

effects, where the defendant’s relevant conduct

occurred elsewhere.

(i)

3. Whether the Ninth Circuit, in conflict with the

First Circuit and in tension with the opinions of this

Court and several other circuits, correctly held that a

defendant can be an “arranger” under CERCLA even

if the defendant did not arrange for anyone else to

dispose of or treat the waste.

PARTIES TO THE PROCEEDING

Teck Metals Ltd., petitioner on review, was the

defendant-appellant below under its former name,

Teck Cominco Metals, Ltd.

The Confederated Tribes of the Colville Reservation, respondent on review, was plaintiff-appellee

below.

The State of Washington, respondent on review,

was intervenor-plaintiff-appellee below.

(iii)

CORPORATE DISCLOSURE STATEMENT

Teck Metals Ltd., formerly known as Teck Cominco

Metals, Ltd., is a Canadian corporation. The parent

corporation of Teck Metals Ltd. is Teck Resources

Limited, also a Canadian corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING .......................... iii

CORPORATE DISCLOSURE STATEMENT ...........iv

TABLE OF AUTHORITIES.....................................viii

OPINIONS BELOW....................................................1

JURISDICTION ..........................................................2

STATUTORY PROVISION INVOLVED....................2

INTRODUCTION........................................................3

STATEMENT ..............................................................5

Factual Background ....................................5

Procedural History ......................................7

REASONS FOR GRANTING THE

PETITION ............................................................ 11

THE NINTH CIRCUIT’S

EXTRATERRITORIAL

APPLICATION OF CERCLA

CONTRAVENED THIS COURT’S

PRECEDENTS AND THREATENS

INTERNATIONAL COMITY ......................... 11

The Ninth Circuit’s Extraterritorial Application Of CERCLA

Cannot Be Reconciled With Morrison And RJR Nabisco .......................... 11

The Ninth Circuit’s Erroneous

Extraterritoriality Ruling Will

Harm The United States’ Foreign

Relations ................................................. 16

TABLE OF CONTENTS—Continued

Page

II.

THE NINTH CIRCUIT’S PERSONALJURISDICTION HOLDING

CONFLICTS WITH THIS COURT’S

PRECEDENT AND SPLITS WITH

OTHER CIRCUITS ........................................ 20

The Decision Below Conflicts

With Walden, Calder, And This

Court’s

Broader

PersonalJurisdiction Case Law ............................ 21

The Circuits Are Divided Over

How To Interpret Calder In Light

Of Walden ............................................... 27

III. THE NINTH CIRCUIT’S VERSION

OF “ARRANGER” LIABILITY

CONFLICTS WITH CERCLA’S

PLAIN MEANING AND WITH THIS

COURT’S AND OTHER CIRCUITS’

CASE LAW ..................................................... 29

The Ninth Circuit’s Interpretation of Arranger Liability Is

Wrong And In Tension With This

Court’s Case Law.................................... 30

The Ninth Circuit’s ArrangerLiability Ruling Conflicts With

The First Circuit And Is Inconsistent With Other Circuits’

Treatment Of Arranger Liability........... 34

IV. THE THREE QUESTIONS

PRESENTED ARE IMPORTANT,

AND THIS CASE IS A GOOD

VEHICLE TO ANSWER THEM ALL............ 36

vii

TABLE OF CONTENTS—Continued

Page

CONCLUSION .......................................................... 38

APPENDIX

APPENDIX A—Ninth Circuit’s Opinion

(Sept. 14, 2018) ............................................... 1a

APPENDIX B—Ninth Circuit’s Order

Denying Rehearing and Rehearing En

Banc (Dec. 4, 2018) ....................................... 58a

APPENDIX C— Ninth Circuit’s Opinion

(July 3, 2006) ................................................ 60a

APPENDIX D—District Court’s Findings of

Fact and Conclusions of Law (Dec. 14,

2012).............................................................. 93a

APPENDIX E—District Court’s Phase II

Findings of Fact and Conclusions of

Law (Aug. 12, 2016).................................... 132a

APPENDIX F—District Court’s Order Directing Entry of Final Judgment Pursuant to Fed. R. Civ. P. 54(b), inter

alia (Aug. 12, 2016) .................................... 171a

APPENDIX G—District Court’s Order

Denying Motion to Dismiss (Nov. 8,

2004)............................................................ 179a

viii

TABLE OF AUTHORITIES

Page

CASES:

Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008) ...........................................32

American Cyanamid Co. v. Capuano,

381 F.3d 6 (1st Cir. 2004)............................34, 35

Andy’s Music, Inc. v. Andy’s Music, Inc.,

607 F. Supp. 2d 1281 (S.D. Ala. 2009)..............29

ARC Ecology v. U.S. Dep’t of Air Force,

411 F.3d 1092 (9th Cir. 2005) ...........................30

Ariel Invs., LLC v. Ariel Capital Advisors,

LLC,

881 F.3d 520 (7th Cir. 2018) ..................... passim

Asahi Metal Indus. Co. v. Superior Court,

480 U.S. 102 (1987) ...........................................25

Aviation One of Fla., Inc. v. Airborne Ins.

Consultants (PTY), Ltd.,

722 F. App’x 870 (11th Cir. 2018)...............28, 29

Brayton Purcell LLP v. Recordon & Recordon,

606 F.3d 1124 (9th Cir. 2010) .....................24, 25

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) ...........................................25

Burlington Northern & Santa Fe Ry. Co. v.

United States,

556 U.S. 599 (2009) ................................... passim

Calder v. Jones,

465 U.S. 783 (1984) ................................... passim

Chevron Mining Inc. v. United States,

863 F.3d 1261 (10th Cir. 2017) .........................35

TABLE OF AUTHORITIES—Continued

Page

CollegeSource, Inc. v. AcademyOne, Inc.,

653 F.3d 1066 (9th Cir. 2011) ...........................22

Commander Oil Corp. v. Barlo Equip. Corp.,

215 F.3d 321 (2d Cir. 2000)...............................36

Daimler AG v. Bauman,

571 U.S. 117 (2014) ...........................................37

Edwards v. D.T.E. Energy Co.,

[2008] O.J. No. 4433 (Can. Ont. Super.

Ct. J.) .................................................................19

EEOC v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) .....................................12, 13

Fiore v. Walden,

688 F.3d 558 (9th Cir. 2011) .............................24

Goldstein v. Berkowitz,

No. 10-4644 (FLW), 2011 WL 1043235

(D.N.J. Mar. 18, 2011).......................................29

Grunenthal GmbH v. Hotz,

712 F.2d 421 (9th Cir. 1983) .............................12

Hamilton-Brown Shoe v. Wolf Bros. & Co.,

240 U.S. 251 (1916) ...........................................12

Isaacs v. Arizona Bd. of Regents,

608 F. App’x 70 (3d Cir. 2015) ..........................29

Licciardello v. Lovelady,

544 F.3d 1280 (11th Cir. 2008) ...................28, 29

Louis Vuitton Malletier, S.A. v. Mosseri,

736 F.3d 1339 (11th Cir. 2013) .........................29

TABLE OF AUTHORITIES—Continued

Page

Major League Baseball Players Ass’n v.

Garvey,

532 U.S. 504 (2001) ...........................................11

Marten v. Godwin,

499 F.3d 290 (3d Cir. 2007)...............................29

Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010) ................................... passim

Morton Int’l, Inc. v. A.E. Staley Mfg. Co.,

343 F.3d 669 (3d Cir. 2003)...............................36

Old Republic Ins. Co. v. Continental Motors,

Inc.,

877 F.3d 895 (10th Cir. 2017) ...........................29

RJR Nabisco, Inc. v. European Community,

136 S. Ct. 2090 (2016) ............................... passim

Sangha v. Navig8 ShipManagement Private

Ltd.,

882 F.3d 96 (5th Cir. 2018) ...................21, 24, 28

SEC v. Berger,

322 F.3d 187 (2d Cir. 2003)...............................12

Teck Cominco Metals, Ltd. v. Pakootas,

552 U.S. 1095 (2008) ...........................................9

Toshiba Corp. v. Automotive Indus. Pension

Tr. Fund,

__ S. Ct. __, 2019 WL 177587

(Jan. 14, 2019) ...................................................20

United States v. Bailey,

444 U.S. 394 (1980) .....................................25, 26

TABLE OF AUTHORITIES—Continued

Page

United States v. Cello-Foil Prods., Inc.,

100 F.3d 1227 (6th Cir. 1996) ...........................35

United States v. General Elec. Co.,

670 F.3d 377 (1st Cir. 2012)..............................34

United States v. Vertac Chem. Corp.,

46 F.3d 803 (8th Cir. 1995) ...............................36

Walden v. Fiore,

571 U.S. 277 (2014) ................................... passim

Waldman v. Palestine Liberation Org.,

835 F.3d 317 (2d Cir. 2016)............. 21, 26, 27, 28

STATUTES:

28 U.S.C. § 1254(1) ..................................................2

Comprehensive Environmental Response,

Compensation, and Liability Act

(CERCLA) .................................................. passim

42 U.S.C. § 9607(a)........................................2, 30

42 U.S.C. § 9607(a)(3) ............................... passim

42 U.S.C. § 9607(a)(4) .......................................15

TREATIES:

Agreement on Great Lakes Water Quality,

Can.-U.S., Nov. 22, 1978, 30 U.S.T. 1383.........18

North American Free Trade Agreement,

Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M.

289 (pts. 1-3); 32 I.L.M. 605 (pts. 4-8) ..............18

Treaty Between the United States and

Great Britain Relating to Boundary

xii

TABLE OF AUTHORITIES—Continued

Page

Waters Between the United States and

Canada, Gr. Brit.-U.S., Jan. 11, 1909,

36 Stat. 2448......................................................17

RULE:

Fed. R. Civ. P. 54(b)..........................................10, 37

REGULATIONS:

40 C.F.R. § 300.430(d)(1)..........................................6

40 C.F.R. § 300.430(e)(1) ..........................................6

OTHER AUTHORITIES:

Jonathan Remy Nash, The Curious Legal

Landscape of the Extraterritoriality of

U.S. Environmental Laws,

50 Va. J. Int’l L. 997 (2010)...............................19

Dylan Neild, Edwards v. DTE: Case

Closed, Lake Ontario Waterkeeper

(April 13, 2010),

http://www.waterkeeper.ca/blog/17193 ............19

Austen L. Parrish, Trail Smelter Deja Vu:

Extraterritoriality, International

Environmental Law, and the Search

for Solutions to Canadian-U.S.

Transboundary Water Pollution

Disputes, 85 B.U. L. Rev. 363 (2005) ..........17, 18

IN THE

Supreme Court of the United States

_________

No. 18_________

TECK METALS LTD., formerly known as Teck

Cominco Metals, Ltd.,

Petitioner,

THE CONFEDERATED TRIBES OF THE COLVILLE

RESERVATION, et al.,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

Teck Metals Ltd. (Teck) respectfully petitions for a

writ of certiorari to review the judgment of the Ninth

Circuit in this case.

OPINIONS BELOW

The Ninth Circuit’s relevant opinions (Pet. App. 1a57a and Pet. App. 60a-92a) are reported at 905 F.3d

565 and 452 F.3d 1066, respectively. The District

Court’s relevant opinions (Pet. App. 93a-131a, Pet.

App. 132a-170a, and Pet. App. 179a-216a) are unreported, but are available at 2012 WL 6546088, 2016

WL 4258929, and 2004 WL 2578982, respectively.

The District Court’s entry of partial final judgment

(Pet. App. 171a-178a) is unreported. The Ninth

(1)

Circuit’s order denying panel rehearing and rehearing en banc (Pet. App. 58a-59a) is unreported.

JURISDICTION

The Ninth Circuit entered judgment on September

14, 2018. Pet. App. 1a. Teck timely petitioned for

rehearing, which was denied on December 4, 2018.

Id. at 58a-60a. This Court’s jurisdiction rests on 28

U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. § 9607(a), provides in relevant

part:

Notwithstanding any other provision or rule of

law, and subject only to the defenses set forth

in subsection (b) of this section—

***

(3) any person who by contract, agreement,

or otherwise arranged for disposal or

treatment, or arranged with a transporter

for transport for disposal or treatment, of

hazardous substances owned or possessed

by such person, by any other party or entity, at any facility or incineration vessel

owned or operated by another party or entity and containing such hazardous substances * * * shall be liable for—

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe

not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person

consistent with the national contingency

plan;

of, or loss of natural resources, including the reasonable costs of assessing

such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment

or health effects study carried out under

section 9604(i) of this title.

INTRODUCTION

Teck is a Canadian company. It operates only in

Canada. It owns a century-old smelter that over the

decades has been the subject of successful diplomatic

efforts to resolve concerns about air emissions affecting the United States. When the United States

became concerned in the early 2000s about discharges from the smelter that had flowed down the Columbia River and ultimately settled in Washington

State, it reached a negotiated settlement with Teck

with the support of the Canadian government.

Teck’s American affiliate has cooperated with the

U.S. Environmental Protection Agency (EPA) under

that agreement for nearly 14 years to study the

environmental impact of the smelter’s past discharges and determine what, if any, response is warranted.

Respondents here—an Indian Tribe whose Reservation abuts a portion of the Columbia River, and

Washington State—nevertheless pursued a private

CERCLA lawsuit against Teck in Washington federal

court. In a pair of decisions spanning almost 13

years, the Ninth Circuit ruled that the District Court

had not impermissibly applied CERCLA extraterritorially in holding Teck liable for Canadian discharges;

that the District Court could exercise personal jurisdiction over Teck for the company’s Canadian conduct; and that CERCLA arranger liability did not

require Teck to arrange with anybody else,

CERCLA’s text notwithstanding.

All three holdings are wrong. And more important

for this petition, all three are the subjects of entrenched circuit splits, significant international

tension, or both.

First, the Ninth Circuit’s extraterritoriality ruling

cannot be squared with this Court’s recent decisions

holding that courts must assume a statute does not

apply extraterritorially unless a contrary intent

appears in the text, see Morrison v. National Australia Bank Ltd., 561 U.S. 247, 265 (2010), and that a

court must look at where the targeted conduct takes

place to determine whether a statute is being applied

extraterritorially, see RJR Nabisco, Inc. v. European

Community, 136 S. Ct. 2090, 2101 (2016). CERCLA

does not evince any intent to apply extraterritorially,

and Teck’s relevant conduct took place in Canada.

Failing to correct the Ninth Circuit leaves in place a

dangerous precedent—one that foreign sovereigns

may apply to U.S. firms. And the harms from the

Ninth Circuit’s rulings will be difficult to reverse if,

as can be expected, they undermine the current

international norm favoring diplomatic resolution of

cross-border environmental disputes.

Second, by relying almost exclusively on Calder v.

Jones, 465 U.S. 783 (1984), for its personaljurisdiction analysis, the Ninth Circuit has (yet

again) set itself apart on a pivotal personaljurisdiction issue, this time splitting with three other

circuits that have interpreted Walden v. Fiore, 571

U.S. 277 (2014), to significantly cabin Calder. The

Ninth Circuit held that jurisdiction over Teck was

proper in Washington State because the company

knew its discharges in Canada would ultimately end

up there. But Walden holds that foreseeable harm in

the forum is not sufficient to create personal jurisdiction over an out-of-state defendant, which is why the

Second, Fifth, and Seventh Circuits read Walden to

foreclose the argument the Ninth Circuit accepted.

Third, to effectuate its extraterritorial application,

the Ninth Circuit literally rewrote CERCLA by

modifying the statute’s express requirement that

arranger liability requires the defendant to have

arranged with another to dispose of or treat hazardous substances. The Ninth Circuit’s analysis squarely conflicts with the First Circuit’s. And it is incongruous with this Court’s explanations of arranger

liability, as well as those of other courts of appeals.

The Court should grant the petition and reverse.

STATEMENT

A. Factual Background

1. Teck, a Canadian company, owns and operates a

metals smelter in Trail, British Columbia. Pet. App.

4a, 63a, 96a. Located along the banks of the Columbia River, north of the United States-Canada border,

the Trail Smelter heats lead and zinc ore to a molten

state to separate impurities from the raw ore. Id. at

4a.

The Trail Smelter has operated since 1896. Id. at

96a. Before modern environmental laws, smelters in

both the United States and Canada commonly discharged directly into rivers without significant

controls, and at least five smelters discharged slag

into the Columbia River. C.A. ER 784. The Trail

Smelter was no different; it discharged “slag”—a

byproduct formed by the impurities separated from

the ore during smelting—into the Columbia River

until British Columbia enacted regulations limiting

such discharges in 1995. Id. at 4a, 63a, 96a. By then,

however, slag deposits had built up in portions of the

Upper Columbia River on the Washington side of the

border. Id. at 5a, 63a.

2. In 2003, EPA issued an administrative order

under CERCLA commanding Teck to conduct a

remedial investigation and feasibility study1 of the

Upper Columbia River. Id. at 5a, 64a-65a & n.8,

135a. Teck questioned whether it was subject to

CERCLA in the first place, and EPA opted not to

enforce its order while it negotiated with the company. Id. at 5a, 65a, 135a.

With the support of the Canadian government,

EPA and Teck ultimately entered into a nonCERCLA settlement agreement, under which Teck

agreed to fund, through its American affiliate, a

A CERCLA remedial investigation “collect[s] data necessary to

adequately characterize the site for the purpose of developing

and evaluating effective remedial alternatives.” 40 C.F.R.

§ 300.430(d)(1). A CERCLA feasibility study builds on the

remedial investigation “to ensure that appropriate remedial

alternatives are developed and evaluated such that relevant

information concerning the remedial action options can be

presented to a decision-maker and an appropriate remedy

selected.” Id. § 300.430(e)(1).

remedial investigation and feasibility study at the

site. Id. at 6a, 136a-137a. EPA then withdrew its

administrative order. Id. The Canadian government

has described the settlement as “the culmination of

years of concerted diplomatic efforts by Canada and

the United States.” Br. of the Government of Canada as Amicus Curiae in Support of Petitioner 3 n.3,

Teck Cominco Metals, Ltd. v. Pakootas, No. 06-1188

(U.S. May 2, 2007).

3. The remedial investigation and feasibility study

has cost more than $90 million to date. Both Washington State and the respondent Tribes are participants in the study, and their study-related expenses

have been paid out of those funds. See C.A. ER 250252. The study remains ongoing, but results so far

have been encouraging. See id. at 246-247. In the

meantime, Teck’s American affiliate has voluntarily

funded some United States soil-remediation efforts.

See id. at 248.

B. Procedural History

1. While negotiations between EPA and Teck were

ongoing, but before the settlement was reached, two

individual members of the Tribes tried to enforce

EPA’s administrative order through a CERCLA

citizen suit. Pet. App. 5a, 135a. They were later

joined by the Tribes and by Washington State. Id.

Teck moved to dismiss the action, arguing that the

Respondents were impermissibly attempting to apply

CERCLA extraterritorially to Canadian conduct. Pet.

App. 180a-181a. Teck also argued that “arranger”

liability under CERCLA required that Teck have

“arranged” for waste disposal with someone else. Id.

at 201a. Respondents had not alleged that Teck had

discharged waste in concert with anyone; the compa-

ny had “arranged for disposal” with itself.

201a & n.10.

Id. at

Citing “the purpose of CERCLA,” the District Court

concluded that it “expect[ed] that Congress intended”

for CERCLA to apply “regardless of the location of

the agents” responsible. Id. at 215a (citation omitted). It therefore denied Teck’s motion. Id.

2. The Ninth Circuit accepted Teck’s interlocutory

appeal and affirmed. Id. at 60a-92a. The court of

appeals concluded that the relevant “releases” under

CERCLA were the leaching of chemicals from slag

that had settled in the United States. Id. at 82a-83a.

The court reasoned that because the eventual “leaching of hazardous substances from slag * * * took

place in the United States,” Respondents’ case involved a “domestic” application of CERCLA. Id. at

83a.

The court also found Teck potentially liable as a

one-entity CERCLA arranger. CERCLA imposes

liability on:

any person who by contract, agreement, or

otherwise arranged for disposal or treatment,

or arranged with a transporter for transport

for disposal or treatment, of hazardous substances owned or possessed by such person, by

any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances.

42 U.S.C. § 9607(a)(3). Declaring that text “a quagmire,” the Ninth Circuit concluded that it “must be

given a liberal judicial interpretation . . . consistent

with CERCLA’s overwhelmingly remedial statutory

scheme.” Pet. App. 89a (ellipses in original, internal

quotation marks and citation omitted). The court

harmonized the statutory language with that intent

by editing Congress’s handiwork, removing a comma

and inserting an “or,” so that § 9607(a)(3) would

apply to arranging the disposal of “hazardous substances owned or possessed by such person [or] by

any other party or entity.” See id. at 87a, 90a-92a.

With that alteration, the phrase “by any other party

or entity” would not modify “disposal or treatment,”

but rather “owned or possessed by such person.” See

id. And under that reading, a defendant could

dispose of hazardous substances itself and still be

liable as an “arranger.” Id.

Teck petitioned this Court for a writ of certiorari

from the Ninth Circuit’s interlocutory ruling, but the

petition was denied. Teck Cominco Metals, Ltd. v.

Pakootas, 552 U.S. 1095 (2008) (mem.).

3. On remand, Respondents pursued their claims

for declarations of liability, response costs, and

natural-resource damages. Id. at 6a-7a. The District

Court trifurcated the proceedings into three phases:

(1) whether Teck was liable as a potentially responsible party under CERCLA; (2) the amount and

recoverability of Respondents’ alleged response costs;

and (3) natural-resource damages. Id. at 7a.

After trial on the first phase, the District Court

found Teck liable as an “arranger,” rejecting the

company’s argument that the court lacked personal

jurisdiction over it. Id. In the second phase, Teck

settled with the State for its alleged past response

costs, and the District Court after trial awarded the

Tribes over $8.5 million in “response costs”—namely,

the Tribes’ costs to litigate the first phase. Id. at 8a.

The District Court then entered partial final judg-

ment for the first two phases under Federal Rule of

Civil Procedure 54(b), and Teck appealed. Id.

4. Much had changed since the first appeal. Since

the Ninth Circuit last considered CERCLA’s extraterritorial application, this Court in Morrison swept

away lower courts’ methods of “divining” whether

Congress would have wanted a statute to apply

extraterritorially, replacing “judicial-speculationmade-law” with a clear rule that when the text of a

statute “gives no clear indication of an extraterritorial application, it has none.” 561 U.S. at 255, 261.

The Court also clarified that a case involving “some

domestic activity” does not make it a domestic application of the statute. Id. at 266. Then, in RJR

Nabisco, the Court elaborated that courts must

evaluate the extraterritorial reach of a statute before

deciding whether the particular application is domestic and that an application is only domestic if

“the conduct relevant to the statute’s focus occurred

in the United States.” 136 S. Ct. at 2101. But despite this seismic shift, the Ninth Circuit declined to

reconsider its prior extraterritoriality ruling, viewing

it as the “law of the case.” Pet. App. 35a n.13.

The court of appeals also concluded that the District Court had personal jurisdiction over Teck

because the company knew its pollutants were

accumulating downstream, in Washington State. Id.

at 16a-17a. The Ninth Circuit’s holding relied almost

entirely on Calder v. Jones, a 1984 case that considered the “effects” the defendants’ out-of-state activity

had inside the forum. 465 U.S. 783. But 30 years

later, in Walden v. Fiore, this Court clarified that

“[t]he proper question is not where the plaintiff

experienced a particular injury or effect but whether

the defendant’s conduct connects him to the forum in

a meaningful way.” 571 U.S. at 290. Walden further

clarified that the defendants in Calder had a sufficiently strong relationship with the forum because

their tortious conduct “actually occurred in [the

State],” id. at 288, not because their conduct was

“expressly aimed” or had an “effect” there.

5. Teck’s petition for panel rehearing and rehearing

en banc was denied. See Pet. App. 58a-59a. This

petition for certiorari followed.

REASONS FOR GRANTING THE PETITION

I. THE NINTH CIRCUIT’S

EXTRATERRITORIAL APPLICATION OF

CERCLA CONTRAVENED THIS COURT’S

PRECEDENTS AND THREATENS

INTERNATIONAL COMITY.

A. The Ninth Circuit’s Extraterritorial Application Of CERCLA Cannot Be Reconciled

With Morrison And RJR Nabisco.

1. Whether or not the Ninth Circuit’s 2006 extraterritoriality ruling was defensible at the time, it was

fatally undermined by this Court’s subsequent

opinions in Morrison and RJR Nabisco. By adhering

to its prior ruling, see Pet. App. 35a & n.13, the

Ninth Circuit has re-ignited a conflict with this

Court’s decisions.2

This Court’s prior denial of certiorari does not prevent it from

reviewing the Ninth Circuit’s earlier interlocutory extraterritoriality ruling in this petition. See Major League Baseball

Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1 (2001) (per

Morrison affirmed and clarified the presumption

that, “unless a contrary intent appears,” Congress’s

legislation “is meant to apply only within the territorial jurisdiction of the United States.” 561 U.S. at

255 (quoting EEOC v. Arabian Am. Oil Co., 499 U.S.

244, 248 (1991) (Aramco)). That presumption means

that “[w]hen a statute gives no clear indication of an

extraterritorial application, it has none.” Id.

Morrison abrogated earlier Second Circuit cases

that asked “whether it would be reasonable * * * to

apply the statute to a given situation.” Id. at 257.

The Court criticized both the Second Circuit’s “effects

test,” which asked “whether the wrongful conduct

had a substantial effect in the United States or upon

United States citizens,” and its “conduct test,” which

asked “whether the wrongful conduct occurred in the

United States.” Id. (quoting SEC v. Berger, 322 F.3d

187, 192-193 (2d Cir. 2003)). The Court explained

that those purposive tests had no “textual or even

extratextual basis.” Id. at 258. And the Court

criticized the Ninth Circuit for applying a similarly

flawed version of the presumption, which treated it

“as essentially resolving matters of policy.” Id. at

259 (citing Grunenthal GmbH v. Hotz, 712 F.2d 421,

424-425 (9th Cir. 1983)).

Morrison explained that “[r]ather than guess anew

in each case,” courts should “apply the presumption

in all cases, preserving a stable background against

which Congress can legislate with predictable effects.” Id. at 261. A statute must have a “clear

curiam); Hamilton-Brown Shoe v. Wolf Bros. & Co., 240 U.S.

251, 258 (1916).

statement” that it applies extraterritorially, and

when a statute has such a statement, “the presumption against extraterritoriality operates to limit th[e]

provision to its terms.” Id. at 265.

The Court also clarified that the fact that “some

domestic activity is involved in the case” does not

automatically make a statute’s application domestic.

Id. at 266. The extraterritoriality analysis examines

the conduct that is “the ‘focus’ of congressional

concern.” Id. (quoting Aramco, 499 U.S. at 255).

Six years later, this Court in RJR Nabisco reiterated that “[a]bsent clearly expressed congressional

intent to the contrary, federal laws will be construed

to have only domestic application.” 136 S. Ct. at

2100. “The question is not whether we think Congress would have wanted a statute to apply to foreign conduct if it had thought of the situation before

the court, but whether Congress has affirmatively

and unmistakably instructed that the statute will do

so.” Id. (internal quotation marks omitted).

RJR Nabisco further clarified the two-step inquiry

to determine whether a statute is improperly being

applied extraterritorially. At the first step, courts

“ask whether the presumption against extraterritoriality has been rebutted.” Id. at 2101. If not, at the

second step, courts “determine whether the case

involves a domestic application of the statute” by

“looking to the statute’s ‘focus.’ ” Id. “[I]f the conduct

relevant to the focus occurred in a foreign country,

then the case involves an impermissible extraterritorial application regardless of any other conduct that

occurred in U.S. territory.” Id.

2. The Ninth Circuit’s extraterritoriality ruling

flouts both Morrison and RJR Nabisco. As the

District Court below recognized, “[t]here is no dispute that CERCLA, its provisions and its ‘sparse’

legislative history, do not clearly mention the liability of individuals and corporations located in foreign

sovereign nations for contamination they cause

within the U.S.” Pet. App. 197a. Under Morrison,

CERCLA therefore only applies “within the territorial jurisdiction of the United States.” 561 U.S. at 255

(citation omitted).

Then comes RJR Nabisco’s second step: Whether

the Ninth Circuit’s imposition of CERCLA liability

on Teck “involves a domestic application of the

statute.” 136 S. Ct. at 2101. And here the Ninth

Circuit’s analysis breaks from Morrison in two

important ways.

First, the Ninth Circuit applied a “ ‘domestic effects’ exception to the presumption against extraterritorial application of United States law,” whereby a

statute’s application is not extraterritorial where the

effects of the defendant’s conduct are felt in the

United States. Pet. App. 80a. But Morrison held

that a test for extraterritoriality that evaluates

whether “the wrongful conduct had a substantial

effect in the United States or upon United States

citizens” led to “unpredictable and inconsistent”

results and rejected it. 561 U.S. at 257, 260 (citation

omitted). The Ninth Circuit’s use of a repudiated

extraterritoriality standard is reason enough to

grant review.

The Ninth Circuit pushed the “effects test” even

further. It concluded that “where a party arranged

for disposal * * * of hazardous substances is not

controlling for purposes of assessing whether

CERCLA is being applied extraterritorially.” Pet.

App. 82a. It held that CERCLA is being applied

domestically so long as the CERCLA site is “in the

United States,” regardless of where the defendant’s

conduct took place. Id. at 83a.

That reasoning contradicts RJR Nabisco’s command to evaluate whether “the conduct relevant to

the statute’s focus occurred in the United States.”

136 S. Ct. at 2101 (emphasis added). The conduct

relevant to CERCLA’s focus for arranger liability is

“arrang[ing] for disposal * * * of hazardous substances.” 42 U.S.C. § 9607(a)(3). Any arranging Teck did

took place in Canada. The Ninth Circuit’s extension

of CERCLA to Teck, then, was an extraterritorial

application unsupported by CERCLA’s text.

To be sure, CERCLA liability also requires “a release, or a threatened release * * * of a hazardous

substance.” Id. § 9607(a)(4). But the release of a

substance from inanimate slag is not Teck’s conduct.

See RJR Nabisco, 136 S. Ct. at 2101. And even if

that release were somehow relevant, the Ninth

Circuit’s imposition of CERCLA liability on Teck

would still contradict Morrison. The Morrison plaintiffs argued that their suit was not seeking to apply

the Exchange Act extraterritorially because the

defendants’ “deceptive conduct,” which was the basis

of their fraud suit, had occurred in Florida. 561 U.S.

at 266. This Court disagreed. It explained that “it is

a rare case of prohibited extraterritorial application

that lacks all contact with the territory of the United

States,” but “the presumption against extraterritorial application would be a craven watchdog indeed if

it retreated to its kennel whenever some domestic

activity is involved in the case.” Id. Just as fraud is

an element of proving liability under the Exchange

Act, so too is a release an element of proving liability

under CERCLA. Yet Morrison holds that facts

underlying one element of the claim occurring the

United States does not make a statute’s application

domestic.

In holding (and reiterating its holding) that

CERCLA was being applied “domestically” to foreign

conduct, the Ninth Circuit broke from this Court’s

precedents.

B. The Ninth Circuit’s Erroneous Extraterritoriality Ruling Will Harm The United

States’ Foreign Relations.

The Ninth Circuit’s extraterritoriality holding is

not only inconsistent with Morrison and RJR

Nabisco. It also allows unilateral private civil enforcement of American environmental law against a

foreign company’s foreign conduct, threatening the

United States’ foreign relations.

1. Under the decision below, foreign companies

whose foreign discharges end up in the United States

can be held liable under CERCLA. Pet. App. 81a83a. That imposition of liability risks precisely the

cross-border friction the presumption against extraterritoriality is meant to avoid: “[T]he international

discord that can result when U.S. law is applied to

conduct in foreign countries.” RJR Nabisco, 136 S.

Ct. at 2100.

The Ninth Circuit’s holding also risks infringing on

the sovereignty of other countries in precisely the

way that this Court has repeatedly warned against.

And the threat is more than hypothetical here. The

Canadian government has previously explained that

“[r]esolution through private litigation is both un-

necessary and, in this case, incompatible with the

basic principle of comity of nations.” Br. of the

Government of Canada as Amicus Curiae in Support

of Petitioner, Teck Cominco Metals, Ltd., supra, at 6.

British Columbia has likewise explained that Respondents’ case is “antithetical to the province’s

environmental policy” because its CERCLA analogue

is “enforced exclusively by the provincial government, not private litigation,” with “formal enforcement actions as a last resort.” Br. of Amicus Curiae

Her Majesty the Queen in Right of the Province of

British Columbia in Support of Petitioner 8, 18, Teck

Cominco Metals, Ltd., No. 06-1188 (U.S. May 2,

2007).

None of this is to say that the United States is

powerless to act against cross-border pollution. To

the contrary: The United States and Canada have

for over a century addressed the issue through

bilateral agreements.

The 1909 Boundary Waters Treaty created an International Joint Commission (IJC) to resolve any

“matters of difference” regarding the nations’ shared

navigable waters. See Treaty Between the United

States and Great Britain Relating to Boundary

Waters Between the United States and Canada art.

IX, Gr. Brit.-U.S., Jan. 11, 1909, 36 Stat. 2448, 2452.

The IJC process works. In fact, the IJC arbitrated

disputes over the Trail Smelter’s air emissions in the

late 1920s and early 1930s. That “most famous

international environmental law dispute” to this day

“remains the only decision of an international court

or tribunal that deals specifically, and on the merits,

with transfrontier pollution.” Austen L. Parrish,

Trail Smelter Deja Vu: Extraterritoriality, Interna-

tional Environmental Law, and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes, 85 B.U. L. Rev. 363, 365 (2005) (internal quotation marks and citations omitted).

Beyond the Boundary Waters Treaty, the United

States and Canada have compacted to clean up the

Great Lakes, and have, through the North American

Free Trade Agreement, agreed to environmental

cooperation and enforcement. See Agreement on

Great Lakes Water Quality, Can.-U.S., Nov. 22,

1978, 30 U.S.T. 1383; North American Free Trade

Agreement, Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M.

289 (pts. 1-3); 32 I.L.M. 605 (pts. 4-8). Such agreements are the correct way to resolve cross-border

environmental disputes.

That includes this case. The United States recognized as much when EPA reached—with Canada’s

support—a negotiated agreement with Teck and

withdrew its administrative order.

Under that

agreement, Teck and EPA have cooperated for over a

decade, with Teck’s American affiliate having spent

more than $90 million on those efforts, including

several million dollars paid to Respondents. See C.A.

ER 248-252.

But foreign firms like Teck will have little future

incentive to cooperate with the United States if

States, Tribes, or individuals can pile on with separate CERCLA suits. The United States said in 2007

that it “strongly share[d]” Canada’s preference to

resolve this dispute through negotiation. Br. of the

United States as Amicus Curiae 16, Teck Cominco

Metals, Ltd., No. 06-1188 (Nov. 20, 2007). Teck and

EPA reached just such a resolution; yet Respondents

have continued to drag Teck through this litigation

for well over a decade. This Court’s intervention is

essential to protect negotiated solutions to crossborder pollution—now and in the future.

2. The Ninth Circuit’s extraterritoriality decision

could also trigger reciprocal action against American

firms by foreign countries.

The potential for such action is real. The Ontario

Superior Court in 2008 permitted a Canadian national’s suit against Michigan-based D.T.E. Energy

to proceed on claims the company had contaminated

a border river in violation of a Canadian statute.

Edwards v. D.T.E. Energy Co., [2008] O.J. No. 4433,

para. 90 (Can. Ont. Super. Ct. J.). The case was

saved from trial only by international cooperation:

EPA and Michigan adopted stricter regulations on

mercury emissions, and the plaintiff dropped his

case. Dylan Neild, Edwards v. DTE: Case Closed,

Lake Ontario Waterkeeper, at 16:58 (April 13, 2010),

http://www.waterkeeper.ca/blog/17193. If the Ninth

Circuit’s holding remains, there will be another

Edwards; and this time, Canadian courts may apply

their own environmental laws against American

companies.

The risk of retaliation stretches worldwide. Given

increasing concern over atmospheric pollution and

greenhouse gasses, countries may be tempted to

impose extraterritorial liability on deep-pocketed

foreign companies for emissions far outside the

countries’ territorial boundaries. See, e.g., Jonathan

Remy Nash, The Curious Legal Landscape of the

Extraterritoriality of U.S. Environmental Laws, 50

Va. J. Int’l L. 997, 1013 (2010) (observing that for

“global pollutants, such as carbon dioxide and other

greenhouse gases,” “the geographic location of their

emission is irrelevant” so that a “molecule of carbon

dioxide emitted in Florida causes the same degradation as a molecule emitted in Germany, China, South

Africa, or anywhere else in the world”).

Once the norm in favor of diplomatic resolution of

cross-border pollution has eroded, this Court will be

hard-pressed to rehabilitate it after the fact.3

II. THE

NINTH

CIRCUIT’S

PERSONALJURISDICTION

HOLDING

CONFLICTS

WITH THIS COURT’S PRECEDENT AND

SPLITS WITH OTHER CIRCUITS.

The Ninth Circuit below applied Calder v. Jones,

465 U.S. 783 (1984), to hold that because Teck

“knew” or “acknowledged” its actions would impact

Washington State, personal jurisdiction existed over

Teck in Washington. Pet. App. 13a-17a. But the

court ignored Walden v. Fiore, 571 U.S. 227 (2014),

which considerably constrained Calder on the very

point for which the Ninth Circuit invoked it.

The decision below thus conflicts with this Court’s

precedent—and splits with three other circuits, to

boot. The Ninth Circuit misread Calder’s core holding; impermissibly imposed a tort-specific “effects

test”; and replaced this Court’s 2014 jurisdictional

test with the 1984 version, one where a defendant’s

The Court is also considering a petition asking whether

a plaintiff’s purchase of securities in the United States

alone surmounts the presumption against extraterritoriality. The Solicitor General has been invited to express

his views. See Toshiba Corp. v. Automotive Indus. Pension Tr. Fund, __ S. Ct. __, 2019 WL 177587 (Jan. 14,

2019) (mem.). The Court may wish to do the same here.

knowledge of in-state harm suffices. The Second,

Fifth, and Seventh Circuits have correctly interpreted Walden to “foreclose[ ]” the arguments the Ninth

Circuit accepted. Waldman v. Palestine Liberation

Org., 835 F.3d 317, 337 (2d Cir. 2016); see also Ariel

Invs., LLC v. Ariel Capital Advisors, LLC, 881 F.3d

520, 522 (7th Cir. 2018); Sangha v. Navig8 ShipManagement Private Ltd., 882 F.3d 96, 104 n.3 (5th

Cir. 2018). Relying on Walden, those circuits have

held that “[k]nowing about a potential for harm in a

particular state is not the same as acting in that

state.” Ariel Invs., 881 F.3d at 522. This Court

should resolve the conflict and limit the Ninth Circuit’s exercise of personal jurisdiction to its proper

bounds.

A. The Decision Below Conflicts With Walden,

Calder, And This Court’s Broader Personal-Jurisdiction Case Law.

1. The plaintiff in Calder sued a national magazine’s editor and one of its reporters in California,

claiming they had defamed her in an article they

wrote in Florida. 465 U.S. at 784. This Court held

that California could exercise personal jurisdiction

over the defendants because “California [was] the

focal point both of the story and of the harm suffered” and because of “the ‘effects’ of their Florida

conduct in California.” Id. at 789. Calder also

observed that, unlike defendants charged with

negligence, the defendants’ “intentional, and allegedly tortious, actions were expressly aimed at California.” Id.

In Calder’s wake, some circuits—including the

Ninth—held that Calder’s “effects test” allowed

personal jurisdiction in a forum whenever a defend-

ant’s intentional act is “targeted at a plaintiff whom

the defendant knows to be a resident of the forum

state,” and the defendant knows “harm * * * is likely

to be suffered in the forum state.” E.g., CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,

1077, 1079 (9th Cir. 2011) (citations omitted).

Then came Walden. The Court explained that although Calder spoke of the “effects” of the defendants’

conduct in the forum, Calder’s personal-jurisdiction

holding rested on the defendants’ ties to California—

not the injury of a plaintiff that resided there.

Walden, 571 U.S. at 290-291. The Court emphasized

that “[t]he proper question is not where the plaintiff

experienced a particular injury or effect but whether

the defendant’s conduct connects him to the forum in

a meaningful way.” Id. at 290. And, as a result,

where all of a defendant’s “relevant conduct” occurs

outside the forum, “the mere fact that [its] conduct

affected plaintiffs with connections to the forum

State does not suffice to authorize jurisdiction.” Id.

at 291.

Walden further clarified that because the Calder

defendants wrote the defamatory piece “for publication in California,” defendants’ libelous conduct

“actually occurred in California.” Id. at 287-288.

The particular “nature of the libel tort” was therefore

largely responsible for the “strength” of defendants’

connection to the forum. Id. The Court did not

mention “express aiming” at all, except to note that

Calder had used the phrase in rejecting the defendants’ arguments that they could not be subject to

jurisdiction because their employer chose to circulate

the magazine in California. Id. at 288 n.7.

Contrast all this with the Ninth Circuit below.

Without so much as mentioning Walden, it held that

Teck could be haled into court in Washington State

under a Calder “effects test.” Pet. App. 14a-16a.

According to the court of appeals, Teck had “expressly aimed” waste at Washington because it “knew the

Columbia River carried waste * * * downstream.” Id.

at 16a. The court likened Teck’s conduct to the

Calder defendants’, where their “actions simply

involved writing and editing an article about a

person in California, an article that the defendants

knew would be circulated and cause reputational

injury in that forum.” Id. at 15a.

That decision conflicts with Walden and Calder

thrice over. First, the Ninth Circuit misinterpreted

Calder’s core holding. The Ninth Circuit read Calder

to mean that because the defendants “wr[ote] and

edit[ed] an article about a person in California, an

article that the defendant knew would be circulated

and cause reputational injury in that forum,” California had personal jurisdiction over them. Id. But

Walden explained that a fair reading of Calder

required more. In Calder, the strength of the defendants’ connection to California “was largely a

function of the nature of a libel tort,” whereby the

“defendants’ intentional tort actually occurred in

California.” Walden, 571 U.S. at 287. Teck’s only

jurisdictionally relevant conduct here was the “discharge” of “waste into the river.” Pet. App. 16a.

That discharge occurred in Canada, and the conduct

underlying Respondents’ claims therefore did not

“actually occur[ ]” in Washington. Walden, 571 U.S.

at 287; see also Ariel Invs., 881 F.3d at 522.

Compounding its error, the Ninth Circuit focused

exclusively on the part of Calder that Walden later

pared back. Calder’s core holding is that jurisdiction

was proper because “California [was] the focal point

both of the story and of the harm suffered.” 465 U.S.

at 789. The “expressly aimed” language the Ninth

Circuit seized on responded to the defendants’ particularized argument that California could not exercise jurisdiction over employees of a company that

distributed magazines to the State. See id. at 789790. Walden relegated that analysis to a footnote

and excluded it when explaining how Calder faithfully “appl[ied]” longstanding jurisdictional “principles.”

Walden, 571 U.S. at 286-288 & n.7; see also Ariel

Invs., 881 F.3d at 522; Sangha, 882 F.3d at 103-104.

The Ninth Circuit erred by myopically focusing on

that part of Calder, rather than reading the decision

as a cohesive whole.

Second, the Ninth Circuit in Walden had applied a

tort-specific jurisdictional test to determine whether

Nevada had personal jurisdiction. See Fiore v.

Walden, 688 F.3d 558, 576 (9th Cir. 2011) (citing

Brayton Purcell LLP v. Recordon & Recordon, 606

F.3d 1124, 1128 (9th Cir. 2010) (analyzing “purposeful direction under the three-part test derived from

Calder v. Jones, commonly referred to as the Caldereffects test”) (internal citation omitted)). And this

Court reversed. It rejected the Ninth Circuit’s

approach, as well as the “substantially similar analysis” the plaintiffs had proposed. Walden, 571 U.S.

at 289 & n.8. The Court explained that “[t]he proper

question is not where the plaintiff experienced a

particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.” Id. at 290.

The Ninth Circuit below nonetheless again applied

a special “Calder-effects test,” focusing on whether

Teck “expressly aimed” its conduct at Washington.

Pet. App. 14a-16a. Indeed, it relied on the same

Ninth Circuit precedent this Court rejected in Walden. See id. at 14a (citing Brayton, 606 F.3d at

1128). And it did so without mentioning Walden’s

rejection of the “effects test” or its cabining of Calder’s “expressly aimed” language. See id. at 13a-17a.

This Court should grant the petition to reverse that

category error.

Third, the Ninth Circuit held that jurisdiction is

proper when a defendant “knew” or “acknowledged”

that some of its waste would end up in the forum

State. Id. at 16a. But a court’s exercise of personal

jurisdiction passes constitutional muster only when a

defendant has “purposefully ‘reach[ed] out beyond’

[its] State and into another.” Walden, 571 U.S. at

285 (emphasis added) (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 479-480 (1985)). For

personal jurisdiction, knowledge and purpose are not

the same thing. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987) (opinion of

O’Connor, J.) (“defendant’s awareness” that its

product will end up in the forum State does not show

it acted “purposefully” toward the forum State). As

this Court has held, “a person who causes a particular result” acts “purposefully if ‘he consciously desires that result, whatever the likelihood of that

result happening from his conduct,’ while he is said

to act knowingly if he is aware ‘that that result is

practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” United

States v. Bailey, 444 U.S. 394, 404 (1980) (citation

omitted).

Walden and Calder bear out that distinction. In

Walden, the defendant knew that the plaintiffs would

suffer harm in Nevada but did not “consciously

desire[ ]” that result. Bailey, 444 U.S. at 404 (citation omitted). Indeed, had the plaintiffs lived in New

York, the defendant would have had the exact same

connection to New York as he had to Nevada. In

Calder, by contrast, the defendants purposefully

reached out to California sources and wrote about

events that took place in California to a substantially

Californian audience. See Walden, 571 U.S. at 287

(describing those California contacts as “ample”).

Their conduct displayed a conscious desire to connect

with and cause harm specifically “in California.” Id.

at 288.

Teck fits comfortably on the Walden side of that

divide. Even under the Ninth Circuit’s view of the

facts, the company discharged slag into a Canadian

river without evincing a conscious desire that the

slag specifically end up in Washington. Just as in

Walden, if Teck’s pollutants had landed in a different

State, a different country, or in international waters,

Teck would have the exact same relationship with

those jurisdictions as it currently has with Washington. At most, then, Teck had the “mere knowledge”

that some pollutants would end up and cause harm

in Washington. Waldman, 835 F.3d at 338. That is

not enough to establish specific personal jurisdiction.

Id.; see also Ariel Invs., 881 F.3d at 522 (“Knowing

about a potential for harm in a particular state is not

the same as acting in that state * * * .”). The Ninth

Circuit’s break from Walden warrants this Court’s

intervention.

B. The Circuits Are Divided Over How To

Interpret Calder In Light Of Walden.

1. The Ninth Circuit’s analysis also departs from

that of the Second, Fifth, and Seventh Circuits.

Each of those courts has rejected the effects-based

arguments accepted by the Ninth Circuit below,

recognizing that Walden limits Calder’s previously

broad reach.

The Seventh Circuit has rejected a plaintiff’s argument that “a defendant should be subject to personal jurisdiction in any state at which it ‘aimed its

actions.’ ” Ariel Invs., 881 F.3d at 522. The Seventh

Circuit explained that the plaintiff’s “aiming” argument was “incompatible with Walden; it is exactly

what [the Ninth Circuit] had held, and not a single

Justice accepted the position.” Id. The Seventh

Circuit also rejected the plaintiff’s argument that

Calder allows for knowledge of in-state harm to

confer personal jurisdiction. Id. at 522-523. “As

Walden observed, because publication to third parties is an element of libel, the defendants’ tort [in

Calder] occurred in California.” Id. at 523. Read

through Walden’s lens, Calder simply reinforces that

“[k]nowing about a potential for harm in a particular

state is not the same as acting in that state.” Id. at

522.

The Second and Fifth Circuits have also relied on

Walden to reject arguments that a defendant’s

knowledge drives the personal-jurisdiction inquiry.

The Second Circuit held that where there is no

“purposeful connection to the forum,” it is “impermissible to speculate” on what the defendants “intended to do.” Waldman, 835 F.3d at 338. The

Second Circuit thus rejected the plaintiffs’ attempt to

invoke Calder. Id. at 340.

The “jurisdictional

inquiry in Calder focused on the relationship among

the defendant, the forum, and the litigation,” not on

the foreseen effects of defendant’s out-of-state conduct. Id. (citing Walden, 571 U.S. at 287). The Fifth

Circuit adopted the same interpretation of Walden—

simply being “aware” that the effects of one’s tortious

conduct would be “felt in [the forum]” does not establish personal jurisdiction. Sangha, 882 F.3d at 104

n.3. (citing Walden, 571 U.S. at 289-290).

The division between the Ninth Circuit on the one

hand and the Seventh, Second, and Fifth Circuits on

the other is outcome-determinative.

Under the

Ninth Circuit’s test, it was sufficient that Teck

supposedly knew that its act of discharging slag in

Canada would have downstream effects in Washington. In these other circuits, however, Respondents’

claims would have been dismissed.

3. If there is anything left of Calder’s ancillary

“expressly aimed” framework at all, it is limited to

“defendants’ intentional tort.” Walden, 571 U.S. at

288 & n.7. CERCLA is a strict-liability statute, see

Burlington Northern & Santa Fe Ry. Co. v. United

States, 556 U.S. 599, 608 (2009), not an intentional

tort. In applying an “[e]xpress aiming” test to Teck

(Pet. App. 15a-16a), the Ninth Circuit created a

second, independent split with the Eleventh and

Third Circuits.

The Eleventh Circuit considers “express aiming”

only when the plaintiff has brought an “intentional

tort” claim—not just claims that are deemed akin to

torts. Aviation One of Fla., Inc. v. Airborne Ins.

Consultants (PTY), Ltd., 722 F. App’x 870, 882 (11th

Cir. 2018) (per curiam); see also Licciardello v.

Lovelady, 544 F.3d 1280, 1287-88 (11th Cir. 2008).

Indeed, in the Eleventh Circuit, express aiming does

not apply to torts based on negligence. Louis Vuitton

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1357 n.11

(11th Cir. 2013) (cited by Aviation One, 722 F. App’x

at 882). The Third Circuit, too, has held that an

intentional-tort claim is required to trigger a Calder

analysis. Marten v. Godwin, 499 F.3d 290, 297 (3d

Cir. 2007); see also Isaacs v. Arizona Bd. of Regents,

608 F. App’x 70, 74 (3d Cir. 2015) (per curiam). In

keeping with that analysis, the Tenth Circuit has

“question[ed]” whether, in view of Walden, Calder’s

analysis “extend[s] beyond the defamation context”

at all. Old Republic Ins. Co. v. Continental Motors,

Inc., 877 F.3d 895, 916 n.34 (10th Cir. 2017).

This difference is (again) dispositive. Respondents’

claims would have been dismissed for lack of jurisdiction in the Eleventh and Third Circuits. See, e.g.,

Andy’s Music, Inc. v. Andy’s Music, Inc., 607 F. Supp.

2d 1281, 1283-84 (S.D. Ala. 2009) (requiring in-state

contacts beyond the activity giving rise to the suit

because “this case is not an ‘intentional tort’ case”);

see also Goldstein v. Berkowitz, No. 10-4644 (FLW),

2011 WL 1043235, at *8 (D.N.J. Mar. 18, 2011). For

this reason, too, the Ninth Circuit’s decision is an

outlier that this Court should correct.

III. THE NINTH CIRCUIT’S VERSION OF

“ARRANGER” LIABILITY CONFLICTS

WITH CERCLA’S PLAIN MEANING AND

WITH THIS COURT’S AND OTHER

CIRCUITS’ CASE LAW.

CERCLA places liability on four types of parties:

owners or operators of a CERCLA facility; past

owners or operators; those who arranged for disposal

of hazardous substances; and those who transported

and released hazardous substances. See 42 U.S.C.

§ 9607(a).

Because CERCLA facilities must be

within U.S. jurisdiction, see ARC Ecology v. U.S.

Dep’t of Air Force, 411 F.3d 1092, 1098-1001 (9th Cir.

2005), Teck—a Canadian company operating only in

Canada—could not be liable as an owner or operator.

And there were no allegations that Teck accepted

hazardous substances for transport to the United

States.

That left arranger liability. CERCLA’s arranger

provision covers any person who “arranged for disposal” of waste, “by contract, agreement, or otherwise,” with some “other party or entity.” 42 U.S.C.

§ 9607(a)(3). In holding that Teck could be liable as

an arranger for arranging with itself, the Ninth

Circuit placed itself on the wrong side of CERCLA’s

text, on the wrong side of this Court’s interpretations

of arranger liability under CERCLA, and on the

wrong side of a circuit split.

A. The Ninth Circuit’s Interpretation of Arranger Liability Is Wrong And In Tension

With This Court’s Case Law.

1. CERCLA provides that an arranger is:

any person who by contract, agreement, or

otherwise arranged for disposal or treatment,

or arranged with a transporter for transport

for disposal or treatment, of hazardous substances owned or possessed by such person, by

any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances.

42 U.S.C. § 9607(a)(3).

The Ninth Circuit opined that the text was “by no

means clear to what the phrase ‘by any other party

or entity’ refers.” Pet. App. 86a. So, faced with what

it considered ambiguity, the Ninth Circuit applied “a

liberal judicial interpretation consistent with

CERCLA’s overwhelmingly remedial statutory

scheme.” Id. at 89a (ellipses and citation omitted).4

To effectuate that “liberal judicial interpretation,”

the court found it necessary to “read[ ] the word ‘or’

into the provision, so that the relevant language

would read ‘any person who . . . arranged for disposal

or treatment . . . of hazardous substances owned or

possessed by such person [or] by any other party or

entity.” Id. at 87a (alterations in original, emphasis

omitted). The court concluded after editing the

statute that “one may be liable under [CERCLA] if

they arrange for disposal of their own waste or

someone else’s waste, and that the arranger element

can be met when disposal is not arranged ‘by any

other party or entity.’ ” Id. at 91a-92a.

The Ninth Circuit was motivated by a policy concern

that a textually faithful interpretation of the statute

“would create a gap in the CERCLA liability regime by

allowing a generator of hazardous substances potentially

to avoid liability by disposing of wastes without involving

a transporter as an intermediary.” Pet. App. 88a. That

rationale underscores the Ninth Circuit’s misguided

extraterritoriality analysis. See supra pp. 13-16. The

potential “gap”—which is only likely to exist when foreign

conduct is involved, because otherwise the defendant

would likely be an owner or transporter—underscores

CERCLA’s domestic focus.

But a court is “not at liberty to rewrite the statute

to reflect a meaning [it] deem[s] more desirable.” Ali

v. Federal Bureau of Prisons, 552 U.S. 214, 228

(2008). Nor was it necessary to do so, because the

text, while bulky, is clear. Parsing the sentence

without adding or removing any words, the who

covered is (1) “any person who by contract, agreement, or otherwise arranged for disposal or treatment, or” (2) “arranged with a transporter for

transport for disposal or treatment.” 42 U.S.C.

§ 9607(a)(3). The what covered is disposal or treatment “of hazardous substances owned or possessed

by such person.” Id. The how—by whom is the

disposal or treatment to be done?—covered is “by any

other party or entity.” Id. (emphasis added). And

finally, the where of the disposal or treatment covered is “at any facility or incineration vessel owned

or operated by another party or entity and containing such hazardous substances.” Id. The phrases

modifying “disposal or treatment” may make the

sentence long, but judges are no more entitled to

revise long sentences than they are short ones.

Read together, this language applies to persons

who arrange “by contract” or by “agreement[ ] or

otherwise” or “with a transporter.” Id. These transactional phrases all indicate that another party must

be involved. One cannot contract with oneself.

2. The Ninth Circuit’s arranger-liability ruling is

also undermined by this Court’s subsequent opinion

in Burlington Northern, which assumed that arranger liability requires another party.

Burlington

Northern held that an alleged arranger—who had

transferred the hazardous substances to another

party—could not be liable simply because it knew

there would be accidental, unintended spills along

the way. 556 U.S. at 612-613.

The Court elaborated on arranger liability in reaching that conclusion. The Court explained that “[i]t is

plain from the language of the statute that [arranger] liability would attach * * * if an entity were to

enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous

substance.” Id. at 609-610 (emphasis added). “It is

similarly clear that an entity could not be held liable

as an arranger merely for selling a new and useful

product * * * .” Id. at 610. “[W]hether an entity is

an arranger requires a fact-intensive inquiry that

looks beyond the parties’ characterization of the

transaction * * * .”

Id.

All these hypotheticals

assume a transaction between two parties.

Burlington Northern also assumes that the arranging party in fact owns or possesses the hazardous

substance. See id. at 610-612. Under the Ninth

Circuit’s revision, by contrast, arranger liability

applies to “any person who . . . arranged for disposal

or treatment . . . of hazardous substances owned or

possessed by such person [or] by any other party or

entity.” Pet. App. 87a (ellipses in original, emphasis

altered). Thus, anybody may own or possess the

substances—not just the arranger—for liability to

apply. That reading’s inconsistency with Burlington

Northern further undercuts the Ninth Circuit’s

construction.

B. The Ninth Circuit’s Arranger-Liability Ruling Conflicts With The First Circuit And Is

Inconsistent With Other Circuits’ Treatment Of Arranger Liability.

1. The First Circuit has refused to blue-pencil the

statute as the Ninth Circuit did. See American

Cyanamid Co. v. Capuano, 381 F.3d 6, 23-24 (1st Cir.

2004). It read “by any other party or entity” to

modify “the words ‘disposal or treatment,’ which

would make the sentence read ‘any person who . . .

arranged for disposal or treatment . . . by any other

party or entity.’ ” Id. at 24 (alterations original). As

the court explained, “[t]he sentence structure of

§ 9607(a)(3) makes it clear that” its “interpretation is

the correct one.” Id. “The clause ‘by any other party

or entity’ clarifies that, for arranger liability to

attach, the disposal or treatment must be performed

by another party or entity * * * .” Id. In the First

Circuit, Respondents’ claims against Teck would

have been dismissed long ago.

2. The split continues to this day. Eight years after

American Cyanamid and six years after the Ninth

Circuit’s initial arranger holding, the First Circuit

explained that “arranger liability was intended to

deter and, if necessary, to sanction parties seeking to

evade liability by ‘contracting away’ responsibility.”

United States v. General Elec. Co., 670 F.3d 377, 382

(1st Cir. 2012). The court explained that the paradigmatic case of arranger liability is “if an entity

were to enter into a transaction for the sole purpose

of discarding a used and no longer useful hazardous

substance.” Id. (quoting Burlington Northern, 556

U.S. at 610). “At the other end of the liability spectrum, an entity that sells a useful product which is

later disposed of in an improper manner without the

seller’s knowledge would not be liable as an arranger

under CERCLA.” Id. at 382-383.

Notice what both examples have in common: The

alleged arranger contracted with another person,

and that person disposed of the hazardous substance.

The First Circuit has thus internalized the plainlanguage interpretation from American Cyanamid.

And in so doing, it has perpetuated a split requiring

this Court’s resolution.

3. No other circuit has answered the precise question of whether arranger liability requires that the

defendant arrange with some “other party or entity.”

But the Sixth Circuit accords with Burlington Northern and the First Circuit in assuming that arranger

liability involves some kind of transaction. It explained that “the requisite inquiry” for arranger

liability “is whether the party intended to enter into

a transaction that included an ‘arrangement for’ the

disposal of hazardous substances.” United States v.

Cello-Foil Prods., Inc., 100 F.3d 1227, 1231 (6th Cir.

1996).

And several circuits have adopted a requirement of

ownership or possession that is inconsistent with the

Ninth Circuit’s tortured reading of arranger liability.

The Tenth Circuit, for instance, has held that

“[a]rranger liability under CERCLA applies only to a

person who arranges for disposal ‘of hazardous

substances owned or possessed by such person.’ ”

Chevron Mining Inc. v. United States, 863 F.3d 1261,

1281 (10th Cir. 2017) (emphasis in original and

citation omitted). The Third Circuit likewise has

held that “proof of ownership, or at least possession,

of the hazardous substance is required by the plain

language of the statute.” Morton Int’l, Inc. v. A.E.

Staley Mfg. Co., 343 F.3d 669, 678 (3d Cir. 2003).

And the Eighth Circuit has held that arranger

liability “requires, among other things, that the

hazardous substances be ‘owned or possessed by’ the

person who arranged for the disposal.” United States

v. Vertac Chem. Corp., 46 F.3d 803, 810 (8th Cir.

1995) (citation omitted). All of these statements,

however, make no sense under the Ninth Circuit’s

revised edition of the statute.

The Court should grant the petition to bring the

Ninth Circuit into line with its sister circuits.

IV.THE THREE QUESTIONS PRESENTED

ARE IMPORTANT, AND THIS CASE IS A

GOOD VEHICLE TO ANSWER THEM ALL.

It is rare to find a case with two well-developed

questions suitable for certiorari. Rarer still to find

three. And yet all three questions presented here are

compelling candidates for review, and this case is a

good vehicle to resolve them.

1. CERCLA is both a strict-liability and an in terrorem statute; it can impose enormous liability. See

Burlington Northern, 556 U.S. at 608; Commander

Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 330

(2d Cir. 2000) (noting potential “massive environmental liability” under CERCLA). In a legal area of

such blunt impact, defendants should know whether

the statute has extraterritorial effect, and when they

may be found liable. And as explained, extraterritorial application of CERCLA risks undermining

efforts at diplomatic resolution of cross-border issues

and triggering retaliation from other Nations. See

supra pp. 16-20.

The personal-jurisdiction question, for its part, has

ramifications not only for CERCLA defendants, but

for any defendants whose activities result in incidental effects within the Ninth Circuit. Just as it

was critical for this Court to (unanimously) reverse

the Ninth Circuit’s loose exercise of personal jurisdiction in both Walden and in Daimler AG v. Bauman, 571 U.S. 117 (2014), so too should it bring the

Ninth Circuit into line with its sister circuits in

applying Walden.

2. For the two questions implicating circuit splits,

the split is dispositive. If this suit were brought in a

district court within any of five other circuits, Teck

would not be subject to personal jurisdiction. See

supra pp. 27-29. And if Teck’s smelter were near the

Maine-New Brunswick border and not the Washington-British Columbia border, it would have no

CERCLA arranger liability. See supra pp. 34-35.

3. This case is also an excellent vehicle to answer

each of the three questions presented. Each is

squarely presented, and each would entirely resolve

this case if decided in Teck’s favor. And because

there is a final judgment against Teck under Rule

54(b), the case is ripe for review. Pet. App. 2a, 13a.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KEVIN M. FONG

PILLSBURY WINTHROP SHAW

PITTMAN LLP

Four Embarcadero Center

San Francisco, CA 94111

(415) 983-1000

THOMAS A. CAMPBELL

AMANDA G. HALTER

CHRISTOPHER J. MCNEVIN

CATHERINE E. STETSON

Counsel of Record

SEAN MAROTTA

MATTHEW J. HIGGINS

BENJAMIN A. FIELD

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

cate.stetson@hoganlovells.com

PILLSBURY WINTHROP SHAW

PITTMAN LLP

2 Houston Center

909 Fannin, Suite 2000

Houston, TX 77010

(713) 276-7600

Counsel for Petitioner

MARCH 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.