Amicus Curiae Brief — Teck Metals Ltd., fka Teck Cominco Metals, Ltd., Petitioner v. The Confederated Tribes of the Colville Reservation, et al.

No. 18-1160

In the

Supreme Court of the United States

Teck Metals Ltd., fka Teck

Cominco Metals, Ltd.,

Petitioner,

v.

The Confederated Tribes of the

Colville Reservation, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF FOR AMICUS CURIAE THE GOVERNMENT

OF CANADA IN SUPPORT OF PETITIONER

Malcolm Seymour

Counsel of Record

Garvey Schubert Barer, P.C.

100 Wall Street, 20th Floor

New York, New York 10005

(212) 431-8700

mseymour@gsblaw.com

Counsel for Amicus Curiae

287831

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

THE INTEREST OF AMICUS CURIAE THE

GOVERNMENT OF CANADA . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

T HE N I N T H CIRC U I T FAILED

T O RECO N CILE CERCLA ’ S

AMBIGUITIES WITH THE UNITED

STATES’ INTERNATIONAL LEGAL

OBLIGATIONS A ND CUSTOM OF

RESOLVI NG T RA NSBOU N DARY

ENVIRONMENTAL ISSUES THROUGH

BILATERAL PROCEDURES . . . . . . . . . . . . . . 9

I.

A. Statutory Ambiguities Should Be

Resolved, W henever Possible, in

Accordance with the United States’

International Legal Obligations . . . . . . . . . . 9

ii

Table of Contents

Page

B. T h e N i n t h C i r c u i t E r r e d b y

Interpreting CERCLA’s Ambiguities

without Regard to the United States’

Inter national Legal Obligations

and Custom of Addressing CrossBorder Pollution Claims through

Bilateral Cooperation . . . . . . . . . . . . . . . . . 12

II. T HE N I N T H CIRC U I T ’ S

EXTRATERRITORIAL APPLICATION

OF CERCLA CO N T RAVE N ES

P RI N CI P LES OF CO M I T Y ,

ABSEN T A N Y I N DICAT ION OF

CONGRESSIONAL INTENT TO IMPOSE

CERCLA ON FOREIGN ACTORS . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

TABLE OF CITED AUTHORITIES

Page

Cases

EEOC v. Arabian Am. Oil Co.,

499 U.S. 244, 111 S. Ct. 1227,

113 L. Ed. 2d 274 (1991) . . . . . . . . . . . . . . . . . . . . . . . 10

F. Hoffman-La Roche Ltd. v. Empagran, S.A.,

542 U.S. 155, 124 S. Ct. 2359,

159 L. Ed. 2d 226 (2004) . . . . . . . . . . . . . . . . . . . . . . . 11

Hartford Fire Ins. Co. v. California,

509 U.S. 764, 113 S. Ct. 2891,

125 L. Ed. 2d 612 (1993) . . . . . . . . . . . . . . . . . 10, 11, 18

Hilton v. Guyot,

159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895) . . . . 19

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108, 133 S. Ct. 1659,

185 L. Ed. 2d 671 (2013) . . . . . . . . . . . . . . . . . . . . . . . 18

Monguard Investments Ltd. v. De Savoye,

[1990] 3 R.C.S. 1077 (Can. 1990) . . . . . . . . . . . . . . . . 19

Morrison v. Australia National Bank Ltd.,

561 U.S. 247, 130 S. Ct. 2869,

177 L.Ed.2d 535 (2010) . . . . . . . . . . . . . . . . . 9-10, 18, 19

Murray v. Schooner Charming Betsy,

6 U.S. 64, 2 Cranch 64, 2 L.Ed. 208 (1804) . . . . . 10, 11

iv

Cited Authorities

Page

Pakootas v. Teck Cominco Metals Ltd.,

452 F.3d 1066 (9th Cir. 2006) . . . . . . . . . . . . . . . . . 1, 12

R. v. Hape,

[2007] 2 S.C.R. 292 (Can. 2007) . . . . . . . . . . . 10, 11, 19

RJR Nabisco, Inc. v. European Community,

136 S. Ct. 2090, 195 L. Ed. 2d 476,

84 USLW 4450 (2016) . . . . . . . . . . . . . . . . . . . . . . . 9, 17

Romero v. International Terminal Operating Co.,

358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959) . 11

Societe Nationale Industrielle Aerospatiale v.

U.S. Dist. Court for Southern Dist. Of Ohio,

482 U.S. 522, 107 S. Ct. 2542,

96 L. Ed. 2d 461 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 18

Society of Composers, Authors and Music

Publishers of Canada v. Canadian Assoc. of

Internet Providers,

[2004] 2 S.C.R. 427 (Can. 2004) . . . . . . . . . . . . . . 10, 20

Tolofson v. Jensen,

[1994] 3 S.C.R. 1022 (Can. 1994) . . . . . . . . . . . . . . . . 19

Statutes and Other Authorities

42 U.S.C. § 9607(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 9607(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

Agreement Between the Government of the

United States of America and the Government

of Canada on Air Quality, Mar. 13, 1991,

U.S.-Can., T.I.A.S. No. 11783, 30 ILM 678 . . . . . . . 15

Agreement on Great Lakes Water Quality, Apr. 15,

1972, U.S.-Can., 23 U.S.T. 301 . . . . . . . . . . . . . . . . 14-15

Brief of the Government of Canada as Amicus Curiae

in Support of Petitioner, Teck Cominco Metals, Ltd.

v. Pakootas, No. 06-1188 (U.S. May 2, 2007) . . . . . . . 4

Convention for the Establishment of a Tribunal to

Decide Questions of Indemnity Arising from the

Operation of the Smelter at Trail, British Columbia,

April 15, 1935, U.S.-Can. (ratified June 5, 1935,

entered into force Aug. 3, 1935), 4 U.S.T. 4009,

T.S. No. 893, 49 Stat. 3245, 162 L.N.T.S. 73 . . . . . . . . 6

Convention for the Protection of Migratory Birds in

the United States and Canada, Aug. 16, 1916, U.S.Gr. Brit. (for Can.), 39 Stat. 1702, T.S. 628 . . . . . . . . 15

Injury to Property in the State of Washington

by Reason of the Drifting of Fumes from the

Smelter of the Consolidated Mining and Smelting

Company of Canada, in Trail, British Columbia:

Report and Recommendations of the International

Joint Commission (U.S. v. Can.), 29 R.I.A.A. 365

(International Joint Commission 1931) . . . . . . . . . . . 5

vi

Cited Authorities

Page

International Joint Commission, Docket 101R,

Can.-U.S., (Jan. 1, 1975) . . . . . . . . . . . . . . . . . . . . . . . . 5

T h o m a s W. Me r r i l l , G o l d e n R u l e s f o r

Transboundary Pollution, 46 Duke L.J. 931

(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Trail Smelter Arbitral Tribunal Decision (U.S. v.

Can.), 3 R.I.A.A. 1911, 30 A m. J. Int’l L. 182

(Trail Smelter Arb. Trib. 1938) . . . . . . . . . . 6, 7, 13, 14

Trail Smelter Arbitral Tribunal Decision (U.S. v.

Can.), 3 R.I.A.A. 1938, 35 A m. J. Int’l L. 684

(Trail Smelter Arb. Trib. 1941) . . . . . . . . . . . . . . . 6, 14

T reaty Relating to the Boundar y Waters

and Questions A rising A long the

Bou nda r y Bet ween t he Un it ed St at es

and Canada, Jan. 11, 1909, Gr. Brit. (for

Can.)-U.S, T.S. No. 548, 36 Stat. 2448 . . . . . . . . . . . . 5

U.S. Dep’t of State, Office of the Legal Adviser,

Treaty Affairs Staff, Treaties in Force: A List

of Treaties and Other International Agreements

in Force on January 1, 2018, 65 (2018) . . . . . . . . . . . . 5

U. S .- Ca na da A g reement Concer n i ng t he

Transboundary Movement of Hazardous Waste,

Oct. 28, 1986, Can.-U.S., T.I.A.S. No. 11099 . . . . . . 15

1

INTRODUCTION

The Government of Canada (“Canada”) respectfully

submits this Brief amicus curiae1 in support of Petitioner

Teck Metals Ltd. (“Petitioner”). This brief expresses

Canada’s interest in, and provides additional context

regarding, Petitioner’s first question for review. 2 Canada

maintains abiding concerns about the Ninth Circuit’s 2006

ruling (the “2006 Judgment”) 3 applying the United States’

Comprehensive Environmental Response, Compensation

and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a), to

Petitioner’s extraterritorial conduct in Canada. The

2006 Decision, relied upon by the 2018 Ninth Circuit

judgment that is the subject of the present Petition (the

“2018 Judgment”), accords insufficient weight to principles

1. No counsel for a party authored this Brief in whole or in

part. No person other than the amicus curiae made a monetary

contribution to the preparation or submission of this Brief.

Counsel for the amicus curiae has provided 10 days’ notice of

its intention to file this Brief to counsel of record for all parties.

This Brief is submitted with the consent of both Petitioner and

Respondents the Confederated Tribes of the Colville Reservation

and the State of Washington.

2. Petitioner’s remaining questions concern matters of

United States law that do not implicate Canada’s interests and

are not within the purview of this Brief.

3. Pakootas v. Teck Cominco Metals Ltd., 452 F.3d 1066

(9th Cir. 2006). While the question addressed herein was first

decided in the 2006 Judgment, this Court did not grant certiorari

to conclusively affirm or reverse that ruling. Petitioner’s brief

to the Court of Appeals below renewed Petitioner’s argument

regarding the extraterritorial application of CERCLA, and the

Ninth Circuit again addressed this argument in the decision on

appeal. See Pet. App. 35a, n. 13. Accordingly, the issue has been

properly preserved for this Court’s review.

2

of international comity and the history of successful

diplomatic efforts between the U.S. and Canada to

comprehensively resolve matters of cross-border pollution

without necessitating recourse to the courts. These

matters are of pronounced importance to Canada and its

citizens, a significant majority of whom live and work in

close proximity to the U.S. border. Canada believes that

its perspective on these matters will assist this Court in

deciding the Petition, especially in view of the implications

of the 2006 and 2018 Judgments for the United States’

foreign relations. It should be noted that Canada is

engaged in a comprehensive and ongoing reconciliation

process with Indigenous peoples in Canada. Furthermore,

Canada views environmental pollution as an important

societal concern.

THE INTEREST OF AMICUS CURIAE THE

GOVERNMENT OF CANADA

For Canada, this litigation raises concerns about

(1) the preservation and vitality of established bilateral

mechanisms and agreements between the U.S. and

Canadian governments, and (2) Canada’s sovereign

prerogative to regulate conduct within its own borders

through its own robust framework of environmental laws.

Petitioner is domiciled in Canada, in the Province of

British Columbia. Like the vast majority of Canadian

citizens and businesses, Petitioner’s facility is located

near the 5,525-mile border that separates Canada and the

United States. This is the longest land border anywhere

in the world, and its significance to Canada makes the

appropriate resolution of transboundary issues, including

transboundary pollution claims, an issue of sovereign

importance.

3

Canada and British Columbia govern Petitioner’s

conduct through a harmonized system of national and

provincial environmental laws. Canada has a strong

sovereign interest in regulating the conduct of its own

corporate citizens through this two-tiered system of

environmental laws. The coherence and efficacy of these

laws are compromised when Canadian-regulated entities

face inconsistent compliance obligations from foreign

regulatory authorities, or unpredictable liabilities from

piecemeal foreign lawsuits. To avoid a system of doubleregulation that burdens and frustrates compliance by

private actors on both sides of the U.S.-Canada border,

the two nations have historically pursued state-to-state

solutions to problems caused by transboundary pollution.

Through a combination of bilateral agreements, diplomatic

consultations and treaty-based dispute resolution

processes, Canada and the United States have worked in

tandem to prevent and repair cross-border contamination

for more than a century. These diplomatic solutions have

been used on several occasions to successfully resolve

disputes stemming from Petitioner’s smelting facility in

Trail, British Columbia (the “Trail Smelter”), including

grievances raised by private parties.

Canada has repeatedly expressed, in diplomatic

correspondence 4 and in amicus submissions to the

4. These include a series of diplomatic notes, dated January

8, 2004, July 18, 2006, March 20, 2015 and August 10, 2015

(the “Diplomatic Notes”), concerning the U.S. Environmental

Protection Agency’s (“EPA”) initially unilateral, but eventually

cooperative efforts to require Petitioner to conduct a Remedial

Investigation and Feasibility Study (“RI/FS”) under CERCLA.

See 2015 Canada Brief, Apps. B, C.

4

Ninth Circuit 5 and this Court, 6 its interest in having

disputes related to Trail Smelter addressed through

these established bilateral procedures, rather than a

unilateral judicial process. In light of this Court’s recent

pronouncements regarding the extraterritorial reach of

U.S. laws, Canada takes this opportunity to renew these

expressions of interest. Canada reiterates its strong

preference for upholding bilateral mechanisms as the

exclusive means of resolving cross-border pollution claims

related to the Trail Smelter facility.

SUMMARY OF ARGUMENT

The 2018 Judgment, by affirming the 2006 Judgment’s

holdings on the extraterritorial application of CERCLA,

flouts principles of international comity and threatens

to bypass treaties and bilateral mechanisms engineered

through decades of diplomatic labor. While acknowledging

the many ambiguities of the CERCLA statute, the Ninth

Circuit ignored principles of national and customary

international law requiring that these ambiguities

be resolved in consonance with the United States’

international legal obligations. The Ninth Circuit’s

holding threatens to undermine the diplomatic processes

that have, for more than a century, proven to be the

most effective method of dealing with environmental

contamination that crosses the U.S.-Canada border.

The United States’ international legal obligations

include a number of binding treaties that remain good

5. See generally, id., Doc. 25.

6. See generally, Brief of the Government of Canada as

Amicus Curiae in Support of Petitioner, Teck Cominco Metals,

Ltd. v. Pakootas, No. 06-1188 (U.S. May 2, 2007)

5

law and are directly applicable to the Trail Smelter

facility. Chief among these is the 1909 Boundary Waters

Treaty (“BWT”), which established an International

Joint Commission (“IJC”) to address disputes relating

to transboundary waters, including pollution between

the United States and Canada. See Treaty Relating to

the Boundary Waters and Questions Arising Along the

Boundary Between the United States and Canada, Jan.

11, 1909, Gr. Brit. (for Can.)-U.S, T.S. No. 548, 36 Stat.

2448.7 The two nations have successfully used the IJC

to resolve disputes related to Trail Smelter in the past.

Indeed, the seminal Trail Smelter arbitration, widely

regarded as the pioneering case in the field of international

transboundary pollution, began with an IJC reference.

See Injury to Property in the State of Washington by

Reason of the Drifting of Fumes from the Smelter of the

Consolidated Mining and Smelting Company of Canada,

in Trail, British Columbia: Report and Recommendations

of the International Joint Commission (U.S. v. Can.), 29

R.I.A.A. 365 (International Joint Commission 1931) (the

“IJC Report”). 8

7. See also U.S. Dep’t of State, Office of the Legal Adviser,

Treaty Affairs Staff, Treaties in Force: A List of Treaties and

Other International Agreements in Force on January 1, 2018, 65

(2018) (“Treaties in Force”) (available at https://www.state.gov/

documents/organization/282222.pdf) (last visited March 24, 2019).

The United States and Canada have productively invoked the IJC

process to address concerns of cross-border water pollution in the

past. See, e.g., International Joint Commission, Docket 101R (A

Reference to examine the potential pollution of transboundary

waters by Garrison Diversion Unit, in North Dakota), Can.-U.S.,

(Jan. 1, 1975) (available at https://www.ijc.org/en/101).

8. Available at http://legal.un.org/docs/?path=../riaa/cases/

vol_XXIX/365-371.pdf&lang=O (last visited March 24, 2019).

6

Though the Trail Smelter Arbitration focused on air

rather than water pollution, its genesis is instructive to the

questions presented for this Court’s review. In 1927, the

United States voiced concerns about air emissions from

the Trail Smelter traveling into the State of Washington,

and proposed to refer the matter to the IJC. 9 In keeping

with the two nations’ tradition of bilateral cooperation,

Canada voluntarily consented. This reference culminated

in the 1931 IJC Report, which in turn served as the

basis for a 1935 treaty commonly known as the Ottawa

Convention. See Convention for the Establishment of a

Tribunal to Decide Questions of Indemnity Arising from

the Operation of the Smelter at Trail, British Columbia,

April 15, 1935, U.S.-Can. (ratified June 5, 1935, entered

into force Aug. 3, 1935), 4 U.S.T. 4009, T.S. No. 893, 49 Stat.

3245, 162 L.N.T.S. 73 (the “Ottawa Convention”). This

treaty remains in force today.10 The Tribunal established

by the Ottawa Convention issued its famous decisions in

1938 and 1941.11

Of particular relevance is the unruly regime of

piecemeal private claims that preceded and prompted

9. See Trail Smelter Arbitral Tribunal Decision (U.S. v.

Can.), 3 R.I.A.A. 1911, 1918, 30 A m. J. Int ’l L. 182 (Trail Smelter

Arb. Trib. 1938) (the “1938 Decision”) (describing origins of Trail

Smelter Arbitration) (available at http://http://legal.un.org/riaa/

cases/vol_iii/1905-1982.pdf) (last visited March 24, 2019).

10. See Treaties in Force, p. 67.

11. See generally, 1938 Decision, 3 R.I.A.A. 1911; Trail

Smelter Arbitral Tribunal Decision (U.S. v. Can.), 3 R.I.A.A. 1938,

35 A m. J. Int ’l L. 684 (Trail Smelter Arb. Trib. 1941) (the “1941

Decision”). These decisions are discussed at greater length in

Section I(B), infra.

7

the 1927 reference of the Trail Smelter dispute to the

IJC.12 Even before the advent of national environmental

laws that enabled private parties to seek judicial redress

of environmental injuries, the two nations recognized

that a fractured system of private claims was neither

a fair nor efficient means of addressing transboundary

environmental issues. 13 Instead, both countries have

worked together to develop streamlined bilateral

processes that facilitate en masse resolution of claims

for cross-border environmental damage to land, private

property and wildlife. The 2006 Decision marks a

relapse to the disfavored system of private claims that

both governments recognized, even before passage of

modern environmental laws, to be ungovernable and

unsustainable. In resolving ambiguities in the text of

CERCLA, the Ninth Circuit failed to give due weight to

existing bilateral mechanisms and comity, both of which

embody a strong preference for non-judicial solutions to

problems of cross-border contamination.

In requesting that this Court reverse the 2018 and

2006 Judgments, Petitioner contends that the Ninth

Circuit’s ruling will harm the United States’ foreign

relations with Canada and other nations. While the close

bonds between Canada and the United States would not be

weakened by an adverse ruling in this litigation, Canada

does harbor legitimate concerns about the primacy and

12. See 1938 Decision, 3 R.I.A.A. at 1915-16 (describing

disparate claims brought against Trail Smelter’s predecessor

between 1896 and 1921), 1917-18 (describing private claims process

operated by Trail Smelter between 1925 and 1928 for paying

private settlements to downstream farmers in the United States).

13. See id. at 1918.

8

efficacy of its own environmental laws within its own

territorial borders. Canada also worries that the 2006

Judgment could establish a precedent that invites further

lawsuits by private parties on both sides of the U.S.Canada border. Such a precedent would hamper Canada

in its ability to discourage or divert copycat lawsuits

by Canadian citizens against U.S. polluters who cause

environmental harm to public welfare or private property

interests in Canada. Both of these concerns implicate the

principle of comity of nations, a principle equally observed

by the courts of Canada and the United States. The Ninth

Circuit erred by failing to accord due respect to principles

of international comity.

Canada respectfully submits that this Court should

grant the Petition for a Writ of Certiorari and reverse

the 2006 and 2018 Judgments, clearing a path for

Respondents’ claims to be resolved completely, efficiently

and finally through bilateral processes established by the

United States and Canada, or by other means consistent

with international legal norms and principles of comity.

9

ARGUMENT

I.

THE NINTH CIRCUIT FAILED TO RECONCILE

C E R C L A’ S A M B I G U I T I E S W I T H T H E

UNITED STATES’ INTERNATIONAL LEGAL

OBLIGATIONS AND CUSTOM OF RESOLVING

TRANSBOUNDARY ENVIRONMENTAL ISSUES

THROUGH BILATERAL PROCEDURES

A.

Statutory Ambiguities Should Be Resolved,

Whenever Possible, in Accordance with the

United States’ International Legal Obligations

Pet it ioner ha s f ra med it s f i rst quest ion for

review in terms of the juridical “presumption against

extraterritoriality” of the United States’ laws. Pet. Br.

11-16. This doctrine is well elucidated in Petitioner’s

Brief. Out of deference to the Court’s interpretations of

its own decisions, and mindful of Supreme Court Rule 37.1,

Canada will not comment further upon this presumption,

except to note that:

(1) as applied in this case, the presumption

would serve interests of comity and bilateral

cooperation that are significant to Canada;

(2) the Court, in reaffirming the presumption’s

application, has often given weight to expressions

of concern from foreign sovereigns. See RJR

Nabisco, Inc. v. European Community, 136

S.Ct. 2090, 2016-17, 195 L.Ed.2d 476, 84 USLW

4450 (2016) (considering the amicus curiae

advisories of “numerous foreign countries”);

Morrison v. Australia National Bank Ltd.,

10

561 U.S. 247, 269, 130 S.Ct. 2869, 177 L.Ed.2d

535 (2010) (addressing opinions of sovereign

amici curiae regarding the “probability of

incompatibility with the applicable laws of other

countries”); and

(3) Canadian courts apply similar rules and

presumptions against the extraterritorial

application of Canadian law. See R. v. Hape,

[2007] 2 S.C.R. 292, 332, ¶ 69 (Can. 2007)

(“Simply put, Canadian law, whether statutory

or constitutional, cannot be enforced in another

state’s territory without the other state’s

consent”); Society of Composers, Authors and

Music Publishers of Canada v. Canadian

Assoc. of Internet Providers, [2004] 2 S.C.R.

427, 454 (Can. 2004) (“SOCAN”) (“While the

Parliament of Canada, unlike the legislatures

of the Provinces, has the legislative competence

to enact laws having extraterritorial effect, it is

presumed not to intend to do so, in the absence

of clear words or necessary implication to the

contrary”).

Instead, Canada addresses an equally important canon

of statutory construction, which arises “‘wholly independent’

of the presumption against extraterritoriality,” and casts

independent doubt on the Ninth Circuit’s ruling. Hartford

Fire Ins. Co. v. California, 509 U.S. 764, 815, 113 S.Ct.

2891, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting)

(quoting EEOC v. Arabian Am. Oil Co. (“Aramco”),

499 U.S. 244, 111 S. Ct. 1227, 113 L. Ed. 2d 274 (1991)).

The so-called Charming Betsy canon holds that “even

where the presumption against extraterritoriality does

11

not apply, statutes should not be interpreted to regulate

foreign persons or conduct if that regulation would conflict

with principles of international law.” Id., 509 U.S. at

815. See also F. Hoffman-La Roche Ltd. v. Empagran,

S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226

(2004) (“Empagran I”) (“this Court ordinarily construes

ambiguous statutes to avoid unreasonable interference

with the sovereign authority of other nations. . . . ‘[A]n act

of congress ought never be construed to violate the law

of nations if any other possible construction remains’”)

(quoting Murray v. Schooner Charming Betsy, 6 U.S. 64,

2 Cranch 64, 2 L.Ed. 208 (1804) (Marshall, C.J.)) (other

internal citations omitted). Canadian courts apply a

kindred “presumption of conformity” under which “the

legislature is presumed to act in compliance with Canada’s

obligations as a signatory of international treaties and as

a member of the international community. In deciding

between possible interpretations, courts will avoid a

construction that would place Canada in breach of those

obligations.” Hape, [2007] 2 S.C.R. at 323, ¶ 53.

The Charming Betsy canon, like the presumption

against extraterritoriality, looks to the intent expressed

by Congress, and presumes that Congress intended

to comply with international law absent its express

indication to the contrary. Unlike the presumption against

extraterritoriality, the Charming Betsy canon remains in

play even when federal statutes are applied domestically.

See Hartford Fire, 509 U.S. at 815 (citing Romero v.

International Terminal Operating Co., 358 U.S. 354,

383, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)). As such, even

if this Court does not disturb the Ninth Circuit’s ruling

that CERCLA’s application to Petitioner was “domestic”

in nature, the Court of Appeals should have considered

12

whether CERCLA’s application to Petitioner comported

with the United States’ international legal obligations and

customs, and other principles of international law.

B. The Ninth Circuit Erred by Interpreting

CERCLA’s Ambiguities without Regard

to the United States’ International Legal

Obligations and Custom of Addressing CrossBorder Pollution Claims through Bilateral

Cooperation

In reaching its 2006 Decision, the Ninth Circuit

lamented CERCLA’s lack of clarity, and acknowledged

that CERCLA’s provision on arranger liability “does

not indicate whether foreign corporations are covered.”

Pakootas, 452 F.3d at 1076, 1079-80 (interpreting 42

U.S.C. § 9607(a)(3)). To ascertain whether CERCLA’s

reference to “any person” in this provision encompasses

extraterritorial actors like Petitioner, the Ninth Circuit

embarked on a complicated exposition of the statute,

searching for contextual clues of Congressional intent.

See id. at 1077 (examining CERCLA’s purpose, legislative

history and geographic scope to determine whether it

applies to extraterritorial actors, because statute was

“silent about who is covered by the Act”).

Canada reserves comment about the soundness

of the Ninth Circuit’s interpretation of CERCLA as a

matter of U.S. law. Canada reviews the Ninth Circuit’s

analysis only to note that the Court of Appeals employed

techniques of statutory construction that are called upon

when interpreting facially ambiguous statutes. Presented

with a facially ambiguous statute that is “silent about

who is covered,” the Ninth Circuit should have consulted

13

principles of international law to determine whether

its interpretation conflicted with those principles, or

interfered with bilateral mechanisms established for the

extra-judicial resolution of transboundary disputes.

These mechanisms include the previously mentioned

BWT, and the IJC chartered thereunder. See BWT, 36

Stat. 2448, Article III. The IJC has authority to consider

any difference between Canada and the United States

“involving the rights, obligations, or interests of either

in relation to the other or to the inhabitants of the other,

along the common frontier between the United States and

the Dominion of Canada,” and to issue a decision, or report

and recommendation in connection therewith, depending

on the terms of the parties’ reference. Id., Articles IX,

X (emphasis added).

It was upon the recommendation of the IJC that

Canada and the United States entered into the Ottawa

Convention. See IJC Report, 25 R.I.A.A. at 368-370. This

bilateral solution was necessitated by the failures of the

previous framework, in which residents of the Columbia

River Basin made individual claims for compensation

directly to the Trail Smelter. See 1938 Decision, 3 R.I.A.A.

at 1917. This system reached a standstill after American

landowners organized into a citizens’ association to seek

aggregate settlement of their claims. See id. The United

States requested reference to the IJC in response to this

impasse.

Under the Ottawa Convention, Canada voluntarily

agreed to pay damages of $350,000 for environmental

contamination caused by the Trail Smelter in the United

States prior to 1932. See Ottawa Convention, 4 U.S.T. at

14

4010, Art. I. The governments also agreed to constitute

a Tribunal that would determine damages payable by

Canada for Trail Smelter contamination occurring after

1932, and institute an indefinitely continuing regime (the

“Permanent Regime”) for the resolution of future disputes

and payment of future damages. See id., Arts. II, III.

T he T r i bu n a l ’s de c i s ion s de a lt s olely w it h

transboundary air pollution. See 1938 Decision, 3 R.I.A.A.

at 1921-22 (focusing on airborne emissions of sulfur

dioxide); 1941 Decision, 3 R.I.A.A. at 1946-48 (same). The

1941 Decision, in establishing the Permanent Regime,

implemented protocols solely for the measurement and

prevention of airborne contamination. 1941 Decision,

3 R.I.A.A. at 1966-78. Neither the United States nor

Canada has suspended or modified the Permanent

Regime. Moreover the Ottawa Convention, which remains

in force,14 is not limited to cases airborne pollution and

therefore provides an avenue for bilateral resolution of

Respondents’ claims. See Ottawa Convention, 4 U.S.T. at

4010, Art. III.

The BWT, Ottawa Convention and Trail Smelter

arbitration are but a few of many successful bilateral

efforts between Canada and the United States to address

cross-border environmental disputes. In 1972, following

an extensive scientific study by the IJC, Canada and the

United States entered into the Great Lakes Water Quality

Agreement, which they have regularly updated and

amended, most recently in 2012. See Agreement on Great

Lakes Water Quality, Apr. 15, 1972, U.S.-Can., 23 U.S.T.

14. See Treaties in Force, p. 67.

15

301 (“Great Lakes Agreement”).15 This Agreement has

been followed by the U.S.-Canada Agreement Concerning

the Transboundary Movement of Hazardous Waste, Oct.

28, 1986, Can.-U.S., T.I.A.S. No. 11099,16 the Agreement

Between the Government of the United States of America

and the Government of Canada on Air Quality, Mar. 13,

1991, U.S.-Can., T.I.A.S. No. 11783, 30 ILM 678,17 and

the countries’ periodically maintained Canada-United

States Joint Inland Pollution Contingency Plan, Oct. 28,

2009, U.S.-Can.18 As regards the preservation of wildlife,

Canada and the United States have both entered the

Convention for the Protection of Migratory Birds in the

United States and Canada, Aug. 16, 1916, U.S.-Gr. Brit.

(for Can.), 39 Stat. 1702, T.S. 628,19 The foregoing list is

only a representative sampling of the dozens of in-force

bilateral agreements between the two nations relating to

boundary waters, fisheries and pollution. 20

The United States and Canada have a proven track

record of addressing issues of cross-border pollution

through bilateral agreements, bilateral discussions,

and bilateral dispute resolutions dating back to the

15. The 1978 reformation of this Agreement, as amended in

1983, 1987 and 2012, remains in force today. See id., p. 74.

16. This agreement remains in force. See id.

17. This agreement remains in force. See id., p. 75.

18. Available at https://www.epa.gov/sites/production/

files/2014-08/documents/us_can_ jcp_eng.pdf (last visited March

24, 2019).

19. This treaty remains in force. See Treaties in Force, p. 71.

20. See id., pp. 65-67, 72, 74, .

16

early 20 th century. With the benefit of this historical

perspective, the two nations understand the pitfalls of

a system that permits uncoordinated individual claims

against extraterritorial polluters: it is unfair to aggrieved

parties, who must race to settle; it is burdensome, costly

and confusing for regulated businesses; and it has the

potential to result in stalemates that create tensions on

both sides of the border.

Most recently, the United States and Canada

attempted to reach a cooperative resolution to the EPA’s

investigation of Petitioner, commenced in 1999 at the

instance of the Respondent Confederated Tribes. Pet.

App. 5a. After a site investigation and preliminary

assessment coordinated with the Tribes, the EPA issued

a Unilateral Administrative Order (“UAO”) against

Petitioner on December 11, 2003. Id. at 5a, 64a. The UAO

directed Petitioner to conduct a remedial investigation and

feasibility study (“RI/FS”) under CERCLA. Id. at 65a.

Canada swiftly responded by sending a Diplomatic

Note on January 8, 2004, requesting that the EPA

rescind the UAO and accept Petitioner’s offer to conduct

a voluntary study, funded through its U.S. subsidiary,

in conjunction with the EPA. See id. at 6a; 2015 Canada

Brief, App. B. Canada’s response preceded Respondents’

July 21, 2004 filing of this lawsuit by seven months.

Canada’s diplomatic intervention resulted in the successful

negotiation of a June 2, 2006 settlement agreement

between Petitioner and the EPA (“2006 Agreement”),

outside the rubric of CERCLA. Pet. App. 6a. This

agreement provides an “enhanced consultative role” for

Canada, which the two countries have defined through

the subsequent exchange of Diplomatic Notes. See 2015

17

Canada Brief, App. B. In this role, Canada has made

efforts to facilitate bilateral oversight of Petitioner’s

compliance with the 2006 Agreement, and identify

bilateral solutions to corresponding problems. See id.,

App. C. Under the 2006 Agreement, Petitioner’s U.S.

subsidiary has funded a RI/FS modeled after CERCLA

methodologies. Pet. App. 6a. To date, Petitioner’s

subsidiary has spent more than $90 million on this RI/

FS, and has conducted voluntary remediation efforts at

the affected site. CA. ER 248, 250-52.

In desisting from further investigative or enforcement

action against Petitioner, and giving Canada a “seat at

the table” under the 2006 Agreement, the EPA carried

forward a long tradition founded on the nations’ mutual

preference for streamlined bilateral solutions to problems

of transboundary contamination. Unfortunately, the

cooperative solution brokered by the United States

and Canada has been repeatedly undermined by the

continuation of Respondents’ lawsuit. See RJR Nabisco,

136 S.Ct. at 2115 (Ginsburg, J. concurring in part and

dissenting in part) (“When the United States considers

whether to initiate a prosecution or civil suit, the Court

observes, it will take foreign-policy considerations into

account, but private parties will not”).

The 2006 and 2018 Judgments adopt a reading

of admittedly ambiguous CERCLA provisions that

jeopardizes bilateral efforts like the 2006 Agreement,

while overlooking the international legal obligations set

forth in the Ottawa Convention and BWT. In light of the

Ninth Circuit’s candid admission that CERCLA “does not

indicate whether foreign corporations are covered,” and

the clear availability of statutory constructions compatible

18

with the diplomatic practice and treaty obligations of

the United States and Canada, the Court of Appeals’

determination was plain error.

II. THE NINTH CIRCUIT’S EXTRATERRITORIAL

APPLICATION OF CERCLA CONTRAVENES

PRINCIPLES OF COMITY, A BSENT A NY

INDICATION OF CONGRESSIONAL INTENT TO

IMPOSE CERCLA ON FOREIGN ACTORS

The doctrine of international comity, characterized

as the “respect sovereign nations afford each other by

limiting the reach of their laws,” informs the presumption

against extraterritoriality while standing apart from it.

Hartford Fire, 509 U.S. at 817-819 (Scalia, J., dissenting)

(prescriptive comity governs interpretation even of laws

having extraterritorial reach). See also Morrison, 561 U.S.

at 280 (Stevens, J., concurring) (“[T]his Court ordinarily

construes ambiguous statutes to avoid unreasonable

interference with the sovereign authority of other

nations”) (quoting Empagran I, 542 U.S. at 164); Societe

Nationale Industrielle Aerospatiale v. U.S. Dist. Court

for Southern Dist. Of Ohio, 482 U.S. 522, 543, n. 27, 107

S.Ct. 2542, 96 L.Ed.2d 461 (1987) (more broadly defining

comity as “the spirit of cooperation in which a domestic

tribunal approaches the resolution of cases touching the

laws and interests of other sovereign states”).

Principles of comity thus provide an independent

basis for limiting the extraterritorial application of U.S.

laws, even in cases to which the presumption against

extraterritoriality might not be suited. See, e.g. Kiobel

v. Royal Dutch Petroleum Co., 569 U.S. 108, 127-29, 133

S.Ct. 1659, 185 L.Ed.2d 671 (2013) (Breyer, J., concurring)

19

(declining to apply presumption against extraterritoriality,

but concluding that adjudication of claims with foreign

policy implications must “be consistent with those notions

of comity that lead each nation to respect the sovereign

rights of other nations by limiting the reach of its own

laws and their enforcement”); Morrison, 561 U.S. at 280

(Stevens, J., concurring).

The principle of international comity is likewise

enshrined in Canadian jurisprudence. “The underlying

postulate of public international law is that generally

each state has jurisdiction to make and apply law within

its territorial limits. Absent a breach of some overriding

norm, other states as a matter of ‘comity’ will ordinarily

respect such actions and are hesitant to interfere with

what another state chooses to do within those limits.”

Tolofson v. Jensen, [1994] 3 S.C.R. 1022, 1047 (Can. 1994).

See also, Hape, [2007] 2 S.C.R. 292, 320, ¶¶ 48-49 (Can.

2007) (comity, while not a strict legal obligation, is a

“principle of interpretation” triggered when Canada’s laws

“could have an impact on the sovereignty of other states”);

Monguard Investments Ltd. v. De Savoye, [1990] 3 R.C.S.

1077, 1096 (Can. 1990) (adopting this Court’s formulation of

comity as “the recognition which one nation allows within

its territory to the legislative, executive or judicial acts of

another nation, having due regard both to international

duty and convenience”) (quoting Hilton v. Guyot, 159 U.S.

113, 163-64, 16 S.Ct. 139, 40 L.Ed. 95 (1895)). Canada’s

courts recognize comity as the basis for their presumption

against extraterritoriality. “While the notion of comity

among independent nation States . . . does not operate

as a limitation on Parliament’s legislative competence,

the courts nevertheless presume, in the absence of clear

words to the contrary, that Parliament did not intend

20

its legislation to receive extraterritorial application.”

SOCAN, [2004] 2 S.C.R. at 454 (Can. 2004).

Whether or not the Ninth Circuit’s rulings correctly

apply the presumption against extraterritoriality,

the Court of Appeals erred by parsing CERCLA’s

ambiguities without considering the impact of its

decision on Canada’s sovereign authority. Canada and its

provincial governments have designed and implemented

environmental laws in keeping with the goals and practices

promulgated by the nearly 200 multilateral and bilateral

environmental treaties to which Canada is a party.

See generally, 2015 Canada Brief, App. A (provincial

permits controlling acceptable releases in Petitioner’s

effluent discharges); Canada Ministry of Environment,

Compendium of Canada’s Engagement in International

Environmental Agreements (2017). 21 Pursuant to these

laws, Canada has been proactive in responding to crossborder environmental issues and pursuing cooperative

bilateral solutions. Canada’s vigilance in addressing such

matters is also aimed at preserving Canada’s exclusive

dominion over its own corporate citizens by defusing

transboundary disputes and obviating the need for foreign

regulation of Canadian companies.

Canada reacted within weeks to the 2003 UAO against

Petitioner, issuing a Diplomatic Note that asked that the

EPA to withdraw its Order in favor of a diplomatically

managed process that Petitioner would voluntarily

21. Available at https://www.canada.ca/en/environmentclimate-change/corporate/international-affairs/partnershipsorganizations/participation-international-environmentalagreements.html (last visited March 24, 2019).

21

fund and comply with. See Pet. App., 6a; 2015 Canada

Brief, App. B. Canada did so of its own initiative, well

before Respondents brought this litigation – indeed,

before any such litigation could be foreseen. The Courts

below overlooked Canada’s urgent, direct and repeated

overtures to remove this dispute from the jurisdiction

of American courts and redress Respondents’ injuries

through the cooperative procedures historically favored

by the two governments. In adopting an interpretation

of CERCLA’s ambiguities that frustrates diplomatic

efforts by the United States and Canada, and trammels

upon Canada’s sovereign prerogative, the Ninth Circuit

abandoned the principles of comity held dear by both

nations and committed judicial error.

CONCLUSION

Long before the modern era of environmental law

and the widespread recognition of the troubles posed by

transboundary pollution, the United States and Canada

worked together to cooperatively pioneer solutions to

these novel problems. While both nations’ domestic

environmental laws have evolved significantly since

that time, the decisions that emerged from their Trail

Smelter arbitration have “assumed immense importance

in the development of the customary international law

on transboundary pollution, primarily because [they

are] the only adjudicative decision[s] of an international

tribunal that speak[] directly to the substantive law of

transboundary pollution.” Thomas W. Merrill, Golden

Rules for Transboundary Pollution, 46 Duke L.J. 931,

947 (1997). These advancements were made possible by

the close relationship and cooperative spirit of the two

nations.

22

Canada has expressed its strong sovereign interest

in subjecting Canadian businesses to a single set of

environmental laws, and resolving issues of cross-border

pollution through coordinated bilateral processes. Faced

with an ambiguous statute that could have been construed

not to apply to Petitioner, the Ninth Circuit erred by

failing to consider Canada’s sovereign interests, the

United States’ international legal obligations, and both

countries’ custom of favoring government-to-government

solutions to cross-border environmental issues.

Canada respectfully submits that this Court should

grant the Petition for a Writ of Certiorari and reverse

the 2006 and 2018 Judgments, so that Respondents’

claims maybe be resolved through bilateral mechanisms

developed by the United States and Canada, or by other

means consistent with international legal norms and

principles of comity.

Respectfully submitted,

Malcolm Seymour

Counsel of Record

Garvey Schubert Barer, P.C.

100 Wall Street, 20th Floor

New York, New York 10005

(212) 431-8700

mseymour@gsblaw.com

Counsel for Amicus Curiae