Amicus Curiae Brief — Teck Metals Ltd., fka Teck Cominco Metals Ltd., a Canadian corporation, Petitioner v. Confederated Tribes of the Colville Reservation

No. 26-130

In the

Supreme Court of the United States

____________

TECK METALS LTD.,

Petitioner,

v.

CONFEDERATED TRIBES OF THE COLVILLE RESERVATION,

Respondent.

___________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

____________

BRIEF OF WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING PETITIONER

____________

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

August 28, 2026

i

QUESTION PRESENTED

Whether the Comprehensive Environmental

Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. § 9607(a)(4)(C), authorizes

damages for feelings of cultural disconnection caused

by injury to a natural resource.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................... i

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

INTEREST OF AMICUS CURIAE ......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 1

ARGUMENT ............................................................ 5

I.

BUSINESSES

NEED

RECKONABLE

REMEDIES REGIMES................................... 5

II.

THE NINTH CIRCUIT’S INTERPRETATION

UNDERMINES DUE PROCESS ...................... 8

CONCLUSION ...................................................... 11

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011)................................................1

Atl. Richfield Co. v. Christian,

590 U.S. 1 (2020)................................................1, 2

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996)........................................5, 8, 9

Buckley v. Valeo,

424 U.S. 1 (1976)..................................................10

CTS Corp. v. Waldburger,

573 U.S. 1 (2014)....................................................2

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012)................................................4

Hertz Corp. v. Friend,

559 U.S. 77 (2010)..............................................4, 8

New Mexico v. Gen’l Elec. Co.,

467 F.3d 1223 (10th Cir. 2006)..........................2, 4

Pac. Mut. Life. Ins. Co. v. Haslip,

499 U.S. 1 (1991)................................................5, 9

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972)..............................................10

iv

Seven Cnty. Infrastructure Coal. v. Eagle County,

605 U.S. 168 (2025)................................................1

State Farm Mut. Auto Ins. Co. v. Campbell,

538 U.S. 408 (2003)................................................8

Tull v. United States,

481 U.S. 412 (1987)..............................................10

TXO Prod. Corp. v. All. Res. Corp.,

509 U.S. 443 (1993)..........................................9, 10

United States v. Davis,

588 U.S. 445 (2019)..........................................4, 10

Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc.,

455 U.S. 489 (1982)............................................8, 9

Statutory Provisions

42 U.S.C. § 9607(a)(4)(C) .................................... i, 2, 8

42 U.S.C. § 9607(f)(1) ..............................................2, 6

Other Authorities

Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History (2018) ..............6

Antonin Scalia,

The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) ..............................4

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. It defends free enterprise,

individual rights, limited government, and the rule of

law. To those ends, WLF often appears as amicus

curiae to advocate for predictable liability regimes.

Atl. Richfield Co. v. Christian, 590 U.S. 1 (2020); Am.

Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011).

INTRODUCTION AND

SUMMARY OF ARGUMENT

“In deciding cases involving the American

economy, courts should strive, where possible, for

clarity and predictability.” Seven Cnty. Infrastructure

Coal. v. Eagle County, 605 U.S. 168, 192 (2025). The

Ninth Circuit has broken from its sister circuits, Pet.

28–30, to read an opaque, uncertain, and novel

natural-resources damages regime into CERCLA, one

of the Nation’s most important environmental

statutes.

Spurred on by various atrocities caused by the

release of dangerous toxins into the Nation’s land, air,

and water, Congress created a stringent, strictliability regime based around a straightforward

mission: ensuring both “timely cleanup of hazardous

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, paid for the brief’s preparation or submission.

Counsel for all parties received timely notice of WLF’s intent to

file this brief.

2

waste sites” and “that the costs of such cleanup efforts

are borne by those responsible for the contamination.”

Atl. Richfield, 590 U.S. at 6 (quoting CTS Corp. v.

Waldburger, 573 U.S. 1, 4 (2014) (brackets omitted)).

So came about the infamous “Superfund sites,” which

must be cleaned up by the government or a

responsible party.

But CERCLA does one more thing. It also

provides for “damages for injury to, destruction of, or

loss of natural resources.” 42 U.S.C. § 9607(a)(4)(C).

Natural-resource damages claims can be brought

against any potentially responsible party by federal,

state, or tribal governments acting in trust for

resources under their care. Id. § 9607(f)(1). As a rule,

damages must be collected “for use only to restore,

replace, or acquire the equivalent of such natural

resources.” Id. Losses that can’t be restored, replaced,

or functionally acquired fall out of the Act’s ambit.

Combined, that means CERCLA provides for

damages directly keyed to a resource’s economic value

destroyed by the release of toxic pollution. That may

include the value of lost use of the resource. And so

the statute authorizes damages totaling above “the

sums which can be used to restore or replace such

resources.” Id. But the law is pellucid: the direct,

economic harms of lost use caused by the release are

covered—nothing more. Contra BIO 22.

The Ninth Circuit, splitting decisively with its

neighbor court of appeals in the Tenth, New Mexico v.

Gen’l Elec. Co., 467 F.3d 1223, 1245–47 (10th Cir.

2006), has announced a different rule. See Pet. 28–30

(discussing scope of circuit division). Loss can, in the

Ninth Circuit, now mean any loss derived from the

injury, including harms sourced to a community’s

3

disconnection from an injured resource of significant

cultural weight—even though that kind of

metaphysical loss is hardly susceptible to restoration

or replacement. Pet. App. 18a.

That poses a practical problem for the Nation’s

industrial enterprises. Every firm that handles toxic

substances makes business judgments knowing that

it may accidentally acquire, contribute to, or wholly

create a Superfund site. That’s not a pretty fact; it’s a

fact of the Nation’s economic life. Firms evaluate that

risk just as car companies must estimate the

possibility of punitive-damages awards or merging

businesses must consider the risk of treble-damages

antitrust suits. Businesses don’t price out those risks

because they’re irresponsible, but because they very

much are responsible—to a board, which will cashier

mismanagement, and to shareholders, whose value

they must maximize.

And so, when CERCLA works as Congress

intended, covered enterprises factor in Superfund

risk. If necessary, firms can hedge against that

chance by imposing safety guardrails, ensuring

compliance personnel are on the ball, or obtaining

insurance. That’s a virtuous circle. At its best, the Act

undergirds a predictable environment where

entrepreneurs can seek investment in new rare-earth

prospecting or new methods of transporting and

disposing toxic chemicals while still benefiting the

public welfare. Safe, not stalled, development.

But metaphysical injury sourced to a

subjective, cultural loss can’t be predictably priced or

insured against. And because such injury is

inherently personal to a covered community, damages

4

awards risk becoming functionally random. Spill next

to people uniquely disposed to mental anguish or

anxiety about pollution, and losses may (as here) be

three times (or more) the actual cost of “accomplishing

CERCLA’s essential goals of restoration or

replacement, while also allowing for damages due to

interim loss of use.” New Mexico, 467 F.3d at 1245.

That seat at Damocles’ banquet will unduly deter

constructive economic activity. Hertz Corp. v. Friend,

559 U.S. 77, 94 (2010) (“Predictability is valuable to

corporations making business and investment

decisions”).

Reckonable remedies aren’t just a nice-to-have.

“Predictability, or as Llewellyn put it, ‘reckonability,’

is a needful characteristic of any law worthy of the

name.” Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989).

Reckonability goes by another name in our

constitutional grammar: void-for-vagueness. “In our

constitutional order, a vague law is no law at all.”

United States v. Davis, 588 U.S. 445, 447 (2019); FCC

v. Fox Television Stations, Inc., 567 U.S. 239, 253

(2012). That extends not just to ambiguous laws

regulating conduct, but also to the harms imposed by

shapeless remedies in a government-directed, strictliability regime. See BMW of N. Am., Inc. v. Gore, 517

U.S. 559, 574 (1996) (“Elementary notions of fairness

enshrined in our constitutional jurisprudence dictate

that a person receive fair notice not only of the

conduct that will subject him to punishment, but also

of the severity of the penalty that a State may

impose”).

The Ninth Circuit’s gloss on CERCLA offers all

of the downsides of arbitrary-enforcement risk that

5

this Court’s vagueness doctrine abhors—and carries

none of the mitigating factors (such as intent

standards or a cognizable rubric that allows for error

correction in excessive damages cases) that the Court

requires to save damages regimes from “jar[ring]

one’s constitutional sensibilities.” Pac. Mut. Life. Ins.

Co. v. Haslip, 499 U.S. 1, 18 (1991). The Court should

grant the writ so it may affirm that the Constitution’s

insistence on definiteness applies to inchoate

remedies statutes incapable of pre-enforcement

“reckonability,” and adopt

Teck’s

narrower

understanding of the statutory scheme.

ARGUMENT

I.

BUSINESSES NEED RECKONABLE REMEDIES

REGIMES.

It’s not a pleasant fact, but every owner or

operator of a facility or transit node supplying,

carrying, or using CERCLA-covered hazardous

substances must price the risk that it will create a

Superfund site and incur additional liability for

natural-resources damages. Likewise, firms looking

to acquire other companies must diligently review the

targeted company’s holdings to avoid accidentally

inheriting that same peril. That’s not a bug. It’s a

feature of the Act.

After all, CERCLA doesn’t ban the

transportation or use of covered toxic pollutants. It

simply puts the onus on responsible parties for their

release. Congress didn’t want to stop the shipping,

use, transportation, or disposal of the relevant

hazardous chemicals, byproducts, and other

substances. If it did, it would have banned all those

6

practices. Instead, it just wanted those economically

beneficial activities to be carried out carefully.

In this way, CERCLA harnesses how markets

price information. A mining company can estimate

what the likely effect of accidental leakage into a river

would do to the surrounding ecosystem—and roughly

price out what cleanup would cost, how long repair

might take, and look to prior enforcement actions and

settlements to calculate the estimated cost for

“restoring, replacing, or acquiring the equivalent of

such natural resources.” 42 U.S.C. § 9607(f)(1) (tense

altered). This can be done in advance and inform

business decisions. Impose additional safety

measures. Scale back particularly aggressive plans.

Obtain insurance against this “reckonable” risk.

This part of CERCLA works because it offers a

priceable risk figure that ensures an element of

regulatory certainty: here’s the cost of the worst-case

scenario. The economic value of a river’s closure is

something that can be reflected on a spreadsheet—

jobs lost, power never generated by a hydroelectric

dam, fishing permits never sold, and fish stocks never

brought to market. Firms “crave certainty as much as

almost anything: certainty is what allows them to

make long-term plans and long-term investments.”

Alan Greenspan & Adrian Wooldridge, Capitalism in

America: A History 258 (2018).

But strip away the ability to at least roughly

price liability ex ante, and the virtuous circle breaks

viciously. That puts firms in the unpleasant prospect

of flying blind. The pipeline will never get funding.

Disposal costs will become unsustainable. The

transporter will balk. The mine won’t open. That’s

7

what blessing inchoate, cultural-loss injury risks: the

pausing or cancelation of otherwise economically

useful actions.

Consider: different people experience (and will

therefore price) “lost use [that] has a cultural

dimension,” Pet. App. 10a, differently than others.

Judges and juries (who are, after all, people) won’t be

immune. Two identical records may garner wildly

different awards based on subjective evaluation of the

cultural harm at issue. Indeed, the type of harm

experienced by an affected group may be so uniquely

situated to members of an insular community that

future plaintiffs might not even reasonably expect an

outsider to ever understand—let alone be able to

quantify it before opening a new facility or engaging

in a contract to transport hazardous waste. The

afflicted need not even reside in proximity to the

release to claim injury. Faced with such a paradigm

of uncertainty, rational firms will cease operations

rather than court wholly unpredictable yet

potentially catastrophic liability.

And this isn’t just a predictability problem

limited to the unique mores of those Americans

represented by tribal trustees. Pet. 31. The

trusteeship model extends to the States and the

federal government. Left to stand, a State might seek

relief for the cost of residents’ pollution-linked mental

distress after a toxic spill closes a bay. Or the United

States could bring suit on behalf of those faithful

citizens who take stewardship of the Earth as a divine

command. Or vice versa. Or both. There’s no shortage

of potential felt loss our fellow Americans may

experience when they discover toxic substances have

8

been released

groundwater.

into

the

atmosphere,

land,

or

There’s no need to uncap the statute this way.

CERCLA focuses on the restorable economic value of

a “loss of natural resources,” 42 U.S.C.

§ 9607(a)(4)(C), not fixing for loss associated with

sincerely held feelings of cultural disconnection. (And

in a world of scarce resources, authorizing the latter

will inevitably mean fewer funds available for the

former.) The Court should grant review so it can

restore CERCLA’s “valuable” reckonability to

“corporations making business and investment

decisions.” Hertz, 559 U.S. at 94.

II.

THE NINTH CIRCUIT’S INTERPRETATION

UNDERMINES DUE PROCESS.

If CERCLA provides for cultural-loss injury, it

strikes against the same “[e]lementary notions of

fairness

enshrined

in

our

constitutional

jurisprudence [which] dictate that a person receive

fair notice not only of the conduct that will subject

him to punishment, but also of the severity of the

penalty that a State may impose.” BMW, 517 U.S. at

574; State Farm Mut. Auto Ins. Co. v. Campbell, 538

U.S. 408, 417–18 (2003); Pet. 23 (“[T]he freewheeling,

open-ended valuation of harm contemplated by the

Ninth Circuit provides no meaningful notice”)

(internal quotation marks and citation omitted).

True, this Court has allowed more room for

ambiguity in civil, economic regulation than in the

criminal law. Vill. of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 498–99 (1982).

That’s due, in part, to the Court’s understanding of

9

how going concerns operate. Id. at 498. As the

Hoffman Court pointed out, “businesses . . . face

economic demands to plan behavior carefully” and

“can be expected to consult relevant legislation in

advance of action.” Id. That’s precisely right, supra at

5–8, and this fact can satisfy fair notice—just as

universally condemned, reprehensible conduct carries

with it the explicit ex ante understanding that

sanctions will be harsh. TXO Prod. Corp. v. All. Res.

Corp., 509 U.S. 443, 468 (1993) (Kennedy, J.,

concurring) (“TXO acted with malice”); id. at 465–66

(Stevens, J., plurality) (“[T]he notice component of the

Due Process Clause is satisfied if prior law fairly

indicated that a punitive damages award might be

imposed in response to egregiously tortious conduct”).

But the Hoffman excuse for sloppy legislative

drafting falls apart when a company can’t price out its

litigation risk under a joint-and-several, strictliability statute like CERCLA. Where “objective

criteria” for liability exist, Pac. Mut. Life., 499 U.S. at

23, that inoculates even “extreme” damages awards

from otherwise “jar[ring] one’s constitutional

sensibilities.” Id. at 18. But subjective criteria, such

as losses attributable to “‘cultural disconnection,’”

Pet. App. 31a, provide no such safeguard for on-thehook defendants. Cultural-loss injury offers no

reference point for any reasonable judge to determine

whether a damages award was clearly excessive. And

no reviewing court can genuinely compare the ratio of

a “damages award . . . to the actual harm inflicted on

the plaintiff.” BMW, 517 U.S. at 580.

The Court has never considered a hopelessly

vague remedies-regime like the one the Ninth Circuit

created. And it’s certainly never blessed such

10

vagueness in the context of a statute that puts

sovereigns, vested with enforcement discretion and

unlimited capacity to assert felt-loss injury, in the

plaintiff’s seat. So the ruling below poses the very

enforcement-discretion

problem

this

Court’s

vagueness caselaw rightly condemns. Davis, 588 U.S.

at 447; Papachristou v. City of Jacksonville, 405 U.S.

156, 162 (1972) (“Living under a rule of law entails

various suppositions, one of which is that all persons

are entitled to be informed as to what the State

commands or forbids”) (cleaned up, citation omitted).

That’s not to say that Congress can’t use the

make-whole language of common-law tort or vest

discretion with judges or juries “to consider the need

for retribution and deterrence, in addition to

restitution.” Tull v. United States, 481 U.S. 412, 422

(1987). Nobody’s saying that the vagueness doctrine

should forever swallow, say, punitive damages. See,

e.g., TXO, 509 U.S. at 465–66 (Stevens, J., plurality).

But Congress can’t create a regime like the one the

Ninth Circuit says it must have designed. From the

perspective of a defendant making an expected-value

calculation (especially when navigating a strictliability regime like CERCLA) knowing the band of

potential damages is just as vital as understanding

what conduct is acceptable and which is barred.

In short, just as inchoate laws must be set

aside, or (when possible) narrowly construed “to avoid

the shoals of vagueness,” Buckley v. Valeo, 424 U.S. 1,

77–78 (1976) (per curiam), so must ambiguous

remedies regimes incapable of pre-enforcement

“reckonability.” Teck’s reading of CERCLA avoids

this problem, and the Court should grant the writ so

it may adopt it.

11

CONCLUSION

The lower court’s blessing of felt loss naturalresources injury can’t be squared with the text or

function of the Act. Worse still, it would create a

serious due process question. The Court should grant

the writ to set things right.

Respectfully submitted,

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

August 28, 2026