Brief for the United States — Teck Cominco Metals, Ltd. v. Pakoototas (No. 06-1188)

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In the Supreme Court of the Gnited States

TECK COMINCO METALS, LIMITED, PETITIONER

v.

JOSEPH A. PAKOOTAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

PAUL D. CLEMENT

Solicitor General

Counsel of Record

RONALD J. TENPAS

Acting Assistant Attorney

General

THOMAS G. HUNGAR

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General

ROBERT H. OAKLEY

KATHERINE J. BARTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

Petitioner is a Canadian company that owns and op-

erates a smelter approximately ten miles north of the

United States border. The smelter discharged slag con-

taining hazardous substances into the Columbia River,

which carried the slag into the United States. Under

the Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980 (CERCLA), 42 U.S.C.

9601 et seg., the Environmental Protection Agency

(EPA) issued a unilateral administrative order requiring

petitioner to conduct a remedial investigation/feasibility

study at an affected site in the United States. After re-

spondents filed this citizen suit to enforce that order,

EPA withdrew the order pursuant to a settlement

agreement with petitioner. The questions presented

are:

1. Whether respondents’ citizen suit is moot now

that EPA has withdrawn the order that respondents

seek to enforce.

2. Whether a foreign person who discharged hazard-

ous substances in a foreign country in a manner that

directly and foreseeably caused those substances to be-

come deposited in the United States may be held liable

under CERCLA for the cleanup of affected sites in the

United States.

3. Whether a person may be held liable under

CERCLA as having “arranged” for disposal of hazard-

ous substances within the meaning of 42 U.S.C.

9607(a)(3) if that person disposed of hazardous sub-

stances itself, without the involvement of another party.

(1)

TABLE OF CONTENTS

Page

PD UtGanakieanekeduebessebiuvhecstanuandseee ees 1

MGs ccc vnddarnss ee siuens Soles se ecsenndasenaeen: 6

A. Respondents’ challenge to petitioner’s failure to

comply with EPA’s now-withdrawn order is moot ..... 7

B. The interlocutury posture of this case counsels

against this Court’s review .............e2eeeeeee 12

C. The court of appeals’ decision does not conflict with

decisions of other appellate courts and lacks suffi-

cient importance to warrant this Court’s review at

EE sku 0 exbdnesdtioe becevestasedeenuace twos 14

ERED: victevsrsdeest sade Vipeventeveeuseseneteenas 20

TABLE OF AUTHORITIES

Cases:

Adarand Constructors Inc. v. Mineta, 534 U.S. 108

EE Cesar PrGNehee ees aanbendea bribes decudans 13

American Cyanamid Co. v. Capuano, 381 F.3d 6

ee ee tee ce eee s oy 19, 20

ARC Ecology v. United State Dep't of the Air Force,

411 F.3d 1092 (9th Cir. 2005) ........... cc cece 16

Ellis v. Gallatin Steel Co., 390 F.3d 461 (6th Cir.

EE aes bi Daas be a dune ew a wike REPEC eT OL 0s 83 0 1]

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), inc., 52B'US. 167 (2000) . 2. cc ccc ccc 8, 9, 10

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) ............... 8,9, 11

Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S. 251

EE kins Ook cub eck cde nda vdaten sowie eeeewes 13

Cases—Continued: Page

Her Majesty the Queen in Right of Ont. v. United

States EPA, 912 F.2d 1525 (D.C. Cir. 1990) ......... 15

Kaiser Aluminum & Chem. Corp. v. Catellus Dev.

Corp., 976 F.2d 1338 (9th Cir. 1992) ............ 14, 20

Laker Airways Ltd. v. Sabena, Belgian World Air-

lines, 731 F.2d 909 (D.C. Cir. 1984) ............. 17, 18

Leuns v. Continental Bank Corp., 494 U.S. 472 (1990) ... 9

Michie v. Great Lakes Steel Div., Nat'l Steel Corp.,

495 F.2d 213 (6th Cir.), cert. denied, 419 U.S. 997

SOE 5b xnuasecdboueeunbaulae oak eerueeeereeen 16

Ohio v. Wyandotte Chems. Corp., 401 U.S. 493 (1971) .. 15

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

CE. nvedhn aces cnkedenecancteeien cee 7,9, 10

U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship,

Ba Br Be Ce. 6 a0 bb ies eeeeenesaeesedeneenys 12

United States v. Bestfoods, 524 U.S. 51 (1998) .... 1, 14, 20

United States v. Munsingwear, Inc., 340 U.S. 36

GOED: <aakben Vice Cue eA eee eUeeeeadataesaa tees 12

United States EPA v. City of Green Forest, 921 F.2d

1394 (8th Cir. 1990), cert. denied, 502 U.S. 956

CEE poy beds tai ceee ceed Secu iereeaenae 11

VMI v. United States, 508 U.S. 946 (1998) ............ 13

Constitution, treaty, statutes and regulation:

fh ea OR er rr re sere g

Treaty Between the United States and Great Britain

Relating to Boundary Waters Between the United

States and Canada, Jan. 11, 1909, 36 Stat. 2448:

PG. Eg OR NE 665-0 VS Rua eens eCesGeee ees 15

V

Treaty, statutes and regulation—Continued: Page

ET testvedcdesanceceveonswews 15

Comprehensive Environmental Response, Compensa-

tion, and Liability Act, 42 U.S.C. 9601 et seg. ......... 1

42 U.S.C. 9604 (2000 & Supp. IV 2004) ........... 2

CEE ao ada end dk deeveed dies ncccuvetets 2

ee EE ed bbwn.bo 00d betes beeeeedeencnee 2

EE voucn éveccventeedeees beukuesds 2

REID hd va vs donee casevedaweaseads 5

Oe EE Ns ovecnvdesctecsoucntece 4,12

SER IEEE v.bccceceeuvectedveteeede 13

42 U.S.C. 9659(a)(1) ......... ose areeeeeian 3, 7,8

EE ED web eevee yeeéscctecvouseacns 8

i bead dy aede edule eueeee tee 9

nn 1s decsiualeaebeeekeeeneteenes 4,13

Exec. Order No. 12,580, 3 C.F.R. 193 (1987) ............ 1

Miscellaneous:

Restatement (Third) of Foreign Relations Law of the |

CIEE ev nos 4dgebusesestertacesued 17

In the Supreme Court of the Gnited States

No. 06-1188

TECK COMINCO METALS, LIMITED, PETITIONER

Vv.

JOSEPH A. PAKOOTAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order

inviting the Solicitor General to express the views of the

United States. In the view of the United States, the pe-

tition for a writ of certiorari should be denied.

STATEMENT

1. Congress enacted the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. 9601 et seq., in response to

the serious environmental and health dangers posed by

sites contaminated by hazardous substances. United

States v. Bestfoods, 524 U.S. 51, 55 (1998). CERCLA

provides the President, who has delegated the relevant

authority to the Environmental Protection Agency

(EPA) (Exec. Order No. 12,580, 3 C.F.R. 193 (1987)),

with multiple options for cleaning up contaminated sites.

For example, EPA may undertake a response action

(1)

2

(including cleanup), 42 U.S.C. 9604 (2000 & Supp. IV

2004), or may compel, by means of an administrative

order or a request for judicial relief, a party to under-

take a response action. 42 U.S.C. 9606. A party is gen-

erally liable under CERCLA if there was a release or

threatened release of a hazardous substance from a fa-

cility and the defendant falls within the definition of an

owner or operator, past owner or operator, arranger, or

transporter. 42 U.S.C. 9607(a).

2. Petitioner is a Canadian corporation that operates

the world’s largest zinc and lead smelter in Trail, British

Columbia, approximately ten miles north of the United

States border. For 90 years, from 1906 until 1995, peti-

tioner’s smelter discharged up to 145,000 tons of slag

annually (13 million tons total) into the Columbia River.

That river flows directly into the United States. Pet.

App. 4a-5a, 72a.

In August 1999, the Confederated Tribes of the Col-

ville Indian Reservation petitioned EPA, pursuant to 42

U.S.C. 9605, to conduct an assessment of hazardous sub-

stance contamination along the Columbia River. EPA

investigated the Upper Columbia River Site Assessment

Area, which extends downstream from the border for

approximately 70 miles. In the river and on adjacent

beaches, EPA found contaminants associated with peti-

tioner’s slag, including arsenic, cadmium, copper, lead,

mercury, and zinc, all of which are harmful to human

and aquatic life. Pet. App. 70a-72a.

EPA spent more than a year attempting to negotiate

a settlement with petitioner and its American affiliate,

Teck Cominco American Inc. (TCAI), without success.

In October 2003, EPA sent TCAI a draft administrative

order on consent, requesting that it voluntarily under-

take a remedial investigation/feasibility study (RI/FS)

3

under CERCLA. TCAI responded with a proposal that,

EPA concluded, would not have provided the informa-

tion necessary for EPA to select an appropriate remedy.

Pet. App. 73a-75a.

On December 11, 2003, EPA issued a unilateral ad-

ministrative order directing petitioner to conduct an

RI/FS of the Upper Columbia River Site. Pet. App. 68a-

99a. Petitioner responded that it did not consider itself

subject to that order. /d. at 102a-104a.

3. In July 2004, respondents Joseph A. Pakootas

and Donald R. Michel filed a complaint pursuant to

CERCLA’s citizen-suit provision, 42 U.S.C. 9659(a)(1),

which authorizes a citizen to bring suit against “any per-

son * * * who is alleged to be in violation of any

* * * order which has become effective pursuant to

[CERCLA].” See Pet. App. 105a-112a. The complaint

sought a declaration that petitioner was violating EPA’s

order, an injunction enforcing that order, civil penalties,

and attorney’s fees. /d. at 1lla. The State of Washing-

ton intervened as a plaintiff and filed a substantially

similar complaint. /d. at 113a-119a.

The district court denied petitioner’s motion to dis-

miss. Pet. App. 29a-59a. The court found that it had

personal jurisdiction over petitioner because, under the

facts alleged in respondents’ complaints, petitioner’s

“dispos[al] of hazardous substances into the Columbia

River is an intentional act expressly aimed at the State

[of] Washington” that “causes harm which [petitioner]

knows is likely to be suffered downstream by” respon-

dents. /d. at 34a-35a.

The district court next “assume|[d] this case involves

an extraterritorial application of CERCLA to conduct

occurring outside U.S. borders.” Pet. App. 38a. The

court held, however, that the presumption against extra-

4

territorial application of United States laws is inapplica-

ble here because it “generally does not apply where con-

duct in a foreign country produces adverse effects within

the United States,” and “CERCLA affirmatively ex-

presses a clear intent by Congress to remedy ‘domestic

conditions’ within the territorial jurisdiction of the U.S.”

Id. at 44a, 57a. The court then stated that, while peti-

tioner did not “appear” to be liable as an owner or oper-

ator of the Upper Columbia River Site, or as a trans-

porter of hazardous substances, 7d. at 46a, “‘arranger’

liability under CERCLA cannot be ruled out,” id. at 49a.

Accordingly, the court denied the motion to dismiss, but

certified its order for immediate appeal under 28 U.S.C.

1292(b). Pet. App. 59a.

4. After the court of appeals granted petitioner’s

request for interlocutory appeal, EPA, petitioner, and

TCAI entered into a settlement agreement. See Pet.

App. 9a n.10. TCAI agreed to undertake an RI/FS

in accordance with standards promulgated under

CERCLA, and EPA agreed to withdraw the unilateral

administrative order and not to seek civil penalties or

injunctive relief for petitioner’s prior non-compliance

with the order. Pet. C.A. Request for Judicial Notice,

Exh. 2, at 1-2, 22, 25 (June 2, 2006) (Settlement Agree-

ment) <http://www.law.washington.edu/Directory/

docs/Robinson-Dorn/TrailSmelter >.’

5. The court of appeals affirmed the district court’s

order. Pet. App. la-28a. The court took judicial notice

of the settlement agreement and EPA’s withdrawal of

' In November 2005, while the interlocutory appeal was pending,

respondents amended their complaints in the district court to add

claims seeking recovery of response costs and natural resource dama-

ges, pursuant to 42 U.S.C. 9607(a)(4). See Am. Compl. 7-8; First Am.

Compl. in Intervention 7-8.

5

its order. Jd. at 9an.10. After explaining that “[t]he

parties are agreed that the settlement * * * does not

render this action moot,” the court stated that “it is suf-

ficient for us to note that [respondents’] claims for civil

penalties and for attorneys’ fees are not moot.” /bid.

The court of appeals “le[ft] for the district court to de-

cide in the first instance whether the claims for injunc-

tive and declaratory relief are moot.” /bid.

- The court of appeals next determined that the pre-

sumption against extraterritoriality is inapplicable be-

cause this case involves a domestic application of

CERCLA. Pet. App. 12a-23a. The court reasoned that

CERCLA liability turns on the release of hazardous

substances from a “facility,” and here, the facility (the

Upper Columbia River Site) is located within the United

States, and the relevant release—the leaching of hazard-

ous substances from slag that had settled at the site—

also occurred within the United States. /d. at 13a-15a.

Finally, the court of appeals rejected petitioner’s

argument that it was not liable as an arranger because

it had “disposed of the slag itself,” without the involve-

ment of a third party. Pet. App. 23a. CERCLA’s arran-

ger-liability provision refers to:

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.

42 U.S.C. 9607(a)(3). The court interpreted the phrase

“by any other party or entity” to mean that an arranger

could be liable for disposal of hazardous substances that

were @wned or possessed “by such person” or “by any

other pardy or entity.” Pet. App. 24a. Thus, the court

6

rejected petitioner’s argument that a person can be lia-

ble as an arranger only if one person disposed of another

person’s waste. See id. at 25a-26a. In so holding, the

court emphasized that neither respondents’ complaints

nor EPA’s order “specifically allege[d] that [petitioner]

is an arranger,” and the court “express[ed] no opinion”

on whether petitioner is also liable as an owner, opera-

tor, or transporter. /d. at 23a & n.19.

DISCUSSION

Respondents brought this action under CERCLA’s

citizen-suit provision to enforce EPA’s unilateral admin-

istrative order. Now that EPA has withdrawn that or-

der, respondents’ citizen-suit claims—the only claims

considered by the lower courts—are moot. While re-

spondents amended their complaints in the district court

during the pendency of the interlocutory appeal to add

additional claims that do not depend on the continued

existence of EPA’s order, those claims have not been

considered by the courts below, and petitioner may have

additional defenses to the new claims. Further proceed-

ings on remand may thus shed significant light on the

validity of respondents’ remaining claims. The current

posture of this case therefore counsels strongly against

this Court’s review.

In any event, the questions presented do not merit

review at this time. There is no division among the cir-

cuits on those questions. Instead, the decision below

turns on an issue of first impression—whether, or under

what circumstances, CERCLA applies when a foreign

company discharges hazardous substances abroad in

such a manner as to produce a subsequent release at a

facility in the United States. While international pollu-

tion can be diplomatically sensitive, the comity concerns

7

invoked by petitioner are unusually weak here, because

petitioner dumped millions of tons of slag into a river

just upstream of the border. Accordingly, there is no

need for immediate review, and this case would provide

a particularly poor vehicle for considering the comity

issue in any event.

A. Respondents’ Challenge To Petitioner’s Failure To Comply

With EPA’s Now-Withdrawn Order Is Moot

Respondents brought this action under CERCLA’s

citizen-suit provision, which authorizes suit “against any

person * * * who is alleged to be in violation of a[n]

* * * order which has become effective” pursuant to

the statute. 42 U.S.C. 9659(a)(1). As the original com-

plaints make clear, respondents seek “to enforce the

[order] issued to [petitioner].” Pet. App. 105a-106a; ac-

cord id. at 106a, 114a, 115a. Indeed, all of the claims in

the original complaints—the only complaints that were

before the courts below—are expressly premised on peti-

tioner’s failure to comply with EPA’s unilateral adminis-

trative order. /d. at 110a-llla, 118a. Following EPA’s

withdrawal of that order, there is no longer an “order”

for respondents to enforce through this citizen suit un-

der Section 9659(a)(1).

Without analysis, the court of appeals “note[d]” in a

footnote that respondents’ requests for civil penalties

and attorney’s fees are not moot, and “le[ft] for the dis-

trict court to decide in the first instance whether the

claims for injunctive and declaratory relief are moot.”

Pet. App. 9a n.10. The court of appeals may have relied

in large part on petitioner’s concession that respondents’

requests for civil penalties and attorney’s fees were not

moot. See Pet. C.A. Request for Judicial Notice 5. But

this Court must assure itself of its jurisdiction, Steel Co.

8

v. Citizens for a Better Env’t, 523 U.S. 83, 93 (1998), and

petitioner is mistaken in conceding that the case is not

moot.

1. Inconstruing analogous citizen-suit provisions in

other environmental statutes, this Court has emphasized

that “the harm sought to be addressed by the citizen suit

lies in the present or the future, not in the past.”

Friends of the Earth, Inc. v. Laidlaw Envtl Servs.

(TOC), Inc., 528 U.S. 167, 187-188 (2000) (quoting

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 59 (1987)); see Steel Co., 523

U.S. at 105-108. A citizen suit must be brought against

a person “who is alleged to be in violation of” law. 42

U.S.C. 9659(a)(1). As this Court explained in construing

the Clean Water Act’s similar citizen-suit provision,

“(t]he most natural reading of ‘to be in violation’ is a

requirement that citizen-plaintiffs allege a state of ei-

ther continuous or intermittent violation,” as opposed to

a past violation. Gwaltney, 484 U.S. at 57. Moreover,

before a plaintiff may file a citizen suit under CERCLA,

it must provide the potential defendant and the Uni-

ted States with 60 days’ advance notice. 42 U.S.C.

9659(d)(1). Like the Clean Water Act’s analogous notice

requirement, that provision would be “incomprehensi-

ble” if citizens could sue based on past violations, be-

cause “the purpose of notice to the alleged violator is to

give it an opportunity to bring itself into complete com-

pliance with the Act and thus likewise render unneces-

sary a citizen suit.” Gwaltney, 484 U.S. at 59-60.

In light of those authorities, respondents’ citizen suit

is moot. The complaints gave rise to a live case or con-

troversy at the time they were filed, because petitioner

was not complying with EPA’s order. But EPA’s with-

drawal of that order means that petitioner is no longer

9

violating it. Thus, there is no longer any basis for this

citizen suit seeking to enforce a now non-existent order.

Contrary to the court of appeals’ assumption, respon-

dents’ request for civil penalties does not change that

conclusion. Civil penalties are paid to the United States,

not to citizen-plaintiffs. 26 U.S.C. 9507(b)(4); see Steel

Co., 523 U.S. at 106. And because citizen suits must be

based on ongoing violations, this Court has held that

“citizens, unlike the Administrator, may seek civil penal-

ties only in a suit brought to enjoin or otherwise abate

an ongoing violation.” Gwaltney, 484 U.S. at 59; see

Laidlaw, 528 U.S. at 188 (“{P]rivate plaintiffs, unlike the

Federal Government, may not sue to assess penalties for

wholly past violations.”); Steel Co., 523 U.S. at 106. Of

particular relevance here, plaintiffs may not seek such

penalties when it is “merely speculative” whether the

“deterrent effect” of their imposition would cause the

defendant to alter its behavior in such a way as to re-.

dress the plaintiffs’ injuries. Laidlaw, 528 U.S. at 186-

187; see Steel Co., 523 U.S. at 106-107. Now that EPA

has withdrawn the order, civil penalties would not (and

could not) encourage compliance with that non-existent

order, but instead would be strictly backward-looking.

Petitioners’ requests for the imposition of civil penalties

are therefore moot.

Nor can respondents’ requests for attorney’s fees

keep their citizen-suit claims alive. A party’s “interest

in attorney’s fees is, of course, insufficient to create an

Article III case or controversy where none exists on the

merits of the underlying claim,” including where, as

here, the claim became moot during the litigation.

Lewis v. Continental Bank Corp., 494 U.S. 472, 480

(1990); see Laidlaw, 528 U.S. at 192 n.5 (instructing the

lower courts to “use caution to avoid carrying forward a

10

moot case solely to vindicate a plaintiff's interest in re-

covering attorney’s fees”); Steel Co., 523 U.S. at 107

(holding that plaintiff lacked standing because “(t]he

litigation must give the plaintiff some other benefit be-

sides reimbursement of costs that are a byproduct of the

litigation itself”).

2. Respondents may contend that their claims are

not moot because petitioner might not comply with the

settlement agreement, and EPA might therefore issue

another order against petitioner. This Court’s decisions

in Gwaltney, Laidlaw, and Steel Co. primarily consid-

ered plaintiffs’ standing to sue at the outset of those

cases. Mootness differs from standing in that “a defen-

dant claiming that its voluntary compliance moots a case

bears the formidable burden of showing that it is abso-

lutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.” Laidlaw, 528 U.S. at

190. Here, however, the mooting event is EPA’s with-

drawal of the order, not petitzoner’s voluntary compli-

ance with it. In fact, petitioner never complied with the

order, voluntarily or otherwise. Instead, it entered into

a separate agreement with EPA. Thus, the voluntary-

cessation exception does not apply here.

Even if petitioner failed to comply with the settle-

ment agreement, EPA would not necessarily issue an-

other administrative order. The agreement specifies

dispute-resolution procedures, as well as significant pen-

alties (other than issuance of a new order) for non-com-

pliance. Settlement Agreement 14-16, 23-25. EPA could

take aim at petitioner’s violation of the agreement, ra-

ther than initiate another order targeted at petitioner’s

underlying primary conduct. And even if another order

were issued, it could differ significantly from the with-

drawn one, based on intervening developments.

11

The conclusion that respondents’ claims are now

moot is buttressed by the United States’ agreement, as

part of the settlement, “not to sue or take administrative

action” for “civil penalties or injunctive relief for non-

compliance with the” order, unless petitioner fails to

perform its obligations under the agreement. Settle-

ment Agreement 22. It would make little sense to per-

mit respondents to sue for civil penalties payable to the

United States when the United States has not only with-

drawn the order underlying respondents’ claims, but has

also waived, as part of a settlement, the right to seek

penalties unless petitioner fails to comply with the

agreement. As this Court explained in Gwaltney, per-

mitting citizens to sue for civil penalties after EPA

agreed not to do so as part of a settlement would “cur-

tail{ ] considerably” EPA’s “discretion to enforce the Act

in the public interest.” 484 U.S. at 61.

Principles of res judicata also bar respondents’ citi-

zen-suit claims. The settlement agreement resolved the

government’s claims for civil penalties or injunctive re-

lief for petitioner’s non-compliance with EPA’s now-

withdrawn order. Settlement Agreement 22. As parens

patraie, the United States acts on behalf of its citizens

in litigating or resolving environmental enforcement

actions. Where, as here, the government has already

resolved its claims for the same relief sought in the citi-

zen suit, preclusion principles bar a citizen-plaintiff’s

attempt to obtain such relief. See, e.g., Ellis v. Gallatin

Steel Co., 390 F.3d 461, 476 (6th Cir. 2006); U2rted

States EPA v. City of Green Forest, 921 F.2d 1394, 1403-

1404 (8th Cir. 1990), cert. denied, 502 U.S. 956 (1991).

3. The mootness of respondents’ citizen-suit claims

does not necessarily require vacatur of the court of ap-

peals’ judgment. If a case “has become moot” through

12

“happenstance” while “on its way here or pending [this

Court’s] decision on the merits,” vacatur of the court of

appeals’ judgment may be appropriate. United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950); U.S. Bancorp

Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 &

n.3 (1994). Here, however, respondents’ claims became

moot before the court of appeals entered judgment, the

court of appeals expressly addressed mootness (albeit

erroneously), and neither party sought review of the

court of appeals’ mootness determination. Moreover, as

explained below, the petition would not warrant this

Court’s review even if respondents’ citizen-suit claims

remained live, which further counsels against vacatur

when the mooting event predated the court of appeals’

decision and was not raised by either party. In any

event, the mootness of respondents’ citizen-suit claims

poses a formidable barrier to this Court’s review of any

issue on the merits.

B. The Interlocutory Posture Of This Case Counsels Against

This Court’s Review

1. After petitioner filed its interlocutory appeal to

the Ninth Circuit, respondents amended their com-

plaints in the district court to add claims seeking recov-

ery of response costs and natural resource damages,

pursuant to 42 U.S.C. 9607(a)(4). See Am. Compl. 7-8;

First Am. Compl. in Intervention 7-8. Those claims seek

relief for injuries allegedly incurred by respondents,

- tbid., and they are not subject to the limitations on citi-

zen suits discussed above.

Nonetheless, because respondents first asserted

their new, live claims after petitioner filed its interlocu-

tory appeal, those claims were not considered or re-

solved by the courts below, and thus they are not prop-

13

erly before this Court. “[T]his is a court of final review

and not first view.” Adarand Constructors, Inc. v. Min-

eta, 534 U.S. 103, 110 (2001) (citation omitted). More-

over, respondents’ new claims do not and could not fall

within the scope of the district court’s order certifying

an interlocutory appeal under Section 1292(b), because

respondents had not yet asserted those claims at the

time of the district court’s order.

It is also unclear whether the questions presented

here will be dispositive of respondents’ new claims. For

example, the court of appeals correctly observed that,

“{iJn private cost recovery actions under § 9607(a), the

claimant must incur response costs that are both ‘neces-

sary and ‘consistent with the national contingen-

cy plan.” Pet. App. 13a n.13 (quoting 42 U.S.C.

9607(a)(4)(B)). The court did not consider whether those

requirements are met here, however, because they do

not apply to respondents’ citizen-suit claims, which were

the only claims before the court of appeals. Thus, the

appropriate course is for the district court to adjudicate,

in the first instance, respondents’ new cost-recovery and

natural-resources-damages claims.

2. Even in cases where the claims considered by the

lower courts have not become moot, this Court “gener-

ally await{s] final judgment in the lower courts before

exercising [its] certiorari jurisdiction.” VMI v. United

States, 508 U.S. 946 (1993) (opinion of Scalia, J., respect-

ing denial of the petition for a writ of certiorari). The

lack of finality “alone [is] sufficient ground for the denial

of the application.” Hamilton-Brown Shoe Co. v. Wolf

Bros., 240 U.S. 251, 258 (1916).

That principle, while far from absolute, has particu-

lar force here, not only for the reasons discussed above,

but also because further factual development could shed

14

light on the questions presented. For example, peti-

tioner argues (Pet. 25-29) that it is not liable as an ar-

ranger because no third party was involved in the rele-

vant discharges. Even if petitioner’s legal argument is

correct, however, it is at least possible that discovery

will reveal that petitioner hired an independent contrac-

tor to assist in the discharges. Alternatively, respon-

dents might argue on remand that, regardless of any

liability as an arranger, petitioner is liable as an opera-

tor or transporter. The court of appeals correctly ob-

served that EPA’s (now-withdrawn) order is not explic-

itly predicated on an arranger theory of liability, and

that court left open the question whether petitioner

could be held liable as an operator or transporter. Pet.

App. 28a & n.19. Nor has the district court squarely

foreclosed that possibility. See zd. at 46a (noting only

that petitioner did not “appear” to be liable as an owner

or operator). This Court and the courts of appeals have

construed CERCLA’s operator and transporter provi-

sions broadly. See, e.g., United States v. Bestfoods, 524

U.S. 51, 65 (1998) (noting that operator liability could

encompass “even a saboteur who sneaks into [a] facility

at night to discharge its poisons”); Kaiser Aluminum &

Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1343

(9th Cir. 1992) (holding that company that excavated

and graded contaminated soil within a facility may be

liable as an operator and transporter).

C. The Court of Appeals’ Decision Does Not Conflict With De-

cisions Of Other Appellate Courts And Lacks Sufficient

Importance To Warrant This Court’s Review At This Time

Even setting aside the procedural impediments to

this Court’s review, the petition presents a question of

first impression that should be permitted to percolate in

15

the lower courts and that lacks sufficient importance to

warrant this Court’s review at this time.

1. Petitioner does not assert a conflict among the

circuits on the first question presented (involving inter-

national comity), and indeed does not identify any other

decisions addressing that question. The fact that the

comity question in this case is apparently arising now

for the first time, notwithstanding the decades-old po-

tential for disputes concerning cross-border pollution,

strongly suggests that it lacks the recurring importance

that petitioner attributes to it.

As a practical matter, the United States has dealt

with international pollution issues in a variety of ways.

First, as it did here, the United States often attempts to

achieve diplomatic solutions to transborder pollution

issues.” Second, in disputes with Canada, the United

States has discretion to seek advice or dispute resolution

under the Treaty Between the United States and Great

Britain Relating to Boundary Waters Between the

United States and Canada, Jan. 11, 1909, Arts. [X, X, 36

Stat. 2448, 2452, 2453, and has sought such advice jointly

with Canada in the past, though the treaty does not re-

quire the United States to do so. See Ohi0 v. Wyandotte

Chems. Corp., 401 U.S. 493, 507 (1971) (Douglas, J., dis-

senting). Third, there has been some litigation of trans-

border pollution disputes in the United States courts.

See, e.g., Her Majesty the Queen in Right of Ont. v.

* EPA attempted to negotiate with Canada regarding a study of

cross-border pollution on the Columbia River, but negotiations broke

down. The United States also involved Canada in developing the settle-

ment agreement with petitioner, and agreed to give Canada an enhan-

ced consultative role in the remedial investigation process. A represen-

tative of the Canadian government has been actively participating in

technical discussions related to that process.

16

United States EPA, 912 F.2d 1525 (D.C. Cir. 1990);

Michie v. Great Lakes Steel Div., Nat’l Steel Corp., 495

F.2d 213 (6th Cir.), cert. denied, 419 U.S. 997 (1974).

In practice, therefore, issues have been resolved sat-

isfactorily in various ways, without the need for a defini-

tive resolution of the comity question. The order issued

to petitioner represents the only time in the 27 years

since CERCLA’s enactment that EPA has sought to

compel a foreign party to take a response action with

respect to domestic pollution resulting from actions in a

foreign country, and EPA has now withdrawn that or-

der. The United States is aware of only one other effort

(by private parties) to apply CERCLA in an interna-

tional setting, and the Ninth Circuit correctly rejected

that effort because the facility was outside of the United

States. See ARC Ecology v. United States Dep’t of the

Air Force, 411 F.3d 1092 (2005).

2. The court of appeals’ decision does not (Pet. 9)

“threaten[] to disrupt our ties with Canada.” Because

this case involves a direct and compelling United States

interest, an assertion of jurisdiction to prescribe law

would be consistent with considerations of international

comity. Indeed, the Province of British Columbia recog-

nizes that, “to the extent [petitioner] is responsible for

polluting the Columbia River, it may be required to con-

tribute to the cleanup costs.” B.C. Amicus Br. 12 n.6;

see id. at 15 n.8. While Canada and British Columbia

would prefer to resolve this dispute through diplomatic

channels and negotiation rather than litigation in United

States courts—a preference the United States strongly

shares—Canada correctly “recognizes the possibility

that some cases involving transboundary pollution may

appropriately be resolved in the domestic courts of Can-

ada or the United States.” Can. Amicus Br. 6.

17

Canada argues that the court of appeals erred by

“not even acknowledg{ing], let alone analyz[ing], the

relevant factors for determining whether a state may

reasonably prescribe laws with respect ‘to a person or

activity having connections with another state.’” Can.

Amicus Br. 13 (quoting Restatement (Third) of Foreign

Relations Law of the United States § 403(1),. at 244

(1987) (Restatement)). Assuming arguendo that the

Restatement analysis is relevant, however, it only con-

firms that comity concerns would not preclude an asser-

tion of jurisdiction to prescribe in the circumstances of

this case. According to the Restatement, “a state has

jurisdiction to prescribe law with respect to * * * con-

duct outside its territory that has or is intended to have

substantial effect within its territory.” Jd. § 402(1)(c) at

227-228. The Restatement provides, however, that a

state may not exercise such jurisdiction in situations

where it would be “unreasonable” to do so. 7d. § 403(1),

at 244. The Restatement illustrates its approach by ex-

plaining that assertion of jurisdiction based on domestic

effects is “not controversial with respect to acts such as

shooting * * * across a boundary.” /d. § 402 cmt. d at

239. Indeed, “[t]he traditional example” is that “when a

malefactor in State A shoots a victim across the border

in State B, State B can proscribe the harmful conduct.”

Laker Airways Ltd. v. Sabena, Belgian World Airlines,

731 F.2d 909, 922 (D.C. Cir. 1984).

Here, petitioner’s deliberate, 90-year discharge of

millions of tons of hazardous substances into a river just

upstream from the United States directly and foresee-

ably caused harmful effects in the United States. Peti-

tioner’s conduct could arguably be analogized in some

respects to firing a gun across the border, because it was

inevitable that the river would carry the pollution di-

18

rectly into the United States. Moreover, the slag at the

bottom and on the beaches of the Columbia River is

clearly identifiable and directly attributable to peti-

tioner’s actions. Pet. App. 5a.”

Petitioner contends (Pet. 9, 23) that the court of ap-

peals’ decision paves the way for suits over trans-oceanic

pollution such as acid rain or mercury from Asia. Dis-

tant sources that contribute to widespread and diffuse

air pollution, however, present a much different case

from this one, and are in no way analogous to the “tradi-

tional example” (Laker Airways, 731 F.2d at 922) of a

gun being fired across a border. Thus, it would not nec-

essarily follow from the assertion of jurisdiction in this

case that the courts of the United States would exercise

jurisdiction in the cases posited by petitioner. More-

over, this Nation’s courts might lack personal jurisdic-

tion in those cases. Cf. Pet. App. 34a-35a (basing per-

sonal jurisdiction in this case on respondents’ allegation

that petitioner intentionally aimed its slag at the United

States and caused harm that petitioner knew was likely

to be suffered downstream).

3. The arranger-liability question does not inde-

pendently warrant this Court’s review. CERCLA’s ar-

ranger-liability provision refers to:

any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with

a transporter for transport for disposal or treatment,

* The position of the United States is that the reasonableness test set

forth in the Restatement does not restrict the United States’ jurisdic-

tion to prescribe. Nonetheless, that test, which Canada invoked, con-

firms that considerations of comity would not preclude an assertion of

jurisdiction to prescribe in the circumstances of this case.

- 19

of hazardous substances owned or possessed by such

person, by any other party or entity, at any facility.

42 U.S.C. 9607(a)(3). Petitioner argues (Pet. 25-29) that

it is not liable as an arranger because it disposed of the

slag itself, without involving a third party.

There is no conflict among the circuits on that ques-

tion. In American Cyanamid Co. v. Capuano, 381 F.3d

6 (1st Cir. 2004), on which petitioner relies (Pet. 25-26),

the owner of hazardous substances arranged with a bro-

ker to dispose of them. 381 F.3d at 25. Thus, that case

did not present the question whether a person who dis-

poses of hazardous substances without the involvement

of a third party can be liable as an arranger; instead, the

question was whether “arranger liability can only be

imposed on a party that owned or possessed hazardous

materials, not on a party that brokered the disposal of

hazardous material.” /d. at 23. After determining that

arranger liability is no#limited to owners of hazardous

substances, the court upheld the imposition of arranger

liability in that case. /d. at 25. The First Circuit’s impo-

sition of arranger liability in Americar Cyanamid in no

way conflicts with the court of appeals’ determination

that, if the allegations of respondents’ complaints are

true, petitioner is also liable as an arranger under the

far different circumstances of this case.

To be sure, in reaching its conclusion, the First Cir-

cuit construed the statutory phrase “by any other party

or entity” to modify “disposal or treatment,” rather than

“owned or possessed by such person.” American Cya-

namid, 381 F.3d at 23-24. And the court said in passing

that a consequence of its reading is that, “for arranger

liability to attach, the disposal or treatment must be

performed by another party or entity, as was the case

here.” /d. at 24. But that passing observation was dic-

20

tum because, as the court observed, a third party was

involved there. See ibid.

In any event, the arranger-liability question pre-

sented here seldom has practical significance because,

if a party is liable as an arranger on the theory adopted

by the court of appeals, it ordinarily will also be liable as

an owner, operator, or transporter. When all of the rele-

vant conduct occurs domestically, the relevant “facility”

normally includes the entire affected area, in which case

it is generally clear that an owner or operator released

hazardous substances within the facility. Alternatively,

operator or transporter liability can attach to surrepti-

tious dumping or other activity on another person’s land.

See, e.g., Bestfoods, 524 U.S. at 65; Kaiser Aluminum,

976 F.2d at 1343.

Thus, petitioner cites no case in which the arranger-

liability question at issue here was outcome-determina-

tive. In American Cyanamid itself, the court of appeals’

imposition of arranger liability was an alternative hold-

ing, because the court held that the arranger was also

liable as an operator. 381 F.3d at 22-25. As discussed,

it is not even clear that the arranger-liability question

presented here will ultimately be dispositive in this case.

See pp. 13-14, supra. Thus, that question does not inde-

pendently warrant this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOVEMBER 2007

PAUL D. CLEMENT

Solicitor General

RONALD J. TENPAS

Acting Assistant Attorney

General

THOMAS G. HUNGAR

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General

ROBERT H. OAKLEY

KATHERINE J. BARTON

Attorneys