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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 2006

## Text

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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that EPA has withdrawn the order that respondents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: .’

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2229%3A08. Public record. Not legal advice.