Amicus Curiae Brief — Teck Cominco Metals, Ltd. v. Pakoototas (No. 06-1188)

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MAY 2~ 2007

SOPRICE OR TE CLERK |

No. 06-1188

IN THE

Supreme Court of the United States

TECK COMINCO METALS, LTD.,

a Canadian corporation,

Petitioner,

Vv.

JOSEPH A. PAKOOTAS, an individual and enrolled member of

the Confederated Tribes of the Colville Reservation;

DONALD R. MICHEL, an individual and enrolled member of

the Confederated Tribes of the Colville Reservation;

STATE OF WASHINGTON,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE NINTH CIRCUIT

AMICUS CURIAE BRIEF OF CONSUMER ELECTRONICS

ASSOCIATION IN SUPPORT OF PETITIONER

_—_o

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PARKER E. BRUGGE JoserH A. Hearst

SENIOR DiRECTOR AND Counsel of Record

ENVIRONMENTAL COUNSEL PMB 525

CONSUMER ELECTRONICS 1563 Solano Avenue

ASSOCIATION Berkeley, CA 94707

2500 Wilson Boulevard (510) 528-6863

Arlington, VA 22201

(703) 907-7765

Counsel for Amicus Curiae

Consumer Electronics Association

208465 ce)

COUNSE’ PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................... i

Interest OF Amicus Coriae .......cccccvcccccces l

SE Ee FEE co cece cccvccccecvcecces 4

Tete ccc e hee eserceeseesseneeeseses 5

I. The Ninth Circuit Decision Imperils A

Promising Method of Recycling E-Waste. . . 5

Il. The Ninth Circuit Decision Threatens “Tit for

Tat” Retaliation From Other Countries. .... v)

eee eebeneess 1]

TABLE OF CITED AUTHORITIES

Page

Statutes:

gk oe Rs rer rr rrr Tree cer ee 9

SS OBEEG CIID coc ccceccccencccccecayeee 9

FTEs TE kon ene ncdcdwedeobddacentes 9

Regulations:

“Hazardous Waste Management System;

Modification of the Hazardous Waste Program;

Cathode Ray Tubes,” 71 Fed.Reg. 42928-01

CY SED. 0 640s pocckvccaesevtvmsaeans 5

Other Authorities:

Interview With Susan Knoerr, Manager, Technical

and Business Development, and David Goosen,

Business Development Superintendent, Teck

Cominco, published at Attp://www.south

kootenay.com/ems/Teck_Cominco_Q_A.400.0.

PP EP ee re ere 7

Maj. George J. Korioval, “Electronic Waste Control

Legislation: Observations on a New Dimension

in State Environmental Regulation, 58 Air Force

i ey DOE nto kee 6-c6usebuwenseuews 6

U.S. EPA Report, “Electronics Waste Management

In the U.S.” (May 1, 2006), published at http://

www.epa.gov/ecycling/manage.htm .......... 5

INTEREST OF AMICUS CURIAE

Amicus curiae Consumer Electronics Association

(“CEA”) is the preeminent trade association of the United

States consumer electronics industry. It has more than 2000

members, the overwhelming majority located in the United

States, involved in all aspects of the consumer electronics

industry in North America and overseas. CEA members are

involved in the design, development, manufacturing,

distribution and integration of audio, video, in-vehicle

electronics, wireless and landline communication,

information technology, home networking, multimedia and

accessory products, as well as related services that are sold

through consumer channels. CEA’s members contribute over

$125 billion to the US economy annually. '

For many years, CEA and its member companies have

supported responsible recycling of used electronics products.

That policy requires that safe and reliable methods of

recycling “e-waste” be available. The petitioner here, Teck

Cominco Metals, Ltd., is in the early stages of development

of a program to use its existing facilities at the Trail Smelter

in British Columbia (the facility at issue in this case) to

recycle e-waste, using shredded electronics components in

one of Teck Cominco’s smelters. The plastic and wood

components of the waste burn, generating heat recovered in

steam boilers. The metals are recovered through the

t. No counsel for any party authored this brief. No person or

entity, other than amicus curiae Consumer Electronics Association,

made 2 monetary contribution to the preparation or submission of

this brief. Amicus curiae has previously submitted letters from

counsel for the respondents consenting to the filing of this brief. A

letter consenting to the filing of all amicus curiae briefs by counsel

for the petitioner is on file with the Court.

metallurgical processes in the furnace, while the residual

material is blended with the ferrous granules that result from

other smelting processes and are used in the production of

cement.

CEA has a keen interest in the success of Teck Cominco’s

e-waste recycling project, as well as in the development of

other environmentally responsible e-waste disposal methods.

By imposing CERCLA liability for activities conducted

outside the United States, however, the Ninth Circuit’s

decision in this matter directly threatens the viability of Teck

Cominco’s pilot project. Indeed, the decision, if allowed to

stand, may well shut down Teck Cominco’s recycling project.

Such a shutdown could divert more and more e-waste away

from beneficial reuse and into landfills, where it may present

environmental problems if not properly managed.

Equally important, CEA is concerned that the Ninth

Circuit’s approach will spark “tit for tat” retaliation. If this

country’s environmental laws are applied to conduct that

takes place outside its borders, it is reasonable to assume

that other countries will enact or enforce laws that hold

American companies liable for pollution that takes place

entirely in this country but travels through the air, earth or

water to other countries. Indeed, the Canadian government

has already warned the Environmental Protection Agency of

the potential for retaliatory action in its response to EPA’s

issuance of a CERCLA order to Teck Cominco. Pet. App.

100a.

Since the United States is a net exporter of pollution,

this means that businesses in this country might be forced to

divert resources from ameliorating the pollution they produce

inside the United States to complying with “extraterritorial”

pollution laws outside the United States, notwithstanding that

these businesses are fully compliant with American

environmental law. The possibility of “extraterritorial”

pollution liability may well threaten the economic viability

of the activities of many CEA members, particularly those

located in border states.

CEA believes that cross-border pollution issues are better

dealt with by intergovernmental negotiation than by private

litigation, and believes this Court should consider the adverse

consequences resulting from the Ninth Circuit’s decision.

Further, CEA has for many years advocated that

policyrnakers attempt to set a national recycling and waste-

disposal policy for e-waste, rather than relying on the current

inefficient patchwork of state-by-state regulation. The Ninth

Circuit’s decision will in effect impose a similar patchwork

regulatory scheme for the regulation of cross-border

pollution, with judicial decisionmaking in private litigation

dictating transboundary waste management policy for both

the U.S. and neighboring sovereigns. That approach has not

been sanctioned by Congress and should not be adopted by

judicial fiat.

The CEA thus urges this Court to grant the petition for a

writ of certiorari.

SUMMARY OF ARGUMENT

Disposal of used electronic components, or “e-waste,”

is a serious problem in the United States. When e-waste is

not recycled, it ends up in landfills, where it can pollute

groundwater if not managed properly. As the largest trade

organization for the consumer electronics industry in the

United States, CEA supports responsible recycling of e-waste.

Unfortunately, the decision at issue here threatens the

viability of a promising method for recycling e-waste.

Teck Cominco, the petitioner, is currently testing a pilot

program to recycle e-waste in one of the smelters at its Trail,

British Columbia plant. The experimental process recycles

the metals found in e-waste and completely disposes of non-

metal components. The pilot program has been developed in

consultation with and is permitted by the British Columbia

government.

By imposing CERCLA liability on Teck Cominco for

activities taking place entirely outside the United States, the

Ninth Circuit decision at issue here threatens the viability of

the Teck Cominco experimental recycling project. If the

decision stands, Teck Cominco may well be forced to cancel

or suspend its e-waste recycling project. The result, ironically,

will be more potential pollution problems in the United

States, as e-waste is sent to landfills rather than recycled.

Moreover, the Ninth Circuit decision threatens retaliation

by other countries. If a business can be held liable in the

United States for “polluting” conduct that occurred wholly

outside the United States and was in compliance with

environmental laws in the country where the conduct took

place, American-based businesses can equally be held liable

in other countries for the environmental consequences of

their acts inside the United States. If such “tit for tat”

environmental regulation should become common, CEA’s

members and other American-based businesses will suffer,

as will the environment in the United States.

The best solution to transboundary pollution problems

is diplomacy. The Ninth Circuit decision commits such

problems to the vagaries of private litigation and should be

reversed.

ARGUMENT

I. The Ninth Circuit Decision Imperils A Promising

Method of Recycling E-Waste.

The U.S. Environmental Protection Agency estimates

that over 2 million tons of waste from discarded electronics

components is generated each year in the United States. U.S.

EPA Report, “Electronics Waste Management In the U.S.”

(May 1, 2006).? This “e-waste” may contain appreciable

levels of lead, mercury, cadmium, arsenic and other

compounds which, if not disposed of properly, can create

environmental problems.’ Moreover, e-waste is a valuable

source for secondary raw materials. See, Maj. George J.

2. This report can be found at http://www.epa.gov/ecycling/

manage.htm.

3. For example, the Environmental Protection Agency has noted

that “[t]elevisions and color computer monitors contain an average

of 4 pounds of lead,” as well as other constituents such as mercury,

cadmium and arsenic. “Hazardous Waste Management System;

Modification of the Hazardous Waste Program; Cathode Ray Tubes,”

71 Fed.Reg. 42928-01, 42930, 42931 (July 28, 2006).

Konoval, “Electronic Waste Control Legislation:

Observations on a New Dimension in State Environmental

Regulation, 58 Air Force L. Rev. 147, 152-53 (2006) (noting

that one metric tonne of computer scrap contains between

50 and 800 times the concentration of gold in gold ore and

30 to 40 times the concentration of copper in copper ore).

The vast majority of this waste currently is not recycled, and

in many instances, ends up in landfills. If not managed

properly in landfills, metals and possibly harmful chemicals

can leach from e-waste into the soil or groundwater.

Id. at 150-51.

Amicus curiae CEA has long advocated for responsible

solutions to the problem of e-waste. Indeed, CEA believes

that a consistent, environmentally-responsible policy for

disposing of e-waste is vital to the economic health of the

consumer electronics industry. CEA has generally supported

market-based solutions to the problem and strongly supports

efforts to create recycling programs in the United States. CEA

has long advocated a national solution to the issue of e-waste,

and in particular has sought a uniform national policy, to

prevent a welter of possibly-inconsistent state regulations.

Consistent with this approach, CEA has a special interest

in a pilot program now being implemented at the Teck

Cominco smelter in Trail, British Columbia. Teck Cominco

has designed an innovative process that allows complete

destruction or recovery of e-waste. In Teck Cominco’s

process, shredded electronic components are placed in an

existing smelter, where the combustible wood and plastic

materials burn at high temperatures as fuel, generating heat

that is recovered in steam boilers. The metals present,

including copper, iron, nickel, palladium, platinum, silver

and gold, are recovered through metallurgical processes.

Residual material is blended with ferrous granules that are

the end product of re-refining the “slag” produced by zinc

smelting; these granules are then used in the manufacture of

cement. Throughout the process, resulting gases are scrubbed

and cleaned.‘

Teck Cominco’s pilot project will recycle up to 3000

metric tonnes of e-waste per year. See, South Kootenay

Interview. Teck Cominco is hopeful that, if the pilot project

is successful, it will be able to “scale-up” to 20,000 tonnes

per year, an amount equal to 10% of the e-waste annually

produced in Canada. /d. Depending upon economies of scale,

Teck Cominco may ultimately be able to recycle as much as

60,000 tonnes of e-waste annually.

The pilot e-waste recycling project has been conducted

in cooperation with and is fully permitted by the British

Columbia government.

If the pilot project succeeds, CEA is hopeful that other

metal refiners in North America will follow Teck Cominco’s

lead, thus making it possible to recycle e-waste throughout

the continent without the potential adverse environmental

effects caused by improper disposal of e-waste. At present,

however, only two other such metal-refining recycling

projects exist, one in Québec and another in Sweden.

See South Kootenay Interview.

4. Teck Cominco’s e-waste recycling process is described in

an interview with Susan Knoerr, Manager, Technical and Business

Development, and David Goosen, Business Development

Superintendent; Teck Cominco, published at Attp://www.south

kootenay.com/cms/Teck_Cominco_Q_A.400.0.html (hereafter,

“South Kootenay Interview”).

CEA thus has a keen interest in the success of Teck

Cominco’s pilot recycling project. CEA believes that the

Ninth Circuit decision that is the subject of the petition for

certiorari imperils that project. The Ninth Circuit essentially

held that a foreign business operating entirely outside the

United States can be held liable for violations of United States

environmental laws if any pollutants discharged by that

business enter the United States. Because there is no such

thing as a “zero discharge facility,” the practical effect of

such a ruling is that foreign businesses concerned that any

pollution they produce might migrate to the United States—

through the atmosphere, freshwater or coastal seawater—will

have to shut down production. Thus, even though Teck

Cominco is discharging whatever waste it may produce at

its Trail Smelter in compliance with environmental permits

from the Province of British Columbia, there is a very real

danger that Teck Cominco will have to discontinue its pilot

e-waste recycling project if the Ninth Circuit’s decision

stands.

If Teck Cominco cannot continue its pilot project, CEA’s

members—and the American public—will have lost one of

the most promising avenues for the disposal of the increasing

quantities of e-waste. The result, ironically, will be more

potential pollution problems, in the form of landfill waste in

North America that must be managed and monitored.

The issue here is not a matter of allowing unchecked

“offshore” pollution; as noted, the Teck Cominco pilot project

has been developed in consultation with and conducted under

a permit from the British Columbia governmeni. But under

the Ninth Circuit’s reasoning, Teck Cominco may be held

liable in the United States for conduct that is fully consistent

with the environmental laws of the country in which that

conduct took place.’ The result will be more landfill waste

and more potential environmental problems in the United

States than would be the case if this country’s environmental

laws had not been applied to Teck Cominco. Such a result is

perverse.

II. The Ninth Circuit Decision Threatens “Tit for Tat’’

Retaliation From Other Countries.

Leaving aside its impact on Teck Cominco’s pilot e-waste

recycling project, CEA is concerned about the broader impact

of the Ninth Circuit ruling on its members caused by the

likely response of other governments to the Ninth Circuit’s

overreaching. When a court in the United States applies this

country’s environmental statutes to conduct that occurs

outside the country’s borders, it invites “tit for tat” retaliation

by other countries.

If American environmental laws can be applied to make

foreign corporations operating entirely outside the United

States liable for the American effects of their foreign conduct,

other nations may soon enact or interpret their laws to make

5. Indeed, Teck Cominco is in a worse situation concerning

potential CERCLA liability than an American manufacturer. While

an American manufacturer might be able to receive a permit under

the Clean Water Act or the Clean Air Act that would exempt it from

liability under CERCLA (see 42 U.S.C. § 9607(j), exempting any

“federally permitted release”), such a permit would not be available

to Teck Cominco for operations in Canada (see, e.g., 33 U.S.C.

§ 1342, allowing permits for discharges of pollutants into “navigable

waters,” which are defined in 33 U.S.C. § 1362(7) as “waters of the

United States”). Thus, Teck Cominco might be held liable under

CERCLA for conduct in Canada that would not be actionable if that

condaet took place in the United States.

manufacturers based in the United States liable for the foreign

effects of their activities inside this country. Indeed, the

record in this case demonstrates precisely this danger. The

Canadian government warned in a diplomatic note

responding to the EPA’s administrative order requiring Teck

Cominco to begin a CERCLA assessment that the EPA order

“may set an unfortunate precedent, by causing transboundary

environmental liability cases to be initiated in both Canada

and the United States.” Pet. Appx. 100a, emphasis added.

The obvious import of the emphasized language is that,

absent diplomatic resolution, transboundary pollution

disputes might well embroil manufacturers based in the

United States in private litigation in Canada and elsewhere.

The danger of this sort of action is that even if a business

is operating in full compliance with American environmental!

laws, it remains potentially liable for “offshore” pollution

caused by its permitted conduct. Such offshore liability might

well have devastating effects on the members of CEA. The

American consumer electronics industry is the largest in the

world and its members are proud of their record of

compliance with United States environmental law. However,

because of its sheer size, the American electronics industry

is vulnerable to claims by foreigners that conduct in the

United States violated environmental laws elsewhere.

If the Ninth Circuit’s ruling stands, foreign plaintiffs

might well sue U.S. businesses for purported environmental

wrongs occurring outside the United States, even if the

“polluting” conduct took place entirely inside the United

States in compliance with American environmental laws.

Such a result would not only be unfair, it would divert

resources that businesses in the United States devote to

pollution control in this country to pay for environmental

amelioration or compliance overseas.

CEA believes that disputes over transboundary pollution

are best resolved by government-to-government negotiation,

rather than through private litigation. Indeed, the record of

bilateral negotiation between the United States and Canada

over environmental issues, discussed in detail in Teck

Cominco’s petition for certiorari, is admirable. The Ninth

Circuit decision threatens to upset this established regime.

The decision is not only potentially counterproductive from

an environmental point of view, but destructive from a foreign

policy perspective.

CONCLUSION

The: petition for a writ of certiorari should be granted.

Respectfully submitted,

PARKER E. BRUGGE JosePH A. HEARST