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

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No. 06-1188 MAY 2- 2007

| OFFICE OF THE CLERK J

Sn The

Supreme Court of the Gnited States

TECK COMINCO METALS, LTD.,

Petitioner,

JOSEPH A. PAKOOTAS, DONALD R. MICHEL,

and STATE OF WASHINGTON,

Respondents.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICUS CURIAE HER MAJESTY

THE QUEEN IN RIGHT OF THE PROVINCE OF

BRITISH COLUMBIA IN SUPPORT OF PETITIONER

BRIAN W. GRIMM

Counsel of Record

ALEXANDER A. BAEHR

JOHN B. SCHOCHET

DORSEY & WHITNEY LLP

U.S. Bank Centre

1420 Fifth Avenue, Suite 3400

Seattle, WA 98101

(206) 903-8800

Counsel for Amicus Curiae

Her Majesty the Queen in Right

of the Province of British Columbia

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE HER MAJESTY

THE QUEEN IN RIGHT OF THE PROVINCE OF

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UNMET GPE FEREs CASES ...ccccccscccsessecsscscossecsssosees 5

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A. The United States and Canada, at both the

federal and state/provincial levels, have differ-

ent environmental regulatory schemes, but

they share the same ultimate goals of protect-

ing the environment while promoting economic

Nee oss cc ccvevcncevsenvevessece 7

B. The Court of Appeals mistakenly treated

Respondents’ suit as “domestic” by narrowly

focusing on the fact that the pollution cur-

rently lies on the American side of the border

and neglecting to read CERCLA as part of a

broader “constellation” of environmental regu-

Nee ls sc scssssdessnneveueseveveerovcseserees 8

C. Considering principles of international comity,

fairly and properly addressing cross-border

pollution issues requires bilateral negotiation

and agreements, not unilateral judicial action

by one country’s courts under one country’s

Co ivecsccawinstbsversereverecncesesevs 12

D. Application of CERCLA to conduct within

British Columbia interferes with the province’s

environmental regulation scheme and would

Tee i cdvivcsenvereseessuerererrsteesseereees 17

Neen scree veseeaceaveisesevecevsrestecsescont 20

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Benz v. Compania Naviera Hidalgo, S.A., 353 U.S.

Re eitcttnesivtstnietitentatieacteasiieciuaiate este 16

Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996) ........... fe)

McCulloch v. Sociedad Nacional de Marineros de

ameauTas, STB UB. 1B CHBGB) cncevseceresssencsvcsscnscevecesonnes 16

Murray v. Schooner Charming Betsy, 6 U.S. (2

CS GRE i viscacinidsisdincinactibeiiaibniiameaniiviay 16

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

Re ee Cie Be vctndscnscicesacciticebvessmsanabesmiaianscumancs 1,19

Sale v. Haitian Centers Council, Inc., 509 U.S. 155

Ci scidscsssnindedcninistatbbineennisctliaiipmdicacaiidhdcdeucincaiatia clans aeeaian 16

FEDERAL CONSTITUTIONAL PROVISIONS AND STATUTES

Resource Conservation and Recovery Act (“RCRA”),

Se TEs Be 0 UO sricienctesicittnesbtecereenatineeen 9

Comprehensive Environmental Response, Compen-

sation, and Liability Act (“CERCLA”), 42 U.S.C.

Oe Oe i sisi vtacsisietinninsaeindctaatenisetenanienoe passim

GE Ga Fe ictiitensciciciniisacccivnnnianieiiaedenitaiaa 17, 18

Clean Air Act, 42 U.S.C. § 7401 et seq. ...........cceseccceeeseeeees 19

GE ils © Pei witsiiiancnisisininiicerdininuminnsaiauneeinnta aan 19

SF Ee: OR FD vs csccsiicccntntochsaecensianlaacaamaiae 2,5

Sis CAME: NG WE, Bi siscccnnsncnncteavubdnelocsuaicennvscstenaenmaieen 15

U.S. Const. amend. X................ ppretibdiniisudamdiecsespemainnaaiel 2

TABLE OF AUTHORITIES —- Continued

Page

CANADIAN CASES

Canadian National Railway Co. v. Director Under

the Environmental Protection Act, [1991] 3

ee I Gs INS ID vi avcrtticictnesensicnnosnionicessehieitiseniavess 2

Interprovincial Co-Operatives Ltd. v. The Queen in

Right of Manitoba, [1976] 1S.C.R. 477 (Can.).............. 11

The Queen in Right of Alberta v. Friends of the

Oldman River Society, [1992] 1 S.C.R. 3 (Can.)............. 2

CANADIAN CONSTITUTIONAL PROVISIONS AND STATUTES

Can. Const. (Constitution Act, 1867) art. VI, § 91............. 2

Can. Const. (Constitution Act, 1867) art. VI, § 92......... 1.3

Can. Const. (Constitution Act, 1867) art. IX, § 132............ 4

Part 4 of the British Columbia Environmental

Management Act, S.B.C. 2003, Ch. 53............... 2, 3, 8, 17

TREATIES

Treaty Between the United States and Great

Britain Relating to Boundary Waters Between

the United States and Canada, U.S.-Gr. Brit.,

Jan. 11, 1909, 36 Stat. 24645G........ccccorsccccccrsccseeess 12, 14, 15

MISCELLANEOUS

Austen L. Parrish, Trail Smelter Déja Vu: Extrater-

ritoriality, International Environmental Law,

and the Search for Solutions to Canadian-U.S.

Transboundary Water Pollution Disputes, 85 B.U.

SRS aT ct era NEE OTN rr Nr re 15

TABLE OF AUTHORITIES - Continued

Page

John C. Turchin & Risa Schwartz, Beyond Trail

Smelter: Assessing the Changes in International

Environmental Law, in Environmental Law: The

Year in Review 2006 105 (Stanley D. Berger &

RN NG EN, BOT ferividscktncdssecnesatccipinstteicivakeinneeds 20

Restatement (Third) of Foreign Relations Law

IE swiictinditiassinseseetceieinseciaaysciten digitale ikea Manbanese 12

Thomas W. Merrill, Golden Rules for Transbound-

ary Pollution, 46 Duke L.J. 931, 947 (1997)............... 15

INTEREST OF AMICUS CURIAE HER

MAJESTY THE QUEEN IN RIGHT OF THE

PROVINCE OF BRITISH COLUMBIA

Her Majesty the Queen in Right of the Province of

British Columbia (“British Columbia”) respectfully sub-

mits this brief in accordance with Supreme Court Rule

37.1.’ British Columbia asks this Court to grant the

petition filed by Teck Cominco Metals, Ltd. and review the

decision below of the United States Court of Appeals for

the Ninth Circuit.’

British Columbia is one of ten Canadian provinces. It

has a population of more than four million, the third largest

in Canada. British Columbia shares a 1,347-mile border

with the United States — 561 miles adjacent to Washington,

Idaho, and Montana, and 786 miles adjacent to Alaska.

Every American state along the British Columbia-United

States border lies within the Ninth Judicial] Circuit, making

British Columbia more affected than any other Canadian

province by the Court of Appeals’ decision in this case.

British Columbia, like all Canadian provinces, has

significant exclusive and shared governmental powers

under the Canadian Constitution. See Can. Const. art. VI,

' The parties have consented to the filing of this brief. Letters

indicating their consent have been filed with the Clerk of the Court. This

brief was authored by Dorsey & Whitney LLP, counsel] for British

Columbia. Pursuant to Rule 37.6, British Columbia hereby affirms that

no counsel for a party authored this brief in whole or in part, and that no

persons or entities other than the province made any monetary contnbu-

tion to the preparation or submission of this brief.

* The Court of Appeals’ decision below, Pakootas v. Teck Cominco

Metals, Ltd. (Ninth Circuit Case No. 05-35153), is reprinted in the

appendix to the petition and is published at 452 F.3d 1066.

§ 92 (Constitution Act, 1867) (granting certain exclusive

powers to the provincial legislatures). The Canadian

federal system of allocating powers between the federal

and provincial governments is comparable to, but not

identical to, the American federal system. Compare id. art.

VI, §§ 91 & 92 (allocating powers between federal and

provincial governments) with U.S. Const. art. I, §8 &

amend. X (allocating powers between federal and state

governments).

In Canada, environmental regulation, including

regulation of discharges into the environment and reme-

dial regulation governing cleanup of polluted sites, is

largely a provincial responsibility. See, e.g., The Queen in

Right of Alberta uv. Friends of the Oldman River Soc’y,

[1992] 1 S.C.R. 3 (Can.) (explaining the federal-provincial

division of environmental regulatory authority under

Sections 91 and 92 of the Constitution Act, 1867); Cana-

dian Nat'l Ry. Co. v. Director Under the Envtl. Prot. Act,

[1991} 3 O.R.3d 609, 943 (Ont. Div. Ct.) (“Pollution is not a

single matter assigned by the Constitution exclusively to

one level of government. It is an aggregate of matters,

which come within various classes of subjects, some within

federal jurisdiction and others within provincial jurisdic-

tion.”). Although the American statute at issue in the

Court of Appeals’ decision, the Comprehensive Environ-

mental Response, Compensation, and Liability Act (“CER-

CLA”), 42 U.S.C. § 9601 et seg., is a federal act, the

comparable Canadian version of CERCLA is Part 4 of the

British Columbia Environmental Management Act, S.B.C.

2003, Ch. 53 (Contaminated Site Remediation).’ Thus, the

* For purposes of this brief, general references to “Canadian law”

mean both federal] and provincial law, whichever is applicable in a

(Continued on following page)

Court of Appeals’ decision holding that an American

federal statute could apply to conduct that occurred

entirely in Canada specifically impacts British Columbia’s

jurisdiction to regulate environmental cleanup necessi-

tated by pollution produced within the province, and the

province of British Columbia has a significant interest in

Teck’s petition for certiorari.

In explaining that Canada’s counterparts to CERCLA

are provincial rather than federal, British Columbia does

not mean to suggest that Part 4 of the Environmental

Management Act would exclusively regulate the cleanup of

the Columbia River site. Rather, as more fully discussed in

the argument section of this brief, see infra § C, interna-

tional law and principles of comity require that instances

of cross-border pollution such as that in this case be

addressed through bilateral agreements whenever possi-

ble. CERCLA governs cleanup of American pollution in the

United States, and Part 4 of the Environmental Manage-

ment Act governs cleanup of Canadian pollution in British

Columbia, but applying one country’s statutes to conduct

in the other’s territory violates sovereignty and harms

comity.

British Columbia also has an interest in this case

because ‘Teck is headquartered in Vancouver and has

many operations throughout the province. As a significant

contributor to the provincial economy and the development

of its resources, Teck and its facilities benefit the people of

British Columbia. British Columbia, therefore, would like

particular situation, and general references to “American law” mean

both federal and state Jaw, whichever is applicable in a particular

situation.

to ensure that Teck is treated fairly in assessing cleanup

costs for pollution at the Columbia River site. If Teck — or,

for that matter, any other British Columbia business in a

position to directly or indirectly cause pollution across the

U.S.-Canada border — is to be held responsible for cleanup

costs in the United States, it is only fair that those cleanup

costs be assessed in a manner that recognizes and ac-

counts for the cross-border, international nature of the

environmental contamination. Unilaterally applying the

laws of one country without any sort of bilateral agree-

ment fails to recognize that cross-border pollution is an

international issue, and British Columbia strongly opposes

this unilateral approach taken by the Court of Appeals.

In essence, British Columbia’s interest in the petition

is based on (1) the provincial government’s significant role

in environmental regulation within its borders and (2)

British Columbia’s view that businesses operating within

the province and contributing to its economy — like Teck —

should not be subject to private lawsuits in the United

States under exclusively American law for conduct that

took place entirely in Canada. Accordingly, British Colum-

bia is filing this brief to make the following case to this

Court: Whatever CERCLA’s statutory structure, environ-

mental regulation of discharge and cleanup of pollutants

that cross the U.S.-Canada border in either direction

should be addressed, wherever possible, through bilateral

negotiation and agreements between the two countries,

not private lawsuits in one country’s courts.‘

* Formal international negotiations are primarily a matter for the

Canadian and American federal governments; under the Canadian

Constitution, Bntish Columbia, like American states, does not have

treaty powers. See Can. Const. (Constitution Act, 1867) art. IX, § 132;

(Continued on following page)

STATEMENT OF THE CASE

The facts most important to this brief, which British

Columbia wishes to emphasize, are as follows:

Columbia River have been regulated under

British Columbia and Canadian law from

the outset of the smelter’s operations in the

early 1900s. The discharge of slag was

authorized in accordance with provincial

regulations until 1995, when updated as-

sessments of environmental impacts re-

sulted in a prohibition against any further

discharge of slag into the river. The provin-

cial regulations were also updated to require

reductions in the discharge of metals to the

river, which was accomplished through up-

grades in smelter technology and pollution

control equipment.

° The Trail Smelter is located in British Co-

lumbia, and discharges of effluent from the

smelter were released into the Columbia

River well inside British Columbia, ap-

proximately ten miles upstream from the

U.S.-Canada border. Such pollutants en-

tered the United States by traveling down

the Columbia River.

U.S. Const. art. I, § 8. Because the federal government of Canada is

equipped to represent the interests of the provinces in these bilateral

negotiations, British Columbia has a strong interest in ensuring that

the Canadian federal government is able to continue representing the

provinces’ interests in bilatera] negotiations with the United States.

Furthermore, although not formal international treaties, British

Columbia also often works with neighboring states to reach agreements

on environmental matters that are local in nature. See infra § C; infra

note 7; App. 4-33.

e If Respondents successfully brought a private

CERCLA action against Teck, liability for the

Columbia River cleanup would be unilater-

ally assessed under American law with no

regard to the possibility of reaching an

agreement between Teck, Canadian federal

and provincial governments, and American

federal, state, and tribal governments.

¢ The Canadian federal government has at-

tempted to initiate discussions with the

United States regarding the Columbia River

cleanup, noting that while “Canada is op-

posed to enforcement of CERCLA against

Teck... , a Canadian company operating in

Canada,” Teck “has offered to pay the costs

of an investigation and remediation of the

health and environmental risks attributable

to its operations, but only under the terms of

an international instrument and a binding

commitment with the Canadian govern-

ment.” Letter from the Canadian Depart-

ment of Foreign Affairs and International

Trade to the U.S. Department of State,

dated Nov. 23, 2004 (App. 1-3) (presented to

the Court of Appeals in the Appendix to the

Government of Canada’s Amicus Curiae

Brief). |

ARGUMENT

The Court of Appeals disregarded the international

and intergovernmental complexities inherent in trans-

boundary pollution cases by unilaterally and exclusively

applying American law to Teck, a Canadian company

operating a smelter in British Columbia. The Court of

Appeals’ decision to apply American law without regard to

the fact that Teck’s discharges occurred in British Colum-

bia conflicts with long-established principles of interna-

tional comity. Cross-border environmental issues should be

addressed through bilateral] negotiations and agreements,

not unilateral application of one country’s laws to conduct

occurring in the other country’s territory. This Court

should grant Teck’s petition in order to reestablish the

importance of international comity in resolving cross-

border disputes.

A. The United States and Canada, at both the

federal and state/provincial levels, have differ-

ent environmental regulatory schemes, but they

share the same ultimate goals of protecting the

environment while promoting economic devel-

opment.

Canada and the United States are both industrialized,

resource-rich countries, and they both have federal sys-

tems of government with constitutional divisions of power

between the federal and state/provincial governments.

Like the American federal and state governments, the

Canadian federal and provincial governments all share the

common goal of balancing environmental protection and

resource preservation with economic growth and respect

for private property rights. This is not an easy balance to

manage, but it is important that any government seeking

the best interests of its people make its best effort to

manage this balance fairly and effectively.

The American federal and state governments employ

various laws in their attempts to manage this difficult

balance. One of these laws is CERCLA, which provides for,

among other things, a private right of action against

parties potentially liable for cleanup of polluted sites.

British Columbia does not quarrel with the United States’

decision to enact CERCLA and create private litigation

regarding environmental cleanup, so long as that litigation

stays within the United States. Part 4 of the Environ-

mental Management Act, like CERCLA, provides means to

ensure cleanup of polluted sites within British Columbia,

but, unlike CERCLA, it is enforced exclusively by the

provincial government, not private litigation.

It is immaterial whether CERCLA or the Environmental

Management Act represents the more effective framework

for ensuring cleanup of polluted sites. All that matters is that

the United States and Canada have chosen different ways of

approaching this difficult and important issue — the United

States enacted CERCLA, and Canada has left the matter

largely to the provinces, leading to Part 4 of British Colum-

bia’s Environmental Management Act. Allowing Canada and

the United States to manage their own environmental affairs

is, of course, perfectly fair as long as the pollution remains in

the jurisdiction whence it came. The problem, as in this case,

arises when the pollution crosses an international border.

The Court of Appeals chose to fall back on a technical read-

ing of the CERCLA statute, willfully ignoring the implica-

tions of its unilateral cross-border application of American

environmental law. This was error.

B. The Court of Appeals mistakenly treated Re-

spondents’ suit as “domestic” by narrowly focus-

ing on the fact that the pollution currently lies

on the American side of the border and neglect-

ing to read CERCLA as part of a broader “con-

stellation” of environmental regulation.

The Court of Appeals stated that its decision to reach

across the U.S.-Canada border to apply CERCLA to a

Canadian company acting exclusively in British Columbia

“is reinforced by considering CERCLA’s place within the

constellation of [American] environmental laws, and

contrasting it with” the Resource Conservation and Recov-

ery Act (“RCRA”), 42 U.S.C. § 6901 et seg.” Pet. App. at 21a

(citing Meghrig v. KFC Western, Inc., 516 U.S. 479, 483

(1996)). The court continued, noting that “RCRA regulates

the generation and disposal of hazardous waste, whereas

CERCLA imposes liability to clean up a site when there

are actual or threatened releases of hazardous substances

into the environment.” Jd. at 21a-22a. In stating its view

that extraterritorially applying CERCLA to acts within

Canada was not, technically speaking, extraterritorial, the

court observed that “it is the Canadian equivalent of

RCRA, not CERCLA, that regulates how Teck disposes of

its waste within Canada.” Jd. at 22a.

In effect, the Court of Appeals reasoned as follows:

¢ Remedial environmental cleanup laws, like

CERCLA, exist in a separate universe from

regulatory environmental discharge laws,

like RCRA.

¢ Here, the discharge occurred in Canada, so

it was governed by the Canadian or British

Columbia equivalent of RCRA, but the

cleanup must occur in the United States, so

it, is governed by CERCLA.

¢ Therefore, even though the discharge oc-

curred north of the border, the fact that the

cleanup area is entirely in the United States

means that American law governs exclu-

sively.

This reasoning might be internally logical, but it

ignores the broader context of the environmental regula-

tion field. In ignoring this broader context, the Court of

Appeals mistakenly treats each individual environmental

law — American or Canadian — as separate and distinct.

But environmental laws should not be viewed this way,

because they are designed to work together as part of a

broader system of regulation. Indeed, the court itself

referred to “CERCLA’s place within the constellation of...

environmental laws,” Pet. App. at 21a (emphasis added),

recognizing that CERCLA is merely one part of a broader

federal and state regulatory scheme.

Viewed through the narrow, out-of-context prism of

the Court of Appeals’ reasoning, it is a simple matter to

say: “This is a cleanup case, the cleanup area is in the

United States, so it involves a domestic application of

American law.” And cleanup does in fact involve an appli-

cation of domestic American law when the discharge is

also governed by domestic American law. If, for example,

the Trail Smelter were located just on the American side of

the border, CERCLA could be applied as an integral part

of “the constellation of environmental laws” applicable to

the stretch of the Columbia River just south of the U.S.-

Canada border (in this case, that “constellation” consists of

a combination of U.S. federal and Washington state law).

For a slightly more complicated, but still domestic, exam-

ple, imagine that the Trail Smelter was along the Colum-

bia River in southern Washington, and the cleanup site

was on the Oregon side of the river. Federal law, including

CERCLA, would apply in both states, but there could be a

question of conflicting Washington and Oregon environ-

mental law if Washington claimed the discharge was

licensed, permitted, and legal, with Oregon insisting that

it was not. Even then, U.S. federal courts could conduct a

conflict of laws analysis, determine which law would apply,

and fairly decide the matter under established national

rules.’

The important point here is that, when Congress

enacted CERCLA —- and when U.S. federal regulatory

agencies and courts enforce CERCLA — Congress “con-

sider[ed] CERCLA’s place within the constellation of

[American] environmental laws.” Congress did not “con-

sider[] CERCLA’s place within the constellation of”

American and Canadian environmental laws, which must

be done in order to fairly and properly address cross-

border pollution issues. The Court of Appeals failed to

recognize this distinction when it decided to “domestically”

apply one specific American statute to the cleanup of

pollution discharged in British Columbia and regulated by

Canadian federa! and provincial law. Given its cross-

bordér migration, the discharges from the Trail Smelter

ought to be regulated by “the constellation of” American

and Canadian environmental laws, and CERCLA should

not have been applied exclusively and unilaterally to the

Columbia River cleanup.

* The same would be true if this were a dispute between two

Canadian provinces regarding the applicability of one province's

environmental law to a cleanup in or discharge from another province —

the Supreme Court of Canada has the authority to resolve such conflict

of laws matters. See, e.g., Interprovincial Co-Operatives Ltd. v. The

Queen in Right of Manitoba, |1976) 1 S.C.R. 477 (Can.).

C. Considering principles of international comity,

fairly and properly addressing cross-border pol-

lution issues requires bilateral negotiation and

agreements, not unilateral judicial action by one

country’s courts under one country’s law.

The fundamental question presented by this case is

not whether an American or Canadian facility near the

border that causes pollution on the other side of the border

may be required to assist with the cleanup of the polluted

site; it is how to allocate responsibility and assess liability

for cleanup costs.’ Here, where a Canadian smelter pol-

luted an American river, this Court must determine

whether it is a matter properly resolved (1) in American

courts under exclusively American law, which was the

approach approved by the Court of Appeals, or (2) pursu-

ant to bilateral negotiation and agreement, and possible

reference to the International Joint Commission (“IJC”),

which is the approach historically taken to cross-border

pollution issues by Canada and the United States. The

Court of Appeals effectively dismissed the significance of

the U.S.-Canada border and applied American law. British

Columbia asks this Court to instead favor bilateral solu-

tions respecting the laws of both countries.

* British Columbia does not dispute that, to the extent Teck is

responsible for polluting the Columbia River, it may be required to

contribute to the cleanup costs. See Boundary Waters Treaty, cited

infra, art. IV (“It is further agreed that the waters herein defined as

boundary waters and waters flowing across the boundary shall not be

polluted on either side to the injury of health or property on the other.”);

Restatement (Third) of Foreign Relations Law § 601(1)(b) (“A state is

obligated to take such measures as may be necessary, to the extent

practicable under the circumstances, to ensure that activities within its

jurisdiction or contro] ... are conducted so as not to cause significant

injury to the environment of another state or of areas beyond the limits

of national jurisdiction.”).

As explained in the petition, Canada and the United

States share a long history of working together to coop-

eratively resolve border issues, including cross-border

pollution. See Pet. at 10-12. British Columbia also has a

strong record of working with neighboring American

states to address and resolve environmental issues. See,

e.g., Environmental Cooperation Agreement Between the

Province of British Columbia and the State of Washington

(May 7, 1992) (App. 4-9); Memorandum of Understanding

Between the Washington Department of Ecology & the

British Columbia Ministry of Environment, Land, & Parks

(April 12, 1996) (App. 10-15); Interagency Memorandum of

Understanding Between the State of Washington, De-

partment of Ecology and the Province of British Columbia,

Ministry of Environment, Land and Parks (applying the

1992 Environmental Cooperation Agreement to the Co-

lumbia River) (App. 16-22); Memorandum of Understand-

ing Between the Washington State Department of Ecology

and the British Columbia Environmental Assessment

Office (June 20, 2001) (App. 23-29); Environmental Coop-

eration Arrangement Between the Province of British

Columbia and the State of Idaho (September 14, 2003)

(App. 30-31); Environmental Cooperation Arrangement

Between the Province of British Columbia and the State of

Montana (September 14, 2003) (App. 32-33); Memorandum

of Understanding Between the Idaho Department of

Environmental Quality and the British Columbia Ministry

of Water, Land and Air Protection (App. 34-37).’ Resolving

* Since neither Canadian provinces nor American states have the

power to enter into treaties, see supra note 4, these types of state-

provincial accords are limited to “agreements” and “memorandums of

understanding” that do not have the full force to international treaties.

That said, these state-provincial environmental agreements and

(Continued on following page)

these issues through bilateral negotiation and agreement

is important because it is the only method that ensures

the resolution considers both American and Canadian

environmental law and practice. While each country can

and should apply its own law when regulating discharge

and cleanup of domestic pollution, cross-border pollution

must be addressed taking into account both countries’

regulatory systems.

Since the United States and Canada share a history of

bilateral solutions, there is no need to start from scratch in

fashioning an agreement for cleanup of the Columbia

River site. The 1909 Boundary Waters Treaty between the

United States and Great Britain (on behalf of Canada),

which established the IJC to address border disagree-

ments, should govern. See Treaty Between the United

States and Great Britain Relating to Boundary Waters

Between the United States and Canada, U.S.-Gr. Brit.,

Jan. 11, 1909, 36 Stat. 2448 (“Boundary Waters Treaty”). If

the United States and Canada are unable to resolve the

dispute through bilateral negotiation, either country may,

under the treaty, refer “matters of difference .. . involving

the rights, obligations, or interests of either in relation to

the other or to the inhabitants of the other, along the

{U.S.-Canada border] ... to the International Joint Com-

mission [“IJC”] for examination and report... .” Boundary

Waters Treaty, art. IX. If the two countries are unable to

reach an agreement based on the IJC’s Article IX report,

the countries may agree to have the IJC issue a binding

decision. See id. art. X. As such, this treaty “specifically

memorandums reflect British Columbia's ability and desire to discuss

and enter into agreements with its neighboring states to address cross-

border environmental issues.

provides a remedy for resolving these types of transbound-

ary water pollution disagreements.” Austen L. Parrish,

Trail Smelter Déja Vu: Extraterritoriality, International

Environmental Law, and the Search for Solutions to

Canadian-U.S. Transboundary Water Pollution Disputes,

85 B.U. L. Rev. 363, 414 (2005); see also id. at 415-20

(discussing the application of the Boundary Waters Treaty

to cross-border pollution issues).’ Indeed, the United

States and Canada have even used the Boundary Waters

Treaty to resolve a dispute regarding air pollution from

the very same facility at issue here, the Trail Smelter, that

began during the 1920s and was finally resolved by a

special arbitration tribunal in 1941. See id. at 420-23.°

It is remarkable that the Court of Appeals decided to

apply exclusively American law to this cross-border pollu-

tion case without even citing the Boundary Waters Treaty,

especially given that the Boundary Waters Treaty, like all

treaties, is part of “the supreme law of the land” in the

United States. U.S. Const. art. VI, cl. 2. And constitution-

ally-binding treaties aside, this Court has historically held

* Professor Parrish also notes that “Canada has long been con-

cerned that Teck Cominco’s Trail Smelter operations were violating

Canada’s obligations under the Boundary Waters Treaty.” Parrish,

supra, at 414 n.264. As stated, British Columbia does not seek to

absolve Teck of all responsibility for pollution at the Columbia River

site; rather, the province seeks to ensure that, if Teck is to be assessed

liability for cleanup costs, it be done by bilateral] agreement or applica-

tion of treaty law, not unilateral, cross-border application of American

law.

* The final decision in the “Trail Smelter Arbitration” has been

called “by far the ‘most influential decision on transboundary pollution

in international law.’” Parrish, supra, at 420 (quoting Thomas W.

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

947 (1997)).

that principles of international comity and respect for the

law of nations are presumptively binding on all laws

passed by Congress. See, e.g., Murray v. Schooner Charm-

ing Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“It has also

been observed that an act of Congress ought never to be

construed to violate the law of nations if any other possible

construction remains... .”) (op. per Marshall, C.J.), quoted

by McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 21 (1963), and Sale v. Haitian

Centers Council, Inc., 509 U.S. 155, 178 n.35 (1993).

In Benz v. Compania Naviera Hidalgo, S.A., 353 U.S.

138 (1957), this Court discussed and further developed

these principles in declining to apply the Labor Manage-

ment Relations Act to foreign seamen on a foreign ship

while in an American port. This Court stated that the

judiciary is ill-suited to wade into international affairs

where not clearly directed to do so:

For us to run interference in such a delicate field

of international relations there must be present

the affirmative intention of the Congress clearly

expressed. It alone has the facilities necessary to

make fairly such an important policy decision

where the possibilities of international discord

are so evident and relative action so certain.

Id. at 147. That same reasoning should apply to this case.

Congress enacted CERCLA as part of what the Court of

Appeals called the United States’ “constellation of envi-

ronmental laws,” Pet. App. at 21a, and it functions per-

fectly well within that constellation. But whatever the

Court of Appeals’ technical reading of terms like “arrang-

ers” and “releases,” there is no evidence that Congress

intended CERCLA to reach across the U.S.-Canada border

and undermine the bilateral approach to cross-border

pollution historically followed by Canada and the United

States.

The Court of Appeals’ decision recklessly ran “inter-

ference in ... a delicate field of international relations”

without “the affirmative intention of the Congress clearly

expressed.” Without any evidence of clear Congressional

intent, the Court of Appeals should have respected princi-

ples of international comity and allowed the United States

and Canada to address the cross-border Columbia River

cleanup issue bilaterally.

D. Application of CERCLA to conduct within Brit-

ish Columbia interferes with the province’s en-

vironmental regulation scheme and would be

unfair.

The application of American law by U.S. courts to

discharges from the Trail Smelter into the Columbia River

would not be an isolated instance, limited to that specific

facility and that specific activity. There is nothing in the

Court of Appeals’ opinion that would preclude the applica-

tion of American law to thousands of other entities whose

activities take place entirely within British Columbia and

are subject to provincial regulation.

The interference of the Court of Appeals’ decision with

British Columbia’s environmental regulation scheme can

be illustrated by considering one of the differences be-

tween Part 4 of British Columbia’s Environmental Man-

agement Act and CERCLA. CERCLA, like many USS.

environmental statutes, contains a parallel enforcement

mechanism whereby “private attorneys general” can file

citizens suits such as the instant case so as to enforce

regulations, permits, and orders. See 42 U.S.C. § 9659(a).

To incentivize such private enforcement, prevailing

plaintiffs are entitled to an award of attorneys’ fees and

costs. See id. § 9659(f). At the same time, such private

actions are somewhat constrained by the requirements

that they must provide 60-day advance notice of the suit

to the federal and affecied state governments, see id.

§ 9659(d)(1), no action may be commenced if the United

States is already “diligently prosecuting” an enforcement

action, see id. § 9659(d)(2), and the United States and the

affected state may intervene in any action as of right, see

id. § 9659(g).

British Columbia’s Environmental Management Act

has no similar provision. Rather, it has long been the

province’s statutory and administrative policy to use

formal enforcement actions as a last resort, preferring to

devote the resources that would be consumed in litigation

to voluntary cleanup agreements and other remedial

mechanisms. For that reason, a citizen suit provision is

antithetical to the province’s environmental policy, because

it substitutes time-intensive and costly formal litigation

for other enforcement mechanisms that, in the province’s

considered judgment, are more cost effective. Under the

Court of Appeals’ decision, individual U.S. citizens would

have private attorney general rights against Canadian

entities operating in British Columbia, rights Canadian

citizens who may be equally affected by the same pollution

would not have.

Moreover, since neither British Columbia nor the

federal government of Canada enjoy any of the notice,

diligent prosecution, or intervention rights afforded their

American regulatory counterparts under CERCLA, the

delicate balance envisioned in CERCLA between private

attorneys general and overseeing agencies would be upset.

A Canadian province that has consciously chosen to take a

different regulatory path than the United States would be

subject to a more extreme exposure to private oversight,

with its attendant contentiousness and attorneys-fees

disputes, than U.S. jurisdictions would be subject to. This

is an affront to longstanding principles of comity and

bilateral resolution of transboundary issues.

As another example of the consequences of the Court

of Appeals’ decision, under the Clean Air Act, 42 U.S.C.

§ 7401 et seq., the difficult problem of cross-border air

pollution is expressly recognized and managed through a

program of respect and reciprocity at the highest levels of

government, see id. § 7415, a program that has served

both countries well. Yet, because a CERCLA “facility” can

be created through deposits of pollutants carried by wind

as easily as by water, the Court of Appeals’ decision would

authorize private U.S. citizens to effectively second-guess

in U.S. courts the range of measures taken pursuant to the

Clean Air Act, a result clearly not envisioned by Congress

in enacting either the Clean Air Act or CERCLA.

The potential impact of the Court of Appeals’ decision

within Canada, and on international law, has already been

recognized by commentators:

In Pakootas v. Teck, the Court of Appeals for the

Ninth Circuit issued a stark decision that pro-

vides for the extra-territorial application of U.S.

domestic law, and raises far more questions than

it answers. If the decision stands, it will have a

fundamental impact on the development of in-

ternational environmental law. ... Further, the

decision interferes in the operation of Canadian

law and creates uncertainty in its application to

Canadian facilities.

John C. Turchin & Risa Schwartz, Beyond Trail Smelter:

Assessing the Changes in International Environmental

Law, in Environmental Law: The Year in Review 2006 105,

106 & 124 (Stanley D. Berger & Dianne Saxe eds., 2007).

The Court of Appeals’ decision, if it stands, will have

broad impact on environmental regulation within British

Columbia and on the relationship between the Canadian

and American federal and provincial/state governments

addressing cross-border environmental issues.

—— eee

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

BRIAN W. GRIMM

Counsel of Record

ALEXANDER A. BAEHR

JOHN B. SCHOCHET

DorRSEY & WHITNEY LLP

U.S. Bank Centre

1420 Fifth Avenue, Suite 3400

Seattle, WA 98101

(206) 903-8800

Counsel for Amicus Curiae

Her Majesty the Queen in Right

of the Province of British Columbia

May 2, 2007

Department of Foreign Ministére des Affaires

Affairs and éntrangéres et du

International Trade Commerce International

125 Sussex Drive

Ottawa, Ontario

KIA 0G2

November 23, 2004

NUE-0118

Mr. Terry A. Breese

Director,

Office of Canadian Affairs

United States Department of State

Dear Mr-—3reese: Terry

Thank you for your letter of September 14, 2004,

regarding contamination in Lake Roosevelt in the upper

Columbia River in Washington State. We appreciate the

willingness of the United States to solve this matter

through a bilateral agreement and we are committed to its

development, to resolve the contamination in the region, in

order to protect human health and the environment.

As you will recall from our meeting on February 28,

2004, Canada was to develop a proposal as an alternative

to the Comprehensive Environmental Response, Compen-

sation and Liability Act (CERCLA). In March, we sent to

you the proposed MOU “Respecting the Investigation of

Contamination in the Upper Columbia River/Lake Roose-

velt Area”. Our proposal was designed to investigate

conditions in Lake Roosevelt, to assess the risks to the

App. 2

environment and human health, as a priority, and to a

develop a remediation plan.

This joint approach was intended to provide science-

based outcomes, public participation, access to information

and timely decisions. We appreciate your obligations to

Native Americans and the interests of the State of Wash-

ington, as mentioned in your letter and expect that they

would have an enhanced consultative role in the develop-

ment and implementation of the proposed MOU.

As noted in our January 8, 2004 diplomatic note,

Canada is opposed to enforcement of CERCLA against

Teck Cominco Metals Ltd., a Canadian company operating

in Canada. The company has offered to pay the costs of an

investigation and remediation of the health and environ-

mental risks attributable to its operations, but only under

the terms of an international instrument and a binding

commitment with the Canadian government.

We appreciate the offer in your letter to consult with

Canada and share information on EPA's on-going RI/FS

investigation. However, Canadian officials are not pre-

pared to be subject to CERCLA, the US statute. Under our

proposed MOU, decisions on the investigation into condi-

tions in Lake Roosevelt and remediation would be made

jointly by US and Canadian experts, on the basis of

consensus and outside of the ambit of CERCLA. In trans-

mitting our proposed MOU, we also indicated an interest

in referring the matter to the International Joint Commis-

sion, for an independent, scientific assessment and we

continue to be interested in this possible option.

We remain concerned that this unilateral decision by

EPA to proceed under CERCLA may iead to other envi-

ronmental liability cases being launched in both countries.

App. 3

I look forward to the opportunity to discuss a mutually

acceptable agreement, in the long tradition of the two

governments working cooperatively to solve transbound-

ary environmental issues. Thank you for your attention to

this important issue and we would be pleased to meet to

discuss its resolution at your convenience.

Sincerely,

/s/ Bruce Levy

Bruce Levy

Director,

United States Relations Division

App. 4

Environmental Cooperation Agreement

Between the Province of British Columbia

and The State of Washington

WHEREAS the Province of British Columbia and the State

of Washington are committed to ensuring a consistent and

high-level of environmental quality for their citizens; and

WHEREAS environmental concerns and impacts respect

neither physical or political boundaries, and both govern-

ments recognize the necessity for joint action on issues of

mutual interest; and

WHEREAS the Ministries of the Province and the Executive

Departments of Washington wish to share information and

to cooperate on environmental matters, are prepared to

work together with respect to their responsibilities, and

wish to enter into specific cooperation arrangements; and

WHEREAS the increased complexity of environmental

issues, particularly their interjurisdictional impacts,

requires coordinated responses from both governments;

Now, THEREFORE, the Province of British Columbia and

the State of Washington agree to establish a British

Columbia/Washington Environmental Initiative to

promote and coordinate mutual efforts to ensure the protec-

tion, preservation and enhancement of our shared environ-

ment for the benefit of current and future generations;

The parties also agree to develop an action plan, which

shall form part of these efforts, reflecting mutual priorities

and to enter into specific arrangements necessary to

address environmental problems.

DATED AT Olympia Washington,

United States of America

This 7th day of May, AD 1992.

App. 5

/s/ Mike Harcourt /s/ Booth Gardner

Mike Harcourt, Premier Booth Gardner, Governor

Province of State of Washington

British Columbia

BRITISH COLUMBIA/WASHINGTON

ENVIRONMENTAL INITIATIVE

Terms of Reference

Mandate/Purpose:

The Initiative’s mandate is derived from the Envi-

ronrnental Cooperation Agreement between the two

jurisdictions entered into in May 1992. The Initia-

tive’s purpose is to ensure coordinated action and in-

formation-sharing on environmental matters of

mutual concern.

Members: Deputy Minister, BC Environment, Lands

and Parks

Director, Washington Department of Ecology

Observers: Regional Director General, Pacific and

Yukon Region, Environment Canada

Administrator, Region 10, US Environ-

mental Protection Agency

Support:

Adrninistrative support will be provided by BC Envi-

ronment, Lands and Parks and the Washington De-

partment of Ecology who will be jointly responsible to

prepare agendas, ensure appropriate attendance at

Initiative meetings and coordinate follow-up action.

App. 6

Procedures:

@ The Initiative will generally meet twice each

year, or as necessary.

@ The Initiative may establish sub-committees

to deal with specific matters.

@ The Initiative may, by formal agreement, es-

tablish Task Forces to address issues of spe-

cial or major significance.

™ An Annual Report will be made to the Pre-

mier of British Columbia and the Governor

of Washington.

BRITISH COLUMBIA/WASHINGTON

ENVIRONMENTAL INITIATIVE

Preliminary Action Plan/Work Priorities

British Columbia and Washington’s commitment to coop-

erative efforts on environmental matters has resulted in

the identification of the following priority issues for action:

1. Georgia Basin/Puget Sound Water Quality Initiative

Georgia Basin/Puget Sound water quality is consid-

ered to be a high priority issue and requires imme-

diate joint attention.

Concerted efforts are underway by both governments

to identify and remedy pollution problems in the

Georgia Basin and Puget Sound. Coordination of

these programs will enhance their environmental

benefits.

App. 7

Columbia River/Lake Roosevelt Water Quality

Columbia River/Lake Roosevelt Water Quality is con-

sidered to be a high priority issue by both parties

and requires immediate joint attention.

A task force involving affected interest groups will ex-

amine the issues and ensure necessary action is taken

to control sources and protect water quality.

Nooksack River Flooding

Nooksack River flooding is considered to be a high

priority issue and requires continued joint atten-

tion.

Recent flooding in Washington’s Nooksack River re-

sulted in flooding in British Columbia’s West Sumas

area. Continued attention is needed to ensure imple-

mentation of the recommendations of a Task Force

that identified actions needed to avert recurrence of

such problems.

Regional Air Quality Management

Regional air quality management is considered to be

a high priority issue in the Georgia Basin/Puget

Sound airshed and requires timely joint attention.

Issues such as transboundary flows of sulphur diox-

ide, nitrogen oxides and volatile organic compounds

should be addressed in an integrated manner through

regional implementation of the Canada/U:S. Air Qual-

ity Agreement.

Coordinated Groundwater Management (Sumas-

Abbotsford)

Management of the groundwater in the Sumas-

Abbotsford area is considered to be a high priority

issue and requires immediate joint attention.

App. 8

The aquifers are of particular concern as a result of

domestic use on both sides of the border. Improved co-

ordination of the activities of all parties to address

both groundwater quantity and quality will encourage

more effective resolution.

Solid, Hazardous and Biomedical Waste Cooperation

Waste management is considered to be an emerging

issue and should be the subject of information ex-

change and further discussion. The transboundary

impacts of waste management practices and contami-

nated sites should be examined through mechanisms

such as the Memorandum of Understanding on Haz-

ardous Waste Management.

Water Resource Management

Water management in general is considered to be an

emerging issue and should be the subject of infor-

mation exchange and further discussion.

Increased water use in response to growing needs ne-

cessitates protection of instream flows; this requires

sound data and thorough field investigations. Joint ef-

forts can ensure efficiency and maximum productivity

for both governments.

Wetlands Protection

The protection of wetlands and wildlife habitat is con-

sidered to be an issue of ongoing interest to both

parties. The exchange of information on wetland and

habitat protection programs will form the basis for

initial cooperation on this issue.

Other Issues

The parties agree to use the Initiative to identify and

address issues of concern, and will assist each other

in dealing with the agencies and departments of their

App. 9

respective governments. Potential issues for discus-

sion include: earthquake and emergency prepared-

ness and State of Environment reporting.

App. 10

Province of

British Columbia

British Columbia/Washington

Environmental Cooperation Council

May 3, 1996

TO: Premier Glen Clark

Governor Mike Lowry

FROM: Thomas Gunton, Deputy Minister,

Ministry of Environment, Lands and Parks

Mary Riveland, Director, Department of Ecology

SUBJ: Memorandum of Understanding on Environ-

. mental Cooperation

In accordance with the 1992 Environmental Cooperation

Agreement between the state and the province, our agen-

cies have been working together for the past 4 years to

resolve and avoid cross-border problems. We have recog-

nized that environmental needs do not respect political

borders and that effective protection of our resources and

residents requires shared programs and regular communi-

cation.

We have developed effective joint efforts to address Puget

Sound and Georgia Basin water quality, to reduce pollu-

tion and respond to spills in the Columbia River, to regu-

late air pollution sources in the border region, to reduce

flooding problems in the Nooksack River and to protect the

ground water in the Abbotsford/Sumas area.

To promote continuation of these activities and to maxi-

mize our efficiency and effectiveness, we have completed

App. ll

a formal Memorandum of Understanding between our

agencies. We see this document as a framework that will

aid in the implementation of the 1992 Environmental

Cooperation Agreement and serve as a link among subject-

specific agreements. Such agreements have already been

developed on air quality management and protection of

the Columbia River; these will become appendices to this

Master MOU.

We are forwarding a copy of the Memorandum of Under-

standing because we hope you will share our sense of

accomplishment in building a transboundary partnership

that increases each jurisdiction’s capacities and construc-

tively avoids or resolves common problems. A copy of this

message’ and the Memorandum of Understanding are

being sent to the Honourable Moe Sihota, Minister of

Environment, Lands and Parks, for his information.

Enclosure

cc Honourable Moe Sihota

MEMORANDUM OF UNDERSTANDING

BETWEEN THE WASHINGTON DEPARTMENT

OF ECOLOGY AND THE B.C. MINISTRY OF

ENVIRONMENT, LANDS & PARKS

I. Purpose and Scope

In 1992, the Governor of Washington and Premier of

British Columbia signed an Environmental Cooperation

Agreement committing the two jurisdictions to “promote

and coordinate mutual efforts to ensure the protection,

preservation and enhancement of our shared environment

for the benefit of current and future generations.” The

App. 12

Agreement went on to authorize the state and province to

“enter into specific arrangements necessary to address

environmental problems.” It designated the Washington

Department of Ecology (hereafter Ecology) and the British

Columbia Ministry of Environment, Lands and Parks

(hereafter the Ministry) as the agencies responsible for

implementation. For purposes of this Memorandum of

Understanding (MOU), those agencies shall be deemed the

Lead Agencies.

The Ministry and Ecology have established Task Forces

and created other mechanisms for joint efforts. This MOU

describes approaches to addressing transboundary envi-

ronmental issues that can be used by any of the Task

Forces or by the Lead Agencies when no task force exists.

This “Umbrella” MOU is designed to be general, with the

recognition that subject-specific Memoranda can be

adopted as Appendices if the Lead Agencies jointly agree

to do so.

II. Responsibilities

she Department of Ecology is Washington’s main envi-

ronmental protection agency, with lead responsibility for

air and water pollution control, hazardous waste man-

agement, coastal and shoreline protection, water resources

allocation, toxic site cleanup, and technical and financial

assistance to local governments for environmental protec-

tion. The Department’s mission is to protect, preserve, and

enhance Washington’s environment and promote the wise

management of our air, land and water for the benefit of

current and future generations.

App. 13

The mandate of the British Columbia Ministry of Envi-

ronment, Lands and Parks is to protect the clean air, fresh

water and productive land in the province, and to nurture

the abundance of natural areas, wildlife and scenic beauty.

To that end, the Ministry is responsible for controlling or

managing toxic, solid and liquid wastes, establishing and

operating a network of protected areas, managing the use

and disposition of publicly owned lands, and managing

freshwater fisheries and wildlife.

III. Provisions

The Ministry and Ecology wish to maximize efficiency and

effectiveness and to cooperate in a spirit of partnership.

Toward this end, they agree to make every effort to share

information, consult with one another, and coordinate

their work on environmental issues that affect resources

and residents in the border region.

In particular, the agencies commit to:

° designate lead liaisons for cross-border communica-

tions to serve as central points of contact on issues re-

lated to the Environmental Cooperation Agreement

on this MOU;

° upon request by the other jurisdiction, establish

communications among staff members working on is-

sues with cross-border impacts to enable open sharing

of information and awareness of processes for public

review and comment;

° provide referrals to other agencies within the state

and province when an issue needing resolution does

not fall within the responsibilities of the lead agency;

and

App. 14

° establish working relationships with regional repre-

sentatives of federal agencies to facilitate cooperation

on appropriate issues.

In accordance with implementing appendices developed by

the Lead Agencies, the state and province will:

° exchange draft permits on proposed major projects

that could have cross-border impacts;

° include the regional office of the other jurisdiction in

the distribution of environmental assessments for ma-

jor projects within x kilometers (y miles) of the bor-

der;

° develop early notification procedures to identify

problems or sources of controversy to residents or

government agencies in the border region;

° establish procedures to cooperatively respond to

emergencies that could cause environmental harm or

damages; and

° cooperate in the development of environmental

information, including education, training and techni-

cal support.

Implementing appendices may include other parties if the

Lead Agencies determine that this will be beneficial.

IV. Dispute Resolution

In the spirit of partnership and the efficient use of public

resources, the parties agree to attempt to resolve disputes

or conflicts at the lowest possible staff level. Issues will be

elevated to more senior management levels within each

agency as needed to achieve resolution. The mutual goal

shall be to ensure the rapid resolution of disagreements

—-

App. 15

before negative impacts on the environment or economy

occur.

V. Terms of this Memorandum of Understanding

This agreement shall be effective when signed by both

parties. It may be amended at any time by agreement

between the parties and may be terminated by either

party upon 30 days written notice to the other.

IN WITNESS OF THE AGREEMENT TO ADHERE TO

THE TERMS OF THIS MEMORANDUM OF UNDER-

STANDING, the parties have executed it by their signa-

tures:

/s/ Tom Gunton /s/ Mary Riveland

Tom Gunton Mary Riveland

Deputy Minister, Director, Washington

B.C. Ministry of Department of Ecology

Environment, Lands

and Parks

96/4/12 4/10/96

Date Date

App. 16

INTERAGENCY MEMORANDUM

OF UNDERSTANDING

BETWEEN

THE STATE OF WASHINGTON

DEPARTMENT OF ECOLOGY

EASTERN REGIONAL OFFICE

AND

THE PROVINCE OF BRITISH COLUMBIA

MINISTRY OF ENVIRONMENT, LANDS AND PARKS

KOOTENAY REGION

This two party agreement is made and entered into by and

among the Department of Ecology, hereinafter referred to

as “Ecology” and the Ministry of Environment, Lands and

Parks, hereinafter referred to as “BC Environment.”

Whereas, the Environmental Cooperation Agreement of

May 7, 1992 between the Province of British Columbia and

the State of Washington, mandated coordinated action and

information sharing between the State and the Province

on environmental matters of mutual concern and the

establishment of Task Forces to address issues of major

environmental significance.

Whereas, environmental pollutants in the international

boundary portion of the Columbia River drainage can

travel across the border and may be a source of concern to

the parties to this MOU and area residents,

Whereas, Ecology and B.C. Environment are parties to a

formal Memorandum of Understanding regarding infor-

mation sharing on air emission sources (April 14, 1994).

Whereas, the Lake Roosevelt Water Quality Council which

provided a forum for Ecology and B.C. Environment to

cooperate on water quality issues related to Lake Roosevelt

App. 17

and the Upper [Lower] Columbia River ceased operation in

September, 1995 as a planning and coordinating body.

Whereas, at the June 9, 1995 meeting of the British

Columbia/Washington Environmental Cooperation Coun-

cil, B. C. Environment and Ecology managers were di-

rected to prepare a Memorandum of Understanding to

assure continued coordination and cooperation relative to

major environmental issues within the international

portion of the Columbia River drainage.

Whereas, the regulatory/oversight responsibilities over

waste discharges rests primarily with Ecology and B.C.

Environment as the regulatory agencies of the State and >

the Province.

Therefore, B. C. Environment and Ecology hereby enter

into this Memorandum of Understanding, hereafter called

the MOU.

This MOU incorporates by reference the four party MOU

on Air Quality between the State of Washington Depart-

ment of Ecology, The State of Washington Northwest Air

Pollution Authority, The Province of British Columbia

Ministry of Environment, Lands and Parks, and The

Greater Vancouver Regional District, as it applies to this

portion of the Columbia River drainage.

B. C. ENVIRONMENT AND ECOLOGY, MUTUALLY

AGREE TO:

® in accordance with section III a) of attachment 1,

provide timely prior notification of proposed dis-

charges to the water or land which have significant

potential for cross boundary water quality impacts.

App. 18

¢ im accordance with section III b) of attachment 1,

provide timely prior notification of proposed signifi-

cant consumptive water use.

¢ in accordance with section III c) of attachment 1,

provide an opportunity for comment on planning ac-

tivities that may have trans-boundary impacts.

® in accordance with section III d) of attachment 1,

provide timely notification of significant spills to the

Columbia River including tributary streams.

® in accordance with section III e) of attachment 1,

share air and water quality monitoring data.

* in accordance with section III f) of attachment 1,

provide the opportunity for trans-boundary public

comment on proposals under consideration by the

agency with jurisdiction.

® in accordance with section III f) of attachment 1,

jointly facilitate public information sharing meeting

upon mutual agreement of need.

e specify appropriate contacts within each agency to

facilitate timely sharing of information.

Statutory Powers

Nothing in this Memorandum of Understanding shall be

construed as affecting or limiting the legislative or statu-

tory powers of the signatories to this memorandum.

Termination

The period of performance of this MOU shall commence on

the date it is signed by both parties and remains in effect

until terminated by either or both of the parties by way of

30 days prior written notification.

App. 19

IN WITNESS THEREOF, the parties execute this agree-

ment.

Province of British Columbia State of Washington

Ministry of Environment, Department of Ecology

Lands, and Parks

/s/_ Dennis G. McDonald /s/ Claude W. Sappington

Dennis G. McDonald Claude W. Sappington

Regional Director Regional Director

Kootenay Region Eastern Region

ATTACHMENT 1

SCOPE OF WORK

PRIOR CONSULTATION AND

; INFORMATION SHARING

ENVIRONMENTAL ISSUES

I. Coordination and Cooperation

Air and water quality are issues of mutual concern to

both parties in this agreement. Because point and

nonpoint sources of contamination on one side of the

international boundary have the potential to impact

environmental quality on the other side, it is impera-

tive that regulatory agencies in both Washington and

British Columbia coordinate their regulatory actions

and cooperate in sharing relevant environmental

quality information necessary to ensure environ-

mental protection as provided by both jurisdictions.

To this end, this MOU is entered into by the agencies

on both sides of the border with the most direct regu-

latory impact on cross-boundary environmental qual-

ity issues. These are the British Columbia Ministry

of Environment, Lands and Parks and Washington

II.

IT].

App. 20

State Department of Ecology. This MOU addresses

the roles and responsibilities of these agencies in con-

sulting with each other early in the application proc-

ess concerning significant environmental permits,

licenses, monitoring and planning activities.

Geographic Area of the Scope of Work

The area of work encompasses the international por-

tion of the Columbia River drainage defined as the

main stem Columbia River between Grand Coulee

Dam and Hugh Keenleyside Dam and the Pend

Oreille River within Washington State and British

Columbia.

Elements of Prior Consultation and Information

Sharing

There shall be prior consultation’ and information

sharing concerning environmental activities between

B. C. Environment, Kootenay Regional Office (Nelson)

and Ecology, Eastern Regional Office (Spokane) as fol-

lows:

a) Wastewster Discharges/permits — At least thirty

(30) days prior to the issuance, re-issuance of a

permit, g¢ significant modification (significant

being defined in accordance with normal busi-

ness practices followed by the regulating agency)

of an existing waste discharge permit that may

affect the international portion of the Columbia

River drainage, the parties will submit a com-

plete application package to each other for re-

view and comment. The permitting agency shall

provide a copy of the final permit and upon re-

quest, the Responsiveness Summary (technical

report) of the reviewing agency. Discharges of ef-

fluent to ground that may adversely affect the

App. 21

cross boundary surface or ground water quality

shall also be included in the review and consulta-

tion process.

Consumptive Use of Water — at least thirty (30)

days prior to the issuance of significant (in excess

of 10 cfs) permanent consumptive water rights

that could effect [sic] cross border stream flow,

the permitting agency shall provide application

information to the reviewing agency for com-

ment. The final decision will be copied to the re-

viewing agency.

Water Drainage Basin Planning — From time to

time, water drainage basin planning activities

may be contemplated for a basin located within

the geographic area of this MOU. If in the opin-

ion of the planning agency there will be cross-

boundary impacts, the jurisdiction affected by

the planning activities or decisions will be offered

the opportunity to review and participate in the

planning process.

Emergency Spill Response — In addition to for-

mal notification procedures, Ecology and B. C.

invironment will continue informal] early notifi-

cation of spills to the international portion of the

Yolumbia River drainage.

Data Exchange — Upon request, all available en-

vironmental data from the international portion

of the Columbia River drainage within the pos-

session of either party to this agreement will be

shared between the agencies.

Public Involvement — Either agency may have

the lead responsibility for approving environ-

rnentally significant projects or activities that

have the potential to cause cross border impacts.

Upon the request of either B.C. Environment or

App. 22

Ecology, the public within the geographic area of

this agreement, will be given the opportunity to

review and comment in writing or verbally on a

proposal under consideration by the agency with

jurisdiction. B. C. Environment and Ecology

agree to jointly facilitate public information shar-

ing meetings as the need arises. The location of

these meetings will alternate between British

Columbia and Washington State.

App. 23

MEMORANDUM OF UNDERSTANDING

BETWEEN THE WASHINGTON STATE

DEPARTMENT OF ECOLOGY

AND

THE BRITISH COLUMBIA

ENVIRONMENTAL ASSESSMENT OFFICE

WHEREAS

A. The Environmental Cooperation Agreement of May 7,

1992 between the Province of British Columbia and

the State of Washington directed the parties to coor-

dinated [sic] action and information sharing between

the Province and the State on environmental matters

of mutual concern;

The Memorandum of Understanding of April 1996,

between the Department of Ecology (Ecology) and the

British Columbia Ministry of Environment Lands and

Parks (MELP) committed the Province and the State

to make efforts to share information, consult with one

another, and coordinate their work on environmental

issues that affect resources and residents in the bor-

der region, and to include the regional office of the

other jurisdiction in the distribution of environmental

assessments for certain major projects;

The State of Washington and the Province of British

Columbia recognize each other’s authority and

responsibilities to conduct or require, where appro-

priate, an environmental assessment/environmental

review (EA/ER) of project proposals within their ju-

risdiction;

The State of Washington and the Province of British

Columbia each have established processes for the

EA/ER of certain projects within their respective ju-

risdictions;

App. 24

The Province of British Columbia, as represented by

the Environmental Assessment Office (EAO), and the

State of Washington, as represented by Ecology, sup-

port a Memorandum of Understanding between the

parties specific to inter-jurisdictional cooperation on

information sharing about the practice of EA/ER in

each jurisdiction, and notification and information ex-

change related to major project proposals in the vicin-

ity of the other jurisdiction;

In the State of Washington, Ecology is a lead agency

for the EA/ER of some major projects; however,

EAs/ERs may be led by another state agency or a

local government authority, and Ecology does not co-

ordinate EAs/ERs led by another agency or a local

government authority;

In the Province of British Columbia, the EAO directs

the EA/ER of major projects.

THEREFORE, EAO AND ECOLOGY MUTUALLY UN-

DERTAKE AS FOLLOWS

IT IS THE PURPOSE OF THIS MEMORANDUM OF

UNDERSTANDING (MOU) TO:

Facilitate information sharing and mutual under-

standing of the EA/ER laws, policies and processes of

each jurisdiction and facilitate full knowledge of

changes; and

Facilitate notification and iiformation exchange

regarding major project proposals that are in the vi-

cinity of the other jurisdiction.

THIS MOU APPLIES TO THE FOLLOWING MAJOR

PROJECTS THAT ARE IN THE VICINITY OF THE

OTHER JURISDICTION:

App. 25

1. A major project proposal in British Columbia is

considered to be in the vicinity of the State of Wash-

ington if it is located 100 kilometres or less from the

border between the two jurisdictions;

2. Amajor project proposal in the State of Washington is

considered to be in the vicinity of British Columbia if

it is located in any of the following counties within the

State of Washington: Clallam, Jefferson, San Juan,

Island, Whatcom, Skagit, Chelan, Okanogan, Ferry,

Stevens and Pend Oreille.

IT IS MUTUALLY AGREED THAT:

1. Definitions

IN THIS MEMORANDUM OF UNDERSTANDING

(MOU)

1.1 “major project” means, for a project located in

British Columbia, a reviewable project as defined

in section 1 of the British Columbia Environ-

mental Assessment Act (EA Act), and for a project

located in Washington State, a project subject to

state jurisdiction under the State Environmental

Policy Act (SEPA) for which a Determination of

Significance has been made thereby requiring an

environmental impact statement;

1.2 “parties” means the State of Washington repre-

sented by the Department of Ecology (Ecology)

and the Province of British Columbia repre-

sented by the Environmental Assessment Office

(EAO).

2. Mutual Understanding of the EA/ER Laws, Poli-

cies and Processes

2.1 Each party will provide the other with informa-

tion on its EA/ER process for major projects

App. 26

within its jurisdiction to facilitate mutual under-

standing of the EA/ER laws, policies and proc-

esses of each jurisdiction;

2.2 Each party will provide the other with informa-

tion in a timely manner on any changes to the

EA/ER laws, policies and processes of its jurisdic-

tion that may affect the other jurisdiction.

3. Notification of Major Project Proposals and

Information Exchange

3.1 Each party will provide notification to the other

party of major project proposals that are in the

vicinity of the other jurisdiction as follows:

(i) Ecology will provide notification about major

project proposals that are in the vicinity of

British Columbia by:

* on a weekly basis, forwarding to the

EAO a list of all project proposals that

are located in the vicinity of British Co-

lumbia for which a Determination of

Significance/Scoping Notice has been

issued; and

* posting information on the SEPA Regis-

ter on Ecology’s website in a form that

is specifically sorted to identify projects

that are located in the vicinity of Brit-

ish Columbia; and

¢ when Ecology is the lead agency for the

proposal, providing written notice to

the EAO as early as possible but no

later than the time when a Determina-

tion of Significance/Scoping Notice is is-

sued;

3.2

3.3

App. 27

(ii) EAO will provide notification about major

project proposals that are in the vicinity of

the State of Washington by:

¢ providing written notice to Ecology as

early as possible in the EA/ER process,

but no later than seven (7) days follow-

ing receipt by the EAO of copies of an

accepted application for a project ap-

proval certificate, and

* ensuring information about major pro-

ject proposals in the vicinity of Wash-

ington State is posted on the EAO

website;

Each party will provide information on the

EA/ER of a major project proposal in its jurisdic-

tion, including information on opportunities to

provide comment on the proposal, upon request

from the other party;

The parties will work together to develop mecha-

nisms for notifying and consulting with members

of the public who may have an interest in a ma-

jor project proposal;

4. Consideration of Comments

4.1

4.2

Each party will consider any comments received

from the other jurisdiction about the potential ef-

fects of a major project proposal that is in the vi-

cinity of the other jurisdiction prior to making

any decisions regarding project approval;

For a major project proposal located in Washing-

ton State, comments will be submitted directly to

the designated lead agency for the EA/ER of that

proposal;

App. 28

4.3 For a major project proposal located in British

Columbia, comments will be submitted directly

to the EAO.

5. Coordination with Other Arrangements

5.1 In implementing this MOU, existing bilateral ar- ;

rangements related to joint management of the

shared environment will be considered in order

to support coordination and consistency with

those other arrangements.

6. Dispute Resolution

6.1 In the spirit of cooperation and the efficient use

of public resources, the parties will make reason-

able efforts to resolve disputes arising in relation

to this MOU at the lowest possible staff level

through implementation planning, cooperation

and consultation. Issues will be elevated to more

senior management levels within each jurisdic-

tion as needed to achieve timely resolution;

6.2 In the event of a dispute arising in relation to the

technical aspects of the EA/ER of a specific major

project, the parties will inform senior manage-

ment levels in a timely manner and obtain direc-

tion on resolving the dispute.

7. Administration

7.1 The parties may continue existing administrative

arrangements or enter into new administrative

arrangements in order to implement their com-

mitments under this MOU.

App. 29

8. Term of this MOU

8.1 ‘This MOU shall be effective when signed by both

parties. It may be amended at any time by con-

currence of the parties and may also be termi-

nated by either party upon thirty (30) days

written notice to the other.

Dated at Bellingham,WA Dated at Bellingham, WA

This 20 day of June, 2001 This 20 day of June, 2001

/s/ Sheila Wynn /s/ Thomas Fitzsimmons

Dr. Sheila Wynn Thomas Fitzsimmons

Deputy Minister and Director

Executive Director Washington State

British Columbia Environmental Department of

Assessment Office Ecology

Province of State of

British Columbia Idaho

ENVIRONMENTAL COOPERATION ARRANGEMENT

Between the Province of

British Columbia and the State of Idaho

WHEREAS the Province of British Columbia and the

State of Idaho are committed to ensuring citizens have a

consistent and high level of environmental protection; and

WHEREAS the State of Idaho and the Province of British

Columbia share extraordinary and unique regional ecosys-

tems seamless to a physical international boundary; and

WHEREAS both governments recognize environmental

concerns and impacts respect neither geographical nor

political boundaries, and that there is significant benefit

in cooperation and collaboration on mutual environmental

interests; and

WHEREAS the Ministries of the Province and the Execu-

tive Departments of the State wish to work together to

share information in regard to respective responsibilities,

and may enter into specific cooperative arrangements; and

WHEREAS the increased complexity of many environ-

mental issues, particularly inter-jurisdictional impacts,

require coordinated responses from both governments;

NOW, THEREFORE, the Province of British Columbia

and the State of Idaho undertake to establish the British

App. 31

Columbia/Idaho Environmental Cooperation Initia-

tive to identify, coordinate and promote mutual efforts to

ensure the protection, conservation and enhancement of a

shared environment, to the benefit of current and future

generations.

ACCORDINGLY, the parties will develop an action plan

within one year of signing this arrangement that will form

the basis of this effort, reflecting mutual priorities. The

Parties may also enter into specific arrangements neces-

sary to effectively address shared environmental goals.

DATED

This 14 day of September, 2003

/s/ Gordon Campbell /s/ Dirk Kempthorne

Gordon Campbell, Premier Dirk Kempthorne,

Province of British Columbia Governor

State of Idaho

Province of

& State of

British Columbia

Montana

ENVIRONMENTAL COOPERATION ARRANGEMENT

Between the Province of British Columbia

and the State of Montana.

WHEREAS the Province of British Columbia and the

State of Montana are committed to ensuring a consistent

and high level of environmental quality for their citizens;

and

WHEREAS the State of Montana and the Province of

British Columbia share spectacular and priceless regional

ecosystems which transcend the international boundary

between them; and

WHEREAS both governments recognize that environ-

mental concerns and impacts respect neither geographical

nor political boundaries, and that there is significant

benefit in cooperation and collaboration on mutual envi-

ronmental interests; and

WHEREAS the Ministries of the Province and the Execu-

tive Departments of the State wish to share information

and are prepared to work together with regard to their

respective responsibilities, and may wish to enter into

specific cooperation arrangements; and

WHEREAS the increased complexity of environmental issues,

particularly their inter-jurisdictional impacts, requires

coordinated responses from both governments;

App. 33

NOW, THEREFORE, the Province of British Columbia and

the State of Montana undertake to establish the British

Columbia/Montana Environmental Cooperation Initia-

tive to identify, coordinate and promote mutual efforts to

ensure the protection, conservation and enhancement of

our shared environment for the benefit of current and

future generations.

ACCORDINGLY, the parties will develop an action plan

within one year of signing this arrangement which will

form part of these efforts, reflecting mutual priorities. The

Parties may also enter into specific arrangements neces-

sary to effectively address shared environmental goals.

DATED at Big Sky, Montana

This 14 day of September, 2003

/s/ Gordon Campbell /s/ Judy Martz

Gordon Campbell, Premier Judy Martz, Governor

Province of British Columbia State of Montana

App. 34

MEMORANDUM OF UNDERSTANDING

BETWEEN

THE IDAHO DEPARTMENT

OF ENVIRONMENTAL QUALITY

AND

THE BRITISH COLUMBIA MINISTRY

OF WATER, LAND AND AIR PROTECTION

I. Purpose and Scope

In September 2003, the Governor of Idaho and the Pre-

mier of British Columbia signed an Environmental Coop-

eration Arrangement. It commits the two jurisdictions to

“identify, coordinate and promote mutual efforts to ensure

the protection, conservation and enhancement of our

shared environment for the benefit of current and future

generations.”

The Arrangement called for the development of an action

plan within one year of signing and went on to authorize

the state and province to “enter into specific arrangements

necessary to effectively address shared environmental

goals.”

The Idaho Department of Environmental Quality (hereaf-

ter DEQ) and the British Columbia Ministry of Water,

Land and Air Protection (hereafter the Ministry) are the

agencies responsible for implementation. For the purposes

of this Memorandum of Understanding (MOU), those

agencies shall be deemed the Lead Agencies.

The purpose of this MOU is to set out an action plan to

give effect to the Environmental Cooperation Arrange-

ment. This MOU describes approaches to addressing

transboundary environmental issues that can be used by

the Lead Agencies. It is designed to be general, with the

App. 35

recognition that subject-specific memoranda may be

developed and added as appendices to implement this

MOU if the Lead Agencies jointly agree to do so. These

appendices may include other parties if the Lead Agencies

determine that this will be beneficial.

II. Responsibilities

DEQ is Idaho’s main environmental protection agency,

with lead responsibility for air and water quality, waste

management and remediation, and assistance and educa-

tion to citizens and businesses on environmental issues.

The Department’s mission is to protect human health and

preserve the quality of Idaho’s air land and water for use

and enjoyment today and in the future.

The Ministry is responsible for environmental protection

and water, land and air quality, the stewardship of biodi-

versity, park and wildlife recreation management, and

environmental monitoring and enforcement in British

Columbia. The Ministry’s vision is a clean, healthy and

naturally diverse environment that enriches people’s lives,

now and in the future.

Ill. Provisions

The Ministry and DEQ wish to maximize efficiency and

effectiveness, and to cooperate in a spirit of partnership.

Toward this end, they agree to make every effort to share

information, consult with one another, and coordinate

their work on environmental issues that affect resources

and residents in the border region.

The DEQ Coeur d’Alene Regional Office Administrator and

the Ministry's Regional Manager Environmental Protection

App. 36

in Penticton will be the designated lead liaisons for cross-

border communications to serve as points of contact on

issues related to the Environmental Cooperation Ar-

rangement and implementation of this MOU;

In particular, the agencies commit to:

° establish communications among staff members

working on issues with cross-border impacts to enable

open sharing of information and awareness of proc-

esses for public review and comment;

° provide referrals to other agencies within the state

and province when an environmental issue needing

resolution does not fall within the responsibilities of

the lead agency; and

° establish working relationships with regional repre-

sentatives of federal agencies and Indian tribes to fa-

cilitate cooperation on appropriate issues.

In accordance with implementing appendices to be devel-

oped by the Lead Agencies, DEQ and the Ministry will:

° include the regional office of the other jurisdiction in

the distribution of environmental assessments devel-

oped by DEQ or the Ministry fcr major projects likely

to have cross-border impacts;

° develop notification procedures to identify environ-

mental problems or sources of controversy to resi-

dents or government agencies in the border region;

° establish procedures to cooperatively respond to

emergencies what could cause environmental harm or

damages.

App. 37

IV. Dispute Resolution

In the spirit of partnership and the efficient use of public

resources, the parties agree to attempt to resolve disputes

or conflicts at the lowest possible staff level. Issues will be

elevated to more senior management levels within each

agency as needed to achieve resolution. The mutual goal

shall be to ensure the rapid resolution of disagreements

before negative impacts on the environment or economy

occur.

V. Terms of this Memorandum of Understanding

This agreement shall be effective when signed by both

parties. It may be amended at any time by agreement

between the parties and may be terminated by either

party upon 30 days written notice to the other.

IN WITNESS OF THE AGREEMENT TO ADHERE TO

THE TERMS OF THIS MEMORANDUM OF UNDER-

STANDING, the parties have executed it by their signa-

tures:

/s/ Steve Allred /s/ Gord Macatee

Steve Allred Gord Macatee

Director Deputy Minister

Idaho Department of Ministry of Water,

Environmental Quality Land and Air Protection

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.