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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2229%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

(e) FILED

No. 06-1188 MAY 0 2 2097
IN THE OFFICE OF THE CLERK
SUPREME COURT, U.S.

Supreme Court of the Gnited States

TECK COMINCO METALS, LTD.,

Petitioner,
Vv.

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 FOR AMICI CURIAE NATIONAL MINING
ASSOCIATION AND NATIONAL ASSOCIATION OF
MANUFACTURERS IN SUPPORT OF PETITIONER

Of Counsel:
HAROLD P. QUINN, JR. CATHERINE E. STETSON
TAWNY A. BRIDGEFORD Counsel of Record

NATIONAL MINING ASSOCIATION JESSICA L. ELLSWORTH
101 Constitution Avenue, N.W. HOGAN & HARTSON L.L.P.

Suite 500 East 555 Thirteenth Street, N.W.
Washington, D.C. 20001 Washington, D.C. 20004
(202) 463-2600 (202) 637-5600

JAW S. AMUNDSON
QUENTIN RIEGEL
NATIONAL ASSOCIATION
OF MANUFACTURERS
1331 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 637-3000

Counsel for Amici Curiae

WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

(i)
TABLE OF CONTENTS

ce Gigs ete |. ii

STATEMENT OF INTEREST
NEE SiR FIREIAED sevsecevesoresencssssesorseoveseeseoenesestoesenewess l

DREMEPILy OF ARGUMENT ......ccccrcessoscesesessssverooneeees 3
REASONS FOR GRANTING THE WRIT .................... 6

I. THE NINTH CIRCUIT’S DECISION INVITES
RETALIATION AGAINST AMERICAN
BUSINESSES AND FOSTERS UNCERTAINTY
AND DISCORD FOR NUMEROUS .
AMERICAN INDUSTRIES .......cccccsocosssossessseeresseress 6

A. The Ninth Circuit’s Decision Distorts The
Meaning Of The Presumption Against
Extraterritorial Application Of U.S. Law............. 6

B. The Ninth Circuit’s Decision Flouts The
International Mechanisms Long Deemed
Appropriate For Resolving Transboundary
LE iccildiicchibanaeesevvisatveevcieseveeeeceoses 9

C. The Ninth Circuit’s Decision Will Precipitate -
Retaliation, Uncertainty, And Discord
Throughout American Industries....................006 12

I]. THIS COURT’S REVIEW IS NEEDED TO
ESTABLISH NATIONAL UNIFORMITY ON
THE QUESTION OF ARRANGER
ct iatisiveesasancedvestsereveseveversoneneseenavere 17

ais lccsurersvevetexesanevesvcexserevesvsensnsesess 20

ii
TABLE OF AUTHORITIES
Page
CASES:
ABB Indus. Sys., Inc. v. Prime Tech., Inc., |

Oe Bde FP 8 Ce CR, FG wrnerisnicncthenecenescaneaperiveenii 8
American Banana Co. v. United Fruit Co.,

BAe Cl OE Ie ecisihicaintiaineehiniciniscietialine 6
American Cyanamid Co. v. Capuano,

Se a le ee wicictinieinidhsseaaiensniaianiainsiins 18
Benz v. Compania Naviera Hidalgo, S.A.,

Be ha Ce TTD sciiesionsaasiniescttphedbiiietsshsdiandaiiechdnchadissanaed
Bowen v. Massachusetts, 487 U.S. 879 (1988)...............
Deaton v. United States, 541 U.S. 972 (2004)............0. 2
E.E.O.C. v. Arabian American Oil Co.,

TE ha APE SF iciiinetiesiliasibectlaeitiancetasaitieaialiolaa 4,6, 7
Engine Mfrs. Ass'n v. South Coast Air Quality

Mami. Dist., 539 U.S. 914 (2003) ........ccscccrccessseesees 2
F. Hoffman-La Roche Ltd. v. Empagran S.A.,

SIE Shen 6 ee ee cindsiedideacceabatcdnivaneidsiachncdaniiens 7
Hartford Fire Ins. Co. v. California,

FO ie Fe ee cetaceans aiisabaiiadaciincancciniasiaeia 7
Iselin v. United States, 270 U.S. 245 (1926)...........:2000 19
Lamie v. United States Tr., 540 U.S. 526

CF ccinincsttnccomeieaigdiadiibc: deena igsumcuaateans 19, 20
Mobil Oil Corp. v. Higginbotham,

436 U.S. 618 6 EUR eae ETRE aE eC 20
Murray v. Schooner Charming Betsy,

Fee rice iecaievcccenensepesericctaeens 6-7
Robinson v. Shell Oil Co.,

FER as Bee CT iciecenncniieiailiniiee ceipticteteudoa 19

Small v. United States, 544 U.S. 385 (2005)... 7

ill

TABLE OF AUTHORITIES—Continued

South Florida Water Mgmt. Dist. v. Montalvo,
Be Pe re ls Fe iccrircnisncitecnnssscsorovesectones

United States v. 150 Acres of Land,
204 F.3d 698 (6th Cir. 2000).................ccsccseccsrcsersees

United States v. CDMG Realty Co.,
Pe Fe le PP ortcrcrstvctecccnsevecssnesseasvonsacons

United States v. Township of Brighton,
153 F.3d 307 (6th Cir, 1998) ..ccccccccccccccsccecccsccccsesssee

Washington State Dep’t of Social & Health
Servs. v. Guardianship Estate of Keffeler,
Sa as Pe TIT do cessdikencechunabutceeninsieivendatintronniacetuand

STATUTES:

a ielielssedl
OR I i ececstnincenstdenisnannecestesininacnsnc
HD USE, 5 POD IR) geaneccccecececccceccccevesecccccecesscorosees Mise
42 U.S.C. § 9607(a)(3) -.cceccssecscseescsseecserscsseccssesesesecsseceen
GRATE BGI on icccsescscesnsnevscsnencecsnsormnsone
Cole. Rev. Bt. GE 13-0. S- 108 66 26. cscccccveccccsecsccconvnececoees
Mich. Laws Ann. §§ 324.1801 ef Seq. ........:eeeeeseeeeeeeees
Or. Rev. Stat. §§ 468.078 €f 5€G. ..ccccccccssssesscsesssseeessesessees

REGULATIONS:
| Cee em ne eee enue nS
oi icone

Page

19

1V

TABLE OF AUTHORITIES—Continued

RULES:
A 5 EERE prune P nan Feo Eore MCC eee ONE a Pet RO oe
CI IN aaa asia hci tiseusiooscceebucseaeuseusalvbiapeadaateasee

LEGISLATIVE MATERIALS:
S. Rep. No. 93-906 (1974) ........ a

Sen. Bill No. 906 (110th Cong.) (introduced
Ne i MIND iid oink sSeniitdaatitaeciaaeseighinitiosaaniseedalasaaieiii

TREATIES:

Agreement Concerning the Traisboundary
Movement of Hazardous Waste,
Oct. 28, 1986, TIAS No. 11099, Art. 7.........000....

OTHER AUTHORITIES:

John W. Boscariol, An Anatomy of A Cuban Pyjama
Crisis: Reconsidering Blocking Legislation in
Response to Extraterritorial Trade Measures of
the United States, 30 Law & Pol’! Int’] Bus. 439
SE iisesicSibisisincsscksseveionniadinibciguessadasdulsntucaanuumusecceoc

Letter from Paul Cellucci, Ambassador of the
United States of America to Canada to Michael
O. Leavitt, Administrator, U.S. Environmental
Protection Agency (June 15, 2004) ........... eee eee

Clean Air Report, /ndustry Calls for Relaxed Haze
Rule Following New Emissions Study (Mar. 9,
2006), available at 2006 WLNR 3888059................

Decl. of the United Nations Conf. on the Human
Env't, Principie 22 (June 16, 1972)..........cceseccoseseseess

Vv

TABLE OF AUTHORITIES—Continued
Page

ECC, “The Role of ECC,” available at
http://www.env.gov.bc.ca/spd/ecc/role. html............ 1]

EPA Press Release, “Canada and U.S. Move
Forward to Reduce Air Pollutants” (Apr. 13,
2007), available at http://www.epa.gov/
airmarkets/progsregs/usca/pressrelease. html ............ 10

Leta Hong Fincher, Voice of America News:
Worldwatch Institute—16 of the World’s Most-
Polluted Cities in China (June 28, 2006)....700.......... 15-16

Foreign Extraterritorial Measures Act, R.S.C..,

ID decatincitiereeesccpsinwcneenevsveccssvcnesosenns 14
Gut Dam Arbitration/Settlement (U.S. v. Can.),
reprinted in 8 1.L.M. 118 (1969) 0.00... eee eceseeeeeeees 10

Shi-Ling Hsu & Austen L. Parrish, “Litigating
Canada-U.S. Transboundary Harm:
International Environmental Lawmaking and the
Threat of Extraterritorial Reciprocity,” 48 Va. J.
of Int’ L. 1 (publication forthcoming Oct. 2007),
available at http://ssrn.com/abstract=9675 19 .......... 13-14

IJC, “Transboundary Air Pollution, Detroit and St.
Clair River Areas” (1972), available at http://
www. ijc.org/php/publications/pdf/1D380.pdf........... 9

IJC, “Transboundary Impacts of the Missisquoi Bay
Causeway and the Missisquoi Bay Bridge
Project” (2005), available at http://www.
ijc.org/php/publications/pdf/1D1570.pdf................... 9

Michael Ilg, Environmental Harm and Dilemmas of
Self-Interest: Does International Law Exhibit
Collective Learning?, 18 Tul. Envtl. L.J. 59
SUIT Secs whsssaiichnsciabiosicoiisibiewssdenssisatiladenctaapaalasmdedeeiasanieas 15

vi
TABLE OF AUTHORITIES—Continued
Page

Christopher L. Ingrim, Choice-of-Law Clauses:
Their Effect on Extraterritorial Analysis—A
Scholar's Dream, A Practitioner’s Nightmare,
28 Creighton L. Rev. 663 (1995) 00.0.0... ceeeseseeeeeeees 17

Nancy Kubasek & Jay Threet, Cooper Industries, Inc.
v. Aviall Services, Inc.: Time for a Legislative
Response to Restore Voluntary Remediation, 51

St. Louis U. L.J. 165 (2006).........eceeseeseeecseeseeneesenees 15
Manitoba, Transboundary Pollution Reciprocal

Access Act, C.C.S.M., 1985, c. T145..................00000 11
NMA, The Economic Contributions of the

Mining Industry in 2005 (2007).............:-eeeeeeee 2

Prince Edward Island, Transboundary Pollution
(Reciprocal Access) Act, R.S.P.E.I., 1988,
Wh Sole aiiceiceiscaaicaildidnsalabebncananaiiabbaiiaisicisiahialakabiliadtinieiataokic 1]

Province of Ontario Amicus Br., United States
v. Cinergy Corp., Case No. 06-1224 (7th Cir.)
Ge St WS snescstsictasinincisieimdiainbetiiniisiiniosniees 14

Rokjin J. Park, et al., “Natural and Transboundary
Pollution Influences on Sulfate-Nitrate-
Ammonium Aerosols in the United States,”
109 J. of Geophysical Research D15204 (2004)....... 15

Austen L. Parrish, 7rail Smelter Deja Vu:
Extraterritoriality, International Environmental
Law, and the Search for Solutions to Canadian-
U.S. Transboundary Water Pollution Disputes,

ee ele Es i ce I citaesintcnichtnncemtientorevcconnes 13
Rio Decl. on Env’t and Dev., Principle 13
8 ERIE IY Reirson rine at Oe 10

Trail Smelter Arbitral Tribunal (U.S. v. Can.)
(Mar. 11, 1941), 35 Am. J. Int’] L. 684 (1941)......... 10

Vii |

Tas E OF AUTHORITIES—Continued

Page

Trail Smelter Arbitral Tribunal (U.S. v. Can.)
(Apr. 16, 1938), 33 Am. J. Int’! L. 182 (1939).......... 10

Uniform Transboundary Pollution Reciprocal
Access Act (Uniform Act), 9C U.L.A. 387 (2001)... 11

United Nations, Int’] Law Comm’n, Draft Principles
on the Allocation of Loss in the Case of
Transboundary Harm Arising Out of Hazardous
Activities, 56th Session, Principles 4, 6
CAF AIL BGE) CY ZIO®) .ccreceserccsesovsecccestacsesersesens 11

United States Department of State, Background Note:
Canada (Mar. 2007), available at :
http://www.state.gov/r/pa/ei/bgn/2089.htm................ 9

IN THE

Supreme Court of the Gnited States

No. 06-1188

TECK COMINCO METALS, LTD.,

Petitioner,
v.

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 FOR AMICI CURIAE NATIONAL MINING
ASSOCIATION AND NATIONAL ASSOCIATION OF
MANUFACTURERS IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST
OF AMICI CURIAE!

The National Mining Association (“NMA”) is a national
trade association that represents all aspects of the mining
industry, including producers of most of America’s coal,
metals, industrial and agricultural minerals; manufacturers of
mining and mineral processing machinery and supplies; bulk
transporters; mineral processors; financial and engineering

' No counsel for any party authored this brief in whole or in
part, and no person or entity, other than amici curiae and their
members, made a monetary contribution to the preparation or
submission of this brief. S. Ct. Rule 37.6. Consent letters from all
parties have been filed with the Clerk.

2

firms; and other businesses related to mining. The mining
industry produces vital resources needed to fuel our economy
and manufacture virtually all commodities sold in domestic
and foreign markets. In 2005, the U.S. mining industry
produced $78.4 billion of finished mineral, metal and fuel
products; these products were in turn used to create an
additional $2 trillion worth of consumer and industrial goods.
See The Economic Contributions of the Mining Industry in
2005 at 3, prepared for National Mining Association (2007).

The National Association of Manufacturers (“NAM”) is the
nation’s largest industrial trade association, representing
small and large manufacturers in every industrial sector and
in all 50 states. Its mission is to enhance the competitiveness
of manufacturers by shaping a legislative and regulatory
environment conducive to U.S. economic growth and to
increase understanding among policymakers, the media, and
the general public about the vital role of manufacturing to
America’s economic future and living standards.

Amici regularly represent their members’ interests before
Congress, state legislatures, and federal and state courts and
have participated as amici in numerous cases pending before
this Court, including cases involving application of the
Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”) and other environmental laws.

—See, e.g., Engine Mfrs. Ass’n v. South Coast Air Quality
Mgmt. Dist., No. 02-1343, 539 U.S. 914 (2003) (NAM);
Deaton v. United States, No. 03-701, 541 U.S. 972 (2004)

(NMA).

Amici have a substantial interest in this case. Their
members own or operate facilities located near the U.S.
borders with Canada and Mexico and adjacent to cross-
boundary bodies of water. The Ninth Circuit concluded that
applying CERCLA to petitioner Teck Cominco Metals, Ltd.
(“Teck”), a Canadian corporation, for conduct occurring
solely in Canada was not an extraterritorial application of

3

CERCLA. The Ninth Circuit’s unprecedented application of
CERCLA liability—and its contorted interpretation of the
presumption against extraterritorial application of US.
laws—threatens to disrupt the cooperative diplomatic
approach traditionally, and successfully, employed to address
transboundary environmental issues.

Of crucial importance to amici, the Ninth Circuit’s decision
also may trigger reciprocal actions by foreign nations and
their citizens against United States companies—including
amici’s members—for conduct within the United States
alleged to harm foreign natural resources. Such actions could
adversely irapact amici’s members and other United States
companies and generate conflict and confusion over which
laws govern their activities within the United States. Amici’s
members favor an interpretation of CERCLA that establishes
a clear and predictable scope for liability under the statute—
and avoids the business uncertainty that would result if
conduct in the United States in full compliance with federal
and state environmental laws could nonetheless lead to
liability imposed in foreign courts based on foreign laws.

SUMMARY OF ARGUMENT

This CERCLA case arises because of activities allegedly
undertaken by Teck, a Canadian corporation, at a smelter
located in Canada. Respondents allege that hazardous
substances from that smelter have migrated along the
Columbia River from Canada into the State of Washington.
The District Court acknowledged that imposing liability on
Teck “involves an extraterritorial application of CERCLA to
conduct occurring outside U.S. borders,” because the alleged
contamination “in the United States ‘would not exist without
the activity at the smelter located in British Columbia.” Pet.
App. 37a, 38a. But it nonetheless held that applying
CERCLA to Teck was appropriate. The Ninth Circuit
affirmed on the wholly different ground that imposing
liability on Teck was merely a “domestic” application of

4

CERCLA—even though Teck is indisputably a foreign
corporation and is not alleged to have engaged in any
conduct inside the United States. Pet. App. 14a.

The Ninth Circuit’s decision extends “domestic”
applications of CERCLA liability to cover any actions by any
entity around the globe that allegedly result in hazardous
substances reaching U.S. shores. Such a reading of the
presumption against extraterritoriality seriously undermines,
to the point of gutting, the “long-standing principle of
American law ‘that legislation of Congress, unless a contrary
intention appears, is meant to apply only within the territorial
jurisdiction of the United States..” E.E.O.C. v. Arabian
American Oil Co. (“Aramco”) 499 U.S. 244, 248 (1991)
(citation omitted). This principle protects “against unintended
clashes between our laws and those of other nations which
could result in international discord.” /d. And adhering to
the presumption against extraterritoriality is particularly
appropriate in this context, because transboundary pollution
is a matter of quintessential international concern—and has
consistently been recognized as such.

Transboundary pollution issues have traditionally been ~
addressed through diplomatic discourse and bilateral
agreements. The Ninth Circuit’s holding sets two
countries—and businesses on both sides of the U.S.-Canada
border—on a path away from cooperative diplomacy in the
resolution of cross-border environmental issues and toward
piecemeal litigation by private parties under CERCLA that
will (indeed, already has) upset diplomatic relations between
the United States and Canada. And the import of the Ninth
Circuit’s decision is by no means limited to foreign conduct
in Canada. The court’s rationale applies to conduct occurring
across the border with Mexico, or for that matter in any
foreign country, that allegedly causes adverse effects in the
United States. Air and water migrate without regard to
international boundaries, and science is increasingly capable
of tracking the flow of environmental contaminants. The

5

Ninth Circuit’s decision effectively opens United States
courts to claims under CERCLA with respect to conduct the
world over, potentially inviting unintended clashes with the
interests of numerous sovereigns and the businesses
operating within their boundaries.

American businesses will suffer the consequences of the
international discord generate. by the decision below.
Applying CERCLA to foreign companies operating on
foreign soil will inevitably encourage retaliatory actions by
foreign countries and foreign citizens against U-S.
businesses. And the prospect that the environmental laws of
foreign countries may govern the activities of a company’s
domestic operations will add to the complex regulatory
requirements that U.S. businesses already must navigate
under United States law. American businesses should not be
subjected to those added burdens unless they are expressly
contemplated by Congress—and CERCLA evidences no
such express directive. This Court should grant the petition
for a writ of certiorari to examine—and reverse—the Ninth
Circuit’s unprecedented and far-reaching ruling.

There is an additional reason to grant certiorari. The Ninth
Circuit split with the First Circuit over the contours of the
“arranger” liability provision of CERCLA. This split means
that the category of parties potentially subject to arranger
liability is now defined differently—even for the same
company—depending where in the country a company is
operating. Given the stringent liability standard codified in
CERCLA, it is particularly important that the requirements
for arranger liability be clear, predictable, and consistent
across the Nation. .

6

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT’S DECISION INVITES
RETALIATION AGAINST AMERICAN
BUSINESSES AND FOSTERS UNCERTAINTY
AND DISCORD FOR NUMEROUS AMERICAN
INDUSTRIES.

A. The Ninth Circuit’s Decision Distorts The
Meaning Of The Presumption Against
Extraterritorial Application Of U.S. Law.

There is a strict presumption against extraterritorial
application of U.S. law. It can only be overcome by a “clear
statement” of Congressional intent to do so. Aramco, 499
U.S. at 259. The Ninth Circuit circumvented that strict
presumption by finding that application of CERCLA liability
to Teck—a Canadian company whose conduct occurred
solely in Canadian territory—was a domestic application of
U.S. law. This holding departs wildly from this Court’s
precedents. It also undercuts the fundamental principles on
which those precedents are based, and it denigrates the
bilateralism that has traditionally characterized the U.S.-
Canadian approach to resolving transboundary pollution
issues. A grant of certiorari is warranted.

The presumption that a domestic statute applies only
domestically protects against “international discord” by
preventing clashes of United States and foreign law.
Aramco, 499 U.S. at 248. As Justice Holmes explained, an
act’s lawfulness “must be determined wholly by the law of
the country where the act is done.” American Banana Co. v.
United Fruit Co., 213 U.S. 347, 356 (1909). Anything else is
“unjust” and “an interference with the authority of another
sovereign.” Id.’

2 , ‘ “a

“ A related canon of construction is also relevant here. “[A]n
act of congress ought never to be construed to violate the law of
nations if any other possible construction remains.” Murray v.

j

A party arguing in favor of the extraterritorial application
of a law has the burden to show that Congress intended that
expansive reach. Aramco, 499 U.S. at 250. This is a
significant burden indeed; for there must be “affirmative
evidence” that Congress “clearly expressed” its intent that the
statute at issue apply abroad. /d. at 258; Benz v. Compania
Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957). It is well-
established that “Congress ordinarily intends its statutes to
have domestic, not extraterritorial, application.” Small v.
United States, 544 U.S. 385, 388 (2005); see also id. at 400
(Thomas, J., dissenting) (“extraterritoriality canon” restricts
“federal statutes from reaching conduct beyond U.S.
borders”) (emphasis in original). When Congress intends to
depart from ordinary domestic application, it has explicitly
done so. Aramco, 499 U.S. at 258 (citing examples).

The District Court concluded that there was “no direct
evidence that Congress intended extraterritorial application
of CERCLA to conduct occurring outside the United States.”
Pet. App. 57a. That is, of course, correct; and no court has
concluded otherwise. But undeterred by this clear lack of
affirmative Congressional intent to impose CERCLA liability
for conduct occurring abroad, the Ninth Circuit found
another way around the presumption. It concluded that the
presumption did not come into play because CERCLA was
actually being applied “domestic[ally}” to Teck—a Canadian
company operating in Canada. Pet. App. 14a.

In reaching this curious conclusion, the Ninth Circuit
focused exclusively on whether a “release” occurred in the

Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)
(Marshall, C.J.). Under this canon of “prescriptive comity,” F.
Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165
(2004), “statutes should not be interpreted to regulate foreign
persons or conduct if that regulation would conflict with principles
of international law.” Hartford Fire Ins. Co. v. California, 509
U.S. 764, 815 (1993). It is an established principle of international
law that nations not intrude on each other’s sovereign interests.

8

United States. /d. at 19a, 20a. It neglected the other text in
CERCLA’s liability provision. CERCLA liability _ is
premised on finding that a person within one of four
delineated categories of liable parties had the required nexus
to a vessel or facility from which there is a release. For the
third category of liable parties—“arrangers”—liability is
imposed where: (1) the person arranged (by contract,
agreement, or otherwise) for disposal or treatment at a
facility; and (2) there was a release or threatened release of a
hazardous substance from that facility. 42 U.S.C. § 9607(a).’

Thus, a “domestic” application of arranger liability
requires both that there be a release from a domestic
facility—which the Ninth Circuit found had occurred—and
that the party by contract, agreement, or otherwise arranged
for disposal at that domestic facility. The Ninth Circuit
never addressed this point, even though no one—not the
EPA, the District Court, or the Ninth Circuit—has ever
disputed that whatever “arranging” is allegedly attributable to
Teck did not occur in the United States. Holding Teck liable
under U.S. law for conduct it performed solely within

> The arranger-liability provision states in relevant part: “any
person who by contract, agreement, or otherwise arranged for
disposal or treatment * * * of hazardous substances * * * at any
facility * * * from which there is a release * * * of a hazardous
substance, shall be liable” for certain costs. Jd. § 9607(a)(3), (4)
(emphases added). The phrase beginning “from which there is a
release” modifies subparagraphs |-4, even though it follows
subparagraph 4. See, e.g., United States v. Township of Brighton,
153 F.3d 307, 328 n.8 (6th Cir. 1998).

* Courts have repeatedly held that the term “disposal” does not
include the passive migration of materials; it requires “active
human conduct.” United States v. 150 Acres of Land, 204 F.3d
698, 705-706 (6th Cir. 2000) (noting CERCLA’s distinction
between the definitions of “disposal” and “release”); accord ABB
Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 358 (2d Cir.
1997); United States v. CDMG Realty Co., 96 F.3d 706, 714 (3rd
Cir. 1996).

9

Canada—and that was authorized by Canadian law—plainly
implicates the presumption against extraterritoriality.

B. The Ninth Circuit’s Decision Flouts The
International Mechanisms Long Deemed
Appropriate For Resolving Transboundary
Pollution Issues.

The Ninth Circuit decision does a grave disservice to the
United States’ history of addressing transboundary pollution
through diplomatic channels and international agreements.
Congress enacted CERCLA in 1980 against the backdrop of
a settled international framework for addressing
transboundary pollution issues—including issues relating to
the very smelter at issue in this case. There is no indication
whatsoever that Congress sought to meddle with that
established framework when it enacted CERCLA.”

For nearly a century, the United States and Canada have
looked to bilateral, diplomatic resolutions of transboundary
pollution issues. See generally United States Department of
State, Background Note: Canada (Mar. 2007) (“The U.S.
and Canada also work closely to resolve transboundary
environmental issues, an area of increasing importance in the
bilateral relationship.”). In the Boundary Waters Treaty of
1909, the two nations created the International Joint
Commission (“IJC”’) to resolve disputes over boundary
waters. The IJC has since played a crucial role in resolving
transboundary pollution issues. See, e.g., IJC, “Trans-
boundary Impacts of the Missisquoi Bay Causeway and the
Missisquoi Bay Bridge Project” (2005); IJC, “Transboundary
Air Pollution, Detroit and St. Clair River Areas” (1972).

In 1939, when emissions from the Canadian smelter
involved in this case were alleged to be damaging property in
the United States, the two nations agreed to an arbitration

’ Congress is presumed to know the state of existing law when
it legislates. Bowen v. Massachusetts, 487 U.S. 879, 896 (1988).

10

procedure that gave nse to one of the seminal decisions on
international pollution—the “Trail Smelter Arbitration.”
Trail Smelter Arbitral Tribunal (U.S. v. Can.) (Apr. 16,
1938), 33 Am. J. Int’l L. 182 (1939); Trail Smelter Arbitral
Tribunal (U.S. v. Can.) (Mar. 11, 1941), 35 Am. J. Int’) L.
684 (1941). The United States did not unilaterally assess
liability for acts within the sovereign nation of Canada. It
employed the traditional method of resolving sensitive
questions of transboundary environmental harm through
international channels, not private litigation.

The list goes on; this Nation’s history is replete with other
examples of the United States’ bilateral approach to
transboundary harms. The United States and Canada used
international arbitration to resolve harms to U.S. citizens
caused by flooding and erosion from a Canadian dam. See
Gut Dam Arbitration/Settlement (U.S. v. Can.), reprinted in
8 I.L.M. 118 (1969). A few years later, the United States and
Mexico negotiated resolution of a longstanding controversy
over the increased salinity of water reaching Mexico via the
Colorado River. See S. Rep. No. 93-906 (1974). The United
States and Canada signed an agreement twenty years ago to
resolve issues of moving hazardous waste across their shared
border. Agreement Concerning the Transboundary Move-
ment of Hazardous Waste, Oct. 28, 1986, TIAS No. 11099,
Art. 7. And, just last month, the United States and Canada
announced they were negotiating an annex to the 1991 U.S.-
Canada Air Quality Agreement (Pet. 11) to “reduce[e] the
cross-border flow of air pollution and its impact on the health
and ecosystems of Canadians and Americans.” See EPA
Press Release, “Canada and U.S. Move Forward to Reduce
Air Pollutants” (Apr. 13, 2007).°

; Beyond this Nation’s own history of bilateralism, international
compacts confirm that an active international framework for
addressing transboundary pollution exists. See, e.g., Decl. of the
United Nations Conf. on the Human Env’t, Principle 22 (June 16,
1972); Rio Decl. on Env’t and Dev., Principle 13 (June 14, 1992).

1]

Local governments likewise have treated transboundary
pollution as an international diplomatic issue. In 1982, for
example, the National Conference of Commissioners on
Uniform State Laws and the Uniform Law Conference of
Canada proposed a Uniform Transboundary Pollution
Reciprocal Access Act, 9C U.L.A. 387, 388 (2001). This
Act allows a citizen who is injured by pollution emanating
from another state to sue in the source state’s courts as
though he lived in the source state. /d. at 394. The plaintiff
has the same rights as anyone else in the source jurisdiction.
Id. at 394-395. The Act has been adopted by several U.S.
states and Canadian provinces. See, e.g., Colo. Rev. St.
§§ 13-1.5-101 et seg.; Mich. Laws Ann. §§ 324.1801 et seq.;
Or. Rev. Stat. §§ 468.078 et seg.; Manitoba Transboundary
Pollution Reciprocal Access Act, C.C.S.M., 1985, c. T145;
Prince Edward Island Transboundary Pollution (Reciprocal
Access) Act, R.S.P.E.1., 1988, c. T-5." And its position—that
the source jurisdiction’s laws govern—was also adopted by
the United Nations. See United Nations, Int’] Law Comm’n,
Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm Arising Out of Hazardous Activities,
56th Session, Principles 4, 6 (A/CN.4/L.662) (July 2004).*

’ Although neither the State of Washington nor the Province of
British Columbia has adopted the Uniform Act, these two entities
created the Environmental Cooperation Council (“ECC”) in 1992
to deal with transborder environmental issues. The ECC acts as a
“significant catalyst to cooperative environmental management”
between British Columbia and Washington, and has a Task Force
dedicated to air and water quality issues in the Columbia River
Basin. See ECC, “The Role of ECC,” available at http://www.
env.gov.bce.ca/spd/ecc/role. htm}.

* In other words, even if this transboundary pollution issue were
to be resolved under the domestic law of one of the two sovereigns
involved in the dispute, the relevant domestic law that should
apply is Canadian law—not CERCLA.

12

This long history reinforces the conclusion that countries
can best address and resolve sensitive transboundary
pollution problems through diplomatic channels or traditional
international law mechanisms, such as arbitration tribunals,
that can balance complex diplomatic issues alongside
environmental and private interests. Permitting private
plaintiffs to bring actions challenging foreign conduct would
disrupt the international framework that has long been
successfully employed to _ resolve transboundary
environmental disputes.

C. The Ninth Circuit’s Decision Will Precipitate
Retaliation, Uncertainty, And Discord
Throughout American Industries.

Applying CERCLA to foreign companies acting wholly in
a foreign country will not only disrupt the settled
international framework for resolving transboundary
pollution disputes; it also is likely to trigger backlash and
retaliation against American companies.

1. Canada reacted to the EPA’s Order in this case by
pointing to the serious international ramifications of
extending CERCLA beyond U.S. borders. The Canadian
Government issued a formal Diplomatic Note expressing
“concern[]}” that the United States would attempt to enforce
CERCLA against a Canadian company operating in
Canadian territory under Canadian law. 9th Cir. ER 72. The
Diplomatic Note emphasized that “issuance of the Unilateral
Administrative Order may set an unfortunate precedent, by
causing transboundary environmental liability cases to be
initiated in both Canada and the United States.” /d. And it
requested that the United States rescind the UAO in favor of
“develop[ing] a mutually acceptable and enforceable
agreement, in the spirit of the long history of joint Canada-
U.S. stewardship of our shared environment.” /d.

The diplomatic arm of the Executive Branch—in a break
from EPA—separately voiced its own concerns over the
unilateral extraterritorial enforcement of CERCLA. The

13

United States Ambassador to Canada asked the EPA to
withdraw the UAO. Letter from Paul Cellucci, Ambassador
of the United States of America to Canada to Michael O.
Leavitt, Administrator, U.S. Environmental Protection
Agency (June 15, 2004). His letter explained that “pursuing
a clean-up program through legal action under [CERCLA]
has the potential, because of its unilateral nature, to cause
significant harm to our otherwise productive and cooperative
bilateral environmental relationship.” /d. He echoed the
same concern voiced by the Canadian Government: “The
Government of Canada could use this precedent to justify its
own unilateral decisions regarding U.S. companies whose
actions inside the U.S. impact on Canadian watersheds.” /d.

The EPA eventually responded to the concerns raised by
Canada and the Executive Branch and rescinded the UAO.
Pet. App. 9a n.10. The rescission of the UAO demonstrates
the importance and efficacy of fostering bilateral resolutions
of transboundary pollution issues—but it did not resolve this
case. For even if EPA rescinds a UAO, it is in no position to
extinguish the process to which private parties such as
respondents here have access under CERCLA. See id.

2. If the Ninth Circuit’s decision remains in place,
American businesses will face uncertainty and potential
retaliation not only from Canada, but from other countries
around the globe. “Tt.e specter of reciprocity is a very real
concern because transboundary pollution flows both ways.”
Austen L. Parrish, Trail Smelter Deja Vu: Extraterritoriality,
International Environmental Law, and the Search for
Solutions to Canadian-U.S. Transboundary Water Pollution
Disputes, 85 B.U. L. Rev. 363, 410-411 (2005). Applying
CERCLA to a Canadian company for conduct in Canada
invites the government and citizens of Canada to turn the
tables and do the same, with United States businesses as the
defendants. See Shi-Ling Hsu & Austen L. Parrish,
“Litigating Canada—U.S. Transboundary Harm: International
Environmental Lawmaking and the Threat of Extraterritorial

14

Reciprocity,” 48 Va. J. of Int’] L. 1 (publication forthcoming
Oct. 2007), available at http://ssrn.com/abstract=9675 19
(arguing that Canada is likely to turn to extraterritorial
application of its environmental statutes to address U.S.
pollution causing cross-border harm).

Canada has reacted strongly in the past when it has
perceived the United States to be encroaching on its
sovereign affairs—and the decision below encourages it to do
so again.’ This concern is not hypothetical. About forty-five
percent of rivers on the U.S.-Canadian border, for example,
flow from the United States into Canada. Parrish, supra, at
410. Industrial emissions from the United States are
allegedly causing environmental harm to Canadian Inuit and
Arctic wildlife. /d And the Province of Ontario recently
argued to the Seventh Circuit that its air quality is
compromised by U.S. pollution, pointing out that “[mJore
than 50% of the air pollution in Ontario is generated by U.S.
sources.” Province of Ontario Amicus Br. 18, United States
v. Cinergy Corp., Case No. 06-1224 (7th Cir.) (filed May 9,
2006). The Province argued that the “cost of transboundary
air pollution in Ontario in human, environmental and
economic terms is considerable,” including more than $3.7
billion (CDN) in human costs and more than $1 billion in
environmental costs. /d. at 19.

7 In 1985, for example, reacting to the United States’
extraterritorial enforcement of its antitrust laws, Canada enacted
blocking legislation (titled the Foreign Extraterritorial Measures
Act, or FEMA). See R.S.C., ch. F-29 (1985) (Can.). FEMA grants
Canada’s Attorney General broad authority to prevent
extraterritorial encroachments on Canadian sovereignty with
respect to antitrust proceedings. Throughout the 1990s, the
Canadian Attorney General issued orders under FEMA prohibiting
Canadian compliance with the United States’ extraterritorial efforts
to block trade with Cuba. See John W. Boscariol, An Anatomy of
A Cuban Pyjama Crisis: Reconsidering Blocking Legislation in
Response to Extraterritorial Trade Measures of the United States,
30 Law & Pol’l Int’] Bus. 439, 452-454 (1999).

15

Numerous other nations similarly have contended that U.S.
industrial practices have caused environmental
contarnination; indeed, many sources suggest that the United -
States is the world’s largest polluter. See, e.g., Nancy
Kubasek & Jay Threet, Cooper Industries, Inc. v. Aviall
Services, Inc.: Time for a Legislative Response to Restore
Voluntary Remediation, 51 St. Louis U. L.J. 165, 181 (2006)
(stating that the United States Department of Defense “is the
world’s largest polluter, producing more hazardous waste per
year than the five largest United States chemical companies
combined”); Michael Ilg, Environmental Harm and
Dilemmas of Self-interest: Does International Law Exhibit
Collective Learning?, 18 Tul. Envtl. L.J. 59, 68 (2004).
Even Congress has acknowledged that the United States is a
net exporter of certain types of transboundary pollutants.
See, e.g., Sen. Bill No. 906 (110th Cong.) (introduced Mar.
15, 2007) (proposing mercury regulation based on findings
that mercury is a transboundary pollutant and the United
States is a net exporter of mercury worldwide).

United States industry—including members of amici—
will, of course, bear the brunt-of private enforcement actions
brought by citizens of a foreign nation against companies
operating in the United States for perceived violations of
foreign environmental laws. The potential for U.S.
businesses to face private environmental enforcement efforts
will extend far beyond Canada, because science is
increasingly capable of documenting the long-range transport
of pollutants.'” The Ninth Circuit’s decision permits the

'° See, e.g., Rokjin J. Park, ef al., “Natural and Transboundary
Pollution Influences on Sulfate-Nitrate-Ammonium Aerosols in
the United States,” 109 Journal of Geophysical Research D15204
(2004) (tracking transboundary pollutants from Canada, Mexico,
and Asia to the United States and contribution of transboundary
pollutants from United States to Europe and North Africa); Leta
Hong Fincher, Voice of America News: Worldwatch Institute—16
of the World’s Most-Polluted Cities in China (June 28, 2006)

16

source of pollution to be held liable wherever it ultimately
lands, so long as science can document the long-range
transport of the pollution.

And this is so even if the company’s conduct was fully in
accord with the governing law of the sovereign nation in
which it operates. Amici’s members regularly operate under
permits from the EPA. At present, they can be confident that
if their operations conform to their government-approved
permits, they will not be violating federal environmental
laws. See, e.g., 33 U.S.C. § 1342(k) (compliance with a
permit issued under the Clean Water Act is deemed
compliance with that Act); 42 U.S.C. § 7661c(f) (compliance
with a permit issued under the Clean Air Act is deemed
compliance with that Act); see also, e.g., 30 C.F.R. § 780.15
(outlining air pollution control plan required to obtain surface
mining permit); 30 C.F.R. § 780.18 (outlining reclamation
plan required for surface mining permit, including steps to be
taken to comply with the Clean Air Act, Clean Water Act,
and other environmental laws and regulations).

The Ninth Circuit’s ruling, if it stands, will embolden
foreign plaintiffs to sue U.S. businesses for purported
environmental wrongs—as dictated by the standards of their
own environmental law regimes, not United States law. As a
result, companies in the United States, which currently
expend vast resources ensuring that their businesses operate
in accordance with our Nation’s law, would have to devote
even more substantial efforts, money, and personnel to
examining environmental law around the world, and to
attempting to protect or insure against potential liability
under all of those laws as well. And the price of
noncompliance with one or more foreign sovereign’s laws

(discussing atmospheric transport of pollution to the United States
from China); Clean Air Report, /ndustry Calls for Relaxed Haze
Rule Following New Emissions Study (Mar. 9, 2006) (discussing
study finding transboundary pollution from Canada, Mexico, and
Asia makes “large contributions” to haze in the United States).

17

could be steep indeed: the same discharge or emission could
result in exponential liability in numerous countries,
depending on how far science is able to follow the trail
around the globe. This in turn will introduce grave
unpredictability about potential environmental liability from
foreign environmental laws. And that instability in turn will
necessarily hamper trade and economic growth. See, e.g.,
Christopher L. Ingrim, Choice-of-Law Clauses: Their Effect
on Extraterritorial Analysis—A Scholar’s Dream, A
Practitioner’s Nightmare, 28 Creighton L. Rev. 663, 664
(1995) (legal uncertainty is “inherently disturbing to the
international business community which requires a
reasonable amount of certainty and predictability in order to
trade freely and efficiently in today’s global economy”).

To say the least, this is not a happy prospect for United
States industry. The Ninth Circuit’s ruling is not just an ill-
considered and indefensible textual interpretation of
CERCLA. It was issued without regard to the diplomatic
sensitivities that must inform the menu of available remedies
in any instance of transboundary pollution, and without
regard to the prospect that many stalwart American industries
may now be subjected to exponential foreign liability for
their daily domestic operations—all depending on which way
the wind blows or the water flows. Certiorari should be
granted to address and resolve this issue.

Il. THIS COURT’S REVIEW IS NEEDED TO
ESTABLISH NATIONAL UNIFORMITY ON
THE QUESTION OF ARRANGER LIABILITY.

The circuit split on the scope of arranger liability under
§ 107(a)(3) is ripe and merits review. See S. Ct. Rule. 10(a);
see also South Florida Water Mgmt. Dist. v. Montalvo, 84
F.3d 402, 406(11th Cir. 1996) (noting that courts have
“struggled with the contours of ‘arranger’ liability under
§ 107(a)(3)”). The First and Ninth Circuits have taken
diametrically o » osed positions on what the term “by any
other party or entity” modifies—which in turn determines

18

who is within the third category of “covered persons” under
CERCLA’s liability provision.

When presented with the question who is included in the
scope of arranger liability, the First Circuit turned to the
“sentence structure” of § 107(a)(3)}—which it found “makes
it clear” that the provision attaches when the party who owns
or possesses the hazardous material arranges with another
party for disposal or treatment of that material. American
Cyanamid Co. v. Capuano, 381 F.3d 6, 24 (1st Cir. 2004). In
reaching its conclusion, the First Circuit expressly rejected an
interpretation of the statute that would have required editing
the operative provision of the statute to add a new word—
“or’—not in the text. The First Circuit thus declined to read
CERCLA so as to “make liable any person who arranged for
the disposal of a hazardous substance ‘owned or possessed
by such person [or] by any other party or entity.’ ” Jd. at 23-
24 (emphasis added).

The Ninth Circuit had no such compunction about
retrofitting the statute to suit its preferred interpretation.
Within the Ninth Circuit, arranger liability extends to “any
person who * * * arranged for disposal or treatment * * * of
hazardous substances owned or possessed by such person
[or] by any other party or entity.” Pet. App. 24a (emphasis
added). The Ninth Circuit thus has eliminated any
requirement that a party “arrange” with a third party for
disposal before arranger liability attaches, while the First
Circuit has upheld the requirement of third-party

'' The arranger liability provision states in relevant part that:
“any person who by contract, agreement, or otherwise arranged for
disposal or treatment ** * of hazardous substances owned or
possessed by such person, by any other party or entity, at any
facility * * * from which there is a release * * * of a hazardous
_ substance, shall be liable” for certain costs. 42 U.S.C.
§ 9607(a)(3), (4) (emphasis added to disputed clause).

19

participation.'* Amici’s members, who have operations in
both the First and Ninth Circuits, now face national business
uncertainty about the scope of arranger liability.

The starting point for interpreting a statute is always the
plain and unambiguous meaning of the statute. Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). That a statute “is
awkward, and even ungrammatical” does not mean it is
ambiguous on the point at issue. Lamie v. United States Tr.,
540 U.S. 526, 534 (2004). The Ninth Circuit, in the guise of
employing a “liberal judicial interpretation” of CERCLA
(Pet. App. 26a), added the word “or” to the liability
provision. Its stated reason: adhering to the plain language
of the statute would create a gap in the liability regime. /d.
Perhaps, or perhaps not. But it is not the province of a Ninth
Circuit panel to remedy a perceived legislative oversight.

The Ninth Circuit’s reading “is not a construction of a
statute, but, in effect, an enlargement of it by the court, so
that what was omitted, presumably by inadvertence, may be
included within its scope.” Jselin v. United States, 270 U.S.
245, 251 (1926). But as this Court made clear long ago, “[t]o
supply omissions transcends the judicial function.” Jd.
Courts may not “read an absent word into the statute” when

2 Further support for the First Circuit’s holding—and further
confirmation that the Ninth Circuit erred—can be found in the
established interpretive cannons of noscitur a sociis and ejusdem
generis. Under these canons, “[w]jhere general words follow
specific words in a statutory enumeration, the general words are
construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.” Washington State
Dep’t of Social & Health Servs. v. Guardianship Estate of
Keffeler, 537 U.S. 371, 384 (2003) (quotation omitted). Applied
here, the term “otherwise arranged”—as the last item in the
sequence “by contract, agreement or otherwise arranged”—should
have the same requirement of two-party conduct shared by the
preceding terms, “contract” and “agreement.” That is the First
Circuit’s interpretation, and it is the far better reasoned one.

20

there is a “plain, nonabsurd meaning in view.” Lamie, 540
U.S. at 538; Mobil Oil Corp. v. Higginbotham, 436 U.S. 618,
625 (1978) (courts “have no authority to substitute [their]
views for those expressed by Congress in a duly enacted
statute”). By adding the word “or” the Ninth Circuit
radically expanded the scope of arranger liability. Its
decision merits review. The arranger-liability requirements
shouwid be the same in all federal courts and should be based
on clear, predictable rules. The conflict created by the
decision below will directly affect companies and industries
that operate in multiple states, including amici’s members
who now face varying rules and potentially different
outcomes with respect to a crucial liability determination.
The Court should grant certiorari and establish national
uniformity on this important question presented.

CONCLUSION

For the foregoing reasons, as well as those presented in the
petition, the petition should be granted.

Respectfully submitted,
Of Counsel:
HAROLD P. QUINN, JR. CATHERINE E. STETSON
TAWNY A. BRIDGEFORD Counsel of Record

NATIONAL MINING ASSOCIATION JESSICA L. ELLSWORTH
101 Constitution Avenue, N.W. HOGAN & HARTSON L.L.P.

Suite 500 East 555 Thirteenth Street, N.W.
Washington, D.C. 20001 Washington, D.C. 20004
(202) 463-2600 (202) 637-5600
JAN S. AMUNDSON Counsel for Amici Curiae
QUENTIN RIEGEL
NATIONAL ASSOCIATION

OF MANUFACTURERS

1331 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 637-3000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2229%3A14. Public record. Not legal advice.