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US Supreme Court's Big No to Teck Cominco

BC-based mining firm loses bid to appeal cross-border pollution lawsuit.

By Rhiannon Coppin 8 Jan 2008 | TheTyee.ca

Rhiannon Coppin is a Vancouver-based journalist.

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Teck Cominco smelter in Trail, BC.

[Editor's note: Rhiannon Coppin received a Tyee Fellowship for Investigative Reporting to write about the controversy over Teck Cominco liability for pollution originating in B.C. and flowing into the U.S. Her in-depth series begins in the coming weeks. In the meantime, she reports here on a key court ruling made yesterday.]

The U.S. Supreme Court Monday denied Vancouver-based mining giant Teck Cominco's application for the re-hearing of a lawsuit launched by Washington State citizens over pollution in the upper Columbia River.

As a result it is possible, though not at all certain, that Teck Cominco will have to pay millions of dollars to U.S. citizens who claim to have been affected by its pollution.

But the Supreme Court's decision not to hear the company's appeal scuttles a court case that might have had far more sweeping impact. Still legally murky is the broader question of how much power citizens have to sue a foreign entity for polluting their land.

Millions of tonnes of slag

Teck Cominco may have hurt their own appeal in June of 2006 when they signed a contentious $20 million deal with the Environmental Protection Agency (EPA) to study the health of the river after millions of tonnes of smelter by-product -- namely slag -- had been dumped into the Columbia River at Trail, B.C. over decades, leading up until the early '90s.

Teck Cominco signed the deal with the EPA partly because, they asserted, it was the right thing to do. "From the outset of our involvement in this issue, our intent has been to commit to do what we needed to do to deal with the environmental consequences of our past activities," asserted senior vice president of environment & corporate affairs Doug Horswill in a 2006 interview.

But the agreement also allowed the federal agency to withdraw a legally-binding enforcement order from 2003 that would have forced the Canadian company to undertake a full study and clean up of the river, with terms set out by the EPA, with potentially unlimited monetary costs to Teck Cominco.

The question in court was whether a Canadian corporation, operating and polluting in Canada -- for the most part within the limits of B.C.-issued permits -- could be targeted by U.S. environmental laws.

A group of U.S. citizens, headed up by representatives of the Colville Confederated Indian Tribes, sought enforcement of the then-outstanding EPA clean up order through Washington State court.

The case of Pakootas vs. Teck Cominco, which was initially won, went to federal appeals court in 2005. While the decision there was outstanding, Teck Cominco signed their deal with the EPA.

The decision came back in the fall of 2006 -- against the company. The problem with the decision was that there was no longer an EPA cleanup order to enforce, and the EPA had agreed not to pursue the fines they had levied against Teck Cominco for non-compliance.

Still, the tribes had not agreed not to sue for the non-compliance fines, and they also tacked on provisions for suing for costs and damages to their original lawsuit. The tribes did this partly to make sure that the EPA's private deal with Teck Cominco wouldn't nullify their complaint, and partly because going to court and living on and near polluted beaches can be a costly endeavour.

Threat to foreign policy?

The Supreme Court offered no reason why they wouldn't hear the case, but they had requested the opinion of the U.S. government on the matter in the summer of 2007.

Teck Cominco argued that the appeals court decision against them threatened U.S. foreign policy.

"For example, the president might find it difficult to press the Canadian government to continue its military presence in Afghanistan if Canadians were preoccupied with the prospect of being sued by EPA and private U.S. parties in American courts for conduct that occurred in Canada and in compliance with Canadian law," the company's lawyers wrote in their petition to the U.S. Supreme Court.

Teck Cominco further argued that the decision against them, and thus Canada, could affect American relations with other border nations such as Mexico and Russia and that trade with China could be harmed if someone sought damage for airborne mercury sourced from Asian smokestacks.

"The Ninth Circuit's decision thus threatens to interfere with the Executive's ability to conduct foreign policy not only within North America, but anywhere air and ocean currents may carry pollutants -- potentially, anywhere in the world," the company wrote.

In response, the U.S. solicitor general agreed that "international pollution can be diplomatically sensitive" but called Teck Cominco's arguments "unusually weak. . .because [the] petitioner dumped millions of tons of slag into a river just upstream of the border."

The U.S. solicitor general further argued in a response filed Dec. 4 that the Washington state citizens' lawsuit and the lower courts' decision in its favour was now irrelevant because the EPA had withdrawn the order against Teck Cominco -- the order for which the original citizen's lawsuit was seeking court enforcement.

The tribes and the State of Washington responded in turn, fearing that the U.S. Supreme Court, in addition to not hearing the case, might also "vacate" the lower court's opinion in accord with the Teck Cominco request in its own response to the solicitor general's argument for mootness.

Missed chance for precedent

In the end, Teck Cominco stood alone against the U.S. government, the State of Washington, and the citizens suing them, all of whom had their own reasons for asking the U.S. Supreme Court to reject Teck Cominco's request for an appeal.

Today marks a small victory for the plaintiffs in Pakootas vs. Teck Cominco, but it is by no means a clear win. Actually enforcing a cross-border "pay-up" command against Teck Cominco is still a challenge untested. Actually seeing a cleanup of the upper Columbia River? It may be impossible. But had the Supreme Court agreed to hear Teck Cominco's case, it may have settled once and for all the powers and boundaries of a nation's laws: Can citizens sue a foreign entity for polluting their land?

Without a precedent, you could argue there are no winners.

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