2020 Environmental Real Estate IssuesThe Canadian federal government and the province of British Columbia have filed friend of the court briefs with the United States Supreme Court, urging the Supreme Court to consider the appeal of Teck Cominco Metals (Teck) relating to the Upper Columbia River (UCR) CERCLA site. In 2018, the U.S. Court of Appeals for the 9th Circuit affirmed a trial court judgment that Teck pay approximately $8.3 million to the Confederated Tribes of the Colville Reservation based on the CERCLA claims of the Tribes.

Teck’s Operation Was in Canada
In requesting an appeal to the Supreme Court, Teck has continued to assert U.S. courts have no jurisdiction because the alleged disposal at the UCR site originated from its mining operation in Canada. The trial court and the 9th Circuit both rejected that argument.  The 9th Circuit held U.S. courts could exercise jurisdiction over a Canadian mining operation when evidence indicates the mining company’s management knew its discharge to the Columbia River would travel across the border and negatively affect the ecosystem in the United States. For background on the 9th Circuit’s opinion, see my Alert Appellate Court Affirms $8.3 Million against Teck for Tribes’ Past UCR Site Costs, September 24, 2018.

Canada Argues 9th Circuit Ignored International Law
The Canadian governments urge the Supreme Court to consider Teck’s appeal, based on their argument that the 9th Circuit’s decision ignores treaties and other concepts of international law. The Canadian governments claim ignoring treaties and other bilateral mechanisms to resolve cross-border environmental issues is particularly inappropriate when the alternative is application of CERCLA, which many courts, including the 9th Circuit, have acknowledged contains ambiguities. The Canadian governments also claim the 9th Circuit’s approach will “undermine the diplomatic processes that have, for more than a century, proven to be the most effective method of dealing with environmental contamination that crosses the U.S.-Canada border.”

While the Canadian governments are not alleging an adverse ruling would weaken the strong relations between Canada and the United States, the governments assert they have legitimate concerns regarding the primacy and efficacy of their own environmental laws. They indicated the 9th Circuit’s approach could establish a precedent that would invite further lawsuits by private parties on both sides of the U.S.-Canada border and hamper Canada’s ability to discourage or divert copycat lawsuits by Canadian citizens against U.S. polluters.

Canadian Briefs May Increase Teck’s Chances
Teck filed its appeal, through a petition for writ of certiorari, on March 4, 2019. The Tribes have until May 6, 2019 to respond to the petition for writ. The Supreme Court hears only a small fraction of the cases presented to it; however, the briefs filed by the Canadian governments may increase the visibility of this case and the chances the Supreme Court will consider Teck’s appeal.