Teck Cominco's chances of Supreme Court hearing diminished, experts say

Teck Cominco's chances of Supreme Court hearing diminished, experts say

29th November 2007

by Canadian Press

Teck Cominco Ltd.'s chances to have the U.S. Supreme Court hear an appeal of a decision to allow a lawsuit against the company for polluting the Columbia river are slim after the U.S. solicitor general decided not to support the case, experts say.

Michael Robinson-Dorn, director of the environmental law clinic at the University of Washington, said the solicitor general's recommendations are taken very seriously by the court, more so than any other group.

"It certainly strengthens the argument put forth by the state that the court should not take the case and makes it much less likely that the Supreme Court would hear the case," Dorn said Wednesday.

"It's not a veto obviously, it is still within the discretion of the court, but it is a very significant moment for the case."

In its filing with the Supreme Court, the solicitor general said the court should not hear an appeal of a lower court decision that the company is subject to the U.S. Superfund environmental law that lets American citizens sue companies on foreign soil for pollution that is created in a foreign country but ends up contaminating the U.S.

"The petition presents a question of first impression that should be permitted to percolate in the lower courts and that lacks sufficient importance to warrant this court's review at this time," the U.S. government said in its recently filed brief to the Supreme Court.

The appeal court decision affirmed a 2004 ruling by U.S. District Judge Alan McDonald of Yakima against dismissing the lawsuit filed by Joseph Pakootas and Donald Michel of the Colville tribe, whose reservation is bounded by the river.

Austen Parrish, an associate professor at Southwestern Law School in Los Angeles who has followed the case, noted the Supreme Court specifically asked the solicitor general for its opinion on the case.

"So I suspect the court will give more credence to it than it would in other circumstances or why even ask for it," Parrish said.

"It really depends on what the court is thinking and which way they want to go. The government has provided some easy routes for the court to duck the issue."

Teck Cominco, which has received support from the Canadian and B.C. governments as well as others, has argued the lawsuit should be thrown out on grounds that the U.S. can't impose rules on Canadian companies operating on Canadian soil.

In its brief to the Supreme Court, Teck Cominco argued the Ninth Circuit's application of U.S. law to Canadian conduct disregards core principles of international reciprocity.

Teck Cominco said the decision upsets "a century-old tradition of bilateral solutions to transboundary pollution problems."

The Columbia was polluted with heavy metals and black slag leaching downstream from Teck Cominco's lead and zinc smelter in Trail, B.C., north of the border.

The lawsuit filed by the tribe and the state in 2004 was the first instance of Americans suing a Canadian company under the U.S. Superfund law. They accused the company of dumping millions of tonnes of heavy metals into the river for nearly 90 years, allowing it to flow into the United States.

They demanded the company comply with a December 2003 order from the Environmental Protection Agency to pay for studies on pollution from the giant lead-zinc smelter.

However, in June 2006, EPA officials said the 2003 order was being withdrawn as part of a voluntary settlement with Teck Cominco to study the contamination. The company will pay about $20 million for the study.