US Supreme Court expected to make decision on Teck Cominco case soon

US Supreme Court expected to make decision on Teck Cominco case sson

30th December 2007

by Craig wong, The Canadian Press

VANOUVER - The U.S. Supreme Court is expected to decide this week if it wants to hear the case of a pollution lawsuit against Teck Cominco Ltd. (TSX:TCK.B), a case legal experts say could make it easier for U.S. environmentalists to sue other Canadian companies.

"It could change the way Canada and the U.S. solves transboundary problems, normally they've always been dealt with on a diplomatic governement-to-government level," said Austen Parrish, a professor at Southwestern Law School who has followed the case.

Parrish said if the case is allowed to stand it could mean interest groups would be left to battle out cross-border pollution cases and allow the courts to decide the issues.

Teck Cominco wants the U.S. Supreme Court to overturn a decision to allow a lawsuit filed by Joseph Pakootas and Donald Michel of the Colville tribe. They have accused the company of dumping millions of tonnes of heavy metals into the river from its lead and zinc smelter in Trail, B.C., for nearly 90 years, and allowing it to flow into the United States.

The lawsuit filed in 2004 was the first instance of Americans suing a Canadian company under the U.S. Superfund law.

Teck Cominco has argued the U.S. law cannot be applied to a Canadian company for something it did in Canada.

In 2006, the U.S. Environmental Protection Agency withdrew a 2003 order to pay for studies on pollution from the giant lead-zinc smelter as part of a voluntary settlement with Teck Cominco. The company agreed to pay about $20 million for the study.

However the Pakootas case has continued.

Parrish said it will take four of the nine Supreme Court Justices to want to hear the case for the top court take it on.

"Certainly there are a lot of people in Canada that would like the United States Supreme Court to hear this case and hopefully reaffirm the values of comity and the needs to take into account Canadian interests when deciding an American lawsuit, he said.

Several U.S. organizations including the National Mining Association and the National Association of Manufacturers have filed briefs with the U.S. Supreme court supporting Teck Cominco's request for a hearing.

Shi-Ling Hsu, director of the Centre for Global Environmental and Natural Resource Law at the University of British Columbia, suggested if the case against Teck Cominco is allowed it could mean Canadians could sue U.S. companies in Canada for pollution created in the U.S.

"American commerce is very nervous about the legal developments," he said. "It is very much a two-edged sword."

However Michael Robinson-Dorn, director of the environmental law clinic at the University of Washington, said allowing the case to go ahead could help the environment.

"I think where the goals are similar in both countries and one nation has allowed its industry to put the cost of pollution on the other then why is that a bad thing to allow the other sovereign to require that company to pay for that cost as long as it does the same for its own," Robinson-Dorn said.

Canada's Supreme Court has already decided it will hear a case between Teck Cominco and its insurance companies related to the U.S. lawsuit.

Teck Cominco's insurance companies want to be able to not have to defend or indemnify the company in connection with the environmental damage claims.

The miner sought to stay those proceedings based on the fact that related cases were already underway in the U.S., however the court denied the motion, a decision that was upheld by the B.C. Court of Appeal.