A high-stakes legal battle over a century of smelter contamination dumped into the Columbia River by a Canadian mining and smelting giant may be decided by the U.S. Supreme Court.
The court issued an order Monday inviting U.S. Solicitor General Paul Clement – the lead lawyer for the Bush administration – to file an amicus brief on behalf of one or more of the parties in the complex case, filed in 2004 against Teck Cominco Ltd. by two leaders of the Colville Confederated Tribes.
Teck Cominco’s large lead and zinc smelter is 10 miles north of the border in Trail, B.C. The smelter has contaminated the Columbia with heavy metals and black smelter slag, which covers some beaches near Northport. The U.S. Environmental Protection Agency considers the smelter a major source of historic river pollution.
Teck Cominco stopped discharging slag to the river in 1994 after a series of Canadian studies showed it was toxic to fish and aquatic life and British Columbia regulators ordered a halt to the dumping.
This week’s Supreme Court order doesn’t necessarily mean the justices have agreed to accept the case, said Mary Sue Wilson, a senior Washington state assistant attorney general in Olympia. Washington state is opposing Supreme Court review because a lower court has already ruled the company is responsible for the cleanup under strict U.S. Superfund laws.
“We don’t think it’s a signal either way. It’s not unusual for the court to ask, what does the U.S. government have to say? So far, the parties haven’t included the United States,” Wilson said. The court has given the solicitor general no deadlines. Additional briefing in the case could take up to six months, Wilson added.
“We’ll be interested in hearing what the U.S. government has to say,” said David Godlewski of Teck Cominco American Inc. Teck Cominco has hired Theodore Olson, President George W. Bush’s first solicitor general, to represent the company before the high court.
The litigation against Teck Cominco was brought by Colville tribal members Joe Pakootas and D.R. Michel under the “citizen suit” provisions of federal Superfund law. The suit was an effort to force the company to pay for a major environmental cleanup of Lake Roosevelt, the 150-mile impoundment of the Columbia behind Grand Coulee Dam.
Lawyers for Vancouver, B.C.-based Teck Cominco claim in court documents that the company is not subject to Superfund, the U.S. law governing toxic waste cleanups, because it is based in another country and never “arranged” for the waste to end up in the United States.
Last July, the 9th U.S. Circuit Court of Appeals rebuffed that argument and ruled that Teck Cominco is subject to Superfund even though its pollution originated in Canada. That ruling was hailed by Washington Gov. Chris Gregoire, who called it “good news for all Washingtonians.”
On Oct. 30, the court reiterated its position after lawyers for Teck Cominco unsuccessfully petitioned for a rehearing by the full court. Teck Cominco asked the court for a stay of its ruling and filed an appeal to the U.S. Supreme Court.
For months, the high court has been silent on whether it would accept the case, which legal experts have described as a unique test of Superfund’s “citizen suit” provisions to try to compel a foreign company to clean up its pollution.
Meanwhile, cleanup talks have taken several turns.
In 1999, after studying the extent of the Lake Roosevelt pollution in response to a petition by the Colvilles, EPA’s Seattle regional office issued a unilateral Superfund cleanup order to Teck Cominco.
But after high-level diplomatic contacts between the U.S. and Canadian governments and a series of letters to the White House from U.S. mining interests in favor of Teck Cominco, the Bush administration withdrew the 1999 cleanup order.
In June 2006, the EPA announced it had reached a voluntary agreement with Teck Cominco to study the river pollution. That agreement puts $20 million in escrow for studies but leaves unanswered who will pay for the actual cleanup.
The 9th Circuit’s legal ruling a month later potentially put Teck Cominco back on the hook to pay for much of the actual cleanup as well – a cost estimated in the billions.
Teck Cominco is moving forward with its Lake Roosevelt remedial investigation and feasibility study, Godlewski said. The work plan was submitted late last year and the company is awaiting EPA comments, he added.