Court told to avoid cleanup issue

The solicitor general of the United States has told the U.S. Supreme Court it shouldn’t intervene in a dispute between the Colville Confederated Tribes and a Canadian smelting giant over pollution of the Columbia River.

Federal courts so far have upheld the Colvilles’ July 2004 “citizen suit” against Teck Cominco Ltd., ruling that the Vancouver, B.C.-based company is subject to the 1980 Superfund toxic cleanup law.

Teck Cominco dumped millions of tons of slag and heavy metals into the Columbia from 1906 to 1994 from its smelter 10 miles north of the border at Trail, B.C., records show.

The Colvilles’ suit was filed to enforce a December 2003 U.S. Environmental Protection Agency unilateral cleanup order to Teck Cominco – an order that triggered heavy diplomatic pressure from Canada and U.S. mining industry lobbying on behalf of Teck Cominco to the White House.

In June 2006, Teck Cominco’s American subsidiary and the EPA announced a voluntary agreement where the company will pay about $20 million for a short-term study of the environmental damage caused by the Trail smelter.

The Colvilles’ citizen suit – the first filed under Superfund against a foreign company – is now moot because the EPA withdrew its 2003 unilateral order, according to the brief filed last week by U.S. Solicitor General Paul D. Clement.

In June, the Supreme Court had asked Clement – the Bush administration’s lead lawyer – to file a friend of the court brief in the dispute. Clement said the court should deny the petition to review the case.

For three years, Teck Cominco has argued in court that it’s not subject to U.S. Superfund law. It has lost in U.S. District Court in Eastern Washington and before a panel of the 9th U.S. Circuit Court of Appeals in 2006. It subsequently petitioned the U.S. Supreme Court to hear the case.

Clement also rejected Teck Cominco’s argument that using U.S. courts to resolve the pollution dispute should not be pursued because it threatens diplomatic ties with Canada.

Teck Cominco’s “deliberate, 90-year discharge of millions of tons of hazardous substances into a river just upstream from the United States directly and foreseeably caused harmful effects in the United States,” the brief says.

The Colvilles amended their complaint in November 2005 to also seek natural resources damages for the Columbia River pollution.