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Extraterritorial Exercise of Jurisdiction for Environmental Protection: Addressing Fairness Concerns

Published online by Cambridge University Press:  02 May 2012

JAYE ELLIS
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Abstract

Teck v. Pakootas revisits the infamous Trail smelter, which made history in public international law. This more recent case should be set to make history as well, due to the manner in which the issue of extraterritorial exercise of jurisdiction was handled. The substantive result reached in the courts seems fair, reasonable, and appropriate: a notorious polluter, Teck Cominco Metals Inc., is called to account by the United States Environmental Protection Agency and required to study the feasibility of cleaning up a site it contaminated by dumping effluents in a transboundary river over the course of several decades. Yet, both courts that examined this case on the merits failed to understand the ramifications of this extension of the Environmental Protection Agency's jurisdiction across the Canada–United States border. This article begins with a doctrinal analysis of jurisdictional rules in private and public international law, and then proceeds to evaluate those rules with the help of insights from scholarship on global administrative law and international public authority.

Keywords

extraterritorialityglobal administrative lawinternational environmental lawinternational public authoritytransboundary pollutiontransnational law
Type
INTERNATIONAL LAW AND PRACTICE: Symposium: Fairness in International Environmental Law
Information
Leiden Journal of International Law , Volume 25 , Issue 2 , June 2012 , pp. 397 - 414
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 Teck Cominco Metals, Ltd. v. Pakootas et al. (2007), Brief of Amicus Curiae Province of British Columbia in support of Petitioner in the case of Teck Cominco Metals, Ltd. v. Pakootas et al., on petition from a Writ of Certiorari (Sup. Ct US 2007), at 5.

2 In re Upper Columbia River Site, Docket No. CERCLA-10–2004-0018, at 2, available at http://yosemite.epa.gov/R10/CLEANUP.NSF/UCR/Enforcement, §4.

3 Comprehensive Environmental Response, Compensation, and Liability Act amend. 42 CERCLA, 42 U.S.C., §9605.

4 Pakootas v. Teck Cominco Metals, Ltd., CV-04–256-AAM, 2004 WL 2578982 (E.D. Wash., 8 November 2004).

5 Pakootas v. Teck Cominco Metals, Ltd., CV-04–00256-AAM, 452 F.3d 2006 (US Court of Appeals – 9th Cir., 3 July 2006).

6 Teck Cominco Metals, Ltd. v. Pakootas, 06-1188 (USSC, 7 January 2008).

7 For an overview of the proceedings, see Gracer, J. et al. , ‘Cross-Border Litigation Gains Traction in US and Canadian Courts’, (2008) 20 Environmental Claims Journal 2, at 181CrossRefGoogle Scholar; Wilhite, J. L., ‘International Pollution: Can We Really Just Blame Canada?’, (2006) 21 Journal of Natural Resources and Environmental Law 159Google Scholar; Zhang, L., ‘Canadian Mine Owner Liable under CERCLA for Pollution of Columbia River in the US’, (2007) 31 Harvard Environmental Law Review 545Google Scholar; Robinson-Dorn, M. J., ‘The Trail Smelter, Is What's Past Prologue? EPA Blazes a New Trail for CERCLA’, (2006) 14 NYU Environmental Law Journal 233Google Scholar.

8 See Teck (DC), supra note 4, at 9–10, citing with approval Calder v. Jones, 465 US 783, 790, 104 S.Ct. 1482, 79 L. Ed.2d 804 (1984).

9 Core-Vent Corp. v. Nobel Indus., AB 11 F.3d 1482, 1486 (US Court of Appeal – 9th Cir., 16 December 1993), quoted with approval in Teck (DC), at 11–12.

10 International Shoe Co. v. Washington, 326 US 310, 316, 66 S.Ct. 154, 90 L. Ed. 95 (1945), cited with approval in Teck (DC), at 5.

11 Teck (DC), supra note 4, at 18–19. Support for this proposition is drawn from Environmental Defense Fund v. Massey, 300 US App. D.C. 65, 986 F.2d 528, 530 (D.C. Cir. 1993) and the Restatement (Third) of Foreign Relations Law of the United States, §1 (1986).

12 See Teck (9th Cir.), supra note 5, at 7291–2. ‘Facility’ is defined broadly under CERCLA and includes ‘any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located’, CERCLA, §9601(9); CERCLA, §§9601(9), 9607(a). CERCLA similarly defines ‘release’ broadly; this term includes leaching: §9601(22).

13 Teck (9th Cir.), supra note 5, at 7293.

14 Hess, G. F., ‘The Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA’, (2005–06) 18 GIELR 1Google Scholar, at 51; Budde, N. L., ‘When Outside the Borders Isn't Extraterritorial, or, Canada Is in Washington, Right?’, (2007) 15 Tulane Journal of International and Comparative Law 675Google Scholar; Diamond, J., ‘How CERCLA's Ambiguities Muddled the Question of Extraterritoriality in Pakootas v. Teck Cominco Metals, Inc.’, (2007) 34 Ecology Law Quarterly 1013, at 1034Google Scholar; Zhang, L., ‘Pakootas v. Teck Cominco Metals, Ltd’, (2007) 31 Harvard Environmental Law Review 551Google Scholar.

15 Zhang, L. and McDonald, K., ‘Pakootas v. Teck Cominco Metals, Ltd.: Finding a Sustainable Solution to Transboundary Pollution’, (2006) 41 Georgia Law Review 311Google Scholar; Parrish, A., ‘Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canadian–US Transboundary Water Pollution Disputes’, (2005) 85 Boston University Law Review 363Google Scholar. Hess also expresses a desire to see issues of this nature aired, but believes that this task properly falls to legislative, executive, and diplomatic channels; Hess, supra note 14, at 55.

16 Hess, supra note 14, at 25.

17 Budde, supra note 14.

18 M. N. Shaw, International Law (2008); see also Mann, F. A., ‘The Doctrine of International Jurisdiction’, (1964) 111 Recueil des cours de l'Académie de droit international de la Haye 1, at 104Google Scholar, for a critique of the effects test in the context of antitrust law. It has begun to attract some controversy in the United States as well; see Parrish, A., ‘The Effects Test: Extraterritoriality's Fifth Business’, (2008) 61 Vanderbilt Law Review 1455Google Scholar.

19 United States v. Aluminum Company of America, 148, F.2d 416 (1945) (Alcoa). Mann noted that it was difficult to find support for this doctrine outside the United States; Mann, supra note 18, at 102.

20 Shaw, supra note 18, at 654.

21 The rich and detailed analyses of the question of extraterritoriality provided by Gerald F. Hess and Robert C. Reuland are weakened to some extent by the lack of discussion of applicable international rules. Both authors refer to international law, but the sources they cite in support are either US judgments or literature that addresses US, rather than international, law; see Hess, G. F. and Reuland, R. C., ‘Hartford Fire Insurance Co. “Hartford Fire Insurance Co. v. California, 113 S. Ct. 2891 (1993)”, Comity, and the Extraterritorial Reach of United States Antitrust Laws’, (1994) 29 Texas ILJ 427Google Scholar. Reuland refers to various secondary international-law sources, such as the highly respected text by Ian Brownlie, but not with reference to the rules governing the extraterritorial exercise of jurisdiction. Hess invokes the Lotus case but refers to a citation of this case by Dodge, W. S., ‘Understanding the Presumption against Extraterritoriality’, (1998) 16 Berkeley JIL 85Google Scholar, at 114. The paragraph referred to is the widely criticized articulation of a rule regarding extraterritorial exercise of jurisdiction that would grant states wide latitude. Dodge then refers to the US Restatement (Third) of Foreign Relations Law for further support for this assertion.

22 SS Lotus Case (France v. Turkey), Judgment, PCIJ Rep., (27 September 1927) Series A No. 10, at 46.

23 Shaw, supra note 18, at 656; Mann, F. A., ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’, (1984) 186 RCADI 9Google Scholar, at 33; I. Brownlie, Principles of Public International Law (2008); Brierly, J. L., ‘Règles générales du droit de la paix’, (1936) 58 RCADI 1Google Scholar, at 146; Basdevant, J., ‘Règles générales du droit de la paix’, (1936) 58 RCADI 471Google Scholar, at 594; Fitzmaurice, G., ‘The General Principles of International Law: Considered from the Standpoint of the Rule of Law’, (1968) 92 RCADI 1Google Scholar, at 56.

24 American Banana Co. v. United Fruit Co., 213 US 347, 53 L. Ed. 826, 29 S.Ct. 511 (1909).

25 EEOC v. Arabian American Oil Co., 499 US 244, 248, 113 L. Ed. 2d 274, 111 S.Ct. 1227 (1991).

26 Dodge, supra note 21.

27 Parrish, supra note 15, at 393. Kate McDonald notes that the presumption against the extraterritoriality approach is generally favoured when environmental statutes are being construed; McDonald, K., ‘Pakootas v. Teck Cominco Metals, Ltd.: Finding a Sustainable Solution to Transboundary Pollution’, (2006) 41 Georgia Law Review 311Google Scholar, at 321. Teck seems to indicate a new direction. Previous decisions regarding CERCLA's extraterritorial application have limited its reach ‘to foreign defendants whose operations are located in the United States [United States v. Ivey, [1995] 26 OR3d 533 (Ont. Gen. Div)] and to environmental damage within the territorial boundaries of the United States [Arc Ecology v. US Dept of the Air Force, 249 F. Supp. 2d 1152 (N.D. Calif. 2003)]’, McDonald, supra this note, at 325.

28 Mann, supra note 23, at 72.

29 Dodge, supra note 21, at 90.

30 Murray v. Schooner Charming Betsey, 6 US (2 Cranch) 64, 118 (1804), Marshall, CJ: ‘An act of Congress should never be construed to violate the law of nations if any other possible construction remains’; see M. D. Ramsey, ‘Escaping International Comity’, (1998) 83 Iowa Law Review 893.

31 Ramsey, supra note 30, at 919.

32 See, e.g., Paul, J. R., ‘The Transformation of International Comity’, (2008) 71 Law and Contemporary Problems 3, at 19Google Scholar, for a discussion of the historical evolution of the interpretation of comity in the United States. Paul writes: ‘Scholars and courts have characterized international comity inconsistently as a choice-of-law principle, a synonym for private international law, a rule of public international law, a moral obligation, expediency, courtesy, reciprocity, utility, or diplomacy. Authorities disagree as to whether comity is a rule of natural law, custom, treaty, or domestic law. Indeed, there is not even agreement that comity is a rule of law at all’, at 19–20. M. Ramsey has concluded, rightly in my view, that reference to international comity should be abandoned due to the difficulties that courts and scholars encounter in defining and applying the concept. In the context of the extraterritorial application of statutes, Ramsey argues that three principles should govern: first, the presumption against extraterritorial effect; second, the act of state doctrine; and, third, reference to customary international-law principles governing extraterritorial exercises of jurisdiction; Ramsey, supra note 30, at 908–9.

33 Brownlie, supra note 23, at 28–9.

34 Paul, supra note 32, at 20.

35 ‘Predictability and Comity: Toward Common Principles of Extraterritorial Jursidiction’, (1985) 98 Harvard Law Review 1310, at 1319.

36 Ibid., at 1321.

37 Hartford Fire Insurance Co. v. California, 113 S.Ct. 2891 (1993), at 2910.

38 Restatement (Third).

39 Ibid., §2(a) (1987).2(a).

40 Ibid., §2(g).

41 Ibid., §2(h).

42 Ibid., §403.

43 Ibid., §403, para. 3.

44 Hartford Fire case, supra note 37, at 2919.

45 The minority refers to the comity it invokes as ‘prescriptive comity’, distinct from the ‘comity of courts’. Prescriptive comity is described as a concept whose object is respect for the sovereignty of other states, which courts must assume legislatures have taken into account; ibid., at 2920.

46 Kingsbury, B. et al. , ‘The Emergence of Global Administrative Law’, (2005) 68 New York University Journal of Law and Contemporary Problems 15, at 26Google Scholar; Bogdandy, A. v., ‘General Principles of International Public Authority: Sketching a Research Field’, (2008) 9 German Law Journal 1909, at 1913Google Scholar.

47 Kingsbury et al., supra note 46, at 18–25.

48 Ibid., at 17.

49 Ibid., at 25.

50 Ibid., at 17.

51 Ibid., at 16.

52 Bogdandy, A. v. et al. , ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, (2008) 9 German Law Journal 1375, at 1383Google Scholar.

53 Bogdandy, supra note 46, at 1909.

54 Bodansky, D., ‘What's So Bad about Unilateral Action to Protect the Environment?’, (2000) 11 EJIL 2CrossRefGoogle Scholar, at 339; Bilder, R., ‘The Role of Unilateral Action in Preventing International Environmental Injury’, (1981) 14 Vand. JTL 1Google Scholar, at 51.

55 Kingsbury et al., supra note 46, at 28.

56 Krisch, N., ‘The Pluralism of Global Administrative Law’, (2006) 17 EJIL 247CrossRefGoogle Scholar, at 248 (emphasis in original).

57 Bogdandy et al., supra note 52, at 1389.

58 Bey, R. Du et al. , ‘CERCLA and Transboundary Contamination in the Columbia River’, (2006) 21 Natural Resources and Environment 11Google Scholar; Greenfield, E. F., ‘CERCLA's Applicability Abroad: Examining the Reach of a US Environmental Statute in the Face of a Cross-Border Pollution Dispute’, (2005) 19 Emory ILR 1721Google Scholar. This reasoning is based on the Restatement (Third) and is broadly applied in the area of competition law; see, e.g., Hess and Reuland, supra note 21.

59 See ‘Predictability and Comity’, supra note 35, at 1320 (emphasis in original).

60 Krisch, supra note 56, at 260.

61 Ibid., at 257.

62 This approach may be terribly ambitious, given the distance that would have to be travelled not only by American courts, but also by legal scholars, who, even when referring to the rules of public international law, cite American jurisprudence.

63 An infamous example is the reaction of various states to the Helms-Burton legislation in the United States; see the discussion in P. Daillier and A. Pellet, Droit international public (2002), 510.

64 Government of Canada, Brief as Amicus Curiae in support of Petitioner before the United States Supreme Court on petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit in the case of Teck Cominco Metals Ltd. v. Pakootas et al. (2 May 2007), at 7.

65 Ibid., at 11.

66 Lemarquand, D., ‘The International Joint Commission and Changing Canada–United States Boundary Relations’, (1993) 33 Natural Resources Journal 1, at 33Google Scholar; Parrish, A., ‘Mixed Blessings: The Great Lakes Compact and Agreement, the IJC, and International Dispute Resolution’, (2006) 2006 Michigan State Law Review 1299Google Scholar. It should be noted, however, that the Canadian government did indicate its willingness to submit the matter to the IJC ‘for an independent, scientific assessment’; BC Amicus Brief, Appendix 1: Letter dated 23 November 2004 from Bruce Levy, Director, United States Relations Division, Department of Foreign Affairs and International Trade to Terry A. Breese, Director, Office of Canadian Affairs, United States Department of State.

67 Canadian Amicus Brief, supra note 64, at 12.

68 BC Amicus Brief, supra note 66, at 4.

69 Ibid., at 8.

70 Ibid., at 7.

71 Ibid., at 18.

72 Ibid., at 11.

73 Ibid., at 18–19.

74 Ibid., at 6–7, 12.