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Supreme Court of the United States No. 18-1160 IN THE Supreme Court of the United States TECK METALS LtD., FKA TECK COMINCO METALS, LtD., Petitioner, v. THE CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, et al., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CouRT OF AppEALS FOR THE NINTH CIRcuIT BRIEF FOR AMICUS CURIAE THE GOVERNMENT OF CANADA IN SUPPORT OF PETITIONER MALCOLM SEYMOUR Counsel of Record GARVEY SCHUBERT BARER, P.C. 100 Wall Street, 20th Floor New York, New York 10005 (212) 431-8700 [email protected] Counsel for Amicus Curiae 287831 A (800) 274-3321 • (800) 359-6859 i TABLE OF CONTENTS Page T ABLE OF CONTENTS..........................i TABLE OF CITED AUTHORITIES ..............iii INTRODUCTION................................1 THE INTEREST OF AMICUS CURIAE THE GOVERNMENT OF CANADA .................2 SUMMARY OF ARGUMENT .....................4 ARGUMENT....................................9 I. THE NINTH CIRCUIT FAILED TO RECONCILE CERCLA’S AMBIGUITIES WITH THE UNITED STATES’ INTERNATIONAL LEGAL OBLIGATIONS AND CUSTOM OF RESOLVING TRANSBOUNDARY ENVIRONMENTAL ISSUES THROUGH BILATERAL PROCEDURES...............9 A. Statutory Ambiguities Should Be Resolved, Whenever Possible, in Accordance with the United States’ International Legal Obligations ..........9 ii Table of Contents Page B . The Ninth Circuit Erred by Interpreting CERCLA’s Ambiguities without Regard to the United States’ International Legal Obligations and Custom of Addressing Cross- Border Pollution Claims through Bilateral Cooperation ..................12 II. THE NINTH CIRCUIT’S EXTRATERRITORIAL APPLICATION OF CERCLA CONTRAVENES PRINCIPLES OF COMITY, ABSENT ANY INDICATION OF CONGRESSIONAL INTENT TO IMPOSE CERCLA ON FOREIGN ACTORS ..........18 CONCLUSION .................................21 iii TABLE OF CITED AUTHORITIES Page Cases EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 111 S. Ct. 1227, 113 L. Ed. 2d 274 (1991)........................10 F. Hoffman-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155, 124 S. Ct. 2359, 159 L. Ed. 2d 226 (2004) .......................11 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 113 S. Ct. 2891, 125 L. Ed. 2d 612 (1993) .................10, 11, 18 Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895) ....19 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) .......................18 Monguard Investments Ltd. v. De Savoye, [1990] 3 R.C.S. 1077 (Can. 1990).................19 Morrison v. Australia National Bank Ltd., 561 U.S. 247, 130 S. Ct. 2869, 177 L.Ed.2d 535 (2010) ................9-10, 18, 19 Murray v. Schooner Charming Betsy, 6 U.S. 64, 2 Cranch 64, 2 L.Ed. 208 (1804) . .10, 11 iv Cited Authorities Page Pakootas v. Teck Cominco Metals Ltd., 452 F.3d 1066 (9th Cir. 2006) .................1, 12 R. v. Hape, [2007] 2 S.C.R. 292 (Can. 2007) ...........10, 11, 19 RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 195 L. Ed. 2d 476, 84 USLW 4450 (2016)........................9, 17 Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959) .11 Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. Of Ohio, 482 U.S. 522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987) ........................18 Society of Composers, Authors and Music Publishers of Canada v. Canadian Assoc. of Internet Providers, [2004] 2 S.C.R. 427 (Can. 2004) ..............10, 20 Tolofson v. Jensen, [1994] 3 S.C.R. 1022 (Can. 1994).................19 STATUTES and OTHER AUTHORITIES 42 U.S.C. § 9607(a)................................1 42 U.S.C. § 9607(a)(3) ............................12 v Cited Authorities Page A greement Between the Government of the United States of America and the Government of Canada on Air Quality, Mar. 13, 1991, U.S.-Can., T.I.A.S. No. 11783, 30 ILM 678 ........15 Agreement on Great Lakes Water Quality, Apr. 15, 1972, U.S.-Can., 23 U.S.T. 301 ...............14-15 Brief of the Government of Canada as Amicus Curiae in Support of Petitioner, Teck Cominco Metals, Ltd. v. Pakootas, No. 06-1188 (U.S. May 2, 2007) .......4 Convention for the Establishment of a Tribunal to Decide Questions of Indemnity Arising from the Operation of the Smelter at Trail, British Columbia, April 15, 1935, U.S.-Can. (ratifiedJune 5, 1935, entered into force Aug. 3, 1935), 4 U.S.T. 4009, T.S. No. 893, 49 Stat. 3245, 162 L.N.T.S. 73 ........6 Convention for the Protection of Migratory Birds in the United States and Canada, Aug. 16, 1916, U.S.- Gr. Brit. (for Can.), 39 Stat. 1702, T.S. 628 ........15 Injury to Property in the State of Washington by Reason of the Drifting of Fumes from the Smelter of the Consolidated Mining and Smelting Company of Canada, in Trail, British Columbia: Report and Recommendations of the International Joint Commission (U.S. v. Can.), 29 R.I.A.A. 365 (International Joint Commission 1931) ............5 vi Cited Authorities Page I nternational Joint Commission, Docket 101R, Can.-U.S., (Jan. 1, 1975).........................5 Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931 (1997) .......................................21 Trail Smelter Arbitral Tribunal Decision (U.S. v. Can.), 3 R.I.A.A. 1911, 30 AM. J. INT’L L. 182 (Trail Smelter Arb. Trib. 1938) ..........6, 7, 13, 14 Trail Smelter Arbitral Tribunal Decision (U.S. v. Can.), 3 R.I.A.A. 1938, 35 AM. J. INT’L L. 684 (Trail Smelter Arb. Trib. 1941) ...............6, 14 Treaty Relating to the Boundary Waters and Questions Arising Along the Boundary Between the United States and Canada, Jan. 11, 1909, Gr. Brit. (for Can.)-U.S, T.S. No. 548, 36 Stat. 2448.............5 U.S. Dep’t of State, Office of the Legal Adviser, Treaty Affairs Staff, Treaties in Force: A List of Treaties and Other International Agreements in Force on January 1, 2018, 65 (2018).............5 U.S.-Canada Agreement Concerning the Transboundary Movement of Hazardous Waste, Oct. 28, 1986, Can.-U.S., T.I.A.S. No. 11099.......15 1 INTRODUCTION The Government of Canada (“Canada”) respectfully submits this Brief amicus curiae1 in support of Petitioner Teck Metals Ltd. (“Petitioner”). This brief expresses Canada’s interest in, and provides additional context regarding, Petitioner’s first question for review.2 Canada maintains abiding concerns about the Ninth Circuit’s 2006 ruling (the “2006 Judgment”)3 applying the United States’ Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a), to Petitioner’s extraterritorial conduct in Canada. The 2006 Decision, relied upon by the 2018 Ninth Circuit judgment that is the subject of the present Petition (the “2018 Judgment”), accords insufficient weight to principles 1. No counsel for a party authored this Brief in whole or in part. No person other than the amicus curiae made a monetary contribution to the preparation or submission of this Brief. Counsel for the amicus curiae has provided 10 days’ notice of its intention to file this Brief to counsel of record for all parties. This Brief is submitted with the consent of both Petitioner and Respondents the Confederated Tribes of the Colville Reservation and the State of Washington. 2. Petitioner’s remaining questions concern matters of United States law that do not implicate Canada’s interests and are not within the purview of this Brief. 3. Pakootas v. Teck Cominco Metals Ltd., 452 F.3d 1066 (9th Cir. 2006). While the question addressed herein was first decided in the 2006 Judgment, this Court did not grant certiorari to conclusively affirm or reverse that ruling. Petitioner’s brief to the Court of Appeals below renewed Petitioner’s argument regarding the extraterritorial application of CERCLA, and the Ninth Circuit again addressed this argument in the decision on appeal. See Pet. App. 35a, n. 13. Accordingly, the issue has been properly preserved for this Court’s review. 2 of international comity and the history of successful diplomatic efforts between the U.S. and Canada to comprehensively resolve matters of cross-border pollution without necessitating recourse to the courts. These matters are of pronounced importance to Canada and its citizens, a significant majority of whom live and work in close proximity to the U.S. border. Canada believes that its perspective on these matters will assist this Court in deciding the Petition, especially in view of the implications of the 2006 and 2018 Judgments for the United States’ foreign relations. It should be noted that Canada is engaged in a comprehensive and ongoing reconciliation process with Indigenous peoples in Canada. Furthermore, Canada views environmental pollution as an important societal concern. THE INTEREST OF AMICUS CURIAE THE GOVERNMENT OF CANADA For Canada, this litigation raises concerns about (1) the preservation and vitality of established bilateral mechanisms and agreements between the U.S. and Canadian governments, and (2) Canada’s sovereign prerogative to regulate conduct within its own borders through its own robust framework of environmental laws. Petitioner is domiciled in Canada, in the Province of British Columbia. Like the vast majority of Canadian citizens and businesses, Petitioner’s facility is located near the 5,525-mile border that separates Canada and the United States. This is the longest land border anywhere in the world, and its significance to Canada makes the appropriate resolution of transboundary issues, including transboundary pollution claims, an issue of sovereign importance. 3 Canada and British Columbia govern Petitioner’s conduct through a harmonized system of national and provincial environmental laws. Canada has a strong sovereign interest in regulating the conduct of its own corporate citizens through this two-tiered system of environmental laws. The coherence and efficacy of these laws are compromised when Canadian-regulated entities face inconsistent compliance obligations from foreign regulatory authorities, or unpredictable liabilities from piecemeal foreign lawsuits.
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