On January 7, the United States Supreme Court ruled that Teck Cominco, a Canadian mining giant, is subject to U.S. pollution laws because Canadian slag washed into U.S. waters. This sets an important precedent for other cross-boundary pollution.
For more than 100 years, Teck and its predecessors have operated a lead-zinc smelter at Trail, B.C. A century ago, air pollution from the smelter triggered the first cross-boundary pollution dispute between Canada and the US.
Until 1995, Teck also used to dump huge amounts of slag in the Columbia River, with all applicable Canadian approvals.
Teck spent a billion dollars to clean up its operations, and no longer dumps slag in the river. But the slag from previous decades did not disappear. It flowed downriver, into Washington State, where massive amounts accumulated.
Teck says that the slag was inert, and harmless, when it was dumped in the River. If so, it didn’t stay that way. According to a US court, physical and chemical decay of slag is an ongoing process that releases arsenic, cadmium, copper, zinc, and lead into the environment, causing harm to human health and the environment.
In 1999, a native community (the Colville Tribes) petitioned the US EPA to assess contamination in and along the River. The EPA found tonnes of slag. By 2003, the EPA decided to add the Columbia River to its National Priorities List for investigation and remediation. Eventually, the EPA ordered Teck to investigate and report on the contamination and options for remediation. Teck did not comply; the EPA did nothing to enforce its order.
In 2005, two members of the Colville Tribes sued in US court, seeking a declaration that Teck has violated the Order, an injunction requiring Teck to comply, legal costs and financial penalties. Teck defended, arguing that US law cannot apply to what a Canadian company lawfully does in Canada. The US Supreme Court has now found a way to rule that it can. The US Superfund law (CERCLA) applies to any “release” of hazardous substances at a “facility” in the US. So, if one defines:
- the contaminated areas of the Columbia River as a “facility”, and
- the leaching of hazardous substances from the accumulated slag as a “release”,
the application of CERCLA to Teck becomes entirely domestic: a “release” into the United States from a “facility” in the United States.
Having lost the jurisdictional dispute, Teck now intends to fight the order on its merits. (Teck claims that it is receiving harsher treatment than an equivalent US company; in a US court, its Canadian discharge permits may not get the respect that a US permit would.)
One obvious question is whether the same argument will work in reverse: can Canadians apply Canadian law to American companies whose emissions cause harm in Canada? Many parts of Canada, including southern Ontario, receive more than half their air pollution from coal-fired plants in the US midwest. If it’s sauce for the goose, why not sauce for the gander?