Pakootas, et al. v. Teck Cominco Metals, Ltd. (I)

Extraterritorial Application of CERCLA

U.S. Chamber's Position: 

NCLC filed five times in this case.

In its first filing, NCLC urged the Ninth Circuit to review the unwarranted and unprecedented district court expansion of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), otherwise known as “Superfund”, to business conduct that occurred outside U.S. borders. NCLC urged appellate court review on the grounds that imposing CERCLA liability on a Canadian company is not supported by statute, violates the presumption against extraterritorial application of U.S. law, interferes with traditional diplomatic mechanisms for resolving cross-border environmental disputes, and exposes U.S. companies to potential retaliation. NCLC's second filing was a letter urging the court again to grant review.

After review was granted, NCLC filed a third brief, this time on the merits. Following this filing, a three-judge panel of the Ninth Circuit determined that CERCLA can be applied to the foreign conduct of a Canadian company if the alleged pollutants enter the environment of the United States.

NCLC filed for a fourth time immediately following the Ninth Circuit's decision. NCLC urged the Ninth Circuit to rehear the case, and then filed a reply (NCLC's fifth filing in the case) again urging review.

Case Outcome: 

Rejecting NCLC’s request, the Ninth Circuit declined to consider en banc whether the panel properly determined that CERCLA can be applied to the foreign conduct of a Canadian company if the alleged pollutants enter the environment of the United States.

Procedural History: 

Amicus letter in support of petition to appeal 1/7/05. Reply to amicus brief filed 1/28/05. Review granted 2/14/05. Amicus brief filed 6/13/05. Oral argument held 12/05/05. Decided 7/26/06. Amicus brief filed in support of the petition for rehearing en banc 7/26/06. Rehearing denied 10/30/06.