U.S. Supreme Court declines to block case

The U.S. Supreme Court Jan. 7 declined to accept Teck Cominco Metals Ltd.'s petition for review and reversal of a 9th Circuit Court of Appeals decision in Pakootas, et al. v. Teck Cominco Metals Ltd.

The Government of Canada, the Province of British Columbia, and the Chambers of Commerce of both Canada and the United States had all joined Teck Cominco in arguing that diplomatic processes, and not the courts of the United States, are the forum in which to resolve cross-border issues of this nature.

Several U.S. organizations, including the National Mining Association and the National Association of Manufacturers, also filed briefs with the Supreme Court supporting Teck's request for a hearing.

The case, which some legal experts say could make it easier for U.S. environmentalists to sue other Canadian companies, will now revert to the District Court of Eastern Washington where Teck Cominco vowed to vigorously fight the complaints.

Vancouver-based Teck Cominco asked the Supreme Court to overturn a decision to allow a lawsuit filed by Joseph Pakootas and Donald Michel of the Colville tribe in the State of Washington.

Pakootas and Michel have accused Teck of dumping millions of metric tons of heavy metals into the Columbia River system from its lead and zinc smelter in Trail, B.C., for nearly 90 years, and allowing it to flow into the United States.

The lawsuit filed in 2004 was the first instance of Americans suing a Canadian company under the U.S. Superfund law.

Teck has argued the U.S. law cannot be applied to a Canadian company for something it did in Canada.

In 2006, the U.S. Environmental Protection Agency withdrew a 2003 order for Teck to pay for studies on pollution from the giant lead-zinc smelter as part of a voluntary settlement with the company.

However, the Pakootas case has continued. The case will now revert to the District Court of Eastern Washington where Teck said it will "vigorously defend against the complaints."

The company also said Teck Cominco American will fulfill its obligations under the settlement agreement and complete the $20 million voluntary "Remedial Investigation and Feasibility Study" to determine if any risks to human health and the environment resulted from past releases from Teck Cominco Metals' refinery at Trail. Teck said the multiyear study will use the latest science developed by the EPA and other researchers to determine the true risks in the reservoir system. The study is scheduled for completion in 2011.

Experts say the case could change the way Canada and the U.S. solve trans boundary problems. Instead of resolving them on a diplomatic government-to-government level, the case could open the way for interest groups to battle cross-border pollution cases in the courts.

Canadian legal experts also suggest that by allowing the case against Teck to proceed, the high court also opened the door for Canadians to sue U.S. companies in Canada for pollution created in the United States.