(VancouverProblems)
Lake Roosevelt National Recreation Area is a popular tourist location in Washington State. Unfortunately, the lake has accumulated wastes that have been dumped into the Columbia River from lead and zinc smelters in British Columbia. This December, a Federal District Court in Washington will determine whether it has jurisdiction over the Canadian company Teck Metals Ltd., which is based in Vancouver, British Columbia.
Advocates for Washington State, along with Native Americans from the Colville Reservation in Washington argue that Teck has intentionally polluted Lake Roosevelt for decades, and now subject to the Superfund Law, must pay to clean the pollution, which is expected to cost $1 billion. The pollution is in the form of fine black sand and it washes downstream into Lake Roosevelt, affecting the Washington beaches where people swim and camp.
Last month, Teck admitted that some of the pollution it had dumped into the Columbia River between 1896 and 1955 flowed into the United States. This prevented the need for a trial on the source of the pollution, and allowed the parties to move to the issue of who now has to pay for the cleaning up of Lake Washington. Teck feels it is not subject to jurisdiction in the United States because it is a Canadian corporation, it does no business in the United States, and it did not expressly aim its conduct at Washington. Teck also argues that it is unknown how much of this black sand even settled in Washington, that most of it probably passed through the lake, and that the sand sediments would have caused little if any environmental damage.
(AP Photo)
Teck’s other major argument is that almost 1,000 metals mines and mills have operated on the Columbia River since the late 19th century, so they are not solely to blame. The company also acknowledges that Lake Washington is still used for boating, fishing, swimming, camping, and other water activities. The water is fine to play in, and the fish is fine to eat.
To help their cause, Teck has engaged in a study under the direction of the EPA. The company has spent more than $55 million and claim that the preliminary findings are positive, but that the study must be completed before any major decisions can be made. Looking at this case from the defendant company’s point of view, holding Teck responsible could be seen as interfering with the sovereignty of Canada. Canada has even sent a diplomatic note of protest to the State Department in Washington.
The Native American tribes involved here argue that their land, water, and other natural resources have been polluted, and that at least 8.7 million tons of this sedimentary discharge has ended up in Washington. They feel that since Teck Metals directly caused the pollution (admittedly), that they should also be responsible for the cleanup.
Do you think that Teck should be subject to the U.S Superfund Law and should thus have to clean up the pollution? Should the United States even have jurisdiction over the Canadian company or is Teck not subject to U.S. jurisdiction because of its lack of contacts with Washington? It will be interesting to see how this plays out in the next couple of months. This case will certainly test international law, but I would imagine that due to Teck’s admitted intentional dumping and the effects it has had in Washington, that the Federal District Court will hold the company liable.
Source: BusinessWeek
My gut tells me that they should be somehow liable, but this sounds like a personal jurisdiction issue, and I believe that a court would struggle trying to find jurisdiction over Teck.
Under the tortious effects test from Calder v. Jones, a court can find personal jurisdiction for a defendant if the harmful effects of a tort are felt by the plaintiff in that jurisdiction. However, the effects need to be aimed expressly at that state, and the opinion specifically separates this test from “mere untargeted negligence.”
Unfortunately for the US, that is exactly what this is. It is highly unlikely that Teck was purposefully directing it’s waste towards the state of Washington, and mere foreseeability is not enough to grant personal jurisdiction. This is assuming that the cause of action would be in Canada, but the plaintiff can argue for specific jurisdiction if it can convince a court that the tort is where the injury occurred and not the act that caused the injury. If not, the plaintiff would have a much higher burden of finding minimum contacts between Teck and Washington.
The US could also attempt to get a judgment in Canada to enforce the Superfund law if jurisdiction is an issue.
I believe that Teck should be held responsible for the damage that they are doing to Lake Roosevelt. They already admitted that they were the source of the pollution and have known about it for over 50 years. Just because Teck doesn’t do specific business in the United States should not have any bearing on this case. While several of the personal jurisdiction cases such as Worldwide Volkswagen and Asahi Metal have concluded that some form of purposeful availment is necessary, this case is worse in my opinion. They had the explicit knowledge that the pollution they were emitting was causing damage and did nothing about it. To allow Teck to continually cause damage and not be held responsible would allow them to continue their willful ignorance of the pollution.
It is unjust for a company to hide behind the veil of personal jurisdiction protection when they know that as long as they do not conduct business with the United States they will not be liable for the damages they cause. I think that this is a very interesting case and that the courts will have to look at whether the traditional notions of fair play and substantial justice have been offended. In this case, Teck should have to pay for the damage they caused.
To answer Pat’s question, I do believe that the United States should have jurisdiction over the Canadian company. Although they may not have many contacts in the United States, Calder v. Jones, tells us, and Rich mentioned above, that minimum contacts can be established through a defendant’s harmful act, despite no physical contact with the state. In Calder v. Jones, a three-prong test was established to determine whether a defendant has purposefully availed or directed themselves to a state. The test lays out that a person or entity has purposefully availed themselves to the jurisdiction of a forum state when that person or entity (1) commits an intentional act (2) expressly aimed at the forum state (3) and causes harm, the brunt of which is suffered in the forum state and which the defendant knows is likely to be suffered in the forum state. In this case, I do believe that it can be shown that Teck has met this test, as they committed an intentional act of pollution, which it has admitted, that was aimed at the United States and caused harm in the United States. The only trouble that this may bring about is that it can be argued that they did not expressly aim their conduct towards Washington in particular, however it is foreseeable that their intentional act of polluting the river would eventually flow into the United States and cause harm. I do feel that the plaintiff has a stronger case in this scenario, but it will be interesting to see how this plays out.