How CERCLA's Ambiguities Muddled the Question of Extraterritoriality in Pakootas v. Teck Cominco Metals, Ltd

Diamonɗ, Jordan
August 2007
Ecology Law Quarterly;2007, Vol. 34 Issue 3, p1013
Academic Journal
For almost ninety years Teck Cominco Metals, Ltd., a Canadian company, discharged hazardous substances into a stretch of the Columbia River located in Canada which then migrated downstream and caused environmental harm in northern Washington State. Considering a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claim brought against the company, the federal district court found the case required an extraterritorial application of CERCLA; that to have held it involved a domestic application of the statute would have required dependence on a "legal fiction." The Ninth Circuit affirmed the decision, but reversed the reasoning. It held the facts only triggered a domestic application of the remedial statute. There was nothing technically erroneous in the Ninth Circuit's reasoning. What the court failed to address, however, was the logical gap left by a notoriously poorly worded statute. CERCLA's ambiguities have long frustrated practitioners and judges, and one can imagine few other statutes that render the identity of the defendant and the location of his conduct completely irrelevant for purposes of establishing jurisdiction. Characterizing the case as domestic side-stepped its actual effect. Furthermore, the Ninth Circuit's reasoning for this disjuncture relied upon the fact that, as a remedial statute, CERCLA is unconcerned with party behavior. However, this reasoning is contradicted by the fact that the personal jurisdiction underlying the case involved a test that required intentional action by the defendant.


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