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The Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA

Posted on: Tuesday, 15 November 2005, 09:00 CST

By Hess, Gerald F

I. INTRODUCTION

The Trail Smelter complex stands like an industrial fortress on the bank of the Columbia River, a few miles north of the border between Canada and the United States. A symbol of economic development, the Trail Smelter produces tons of zinc and lead every day, brings jobs to southern British Columbia, and earns significant profits for its investors. The Trail Smelter is also a notorious transboundary polluter which exported tons of air and water contaminants each day to the United States for decades. Air pollution from the Trail Smelter led to international arbitral decisions in the 1930s and 1940s. Water pollution from the Trail Smelter is the subject of administrative and judicial proceedings in the beginning of the twenty-first century.

Air pollution from the Trail Smelter became the subject of a famous arbitral decision and the source of a fundamental principle of international environmental law.1 In 1906, the Consolidated Mining and Smelting Company of Canada, Ltd. (Consolidated Mining) acquired a smelter in Trail, British Columbia. Over the succeeding decades, the Trail facility expanded to become one of the largest iron and zinc smelters in North America.2 From 1916 to 1940, the Trail Smelter emitted between 100 and 700 tons of sulphur dioxide per day.3 Beginning in 1925, Washington farmers located near the border with British Columbia began complaining to Consolidated Mining about emissions from the smelter.4 In 1928, the United States and Canada agreed to refer the dispute to the International Joint Commission (IJC).5 In 1931, the IJC issued its final report, recommending that Canada pay the United States US$350,000 in compensation for damages caused by emissions from the Trail Smelter and that Consolidated Mining install devices to reduce its sulphur dioxide emissions.6

Although Canada paid the US$350,000 to the United States and Consolidated Mining installed pollution reduction devices,7 by 1933 the United States and Canada were again engaged in diplomatic talks due to continued emissions from the Trail Smelter.8 In 1935, the countries signed and ratified a convention that referred the Trail Smelter dispute to an arbitral tribunal.9 In its interim decision in 1938, the tribunal concluded that the emissions from the Trail Smelter had harmed crops and trees in Washington and awarded the United States US$78,000 in compensation.10

In its final decision in 1941, the tribunal held that the Trail Smelter should avoid air emissions that harm Washington, that a detailed pollution control regime should be implemented at the smelter, and that Canada would be responsible for paying damages for harm in the United States from future smelter emissions.11 These holdings flowed from a fundamental principle of international law articulated by the tribunal that "no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the cause is of serious consequence and the injury is established by clear and convincing evidence."12

The twenty-first century dispute that provides a context for this article centers on transboundary water pollution from the Trail Smelter, rather than air emissions. For over a century, the Trail Smelter discharged over one hundred tons of contaminants per day, including slag, arsenic, lead, zinc, cadmium, and mercury, into the Columbia River.13 The U.S. Environmental Protection Agency (EPA) concluded that discharges from the Trail Smelter harmed plants and animals in the Columbia River in the United States and may pose a threat to human health.14 As a consequence, the EPA ordered Teck Cominco Metals, Ltd., (Teck Cominco), the current owner of the smelter, to participate in site investigation work under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)15 on the theory that Teck Cominco was a responsible party. '6 Dissatisfied with Teck Cominco's unwillingness to proceed under CERCLA, members of the Confederated Tribes of the Colville Reservation sued Teck Cominco under CERCLA's citizens suits provisions in the United States District Court for the Eastern District of Washington.17

This article will explore the extraterritorial application of CERCLA in the context of the Trail Smelter dispute. Part II presents the anatomy of a transboundary environmental dispute, including the nature and effects of the pollution, the array of interested parties, and the potential forums for dispute resolution. Part III focuses on the types of claims available under CERCLA to investigate and clean up hazardous substances and to impose the cost of cleanup on responsible parties. Part IV reviews the current analytical approaches to the extraterritorial application of U.S. statutes, identifies policies relevant to the extraterritorial application of CERCLA, and applies those approaches and policies to CERCLA cases and to claims arising out of the Trail Smelter dispute. Part V addresses unresolved issues in the analytical framework for the extraterritorial application of U.S. statutes in general and CERCLA in particular.

II. ANATOMY OF A TRANSBOUNDARY ENVIRONMENTAL DISPUTE

The context for a transboundary environmental dispute includes three aspects: (A) the extent, nature, and consequences of the pollution; (B) the governments, industry, and groups interested in the dispute; and (C) the potential forums for resolving the dispute.

A. THE TRAIL SMELTER AND COLUMBIA RIVER WATER POLLUTION

Teck Cominco's smelter complex is located in Trail, British Columbia, on the Columbia River approximately ten river miles north of the border between the United States and Canada. A smelter began operations there in 1896. Consolidated Mining purchased that smelter in 1906, renamed itself Cominco in 1966, and merged with Teck Ltd., becoming Teck Cominco Metals, Ltd., in 2001. The complex contains smelting operations, producing metals and chemicals, and a fertilizer plant, producing ammonia, ammonium sulfate, and phosphate fertilizers.18 The smelting operation uses intense heat and chemical processes to refine tons of raw lead and zinc ore into pure metals such as lead, zinc, cadmium, arsenic, silver, and gold, as well as chemicals such as sulphuric acid and sulphur dioxide.19

The Trail Smelter's metal and chemical production generated tremendous amounts of wastes that were discharged into the Columbia River for more than 100 years. The lead/zinc smelting process produces slag, a black, glassy material that contains copper, zinc, lead, and other metals. From the 1890s to 1994, the Trail Smelter discharged over thirteen million tons of slag into the Columbia River, averaging in excess of one hundred tons per day from 1922 to 1994.20 In addition, the smelter and fertilizer operations discharged thousands of kilograms of pollutants each day into the Columbia River, including arsenic, cadmium, lead, zinc, and mercury.21 Finally, Teck Cominco reported accidental spills of contaminants into the Columbia River on eighty-six days from 1987 to 2001.22 Individual spills included three thousand kilograms of dissolved cadmium and mercury, five metric tons of zinc solution, fifteen metric tons of phosphoric acid, twenty-five metric tons of sulphuric acid, and fifty metric tons of furnace oil.23

The Columbia River, the recipient of the water pollution from the Trail Smelter, flows from northern British Columbia through eastern Washington and eventually into the Pacific Ocean. The Grand Coulee Dam, a Bureau of Reclamation project completed in 1940, created Lake Roosevelt, which extends 135 miles behind the dam to within fifteen miles of the Washington/British Columbia border. The Columbia River contributes ninety percent of the water flowing into Lake Roosevelt.24 Lake Roosevelt provides flood control, hydropower, and irrigation to northeastern Washington and has become a major source of economic development and recreation. Over one million people per year visit the Lake Roosevelt National Recreation Area for boating, waterskiing, fishing, sailing, swimming, camping, hiking, picnicking, wildlife watching, and sightseeing.25 Lake Roosevelt has cultural and economic significance to Native American populations and its fish provide a major portion of some residents' diets.26

Studies by the EPA, the U.S. Geological Survey, and the Washington Department of Ecology have documented widespread contamination of the sediments of the Upper Columbia River and Lake Roosevelt. The sediment contains arsenic, cadmium, copper, lead, mercury, zinc, and slag.27 Contaminants in sediment can cause growth impairment, reproductive failure, and death in plants and animals.28 The heavy metal toxins are passed up the food chain to predators, such as fish.29 Slag discharges have physically detrimental effects on the environment, including damage to the gills and soft tissue of insects and fish, the scouring of plants and animals from the river, and the smothering of habitat.30 Pollutants in Columbia River sediments also raise human health concerns. Human exposure to slag and he\avy metals can occur by eating fish from Lake Roosevelt, having physical contact with slag on beaches, ingesting water from the lake, or breathing airborne contaminants when the lake's sediment is exposed during times of low water levels.31

B. PARTIES, GOVERNMENTS, AND GROUPS INVOLVED IN THE TRAIL DISPUTE

The original parties to the CERCLA lawsuit filed in the Eastern District of Washington were Teck Cominco and two members of the Confederated Tribes of the Colville Reservation (Colville Tribes).32 However, the dispute arising out of Teck Cominco's discharges into the Columbia River is broader and deeper than the lawsuit alone. This transboundary water pollution dispute involves government agencies on both sides of the border and interest groups taking an array of positions.

1. Teck Cominco

Teck Cominco is a multinational mining and refining company with operations in Canada, Peru, and the United States.33 Its mining operations include the largest zinc mine in the world, one of the world's most extensive coal operations, and the biggest copper mine in Canada.34 In 2003, Teck Cominco's mining operations collectively produced 8,662,000 tons of coal, 665,000 tons of zinc, 176,000 tons of copper, 125,000 tons of lead, and 281,000 ounces of gold.35 During that year Teck Cominco reported assets of US$5.267 billion, revenues of US$2.41 billion, and profits of US$305 million.36

Teck Cominco's Trail, British Columbia, facility is one of the largest zinc and lead smelters in the world. In 2003, the Trail facility produced 283,100 tons of zinc and 87,800 tons of lead.37 The Trail Smelter brings economic benefits to northeastern Washington and southeastern British Columbia.38 Teck Cominco purchased the Pend Oreille mine in 1996 and invested US$74 million to put it into production, bringing economic development and 150 jobs to northeastern Washington.39 Teck Cominco's Trail Smelter is a primary economic engine for southeastern British Columbia, generating average annual profits of US$114.6 million from 1999 to 200340 and employing 1500 people.41

Teck Cominco touts not only its production and profits but its modern environmental commitment and performance as well. Its Charter of Corporate Responsibility commits Teck Cominco to supporting "sustainable development" and "protecting . . . the environment in the communities where we work."42 In its Code of Business, Environmental, Health, and Safety Practices, Teck Cominco pledges to operate "in a sound environmental manner,""incorporate policies for pollution prevention and waste minimization,""[c]ontinually improve its environmental . . . management systems," and "[ujndertake progressive reclamation at operating mines and reclaim dormant sites to ensure long-term protection of the environment."43

In the context of the current Trail Smelter dispute, Teck Cominco emphasizes its investment in improved pollution control and its willingness to study and remediate the effects of past discharges. Teck Cominco "ceased discharging slag into the river in 1994 and has spent over US$1 billion to improve its environmental performance,"44 reducing "air emissions at the Trail smelter by [ninety percent] . . . [and] discharges to water ... by more than [ninety-nine percent]."45 Teck Cominco is engaged in an Ecological Risk Assessment under British Columbia law to identify the effects of its Trail Smelter operations on the environment in southern British Columbia and will develop an appropriate remediation plan.46 Regarding the contamination of Lake Roosevelt, Teck Cominco proposed "to fund independent human health and ecological studies of metals in Lake Roosevelt at an estimated cost of US$13 million[,] . . . pay to clean up metal contamination attributable to [their] operations to ensure Lake Roosevelt is safe, [and] to work with the Canadian and U.S. authorities to find a mutually acceptable, bilateral process to address the Lake Roosevelt issue ...."47

2. Colville Tribes

Native people have lived in the Upper Columbia River region for over 9000 years. Kettle Falls on the Columbia River became a prominent place for native people to fish for salmon, trade, and socialize. In 1872, after decades of interaction and conflict with fur traders, missionaries, miners, settlers, and the U.S. Army, the Colville Tribes and the U.S. government agreed to establish a reservation on 2.4 million acres encompassing virtually all of northeastern Washington.48 In 1893, the Colville Tribes ceded the northern half of the reservation to the United States but reserved hunting, fishing, gathering, and water rights. The remaining reservation borders Lake Roosevelt for ninety-three miles.49 The completion of the Grand Coulee Dam in 1942 covered portions of the reservation, including Kettle Falls, under the waters of Lake Roosevelt.50 After decades of negotiations, in 1990 the National Park Service, Bureau of Reclamation, Bureau of Indian Affairs, Colville Tribes, and the Spokane Tribe entered into the Lake Roosevelt Cooperative Management Agreement. The Agreement recognized the tribes' right to exercise governmental control over the portions of their reservations covered by Lake Roosevelt, including regulatory control over hunting, fishing, boating, and cultural resources.51

Although the Colville Tribes has only 9075 members and only 5000 people live on the Colville reservation,52 the Colville Tribes is a major economic force in north-central Washington. The Colville Tribal Enterprise Corporation (CTEC) operates fourteen enterprises, including four logging and forest products businesses, three retail stores, three casinos, a financial services corporation, a construction company, a resort, and two marinas on Lake Roosevelt.53 CTEC employs 1000 people and has annual revenues of US$100 million.54

The two plaintiffs in the CERCLA suit against Teck Cominco are both members of the Colville Business Council, the governing board for the Colville Tribes.55 Their motivation for petitioning the EPA to study contamination in Lake Roosevelt and the subsequent lawsuit was the tribal members' fear of swimming in Lake Roosevelt, eating its fish, and walking on its beaches due to pollution from Teck Cominco.56 "The fish, wildlife, and plant material of the Upper Columbia basin have always been of central importance to the Colville Tribes' subsistence and culture."57

3. Governmental Entities in the United States

Governmental agencies in the United States and the State of Washington have taken a variety of roles in the Lake Roosevelt dispute. At the federal level, the United States Geological Survey (USGS), the EPA, and the Department of State have participated. In Washington, the Department of Ecology (Ecology), the Department of Health (Health), and the office of the Attorney General (Washington AG) have been involved.

Ecology, USGS, and Health have analyzed contamination in the Columbia River since the 1980s. Ecological studies of Columbia River sediment and fish in the late 1980s and early 1990s found significant contamination from arsenic, cadmium, copper, lead, mercury, and zinc.58 In 1992, USGS sampled Columbia River sediment, found elevated levels of heavy metals, and concluded that slag had detrimental effects on plants and animals in the River.39 In 1993, Health performed lab studies and concluded that slag from the Trail Smelter was toxic to aquatic organisms.60 In 1994, USGS studied fish tissues, found elevated levels of mercury, and advised the public to limit consumption of walleye from Lake Roosevelt. In a follow-up study offish in 1998, USGS concluded that the level of mercury in walleye had decreased by fifty percent but that rainbow trout had elevated levels of polychlorinated biphenyls (PCBs).61 In 1994, Ecology studied sediment and fish tissue and found contamination from furons and dioxin as a result of discharges from a pulp mill in Castlegar, British Columbia, as well as heavy metals due to discharges from the Trail Smelter.62 In 2001, Ecology reassessed contaminant levels in Lake Roosevelt and again found toxic levels of cadmium, copper, lead, and zinc.63 Finally, in 2003, USGS issued a report concerning potential air pollution from windblown sediments in the bed of the Columbia River containing cadmium, copper, lead, mercury, and zinc.64

The EPA became directly involved in the transboundary pollution dispute as a result of the Colville Tribes' 1999 Preliminary Assessment Petition,65 under section 105(d) of CERCLA, which allows any person who may be affected by a release of hazardous substances or pollutants to petition the EPA "to conduct a preliminary assessment of the hazards to public health and the environment."66 The EPA completed a Preliminary Assessment in December 2000, reviewed the previous studies of the Columbia River by USGS, Health, and Ecology, and found that sediment sampling was necessary to determine if releases of hazardous substances had occurred that could affect health and the environment.67 After visiting sixty mine and mill sites, analyzing fifty-eight sediment samples, and considering the data from the previous studies, the EPA concluded that releases of hazardous substances posed a potential threat to human health and the environment, warranting further action under CERCLA.68 The EPA spent much of 2003 attempting to secure Teck Cominco's agreement to enter an administrative order of consent to perform a Remedial Investigation and Feasibility Study (RI/FS) for the Upper Columbia River consistent with CERCLA.69 When those negotiations broke down, the EPA issued a Unilateral Administrative Order (UAO) to Teck Cominco to prepare the RI/FS.70 Although Teck Cominco was willing to fund a study of ecological and health impacts of contaminants in Lake Roosevelt, it was not willing to comply with the UAO on the grounds that the EPA lacked the power to assert CERCLA against a Canadian company and that Teck Cominco would be treated more harshly than Amer\ican companies in similar circumstances.71

Following Teck Cominco's communication to the EPA that it would not comply with the UAO and the initiation of the Colville Tribes lawsuit to enforce the UAO, the State of Washington, via the Washington AG, intervened as a plaintiff.72 In announcing the decision to intervene in the suit, Washington's governor said, "We are joining the lawsuit because we believe that implementing the EPA order is the quickest way to complete the studies and begin cleaning up the lake."73 The Washington AG commented, "Teck Cominco can't send highly toxic pollution across the Canadian border and then insist that border [sic] protects them from liability. They created one big mess here in the [United States], and they should clean it up, not Washington taxpayers."74

While the EPA proceeded administratively under CERCLA and Washington joined the Colville Tribes in seeking judicial enforcement of the UAO, the U.S. Department of State explored a diplomatic solution to the dispute. In a letter to the Director of United States Transboundary Division of Foreign Affairs Canada, the State Department endorsed "Canada's willingness to work cooperatively with the United States in an effort to address the significant contamination of the [Upper Columbia River] Site and to address Teck Cominco's responsibility for that contamination."75 The State Department noted its commitment to work with Canada "in the spirit of bilateral cooperation on environmental issues of concern to both countries" and to "reach an understanding . . . regarding the ongoing RI/FS."76

4. Governmental Entities in Canada

The Canadian national and provincial governments have diplomatic and regulatory roles in the Trail Smelter dispute. In a Diplomatic Note from the Canadian embassy to the U.S. Department of State, the Canadian government expressed its opinion that CERCLA did not apply to Teck Cominco.77 It urged the EPA to rescind the UAO and to work with Teck Cominco "to develop a mutually acceptable and enforceable agreement, in the spirit of the long history of joint Canada-U.S. stewardship of our shared environment."78 The Canadian government warned that "the issuance of the [UAO] may set an unfortunate precedent, by causing transboundary environmental liability cases to be initiated in both Canada and the United States."79

The primary Canadian regulatory agency concerned with the environmental effects of Teck Cominco's Trail Smelter operations is the British Columbia Ministry of Land, Water and Air Protection. The Environmental Protection Division manages industrial discharges of pollutants into water and air as well as remediation of contaminated sites.80 Current emissions of contaminants into the air and water from the Trail Smelter are regulated through permits in accordance with Part 2 of the Environmental Management Act.81 Investigation and remediation of the land and water in British Columbia contaminated as a result of the historical discharges from the Trail Smelter are proceeding under Part 4 of the Environmental Management Act and British Columbia's Contaminated Sites Regulation.82

5. Interest Groups

Interest groups took positions on both sides of the Trail Smelter dispute. Environmental groups and the Spokane Tribe supported the EPA's efforts to proceed under CERCLA.83 The Spokane Indian Reservation borders Lake Roosevelt for eight miles and the Spokane Tribe shares management and regulatory control of the lake.84 The Washington Environmental Council, the Washington Public Interest Research Group, and the Citizens for a Clean Columbia have members who swim and fish in the Upper Columbia River; these groups appeared as amid in the Col ville Tribes' suit and urged the court to uphold the EPA's power to subject Teck Cominco to the provisions of CERCLA.85 On the other hand, the Eastern Washington Council of Governments, consisting of seven counties in northeastern Washington and funded in part by Teck Cominco, advocated for a voluntary investigation and cleanup of Lake Roosevelt outside of the CERCLA process.86 The Councils' position was supported by three Republican members of Congress from Washington who urged the EPA to pursue the voluntary alternative to the CERCLA process for Lake Roosevelt.87 Likewise, U.S. industry groups, including the National Mining Association and the Edison Electric Institute, lobbied the White House to prevent the EPA from proceeding against Teck Cominco because they were worried that other countries would use the precedent against U.S. firms operating abroad.88

C. POTENTIAL DISPUTE RESOLUTION FORUMS

Disputes involving the investigation and remediation of transboundary water pollution in the Upper Columbia River could be resolved through diplomacy between the governments of Canada and the United States, an international organization established by a treaty, or the lawsuit between the Colville Tribes and Teck Cominco in federal court in the United States.89 Each of these dispute resolution forums has played a role in the Trail Smelter dispute.

1. Diplomacy

Communications between the governments of the United Sates and Canada regarding investigation and remediation of the contamination of the Upper Columbia River stress two related advantages of a diplomatic solution. First, a diplomatic resolution is consistent with the long history of bilateral cooperation on environmental issues that affect both countries.90 For example, the United States and Canada used diplomacy and bilateral agreements to address water pollution issues in the Great Lakes in the 1970s and acid rain in the 1980s and 1990s.91 Second, a cooperative solution avoids setting a precedent of resolving transboundary environmental issues in the domestic courts of the United States and Canada.92

The provisions of CERCLA and uncertainty about their extraterritorial application present significant hurdles to a diplomatic solution. Canada took the position that CERCLA did not apply to Teck Cominco and urged the United States to accept Teck Cominco's offer to conduct a health and environmental risk assessment outside of the CERCLA process.93 The U.S. Department of State responded by proposing that the EPA continue to investigate the site under CERCLA, which provided both the authority and responsibility for the U.S. government to protect human health and the environment in the Upper Columbia River.94 The United States proposed to give Canada "an enhanced consultative role in the design and implementation of the ongoing RI/FS" and to work with Canada to obtain and share sampling data and to jointly identify entities responsible for the contamination of the Columbia River.95 However, the United States noted that during any negotiations it had to recognize the rights and interests of the Native Americans and the State of Washington.96 Those rights include the Colville Tribes' authority to sue and Washington State's right to intervene under the citizens suits provisions of CERCLA.97

2. International Treaty Organization

The resolution of the conflict between the United States and Canada arising out of air emissions from the Trail Smelter in the 1920s and 1930s illustrates two types of international treaty organizations that could provide forums to resolve the current dispute: the International Joint Commission (IJC) or an arbitral panel.98 The Boundary Waters Treaty of 1909 established the IJC.99 The treaty provides that "waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other."100 Further, the treaty allows either party to refer any question or matter involving the United States and Canada or their inhabitants to the IJC for a non-binding "examination and report."101 Finally, if both parties agree to the referral, the IJC can render a binding decision.102

The United States and Canada referred the Trail Smelter air pollution dispute to the IJC in the 1920s103 and could have referred the Columbia River water pollution dispute to the IJC for resolution as well. In fact, Teck Cominco urged the Canadian government to work with the United States to refer the Columbia River dispute to the IJC, but the two countries did not agree to involve the IJC.104 Alternatively, the countries could enter into a new treaty that creates an arbitral panel to address the Columbia River dispute, as they did in the 1930s with the Trail Smelter air pollution controversy.105 Either the IJC or an arbitral panel could resolve the dispute on the basis of principles of international law if the United States and Canada did not reach a diplomatic solution; however, neither the IJC nor an arbitral panel would affect the rights of the Colville Tribes, the State of Washington, or others to litigate their claims under CERCLA.

3. Lawsuit in U.S. Federal Court

Although the national governments of the United States and Canada hoped to resolve the transboundary pollution dispute through bilateral cooperation and avoid the precedent of litigating these issues in U.S. or Canadian courts,106 neither government had control over the lawsuit between the Colville Tribes and Teck Cominco. The Colville Tribes sued to enforce the EPA's UAO against Teck Cominco under the citizens suits provision of CERCLA, which provide that "any person may commence a civil action . . . (1) against any person . . . who is alleged to be in violation of any . . . order which has become effective pursuant to this chapter . . . ."'107 As a prerequisite to filing the citizens suit, the Colville Tribes gave notice of Teck Cominco's alleged violation of the UAO to the U.S. Attorney General, the Washington AG, the Administrator of EPA, and the Regional Administrator of EPA Region 10.l08 Although the U.S. government could have precluded the Colville Tribes' suit by initiating an action to enforce the UAO,'09 it chose not to do so.110 Nor did the U.S. or Canadian government seek to intervene in the suit.111

The Co\lville Tribes' complaint requested a declaration that Teck Cominco was in violation of the UAO, an injunction requiring Teck Cominco to comply with the UAO, civil penalties, and an award of reasonable attorneys' fees.112 Teck Cominco responded with a motion to dismiss the complaint, squarely raising the issue of whether CERCLA applied to a Canadian corporation for acts that took place in Canada.113 The district court denied the motion, deciding that CERCLA applied against a Canadian corporation when its acts in Canada produced hazardous substances that contaminated sites in the United States.114 Because the extraterritorial application of CERCLA raised an important issue of first impression, the district court certified the case for immediate appeal to the Ninth Circuit.115 In summary, the Colville Tribes' suit established precedent to guide the investigation and cleanup of the Upper Columbia River and to clarify the legal positions of the parties and the Canadian and U.S. governments. Further, the suit constituted a first step in the development of the appropriate analysis for the future extraterritorial application of CERCLA.

III. CERCLA PURPOSE, SCOPE, PROCESS, AND CLAIMS

Both an analysis of the extraterritorial application of CERCLA in general and its application to the Trail Smelter dispute require an understanding of the core provisions of CERCLA. This section identifies CERCLA's purpose and scope, summarizes its site investigation and clean-up process, and describes CERCLA's enforcement and claim provisions.

A. PURPOSE AND SCOPE

CERCLA was enacted in 1980 "in response to the serious environmental and health risks posed by industrial pollution.116 CERCLA has two primary purposes: to clean up hazardous waste sites that pose a threat to health or the environment and to impose the clean-up costs on the parties responsible for the contamination.117 To achieve those purposes, CERCLA gives EPA extensive power to investigate and remediate hazardous waste sites, to order governmental agencies and private parties to finance and perform clean-ups, to enforce its orders, and to recover its costs of investigating and cleaning up hazardous waste sites from responsible parties.118 The scope of CERCLA's cleanup and liability provisions are governed by the terms "hazardous substance" and "release." CERCLA defines "hazardous substance" by incorporating designations of hazardous and toxic materials from other federal environmental statutes.119 For example, compounds of arsenic, cadmium, lead, mercury, and zinc are hazardous substances under the Clean Water Act,120 making them hazardous substances under CERCLA. The term "release" is broadly defined to encompass nearly any way in which hazardous substances could enter the environment, including "spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing . . . ."121 Teck Cominco's discharges of slag and its chemical spills that migrated down the Columbia River into Lake Roosevelt constitute "releases" of "hazardous substances" under CERCLA.122

B. SITE INVESTIGATION AND CLEANUP PROCESS

Once the EPA learns of a release of a hazardous substance,123 it is authorized to respond with removal and remedial actions.124 Removals are relatively shortterm actions designed to "assess and evaluate the release . . . [and] to prevent, minimize, or mitigate damage to the public health or welfare or to the environment . . . ."125 Remedial actions are permanent remedies "to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment."126 Whenever the EPA is authorized to engage in removal or remedial actions, it may engage in "investigations, monitoring, surveys, testing, and other information gathering ... to identify the existence and extent of the release . . ., the source and nature of the hazardous substances . . ., and the extent of danger to the public health or welfare or to the environment."127 Response actions must be consistent with the National Contingency Plan, which includes methods to discover and investigate releases, criteria for determining the extent of the removal or remedial action, a risk assessment system for determining priorities among releases in need of remedial actions, and means of assuring that remedial measures are cost effective.128 CERCLA mandates significant opportunities for public participation in decisions concerning removal and remedial actions.129 CERCLA provides numerous criteria to guide the selection of cleanup standards and remedial actions.130 EPA regulations establish a detailed process for response actions.131

C. CERCLA ENFORCEMENT AND CLAIMS

Although CERCLA authorizes the EPA to perform removal and remedial actions and to pay for those actions out of public funds, '32 the statutory scheme is designed to encourage responsible parties to conduct and pay for the cleanup of hazardous waste sites. CERCLA creates four classes of responsible parties who are liable for cleanup of releases of hazardous wastes: (1) current owners and operators of a vessel or facility; (2) owners and operators of the vessel or facility at the time of disposal of the hazardous substances; (3) any person who arranged for disposal or treatment of the hazardous substances; and (4) any person who accepted hazardous substances for transport to disposal or treatment facilities.133 A "vessel" includes any type of watercraft134 and a "facility" is broadly defined to include "any site or area where a hazardous substance has been deposited, stored, disposed of, placed, or otherwise come to be located . . . ."135

In the context of the Trail Smelter dispute, Lake Roosevelt is a "facility" because hazardous substances came to be located there.136 Teck Cominco is a potentially responsible party because it "arranged" for disposal of hazardous substances by discharging them into the Columbia River.137

1. Consent Decrees, Administrative Orders, and Enforcement Actions

To facilitate investigation and cleanup, CERCLA authorizes the EPA to enter settlement agreements with potentially responsible parties to undertake response actions.138 Settlement agreements must be approved by the United States Attorney General and entered in district court as a consent decree.139 In lieu of a consent decree, the EPA can issue an administrative order requiring a responsible party to undertake a response action for releases of hazardous substances that endanger the public or the environment.140 In the Trail Smelter dispute, the EPA attempted to enter a settlement agreement with Teck Cominco and issued an administrative order after those settlement efforts failed.141

To achieve compliance with its administrative orders, the EPA can sue in federal court to enforce the order and to assess fines for noncompliance.142 In addition, if a responsible party fails, without sufficient cause, to comply with an administrative order for a removal or remedial action, the EPA can sue for punitive damages of three times the amount of costs paid out of the Superfund as a result of the responsible party's failure to perform the response action.143 To enforce its consent decrees with responsible parties, the EPA can initiate administrative or judicial proceedings for civil penalties.144 Finally, any person can enforce consent decrees and administrative orders via citizens suits if the EPA fails to diligently prosecute enforcement actions.145 In the Trail Smelter controversy, the Colville Tribes initiated a citizens suit to enforce the EPA's administrative order after Teck Cominco declined to comply with the EPA's order.146

2. Cost Recovery Suits, Contributions, and Claims Against the Superfund

CERCLA imposes monetary liability on responsible parties for four types of costs and damages: (1) costs of removal or remedial actions incurred by the United States, a U.S. state, or an Indian tribe; (2) response costs incurred by any other person; (3) damages for injury to natural resources; and (4) the costs of any health assessment or health effects study done under section 9604(i).147 The United States, a U.S. state, or an Indian tribe can sue to recover their response costs, natural resource damages, and costs of certain health assessments, while private plaintiffs can sue only to recover their response costs.148 Potentially responsible parties can bring contribution actions against other responsible parties and the court can make an equitable allocation of response costs among the parties.149

Any person can assert an administrative claim against the Superfund for reimbursement of response costs150 if four prerequisites are met.151 Claimants from outside of the United States can assert claims for reimbursement for response costs from the Superfund if they satisfy the same prerequisites as U.S. claimants and meet four additional conditions:

1) the release of a hazardous substance occurred (A) in the navigable waters or (B) in or on the territorial sea or adjacent shoreline of a foreign country of which the claimant is a resident;

2) the claimant is not otherwise compensated for his loss;

3) the hazardous substance was released from a facility or from a vessel located adjacent to or within the navigable waters or was discharged in connection with activities conducted under the Outer Continental Shelf Lands Act . . .; and

4) recovery is authorized by a treaty or an executive agreement between the United States and foreign country involved or if the Secretary of State, in consultation with the Attorney General and other appropriate officials, certifies that such country provides a comparable remedy for United States claimants.152

IV. EXTRATERRITORIAL APPLICATION OF CERCLA

What constitutes the extraterritorial application of U.S. statutes? The broadest construction of "extraterritoriality" in the context of U.S. statutes isa function of the location of the conduct regulated, the place of the effects of the conduct, and the citizenship of the regulated party. CERCLA claims for recovery of response costs illustrate the possibilities. If the responsible party (e.g., owner of a facility) is a U.S. citizen, the conduct (e.g., release of hazardous substances) takes place in the United States, and the effects (e.g., contamination and cleanup of the facility) occur in the United States, there is no extraterritorial application of CERCLA. Possible issues of the extraterritorial application of CERCLA arise if the potentially responsible party (e.g., transporter of hazardous substances) is not a U.S. citizen, the conduct (e.g., transportation of a hazardous substance) does not take place in the United States, or the effects (e.g., contamination and cleanup) do not occur in the United States.153 The appropriate resolution of these issues is the subject of the remainder of this article.

The law and policy governing the extraterritorial application of U.S. statutes are in flux. Courts and commentators not only disagree about the proper analytical framework to resolve extraterritoriality issues, they do not have consensus about the underlying purposes and policies for this area of law. This section attempts to bring some clarity to this confusing area by (1) analyzing the approaches courts have taken to resolve extraterritoriality issues, (2) evaluating the policies relevant to the extraterritorial application of U.S. statutes, and (3) applying the applicable approaches and policies to CERCLA in general and the Trail Smelter dispute in particular.

A. ANALYTICAL APPROACHES TO THE EXTRATERRITORIAL APPLICATION OF U.S. STATUTES

The starting point for the analysis is Congress' power to legislate extraterritorially. According to the U.S. Supreme Court, "Congress has the authority to enforce its laws beyond the territorial boundaries of the United States."154 The Court's statement is consistent with the Restatement (Third) of Foreign Relations Law of the United States, which recognizes a nation's right to apply its law not only to conduct, persons, and things inside its territory, but also to (1) conduct outside its territory that had substantial effects inside its territory, (2) to the activities, interests, and status of its nationals outside its territory, and (3) to conduct outside its territory directed against the security of the State.155

The question is not whether Congress has the authority to give extraterritorial application to statutes, including CERCLA. Rather, it is whether Congress has exercised its authority, which the U.S. Supreme Court has made clear is a matter of statutory construction.156 Further, the Court has articulated a presumption to guide the statutory analysis. "It is a longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'"157 At this point, the analysis gets murky. When does the presumption against extraterritoriality apply? What does it take to overcome the presumption? Courts take four approaches to the resolution of these issues. These approaches find support in opinions of the Supreme Court and have been applied by lower courts in the context of environmental statutes.

1. Congressional Intent Approach (Foley)

In a line of cases beginning with Foley Brothers v. Filardo in 1949, the Supreme Court established its most well-developed approach to applying and overcoming the presumption against extraterritoriality. In Foley, the question before the Court was whether the Eight Hour Law applied to a contract between the United States and a private contractor performing construction work in Iraq and Iran.158 The Court set out the "canon of construction . . . that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States . . . .":59 The Court justified the presumption "based on the assumption that Congress is primarily concerned with domestic conditions."160 In analyzing congressional intent, the Court began with the statutory language. Despite the broad language in the statute that it applied to "every contract," the Court found no express language that Congress intended the Eight Hour Law to apply in foreign countries.161 The Court then searched for congressional intent in the overall statutory scheme, the statute's legislative history, and administrative interpretations of the statute.162 The Court concluded that Congress had not expressed its intent to apply the Eight Hour Law to contracts performed abroad.163

The Court's most extensive treatment of the Foley analysis and the presumption against extraterritoriality took place in a 1991 case, EEOC v. Arabian American Oil Co.164 The issue in Arabian was whether Title VII of the Civil Rights Act of 1964 applies extraterritorially to regulate the employment practices of U.S. companies who employ U.S. citizens abroad.165 The Court reiterated the presumption and articulated an underlying policy, an assumption, and a rule. The policy behind the presumption is "to protect against unintended clashes between our laws and those of other nations which could result in international discord."166 The assumption is that "Congress legislates against the backdrop of the presumption against extraterritoriality."167 The rule is that "unless there is 'the affirmative intention of the Congress clearly expressed,' [courts] must presume [a statute] 'is primarily concerned with domestic conditions.'"168

Applying its analysis, the Court concluded that Congress had not clearly expressed its intent to apply Title VII to U.S. employees of U.S. companies performing work in Saudi Arabia. The Court rejected arguments that the broad jurisdictional language defining "employer" and "commerce" in Title VII showed that Congress intended extraterritorial application of the statute, noting that similar "boilerplate language" can be found in many U.S. statutes that do not apply outside of the United States.169 The Court supported its conclusion with New York Central R.R. Co. v. Chisholm170 and McCulloch v. Sociedad National de Marineras de Honduras.171 In both cases, although the applicable statutes applied to "foreign commerce," the Court held that the acts lacked clear language showing congressional intent to apply the statute extraterritorially.172 The Court in Arabian distinguished Steele v. Bulova Watch Co.,173 which held that the Lanham Act applied extraterritorially, because the Lanham Act covered "all commerce which may lawfully be regulated by Congress" and the alleged wrongful conduct had effects in the United States.174

The Court rejected arguments based on administrative interpretations and the statutory scheme. The Court refused to defer to the Equal Employment Opportunity Commission's (EEOC) interpretations that Title VII applied extraterritorially because they were not contemporaneous with the enactment of the statute, were not consistent, and lacked support in the plain language of the statute. Likewise, the Court rejected the argument that Title VII's alien exception, which excepts from the statute aliens working outside of any state, shows that Congress intended to apply Title VII to citizens working outside of any state.175 The Court noted that Title VII lacked mechanisms to facilitate overseas enforcement.176 The Court contrasted Title VII's silence about extraterritorial application with federal statutes in which Congress expressly legislated extraterritorial application.177

The dissent in Arabian criticized the majority for applying a "clear statement rule" in which the majority searched only the statutory language for a clear statement of congressional intent to give Title VII extraterritorial application. The dissent argued that the proper analysis was set out in Foley, in which the Court considered all indicia of congressional intent (statutory language, statutory scheme, legislative history, and administrative interpretations of the statute) when deciding whether the presumption against extraterritoriality had been overcome.178

Two post-Arabian cases provide some increased sharpness and clarity to the presumption analysis. In Sale v. Haitian Centers Council, Inc.,179 the issue was whether the Immigration and Nationalization Act applied to a U.S. program to intercept vessels on the high seas transporting Haitians to the United States and return the passengers to Haiti without determining whether they may qualify as refugees.180 The Court applied the presumption against extraterritoriality even though there was no risk that the statute would conflict with the laws of other nations.181 In deciding that the presumption had not been overcome by congressional intent to apply the statute extraterritorially, the Court considered "all available evidence," including the language of the statute, the statutory scheme, and the legislative history.182

In Smith v. United States,183 the Court held that the Federal Tort Claims Act does not apply to tortious acts that occur in Antarctica. The Court rejected an argument that the presumption applies only if extraterritorial application of U.S. law would lead to conflicts with foreign law and international discord.184 Instead, the Court reiterated its rationale from Foley: "the presumption is rooted in a number of considerations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns in mind."185

In summary, the Supreme Court has articulated a presumption against the extraterritorial application of U.S. statutes that can be overcome only by clear Congressional intent to apply the statute abroad. Congressional intent can be found in the language of the statute at issue, its statutory scheme, legislative history, and administrative interpretations. Each of \the cases in which the Court took the "congressional intent" approach involved the extraterritorial application of U.S. statutes to conduct that took place outside of the United States and produced effects outside of the United States: Foley (hours of work performed in Iraq and Iran), Arabian (discrimination in Saudi Arabia), Sale (intercepting vessels on the high seas and returning potential refugees to Haiti), and Smith (tortious acts in Antarctica). The next approach involves cases in which conduct outside of the United States produced negative effects in the United States.

2. Effects Approach (Hartford Fire majority)

During the same term that the Court clarified its presumption doctrine in Sale and Smith, it complicated its analysis in Hartford Fire Insurance Co. v. California.186 Hartford Fire presented the issue of whether the Sherman Act applied to the activities of insurance companies in Great Britain. The complaint alleged that reinsurers in London conspired to coerce primary insurers in the United States to restrict the availability in California of general commercial and pollution liability insurance.187 The majority opinion, written by Justice Souter and joined by four other justices, articulated an "effects" test: "[I]t is well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States."188 Based on allegations that the London reinsurers engaged in a conspiracy designed to affect the insurance market in the United States and that their conduct in fact produced those effects, Justice Souter concluded that the district court "undoubtedly had jurisdiction."189

The majority did not mention the presumption against extraterritoriality or its Foley analysis. Instead, it supported its "effects" test with antitrust and trademark cases and the Restatement (Third) of Foreign Relations Law of the United States.190

The line of antitrust cases applying the "effects" test began more then sixty years ago with the Second Circuit's decision in United States v. Aluminum Co. of America (Alcoa).191 In Alcoa, Judge Learned Hand addressed the issue of whether the Sherman Act applied to agreements among foreign corporations entered into in Switzerland to limit exports to the United States. Judge Hand set forth the "intended and actual effects" test in holding that the Sherman Act applied to agreements made outside of the United States that were intended to affect U.S. commerce and that had some actual effect on U.S. commerce.192 However, Hand cautioned courts to avoid extending the reach of U.S. statutes "without regard to the limitations customarily observed by nations upon the exercise of their powers; limitations which generally correspond to those fixed by the 'Conflict of Laws.'"193 In subsequent antitrust cases, the Supreme Court continued to ignore the Foley analysis and applied the "effects" test to extend the reach of the Sherman Act to a conspiracy to deprive a U.S. exporter out of a market in Canada194 and to a conspiracy in Japan to drive U.S. consumer electronics manufacturers from the U.S. market.195

In the context of a trademark case, Bulova Watch,196 the Court applied both the Foley presumption analysis and the "effects" test. Bulova, a U.S. corporation, sued Steele, a U.S. citizen, for violating its trademark by manufacturing watches in Mexico stamped with the name "Bulova."197 The Court set out the presumption against extraterritoriality but held that the presumption had been overcome. The Court articulated three reasons why the presumption did not limit the Lanham Act to activities in the United States. First, the Act applied to "all commerce which may be lawfully regulated by Congress."198 Further, the illegal conduct in Mexico of affixing the Bulova name had negative effects on Bulova in the United States.199 Finally, the Court noted that there was no conflict with foreign law because a Mexican court had nullified Steele's Mexican registration of the name "Bulova."200

The Supreme Court majority's citation to the effects test of the Restatement is actually inconsistent with the Restatement. The majority views the issue of whether the Sherman Act applies to the London reinsurers as one of "subject matter jurisdiction,"201 while the Restatement characterizes the issue in terms of "jurisdiction to prescribe." Restatement sections 402 and 415, which recognize several versions of the "effects" test, are phrased in terms of "jurisdiction to prescribe."202 The Restatement defines "jurisdiction to prescribe" as a nation's power to "make its law applicable to activities, relations, or statuses of persons, or the interests of persons in things, whether by legislation, by executive order, by administrative rule or regulation, or by determination of a court . . . ."203 The Restatement rejects the term "subject matter jurisdiction" for purposes of determining the reach of U.S. law in the context of transnational activity.204

Justice Souter's discussion of the role of international comity left several unanswered questions. The London reinsurers argued that the district court should have declined to exercise jurisdiction under the principle of international comity.205 The majority concluded that the first step in the analysis is to decide whether subject matter jurisdiction under the Sherman Act exists over foreign conduct based on the "effects" test and that "concerns of comity come into play, if at all, only after a court has determined that the acts complained of are subject to Sherman Act jurisdiction."206 The majority considered it to be an open question "whether a court with Sherman Act jurisdiction should ever decline to exercise such jurisdiction on grounds of international comity."207 The majority then held that even if international comity provided a potential ground for declining jurisdiction, it did not do so in this case because there was no "true conflict" between U.S. and British law.208 The fact that the conduct of the London reinsurers was consistent with the law and policy of the comprehensive British regulatory system for the reinsurance industry did not preclude the application of U.S. antitrust law.209 There was no conflict because British law did not require the reinsurers to act in a way prohibited by U.S. law nor was compliance with both British and U.S. law impossible.210 Finally, the majority expressly declined to decide what other criteria would be appropriate in deciding to decline jurisdiction based on international comity.211

In short, the Hartford Fire majority found that the Sherman Act applied to conduct abroad that produced substantial effects in the United States. The majority did not apply the presumption against extraterritoriality or the Foley "congressional intent" approach. It viewed the issue as one of subject matter jurisdiction and declined to decide what role, if any, international comity should play in extraterritoriality analysis.

3. Reasonableness Approach (Hartford Fire dissent)

The four dissenting justices in Hartford Fire2[2 proposed an approach that is consistent with the Restatement and that differed from the majority's analysis in two respects. First, the dissent believed that the majority mischaracterized the key issue, whether the Sherman Act applied to conduct in Great Britain, as one of subject matter jurisdiction. According to the dissent, the district court clearly had subject matter jurisdiction because the complaint alleged nonfrivolous claims under the Sherman Act and because 28 U.S.C. 1331 gave the court subject matter jurisdiction over cases arising under federal statutes.213 Instead, the dissent viewed the issue of the extraterritorial reach of the Sherman Act as one of "legislative jurisdiction," (a term used by the Court m Arabian) or "jurisdiction to prescribe" (the term used by the Restatement).214

The dissent elaborated the following analysis of jurisdiction to prescribe, which is a nation's power to subject persons or activities to its law.215 The question becomes whether Congress intended to regulate commerce with foreign nations in the Sherman Act. Two canons of statutory construction frame the analysis.216 The first is the Foley presumption against extraterritorial application of U.S. statutes. That presumption was overcome with regard to the Sherman Act by precedent, including Matsushita, Continental Ore, and Alcoa, the same cases cited by the majority to establish the "effects" test.217

In the second step of the analysis, the dissent diverges widely from the majority. Once the presumption against extraterritoriality has been overcome or is inapplicable, the dissent employs a second canon of statutory construction that an '"act of congress ought never to be construed to violate the law of nations if any other possible construction remains.'"218 The "law of nations" includes limits on a nation's exercise of its jurisdiction to prescribe.219 Relying on the Supreme Court's analysis in cases involving tort claims by foreign sailors, the dissent reasoned that the limits on a nation's jurisdiction to prescribe are found in "choice-of-law" principles, which weigh factors that consider the interests of the United States and foreign countries.220 The dissent supported its analysis with lower court opinions, including Timberlane Lumber Co. v. Bank of America^ that "tempered the extraterritorial application of the Sherman Act with considerations of 'international comity.'"222

In Timberlane, the complaint alleged that Bank of America and others in the United States and Honduras conspired to prevent Timberlane from milling lumber in Honduras and exporting it to the United States, thus directly and substantially affecting U.S. foreign commerce.223 The Ninth Circuit decided that the extraterritorial application of U.S. antitrust law should be determined through a three-part analysis: "Does the alleged restraint a\ffect, or was it intended to affect, the foreign commerce of the United States? Is it of such a type and magnitude so as to be cognizable as a violation of the Sherman Act? As a matter of international comity and fairness, should the extraterritorial jurisdiction of the United States be asserted to cover it?"224 To answer the comity question, the court employed a "jurisdictional rule of reason" that balanced and evaluated U.S. and foreign interests.225

In sum, the dissent concluded that principles of international law, conflict of laws, and international comity were an essential part of the analysis to determine the extraterritorial application of the Sherman Act.226 The dissent also rejected the majority's "true conflict" analysis on the grounds that it conflicted with the applicable case law and the Restatement.227 The dissent found that the Restatement (Third) of Foreign Relations Law of the United States section 403 supplied an appropriate set of principles.228 section 403 provides that even if a nation has a basis for jurisdiction, such as conduct outside of the nation that has intended and actual effects in the nation, the nation "may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable."229 The Restatement then sets out a non-exhaustive set of factors relevant to evaluating whether exercising jurisdiction is unreasonable:

(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted;

(d) the existence of justified expectations that might be protected or hurt by the regulation;

(e) the importance of the regulation to the international political, legal, or economic system;

(f) the extent to which the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with regulation by another state.230

Applying those factors to the facts of Hartford Fire, the dissent concluded that the exercise of jurisdiction to prescribe was clearly unreasonable.231

4. Avoiding the Presumption Approach (Rasul)

The fourth analytical approach taken by the Court is illustrated by Rasul v. Bush.232 In Rasul, Australian and Kuwaiti citizens who were detained at the U.S. Naval Base at Guatanamo Bay, Cuba, after the September 11, 2001 terrorist attacks on the United States filed petitions for writs of habeas corpus under 28 U.S.C. 2241.233 Petitioners alleged that they had never been combatants against the United States, had engaged in no acts of terrorism, had not been informed of the charges against them, and had not been allowed access to counsel, courts, or any tribunal.234 The government argued that 28 U.S.C. 2411 did not apply to foreign nationals at Guantanamo Bay based on the Foley presumption against extraterritoriality.235 The Court noted that the United States exercises "complete jurisdiction and control" over the base at Guantanamo Bay. Rejecting the government's Foley argument, the Court stated that "the presumption against extraterritoriality ... certainly has no application to the operation of the habeas statute with respect to persons detained within 'the territorial jurisdiction' of the United States."236 Thus, the Foley presumption does not apply when the allegedly illegal conduct and the effects of that conduct take place in the United States.

5. Analytical Approaches in Lower Courts Construing the Extraterritorial Application of Environmental Statutes

Three of the approaches developed by the Supreme Court have appeared in decisions by lower courts regarding the extraterritorial reach of U.S. environmental statutes: (1) the Foley "congressional intent" approach, (2) the Hartford Fire majority's "effects" approach, and (3) the Rasul "avoiding the presumption" approach.

Cases involving the National Environmental Policy Act (NEPA) and the Resource Conservation and Recovery Act (RCRA) illustrate the application of the "congressional intent" approach to limit the extraterritorial application of U.S. environmental statutes. In NEPA Coalition of Japan v. Aspin,237 the extraterritoriality issue was whether NEPA applied to U.S. military installations in Japan. NEPA requires federal agencies to prepare environmental impact statements on proposals for "major Federal actions significantly affecting the quality of the human environment."238 The United States District Court for the District of Columbia held that the presumption against extraterritoriality applied and that the plaintiffs failed to show a congressional intent to extend NEPA to activities in foreign countries.239 The court emphasized that the presumption applied with great force because the operation of U.S. military installations in Japan raised foreign policy, treaty, and security concerns.240 The decision in Aspin is consistent with other cases in which courts have refused to give extraterritorial effect to NEPA in circumstances that raise foreign policy concerns.241

The extraterritorial effect of the citizen suit provision of RCRA was the subject of Amlon Metals, Inc. v. FMC Corp.242 Amlon, a New York corporation, contracted with FMC, a Delaware corporation, for the shipment of material to be recycled in England by Wath, a U.K. corporation. After a shipment containing hazardous chemicals arrived in England, Amlon and Wath sued FMC under the citizen suit provision of RCRA,243 which pro

Source: Georgetown International Environmental Law Review

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