YAKIMA – For four decades, D.R. Michel has fished, swam and boated at Lake Roosevelt, the stretch of the Columbia River behind Grand Coulee Dam. For much of that time, he has longed for the polluted lake to be cleaned up.
Michel got tired of waiting. Earlier this year, he and another member of the Colville Confederated Tribes filed suit against the main polluter, a Canadian smelter. The lawsuit is believed to be the first filed by U.S. citizens under the 1980 Superfund law against a foreign company operating on foreign soil.
But what started as a small, citizen lawsuit has evolved into an international dispute over cross-border enforcement of environmental laws – one with potentially far-reaching implications.
“We’re living in an interesting world, because we don’t know what the limits are going to be – where courts are going to try to limit behavior and where countries and companies say, ‘No, this encroaches on our sovereignty,” said Mariano-Florentino Cuellar, an associate professor of law at Stanford University.
“The bottom line is sometimes bilateral cooperation doesn’t work,” he said.
The case centers on the giant Teck Cominco Ltd. lead-zinc smelter in Trail, B.C., about 10 miles north of the border.
The U.S. Environmental Protection Agency contends that up to 20 million tons of heavy-metal pollutants have flowed for decades down the river into Washington state. Late in 2003, the agency demanded that the company study the extent of the pollution and pay to clean it up.
The Colvilles sued the company in July for failing to comply with that order, and the state of Washington joined the lawsuit in September. A federal judge recently rejected the company’s motion to dismiss the lawsuit. Teck Cominco plans to appeal that ruling.
Michel, the tribes’ natural resources chairman, grew up near the river. Nobody knew about the contamination for years, he said, but today many residents won’t eat fish caught in the lake and elders are afraid to walk on the beaches.
More than a million people visit Lake Roosevelt each year. The Colvilles, whose reservation borders the river, operate a casino and other businesses offering boat rentals, gasoline and food.
“The legacy I want to leave for my kids and their kids is that they shouldn’t have to go down to the river or Lake Roosevelt and wonder if it’s affecting their health,” he said.
Teck Cominco doesn’t dispute that it polluted the river, but contends it isn’t responsible for all the pollution and shouldn’t be forced to clean it all up.
“We’re committed to dealing with anything that’s an implication that we caused. EPA would have required us to potentially clean up substances that we’re not responsible for,” said Doug Horswill, senior vice president of environmental and corporate affairs for Teck Cominco.
Between 1976 and 1991, the company spent $1 billion on environmental controls at the smelter, Horswill said. And the company has proposed spending $13 million to study the pollution at Lake Roosevelt – an offer that remains on the table.
The EPA rejected the offer, saying the company’s study plans were insufficient.
“Teck Cominco has deposited its waste into U.S. waters and is responsible for that waste,” said Bill Dunbar, an agency spokesman. “We believe the company, not U.S. taxpayers, ought to deal with that problem.”
As a Canadian company conducting business in Canada, though, Teck Cominco does not have the same rights as American companies under the federal Superfund law, Horswill said.
“In effect, it opens us carte blanche to a liability,” he said.
The company and the Canadian government also argue that imposing U.S. environmental regulations on a Canadian company operating inside Canada violates that nation’s sovereign rights. Instead, they say the case should be settled through diplomatic channels.
The Canadian government is considering filing a brief to the appeals court on Teck Cominco’s behalf, said Andre Lemay, spokesman for Canada’s Department of International Trade in Ottawa.
“We believe legal action will, in the end, be expensive and, quite frankly, ineffective,” Lemay said, adding that the government continues to call for negotiations. “It’s a proposition that would allow all parties to have a say in what’s going on.”
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