How the Presumption Against Extraterritoriality Has Created a Gap in Environmental Protection at the 49th Parallel

Minnesota Law Review

Volumn 92, Issue 2, 2007, Pages 529-571

  De Medeiros, João C J G ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

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EID: 38849111216     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (341)

1. See Martin F. Medeiros, Comment, Transboundary Water Rights: A Valuation for Efficient Allocation, 1 TULSA J. COMP. & INT'L L. 157, 158 (1993) (using the example of fertilizer runoff into rivers and the cost of the downstream cleanup to illustrate the externalization of the environmental costs of using fertilizer);
2. see also THOMAS J. MICELI, THE ECONOMIC APPROACH TO LAW 31 (2004) ("An externality exists when an individual. . . imposes a benefit or cost on some other individual who either does not have to pay for the benefit, or is not compensated for the cost. The most common example of an external cost (or negative externality) is pollution.").
3. Cf. Ari Bessendorf, Note, Games in the Hothouse: Theoretical Dimensions in Climate Change, 28 SUFFOLK TRANSNAT'L L. REV. 325, 341-42 (2005) ("States 'externalize' costs by forcing foreign states to bear the costs of a domestic activity. . . . Since the polluter does not bear the cost of the environmental damage it causes, it will pollute more than is optimal. . . .").
4. Id.
5. See Wil Burns et al., International Environmental Law, 40 INT'L LAW. 197, 212-13 (2006).
6. See Boundary Waters Treaty, U.S.-Gr. Brit., Jan. 11, 1909, 36 Stat. 2448.
7. See Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931, 958-63 (1997) (discussing the failure of international treaties and arbitration to control transboundary pollution).
8. See, e.g., Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 676 (S.D.N.Y. 1991) (applying the presumption to the Resource Conservation and Recovery Act in an action to bar recovery of damages incurred by the export of toxic waste abroad).
9. E.g., Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949); Soc'y of Composers, Authors & Music Publishers of Can. v. Canadian Ass'n of Internet Providers (SOCAN), [2004] 2 S.C.R. 427, 454 (Can.).
10. See OXFORD ATLAS OF THE WORLD 132-33 (5th ed. 1997) [hereinafter OXFORD ATLAS].
11. James Keller, U.S. Arms Coast Guard on Great Lakes, HAMILTON SPECTATOR (Ont., Can.), Sept. 29, 2006, at A01, available at 2006 WLNR 16864969.
12. George Ochenski, Policy Hypocrisy: Is Schweitzer's Environmentalism Sinking in Tar?, MISSOULA INDEP., Sept. 14, 2006, at 11, available at 2006 WLNR 19680958.
13. Judson Lake Trumpeter Swans, http://www.judsonlaketrumpeterswans.ca (last visited Nov. 3, 2007).
14. Boundary Waters Treaty, supra note 5.
15. Id. art. IV.
16. See Trail Smelter Case (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (Trail Smelter Arb. Trib. 1938 & 1941).
17. See Michael J. Robinson-Dorn, The Trail Smelter: Is What's Past Prologue? EPA Blazes a New Trail for CERCLA, 14 N.Y.U. ENVTL. L.J. 233, 24353 (2006) (providing a detailed narrative of the Trail Smelter Arbitration and its attendant circumstances).
18. See Pakootas v. Teck Comineo Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006), petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188);
19. Karen Dorn Steele, High Court Issues Order in Columbia Pollution Case: Solicitor General Brief Sought in Teck Comineo Appeal, S POKESMANREV. (Spokane, Wash.), June 5, 2007, at IA, available at 2007 WLNR 11633843 (describing the present controversy and noting that the Supreme Court has asked the United States Solicitor General to submit an amicus brief on the case).
20. See Pakootas, 452 F.3d at 1069 (stating that the smelter discharged up to 145,000 tons of slag per year into the Columbia River between 1906 and 1995).
21. Robinson-Dorn, supra note 16, at 266-68.
22. See Pakootas, 452 F.3d at 1075 (holding that the "release" of toxins from decaying slag into American waters, not the dumping of the slag into the Canadian section of the Columbia River, created the CERCLA violation).
23. Id. at 1082;
24. see also Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (2000).
25. Pakootas, 452 F.3d at 1072.
26. Id. at 1071-72 n.10.
27. Lloyd's Underwriters v. Comineo Ltd., [2006] 12 W.W.R. 486, 498 (B.C.S.C) (Can.), aff'd, [2007] 7 W.W.R. 281 (B.C. Ct. App.).
28. See Manitoba v. Norton, 398 F. Supp. 2d 41, 45 & n.l (D.D.C. 2005).
29. Id. at 46.
30. Id.
31. See id. at 45 & n.4.
32. 42 U.S.C. §§ 4321-4347 (2000).
33. Norton, 398 F. Supp. 2d at 65.
34. Manitoba v. Norton, No. 02-cv-02057(RMC), at 4-5 (D.D.C. Nov. 14, 2003) (order denying motions for judgment on the pleadings) (allowing the case to proceed because it believed that "appropriate restraints within the United States" might be sufficient to grant standing and declining to find that "NEPA has true extraterritorial application").
35. See People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health, 697 N.W.2d 319, 323-24 (N.D. 2005).
36. Id. at 323.
37. Id.
38. Blake Nicholson, Groups Complain About DL Outlet to NAFTA Commission: Opponents Say Outlet Breaks International Law, GRAND FORKS HERALD, Mar. 28, 2006, available at 2006 WLNR 5124873.
39. People to Save the Sheyenne River, 697 N.W.2d at 333.
40. See Envtl. Rights Coal., Inc. v. Austin, 780 F. Supp. 584, 594 (S.D. Ind. 1991) (stating that NEPA jurisdiction over a project only exists where there is federal funding).
41. See MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 2 (3d ed. 1999).
42. See id.;
43. see also id. at 4 (defining municipal law as "the internal laws of national legal systems").
44. Id. at 5.
45. Id. at 5-6.
46. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 69496 (5th ed. 1998) (listing the ways in which international organizations can serve as sources of public international law).
47. See Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CAL. L. REV. 1, 14-19 (2005) (outlining a theory as to why states submit their disputes to arbitration).
48. But see Laurence R. Heifer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 CAL. L. REV. 899, 940 (2005) (limiting the usefulness of Posner's arguments to bilateral relationships).
49. See Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 463-64 (2003) (claiming, using the example of the World Trade Organization, that "compulsory dispute settlement provides a framework for ensuring that [member states] will follow through on their cooperative agreements rather than defecting").
50. See id. at 431 ("No international sovereign imposes order on the system [of international law].").
51. Posner & Yoo, supra note 43, at 21.
52. Id. at 20.
53. See id. at 20-21 (explaining that a "state that expects to lose . . . would refuse to consent" to arbitration unless the state can expect that, over time, decisions will fall within an acceptable "win set"). A country's decision to submit a particular dispute to arbitration will be based on the expected value of the arbitration-the value determined by looking at the cost and benefits of potential outcomes discounted by the probability of each outcome.
54. Id. The historical data which makes up the "win set" helps a country to determine the probability of any given outcome.
55. Id.
56. See Helfer & Slaughter, supra note 43, at 935 ("By increasing the probability of both material sanctions and reputational harm, international tribunals raise the cost of violations, thereby increasing compliance and enhancing the value of the agreement for all parties.").
57. See id. at 938-39 (hinting that supranational tribunals "minimiz[e] . . . negative externalities [exported by a party in breach of international law to] all member states").
58. The same thing can be said of bilateral investment treaties. Although the signatory state can often be sued by private litigants through such treaties, cooperation by the country increases its reputation among foreign investors and helps to attract additional investment. See Susan D. Franck, Integrating Investment Treaty Conflict and Dispute Systems Design, 92 MINN. L. REV. 161, 173-73 (2007).
59. See, e.g., International Court of Justice, Frequently Asked Questions, http://www.icj-cij.org/information/index.php (follow "Frequently Asked Questions" hyperlink) (last visited Nov. 3, 2007) [hereinafter International Court FAQ] (noting that the International Court of Justice is a forum to which states may submit their disputes, but that it has no jurisdiction to deal with applications from individuals or private entities).
60. See Henry W. McGee, Jr. & Timothy W. Woolsey, Transboundary Dispute Resolution as a Process and Access to Justice for Private Litigants: Commentaries on Cesare Romano's The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (2000), 20 UCLA J. ENVTL. L. & POL'Y 109, 116 (2001/2002) (book review) ("International bodies that do grant standing to non-state parties now outnumber those with limited state-to-state jurisdiction."). For example, trading blocs like the WTO, NAFTA, and the EU grant access to private litigants.
61. Id. However, such access is generally limited to economic and trade disputes.
62. Id.
63. See United States v. Mendoza, 464 U.S. 154, 159-60 (1984) (outlining the sheer volume of litigation in which the United States federal government is involved due to its "geographic breadth" and the "nature of the issues" it litigates);
64. see also Martinez, supra note 44, at 439 (noting that granting private parties access to international forums "tends to increase the number of cases brought").
65. See Mendoza, 464 U.S. at 159-60.
66. See id. at 160 (using this as one justification for prohibiting the use of offensive nonmutual collateral estoppel against the federal government).
67. See Eric Gottwald, Leveling the Playing Field: Is It Time for a Legal Assistance Center for Developing Nations in Investment Treaty Arbitration?, 22 AM. U. INT'L L. REV. 237, 245-46, 265 (2007) (noting that arbitration clauses in bilateral investment treaties allow private investors to enforce treaty obligations against state parties and, as a result, the "state is a defendant" in such arbitrations).
68. The cost in the case of a victory for the state party would be the cost of litigating, which would be compounded with the cost of providing a remedy in the event of an adverse decision.
69. See Heifer & Slaughter, supra note 43, at 938-39 (explaining how independent international tribunals can "help states resolve cooperation problems arising from treaties that regulate public goods or the global commons" and thus minimize negative externalities).
70. See Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, 13 ("The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted [to] . . . the Member States.").
71. See Noah Hall, Bilateral Breakdown: U.S.-Canada Pollution Disputes, NAT. RESOURCES & ENV'T, Summer 2006, at 18, 18 ("The [United States and Canada] share a five thousand-mile border that includes approximately 150 rivers and lakes containing over 90 percent of North America's fresh surface water, and over 20 percent of the total fresh surface water in the world.").
72. See id. at 19 ("Beginning nearly a century ago, the two countries established the foundation for their bilateral relationship on environmental matters with the Boundary Waters Treaty of 1909[,] . . . [which] provides legal obligations and a dispute resolution mechanism between the United States and Canada for the two countries' shared boundary waters.").
73. See OXFORD ATLAS, supra note 9, at 132-33.
74. See Manitoba v. Norton, 398 F. Supp. 2d 41, 45 (D.D.C. 2005) ("The Continental Divide separates water flows in the United States so that streams flow to opposite sides of the continent."). Compare OXFORD ATLAS, supra note 9, at 132-33 (showing that no river crosses both the United States-Canada border and the United States-Mexico border), with id. at 11 (showing that the Danube River touches the boundaries of ten countries-Germany, Austria, Slovakia, Hungary, Croatia, Serbia, Bulgaria, Romania, Moldova, and the Ukraine).
75. See, e.g., Robinson-Dorn, supra note 16, at 248-50 (explaining that the Trail Smelter Arbitration, which involved toxic smoke emissions from the smelter in Trail, British Columbia, only came before the International Joint Commission when the United States government nationalized the issue). Even more generally, "[m]ost international environmental institutions lack forums with jurisdiction to resolve international environmental disputes between nations, more less [sic] provide a forum for private actors."
76. McGee & Woolsey, supra note 53, at 116.
77. See Robinson-Dorn, supra note 16, at 250-52 (combining pre-1932 emission damages ($350,000) with those from 1932-1937 ($78,000)).
78. While the procedural rules of the International Court permit intervention by other states, in practice, the court rarely allows such third-party intervention. U.N. Conference on Trade & Dev. [UNCTAD], Dispute Settlement § 1.2, at 19, U.N. Doc. UNCTAD/EDM/Misc.232/Add.l9 (2003), available at http://www.unctad.org/en/docs/edmmisc232add19_en.pdf (discussing dispute settlement under the International Court of Justice).
79. See International Court of Justice, Basis of the Court's Jurisdiction, http://www.icj-cij.org/jurisdiction/index.php (follow "Contentious Jurisdiction" hyperlink; then follow "Basis of the Court's Jurisdiction" hyperlink) (last visited Nov. 3, 2007) [hereinafter International Court Jurisdiction] ("Article 36, paragraph 1, of the Statute [of the International Court of Justice] provides that the jurisdiction of the Court comprises all cases which the parties refer to it.").
80. See Heifer & Slaughter, supra note 43, at 926 tbl.2(a) (listing a number of such courts).
81. See International Court Jurisdiction, supra note 68 (citing the Statute of the International Court of Justice for the proposition that the court has jurisdiction concerning "any question of international law").
82. Private parties would not be repeat actors of the type that incentivize states to submit to outside arbitration in the bilateral context. See Posner & Yoo, supra note 43, at 20-21 (theorizing that states submit to bilateral arbitration as part of a long-term strategy, rather than to solve discrete incidents).
83. See International Court FAQ, supra note 52.
84. See Boundary Waters Treaty, supra note 5, art. VII.
85. See id. preliminary art. (defining "boundary waters").
86. See International Joint Commission, Who We Are, http://www.ijc.org/en/background/ijc_cmi_nature.htm (last visited Nov. 3, 2007) (stating that the Commission can investigate and monitor pollution problems and recommend actions).
87. See Boundary Waters Treaty, supra note 5, art. VIII (granting the power to make binding decisions regarding "all cases involving the use or obstruction or diversion of the [boundary] waters").
88. See id. art. IX (limiting the IJCs power in all other cases within its jurisdiction).
89. See id. (stating that controversies between the "High Contracting Parties" shall be "referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred"). Note, however, that the Trail Smelter Arbitration was decided under a special agreement that granted the IJC, in that specific case, the power to assign damages.
90. See Robinson-Dorn, supra note 16, at 248-50.
91. U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M 289 (1993) [hereinafter NAFTA].
92. See McGee & Woolsey, supra note 53, at 113 (contrasting Romano's focus on the International Court's role in international environmental disputes with his neglect of "other, sometimes compulsory, adjudication contained in such multilateral agreements as . . . the World Trade Organization ("WTO") . . . and regional entities such as the European Union ("EU") and the North American Free Trade Agreement ("NAFTA")").
93. See id. at 116.
94. See id. at 119-24 (describing the access of private parties to the WTO and NAFTA courts).
95. See NAFTA, supra note 79, art. 102; Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations arts. 11(1) & III, Apr. 15, 1994, 33 I.L.M. 1125, 1144-45 (1994) (WTO Agreement).
96. See Heifer & Slaughter, supra note 43, at 938-39 (citing the role of supranational courts as "minimizing the parties' negative externalities [inflicted] upon all member states").
97. See MICELI, supra note 1, at 32 (discussing the "free-rider problem" as a potential source of market failure).
98. See id. at 31 (stating that the most common example of a negative externality is pollution).
99. See McGee & Woolsey, supra note 53, at 119, 121 (stating that the access of private parties to the WTO and NAFTA courts is limited, particularly with regard to environmental disputes).
100. See North American Agreement on Environmental Cooperation, U.S.Can.-Mex., Sept. 14, 1993, 32 I.L.M. 1480.
101. See McGee & Woolsey, supra note 53, at 121 (explaining that the North American Agreement on Environmental Cooperation "provides a forum for private parties to bring complaints before a trilateral Commission for Environmental Cooperation").
102. See Nicholson, supra note 35.
103. See id. ("A commission investigation produces a report that does not make any recommendations and might not even be made public.");
104. see also DEVILS LAKE: Commission Receives Revised Outlet Complaint; Environmental Groups Request Investigation, GRAND FORKS HERALD, July 17, 2006, available at 2006 WLNR 12260709 [hereinafter DEVILS LAKE] (observing that while "the 'citizen submission' process does not include the possibility of sanctions," it does allow groups to "draw attention to an issue").
105. See Lincoln L. Davies, Note, If You Give the Court a Commerce Clause: An Environmental Justice Critique of the Supreme Court Interstate Waste Jurisprudence, 11 FORDHAM ENVTL. L.J. 207, 272-73 (1999) (explaining the geographically limited environmental harm of landfills and chastising the Court's interpretation of the Dormant Commerce Clause for commercializing waste and thereby broadening the geographic reach of garbage).
106. See, e.g., Hot Rolled Steel Sheet from Canada, Case No. MEX-96-1904-03, Final Decision at 1 (NAFTA Binational Panel June 16, 1997),
107. reprinted in RALPH H. FOLSOM ET AL., HANDBOOK OF NAFTA DISPUTE SETTLEMENT (1998) (deciding a Mexican-Canadian dispute over tariffs for hot rolled steel).
108. See OXFORD ATLAS, supra note 9, at 132-33 (showing that even at their closest point, the Canadian and Mexican borders to the United States are separated by more than one thousand miles).
109. The member states would not expect challenges to arise from repeat private litigants, and as a result, would expect no long-term benefit from submitting to compulsory binding arbitration. See Posner & Yoo, supra note 43, at 20-21 (theorizing that states submit to bilateral arbitration as part of a longterm strategy, rather than to solve discrete incidents).
110. See McGee & Woolsey, supra note 53, at 122-23 ("While public exposure is the only sanction available to private parties under Article 14 [of the North American Agreement on Environmental Cooperation], it has resulted in member-states abandoning environmentally harmful decisions.").
111. For example, the plaintiffs from People to Save the Sheyenne River, Inc. v. North Dakota Department of Health, 697 N.W.2d 319 (N.D. 2005), only filed a complaint with NAFTA after losing in the North Dakota Supreme Court.
112. See DEVILS LAKE, supra note 91 (stating that the plaintiffs originally filed a NAFTA complaint in March of 2006).
113. See Robinson-Dorn, supra note 16, at 235 ('Teck Comineo can't send highly toxic sludge across the border and then insist that border protects them from liability. They created one big mess here in the U.S., and they should clean it up . . . .").
114. See Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction over Nonresident Alien Defendants, 41 WAKE FOREST L. REV. 1, 47 (2006) ("An exorbitant jurisdictional assertion . . . 'can readily arouse foreign resentment,' 'provoke diplomatic protests,' 'trigger commercial or judicial retaliation, and threaten friendly relations in unrelated fields.'" (quoting Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 GA. J. INT'L & COMP. L. 1, 28-29 (1987))).
115. See Martinez, supra note 44, at 432.
116. See id. at 436-44 (describing this process thus far).
117. Id. at 449-52.
118. Id. at 452-53.
119. See R.R. Comm'n v. Pullman Co., 312 U.S. 496, 501 (1941).
120. Case 314/85, 1987 E.CR. 4199, 4231.
121. See Martinez, supra note 44, at 479-80 (describing how courts of separate jurisdictions exercise discretion in choosing to recognize or reject the judgments of foreign courts).
122. Case 26/69, Stauder v. Ulm, 1969 E.C.R. 419, 419-30.
123. Martinez, supra note 44, at 453.
124. See Morguard Invs. Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 1091-94 (Can.).
125. National court litigation is not preempted by the Boundary Waters Treaty, so national courts are entitled to decide such cases. See Boundary Waters Treaty, supra note 5, art. IX (denying the IJC the power to issue binding decisions);
126. Manitoba v. Norton, 398 F. Supp. 2d 41, 51 n.10 (D.D.C 2005) (rejecting the argument that the Boundary Waters Treaty preempts a national court claim).
127. See Parrish, supra note 99, at 3-5.
128. To acquire personal jurisdiction over absent persons, a court in the United States must first be satisfied that there are sufficient "minimum contacts" between the individual and the state and that the exercise of jurisdiction will not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
129. See Morguard, [1990] 3 S.C.R. at 1087-91.
130. See Soc'y of Composers, Authors & Music Publishers of Can. v. Canadian Ass'n of Internet Providers (SOCAN), [2004] 2 S.C.R. 427, 454 (Can.).
131. See Lloyd's Underwriters v. Comineo Ltd., [2006] 12 W.W.R. 486, 497 (B.C.S.C) (Can.) (reserving judgment on the reasoning of the Ninth Circuit in Pakootas v. Teck Comineo Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006)),
132. aff'd, [2007] 7 W.W.R. 281 (B.C. Ct. App.).
133. Parrish, supra note 99, at 8-9.
134. See id. at 12-18 (describing this transition).
135. Morguard, [1990] 3 S.C.R. 1077, Canada's International Shoe, was only decided in 1990, and this Note will observe how it has impacted Canadian law regarding the recognition of foreign judgments, personal jurisdiction, and extraterritoriality.
136. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). While the extent of a federal court's jurisdiction over an absent defendant is governed by the rules imposed by the state in which it sits, FED. R. CIV. P. 4(k)(1)(A), many states have long-arm statutes which permit their courts to extend their reach as far as is constitutionally permitted.
137. See, e.g., CAL. CIV. PROC. CODE § 410.10 (West 2003) ("A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."). For the purposes of this general discussion of American personal jurisdiction, it is assumed that such a statute would be applicable.
138. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 702 (1982) (holding that personal jurisdiction is not "a matter of sovereignty, but [is] a matter of individual liberty," and finding the exercise of personal jurisdiction over a foreign defendant proper).
139. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)) (internal quotation marks omitted).
140. Morguard, [1990] 3 S.C.R. at 1096 ("'Comity' .... is the recognition which one nation allows within its territory to the . . . acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. . . ." (quoting Hilton v. Guyot, 159 U.S. 113, 163-64 (1895))).
141. Id. at 1100;
142. see also U.S. CONST, art. IV, §1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."). But see Hunt v. T&N pic, [1993] 4 S.C.R. 289, 32223 (Can.) (inferring a full faith and credit requirement from the structure of the Canadian Constitution although there is no explicit clause).
143. See Morguard, [1990] 3 S.C.R. at 1087-88, 1091-92.
144. Id. at 1091-92.
145. See id. at 1087 (framing the issue to be decided along these terms).
146. See id. at 1091-92.
147. See id.
148. See id. at 1103-04 (finding no difficulty in recognizing judgments where a foreign court has acted within the "ground [s] traditionally accepted ... as permitting the recognition ... of foreign judgments," but going on to struggle with the extent to which "a court of a province [may] properly exercise jurisdiction over a defendant in another province");
149. id. at 1107 ("[I]f this Court thinks it inherently reasonable for a court to exercise jurisdiction . . . it would be odd indeed if it did not also consider it reasonable for the courts of another province to recognize and enforce that court's judgment.").
150. Id. at 1109.
151. Id.
152. Desjean v. Intermix Media, Inc., [2006] 57 C.P.R.4th 314, 322-23 (Fed. Ct.) (Can.) (listing Canadian Supreme Court and Ontario cases that have applied this test).
153. a[1993] 4 S.C.R. 289, 322-23 (Can.).
154. a[1993] 1 S.C.R. 897, 920-21 (Can.).
155. See id. at 916-17, 919-21. In the United States, forum non conveniens is applied where an alternative forum exists and where "trial in the chosen forum would 'establish . . . oppressiveness and vexation to a defendant. . . out of all proportion to plaintiff's convenience,"' or when the '"court's own administrative and legal problems'" militate against the exercise of jurisdiction. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)). This doctrine does not present a problem for United States-Canadian transboundary environmental litigation because the forums are close to each other, and the laws to be applied are similar.
156. See Pakootas v. Teck Comineo Metals, Ltd., No. CV-04-256-AAM, 2004 WL 2578982, at *4 (E.D. Wash. Nov. 8, 2004) (disposing of objections to the exercise of personal jurisdiction on these grounds),
157. aff'd, 452 F.3d 1066 (9th Cir. 2006),
158. petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188).
159. Amchem, [1993] 1 S.C.R. at 920-21.
160. See id.
161. Id.
162. Pakootas, 2004 WL 2578982, at *3.
163. Id.; see also Pakootas, 452 F.3d at 1072 (noting that Teck Comineo did not challenge the personal jurisdiction ruling of the trial court on appeal).
164. See United States v. Ivey, [1996] 30 O.R.3d 370, 374-75 (Ont. Ct. App.) (Can.) (recognizing, for these reasons, an American court's judgment against an absent Canadian defendant).
165. See EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 248 (1991) (citing Foley Bros. v. Filardo, 336 U.S. 281, 284-85 (1949)); Statute of Westminster, 1931, 22 Geo. 5, c. 4, §3 (Eng.) (granting that power to the Canadian Parliament).
166. See Foley Bros., 336 U.S. at 284-85; Soc'y of Composers, Authors & Music Publishers of Can. v. Canadian Ass'n of Internet Providers (SOCAN), [2004] 2 S.C.R. 427, 454 (Can.).
167. See William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 BERKELEY J. INT'L L. 85, 85-86 (1998).
168. See Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C. Cir. 1993).
169. Id.
170. Id.
171. 213 U.S. 347, 353-55 (1909).
172. See Dodge, supra note 144, at 85-86 (describing the early history of the presumption against extraterritoriality).
173. For example, see American Banana, 213 U.S. at 358, where Justice Holmes uses the same principles to develop the "act of state doctrine," which requires American courts to refrain from passing judgment on the legality of the acts of foreign sovereigns.
174. Id. at 356.
175. See id. (citing, as an example, federal criminal statutes governing correspondence with foreign governments).
176. Id. at 357.
177. Dodge, supra note 144, at 87.
178. 499 U.S. 244, 248 (1991).
179. Id.
180. Id.
181. See, e.g., In re Maxwell Commc'n Corp., 186 B.R. 807, 815 (S.D.N.Y. 1995),
182. aff'd, 93 F.3d 1036 (2d Cir. 1996).
183. See, e.g., id. at 815-16 ("First, a court must determine if the presumption applies at all: after identifying the conduct proscribed or regulated by the particular legislation in question, a court must consider if that conduct occurred outside of the borders of the U.S.").
184. See id.
185. See Urlic v. Am. Int'l Group, No. 96 Civ. 1177(LBS), 1997 WL 223076, at *4 (S.D.N.Y. May 1, 1997) (rejecting the argument that the presumption only applies to statutes regulating conduct).
186. E.g., In re Maxwell Commc'n Corp., 186 B.R. at 816.
187. See Kollias v. D&G Marine Maint., 29 F.3d 67, 73 (2d Cir. 1994).
188. Id.
189. See EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 247, 259 (1991) (affirming a finding by the trial court that it lacked subject matter jurisdiction because the presumption against extraterritoriality had not been overcome).
190. See Urlic, 1997 WL 223076, at *3 (applying the presumption against extraterritoriality to bar an insurance claim under 28 U.S.C. § 1364 for an automobile accident that occurred abroad).
191. The Ninth Circuit has taken this approach: Certainly the doctrine of territorial sovereignty is not such an artificial limit on the vindication of legitimate sovereign interests that the injured state confronts the wrong side of a one-way glass, powerless to counteract harmful effects originating outside its boundaries which easily pierce its "sovereign" walls, while its own regulatory efforts are reflected back in its face. Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 923 (D.C. Cir. 1984).
192. See Robinson v. TCI/US W. Cable Commc'ns Inc., 117 F.3d 900, 905 (5th Cir. 1997).
193. See Dodge, supra note 144, at 87.
194. See Robinson, 117 F. 3d at 905.
195. See In re Maxwell Commc'n Corp., 186 B.R. 807, 816-17 (S.D.N.Y. 1995),
196. aff'd, 93 F.3d 1036 (2d Cir. 1996).
197. See, e.g., Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C Cir. 1993).
198. Id.
199. Id.
200. See Subafilms, Ltd. v. MGM-Pathe Commc'ns Co., 24 F.3d 1088, 1096-97 (9th Cir. 1994);
201. see also In re Maxwell Commc'n Corp., 186 B.R. at 821 (finding it "unclear if the domestic 'effects' of foreign conduct, in the absence of Congressional direction that a statute be applied to such conduct, is sufficient to render the presumption inapplicable").
202. See Zoelsch v. Arthur Andersen & Co., 824 F.2d 27, 32 (D.C. Cir. 1987) (arguing that Congress does not normally legislate with the foreign effects of domestic conduct in mind);
203. Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 673 (S.D.N.Y. 1991) (refusing to apply the conduct test, but proceeding directly to an investigation of the legislative history);
204. see also Dodge, supra note 144, at 124 (advocating for the general adoption of this position).
205. The D.C. Circuit adopted this position in Massey, 986 F.2d at 531, and the Fifth Circuit has also applied it in Robinson v. TCI/US West Cable Communications Inc., 117 F.3d 900, 905 (5th Cir. 1997).
206. Compare Pakootas v. Teck Comineo Metals, Ltd., 452 F.3d 1066, 1075-76 (9th Cir. 2006) (carefully classifying the environmental conduct as local and thus avoiding precedent which refuses to recognize the effects exception),
207. petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188),
208. with In re Simon, 153 F.3d 991, 995 (9th Cir. 1998) (quoting Massey, 986 F.2d at 531, in order to apply the effects doctrine to a bankruptcy case).
209. See, e.g., In re Maxwell Commc'n Corp., 186 B.R. at 816 (placing the conduct exception in the first stage of analysis under the presumption).
210. See In re French, 320 B.R. 78, 85 (D. Md. 2004),
211. aff'd, 440 F.3d 145 (4th Cir. 2006),
212. cert, denied, 127 S. Ct. 72 (2006) (exempting from scrutiny, as an alternative holding, the Bankruptcy Code);
213. Goodman v. Lee, No. 85-2966, 1994 WL 710738, at *3-4 (E.D. La. Dec. 20, 1994) (deciding that the Copyright Act would apply regardless of the presumption).
214. See Subafilms, Ltd. v. MGM-Pathe Commc'ns Co., 24 F.3d 1088, 1096-97 (9th Cir. 1994) (noting the principle of territoriality in an international order populated with independent sovereignties).
215. See Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357-58 (1909).
216. Id. at 356-57.
217. See, e.g., Goodman, 1994 WL 710738, at *4 ("These acts . . . took place in the United States. Therefore, even if defendants' acts
218. See, e.g., Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 923 (D.C. Cir. 1984) (arguing that territorial sovereignty allowed for the "vindication of legitimate sovereign interests," such as domestic harm, even when the conduct infringing on those interests occurs abroad).
219. See id. ("[L]egislation to protect domestic economic interests can legitimately reach conduct occurring outside the legislating territory intended to damage the protected interests within the territory.").
220. Robinson v. TCI/US W. Cable Commc'ns Inc., 117 F.3d 900, 906 (5th Cir. 1997).
221. See id. at 905-06 (describing the different tests for the conduct exception);
222. see also Laker Airways, 731 F.2d at 923 (describing the effects exception as being applicable "[a]s long as the territorial effects are not so inconsequential as to exceed the bounds of reasonableness imposed by international law").
223. Randall S. Abate, Dawn of a New Era in the Extraterritorial Application of U.S. Environmental Statutes: A Proposal for an Integrated Judicial Standard Based on the Continuum of Context, 31 COLUM. J. ENVTL. L. 87, 130 (2006).
224. See 986 F.2d 528, 533-34 (D.C. Cir. 1993).
225. See United States v. Corey, 232 F.3d 1166, 1171 (9th Cir. 2000);
226. Basel Action Network v. Mar. Admin., 370 F. Supp. 2d 57, 71-72 (D.D.C 2005);
227. NEPA Coal, of Japan v. Aspin, 837 F. Supp. 466, 467 (D.D.C. 1993).
228. See Abate, supra note 189, at 130.
229. Id. at 103-04.
230. Id.
231. No. CV-04-256-AAM, 2004 WL 2578982 (E.D. Wash. Nov. 8, 2004),
232. aff'd, 452 F.3d 1066 (9th Cir. 2006),
233. petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188).
234. Abate, supra note 189, at 130-34.
235. See Unifund Assurance Co. v. Ins. Corp. of B.C., [2003] 2 S.C.R. 63, 88 (Can.) (interpreting the Constitution Act, 1867, 30 & 31 Vict. Ch. 3, § 92 (U.K.),
236. as reprinted in R.S.C., No. 5 (Appendix 1985)).
237. Statute of Westminster, 1931, 22 Geo. 5, c. 4, § 3 (Eng.) ("It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.").
238. See [2004] 2 S.C.R. 427, 454 (Can.).
239. See id. at 454-56.
240. Id. at 456.
241. See id.
242. Id. at 455 (quoting Libman v. The Queen, [1985] 2 S.C.R. 178, 208 (Can.)) (internal quotation marks omitted).
243. See In re Maxwell Commc'n Corp., 186 B.R. 807, 815-16 (S.D.N.Y. 1995) (outlining the two-step process used by American courts when a case raises extraterritoriality concerns),
244. aff'd, 93 F.3d 1036 (2d Cir. 1996).
245. See SOCAN, [2004] 2 S.C.R. at 454.
246. See id.
247. See Morguard Invs. Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, 1091-93 (Can.).
248. See Sutcliffe v. R., [2006] 2 C.T.C. 2267, 2290-91 (Can. Tax Ct. 2005);
249. In re Smith, [2005] 12 C.B.R.5th 39, 50 (N.W.T.) (Can.). Indeed, the Sutcliffe court appeared unsure of what to do with SOCAN's language, seeming to imply that the language is merely a different way of phrasing "real and substantial connection."
250. See Sutcliffe, [2006] 2 C.T.C. at 2291.
251. This would reverse the court's earlier reluctance to do so. See Hunt v. T&N pic, [1993] 4 S.C.R. 289, 325-26 (Can.) (declining to adopt a broad or narrow interpretation of the "real and substantial connection" test).
252. See Maria E. Chang, Citizen Suits: Toward a Workable Solution to Help Created Wetlands Succeed, 6 U. FLA. J. L. & PUB. POL'Y 77, 85 (1993) (describing the primary purpose of citizen suits as " deterrence").
253. Id. at 86 (noting that citizens who bring citizen suits are "vindicating public rights" through their actions).
254. See Abate, supra note 189, at 104.
255. Part of the Pakootas case, the effects, falls within the territory of the United States, which forms one end of the Abate continuum.
256. See Pakootas v. Teck Comineo Metals, Ltd., 452 F.3d 1066, 1069-70 (9th Cir. 2006),
257. petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188);
258. Abate, supra note 189, at 104. However, the conduct which gave rise to Pakootas occurred in Canada which, as a "sovereign foreign territor[y]," falls on the other end of the Abate continuum.
259. See Pakootas, 452 F.3d at 1069;
260. Abate, supra note 189, at 104.
261. See Manitoba v. Norton, 398 F. Supp. 2d 41, 44 (D.D.C 2005) (stating that construction on the water transfer project at issue had just begun).
262. See Pakootas, 453 F.3d at 1068 (indicating that the hazardous waste had already been dumped).
263. See, e.g., Amchem Prods. Inc. v. British Columbia (Workers' Comp. Bd.), [1993] 1 S.C.R. 897, 927 (Can.) (reading Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937-38 (D.C. Cir. 1984), very closely for clues as to how American courts would react to a Canadian jurisdictional assertion).
264. See Subafilms, Ltd. v. MGM-Pathe Commc'ns Co., 24 F.3d 1088, 1095-97 (9th Cir. 1994).
265. See Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 985 (2d Cir. 1975) (asking whether "Congress would have wished the precious resources of United States courts" to be devoted to predominantly foreign problems).
266. Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949) (emphasis added).
267. See Subafilms, 24 F.3d at 1091-92 (framing the question of liability - and the application of the conduct exception-on whether the conduct which Congress targeted with a copyright statute was the authorization of infringing acts or the infringing acts themselves).
268. See Laker Airways, 731 F.2d at 923 (arguing that sovereign states legislate in order to protect themselves and that an "entire transaction is not . . . immunized" by the fact that the causes of domestic harm occurred abroad).
269. See Soc'y of Composers, Authors & Music Publishers of Can. v. Canadian Ass'n of Internet Providers (SOCAN), [2004] 2 S.C.R. 427, 455 (Can.) (arguing that the events that lead to transboundary litigation occur in both jurisdictions-i.e., they arise both "here and there" (quoting Libman v. The Queen, [1985] 2 S.C.R. 178, 208 (Can.)) (internal quotation marks omitted)).
270. Robinson-Dorn, supra note 16, at 263-65 (laying out the geography of the Upper Columbia River).
271. See, e.g., In re Maxwell Commc'n Corp., 186 B.R. 807, 816 (S.D.N.Y. 1995) (asserting that a case involving conduct within the United States does not involve the extraterritorial application of American law),
272. aff'd, 93 F.3d 1036 (2d Cir. 1996).
273. Id. at 815-16.
274. This does not, however, mean that a statute explicitly limiting itself to territorial application should be applied to an interterritorial event. Instead, the assumption is merely inverted, and interterritorial events are targeted by statutes absent evidence of contrary intent. For example, North Dakota's water quality statute limits itself to protecting the "waters of the state." N.D. ADMIN. CODE 33-16-02.1-02 (2001) (emphasis added). The North Dakota legislature has explicitly manifested its intent to target only local adverse effects. The clear statement of intent eliminates the need for any presumption as to how the legislature wanted a statute to apply, either interterritorially or extraterritorially.
275. See Robinson-Dorn, supra note 16, at 263-65 (laying out the geography of the Upper Columbia River).
276. Id.
277. Id.
278. NEPA provides a property rule, which means that beneficiaries of the rule have the right to block further action by those whose activities are targeted by the rule. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1105 (1972) (defining property rules);
279. Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 913-15 (2002) (describing NEPA). Thus, the application of a NEPA equivalent would require an American court to issue an injunction against a Canadian actor in Canada for conduct having no immediate effects within the United States, making such an application of the statute wholly extraterritorial.
280. CERCLA provides a liability rule, which means that the targeted activity cannot be blocked ex ante, but those individuals who violate the rule must make amends to individuals harmed by the violation of the rule. See Ronald G. Aronovsky, Back from the Margins: An Environmental Nuisance Paradigm for Private Cleanup Cost Disputes, 84 DENV. U. L. REV. 395, 404-05 (2006) (stating that CERCLA provides for retroactive liability);
281. Calabresi & Melamed, supra note 230, at 1105-06 (defining liability rules). What makes the extraterritorial application of a CERCLA-like statute problematic is that, rather than providing a damages remedy, the polluter is required to coordinate with domestic agencies in cleaning up the environmental damage it caused.
282. See Aronovsky, supra, at 404-06 (stating that the EPA may either issue an administrative order directing the owner of a contaminated site to clean it, or clean up the site independently and later sue for the costs incurred). Under this model, a statutorily designated Canadian agency would be required to operate outside of its jurisdiction.
283. In some cases, pollution may also remain in the source country. See, e.g., Judson Lake Trumpeter Swans, supra note 12 (describing a polluted lake that straddles the border). However, this lingering pollution is not a source of transboundary litigation and is beyond the scope of this Note because it would be addressed in litigation by local plaintiffs against a local defendant in a local court.
284. See Oliver A. Houck, O Canada!: The Story of Rafferty, Oldman, and the Great Whale, 29 B.C. INT'L & COMP. L. REV. 175, 241 (2006) ("In both [the American and Canadian] systems . . . the enforcement of environmental assessment requirements . . . depends on judicial review. . . . [M]ore than one reviewing court has ended up with years of supervision over national grazing policies, surface mining, and the preservation of the Pacific Salmon.").
285. See PHILUPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 279-80 (2d ed. 2003) (defining the polluter pays principle as "the requirement that the costs of pollution should be borne by the person responsible for causing the pollution" and discussing the adoption of the principle by national governments).
286. See Eric Thomas Larson, Note, Why Environmental Liability Regimes in the United States, the European Community, and Japan Have Grown Synonymous with the Polluter Pays Principle, 38 VAND. J. TRANSNAT'L L. 541, 553-54 (2005) (describing four different tactics used by the EPA to force polluters to pay for the cleanup of Superfund sites).
287. Cf. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 957 (4th Cir. 1999) (describing the operation of in rem jurisdiction).
288. Cf. Jennifer M. Anglim, Crossroads in the Great Race: Moving Beyond the International Race to Judgment in Disputes over Artwork and Other Chattels, 45 HARV. INT'L L.J. 239, 262 (2004) (noting that in rem jurisdiction "aims to maintain comity between domestic courts and to prevent a second action from threatening the first court's basis for jurisdiction");
289. Martinez, supra note 44, at 448 ("[S]ystem-protective judicial process rules may be inherent in functional judicial systems: Not only are such rules necessary to make systems work, it is in the self-interest of courts to apply such rules because by increasing the functionality of the judicial system, they also increase the power and authority of courts. . . . [Reciprocal cooperation between two formally unrelated courts can increase the power of both.").
290. Dodge, supra note 144, at 101.
291. Manitoba v. Norton, 398 F. Supp. 2d 41, 52-53 (D.D.C. 2005). See generally National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C) (2000).
292. Norton, 398 F. Supp. 2d at 52.
293. Ranchers Cattleman Action Legal Fund United Stockgrowers of Am. v. USDA, 415 F.3d 1078, 1102 (9th Cir. 2005). See generally Administrative Procedure Act, 5 U.S.C. § 702 (2000).
294. Norton, 398 F. Supp. 2d at 65-67.
295. See Manitoba v. Norton, No. 02-cv-02057(RMC), at 4 (D.D.C. Nov. 14, 2003) (order denying motions for judgments on the pleadings) (making the presence of harmful effects within the United States a precondition for standing when those effects would "inevitably flow into the Province");
296. see also Hamid v. Price Waterhouse, 51 F.3d 1411, 1421 (9th Cir. 1995) (explaining that standing is a separate and distinct issue from extraterritoriality).
297. Norton, 398 F. Supp. 2d at 47 ("Water from the project would drain into the Souris River, which flows into Manitoba.").
298. Id. at 65.
299. E.g., Opening Brief of Appellant Citizens United for Resources and the Environment at 23, Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, No. 06-16345 (9th Cir. Oct. 5, 2006), 2006 WL 3380587 (noting that the district court had ruled that NEPA could not be invoked against the extraterritorial effects of a United States project).
300. See Medeiros, supra note 1, at 167 ("To internalize these externalities, it is essential to determine their true costs and then . . . address these costs.").
301. Norton, 398 F. Supp. 2d at 53.
302. Id.
303. Id.
304. National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C) (2000).
305. See Envtl. Rights Coal., Inc. v. Austin, 780 F. Supp. 584, 594 (S.D. Ind. 1991) (stating that NEPA jurisdiction over a project only exists where there is federal funding).
306. Compare N.D. ADMIN. CODE 33-16-02.1-02 (2001) (expressly limiting the application of the state water quality standards to "the waters of the state"),
307. with 42 U.S.C. § 4331 (2000) (speaking in very broad terms such as "fulfill [ing] the responsibilities of each generation as trustee of the environment for succeeding generations").
308. People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health, 697 N.W.2d 319, 329-32 (N.D. 2005) (beginning with the phrase "Manitoba argues").
309. See id. at 329 ("Manitoba argues [that] . . . the discharge of Devils Lake water . . . would contribute to . . . chronic violations of North Dakota's numeric phosphorous water quality standard . . . .").
310. See Monaco v. Mississippi, 292 U.S. 314, 331-32 (1934) (expounding on state sovereign immunity from a suit by foreign sovereigns in a number of cases, including that of "pollution of streams," and also finding the federal government immune from vicarious liability because of the constitutional prohibition on states entering into compacts with foreign states). While this would prevent Manitoba from suing North Dakota absent a waiver of immunity, it would not bar suits against nonsovereign private party polluters.
311. See People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health, 697 N.W.2d 319, 333 (N.D. 2005) (using a deferential standard of review to find that the North Dakota Department of Health was "not arbitrary, capricious, or unreasonable" in its issuance of a permit to construct a water project).
312. 42 U.S.C. § 9607(a) (2000) (holding polluters liable); see, e.g., Canadian Environmental Protection Act, 1999 S.C., ch. 33, pmbl. (Can.) (announcing a "polluter pays" principle);
313. id. at ch. 33, § 40 (allowing private citizens to sue for damages);
314. Contaminated Sites Remediation Act, 1996 S.M., ch. 40, § 1 (Man.).
315. See Christopher R. Leslie, Achieving Efficiency Through Collusion: A Market Failure Defense to Horizontal Price-Fixing, 81 CAL. L. REV. 243, 275-80 (1993) (outlining the mechanisms by which increasing the cost of a negative externality can force its internalization and deter behavior costly to society as a whole).
316. Robinson-Dorn, supra note 16, at 259-61.
317. Id. at 261-62.
318. See Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1069 (9th Cir. 2006) (stating that Teck Cominco only ceased discharging slag in 1995),
319. petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188).
320. See Lloyd's Underwriters v. Cominco Ltd., [2006] 12 W.W.R. 486, 498 (B.C.S.C.) (Can.) (noting that Teck Cominco continues to maintain that it should not be held liable for cleanup costs, even though it has agreed to pay for an initial study of the Lake Roosevelt site),
321. aff'd, [2007] 7 W.W.R. 281 (B.C. Ct. App.).
322. As a rational actor, the mining company would cease dumping if the expected liability would exceed the benefits of dumping slag. Leslie S. Gara, Medical Surveillance Damages: Using Common Sense and the Common Law to Mitigate the Dangers Posed by Environmental Hazards, 12 HARV. ENVTL. L. REV. 265, 303 (1988). Even if the expected liability proved insufficient to bring dumping to a complete halt, it would still likely reduce the level of activity to a more economically efficient level.
323. Id.
324. See Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-AAM, 2004 WL 2578982, at *12 (E.D. Wash. Nov. 8, 2004) (finding the imposition of CERCLA in part justified because "Canada's environmental laws are intended to protect Canadian territory" and that the "laws do nothing to remedy the damage that has already occurred in U.S. territory"),
325. aff'd, 452 F.3d 1066 (9th Cir. 2006),
326. petition for cert, filed, 75 U.S.L.W. 3483 (U.S. Feb. 27, 2007) (No. 06-1188).
327. Pakootas, 452 F.3d at 1075;
328. see also id. at 1077-78 ("A party that 'arranged for disposal' of a hazardous substance . . . does not become liable under CERCLA until there is an actual or threatened release . . . ." (quoting 42 U.S.C. § 9607(a)(3))).
329. See Manitoba v. Norton, No. 02-cv-02057(RMC), at 4 (D.D.C. Nov. 14, 2003) (order denying motions for judgment on the pleadings) (granting Manitoba standing under NEPA to challenge NAWS based on domestic effects).
330. In a collateral case relating to insurance coverage for claims against Teck Comineo in the Pakootas suit, a Canadian court recited the following: "[A]fter oral submissions concerning [Teck Cominco's] applications in [Pakootas] had been completed . . . and my own judgment reserved, reasons for judgment dismissing [Teck Cominco's] appeal . . . were delivered by the . . . Ninth Circuit...." Lloyd's Underwriters, [2006] 12 W.W.R. at 497 (emphasis added). It is unlikely that the court would have so explicitly reserved judgment on the Ninth Circuit's reasoning if it had agreed with the Pakootas opinion.
331. See United States v. Ivey, [1996] 30 O.R.3d 370, 374-75 (Ont. Ct. App.) (Can.);
332. United States v. Shield Dev. Co., [2004] 74 O.R.3d 583, 594-95 (Ont. Super. Ct. J.) (Can.) (relying on Ivey),
333. aff'd, [2005] 74 O.R.3d 595 (Ont. Ct. App.).
334. Shield Dev. Co., [2004] 74 O.R.3d at 586 (emphasis added).
335. See Ivey, [1996] 30 O.R.3d at 374 (finding that the application of CERCLA was not extraterritorial because it did not seek to regulate conduct in Canada-it merely sought compensation for costs within the United States).
336. See, e.g., Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 670, 672 (S.D.N.Y. 1991) (observing that a British court had granted the defendant's motion to dismiss because "all the actions claimed to be taken by FMC took place in the United States and U.S. law would apply," and then going on to grant the defendant's motion to dismiss because the adverse effects would be felt only in the United Kingdom).
337. See, e.g., Amchem Prods. Inc. v. British Columbia (Workers' Comp. Bd.), [1993] 1 S.C.R. 897, 913 (Can.) ("Any doubts that a foreign court will not regard [an antisuit injunction] as a breach of comity are dispelled by reading the reaction of [Judge] Wilkey ... in Laker Airways Ltd. v. Sabena . . . ." (citing Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937-38 (D.C. Cir. 1984))).
338. Laker Airways, 731 F.2d at 937.
339. Ivey, [1996] 30 O.R.3d at 374;
340. see also Shield Dev. Co., [2004] 74 O.R.3d at 586 (involving a copper smelter in Beaver County, Utah).
341. Martinez, supra note 44, at 507.