NO. 69406-1

_________________________________________________________

SUPREME COURT OF THE STATE OF WASHINGTON__________________________________________________

_______

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY andTHOMAS C. FITZSIMMONS, director of the Department

of Ecology,

Appellants-Cross-Appellees,

v.

ASARCO INCORPORATED,

Respondent-Cross-Appellant.__________________________________________________

_______

ON APPEAL FROM THURSTON COUNTY SUPERIOR COURT__________________________________________________

_______

BRIEF AMICUS CURIAE OF THEWASHINGTON LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT-CROSS-APPELLANT__________________________________________________

_______

Dale M. Foreman (WSBA # 6507) Daniel J.Popeo

Foreman, Arch, Dodge, Paul D.Kamenar

Volyn & Zimmerman WashingtonLegalFoundation

124A N. Wenatchee Avenue 2009MassachusettsAve., NW

Wenatchee, WA 98801 Washington,D.C. 20036

(509) 662-9602 (202) 588-0302(Local Counsel)

Counsel forAmici Curiae

Date: April 30, 2001

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TABLE OF AUTHORITIES

Federal Cases

American Pelagic Fishing v. United States 2000 U.S. Claims LEXIS 54 (Apr. 4, 2001) . 6

American Smelting & Refining Co. v. Godfrey, 158 F. 255 (8th Cir. 1907) . . . . . . . . 10

Armstrong v. United States, 364 U.S. 40, 80 S. Ct. 1563, 4 L. Ed. 2d 1554

(1960) . . . . . . . . . . . . . . . . . . . . 7

Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798) 11

Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S. Ct. 1018, 89 L. Ed. 2d

166 (1986) . . . . . . . . . . . . . . . . . . 10

Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131,141 L. Ed. 2d 451 (1998 ) 8, 10, 11, 12, 13

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 842

(1990) . . . . . . . . . . . . . . . . . . . . 5

Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) . . . . . . 5, 6, 11

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d

798 (1992) . . . . . . . . . . . . . . . . . . 6

Pennsylvania Coal Co. v Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322

(1922) . . . . . . . . . . . . . . . . . . . . 7

Phillips v. Washington Legal Foundation, 524 U.S. 156, 118 S. Ct. 1925, 141 L. Ed. 2d

174 (1998) . . . . . . . . . . . . . . . . . . 7

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S. Ct. 2862, 81 L. Ed. 2d

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815 (1984) . . . . . . . . . . . . . . . . . . 7

United States v. Carlton, 512 U.S. 26, 114 S. Ct. 2018, 129 L. Ed. 2d

22 (1994) . . . . . . . . . . . . . . . . . . . 7

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976) . . . . . 13, 14, 15

Washington Legal Foundation v. Legal Foundation ofWashington, 236 F.3d 1097 (9th Cir. 2001) . . . . . . 7

State Cases

Asarco, Inc. v. State, No. 24328-8-II, slip op. (Wash. Ct. of App.

June 23, 1999) . . . . . . . . . . . . . . . . 12

Columbus Gas Light & Coke Co. v. Freeland, 12 Ohio 392 (1861) . . . . . . . . . . . . 19

Kinnaird v. Standard Oil Co., 12 S.W. 937 (Ky. Ct. App. 1890) . . . . . 18

Klepsch v. Donald, 4 Wash. 436, 30 P. 991 (1892) . . . . . . 17

Federal Statutes

26 U.S.C. §§ 9701-9722 . . . . . . . . . . . . 8

State Statutes

Model Toxics Control Act, RCW 70.105D . . passim

Federal Constitutional Provisions

Art. I, § 9-10 . . . . . . . . . . . . . . . . 6

Art. I, § 9, cl. 1 . . . . . . . . . . . . . . 6

Art. I, § 10, cl. 3 . . . . . . . . . . . . . . 6

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Art. I, § 10, cl. 1 . . . . . . . . . . . . . . 6

U.S. Const. Amend. V (Due Process Clause) . passim

U.S. Const. Amend. V (Takings Clause) . . . passim

Other Sources

Amar, The Bill of Rights as Constitution, 100 YaleL.J. 1131 (1991) . . . . . . . . . . . . . 11

Congressional Research Service, The Constitutionof the United States: Analysis andInterpretation, S. Doc. No. 16, 99th Cong.,1st Sess. 381 (1987) . . . . . . . . . . . 11

F. A. von Hayek, The Road to Serfdom (1944) . . 5

Fletcher v. Rylands, L.R. 3 H.L. 330 (1868) . . 17

James W. Ely, Jr., The Guardian of Every OtherRight: A Constitutional History of PropertyRights (1992) . . . . . . . . . . . . . . 4

Restatement (Second) of Torts, § 822m, Comment g(1979) . . . . . . . . . . . . . . . . . . 17

Robert E. Riggs, Substantive Due Process in 1791,1990 Wis. L. Rev. 941 . . . . . . . . . . 4

3 J. Story, Commentaries on the Constitution ofthe United States § 1339 (Boston: 1833). . . 11

The Federalist No. 10 (James Madison) (Jacob E.Cooke ed., 1961) . . . . . . . . . . . . . 4

The Federalist No. 44 (James Madison) (Jacob E.Cooke ed., 1961) . . . . . . . . . . . . . 5

The Federalist No. 54 (James Madison) (Jacob E.Cooke ed., 1961) . . . . . . . . . . . . . 4

W. Blackstone, 1 Commentaries on the Laws ofEngland 46 (1765) . . . . . . . . . . . . . . . 5

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

IDENTITY AND INTERESTS OF AMICUS . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT

I. RETROACTIVE APPLICATION OF LEGISLATION SUCHAS THE MTCA UNDERMINES THE RULE OF LAW ANDJEOPARDIZES IMPORTANT PROPERTY INTERESTSPROTECTED BY THE DUE PROCESS AND TAKINGSCLAUSES OF THE CONSTITUTION . . . . . . . . . . . . . . . . . . 4

II. THE IMPOSITION OF STRICT, JOINT, AND SEVERALRETROACTIVE LIABILITY ON ASARCO ISUNCONSTITUTIONAL UNDER THE RATIONALES OFEASTERN ENTERPRISES v. APFEL AND USERY v. TURNERELKHORN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

III. ASARCO COULD NOT HAVE FORESEEN UNDER THECOMMON LAW THAT IT WOULD BE SUBJECT TOMASSIVE LIABILITY FOR HYPOTHETICAL "INJURIES"FROM ITS EMISSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

IDENTITY AND INTERESTS OF AMICUS

The Washington Legal Foundation (WLF) is a non-profit public

interest law and policy center based in Washington, D.C., with

supporters nationwide, including many in the State of Washington. WLF

regularly appears before federal and state courts promoting economic

liberty, free enterprise principles, and a limited and accountable

government. WLF's interests are more fully set forth in its motion for

leave to file this brief. As indicated in that motion, WLF's brief

will first discuss the constitutional objections to retroactive laws, and

then discuss the foreseeability issue in the context of both relevant

Supreme Court decisions and the common law.

STATEMENT OF THE CASE

In the interests of judicial economy, amicus adopts the Statement

of the Case of Respondent/Cross-Appellant Asarco, Incorporated. In

brief, Asarco challenges the constitutionality of the imposition of

massive retroactive liability on it from the operation of a lead smelting

and arsenic recovery facility in Everett, Washington, from 1904 until

1912 when it was shut down. Findings of Fact (FOF) at ¶ 11. In 1991,

almost 80 years later, the Washington Department of Ecology (Ecology),

invoking Washington's 1988 Model Toxics Control Act (MTCA), RCW

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70.105D, began enforcement proceedings against Asarco to clean 686

acres of soil, both on-site where the plant was located (44 acres) and off-

site (642 acres) surrounding Asarco's facility. The current cost of that

remediation is estimated to be a minimum of $78 million. Id. at ¶ 54.

The MTCA regulations do not require that there be any actual

harm or even a significant probability of harm to humans who live in the

area. Id. at ¶ 15. Rather, the goal of the MTCA's risk assessment

methodology is to reduce exposure to environmental substances that

might cause the risk of one additional cancer to a level of one in a

million. Id. Yet testing of Everett residents by county health officials at

Asarco's expense showed no elevated blood levels of either arsenic or

lead. Id. at ¶ 22. There have been no health complaints or lawsuits for

injuries or risks from exposure to the substances either in the air or the

soil from the time Asarco operated the plant in 1904 until the instant

litigation began. Id. at ¶ 80.

Even though Asarco's emissions constituted only between 10 and

30 percent of the amount of arsenic and lead at the site, Asarco is being

held strictly, jointly, and severally liable for all the cleanup costs. Id. at

¶ 86. The massive remediation expenses are based on the costs incurred

that are necessary to reduce the level of arsenic in the soil to 20 parts per

1 By comparison, the federally approved level of arsenic in drinking water has been

50 ppm, an amount that is 250 percent greater than what Ecology demands to be the level

for arsenic in dirt. As the trial court found, "one sma ll bite of a pre-1937 apple containing

arsenic at the [then] regulated limit would have exceeded the arsenic exposure Ecology

seeks to prevent with its 20 ppm cleanup requirement for soil. . . ." FOF at ¶ 66.

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million (ppm), the natural background level for arsenic. Id. at ¶ 60.1

The trial court concluded that the imposition of this

unprecedented and massive liability upon Asarco for conduct occurring

almost a century ago violated both the Due Process and Takings Clauses

with respect to the off-site remediation. The court's significant findings

on the foreseeability issue were summarized thusly:

Asarco could not reasonably have anticipated the type of liabilitythat Ecology seeks to impose, under MTCA, to cleanup offsiteEverett soil. . . . Prior to 1937 [when Asarco sold the land and 23years after it ceased operations in 1914], Asarco could notreasonably have anticipated (1) that the Washington legislaturewould create a new public policy of risk reduction in the absenceof actual harm; (2) that soil would be deemed a pathway fordaily, regular human ingestion of lead and arsenic at levelsharmful to human health; (3) that the amounts of lead and arsenicleft behind at the offsite Everett soil would be deemed to pose ahuman health problem so severe that soil remediate would berequired; and (4) that this approach would be based on a scientifictheory -- risk assessment -- developed decades after Asarcoceased operations and sold its property."

Conclusions of Law (COL) at ¶ O. The court, however, upheld

remediation costs for the actual 44-acre site where the facility was

located based on higher levels of lead and arsenic. Ecology appeals the

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judgment with respect to the off-site remediation, and Asarco cross-

appeals on the on-site issue.

ARGUMENT

I. RETROACTIVE APPLICATION OF LEGISLATIONSUCH AS THE MTCA UNDERMINES THE RULEOF LAW AND JEOPARDIZES IMPORTANTPROPERTY INTERESTS PROTECTED BY THEDUE PROCESS AND TAKINGS CLAUSES OF THECONSTITUTION

1. The Framers saw the protection of property rights as “the first

object of government.” The Federalist No. 10, at 78 (James Madison)

(Clinton Rossiter ed., 1961). See also James W. Ely, Jr., The Guardian

of Every Other Right: A Constitutional History of Property Rights 42-58

(1992). They recognized, in the words of John Adams, that “[p]roperty

must be secured or liberty cannot exist.” Id. at 43 (quoting Discourses on

Davila). Knowing that “[g]overnment is instituted no less for protection

of the property than of the persons of individuals” (The Federalist No.

54, supra, at 339 (James Madison)), the Framers deliberately sought, in

the Due Process Clause, to shield interests in property—no less than in

life and liberty— from government intrusion. See Robert E. Riggs,

Substantive Due Process in 1791, 1990 Wis. L. Rev. 941, 946.

2. James Madison justified restrictions on retroactive laws in

2 Indeed, the classical liberal scholar Friedrich A. von Hayek described the Rule of

Law, with its inherent restriction on retroactive legislation, as the single most

distinguishing feature of a free society: "Rule of Law . . . means that the governm ent in all

its actions is bound by rules fixed and announced beforehan d -- rules which m ake it

possible to foresee with fair ce rtainty how the authority will use its co ercive pow ers in

given circumstances and to plan one's individual affairs on the bas is of this know ledge ."

F. A. von Haye k, The Ro ad to Serfdom 72 (1944). As Blackstone noted, retroactive laws

are "more unre asonable" tha n those of "Ca ligula, who (acc ording to Dio Cas sius) wrote his

laws in a very small character, and hung them up upon high pillars, the more effectively

to ensna re the p eople ". W. B lacks tone, 1 Commentaries on the Laws of England 46 (1765).

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the United States Constitution on the grounds that such restrictions "will

banish speculations on public measures, inspire a general prudence and

industry, and give a regular course to the business of society." The

Federalist No. 44, at 128-29 (R. Fairfield 2d ed. 1966). Retroactive

legislation is particularly pernicious to notions of due process, ordered

liberty, and the Rule of Law.2

Legislation, such as the MTCA, which provides for the

imposition of liability for conduct occurring long before the law was

enacted, violates these fundamental notions of fairness embodied in our

common law heritage and constitutional form of government. See Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 842-44, 855-56,

110 S. Ct. 1570, 108 L.Ed.2d 842 (1990). The presumption against the

retroactive operation of statutes was reaffirmed by the Supreme Court in

Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d

798 (1994) where the Court re-emphasized the constitutional

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underpinnings of this presumption. See id. at 266 (referring to the Due

Process and Takings Clause of the Fifth Amendment; the Obligations of

Contract Clause, Art. I, § 10, cl. 1; the Ex Post Facto Clauses, Art. I, § 9,

cl. 1 and § 9, cl. 3; and Bills of Attainder, Art. I, §§ 9-10.).

More than simple fairness underlies reservations about retroactive

legislation. As the Court noted in Landgraf, “[i]n a free, dynamic

society, creativity in both commercial and artistic endeavors is fostered

by a rule of law that gives people confidence about the legal

consequences of their actions.” 511 U.S. at 265-66. The Court also noted

that retroactive legislation poses special risks of the abuse of legislative

power. Id. at 266-67 & n.20. Because of these inimical features of

retroactive laws, the courts are to take a particularly close scrutiny at

such laws rather than the review given to ordinary prospective economic

legislation.

3. In addition to the Due Process Clause, the Takings Clause of

the Fifth Amendment stands as an equally important constitutional

bulwark against governmental confiscation of private property, whether

3 See, e.g., Lucas v. Sou th Car olina C oasta l Com m'n , 505 U.S. 1003, 112 S. Ct. 2886,

120 L.Ed.2d 798 (1992) (law that denies effectively all economic viable use of real

property constitutes c ategorical taking ); American Pelagic Fishing v. United States, 2000

U.S. Claims LEXIS 54 (Apr. 4, 2001) (law that retroactively cancels permits for fishing

vessel constitutes taking of the vessel); Phillips v. Washington Legal Foundation, 524 U.S.

156, 118 S. Ct. 1925 , 141 L.Ed. 2d 17 4 (1998); Washington Legal Foundation v. Legal

Foundation of Washington, 236 F.3d 1097 (9th Cir. 2001) (diversion of interest generated

on clients' funds constitutes a taking of property); Ruckelshaus v. Monsanto Co., 467 U.S.

986, 10 4 S. C t. 2862, 8 1 L.E d.2d 81 5 (1984 ) (trade secret s).

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the property be real or personal, tangible or intangible.3 The Takings

Clause prohibits the government from taking private property for public

use without the payment of just compensation, and thus “from forcing

some people alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.” Armstrong v. United

States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L.Ed.2d 1554 (1960)

(emphasis added). However laudable the goal of ensuring that

Washington residents are not exposed even to hypothetical health risks

from substances that might be ingested from their dirt or soil, as Justice

Holmes stated, even “a strong public desire to improve the public

condition is not enough to warrant achieving the desire by a shorter cut

than the constitutional way of paying for the change.” Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 415-16, 43 S. Ct. 158, 67 L.Ed.2d 322

(1922) (coal company cannot be forced to cease lawful mining activities

causing subsidence of homes where surface rights of homeowner did not

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include right of support). II. THE IMPOSITION OF STRICT,JOINT, AND SEVERALRETROACTIVE LIABILITY ONASARCO ISUNCONSTITUTIONAL UNDERTHE RATIONALES OFEASTERN ENTERPRISES v.APFEL AND USERY v. TURNERELKHORN

1. The Supreme Court recently had an opportunity to expound on

the Due Process and Takings Clauses and their relationship to one

another in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131,

141 L.Ed.2d 451 (1998). There the Court held that the Coal Industry

Retiree Health Benefit Act of 1992 (“Coal Act”), 26 U.S.C. §§ 9701-

9722, could not be constitutionally applied retroactively to require a

company to pay health care benefits of some $50 to $100 million to over

1,000 of its former employees. Although there was no single opinion for

the Court, there was a common rationale that is helpful in resolving this

case.

Justice O’Connor, writing for a plurality that included Chief

Justice Rehnquist, Justice Scalia, and Justice Thomas, summarized the

Court's jurisprudence in the field of economic regulation:

Our opinions in Turner Elkhorn, Connolly, and Concrete Pipe,make clear that Congress has considerable leeway to fashion

4 See United States v. Carlton, 512 U.S. 26, 32, 114 S. Ct. 2018, 129 L.Ed.2d 22 (1994)

(upholding "modest period of retroactivity" o f less than a year); id. at. 38 (O'Connor, J.

concurring) ("A period of retroa ctivity longer than the year preceding the legislative

session in whic h the law w as enacted w ould raise . . . serious constitutional q uestions").

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economic legislation, including the power to affect contractualcommitments between private parties. Congress may also imposeretroactive liability to some degree, particularly when it is"confined to short and limited periods required by thepracticalities of producing national legislation." (citationomitted).4 Our decisions, however, have left open the possibilitythat legislation might be unconstitutional if it imposes severeretroactive liability on a limited class of parties that could nothave anticipated the liability, and the extent of that liability issubstantially disproportionate to the parties' experience.

524 U.S. at 528-29, 118 S. Ct. at 2149 (emphasis added).

The Court went on to conclude that the Coal Act, as applied to

Eastern, was just such a case. In doing so, the plurality applied the

Court's traditional regulatory taking analysis: (1) the economic impact of

the regulation, (2) the extent to which the government interfered with

investment-backed expectations, and (3) the character of the

governmental action. Id. at 530.

Justice Kennedy, concurring in the judgment and dissenting in

part, agreed that the Coal Act as applied to Eastern Enterprises was

arbitrary and therefore unconstitutional. While he based his decision on

the Due Process Clause of the Fifth Amendment rather than on the

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Takings Clause, Justice Kennedy made clear that he was “in full accord

with many of the plurality’s conclusions.” Id. at 539. He agreed that

“[t]he plurality’s careful assessment of the history and purpose of the

statute in question demonstrates the necessity to hold it arbitrary and

beyond the legitimate authority of the Government to enact.” Id.

The four dissenters in Eastern Enterprises likewise recognized

that retroactive application of a federal statute can be unconstitutional

under the Due Process Clause of the Fifth Amendment. The dissenters

explained that, like the plurality, they would inquire if the law as applied

retroactively was “fundamentally unfair" or unjust. Id. at 553 (Breyer, J.,

joined by Stevens, Souter, and Ginsburg, JJ., dissenting). “[T]he Due

Process Clause can offer protection against legislation that is unfairly

retroactive . . . for . . . a law that is fundamentally unfair because of its

retroactivity is basically arbitrary.” Id. at 557.

The dissent’s analysis makes clear that the Supreme Court is

unanimous in recognizing that there may be circumstances in which the

retroactive application of a statue to particular past conduct violates the

Fifth Amendment. In fact, the dissent noted that the same three factors

articulated by the plurality could properly be applied in the due process

rather than the takings context. Id. at 567 (citing Connolly v. Pension

5 Not to be overlooked in the Eastern decision is Justice Thomas's concurring opinion

on the possible application of the Ex Pos t Facto Clauses prohibiting both the federal and

state governments from enacting retroactive legislation, notwithstanding the suggestion in

Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed . 648 (1798), that the State Ex Pos t Facto Clause

restricts only retroactive crim inal or penal law s. 524 U.S. at 538-39 (Thom as, J .,

concurring). Justice T homas h ad good reaso n for questioning this limitation of the State

Ex Post Fa cto Clause, for "[a]t the time the Constitution was adopted, many persons

understood the terms ex post fac to laws to 'embrace all retrospective laws, or laws

governing or controlling past transac tion s, wh ethe r . . . of a civi l or a crim inal natu re.'"

Congressional Rese arch S ervice , The Constitution of the United States: Analysis and

Interpretation, S. Doc. No . 16, 99th Cong., 1st. Sess. 38 1-82 (1987) (quoting 3 J. Story,

Commentaries on the Constitution of the United States § 1339 (Boston: 1833)). Amicus

submits that the Ex Post Facto Clauses should at least be considered as part of the textual

and structural features of our Constitution that inform and animate the related provisions

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Benefit Guaranty Corp., 475 U.S. 211, 225-27, 106 S. Ct. 1018, 89

L.Ed.2d 166 (1986)). The dissenters simply concluded that, on the facts

before them, retroactive application of the Coal Act to Eastern was not

fundamentally unfair or unjust. But every Justice in Eastern Enterprises

agreed with the core proposition that “an unfair retroactive assessment of

liability upsets settled expectations, and . . . thereby undermines a basic

objective of law itself.” Id. at (558 Breyer, J., joined by Stevens, Souter,

and Ginsburg, JJ., dissenting); compare id. at 532 (plurality opinion)

(“Retroactivity is generally disfavored in the law, in accordance with

fundamental notions of justice that have been recognized throughout

history”) (internal quotation marks omitted); id. at 547 (Kennedy, J.,

concurring in the judgment) (“for centuries our law has harbored a

singular distrust of retroactive statutes”).5

of the D ue Pro cess, T aking s, and si mila r claus es. See Landgraf, supra , at 266. See

genera lly Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1201 (1991)

("How could we forget that our Consti tution is a single document, and not a jumble of

disconnected clauses -- that it is a Cons titution we ar e expo undin g.").

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While Ecology and its amici have argued about the precedential

weight that should be give to plurality's takings analysis versus

Kennedy's due process concurrence, the Superior Court correctly

concluded in its well-reasoned opinion supported by detailed findings of

fact, that the MTCA violated common principles of both the due process

clause as well as the takings clause. As the Washington Court of

Appeals stated in this case: "At bottom, the retroactive application of

liability can offend 5th Amendment principles (takings or due process)

when the result is oppressive, patently unfair, or disproportionate, i.e.

unreasonable." See Asarco, Inc. v. State, No.24328-8-II, slip op. at 4

(Wash. Ct. of App. June 23, 1999). The Superior Court found the

MTCA, as applied to Asarco, to be "so oppressive and unfair" that this

Court can and should similarly affirm the Superior Court's decision

under either or both Fifth Amendment rationales. Conclusion Of Law,

¶ V.

2. Ecology argues nevertheless that Justice O'Connor allegedly

"drew a key distinction between the liability in Eastern Enterprises and

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Turner Elkhorn" when she said in dicta that "Eastern might be

responsible for employment related health problems of all former

employees whether or not the cost was foreseen at the time of

employment." Ecology Br. at 14, citing Eastern, 524 U.S. at 536

(emphasis in Ecology Brief); see also Brief of United States at 8, n.5.

Ecology also cites Kennedy's concurrence in Eastern to the same effect,

and his reference to Chancellor Kent's observation that "'[s]uch

[remedial] statutes have been held valid when clearly just and reasonable,

and conducive to the general welfare, even though they might operate to a

degree upon existing rights.'" Id. at 549-550 (Kennedy, J. concurring)

(emphasis in Ecology Brief). Ecology's emphases are both misplaced and

misunderstood.

First, it should be remembered that Eastern, like the case at bar,

was an as-applied constitutional challenge, whereas the plaintiff in Usery

v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S. Ct. 2882, 49 L. Ed. 2d

752 (1976) mounted a much more difficult facial challenge to the Black

Lung Disease Act. That law required employers to fund health benefits

of former miners who suffered and died with or from pneumoconiosis

after being exposed to coal dust.

Second, the predicate for Justice O'Connor's "whether the cost

6 Ecology's superficial reliance on Turner Elkho rn as somehow dispositive of this case

ignores the Court's grave concerns with an as-applied challenge in a situation not unlike the

one in this case. In his concurring opinion in Turner Elkho rn, Justice Powell believed that

"whether the retroactive lability is constitutional is a con siderably closer question that the

Co urt's treatment suggests. The rationality of retrospect liability as a cost-spreading device

is highly questionable." 428 U.S. at 41 (Pow ell, J. concurring). Justice Powell then

presents an excellent economic critique of the notion that somehow Turner Elkhorn made

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was foreseen" statement was the existence of "employment related health

problems of all former employees." In the case at bar, there are no

Asarco-related health problems today of any current or former residents

of Everett. In Turner Elkhorn, the "health" problem was real and serious,

not a purely hypothetical increased risk of contracting the disease.

Third, Turner Elkhorn allowed companies the opportunity to

rebut most of the presumptions that a miner contracted his disease from

his job exposure, as opposed to some other cause. 428 U.S. at 19-20.

Here, on the other hand, Asarco is being held strictly as well as jointly

and severally liable for 100% of the remedial costs, when at most, it

contributed only 30% of the arsenic at the site targeted for the cleanup.

While the proportionality of distributing the costs and burden need not be

exact to satisfy the Due Process Clause, the threefold factor applied here

due to the imposition of joint and several liability (totaling at least $78

million) is clearly beyond the bounds of any reasonable approximation of

Asarco's share of the alleged "problem" that is being remediated.6

"excess profits" from its unprotected workers concluding that the "talk of `excess profits'

[rather than lower price s to consumers] in any realistic sense is wholly speculative." Id. at

42. In the end, Justice Powell concurred that the Black Lung Act could withstand a facial

challenge, but "would not foreclose the possibility that a particular coal-mining concern,

in a proper case, may be able to show that the impact of the Act on its operations is

irrational." Id. at 42, n.9 .

And even the Turner Elkho rn majority agree d that it too would "face a m ore difficult

problem in applying" the irrebuttable presumption provisions of the law with respect to

miners "completely unaware of or affected by [their] illness." Id. at 46. Because Turner

Elkhorn was a facial challenge, the Court declined "to engage in speculation as to whether

such cases may arise." Id. In the case at bar, Asa rco is being held strictly liable, not for

any illnesses, but for the remote risk of cancer for persons who may be unaware of the risk,

or who could easily avoid the risk by not ingesting dirt. But because the health tests show

no elevated leve ls of arsenic or lead -- an obvious precondition to showing that one is even

faced with this h ypothetical risk -- the "inju ry" truly approach es the meta physical.

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To compare Turner Elkhorn more accurately to the instant case,

amicus submits that the following would be the more appropriate

scenario for deciding the constitutional questions: Assume that the

miners who had worked for Turner Elkhorn were all found to be in

perfectly good health for their age, because unlike their very early

predecessors who worked the mines without any masks and got very sick

from the coal dust, these miners wore protective masks. Assume further

that recent scientific studies suggested that their exposure to coal dust

over a period of time nevertheless raised the risk of their contracting lung

disease from the normal rate of general population from, for example, 30

out of 1,000,000 to 50 out of 1,000,000.

Assume further that an expensive drug was developed that could

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reduce the risk of contracting the disease by lowering the elevated level

to the normal population level. Assume further that Congress enacted

the Hypothetical Black Lung Disease Act that required Turner Elkhorn to

spend $78 million to purchase this drug not only for its miners, but for

all other healthy miners whose former employers went out of business.

Assume finally that the company was not allowed to rebut the

presumption that miners had elevated levels of coal dust, and thus, the

company was being held strictly liable.

What would the U.S. Supreme Court rule in such a case? The

retroactive application of such a law would certainly not be considered

"clearly just and reasonable" by Chancellor Kent, nor would it pass

muster under the Supreme Court's "justness or fairness" standards for the

Due Process and Takings Clauses.

The fatal flaw with Ecology's argument is that MTCA's newly

defined "harm" as emanating from a fearful sounding "hazardous waste,"

is nothing more than a remote and speculative risk of harm never

recognized in traditional tort law theories as a justification for the

imposition of liability, and thus, as the finder of fact concluded in this

case, could not have been foreseen by Asarco.

III. ASARCO COULD NOT HAVE FORESEEN UNDER

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THE COMMON LAW THAT IT WOULD BESUBJECT TO MASSIVE LIABILITY FORHYPOTHETICAL "INJURIES" FROM ITSEMISSIONS

The essence of Ecology's foreseeability argument can be

summarized by the following statement in its brief:

Just as the coal companies' general knowledge regarding healthhazards associated with working in coal mines helped to make thejustification for retroactive liability rational [in Turner Elkhorn],Asarco's general knowledge of health hazards associated withexposure to lead and arsenic helps make MTCA's justification forits retroactive liability rational.

Ecology Brief at 24. An examination of the common law and cases,

however, demonstrates that the key element in tort law liability --

foreseeability -- is tied to the concept of a legal and compensable injury.

Such injuries must be material and substantial rather than hypothetical.

See Restatement (Second) of Torts, § 822m, Comment g, p. 112 (1979)

("Practically all human activities unless carried on in a wilderness

interfere to some extent with others or involve some risk of

interference.")

And even where the injury is severe, liability will generally not

attach if the injury was unforeseeable. To be sure, the common law has

developed an exception of strict liability, such as engaging in dangerous

or hazardous activities; but even in that context, the courts were careful

7 See Klep sch v. Do nald , 4 Wash. 436 , 30 P. 991 (1892) (com pany not strictly lia ble

for death of man killed by rock crashing through his house from blasting operation; rule of

strict liability in Fletcher v. Rylands, L.R. 3 H.L. 330 (1868) "was n ever adopted in this

count ry as ap plied to inanim ate pro perty" ).

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about applying a no-fault basis of liability.7

As the trier of fact found, Asarco could not have foreseen that it

would be subject to multi-million dollar liabilities for remote,

speculative, and hypothetical "injuries" to the public's health today from

substances that the company stopped emitting into the environment

almost 80 years ago. FOF ¶ 78. That the "injuries" remain speculative to

this day is apparent by studies showing no elevated levels of arsenic or

lead in the residents of Everett. FOF ¶ 22. Yet the MTCA makes Asarco

strictly (as well as jointly and severally) liable for the hypothetical, so-

called "injuries" allegedly caused by its operations.

Ecology and its amici argue that tort case law at the time Asarco

operated the plant had held persons responsible for the damages caused

by their nuisance activity; accordingly, Asarco could have foreseen that

it could be held liable 80 years after it ceased operations for the "harm"

they caused, as defined by MTCA. These early cases relied on by the

parties are clearly distinguishable.

The cases relied on by Ecology and its amici deal with substances

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that in sufficient quantities, actually caused serious and measurable

harm, such as oil leaking into a neighbor's groundwater in Kinnaird v.

Standard Oil Co., 12 S.W. 937 (Ky. Ct. App. 1890), or the release of

poisonous fumes that caused "very great damage to, if not the total

destruction of, complainant's property, and is a menace to health" in

American Smelting & Refining Co. v. Godfrey, 158 F. 225, 229 (8th Cir.

1907) (emphasis added). The key feature in these cases is the presence

of an actual rather than theoretical or speculative harm. Thus, even the

mere exposure to offensive emissions or odors from a nearby factory do

not give rise to an action unless the plaintiff suffers a "real, material and

substantial injury" to himself or his property. The Columbus Gas Light &

Coke Co. v. Freeland, 12 Ohio 392, 400 (1861) (cited in Brief of U.S. at

19, n.14). Nothing remotely similar with respect to harm or damages

can be said to be evident in this case. No water wells in Everett have

been contaminated with dangerous levels of arsenic or lead; no one has

complained of any illnesses from the substances. There is no harm

alleged here. Rather, we are dealing with merely a small speculative risk

of future injury. In short, the nature of the "injury" being caused today

from Asarco's past emissions was never recognized as a legal

compensable injury in the common law.

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Accordingly, the trial court was clearly correct in concluding that

Asarco could not have foreseen the kind of massive and unprecedented

liability it is being subjected to on the basis of "injury" defined as a

remote risk of harm.

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CONCLUSION

For the foregoing reasons and those presented in the briefs of

Asarco, WLF urges this Court to affirm the judgment of the Superior

Court with respect to the offsite remediation and reverse with respect to

the onsite remediation.

Respectfully submitted,

Dale M. Foreman (WSBA # 6507) Daniel J. PopeoForeman, Arch, Dodge, Paul D. Kamenar Volyn & Zimmerman Washington Legal

Foundation124A N. Wenatchee Avenue 2009 Massachusetts Ave.,

N.W.Wenatchee, WA 98801 Washington, D.C.

20036(509) 662-9602 (202) 588-0302(Local Counsel)

Counsel for Amici Curiae

Date: April 30, 2001