In a case of first impression, the Eastern District of Washington recently ruled that CERCLA displaced federal common law public nuisance claims for alleged damages from the release of hazardous substances in smelter emissions. The case is an important example of potential defenses that may be available for entities facing common law damages claims that may be addressed by CERCLA or other federal statutes.
In Anderson, et al., v. Teck Metals, Ltd., CV-13-420-LRS (E.D. Wash. Jan. 5, 2015), the class action plaintiffs alleged that emissions from Teck Metals, Ltd.’s (“Teck Metals”) Canadian smelter were responsible for the health problems of U.S. residents in the Upper Columbia River Region. Among the plaintiffs’ numerous causes of action were public nuisance claims under federal common law. Teck Metals argued that the public nuisance claims must be dismissed because CERCLA, which addresses liability for contamination, “displaced” such claims.
Teck Metals’ displacement argument relied on the recent 9th Circuit opinion in Native Village of Kivalina v. ExxonMobil Corporation, 696 F.3d 849 (9th Cir. 2012). In the Kivalina case, the 9th Circuit Court of Appeals had ruled that the Clean Air Act and EPA action authorized by the Clean Air Act displaced the plaintiffs’ federal common law public nuisance claim for damages. In analyzing Teck Metals’ Motion to Dismiss, the Eastern District of Washington looked to the Kivalina case for the proper test for determining when congressional legislation displaces federal common law.
The Eastern District of Washington noted that the proper test is “simply whether the statute speak[s] directly to [the] question at issue.” The existence of laws generally applicable to the question at issue is not sufficient, and courts must make an issue-specific inquiry before finding that displacement exists. The crux of this inquiry is “whether Congress has provided a sufficient legislative solution to the particular [issue] to warrant a conclusion that [the] legislation has occupied the field to the exclusion of federal common law.”
Relying on the U.S. Supreme Court cases of Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) and Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1 (1981)), the Eastern District of Washington noted that the type of remedy asserted by the plaintiffs is not relevant to the applicability of the doctrine of displacement. Accordingly, the fact that the plaintiffs sought damages for personal injuries (which CERCLA does not provide a remedy for) was irrelevant to the court’s analysis of whether CERCLA displaced and precluded the plaintiffs’ federal common law public nuisance claims. As the court noted, “[j]udicial power can afford no remedy unless a right that is subject to that power is present.”
The plaintiffs argued that CERCLA’s legislative history proved that Congress rejected the inclusion of any statutory personal injury provisions and thus did not intend to “occupy the field” of personal injury liability caused by contamination. The court rejected this argument as too narrow and held that it improperly focused on the irrelevant factor of the type of remedy asserted. Instead, the court found that the “question at issue” was liability for the release and threatened release of hazardous substances. The court held that Congress had “spoken directly to” this issue by enacting CERCLA. Accordingly, the court concluded that CERCLA occupied the field to the exclusion of federal common law and the court dismissed the plaintiffs’ federal common law public nuisance claims.