High Court’s Displacement Doctrine Extends to CERCLA Georgetown International Environmental Law Review

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High Court’s Displacement Doctrine Extends to CERCLA

By Rachel Fullmer, Staff Contributor

For the first time, a federal district court has determined that CERCLA[1] displaces federal common law nuisance claims statute-wide, demonstrating the potential for broad applications of the Supreme Court’s displacement doctrine in Amercian Electric Power Co. v. Connecticut, (“AEP”).[2] The case, Anderson v. Teck Metals, Ltd.,[3] was decided in the U.S. District Court for the Eastern District of Washington in early January. The Anderson decision marks the first time that a court has directly determined “whether CERCLA, by itself, is sufficient to displace a federal common law public nuisance claim for damages.”[4]

Background

In Anderson, residents of Northport, a town in Washington State’s Upper Columbia River Region, brought state and federal common law claims based on theories of strict liability, nuisance, and negligence. The plaintiffs sought damages and declaratory relief for harms in connection with toxic discharges and emissions from the Defendants, Teck Metals (“Teck”), a Canadian company that owns and operates a metal smelter and fertilizer production facility on the Columbia River. The complaint offered a detailed history of the site’s contamination with hazardous waste, dating back to the smelter’s establishment in 1896. In addition to documenting routine slag discharges and toxic air emissions, the complaint also detailed several incidents of accidental releases of mercury, sulfur dioxide, hydrofluoric acid containing lead, and other caustic effluent discharges into the Columbia River. The plaintiffs alleged that these pollutants have caused residents of Northport to experience disproportionately elevated occurrences of disease, “including cancer, inflammatory bowel disease, neurological disease, respiratory disease, and endocrinological disorders.”[5]

“In addition to documenting routine slag discharges and toxic air emissions, the complaint also detailed several incidents of accidental releases of mercury, sulfur dioxide, hydrofluoric acid containing lead, and other caustic effluent discharges into the Columbia River.”

The Environmental Protection Agency (“EPA”) has also been involved in addressing hazardous contamination in the same area since 1999 when the Colville Confederated Tribes petitioned the Agency to conduct an environmental assessment of the Upper Columbia River Site. The assessment revealed elevated levels of hazardous contaminants and heavy metals, including arsenic, cadmium, copper, lead, mercury, zinc, dioxins, furans, and polychlorinated biphenyls (PCBs). The EPA found that this contamination is largely due to Teck’s discharge of an estimated 15 million tons of metallic slag into the Columbia River over the course of a 100-year period. In 2001, the EPA determined that a Remedial Investigation and Feasibility Study (“RI/FS”) was warranted. The EPA attempted to negotiate with Teck before issuing a Unilateral Administrative Order (“UAO”) in 2003, ordering a study of the site consistent with CERCLA. When Teck did not act, EPA initiated work at the site. In 2006, EPA entered into a settlement agreement with Teck for costs from the RI/FS consistent with the National Contingency Plan.

The Anderson Decision

Teck asked the court to dismiss the plaintiffs’ personal injury claims, arguing, among other things, that CERCLA displaced any federal common law liability that may arise in connection with the release of hazardous substances. The court agreed, relying heavily on the Supreme Court’s rationale in AEP for displacement under the Clean Air Act. AEP has been applied before and was particularly prominent in the reasoning of Native Village of Kivalina v. ExxonMobil Corp., the Ninth Circuit’s review of federal common law claims for damages in connection with greenhouse gases.[6] With Kivalina as a model, the court applied AEP as a Chevron-style test, holding that, “[t]he test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute speak[s] directly to [the] question at issue.”[7]

“Teck asked the court to dismiss the plaintiffs’ personal injury claims, arguing, among other things, that CERCLA displaced any federal common law liability that may arise in connection with the release of hazardous substances.”

Like the plaintiffs in Kivalina, the Anderson plaintiffs attempted to distinguish their claims by arguing that CERCLA doesn’t provide a remedy for personal injury. The plaintiffs relied on CERCLA’s legislative history to show “that Congress rejected the inclusion of any statutory personal injury provisions within CERCLA and thus did not intend to occupy the field of personal injury liability caused by contaminants.”[8] The court rejected this outright, holding that: “[t]his is too narrow a view of the question at issue. . . .”[9] Rather than focusing its inquiry on the remedies available under the statute, the court looked to the boarder statutory purpose, finding that under CERCLA, “[t]he question at issue is liability for the release and threatened release of hazardous substances.” In broadly applying AEP’s rationale to CERCLA, the Anderson court presented a template for the application of this displacement doctrine to environmental laws beyond the Clean Air Act.

“Rather than focusing its inquiry on the remedies available under the statute, the court looked to the boarder statutory purpose, finding that under CERCLA, ‘[t]he question at issue is liability for the release and threatened release of hazardous substances.’”

Notably, however, the court rejected Teck’s attempts to further narrow the application of federal common law claims that are not displaced by congressional action. Teck invited the court to adopt a narrow view of the circumstances in which federal common law claims can arise, arguing that previous cases recognized such claims only in interstate disputes between state entities. Teck relied on the Ninth Circuit’s opinion in National Audubon Society v. Department of Water,[10] which drew its reasoning primarily from foundational Supreme Court cases Georgia v. Tennessee Copper Co.[11] and Illinois v. City of Milwaukee, Wisconsin.[12] In National Audubon Society, the Ninth Circuit pointed out that both Milwaukee I and Georgia v. Tennessee Copper Co., “involved a state suing sources outside its domain which were causing pollution within the state.”[13] The Anderson court rejected the idea that National Audubon Society could be read to preclude federal common law claims beyond the narrow context of interstate pollution disputes directly involving state entities.[14]

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[1] Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9600, (“CERCLA”).

[2] American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).

[3] Anderson v. Teck Metals, Ltd., 2015 WL 59100, at *1 (E.D. Wash. Jan. 5, 2015).

[4] Id., at *9.

[5] Complaint, 2013 WL 6908174 (E.D.Wash.).

[6] See Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012).

[7] Anderson, 2015 WL 59100, at *9, (quoting Kivalina, 696 F.3d at 856).

[8] Id., at *10.

[9] Id., (internal quotations omitted).

[10] National Audubon Society v. Department of Water, 869 F.2d 1196 (9th Cir.1988).

[11] Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

[12] Illinois v. City of Milwaukee, Wis., 406 U.S. 91 (1972) (“Milwaukee I”).

[13] National Audubon Society, 869 F.2d at 1205.

[14] Anderson, 2015 WL 59100, at *8. (“National Audubon Society cannot be read for the proposition that only state entities can pursue a federal common law public nuisance claim.”)

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