The US District Court for the Eastern District of Washington recently held in Anderson v. Teck Metals, Ltd. that CERCLA displaces federal common law claims for public nuisance based upon the standard for displacement set out by the US Supreme Court in American Elec. Power Co., Inc. v. Connecticut and the Ninth Circuit in Native Village of Kivalina v. Exxon Mobil Corp.

This is not the first time that CERCLA has been found to displace federal common law claims (see, e.g.Lykins v. Westinghouse Elec. Corp., 1988 U.S. Dist. LEXIS 3609 (E.D. Ky. Feb. 29, 1988); U.S. v. Price, 523 F. Supp. 1055 (D.N.J. 1981)), but these earlier cases generally discussed CERCLA in context with other statutes.  As Judge Suko notes in the Anderson v. Teck Metals, Ltd. opinion, “[n]o court has held whether CERCLA, by itself, is sufficient to displace a federal common law public nuisance claim for damages.”

The case, Anderson v. Teck Metals, Ltd., arose from claims by the residents of the Upper Columbia River Region (UCRR) of Washington State that the defendant, Teck Metals, Ltd.’s, Canadian lead-zinc smelting operations were causing an increase in cancer and other medical ailments due to air emissions and water discharges containing a number of pollutants. The plaintiffs, current and former residents of the UCRR, brought claims for negligence, strict liability, and state and federal nuisance, and sought certification of a class action. Teck Metals moved to dismiss, arguing, among other things, that CERCLA had displaced the plaintiffs’ federal common law nuisance claim over its releases of hazardous substances.

Previously, the US Supreme Court ruled that the Clean Air Act’s comprehensive program for regulating industrial air emissions had displaced federal common law claims for the abatement of greenhouse gas emissions in AEP. In its seminal opinion, the Supreme Court described a “simple” test for deciding whether federal common law claims had been displaced by statute, holding that “whether congressional legislation excludes the declaration of federal common law is simply whether the statute speaks directly to the question at issue.” However, the Ninth Circuit in Native Village of Kivalina v. Exxon Mobil Corp noted that, “[a]lthough plainly stated, application of the test can prove complicated.”  In Kivalina, the plaintiffs acknowledged the ruling in AEP, but sought to distinguish their greenhouse gas related claims by seeking only damages (a remedy not provided for in the Clean Air Act), as opposed to abatement of the defendant’s emissions. The Ninth Circuit nonetheless affirmed dismissal, holding that, “under current Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies.”

Like the plaintiffs in Kivalina, the Anderson plaintiffs sought to distinguish their claim from the one dismissed in AEP. Instead of focusing on the nature of the remedy sought, however, the plaintiffs focused on the nature of the injuries alleged, arguing that their claim was one for personal injuries and therefore fell outside the ambit of CERCLA. The Eastern District of Washington found this “too narrow a view of the ‘question at issue.’” Rather than focus on the injuries alleged, the district court chose instead to focus on the conduct of the defendant, holding that “[t]he ‘question at issue’ is liability for the release and threatened release of hazardous substances. This is the harm of which Plaintiffs complain.” When framed in light of the defendant’s conduct, the Court had little trouble finding that CERCLA had occupied the field: “Congress has spoken directly to this issue via CERCLA and has provided a ‘sufficient legislative solution’ to warrant a conclusion that CERCLA occupies the field to the exclusion of federal common law. By way of CERCLA, Congress has provided a comprehensive liability and remediation scheme to address releases and threatened releases of hazardous substances by making polluters strictly liable for response costs to clean up the hazardous substances, and liable for natural resource damages to remedy harm to the environment for which they are responsive.”

Judge Suko’s opinion in Anderson provides a useful framework for applying AEP outside the context of the Clean Air Act. While AEP established a clear test for displacement, as the Ninth Circuit has noted, application of this test can be difficult in light of the flexibility plaintiffs are accorded in framing their claims and developing new theories of liability. By focusing on the conduct alleged, and not on the nature of the injuries suffered, Judge Suko’s opinion, if adopted by other courts, will help narrow the debate in future cases and make clear in contexts outside the Clean Air Act when federal common law claims have been displaced and where there is still a place for federal common law claims to fill the interstices in environmental statutes.