Ninth Circuit Rejects Application of CERCLA to Aerial Emissions

In the long-running saga of efforts by the State of Washington and the Confederated Tribes of the Colville Reservation to attach CERCLA liability to a smelter in British Columbia, the smelter owner, Teck Industries, won a significant ruling. In Pakootas v. Teck Cominco Metals, Ninth Circuit Court of Appeals rejected plaintiffs’ efforts to expand their claims beyond slag discharges to the Columbia River to include aerial emissions from the smelter’s smokestacks.

After finding liability for the slag discharges, the district court had allowed amendment of the initial complaint to include the emissions even though it initially denied the amendment as untimely. The court then certified its ruling on the emission issue for interlocutory appeal. On July 27, 2016, the Ninth Circuit reversed the district court ruling.

In a prior ruling in 2006, the Ninth Circuit had affirmed a denial of a motion to dismiss, holding that although the initial smelter discharges to the Columbia River occurred in Canada, contaminants in the slag moved downstream and were “re-released” in the US, meaning that application of CERCLA to the contamination in the US did not amount to trans-boundary application of U. S. law. Likewise, the Ninth Circuit’s refusal to extend that ruling to air emissions did not turn on questions of international law, although the Government of Canada did file an amicus brief raising sovereignty issues.

Instead, the opinion limited itself to the interpretation of “disposal” in the statute (where CERCLA simply says “’disposal shall have the meaning provided in [42 U.S.C. 6903]” (i.e., in RCRA). That approach is consistent with two prior Ninth Circuit rulings, including an en banc decision, in which the court read the language in CERCLA and RCRA to exclude aerial emissions from “disposal.”

This is unlikely to be the last word on the question. Apart from the transboundary issue, the imposition of CERCLA liability based on smokestack emissions at US facilities has not been unusual. And the court’s decision expressly states that the plaintiffs’ argument for a broader interpretation was “reasonable enough,” and on a blank slate, the panel might have found it persuasive.

The court also added a footnote regarding the effort by the U. S. to assert Skidmore deference, which, unlike Chevron deference based on an agency’s interpretation of a statute through regulations, is based on less formal agency interpretations in the course of applying a statute. In rejecting the U. S. effort, made in a post-argument filing, the court noted that it would have to not only consider the application of Skidmore deference, it would also have to decide whether that deference trumped a prior judicial interpretation, something the court declined to do on less than full briefing.

With those issues highlighted, it is highly likely that en banc consideration will follow, if not Supreme Court review.