In yet another recent case involving the intersection of CERCLA and state law, the United States District Court for the Eastern District of Washington held that CERCLA legislatively displaced federal common law public nuisance claims for damages arising out of environmental contamination. The case is Anderson v. Teck Metals, Ltd., No. CV-13-420-LRS, 2015 WL 59100 (E.D. Wash. Jan. 5, 2015). The defendant in the case was a smelter located in British Columbia, Canada, and the plaintiffs were residents of Washington who alleged personal injuries from the smelter's air emissions. Among several other legal theories, the plaintiffs asserted a federal common law public nuisance claim for damages. Although the court rejected the defendant's argument that only a state entity may assert a federal common law public nuisance claim, it agreed with the defendant that such a claim was legislatively displaced by CERCLA.
The court decided the legislative displacement question by determining whether CERCLA addressed the nature of the hazard at issue. Id. at *9 ("[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."). Examining CERCLA, the court concluded that the harm of which plaintiffs complained is one to which Congress has spoken directly by way of CERCLA. The fact that CERCLA does not itself provide remedies for personal injury was irrelevant to the analysis for legislative displacement, the court explained. Id. at *10. It was sufficient that "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 responsible." Id.
The plaintiffs presumably included federal common law public nuisance claims in their complaint because, as the court also held, "Washington's public nuisance statute cannot be applied extraterritorially" to reach the defendant's activities in Canada. Id. at 12.
This court's decision follows several other notable cases in recent years involving the intersection of CERCLA and state-law claims. For example, the Third Circuit held in 2013 that a party may sue other parties for contribution under CERCLA predicated on a settlement of state-law environmental cleanup liability with a state even if the settlement resolves only state-law liability, as opposed to CERCLA liability. See Third Circuit Decision Allowing CERCLA Contribution Claim Based On Settlement Of State-Law Liability Sets Up Split With Second Circuit, EnvironmentalLawStrategy.com (Sept. 4, 2013). Also in 2013, a federal district court in New Hampshire held that CERCLA's "Petroleum Exclusion" preempts state-law contribution claims for costs incurred remediating petroleum-contaminated soil at a CERCLA site. See CERCLA Preempts State-Law Claims Arising Out Of Petroleum Contamination, EnvironmentalLawStrategy.com (Oct. 15, 2013).
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