For the first time, a court has held determined that CERCLA, by itself, is sufficient to displace a federal common law nuisance claim for damages. In a January 5, 2015, decision, the United States District Court for the Eastern District of Washington dismissed federal common law public nuisance claims brought by a group of residents seeking damages for personal injury allegedly caused by the release of hazardous substances from the defendant’s metal smelter and fertilizer manufacturing facility. Anderson v. Teck Metals, Ltd., No. 13-420 (E.D. Wash. Jan 5, 2015). The court held the plaintiffs’ claims were displaced by CERCLA.
The plaintiffs alleged that hazardous emissions from defendant’s facility traveled to and settled into the Upper Columbia Valley, where the plaintiffs lived, and caused the plaintiffs to suffer from various ailments. Defendants argued that the plaintiffs’ federal common law public nuisance claims were displaced by CERCLA, which already addresses the release of hazardous substances. In a different, earlier action, the 9th Circuit had ruled that CERCLA applied to hazardous substances from defendant’s facility that were released into the Upper Columbia Valley. The Upper Columbia Valley is a federal Superfund site for which a Remedial Investigation and Feasibility Study is currently in progress. The plaintiffs argued their claims were not precluded because CERCLA does not include any provisions that address personal injury.
The court, relying on 9th Circuit precedent and the Supreme Court’s decision in Connecticut v. Am. Elec. Power Co., Inc., 131 S.Ct. 2527 (2011), noted that the appropriate test for whether a federal public nuisance claim is displaced by federal statute is whether the “statute speaks directly to the question at issue.” Contrary to the plaintiffs’ assertions, the court explained, the question at issue was not whether the defendant could be held liable for personal injuries caused by the release of hazardous substances. The court relied on the Supreme Court’s conclusion that “the type of remedy asserted is not relevant to the doctrine of displacement.” The court, therefore, concluded that “the fact [that] CERCLA does not provide damages remedy for personal injuries is irrelevant to whether CERCLA displaces and precludes Plaintiffs’ federal common law nuisance claims.” The court determined the true “question at issue” was liability for the release or threatened release of hazardous substances, which is covered by CERCLA. The plaintiffs were, therefore, precluded from bringing their federal common law public nuisance claims.