Following the reasoning of the Supreme Court in Connecticut v. American Electric Power Co., Inc. (AEP), 546 U.S. ___ (No. 10-174, S. Ct. 2011), the U.S. District Court for the Eastern District of Washington ruled in January that federal common law nuisance claims filed by Washington residents living downstream and downwind of a Canadian metal smelter and fertilizer manufacturing facility must be dismissed, because CERCLA displaces the federal common law of nuisance. Barbara Anderson, et al. v. Teck Metals, 2015 BL 1624 (E.D. Wash. No. 13-CV-420, 1/5/15). Former and current residents of Northport, Washington filed a class action alleging that air emissions from a smelter located 20 miles upstream in British Columbia, Canada, and operated by Teck Metals, had resulted in tens of thousands of tons of zinc and lead, more than 1,000 tons of arsenic and cadmium, and 136 tons of mercury migrating downwind to their community, exposing them to the toxic materials.

The court dismissed the federal common law nuisance claims, holding that in AEP, the Supreme Court established that when a federal law displaces federal common law claims, those claims must be dismissed. Under AEP, the court ruled, the focus must be on liability for the release and threatened release of hazardous substances, not on whether the remedy of money damages was provided by the federal law. The court found that, via CERCLA, Congress “provided a ‘sufficient legislative solution’ to warrant a conclusion that CERCLA occupies the field to the exclusion of federal common law,” because it provides a comprehensive liability and cleanup scheme to address releases of hazardous substances. Although the federal common law nuisance claims were displaced, the case continues in order to address the plaintiffs’ negligence and strict liability claims.

For more information on toxic tort cases generally, and the effect of CERCLA on toxic tort claims, contact Steve O’Day or Andy Thompson.