Ninth Circuit Rejects CERCLA Liability For Air Emissions

Do air emissions of hazardous substances create a cleanup liability under the Superfund? In the closely watched case of Pakootas, et al. v. Teck Cominco Metals, Ltd., ¹ the Ninth Circuit said, "no," becoming the highest court to rule upon this novel theory of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The decision is the latest iteration of a long-running dispute over a smelter located approximately ten miles north of the Canadian border in British Columbia. Previously, plaintiffs Washington State and an Indian tribe won a precedential decision that a foreign-based facility can be held liable under CERCLA for discharging slag in a river that crosses into the United States. Plaintiffs then amended their complaint to allege that the facility also arranged for disposal under CERCLA by emitting hazardous air emissions from its smokestacks to be carried by the wind and deposited on the Upper Columbia River Superfund