Trial to Perdition: the Ninth Circuit's "Emission" Omission Disposition

December 23, 2016

A protracted case in the Ninth Circuit, Pakootas v. Teck Cominco Metals, Ltd., has pitted numerous stakeholders, including two national governments, against one another in a battle to define the meaning of “disposal” within the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). At issue were one hundred years of aerial emissions of heavy metals and other hazardous substances that were produced in Canada by a lead smelting and refining operation, but had accumulated on an Indian reservation in the state of Washington. Relying on two key Ninth Circuit cases, and the lack of the word “emission” among the statutorily enumerated methods of “disposal,” a panel of the Ninth Circuit held in July that aerial emissions of hazardous materials could not give rise to CERCLA liability.
This holding is problematic for a number of reasons. Most fundamentally, it misapplied the circuit’s earlier precedent, which did not require the result announced in Pakootas. In doing so, the court excluded an entire media of pollution from a remedial statute that Congress intended to be construed expansively. As a practical matter, the court’s Pakootas holding provides a strong argument for industrial polluters seeking to evade CERCLA liability, and possibly removes the only judicial means of addressing transnational air pollution entering the United States from neighboring countries and beyond.