NINTH CIRCUIT ISSUES MAJOR CERCLA DECISION FINDING THAT ARRANGER LIABILITY CANNOT BE BASED ON CONTAMINATION DEPOSITED ON A SITE BY THE WIND

Pakootas v. Teck Cominco Metals, No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th Cir. July 27, 2016). The Ninth Circuit issued an important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) decision that will likely have broad impact in limiting the scope of arranger liability. The Confederated Tribes of the Colville Reservation and the state of Washington (collectively, plaintiffs) brought suit against Teck Cominco Metals, Ltd. (Teck), a smelter located ten miles north of the U.S.-Canada border and alleged to have contaminated a site on the upper Columbia River. Under plaintiffs’ theory, the smelter contaminated the Columbia River site by emitting hazardous substances, including lead, cadmium, and mercury, into the air, which were then carried by air currents to the contaminated site. A three-judge panel was asked to determine if a smelter that releases hazardous substances through a smokestack can be held liable for cleanup costs and natural resources damages under CERCLA, 42 U.S.C. § 9607(a) (3), where the released substances contaminate land or water located downwind. All parties agreed that “the answer turns on whether the smelter owner-operator can be said to have arranged for the ‘disposal’ of those hazardous substances within the meaning of CERCLA.” Id. at *4. The Ninth Circuit concluded that CERCLA liability could not be based on the gradual spread of contaminants via aerial deposition without human intervention—i.e., a defendant could not be said to have arranged for the “disposal” of hazardous substances under CERCLA that were emitted to the air and then contaminated land or water located downwind. Id.

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NINTH CIRCUIT ISSUES PRECEDENTIAL OPINION RESTRICTING THE NAVY’S PEACETIME USE OF SONAR

Natural Resources Defense Counsel, Inc., et al. v. Pritzker, et al., No. 14-16375, 2016 U.S. App. LEXIS 13021 (9th Cir. July 15, 2016). In a significant decision, the Ninth Circuit invalidated the National Marine Fisheries Service’s (Fisheries Service) 2012 final agency decision (Final Rule) permitting the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (LFA sonar). At certain frequencies, LFA sonar can harm marine mammals and/or cause short-term disruption or abandonment of natural behavior patterns. Plaintiffs, environmental advocates including the Natural Resources Defense Council, the Humane Society of the United States, and Jean-Michel Cousteau, among others, brought suit against the Fisheries Service, the Department of Commerce, the Navy, and the National Oceanic and Atmospheric Administration (collectively, defendants) on the grounds that the Final Rule did not comply with the Marine Mammal Protection Act (the Act) because it failed to include mitigation measures that would have the least practicable adverse impact on marine mammals. The district court granted summary judgment to defendants. On appeal, the Ninth Circuit reversed, holding that the Final Rule was required to include mitigation measures that “‘effect[] the least practicable adverse impact on’ marine mammal species, stock, and habitat, as is specifically required by the [Act]” and that the Fisheries Service failed to demonstrate that the selected mitigation measures met this standard. Id. at *44–45.

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CALIFORNIA SUPREME COURT AFFIRMS PUBLIC ENTITIES’ RIGHT TO CONDUCT ENVIRONMENTAL TESTING ON PRIVATE PROPERTY BUT REVISES STATUTE TO ALLOW JURY TRIAL ON DAMAGES

Property Reserve, Inc. v. Superior Court; Nichols  v. Superior Court; and Department of Water Resources Cases, 1 Cal. 5th 151 (2016). The California Supreme Court clarified that public entities have the right to conduct environmental studies and geological testing on private property in order to determine the suitability of such property for government projects, including to assess the potential effects of proposed projects on biological, environmental, geological, and archeological resources as required by state and federal environmental laws, including the California Environmental Quality Act, the National Environmental Policy Act, the California Endangered Species Act, the Federal Endangered Species Act, the Federal Clean Water Act, and the California Porter-Cologne Water Quality Act.  However, the court exercised its authority to reform—rather than invalidate—the relevant statutes to provide property owners the opportunity for a jury trial on damages caused by such activities.

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