Pakootas, et al v. Teck Cominco Metals, Ltd. (II)

Ninth Circuit Holds that CERCLA Does Not Permit “Arranging for Disposal” Liability for Air Emissions

U.S. Chamber's Position: 

In its coalition brief, the U.S. Chamber urged the U.S. Court of Appeals for the Ninth Circuit to clarify that CERCLA does not allow “arranger liability” for emissions of air pollutants, even if they eventually settle on land or in water. In this case, plaintiffs sued a Canadian smelter under CERCLA for allegedly emitting certain air pollutants that later came to rest on land or water in the U.S., which the plaintiffs claim constitutes “arranging” for the disposal on land of hazardous substances.

The brief warned that the plaintiffs’ theory, if adopted by the Ninth Circuit, would greatly expand the scope of CERCLA and expose companies to unforeseeable liability for virtually even trace amounts of air emission that might at some point settle on land, even where the companies have devoted great effort and financial resources to ensuring that their air emissions are in full compliance with local, state, and federal air laws, including the Clean Air Act.

This brief was filed jointly with the National Mining Association, National Association of Manufacturers, and American Chemistry Council.

William M. Jay, Michael S. Giannotto, Andrew Kim, and Jaime A. Santos of Goodwin Procter LLP served as co-counsel for the amici with the U.S. Chamber of Commerce in this case.

Case Outcome: 

The Ninth Circuit rejected the plaintiffs’ theory of liability, holding that the emission of hazardous substances into the air that later settle on land or in waterways—“i.e., the gradual spread of contaminants without human intervention”—does not qualify as arranging for disposal under CERCLA.    

Procedural History: 

U.S. Chamber amicus brief filed 8/11/2015.

Argued 4/6/2016.

Decided 7/27/2016.