Environmental Lawyer Blog

On Monday, the highest court in the land held in American Electric Power Co., Inc. v. Connecticut that federal common law nuisance claims relating to climate change are displaced (or “preempted” for you traditionalists out there) by the Clean Air Act (CAA) and Environmental Protection Agency (EPA) action authorized by the CAA. The case began in 2004 when eight states and New York City sued American Electric Power Company, Inc. and three other private electric companies as well as the Tennessee Valley Authority for federal common law nuisance as well as state tort claims. (It was quickly consolidated with a similar case brought by non-profit environmental land trusts.) The plaintiffs’ federal common law nuisance claim was based on their contention that, as the “five largest emitters of carbon dioxide in the United States,” the defendants’ actions resulted in a “substantial and unreasonable interference with public rights.” That’s the “what”… here’s the “why”…
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This week, the Ninth Circuit ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not give a federal district court jurisdiction to adjudicate claims for past noncompliance with an order issued by the Environmental Protection Agency (EPA). The decision, Pakootas v. Teck Cominco Metals, Ltd., affirms that CERCLA’s citizen suit provision cannot be used to second guess an ongoing CERCLA cleanup action.

From 1905 to 1995, slag from defendant Teck Cominco Metals Limited’s (Teck Cominco) smelter located in British Columbia was dumped into the Columbia River, ten miles north of the border with Washington. The pollution flowed downstream from Canada into the United States. In 1999, parties petitioned EPA to investigate the environmental contamination in the Columbia River and Lake Roosevelt. In 2003, EPA determined that the site was eligible for inclusion on CERCLA’s so-called “Superfund List” as a top priority for cleanup.
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