February 22, 2023

May A Court Take Judicial Notice of Gravity?

Posted on February 22, 2023 by Seth Jaffe

Earlier this month, United States District Court Judge Stephen Wilson held that NL Industries was not liable under CERCLA for air emissions of lead because such emissions did not constitute “disposal” within the meaning of CERCLA.  I’m going to give Judge Wilson a pass, both because there was an arguably binding 9th Circuit precedent and because of CERCLA’s general incomprehensibility. 

However, whether one blames Judge Wilson or the 9th Circuit panel in Pakootas v. Teck Cominco Metals, something appears to have gone seriously awry.  It’s not totally clear why Judge Wilson (or the 9th Circuit) concluded that “disposal” does not include air emissions.  Although not a great fit, air emissions through a stack would seem to constitute a “discharge”.

It may be that the definition, which was – foolishly, I might note – borrowed from the Solid Waste Disposal Act, refers to the “discharge … of any solid or hazardous waste into or on any land or water….”  Judge Wilson does not specifically state that a discharge into air therefore does not fall within the statutory definition, but he does note that the definition does not include “passive migration”.

However, when lead particles are discharged through a stack, should we think of it as “passive migration” when those particles ultimately settle into land or water or should we think of it as the inevitable consequence of the gravitational interaction of the lead particles and the earth’s surface.  For a court that cited the old shibboleth that CERCLA “generally must be construed liberally to accomplish its … goals”, it wouldn’t be much of a stretch to conclude that air emissions of lead particles necessarily constitute “disposal … into or on any land or water”.

I haven’t gone back and looked at how Pakootas has fared in other circuits, but I can certainly imagine other circuits reaching a different conclusion.  And it’s not just a moot question.  Given the ubiquity of PFAS and the number of cases we’re now seeing where PFAS contamination is alleged to have resulted from air emissions, the issue is likely to arise in other cases.

It will be interesting to see how courts outside the 9th Circuit Court resolve this issue.   In the meantime, I can’t help but think of the wise words of famous baseball umpire Bill Klem.  I like to think of this of this as the first example of a fact-finder taking judicial notice of the existence of gravity.