United States: "You're Out Of Here!" -- CERCLA (Superfund) Federal Preemption Of State Environmental Claims In State Courts

Last Updated: October 13 2016
Article by Joshua J. Anderson and John E. Van Vlear

The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C § 9601 et seq. ("CERCLA"), commonly referred to as "Superfund," is a federal statute that provides funding and cost-recovery to address our nation's worst hazardous-waste sites. While CERCLA generally vests United States District Courts with exclusive original jurisdiction over all related controversies, section 113(h) of the Act delays such jurisdiction while the United States Environmental Protection Agency supervises or undertakes environmental response action plans. What impact does this delayed federal jurisdiction have on state law claims brought in state courts? Short answer: "You're out of here!" Litigants are precluded from bringing claims in state court that "challenge" environmental response actions under CERCLA during the pendency of those actions.

In Fort Ord Toxics Project, Inc., et al. v. California Environmental Protection Agency, et al., the Ninth Circuit Court of Appeals held that section 113(h) preemption bars state law claims that "challenge" a CERCLA cleanup. ((9th Cir. 1999) 189 F.3d 828.) In Fort Ord, the private plaintiffs sued California and federal agencies in state court seeking to require them to comply with California's environmental laws prior to conducting a CERCLA cleanup at the former military installation. (Id. at 829.) The case was removed to federal court and the district court dismissed. In affirming the decision of the district court, the Ninth Circuit provided the following analysis of why section 113(h) precludes federal and state court actions: "Congress passed § 113(h) in order to 'protect[] the execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort.'" (Id. at 831, citing McClellan Ecological Seepage Situation v. Perry (9th Cir. 1995) 47 F.3d 325, 329.) In short, section 113(h) "amounts to a 'blunt withdrawal of jurisdiction' from any 'challenges' to a CERCLA cleanup," precluding all lawsuits that are "directly related to the goals of the cleanup itself." (Id.)

On appeal, the Fort Ord plaintiffs pointed to the wording of the statute in arguing that "even if §113(h) postpones federal court jurisdiction over their lawsuit, it does not remove jurisdiction from state courts." (Id. at 332 (emphasis added).) The Ninth Circuit disagreed: In passing § 113(h), Congress did not intend to preclude dilatory litigation in federal courts but allow such litigation in state courts;

Congress' purpose could be thwarted just as easily by allowing state courts to issue injunctions halting CERCLA cleanups. . . .

. . . Congress enacted § 113(h) in order to promote the "swift execution" of CERCLA cleanups. . . . We believe congressional intent is best effectuated by reading § 113(b)'s exclusive jurisdiction provision to cover any "challenge" to a CERCLA cleanup. Thus, § 113(h), by postponing the jurisdiction of federal courts, postpones jurisdiction over CERCLA challenges from the only courts that have jurisdiction to hear such challenges. (Id. (emphasis added).)

Other Federal cases have similarly held that CERCLA bars state law claims. See, e.g., McClellan, supra, 47 F.3d at 330 [holding section 113(h) bars federal actions brought under state environmental statutes that challenged an ongoing CERCLA cleanup]; and New Mexico v. Gen. Elec. Co. (D.N.M. 2004) 322 F.Supp.2d 1237, 1271 [section 113(h) bars State of New Mexico from prosecuting claims for "statutory and common-law public nuisance and negligence under New Mexico law"], aff'd, New Mexico v. Gen. Electric Co. (10th Cir. 2006) 467 F.3d 1223, 1250 ["we will dismiss for want of jurisdiction under § 9613(h) the State's claim for monetary damages arising from the alleged inadequacy of the EPA's selected remedy in the South Valley.")

California state courts are heeding the federal preemption mandate. In 2010, a San Bernardino County Superior Court addressed section 113(h) preemption in Willis v. City of Rialto, Case Nos. CIVSS708001 and CIVSS708002, an action related to the federally-controlled CERCLA cleanup plans being developed for the Rockets, Fireworks, and Flares Superfund Site in Rialto, California, where primarily perchlorate has contaminated soil and groundwater. The Superior Court dismissed Willis' petition for a writ of mandate, which sought to compel the City of Rialto to enforce certain California Environmental Quality Act ("CEQA") mitigation measures. In 2012, the Court of Appeal for the Fourth Appellate District affirmed the Superior Court's dismissal in an unpublished decision, holding in part that the action was barred by section 113(h).

It is important to note further that section 113(h) bars lawsuits challenging federally-controlled CERCLA response actions until the action plans are complete. (See Frey et al. v. EPA et al. (7th Cir. 2001) 270 F.3d 1129, 1134; Taylor Farm Ltd. Liability Co. v. Viacom, Inc. (S.D. Ind. 2002) 234 F.Supp.2d 950, 975-976.) "The obvious meaning of this statute is that when a remedy has been selected, no challenge to the cleanup may occur prior to the completion of the remedy." (Schalk v. Reilly (7th Cir. 1990) 900 F.2d 1091, 1095.) This means simply that section 113(h) "calls flatly for restraint from suit when 'remedial action' (period) remains to be done." (Frey, supra, 270 F.3d at 1133-1134.)

As frustrating as this situation may be for private plaintiffs who wish to bring a damages claim, e.g., for nuisance or trespass, in state court, the courts have opened a window after closing a door. That is, as the Fort Ord decision makes clear, section 113(h) is an explicit bar against "challenges" to environmental response actions under CERCLA during the pendency of those actions that are "directly related to the goals of the cleanup itself." (Fort Ord, supra, 189 F.3d at 831.) Therefore, state court plaintiffs must focus their pleadings and related proof on demonstrating that their claims are not "challenges" to the federally-controlled plans. Technical-legal interplay is crucial here and motion practice will likely involve expert evidence well before the designation or discovery of such professionals. Be ready!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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