Cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq., frequently include a garden variety of pendent state law claims including nuisance, trespass, negligence, contribution and equitable indemnity. State law claims in CERCLA cases are so common that they are sometimes overlooked while the focus remains on the CERCLA cost recovery and declaratory relief claims. More recently, however, environmental litigants are attacking the inclusion of these state law claims at an early juncture through preemption challenges. These challenges are finding an increasingly welcome reception in the courts. Along with the publication of the Fireman’s Fund Insurance Company v. City of Lodi, 303 F.3d 928 (9th Cir. 2002), in the Ninth Circuit, there appears to be a flurry of activity in courts finding preemption by CERCLA of state laws allowing for the recovery of damages and costs associated with environmental contamination. Judges interested in streamlining pleadings and avoiding the confusion of conflicting state law standards for cost recovery also are upholding recent precedent from the Circuits preventing litigants from circumventing CERCLA’s contribution restrictions for potentially responsible parties (“PRPs”) by utilizing state laws allowing for joint and several recovery. For example, recent court decisions have found preemption, first, where state law claims conflict with CERCLA’s contribution scheme and, second, where state law claims seek damages or injunctive relief that conflict with CERCLA’s requirements for consistency with the National Contingency Plan (“NCP”) and achieving a CERCLA quality cleanup.

Pursuant to the Supremacy Clause of the United States Constitution, U.S. CONST., Art. VI, cl. 2., “federal law can preempt and displace state law through: (1) express preemption; (2) field preemption . . . ; and conflict preemption.” Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003). In the case of CERCLA, courts have acknowledged that CERCLA neither expressly preempts state law, nor implicitly preempts the field of state hazardous waste regulation. 42 U.S.C. § 9614(a); see also In re Reading Co., 115 F.3d 111, 1117 (3rd Circ. 1997) (determining that, “[i]n enacting CERCLA, Congress did not explicitly preempt all state law, nor did it create a comprehensive scheme of regulation leaving no room for supplementation”). However, courts, as did the Ninth Circuit in Fireman’s Fund, have held that CERCLA preempts state laws on the third ground for preemption – conflict preemption. “[F]ederal conflict preemption [exists] where ‘compliance with both the federal and state regulations is a physical impossibility,’ or when the state law stands as an ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Fireman’s Fund, 302 F.3d at 943.

In Fireman’s Fund, the Ninth Circuit addressed the issue of whether CERCLA preempted the City of Lodi’s (“Lodi”) Municipal Environmental Response and Liability Ordinance (“MERLO”). The two insurers challenging MERLO argued that MERLO conflicted with CERCLA because MERLO prevented PRPs from suing Lodi for contribution, thus insulating Lodi from liability, even if Lodi were found to be a PRP. The Ninth Circuit determined that, if Lodi were later found to be a PRP, then MERLO was preempted to the extent that it insulated Lodi from contribution liability. Fireman’s Fund, 302 F.3d at 946-47. Furthermore, the Ninth Circuit added, “litigants may not invoke state statutes in order to escape the application of CERCLA’s provisions in the midst of hazardous waste litigation.” Id. at 947, n. 15.

As a result of the Ninth Circuit’s Fireman’s Fund decision, the Eastern District of California, based upon it’s determination that Lodi was a PRP, preempted the MERLO provisions insulating the City from contribution liability and allowing the City to impose joint and several liability upon other PRPs. Fireman’s Fund Ins. Co. v. City of Lodi, 296 F.Supp.2d 1197, 1213-1215 (E.D. Cal. 2003). With respect to MERLO’s contribution protection, the Eastern District held that MERLO conflicts with CERCLA because “the lack of contribution rights available under MERLO against Lodi inappropriately insulates Lodi, a PRP, from contribution claims arising out of response costs at the site.” Id. at 1214. With respect to MERLO’s joint and several liability provisions, the Eastern District stated, “[s]uch an unprecedented assumption of power by a PRP directly ‘intefere[s] with CERCLA’s PRP cost allocation scheme’ causing inefficiency and delay in the remediation process and prolongation of a litigation process.” Id. at 1215.

Subsequent to the Ninth Circuit’s decision in Fireman’s Fund, other courts have similarly preempted state law claims that conflict with CERCLA’s contribution scheme. For example, in XDP, Inc. v. Watumull Properties, 2004 U.S. Dist. LEXIS 12057 (D. Ore. 2004), plaintiff XDP, Inc. (“XDP”), filed suit against a number of defendants, including Watumull Properties Corporation (“Watumull”), for “contribution, indemnity, and damages under [CERCLA, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972, et seq., and Oregon’s Superfund Law,] as well as common law theories of negligence, trespass, and nuisance.” XDP, 2004 U.S. Dist. LEXIS at *4. XDP and Watumull filed cross-motions for summary judgment on each of their respective liabilities under the asserted federal and state law claims. Id. at *4. The court granted Watumull’s motion for summary judgment on XDP’s common law claims of restitution, indemnification, nuisance, trespass, and negligence, stating:

Id. at *30; see also Morton Int’l, Inc. v. A.E. Staley Manufacturing Co., 343 F.3d 669, 685 (3rd Cir. 2003) (holding that the district court’s “grant of summary judgment to Tenneco on the common law contribution claim was appropriate because that claim is preempted by CERCLA section 113(f); Niagara Mohawk Power Corp. v. Consolidated Rail Corp., 291 F.Supp.2d 105, 137 (N.D.N.Y. 2003) (stating, “[s]tate law contribution claims are preempted as against parties liable under CERCLA”).

In addition to preempting state law claims that conflict with CERCLA’s contribution scheme, courts have also preempted state law claims that seek damages or injunctive relief that conflict with CERCLA’s requirements of consistency with the NCP and achieving a CERCLA-quality cleanup. In City of Rialto, et al., v. United States Department of Defense, et al., EDCV 04-0079-VAP (SGLx), the District Court for the Central District of California, in an unpublished Memorandum and Order, preempted the state law remedies of nuisance, public nuisance, negligence, and continuing trespass to land on conflict preemption grounds. In this case, the plaintiffs, the City of Rialto and the Rialto Utility Authority, filed suit against numerous defendants, consisting of various political subdivisions and corporations, alleging claims under CERCLA, RCRA, and California state law on the grounds that the defendants’ activities allegedly caused perchlorate to be released into the environment affecting the plaintiffs’ water supply system. The defendants filed a motion to dismiss the plaintiffs’ state law nuisance, public nuisance, negligence, and continuing trespass claims for damages and injunctive relief on the ground that they were preempted by CERCLA because they would allow the plaintiffs to recover CERCLA response costs under their state law claims without complying with the NCP, thus conflicting with CERCLA’s goals of ensuring a CERCLA-quality cleanup.

Relying largely on the Ninth Circuit’s Fireman’s Fund decision, the Central District stated, “CERCLA permits both states and their political subdivisions to enact hazardous waste regulations and pursue additional remedies, so long as those remedies do not conflict or interfere with the accomplishment and execution of [CERCLA’s] full purpose and objective.” City of Rialto, EDCV 04-0079-VAP (SGLx), Mem. & Order, dated April 15, 2004, at 24:1-6 (quoting Fireman’s Fund, 302 F.3d at 943). The court held:

Id. at 24:18-25 (citing Fireman’s Fund, 302 F.3d at 943). The court then granted the defendants’ motion to dismiss, allowing the plaintiffs leave to amend their complaint to “clarify that they seek remedies through their state law tort claims that are not available under CERCLA, and furthermore, do not conflict or interfere with the Act’s objective of securing ‘CERCLA-quality’ cleanups.” Id. at 25:2-7 (citing Fireman’s Fund, 302 F.3d at 943); see also XDP, 2004 U.S. Dist. LEXIS at *30, supra (stating “CERCLA prevents claimants from seeking compensation under state law theories for the same removal costs that are available under CERCLA”).

In State of New Mexico v. General Electric Company, 2004 U.S. Dist. LEXIS 12624 (D.N.M. 2004), the District Court for the District of New Mexico also touched on the preemption of state law claims by CERCLA.[1]

[1] In General Electric , the plaintiffs dismissed their CERCLA claims in their entirety and, in plaintiffs' Consolidated Complaint, plaintiffs sought only those damages that were otherwise not recoverable pursuant to CERCLA. General Electric , 2004 U.S. Dist. LEXIS at *107-110.