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Fort Ord Toxics Project v. California EPA

Citation: 30 ELR 20081
No. No. 98-16160, 189 F.3d 828/(9th Cir., 09/02/1999)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113(h) does not bar a district court's jurisdiction over environmental groups' California Environmental Quality Act action against state agencies for failing to prepare an environmental impact statement before granting the U.S. Army the authority to place contaminated soil in a landfill on an Army base. The court first rejects the groups' argument that CERCLA § 113(h) is inapplicable to the case. Their interpretation of § 113(h)'s scope is nonsensical. The court next holds that it was proper for the district court to refuse to remand the action to state court. In passing § 113(h), Congress did not intend to preclude dilatory litigation in federal courts but allow such litigation in state courts. Congress only removed federal court jurisdiction from challenges to CERCLA cleanups because only federal courts have jurisdiction to adjudicate a challenge to a CERCLA cleanup in the first place.

The court then holds, however, that the district court erroneously dismissed the case. CERCLA § 113(h) applies only to cleanups conducted under the authority of § 104, not cleanups, like that at the Army base, conducted under § 120. CERCLA's jurisdictional bar only removes jurisdiction to review any challenges to removal or remedial actions under § 104. Because the present cleanup at the Army base is a remedial action conducted pursuant to § 120, § 113(h) is inapplicable

Counsel for Plaintiffs
Charles C. Caldart
National Environmental Law Center
29 Temple Pl., Boston MA 02111
(617) 422-0880

Counsel for Defendants
Elizabeth Ann Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fernandez and Thomas, JJ.