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United States v. Freeman

ELR Citation: 18 ELR 20832
Nos. No. CIV-86-748E, 680 F. Supp. 73/27 ERC 1383/43 Fed. Appx. 233, (W.D.N.Y., 02/25/1988)

The court holds that the Eleventh Amendment precludes suits by private parties against a state in federal court for indemnification and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the language of the 1986 CERCLA amendments and the legislative history indicate that Congress intended to abrogate the states' sovereign immunity to federal suits brought by private parties where a state had contributed to the release of hazardous waste. The court holds, however, that Congress does not have the power to unilaterally revoke the states' Eleventh Amendment immunity by virtue of its authority under the Commerce Clause to regulate interstate commerce. Case law holding that Congress has authority to unilaterally subject a state to federal suit has been limited to suits involving laws enacted pursuant to §5 of the Fourteenth Amendment. One case suggesting otherwise can be distinguished from the present litigation in that the costs of maintaining hazardous waste suits would be a substantial infringement of state sovereignty and New York in this case had no choice but to exercise its police powers and assume control of the property. Prohibiting private citizens from suing the state does not render CERCLA meaningless, since the state may be sued by private parties in the state claims court and by the federal government in federal court. The court holds that the state did not consent to a waiver of its sovereign immunity by assuming control of a hazardous waste site and declaring it a crime scene, even if the state were considered an operator of the site within the meaning of CERCLA. The state took what it believed to be a necessary police action, and its control over the site ended two years prior to enactment of the 1986 CERCLA amendments in which Congress indicated its intent to abrograte the states' immunity.

Counsel for Defendant/Third-Party Plaintiff
David L. Roach
Blair & Roach
Suite 403, 170 Franklin St., Buffalo NY 14202
(716) 856-9181

Counsel for Third-Party Defendants
E. Gail Suchman, Ass't Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330