Burnette v. Carothers

Nos. 98-7835(L), 98-9003(CON) (192 F.3d 52, 49 ERC 1247) (2d Cir. September 13, 1999)

ELR Digest

The court holds that homeowners' citizen suit against various state officers under the Federal Water Pollution Control Act (FWPCA), the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as well as their claim for response costs under CERCLA, are barred by the Eleventh Amendment. The court first holds that the citizen suit provisions of the FWPCA, RCRA, and CERCLA clearly do not abrogate the state's sovereign immunity, and, therefore, the state officers are entitled to immunity from suit in federal court. These provisions do not unequivocally express Congress' intent to abrogate sovereign immunity and subject states to suit. The court additionally holds that the homeowners' claims are not qui tam actions that place the United States as the real party in interest because the statutes at issue do not grant citizens the right to sue on behalf of the United States nor do they establish a formula for recovering civil penalties. Last, the court holds that the homeowners cannot seek response costs from the state under CERCLA. Because the homeowners do not claim to be potentially responsible parties, recovery under § 113(f) is not available. Moreover, Congress did not abrogate the state's Eleventh Amendment immunity when it enacted CERCLA. The statute was enacted under the U.S. Commerce Clause, and any provision in it that makes a state liable to private parties is unenforceable.

The full text of this opinion is available from ELR (7 pp., ELR Order No. L-103).

Counsel for Plaintiffs
Ralph G. Burnette Jr.
Law Offices of Ralph G. Burnette Jr.
82 Rye Hill Cir., Somers CT 06071
(860) 749-7462

Counsel for Defendants
Robert B. Teitelman, Ass't Attorney General
Attorney General's Office
55 Elm St., Hartford CT 06141
(860) 808-5318

[30 ELR 20124]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]