Fort Ord Toxics Project v. CA. Envtl. Protection Agency

• Decision Date: 02 September 1999
• Docket Number: No. 98-16160,98-16160
• Citation: 189 F.3d 828
• Parties: (9th Cir. 1999) FORT ORD TOXICS PROJECT, INC.; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP; CURT GANDY; JOE MANAEA, Plaintiffs-Appellants, v. CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY; SUB. DEPARTMENT OF TOXIC SUBSTANCES CONTROL; JESSE HUFF, Director, Department of Toxic Substances Control, Defendants, and UNITED STATES DEPARTMENT OF THE ARMY; UNITED STATES DEPARTMENT OF DEFENSE, Real Parties in Interest-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 828

189 F.3d 828 (9th Cir. 1999)

FORT ORD TOXICS PROJECT, INC.; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP; CURT GANDY; JOE MANAEA, Plaintiffs-Appellants, v. CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY; SUB. DEPARTMENT OF TOXIC SUBSTANCES CONTROL; JESSE HUFF, Director, Department of Toxic Substances Control, Defendants, and UNITED STATES DEPARTMENT OF THE ARMY; UNITED STATES DEPARTMENT OF DEFENSE, Real Parties in Interest-Appellees.

No. 98-16160

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 15, 1999

Filed September 2, 1999

Charles C. Cadart, Boston, Massachusetts, for the plaintiffs appellants.

Elizabeth Ann Peterson, United States Department of Justice, Washington, D.C., for the real parties in interest-appellees.

Appeal from the United States District Court for the Northern District of California: Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-97-20681-RMW.

Before: Charles Wiggins, Ferdinand F. Fernandez, and Sidney R. Thomas, Circuit Judges.

WIGGINS, Circuit Judge:

Plaintiffs, two nonprofit groups and two individuals, sued California and federal government agencies in an effort to force the agencies to comply with a provision of California environmental law prior to conducting a Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") cleanup of the military installation at Fort Ord. The district court dismissed the suit, holding that CERCLA S 113(h), 42 U.S.C. S 9613(h), precludes jurisdiction.¹ We reverse.

I.

In February 1990, Fort Ord was placed on the Environmental Protection Agency's ("EPA") National Priorities List, a list of sites that are given priority in cleanup. That summer, the Army, the EPA, the California Department of Toxic Substances Control ("DTSC"), and the California Regional Water Quality Control Board entered into an agreement setting forth the procedures for a CERCLA remedial cleanup of Fort Ord. As part of this cleanup, and with DTSC's approval, the Army placed contaminated soil in a landfill on the base. In response, plaintiffs filed this action in state court against DTSC, the California Environmental Protection Agency, and the Army. Plaintiffs' complaint alleged that DTSC violated the California Environmental Quality Act ("CEQA") in failing to prepare an environmental impact statement prior to granting the Army the authority to deviate from the requirements of California's prohibition against land disposal of hazardous wastes. See Cal. Pub. Res. Code SS 21061. Plaintiffs requested a preliminary injunction against the Army's cleanup.

The Army removed the case to federal court. Plaintiffs moved to have the case remanded to the state court. The district court granted the motion with respect to the state defendants, but denied it with respect to the Army. The Army then moved to dismiss the lawsuit, invoking CERCLA S 113(h)'s jurisdictional bar. The district court granted the motion and dismissed the case. Plaintiffs timely appealed to this court. We review de novo the district court's dismissal for lack of subject matter jurisdiction. See, e.g. , Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994).

II.

Plaintiffs argue that the district court erred in dismissing their lawsuit on the basis of S 113(h)'s jurisdictional provision. First, plaintiffs claim that S 113(h) postpones jurisdiction only for claims that challenge CERCLA cleanups on the basis of state law that is "applicable or relevant and appropriate" ("ARAR") to the CERCLA cleanup. There is no dispute that the basis for plaintiffs' claim, CEQA, is not ARAR. Therefore, plaintiffs argue that S 113(h) is inapplicable. Second, plaintiffs claim that S 113(h) only postpones jurisdiction for challenges to CERCLA cleanups conducted under S 104 and S 106. The Fort Ord cleanup, they argue, is a S 120 cleanup and, therefore, falls outside the purview of S 113(h). Third, plaintiffs claim that, even if S 113(h) postpones federal court jurisdiction over their lawsuit, it does not remove jurisdiction from state courts. Therefore, they claim that the district court erred in not remanding their lawsuit to the state court in which it originally was brought. We find no merit in plaintiffs' first and third arguments, and we dispose of these claims initially, before addressing plaintiffs' strongest argument.

A. Non-ARAR claims and S 113(h)

Plaintiffs argue that the plain language of S 113(h) shows that their lawsuit which is based on non-ARAR state law, is not affected by the jurisdictional bar.

No federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 of the United States Code (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 121 (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 104, or to review any order issued under section 106(a) . . . .

42 U.S.C. S 9613(h) (internal citations omitted) (emphasis added). Under plaintiffs' reading of S 113(h), federal courts have no jurisdiction over challenges to CERCLA cleanups when those challenges are based on state law that is ARAR. But, they argue, where the basis for the lawsuit is non-ARAR state law, S 113(h) does not apply.

Congress passed S 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." McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir. 1995) (hereinafter "MESS"). But as plaintiffs point out, S 113(h) is a limited provision; that Congress did not intend to foreclose all potential lawsuits is beyond question. See id. at 330. Nevertheless, we find plaintiffs' interpretation of S 113(h)'s scope to be nonsensical.

Under S 121 of CERCLA, a cleanup must comply with all "legally applicable or relevant and appropriate . . . requirement[s]," including any "State environmental" requirements that are "more stringent" than the governing federal requirements. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 671 (5th Cir. 1989). This means that the federal government is obligated to ensure that CERCLA cleanups comply with state environmental law that is ARAR. Because CERCLA only requires that cleanups comply with state law that is ARAR, it clearly imposes no obligation to comply with nonARAR state law when conducting a CERCLA cleanup. See United States v. Denver, 100 F.3d 1509, 1513 (10th Cir. 1996). This simple truth exposes the sheer vacuity of plaintiffs' argument. Under plaintiffs' reading of S 113(h), plaintiffs cannot postpone a CERCLA cleanup by claiming that the CERCLA cleanup is ignoring or violating binding legal requirements, but plaintiffs can postpone a CERCLA cleanup by claiming that the CERCLA cleanup is ignoring or violating irrelevant or inapplicable legal requirements.

We do not believe that Congress intended, nor do we believe that the statutory language mandates, such an absurd rule of law. We believe Congress chose the "applicable or relevant and appropriate" language for S 113(h) because Congress wanted to protect CERCLA cleanups from disputes regarding the applicable environmental standards. At the same time, Congress did not want S 113(h) to serve as a shield against litigation that is unrelated to disputes over environmental standards. Our decision in MESS is instructive in this regard. See 47 F.3d at 325. In MESS we noted that S 113(h) "amounts to a `blunt withdrawal of jurisdiction' " from any "challenges" to a CERCLA cleanup. Id. at 328. But S 113(h) does not preclude all lawsuits, only those that are "directly related to the goals of the cleanup itself." Id. at 330. For example, a lawsuit brought to enforce minimum wage requirements would be insufficiently related to the goals of the cleanup to qualify as a "challenge" to the cleanup, and such a suit would not implicate S 113(h). Id.

We believe the MESS court's discussion of what constitutes a "challenge" to a CERCLA cleanup sheds light on the meaning of the "applicable or relevant and appropriate" language in S 113(h). This language was not intended to allow litigants to postpone important cleanups by basing their lawsuits on inapplicable or irrelevant state environmental law. Rather, this language was meant to postpone federal jurisdiction over lawsuits that go to the heart of the cleanup itself.

B. State court jurisdiction

Plaintiffs also argue that, even if S 113(h) precludes federal court jurisdiction over their lawsuit, it does not remove state court jurisdiction. Plaintiffs point out that S 113(h) reads "No Federal court shall have jurisdiction . . . ." 42 U.S.C. S 9613(h) (emphasis added). Thus, under plaintiffs' reading of S 113(h), the district court could not both find that it lacked jurisdiction over their lawsuit and also deny their motion to have the case remanded to the state court.

We reject plaintiffs' argument. In passing S 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. We believe Congress only removed federal court jurisdiction from "challenges" to CERCLA cleanups because only federal courts shall have jurisdiction to adjudicate a "challenge" to a CERCLA cleanup in the first place. Under S 113(b), federal "district courts have exclusive original jurisdiction over all controversies arising under" CERCLA. 42 U.S.C.S 9613(b). Plaintiffs concede that their lawsuit is a "challenge" to a CERCLA cleanup, yet they claim that their lawsuit is not a"controversy arising under" CERCLA. We reject plaintiffs' cramped interpretation of S 113(b). As noted by one district court, by granting district courts exclusive jurisdiction over "all controversies arising under" CERCLA, Congress used...