Obamacare Survives But Will CERCLA or RCRA?

A majority of justices found that the individual mandate of the Affordable Care Act violated the Commerce Clause  of the U.S. Constitution in National Federation of Independent Businesses v Sebelius. The Commerce Clause is the underpinning for the jurisdiction of the federal government to enact and enforce environmental laws such as CERCLA and RCRA. Thus, it is possible that this decision will be used to challenge the constitutionality of these laws or at least their application to solely intra-state contamination.

Owners or operators of sites where contamination consists solely of local soil or groundwater contamination have occasionally argued that the federal government could not impose cleanup liability under CERCLA. In   US v Olin Corporation, 927 F. Supp. 1502  (S.D. Ala. 1996). The decision was later reversed by the Eleventh Circuit.

On several occasions, the Nevada district court landmark RCRA VI case of Voggenthaler v Maryland Square LLC–perhaps believing that contamination that occurs in Las Vegas stays in Las Vegas- has repeatedly expressed has repeatedly expressed its opinion in open court and even in dicta in several of its opinions that it believed that there was no federal jurisdiction for a purely local plume but was constrained from dismissing the case because an earlier ruling had been appealed to the Ninth Circuit.

Look for defendants who are alleged to be CERCLA owners or operators to use the Supreme Court decision to argue  that CERCLA or RCRA are either per se unconstitutional  or cannot be used to seek cost recovery or require cleanup at such sites where the contamination is localized on the theory that such contamination has  no impact on interstate commerce. Indeed, one of the law firms in the Voggenthaler case is already using the judge’s questioning of federal jurisdiction as marketing tool. It would seem, though,  that such an argument would not pass the “red face” test when the defendants are alleged to be generators since interstate transport of wastes has been held to be interstate commerce.    

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