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« Tenth Circuit breaks ranks on Crime Victim’s Rights Act | Main | Colorado Supremes Poised to Address Defenses in Colorado’s Premises Liability Statute »

Tenth Circuit Chooses Textualism Over Functionalism

 By Scott Valent

In Cannon v. Gates, 538 F.3d 1328 (10th Cir. 2008), the Tenth Circuit Court of Appeals held that Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) precluded the Cannons’ (plaintiffs) CERCLA claims against the U.S. Government . The Cannons’ dispute with the Government stemmed from the Government’s long-running delays in cleaning up the Cannons’ property, located near the Dugway Proving Grounds in Dugway, UT, after the Government conducted weapons training exercises on the property during World War II. Because the Government had failed to take action to clean up the hazardous waste that remained on the Cannons’ property, the Cannons filed two claims against the Government pursuant to the Solid Waste Disposal Act  to compel the Government to remove its hazardous waste from their property.

The Tenth Circuit ruled that the Government’s “Engineering Evaluation/Cost Analysis (EE/CA)” survey fell within the statutory definition of a removal action commenced pursuant to CERCLA. CERCLA § 113(h) explicitly precludes challenges to removal actions conducted pursuant to CERCLA until they are completed. Because the Tenth Circuit opined that the EE/CA survey constituted a selected removal action pursuant to CERCLA, and that the action had yet to be completed, the court dismissed the Cannons’ CERCLA claims.

The Tenth Circuit’s ruling in Cannon conflicts with the Seventh Circuit Court of Appeals’ holding in Frey v. EPA, 403 F.3d. 828 (7th Cir. 2005). In Frey, the Seventh Circuit applied a functionalist approach to interpret the scope of CERCLA § 113(h) by looking to the underlying legislative purpose of CERCLA § 113(h). After examining the legislative history, the Frey court limited the extent to which CERCLA § 113(h) precludes claims arising under CERCLA by holding that the Government was required to point to an “objective indicator” of an ongoing removal action before a plaintiff’s CERCLA claims could be precluded by CERCLA § 113(h).

The Tenth Circuit’s holding in Cannon is troubling for those who champion private landowners’ rights against the Government. As a result of the Tenth Circuit’s decision, the Cannons have been effectively prevented by the Government from inhabiting and leasing out the mineral interests on their land, as the danger of unearthing deadly hazardous wastes has rendered their land unappealing to mineral developers.

The Tenth Circuit’s decision is perhaps even more troubling  when one considers the underlying Congressional purpose for enacting CERCLA § 113(h). The House Reports that accompany CERCLA § 113(h) illustrate that the section was enacted to expedite CERCLA cleanup actions by delaying judicial review of CERCLA actions until the action was completed, not to provide a liability shield for the Government when it is the one who is financially liable for the CERCLA cleanup action.

Those who advocate a strict textualist approach to environmental statutory interpretation  will likely be pleased with the Tenth Circuit’s holding in Cannon, even if its holding conflicts with the legislative purpose of CERCLA § 113(h). Because the statutory definition of a removal action under CERCLA includes “such action as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances,” textualists will likely argue that the statute speaks for itself, and therefore the Cannons’ CERCLA claims were properly dismissed by the Tenth Circuit.

As it currently stands, the Cannons will be forced to wait for the Government to take physical action to remove its hazardous waste from their property before they can enjoy the benefits of their own land. Whether this removal takes another 60 years or longer will be solely up to the discretion of the Government. On November 21, 2008, the Mountain States Legal Foundation filed a petition for certiorari on behalf of the Cannons with the U.S. Supreme Court in an attempt to overturn the Tenth Circuit’s decision in Cannon. If the Supreme Court grants certiorari, proponents of functionalism and textualism alike will be keeping close tabs on the outcome of the case. 

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