A private party that claims to be injured by a release of hazardous substances often combines a CERCLA claim to recover response costs with common law claims for personal injury or property damage.  In May v Apache Corp. 2012 WL 1565474 (SD Tex. May 2012), the court provided a good discussion of when a federal court will hear both the CERCLA action (which must be brought in federal court) and the common law claims that are governed by state law.

Plaintiffs initiated an action in Texas state court alleging various state law causes of action arising out of defendants’ drilling operations.   Plaintiffs amended their complaint to include claims arising out of the release of hazardous substances, including a CERCLA claim.  Defendants removed the case to federal courts and asked the federal court to maintain jurisdiction over the state law claims by “supplemental jurisdiction.”  28 USC 1367(a).  Plaintiffs moved to remand (i.e. asked the court to return the case to state court) and the court remanded the state law claims to state court.

The court noted that many federal courts have exercised supplemental jurisdiction over state law claims when joined with CERCLA actions, citing McDonald v Timex Corp., 9 F. Supp.2d 120 (D. Conn. 1998); Lentz v Mason, 961 F. Supp. 709 (D. N.J. 1997); and City of New Orleans v Kernan, 933 F. Supp. 565 (E.D.La. 1996).  The court noted, however, that in each case, the exercise of supplemental jurisdiction was discretionary, not mandatory and a court may decline to exercise supplemental jurisdiction if the state law claim “substantially predominates” over the federal claim.

The court concluded that the state law claim predominates here because the state law claims would be entitled to a jury trial, while CERCLA claims would not, the state law claim would include numerous issues that are not related to CERCLA liability (e.g. a negligence claims requires proof of breach of a duty and proximate causation, neither of which is part of a CERCLA claim), and the case began in state court (which indicates that plaintiff defines its claim as primarily based on state law).

The case provides some guidance regarding when environmental claims will be in federal court and when they will be in state court.  To a large extent, the plaintiff controls the nature of its claim.  At the same time, removal to federal court remains an option for defendants and it is the federal court that determines whether it will keep state claims pursuant to supplemental jurisdiction or whether it will remand those claims.  The issue of which court provides the proper forum is often litigated and can take years to resolve.   A good example is the Second Circuit’s decision in In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 488 F.3d 112 (2d Cir. 2007), summarizing the numerous court battles over which court should hear th0se groundwater contamination cases.

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