Fifth Circuit Opinion Confirms Federal Courts Closed for Cleanup Claims Against the State of Texas; State Courts Still an Option?
In a recent opinion, United States Oil Recovery Site Potentially Responsible Parties Group (“USOR Site PRP Group”) v. Railroad Commission of Texas, No. 17-20361, 2018 WL 3649653, (5th Cir. Aug. 1, 2018) the United States Court of Appeals for the Fifth Circuit confirmed that sovereign immunity bars claims in federal court by private parties against states and state agencies under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “Superfund”), 42 U.S.C. § 9601 et seq. The opinion leaves open, however, the issue of claims under Texas state law against the State of Texas.
The issue of a state’s sovereign immunity under CERCLA has been a surprisingly contentious issue, addressed by two Supreme Court opinions. In Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), the United States Supreme Court held that Congress had the authority to override a state’s immunity when legislating pursuant to the Commerce Clause. The Court further held that CERCLA was such Commerce Clause legislation, and the language of the statute evidenced a clear intent by Congress to abrogate state sovereign immunity from claims by private parties. Seven years later, in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Court revisited the issue of Congress’s authority to override state sovereign immunity and held that the Commerce Clause does not give Congress the power to override a state’s immunity under the Eleventh Amendment, and explicitly reversed the contrary holding in Union Gas. While not a CERCLA case, the ruling in Seminole Tribe rejected the fundamental basis for the Union Gas decision.
The Fifth Circuit Decision
In light of the Seminole Tribe decision, the Fifth Circuit had little trouble in holding the State of Texas enjoyed sovereign immunity from the CERCLA claims asserted by the plaintiff. Moreover, based on a variety of factors, the court determined that the various State agencies and public universities that were named as defendants were arms of the State and therefore also benefited from sovereign immunity. Nor had any of these entities waived immunity from a federal suit.
In addition to federal CERCLA claims, the plaintiff also asserted pendent state law claims under the Texas Solid Waste Disposal Act (“TSWDA”), Tex. Health & Safety Code § 361.001 et seq. The Fifth Circuit held these state law claims must be dismissed as well, since there was no basis for federal court jurisdiction over these claims once it was determined that the federal CERCLA claims were barred by sovereign immunity. Left unaddressed, however, is the issue of the ability for private parties to sue the State of Texas in state court under the TSWDA.
The explicit language of the TSWDA would appear to waive sovereign immunity in suits in state court against the State of Texas. In the only case to address the issue, the court stated that by including “government” in the definitions of persons who could be responsible for solid waste, “[t]he [T]SWDA clearly and unambiguously expresses the Legislature’s intent to waive state sovereign immunity.” Celanese Corp. v. Coastal Water Authority, 475 F. Supp. 2d 623, 631 (S.D. Tex. 2007), aff’d sub nom. 620 F.3d 529 (5th Cir. 2010). No Texas state court has yet ruled on the issue, but it is instructive that in acknowledging the argument in the USOR Site PRP Group case the State did not attempt to directly refute it but instead argued successfully that the lack of federal jurisdiction rendered this issue irrelevant.
It remains to be seen if the USOR PRP Group will pursue claims in state court. It’s ability to pursue such claims will in part hinge on the limitations period that would apply to such claims and when that limitations period is triggered, which are currently unsettled issues for claims under the TSWDA. Sovereign immunity, however, would not appear to be a bar to such claims by the USOR PRP Group, or other similarly situated plaintiffs in the future.