Entrenching the Status Quo: The Ninth Circuit Uses Preemption Doctrines to Interpret CERCLA as Setting a Ceiling for Local Regulation of Environmental Problems

Barnhill, Alexandra Manchik
August 2004
Ecology Law Quarterly;2004, Vol. 31 Issue 3, p487
Academic Journal
The inadequacies of the federal and state hazardous waste cleanup statutes are almost as renowned as the high-profile incidents of pollution that spurred those laws' creation. Fireman's Fund v. City of Lodi gave the Ninth Circuit the chance to review a community's attempt to address those deficiencies. In that case, when its sole source of drinking water was contaminated, the City of Lodi supplemented federal and state law with a town ordinance that allowed more stringent cleanup. The plaintiff insurance companies, who were the target of the ordinance, challenged the ordinance on preemption grounds. Although the Ninth Circuit acknowledged municipalities' police powers to protect their community by holding that federal and state laws do not preempt the field, it limited that holding by determining that local enactments that enforce a more stringent cleanup standard are invalid because they conflict with the existing regulations' goals. This Note asserts three arguments suggesting that the Ninth Circuit's conflict preemption holding was erroneous: first, the ruling is inconsistent with CERCLA; second, it violates Supreme Court precedent; and third, it is contrary to the court's own rationale. The Note concludes that the Fireman's Fund ruling contravenes Congress's intent to allow lower levels of government to improve upon existing regulations. Instead, the decision entrenches the status quo by restricting municipalities' ability to protect their residents' health and safety; under Fireman's Fund, local legislation can only require polluters to clean up contamination to levels at or below those required by federal and state law, which are publicly recognized as inadequate.


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