Ryan Whaley Coldiron Shandy

Although the Supremacy Clause in the U.S. Constitution provides that federal laws are the “supreme Law of the Land,” CERCLA does not expressly preempt state law. Rather, CERCLA has three provisions explicitly preserving the rights of states to impose additional liability for the release of a hazardous substance. 42 U.S.C. §§ 9614(a), 9652(d), and 9659(h). In the Tenth Circuit, CERCLA will only preempt a state law if that state law “stands as an obstacle to the accomplishment of congressional objectives as encompassed in CERCLA.” New Mexico v. General Electric Co., 467 F.3d 1223, 1244 (10th Cir. 2006). The Tenth Circuit’s standard is called “conflict preemption.”

In Quapaw Tribe v. Blue Tee Corp., No. 03-0846 (N.D. Okla. Feb. 23, 2009) (Eagan, J.), the tribe sued the successors of mining companies pursuant to various causes of action for natural resource damage (NRD) under Oklahoma law. The defendants claimed that CERCLA preempted the state law NRD claims. The federal court held that “CERCLA does not preempt state laws that provide remedies unavailable under CERCLA.” While the tribe may not use Oklahoma law and CERCLA to recover the same removal and assessment costs, the tribe’s claims were limited to damages to “restore, replace, or acquire . . . natural resources” damaged by defendants’ public nuisance. Accordingly, the tribe’s request for damages complies with CERCLA §107(f) and does not conflict with CERCLA’s goal of restoring and replacing contaminated natural resources.