Opinion
1:02-cv-1340-LJM-WTL
October 8, 2003
ORDER ON DEFENDANT'S MOTION FOR JUDGMENT SECOND CLAIM FOR RELIEF
This matter comes before the Court on defendant's, Union Carbide Corporation, by and through its indemnitor, Praxair, Inc. (collectively "Union Carbide"), Motion for Judgment on Plaintiffs Second Claim for Relief. Plaintiff, the Consolidated City of Indianapolis (the "City"), filed this action against Union Carbide under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or the "Superfund"), 42 U.S.C. § 9601 et seq., and the Indiana Environmental Legal Actions Statute ("ELA"), Ind. Code § 13-30-9-1 et seq. Union Carbide now moves for judgment on the City's second claim for relief, a claim for damage to natural resources. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. BACKGROUND
Some background information is necessary to frame the issue before the Court. In its complaint, the City alleges that Union Carbide released hazardous substances into the surface or subsurface soil or groundwater of a site (the "Pogue's Run Site") in Marion County. Comp. ¶ 11. The City, which had purchased the Pogue's Run Site from Union Carbide, incurred substantial costs in evaluating, removing, and remediating the hazardous substances, and seeks to recover those past and future costs. Id. ¶¶ 10-12. The City asserts that the response costs were "necessary costs of response" within the meaning of Section 107(a)(4)(B) of CERCLA, 42 U.S.C. § 9607(a)(4)(B), and reasonable within the meaning of Indiana Code § 13-30-9-2. Id. ¶¶ 12-13. Specifically, the City asserts the following three claims for relief: (1) recovery of response costs; (2) damage to natural resources; and (3) recovery of reasonable costs and attorney's fees. In the instant motion, Union Carbide seeks judgment on the pleadings with regard to the second claim, arguing that the City is not authorized to bring such a claim.II. MOTION FOR JUDGMENT ON THE PLEADINGS STANDARD
Rule 12(c) of the Rules of Civil Procedure provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." In considering a motion for judgment on the pleadings, courts employ the same standard as that applied to a motion to dismiss under Rule 12(b). See N. Ind. Gun Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). A motion will be granted only if it appears beyond a doubt that the non-movant cannot prove any facts that would support a claim for relief. See N. Ind. Gun, 163 F.3d at 452. In determining whether judgment on the pleadings is proper, the Court accepts as true all facts alleged in the complaint and draws all reasonable inferences from the pleadings in favor of the non-movant. See Gillman v. Burlington N. Ry. Co., 878 F.2d 1020, 1022 (7th Cir. 1989).
III. DISCUSSION
Union Carbide argues that it is entitled to judgment on the City's second claim for relief because the City, a municipal corporation which is a political subdivision of the State of Indiana, is not a person designated to seek recovery for natural resource damages under either CERCLA or the relevant Indiana Code provisions. In response, the City maintains that it is properly viewed as a "State" within the meaning of Section 107 of CERCLA, and asserts that Indiana common law recognizes an action for damages arising from pollution of land or water.
A. CERCLA NATURAL RESOURCE DAMAGES CLAIM
CERCLA authorizes recovery of "damages for injury to, destruction of, or loss of natural resources." 42 U.S.C. § 9607(a)(4)(C). Liability for natural resource damages "shall be to the United States Government and to any State" and "[t]he President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural resources to recover such damages." 42 U.S.C. § 9607(f)(1).
Relying on several district court cases, the City contends that the Court should define the term "State" broadly to include political subdivisions of states. See City of New York v. Exxon Corp., 697 F. Supp. 677, 684 (S.D.N.Y. 1988) (concluding that CERCLA definition of "State" was broad enough to encompass municipalities); City of New York v. Exxon Corp., 633 F. Supp. 609 (S.D. N.Y. 1986) (same); Town of Boontown v. Drew Chem. Corp., 621 F. Supp. 663 (D.N.J. 1985) (same).
However, as Union Carbide argues, the 1986 enactment of the Superfund Amendments and Reauthorization Act ("SARA") casts doubt on those district court decisions, and the overwhelming weight of post-SARA authority holds that municipalities cannot bring natural resource damages actions unless they have been authorized by the state. As a district court in Massachusetts reasoned:
Prior to SARA, a policy-driven, expansive interpretation of the word "State," designed to include local governments, was the only way a municipality could bring a natural resource damages action under CERCLA. In SARA, Congress provided an express means for states to bring natural resource damage action by permitting the states to designate "natural resource trustees." 42 U.S.C. § 9607(f). . . . Thus, presumably, municipalities may now, under appropriate circumstances, seek designation of a municipal representative to pursue natural resource damages claims on behalf of or as a "natural resource trustee." SARA thereby undermined the driving assumption in Drew Chemical and Exxon: that a broad interpretation of "State" was necessary to permit municipalities to present such claims.Town of Bedford v. Raytheon Co., 755 F. Supp. 469 (D. Mass. 1991). See also Fireman's Fund Ins. Co. v. City of Lodi, CA, 302 F.3d 928, 944 n. 14 (9th Cir. 2002) (collecting cases) ("In the wake of the 1996 SARA amendments to CERCLA, these district courts have uniformly held that a municipality may not bring a CERCLA cause of action `as a public trustee' of a state's natural resources unless the municipality has been appointed by the governor of its respective state.").
As numerous courts have noted, Congress did not include political subdivisions like municipal corporations within its definition of "State" when it drafted CERCLA. Congress defined "State" in the following way:
The terms "United States" and "State" include the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction.42 U.S.C. § 9601(27). Consistent with the plain language of CERCLA and the weight of authority on the issue, the Court holds that a municipal corporation like the City may not pursue a CERCLA natural resource damages action unless it has been granted that authority by the state. In the instant case, the State of Indiana has not designated the City as a "natural resource trustee" that may bring a natural resource damages action. Accordingly, the Court GRANTS Union Carbide's Motion for Judgment with regard to the CERCLA natural resource damages claim.
B. STATE LAW NATURAL RESOURCE DAMAGES CLAIM
The City also maintains that it can recover natural resource damages under Indiana common law. According to the City, "Indiana common law recognizes an action for remedy of damages arising from pollution or water." Pl.'s Brief in Opposition at 4. In support of this argument, the City cites three cases from the early 1900s. See Muncie Pulp Co. v. Martin, 72 N.E. 882 (Ind. 1904); Muncie Pulp Co. v. Koontz, 70 N.E. 999 (Ind. 1904); Cleveland, C., C St. L.R. Co. v. King, 55 N.E. 875 (Ind.Ct.App. 1900).
The City's reliance on Martin, Koontz, and King is misplaced. Those cases all involved recovery for damages to a private party's person or property. On the other hand, natural resource damages actions, as defined by CERCLA and Indiana's ELA, are suits based on damages to public/government-controlled natural resources. As Union Carbide argues, "Natural resource damages are premised on public trust doctrines and equitable principles that have no comparable analog in private party actions at common law." Def.'s Reply at 7. Because there is no Indiana common law action that is comparable to a natural resource damages claim, the Court rejects the City's contention that it may pursue its natural resource damages claim under any common law theory.
CERCLA provides:
The term "natural resources" means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson-Stevens Fishery Conservation and Management Act [ 16 U.S.C.A. § 1801 et seq.]) any State or local government, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe.42 U.S.C. § 9601(16).
The City's second claim for relief also fails under Indiana's ELA. Outside of a few exceptions not applicable here, the ELA's natural resource damages section tracks CERCLA's analogous section, holding responsible parties liable for damaging Indiana's natural resources "in the same manner and to the same extent" that they would be liable under CERCLA. Ind. Code 13-25-4-8. Nothing in the ELA indicates that it altered CERCLA's definition of "State" to allow municipal corporations to bring natural resource damages actions. Rather, as the Seventh Circuit has noted, outside of limited exceptions not applicable here, Indiana "appears to have contemplated the complete adoption of federal CERCLA law to govern the extent of liability under its statute." United States v. Navistar Int. Trans. Corp., 152 F.3d 702, 714 (7th Cir. 1998). Accordingly, the Court concludes that the City may not bring a natural resource damages claim under the ELA unless it has been authorized to do so by the State of Indiana. Because the State of Indiana has not authorized the City to bring such a suit, the Court GRANTS Union Carbide's Motion for Judgment with respect to any state law natural resource damages claim.
IV. CONCLUSION
In short, the City is not authorized to bring a natural resource damages claim under CERCLA or any state law theory. Accordingly, the Court GRANTS Union Carbide's Motion for Judgment on Plaintiff's Second Claim for Relief in its entirety.IT IS SO ORDERED.