Broward Gardens Tenants Ass'n v. E.P.A.

No. 01-151171 (11th Cir. Nov. 5, 2002) ; Clearinghouse Number: 54346

Description

Tenants’ Challenge to Cleanup Plan for Ft. Lauderdale Superfund Site Is Dismissed

Abstract

The Eleventh Circuit affirmed the district court’s order dismissing this action, brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), for lack of subject matter jurisdiction. Plaintiffs, tenants of a federally subsidized housing complex, allege numerous deficiencies in the cleanup plan for the Wingate Superfund site, a 60-acre parcel of land formerly used by the City of Ft. Lauderdale as a landfill. The housing complex, which is located about one-quarter mile away from the Wingate site, was constructed during the city’s operation of the landfill. Plaintiffs maintain that the housing complex was established as part of an overall plan to racially segregate Ft. Lauderdale, with the knowledge that the tenants would be exposed to hazardous substances. Plaintiffs also allege that the cleanup plan for Wingate is inadequate and that the site continues to expose plaintiffs to hazardous substances such as dioxin and arsenic. The district court dismissed plaintiffs’ complaint for lack of subject matter jurisdiction pursuant to section 113(h) of CERCLA, which prohibits federal judicial review of challenges to CERCLA cleanups except where necessary to decide that a claim falls within one of five statutory exceptions. On appeal, plaintiffs argued that (1) their complaint was not a "challenge" to the Superfund cleanup within the meaning of 113(h), and (2) section 113(h) does not apply to constitutional claims. Rejecting plaintiffs’ arguments, the court of appeals found that plaintiffs seek relief that would change the nature of the Wingate cleanup. The court held that, because plaintiffs’ complaint seeks to have the court modify or replace the remedial plan for Wingate, it clearly is a challenge to the remedial plan, and thus barred under section 113(h). The court rejected plaintiffs’ argument that section 113(h) does not bar constitutional challenges to a remedial plan. The court found that the language of section 113(h) does not distinguish between constitutional and statutory challenges; instead, it delays judicial review of "any" challenges to unfinished remedial action.

Additional Information

Attorney Information
Appellants represented by: Sharon Bourassa, Legal Aid Service of Broward County, Inc., 609 SW 1st Avenue, Fort Lauderdal, FL 33301, (954.765.8950x269); Amicus counsel: David A. Ludder, Legal Environmental Assistance Foundation, Inc., 1114 Thomasville Road, Suite E, Tallahassee, FL 32303, (850.681.2591)
Docket Date
2002-11-05 00:00:00+00:00