
Subscribe for updates
Recent Posts
- U.S. Supreme Court Narrows the Scope of the Clean Water Act by Limiting EPA’s Jurisdiction over Wetlands
- Pennsylvania Commonwealth Holds Lead Paint Is Not a Public Nuisance
- Court Finds Federal Government Not Immune from Liability for Interest Payment Under CERCLA
- Court Finds Navajo Nation’s NRD Recovery Under CERCLA May Be Limited, But Not Its State Law Recovery
- Courts Find Standing Key Barrier to Pre-Enforcement Review of Federal Actions
Topics
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- National Priorities List
- Vapor Intrusion
- Solvents
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Environmental Covenants
- Federal Circuit
- National Contingency Plan
- Divisibility
- Apportionment
- Water Pollution Control Act
- Strict Liability
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Alternative Dispute Resolution
- Arbitration
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Gold King Mine
- New Mexico
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- National Forest Management Act
- FERC
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Brownfields
- Brownfield
- Innocent Party
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- FOIA
- Effluents
- Sediment Sites
- EHB
- Pipelines
- Texas
- Missouri
- Injunction
- Coal Ash
- Spoliation
- TMDL
- Stormwater
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Retroactive
- Sovereign Immunity
- Damages
- Stigma
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Fifth Circuit
- Indemnification
- Energy
- Electric
- Ninth Circuit
- Arizona
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Administrative Appeals
- Taxes
- Preemption
- CAFA
- Inspection
- Residential
- Freshwater Wetlands Protect Act
- New York
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- Federal Energy Regulatory Commission
- D.C. Circuit
- HAPs
- Hazardous Air Pollutants
- Mercury
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Spill Act
- Causation
- NEPA
- Mineral Leasing Act
- Tenth Circuit
- Interior
- California
- Zoning
- Act 13
- Duty to Defend
- Insurance Coverage
- Eminent Domain
- Landfill
- Sixth Circuit
- Private Right of Action
- Illinois
- Water
- Citizen Suit
- Diligent Prosecution
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Montana
- Navigability
- Riverbed
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Boiler MACT
- Rulemaking
- CISWI
- Consent Decree
- Enforcement
- Equity
- Laches
- Delay Notice
- EPA
- Declaratory Relief
- Second Circuit
- Contribution
- Standing
- NPDES
- Procedure
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Contamination
- Dukes
- Louisiana
- Certification
- CLE
- Decisions of Note
- Cases to Watch
- Discovery
- Expert Witness
- Privilege
- Work Product
- Insurance
- CERCLA
- Cost Recovery
- Defense Costs
- Real Estate
- Consultant Liability
- Negligence
- Remediation
- Response Action Contractors
- Army Corps
- Donovan
- Rapanos
- Nuisance
- Class Actions
- Odors
- Trespass
- Farming
- Hog Barn
- Kentucky
- ISRA
- Informal Agency Action
- Administrative Hearing
- New Jersey
- RCRA
- Waste
- Air
- Cancer
- Combustion
- Emissions
- Railroad
- Speaking Engagements
- Federal Procedure
- Removal
- Third Circuit
- Toxic Torts
- Title V
- Clean Air Act
- Permits
- Statute of Limitations
- Cleanup
- Superfund
- Supreme Court
- Multi-District Litigation
- Statute of Repose
- Tolling
- Camp Lejeune
- Marcellus Shale
- Clean Water Act
- Mineral Rights
- Due Process
- Enforcement Action
- Wetlands
- Administrative Procedures Act
- Deeds
- Drilling
- Exploration
- Leases
- Oil and Gas
- Royalties
Blog editor
Blog Contributors
The Federal Tort Claims Act permits claims for monetary damages against the United States for injury or loss of property caused by the wrongful acts of federal employees. See 28 U.S.C. § 1346(b)(1). However, this waiver of sovereign immunity is limited by the discretionary function exception, which preserves immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). Recently, the United States Court of Appeals for the Ninth Circuit analyzed the discretionary function exception in the context of environmental contamination, finding that the exception does not apply to what can best be described as ordinary negligence in the performance of a site remediation. Nanouk v. United States, No. 13-35116 (Sept. 4, 2020).
The plaintiff in Nanouk had an allotment of 160 acres of land in Alaska near the North River Radio Relay Station, a cold-war era Air Force communications facility. The Station, which had been operated by government contractors, was closed in 1978. In 1981 it was determined that the facility, like many similar Stations, was contaminated by PCBs. Some minimal removal efforts were undertaken in the 1980s, however as the Air Force ranked other contaminated sites as presenting a greater risk of harm more thorough clean-up efforts were delayed. In the 1990s, remediation was resumed but was slow moving, with two contractors going out of business without completing the work.
In 2003, the plaintiff notified the federal government of strong odors on a trail that plaintiff used to access the cabin on her property. After an investigation, a “hot spot” of PCBs was identified on the trail. Further, as a result of the trail’s usage by plaintiff and her family, the area around her cabin was also found to be contaminated. By 2005, the contamination on plaintiff’s property had been remediated to safe levels. Nevertheless, plaintiff sued the federal government in 2015 for trespass and negligence. In her complaint, she contended that the Air Force had not properly overseen the contractors who operated the Station, failed to remediate the contamination at the time of abandonment and through the 1980s, and conducted an inefficient and insufficient clean-up in the 1990s.
After the close of discovery, the United States moved to dismiss the plaintiff’s complaint on the basis that the claims were barred by the discretionary function exception. The District Court agreed, dismissing the action. On appeal, the Ninth Circuit affirmed only in part, and reinstated plaintiff’s action. Using a two-step analysis that looked first at whether the act complained of involved an actual decision or judgment and if so whether that decision was policy-based, the Court held that the exception applied to the government’s decisions to have only lightly-supervised contractors operate the Station, to allow the Station to be abandoned with barrels of PCBs still present, and to focus efforts in the 1980s on clean-ups at more significant locations, because all involved a weighing of competing government interests for limited available resources. However, as for the failure to discover and remediate the hot spot on the trail in the 1990s, the Court held that no policy consideration influenced the government's lack of attention to the Station; on the contrary, the federal government failed to effectuate the policy decision it had already made to remediate the facility. As a result, the Ninth Circuit reversed the District Court’s dismissal of the action to allow plaintiff to proceed with regard to claims based upon the allegedly negligent clean-up.
This case is a good example of the application of the discretionary function exception to claims against the federal government stemming from site contamination. A well-pleaded complaint should avoid being premised on decisions that could be characterized as policy-based and instead focus on action or inaction that occurs without intent and not as the result of a weighing of competing interests.