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Colorado Supreme Court Denies County Immunity from State Environmental Enforcement Action

This Blog Post was authored by Isaiah B. Kramer, a summer associate.

On June 7, 2021, the Colorado Supreme Court affirmed in part a decision of the Appellate Division and held that the Colorado Department of Public Health and Environment (“the Department”) may bring an enforcement action against a county under the State’s Solid Wastes Disposal Sites and and Facilities Act (“the SWA”). Bd. of Cnty. Comm’rs of La Plata v. Colo. Dep’t of Pub. Health, 2021 CO 43. In doing so, the Court found that the county was neither protected by sovereign immunity nor otherwise exempt from the reach of the SWA.

In 2015, the Department issued a compliance order mandating that the County of La Plata (“the County”) remediate vinyl chloride groundwater contamination originating from a closed landfill owned by the County. The County moved to void the compliance order, asserting two arguments: first, that the County was immune under the Colorado Governmental Immunity Act (“the CGIA”) because the gravamen of the Department’s order was for the abatement of a public nuisance and second, that the County is not a “person” under the SWA against which a compliance order can issue. An administrative law judge initially rejected both of the County’s contentions but upon appeal, the district court reversed, agreeing with the County’s sovereign immunity argument. The district court declined to address whether the County is a “person” under the SWA.

Upon further appeal, the Appellate Division held that the Department’s enforcement action did not lie in tort because SWA compliance orders do not seek to compensate the state for injuries to persons or property. Therefore, the enforcement action was not barred by the CGIA. The Appellate Division also held that counties are “persons” under the definition set forth in the SWA. Therefore, the Appellate Division held that the Department could bring an enforcement action against the County.

The Supreme Court affirmed in part and vacated in part the decision of the Appellate Court. First, it held that the Department had authority to bring an SWA enforcement action against the County as an “owner or operator” of an allegedly non-compliant facility. Id. at ¶¶ 19, 31. The Court came to this conclusion after engaging in a thorough analysis of the totality of the SWA’s provisions, language and legislative intent. The Court went on to hold that, given its analysis, whether the County is a “person” under the SWA was moot. Accordingly, the Court vacated the Appellate Division’s conclusion in that regard.

The Court then affirmed that the CGIA, which extends immunity to public entities from liability in “all claims for injury which lie in tort or could lie in tort,” § 24-10-103(2), C.R.S. (2020), did not bar the Department’s SWA enforcement action against the County. According to the Court, a claim likely lies in tort for the purposes of the CGIA when an injury arises out of tortious conduct or a breach of duty recognized in tort, and the applicable remedy seeks to compensate the claimant for that injury. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). Applying this common law definition, the Court first found that the Department’s enforcement action is not a claim for injury because the Department does not own the affected groundwater. Bd. of Cnty. Comm’rs of La Plata, 2021 CO 43 at ¶ 41. Second, the County did not breach a duty found in tort since the SWA did not create a duty for the County to protect the Department from injury. Id. at ¶¶ 42-43. The SWA merely imposed a duty on the County to comply with Colorado law, as opposed to a duty to the Department. Id. Third, the Department did not seek relief to compensate itself for injuries suffered because of the County’s tortious conduct or a duty purportedly breached. The Department merely initiated proceedings to ensure the County’s compliance with the SWA. Id. at ¶ 44. Additionally, the Court rejected the County’s contention that the SWA defined a violation of the relevant provision as a “public nuisance,” a common law tort. The Court cited to authority to support the proposition that public nuisance is not a tort when asserted by the sovereign, rather it is an exercise of police power. Id. at ¶ 46. For these reasons, the Court held that the Department’s enforcement action did not lie in tort and, thus, the County is not immune under the CGIA from the Department’s enforcement action.

In crafting environmental regulations, state legislatures often carve out tort immunities for local governments. Such carve outs are designed to facilitate the administration of essential public services by limiting the risk of overburdening local governments with litigation and related strains on local budgets. However, as this case illustrates, where compensation of an individual is not the focus of a claim, courts may construe statutory governmental immunities narrowly, leaving local governments exposed to environmental liabilities.