Reading Room Document

Constitutionality of State Procedural Reform Provision in Superfund Legislation

A bill reauthorizing the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 contains a section that provides for a uniform federal commencement date for the running of state statutes of limitations in toxic tort actions. By operation of this provision, some actions previously time-barred under existing state law would be revived. Under current case law, the bill would not be struck down as beyond the constitutional power of Congress. Although the effort to dictate the content of state law is inconsistent with well-established provisions of federalism, it cannot be said that this effort violates the Tenth Amendment as explained by the Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). The retroactive aspects of the bill may be challenged as a denial of property without due process of law or as a taking of property without just compensation. A due process challenge would present difficult questions due to the existence of two lines of Supreme Court authority in apparent tension, and the bill may well be held to violate the Due Process Clause. The revival of a time-barred action probably would not constitute a taking under the ad hoc regulatory takings inquiry established by the Supreme Court. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23811/download.

April 1, 1986