Timing Is Everything: An Overview of Environmental Claims and Their Limitations Periods: Part II – State

While federal environmental laws and regulations provide a foundational framework, much of the real action in environmental enforcement happens at the state level. While states implement federal programs under delegated authority, they also enforce their own environmental laws and regulations, as well as common law doctrines, with each state having its own limitations periods. These variations may significantly affect how long and under what circumstances a state has to bring a claim, particularly when dealing with pollution that spans many years. As a result, understanding how limitations periods operate at the state level is essential for regulated industries and environmental attorneys alike.

This article is the second in our three-part series on the different types of environmental claims and the applicable limitations periods. Building upon the first article, which discusses environmental claims and their limitations periods at the federal level, this article explores how states define and apply their federally delegated authority and their individual environmental limitations periods.

Under the cooperative federalism model, states are empowered to enforce environmental statutes and often implement their own environmental statutes that mirror or exceed federal requirements. Most major federal environmental statutes—such as the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act—are implemented by state agencies through delegated authority. By contrast, some federal environmental statutes—such as the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Toxic Substances Control Act—operate as complementary, rather than delegable programs, with states enforcing parallel state programs, rather than administering the federal environmental statute itself. As a result, state environmental protection agencies often enforce federal clean air and water standards, and many states have their own hazardous waste cleanup laws that mirror or expand upon CERCLA.

In practice, state enforcement actions are typically brought under state law alone, in part because the assertion of federal claims may provide a basis for removal to federal court, a forum that states often prefer to avoid when acting as plaintiffs. Instead, federal and state law more commonly appear together in enforcement actions led by the federal government, where states participate as co-plaintiffs or intervenors.

Environmental claims at the state level may be brought in a variety of different ways. First, environmental claims may be brought under state environmental statutes. Additionally, and often in conjunction with state statutory claims, environmental claims may also be brought under state tort law. In fact, such actions typically include personal injury claims (e.g., negligence) and may include property damage claims (e.g., nuisance or trespass). In addition, environmental claims may be brought under state contract or property law (e.g., breach of duty related to contamination on leased land). Each of these claims may have a different statute of limitations, often ranging from two to six years, depending on the state and the type of claim.

State-level environmental limitations periods are far from uniform. Accordingly, for regulated industries and environmental attorneys, knowing the relevant timelines is critical to prosecuting and defending against a variety of environmental claims, regardless of the genesis of the claim. As states continue to broaden their role of environmental protection via delegated authority or otherwise, limitations periods will remain a dynamic and critical issue. We encourage clients to reach out to us if facing environmental claims at either the federal or state levels.