Fireman's Fund Insurance v. City of Lodi, California

This consolidated appeal of two separate actions requires us to consider the constitutionality of an innovative municipal ordinance enacted by the City of Lodi, California (“Lodi” or “the City”) to remedy hazardous waste contamination within its borders. Fireman’s Fund Insurance Company (“Fireman’s Fund”), Unigard Insurance Company, and Unigard Security Insurance Company (“Unigard”) (collectively “the Insurers”) appeal from the district court’s judgments in favor of Lodi in the Insurers’ separate but related actions for declaratory and injunctive relief. Both Fireman’s Fund and Unigard filed suit to prevent Lodi from enforcing the local ordinance, named the Comprehensive Municipal Environmental Response and Liability Ordinance (“MERLO” or “the Ordinance”), which permits the City to investigate and remediate the hazardous waste contamination of its soil and groundwater.

The Insurers allege that MERLO is preempted by the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 , and by various state laws including California’s Carpenter-Presley-Tanner Hazardous Substance Account Act, (“HSAA”), Cal. Health & Safety (“H & S”)…