Residents of Gordon Plaza, Inc. v. LaToya Cantrell, in Her Official Capacity as Mayor of the City of New Orleans, Louisiana, et al.

The Fifth Circuit ruled that homeowners on a toxic landfill are precluded from suing under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972, to protect their health and property, due to a liable party’s minimal operation and maintenance activities, such as mowing vegetation, performed pursuant to a 2008 consent decree under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75. RCRA precludes citizen abatement actions when “a responsible party is diligently conducting a removal action” pursuant to a consent decree. 42 U.S.C. § 6972(b)(2)(B)(iv). The Fifth Circuit interpreted “removal action” to include New Orleans’ minimal longterm operation and maintenance activities, effectively foreclosing homeowners’ ability to seek abatement of ongoing risks—decades after EPA declared all response complete. See National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List, 69 Fed. Reg. 47068, 47071 (Aug. 4, 2004). Response actions include removal actions, which are “short-term cleanup” measures, and remedial actions, which are “measures to achieve a ‘permanent remedy.’ ” Exxon Corp. v. Hunt, 475 U.S. 355, 360 (1986) (citing 42 U.S.C. §§ 9601(23), (24)). Once those activities are complete, CERCLA provides for “operation and maintenance.” 42 U.S.C. § 9604(c)(6). The question presented is: Whether a liable party’s operation and maintenance activities pursuant to an EPA consent decree constitute