In the last quarter of 2018, U.S. Senior District Judge David G. Larimer examined the interplay of two doctrines permitting courts to defer exercise of their jurisdiction until an administrative agency acts. One is more familiar—exhaustion of administrative remedies—and one perhaps less familiar—the prudential, not jurisdictional, doctrine of primary jurisdiction. Judge Larimer did so in the context of an environmental case under the Comprehensive Environmental, Response, Compensation and Liability Act of 1980 (CERCLA) but discusses legal, strategic, and practical concerns and principles applicable in other contexts.

Introduction

In Read v. Corning, No. 18-CV-6131L, 2018 U.S. Dist. LEXIS 215015 (W.D.N.Y. Dec. 21, 2018), four property owners in Corning, N.Y. filed suit against Corning Incorporated (Corning) under CERCLA. These plaintiffs sought damages, response costs, and injunctive relief due to alleged contamination by hazardous substances of their properties. Id. at *1. Corning’s predecessor in interest acquired the subject property in 1920. Id. at *2. Plaintiffs claimed that prior to purchase of their particular plots, Corning released or disposed of hazardous substances in areas of the subject property. Id. at *2-3. Although no class had been certified, plaintiffs fashioned the complaint as a class action suit on behalf of other owners, occupants and residents. Id. at *1, 5

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