On October 2, 2015, a New York appellate court ruled in Abbo-Bradley v. City of Niagara Falls that plaintiffs could bring common law claims in state court against a Love Canal polluter that improperly performed a remediation plan approved by Environmental Protection Agency (EPA). The court held that the plaintiffs were not judicially estopped from asserting their claims because they consistently argued they were not challenging the actual selection, construction, and monitoring of the remediation plan under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) ().

Between 1942 and 1953, the Love Canal neighborhood of Niagara Falls, New York became an industrial chemical dumpsite containing highly toxic dioxins. After a school and low income housing were built on top of the dumpsite in the 1950s, the chemicals were released. In the late 1970s, a state of emergency was declared and the town was evacuated. Residents of the town experienced a significantly increased rate of miscarriages, birth defects, and other health problems.

The defendants were the City of Niagara Falls and chemical companies that were liable for the toxic dumpsite under CERCLA, which was enacted in 1980 partially in response to the Love Canal incident. The plaintiffs were parents and guardians of infant children that suffered personal injuries and property damage. The plaintiffs alleged common law negligence, private nuisance, and trespass claims, as well as claims arising from a January 2011 release of toxins caused by heavy rains during sewer renovations.

After originally filing in state court, the action was removed to federal district court because the defendants alleged that plaintiffs were challenging a remedy under CERCLA.

The plaintiffs moved to remand the matter to state court, arguing that they were not challenging the CERCLA remedy, but rather the defendants' failed implementation of the remediation. The defendants countered that the matter necessarily entailed questions of federal law about whether the selection, construction, and monitoring of the remedy substantively complied with CERCLA. The plaintiffs responded that they did not question any decisions of the EPA or the remediation plan itself.

The federal district court remanded the case to state court stating that the plaintiffs' claim did not expressly challenge the effectiveness of the CERCLA remedy.

At trial in New York state court, the defendants moved to dismiss arguing that the plaintiffs were judicially estopped from pursuing their claims. The defendants argued that in the district court the plaintiffs stated they were not challenging the remediation plan, but in state court the plaintiffs were in fact challenging the selection, construction, or monitoring of the CERCLA remedy. The trial court granted the defendants motion and the plaintiffs appealed.

The appellate court reversed the dismissal. It explained that judicial estoppel prevents a party from taking a position in one proceeding and prevailing, then assuming a contrary position in a following proceeding after its interests change.

The appellate court held that the plaintiffs maintained a consistent position in both federal district court and state court so that judicial estoppel did not apply. In each proceeding the plaintiffs argued that they did not challenge the CERCLA remedy, but rather the defendants' faulty performance of the remediation plan.

This case is significant because it highlights the potential options available to plaintiffs harmed by environmental pollution. For polluters already liable for cleanup costs under CERCLA, it exposes them to increased liability for personal injuries and property damage under common law claims in state courts if remediation is not properly carried out.