Tomorrow’s News Today: The Future of Superfund Litigation

Christopher D. Thomas.

Few statutes bedevil experienced litigators as often as the federal Superfund act, the Comprehensive Environment Response, Compensation, and Liability Act (“CERCLA”). Although CERCLA practice is now into its third decade, the statute’s chronic drafting flaws and the absence of definitive judicial resolution of numerous fundamental issues continue to create uncertainty. This uncertainty offers the opportunity for both creative lawyering and spectacular failure. Many Superfund cases end badly because the lawyers spend their time preparing to fight the last war. In an attempt to mitigate the unease, this article will—after a rapid review of history—address the crucial legal issues we can expect to be front and center of hazardous substance litigation in the next several years.

It is no secret that CERCLA was hastily and sloppily drafted in late 1980 in the waning days of the Carter administration, in response to the serious environmental and health risks posed by property contaminated by hazardous substances. Substantially amended in 1986, the federal Superfund law now is codified at 42 U.S.C. §§ 9601–9675. CERCLA establishes both a liability scheme that generates government and private-party litigation and provides for an administrative enforcement program for remediation of hazardous substance contamination. That program is largely detailed in the National Contingency Plan (“NCP”). Under CERCLA, the U.S. Environmental Protection Agency (“EPA”) may either spend government funds to remediate contaminated sites and then seek reimbursement from responsible parties, or administratively or judicially compel site investigation and/or remediation. States can conduct many of the same enforcement activities. Independent of any agency action, private parties can employ CERCLA to recover their own investigative and remedial expenses in a civil suit against statutorily defined liable parties.

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