The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has a very strict approach to assigning liability: “the liability of an owner or operator or other responsible person under this section shall be the full and total costs of response and damages” 42 USC §9607(c)(2).
An important policy is forwarded by this Congressional action, namely that environmental contamination is a national problem. In so recognizing the enormity of the problem, Congress apparently sought to clean up sites and preserve the environmental quality of this Nation for future generations. Whether for better or worse, that clean up comes at the expense of “owners or operators” whether or not their direct actions contributed to the contamination.
I can appreciate that Congress sought out the polluters who were causing the degradation of the environment, but I wonder if their vague language was intended. Clearly the courts have read “owner or operator” broad, at times including banks, brokers, and other title holders. We must presume that Congress is “ok” with this approach, since they could easily over rule the courts by changing the statute to reflect their true intent.
What should be the respective liability of parties to a contamination plume? What if someone only “owned” the site, but didn’t contribute directly to contamination? CERCLA does have some built in defenses. Does the strict liability actual change practices? How many people actually know that there is a CERCLA defense? These questions are all necessary parts of shaping our national environmental policy toward more responsible business practices and reasonable liability attachments.
