Federalism Challenges to CERCLA: An Overview

Abstract

When Congress began enacting statutes to govern environmental regulation and natural resources management, it was quite conscious of the United States’s underlying federalism scheme. Nevertheless, parties have challenged the provisions of many such statutes on federalism grounds, presenting Commerce Clause and Tenth Amendment arguments, and many of those challenges have been significant (if only rarely successful).

CERCLA, however, has largely avoided federalism challenges to its implementation, especially in the U.S. Supreme Court. After providing a brief overview of how CERCLA works, this article, written in connection with Southwestern Law School's CERCLA Symposium, explores the few federalism challenges to CERCLA that have been raised, focusing on CERCLA’s retroactivity and its federally required commencement date provisions. It concludes with speculations regarding why CERCLA has avoided the federalism scrutiny that other statutes such as the Clean Water Act and Endangered Species Act have warranted.