The Common Law of Liable Party CERCLA Claims

67 Pages Posted: 3 Apr 2017 Last revised: 14 Jul 2017

Justin R. Pidot

University of Denver Sturm College of Law

Dale Ratliff

Hogan Lovells

Date Written: March 31, 2017

Abstract

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) transformed environmental law by imposing strict, joint and several liability on those who contaminate the environment, referred to as Potentially Liable Parties (“PRPs”). Under the auspices of CERCLA, the Environmental Protection Agency (“EPA”) has overseen cleanup at thousands of sites, protecting public health and natural resources and returning land to productive use. But thousands more sites require attention.

The best opportunity for the continued success of CERCLA lies in the EPA’s ability to convince PRPs to enter settlements and agree to fund cleanups. CERCLA encourages settlement by protecting settling parties from contribution claims brought by other PRPs. Doctrinal developments, however, threaten to substantially undermine that incentive because now some PRPs — typically the least cooperative — may bring “cost recovery” actions, which appear to evade the protection against contribution claims.

This Article reveals that this appearance is an illusion. Courts have long recognized that common law principles govern cost recovery claims. Where the government sues on behalf of the public, those principles render PRPs jointly and severally liable. But the common law treats claims brought by joint tortfeasors — like PRPs — differently. Such claims are quintessential contribution claims, and therefore barred.

Few courts or commentators have addressed the nature of PRP cost recovery claims. Yet this issue requires urgent attention to ensure that the EPA’s CERCLA program remains viable in the current political reality. The analysis this Article provides of common law principles, statutory language, and case law identifies a path forward. Recognizing that PRP cost recovery claims are contribution claims reinvigorates CERCLA’s settlement incentives, while ensuring that each statutory provision retains importance and meaning.

Suggested Citation

Pidot, Justin R. and Ratliff, Dale, The Common Law of Liable Party CERCLA Claims (March 31, 2017). Stanford Law Review, Forthcoming; U Denver Legal Studies Research Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2944254

Justin R. Pidot (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Dale Ratliff

Hogan Lovells ( email )

555 13th Street, NW
Washington, DC 20004
United States

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