There and Back Again: The Progression of Regression of Contribution Actions Under CERCLA
Surely no environmental law controversy in recent memory has followed a path filled with more surprises and twists than the strange progression and regression of contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As a result of new developments, it is indeed difficult to "keep your feet" as the tides of change sweep away well-settled expectations-expectation~ that have guided the conduct of parties since the inception of cost recovery and contribution under federal environmental law.
CERCLA was passed in 1980 to provide a way for governments and private parties to conduct cleanups and recover their cleanup costs from the polluters, i.e., the "polluter pays" principle. CERCLA litigation quickly mushroomed. One of the early issues arising was how to distribute costs among responsible parties who were suing each other under section 107. Was liability joint and several or just several? Many courts decided that an action by one responsible party against another was an action for contribution, and common law principles of equitable allocation would apply.'
To clarify the right of contribution, Congress amended CERCLA in 1986 and added section 113, which clarified and confirmed that contribution was available among parties and that cleanup costs were to be allocated equitably. Subsequently, courts began to hold that responsible parties did not have a cause of action under section 107, but that section 1 13 was the appropriate avenue.
On December 13, 2004, the Supreme Court held that parties who have not first been sued under sections 107 or 106 of CERCLA cannot file a contribution action under section 113. With many appellate courts holding that responsible parties cannot sue under section 107, it is unclear what, if any, CERCLA actions may be left for parties who undertake cleanups voluntarily or via government order. The underlying objectives of CERCLA-to encourage cleanups and make polluters pay cleanup costs-have now been gutted, and the status of CERCLA litigation is in limbo until the issue surrounding section 107 is resolved. As a result, parties have stopped cleanup activities until a more definite result surfaces.
Richard O. Faulk. "There and Back Again: The Progression of Regression of Contribution Actions Under CERCLA" Tulane Environmental Law Journal 18.2 (2005): 323-337.
Available at: http://works.bepress.com/richard_faulk/12