Clean Up of a Legislative Disaster: Avoiding the Constitution Under the Original CERCLA

Abstract

The congressional process leading to the enactment of the original CERCLA in December 1980 was a legislative disaster. The “compromise” statute which emerged left many gaps and ambiguities for the federal courts to resolve. These included deletions of the phrase “joint and several,” of the right of contribution, and of the statute of limitations provision that had appeared in earlier bills. The structure of the statute imposing retroactive liability on multiple parties for the same cleanup in informal administrative and complex judicial proceedings presented substantial legal questions. From 1981 to 1986, the Department of Justice advocated interpretations of the statute that pushed the regime to the very limits of or ignored the Constitution. Presented with these interpretations, the federal courts had to consider the definitions of those limits. This sometimes led to judicial interpretations of CERCLA to avoid the constitutional difficulties. Here we consider several of these lower court interpretations – the right of contribution, the “sufficient cause” exception to statutory fines, and the statute of limitations. Amendments to CERCLA in 1986 largely short-circuit the judicial need to further address these matters.

Keywords: CERCLA, contribution, judicial review, statute of limitations, preclusion, legislative history, constitutional