'Minimum Contacts' Under CERCLA: Joint and Several 'Generator' Liability and the Fifth Amendment

Abstract

The author examines the legislative history of the Superfund Amendments and Reauthorization Act of 1986 (SARA) to explore the government's legislative position on the application of joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act, a position at substantial variance with its position in litigation, such as the Supreme Court case, Shell Oil Co. v. United States, No. 07-1607 (argued Feb. 24, 2009).

Adapting to the CERCLA context the facts of a well-known 1987 U.S. Supreme Court decision finding unconstitutional the assertion of jurisdiction over a foreign producer in a product liability case, the author pasquinades the government's position in Shell, in which the government asserts joint and several liability on the basis of a sale of a product. The government acknowledged before Congress in 1985 that it would be unfair, and the courts likely would not allow, the imposition of joint and several 'generator' liability on minor contributors to a site. The article concludes with some reflections on the potential importance of Shell.

Keywords: environmental law, litigation, CERCLA, Superfund

JEL Classification: K32, K41