The rhetoric of enforcement under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-75, plays well in public. The government seeks “cleanup” and makes “the polluter pay.” Cf. S. Rep. No. 96-848 at 13 (1980); Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1345 (2020). Contrast that with mitigating climate change where, in the words of the Pogo Earth Day poster, “we have met the enemy, and he is us.” Four years ago, then-new EPA Administrator Scott Pruitt described the Superfund program as the “cornerstone” of EPA’s “core mission” of protecting the environment and human health. Memorandum on Prioritizing the Superfund Program (May 22, 2017). (To be sure, as things turned out, emphasizing Superfund may not really have been what the last administration was about. See, e.g., Rule on Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 5, 2021).) If this next administration succumbs to the temptation to feature Superfund, perhaps it and we might focus on some of the mess the statute as drafted and read by the courts has made of private contribution claims, or a small corner of that mess.
The rhetoric plays better when the costs are higher and the work is more impressive. So, Superfund has become a tool used repeatedly to clean up sediments in industrial waterways, mining sites, and similar “mega sites.” By contrast, it does not even have a straightforward way to approach voluntary response to common problems that cause human exposure to hazardous substances, like PCB contamination within buildings to be redeveloped. And, of course, the “polluters” who are paying are not really the human beings who caused the releases. Even if the business entity remains the same, the shareholders, directors, officers, and employees who were associated with a release decades in the past are not the same as those who must pay today.
Large, complicated sites and a capacious notion of “polluter” lead, naturally, to a desire to reallocate costs through contribution or private cost recovery actions. But sections 113(f) (dealing with contribution), 113(g) (dealing with limitations periods), and 107 (dealing with cost recovery), produce a maze of procedural incoherence.
A CERCLA contribution claim seeks reallocation of costs the contribution plaintiff has incurred in excess of its fair share of the total. Arguably, then, the...
