CERCLA 1985: A Litigation Update
Editors' Summary: CERCLA is one of the most important environmental statutes, and one of the most difficult to follow. The shape of the legal scheme is being wrought, not in agency rulemakings, but in the courts, and each week brings another significant decision. To help our readers stay abreast of these developments, ELR tries to provide both in-depth analyses of specific issues such as bankruptcy and generator liability, and surveys of the broad trends in the law. When we last reviewed the litigation, in our June 1984 issue, the focus was on basic questions of the scope and nature of liability, particularly that of hazardous waste generators. The litigation outcomes were one-sided, with government interpretation of the statute carrying practically every decision, all of which came from the district courts. Since that time, CERCLA decisions continue to proliferate, with the first courts of appeals decisins appearing on the scene. The issues are changing, with increasing attention focused on preenforcement reviewability of EPA cleanup and enforcement actions, the relationship of EPA's broad power to implement cleanup plans to the property rights of those owning land under or next to the toxic waste dumps, landowner liability, affirmative defenses, private party recovery, and the scope of personal jurisdiction under the statute. The track record of the government is still very good, but EPA has suffered some telling losses. This Comment reviews the last 18 months of CERCLA caselaw to once again bring our readers up to date on the broad trends in CERCLA implementation.