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United States v. Alcan Aluminum Corp.

ELR Citation: 29 ELR 21379
Nos. Nos. 87-CV-920, 91-CV-1132, 49 F. Supp. 2d 96/48 ERC 1828/(N.D.N.Y., 05/11/1999) motion to dismiss

The court holds that the retroactive application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to impose liability against a company for response costs incurred at a hazardous waste site in New York does not violate the Takings Clause, the Due Process Clause, or the Ex Post Facto Clause. The company argued that the retroactive application of CERCLA is unconstitutional in light of Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), in which the U.S. Supreme Court held that the Coal Industry Retire-Health Benefit Act of 1992 (Coal Act) violated the Takings Clause.

The court first holds that the company's assertion that CERCLA runs afoul of the Takings Clause is without merit. While the plurality in Eastern Enterprises relied on the Takings Clause to invalidate the Coal Act, five Justices rejected the plurality's view that the Takings Clause applies to ordinary liabilities to pay money. Thus, the plurality's Takings Clause analysis is not binding precedent. The court next holds that even assuming the plurality's takings analysis is entitled to some persuasive precedential effect, its application to this case yields the finding that CERCLA passes Takings Clause muster. The company's liability in this case will not be severe or disproportionate because the company's liability is predicated on the link between its waste disposal activities and the environmental harms caused at the site. Further, it is reasonable to impose retroactive liability for possibly unforeseen costs of responding to environmental harms resulting from a party's disposal of waste. Moreover, the nature of the government action in imposing CERCLA is not unusual.

The court also holds that the retroactive application of CERCLA does not violate due process. Economic legislation enjoys a presumption of constitutionality that can be overcome only if the challenger establishes that the legislature acted in an arbitrary and irrational way, and courts have consistently held that the retroactive application of CERCLA has a rational basis. Last, the court holds that CERCLA does not violate the constitutional prohibition against ex post facto laws. Liability for response costs under CERCLA is not penal under the Ex Post Facto Clause.

[Decisions related to this litigation are published at 21 ELR 20767 and 23 ELR 20706.]

Counsel for Plaintiffs
Steven R. Baer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Lawrence Salibra
Alcan Aluminum Corporation
6060 Parkland Blvd., Mayfield Heights OH 44124
(216) 523-6800