Jump to Navigation
Jump to Content

Nevada ex rel. Nev. Dep't of Transp. v. United States

ELR Citation: 26 ELR 21443
Nos. CV-S-94-393-DWH (LRL), 925 F. Supp. 691/43 ERC 1163/(D. Nev., 05/13/1996)

The court holds that the vendor of a parcel that Nevada acquired as a highway right-of-way is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs the state incurred in removing hazardous waste that the vendor's predecessor in interest generated and dumped before CERCLA's enactment. Reviewing a magistrate judge's report and recommendations, the court first notes that the U.S. Supreme Court's decision in Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994), did not set forth a new rule of law regarding retroactive application of legislation, but rather clarified that previous Supreme Court decisions did not erode the traditional presumption against retroactivity. The court next rejects the vendor's assertion that Landgraf requires a clear statement of congressional intent—rather, it requires clear evidence of congressional intent. The court, agreeing with the report and recommendations, then holds that the "negative implication" analysis set forth in United States v. Shell Oil, 15 ELR 20337 (D. Colo. 1985), is far more persuasive in the CERCLA context than it was in the context of the Civil Rights Act of 1991 in the Landgraf case. The magistrate judge held that the impact as a whole on CERCLA of §§107(f) and 111(d), its "prospective application only" sections relied on by the Shell Oil court to infer that other key provisions of CERCLA were retroactive and prospective, stands in sharp contrast to the impact on the 1991 Civil Rights Act of the sections at issue in Landgraf. The court next holds that the distinction between retroactive natural resource damages liability and retroactive response cost liability makes it clear that CERCLA's entire scheme contemplates retroactive liability for response costs, but not for natural resource damages. The court further holds that the magistrate judge's reliance on Shell Oil was not an impermissible approach after Landgraf. The Shell Oil court had clearly applied the presumption against retroactivity, but found it outweighed by overwhelming evidence of congressional intent on retroactivity. The court also holds that the magistrate judge properly evaluated CERCLA's effective-date provision and correctly determined that it does not bear on the issue of retroactive liability. Finally, the court holds that there is ample evidence in the legislative history of clear congressional intent on the retroactive application of CERCLA's liability provisions.

Counsel for Plaintiffs
Brian R. Hutchens, Deputy Attorney General
Attorney General's Office
198 Carson St., Carson City NV 89710
(702) 687-4170

Counsel for Defendants
Michael Gallagher
Davis, Graham & Stubbs
370 17th St., Ste. 4700, Denver CO 80201
(303) 892-9400