Modest Proposal to Codify the Fair and Just View of the Justice Department on CERCLA

Alfred R. Light

Mr. Light is a partner in the law firm of Hunton & Williams, in Richmond, Virginia.

[16 ELR 10064]

The mind rolls back to the words of the Bard in The Merchant of Venice:

Though justice be thy plea, consider this,

That in the course of justice, none of us

Should see salvation: we do pray for mercy,

And that same prayer doth teach us all to render

The needs of mercy.¹

Finally, the United States has officially come around to the view that joint and several liability does not apply in some Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107² cases, even though the harm at the site is indivisible. The government adopts this view in its recent brief in Mola Development Corp. v. United States in a December 1985 pleading styled, "Response to the Court's Order for Briefing on the United States Counterclaim."³

Apparently, the United States has come to feel a bit differently about the application of joint and several when the shoe is on the other foot, that is, when it is a defendant rather than the plaintiff. In its brief, the United States relies on the concept of "fairness" as the basis a court should use to decide whether joint and several liability is applicable in a case where the harm is indivisible.⁴ The government clearly endorses the Restatement (Second) of Torts § 881 principle, "[W]hen two or more persons acting independently cause a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he caused."⁵ The Restatement section cited in United States v. Chem-Dyne Corp.⁶ and which the United States cites here clearly limits liability and precludes the application of joint and several where there is a reasonable basis for apportionment of an indivisible harm.

In addition, belatedly the United States has come around to the view that "once the court concludes that liability is to be apportioned in a contribution action, the liability of each responsible party is limited to its apportioned share."⁷ Moreover, it has expressly endorsed the use of negligence as a basis for apportioning liability among liable parties, and thus as a basis for limiting their liability.⁸

In fact, the only quibble industry might have with the United States view expressed in this brief is with its unprincipled distinction of "enforcement cases" in which the United States is not a defendant from CERCLA cases where the United States is the defendant or one of the defendants. The United States argues, "[J]oint and several liability will always be applicable where the United States is acting in its enforcement capacity or is seeking to replenish the Superfund because it will promote fairness."⁹ As Assistant Attorney General Habicht has testified several times, courts should not and probably will not find minimal parties, for example, liable for an entire cleanup because the imposition of such liability in such situations would not promote fairness.¹⁰

A fair reading of the United States brief, however, demonstrates that this quibble is only important in its shifting to the defendant of "the burden of either joining others who may be partially responsible for the harm caused to [16 ELR 10065] an 'innocent' plaintiff or for pursuing his claim for contribution or indemnity in another forum."¹¹ Once a liable party proves the limited extent of its contribution to the harm, its liability "is limited to its apportioned share."¹²

I wonder whether it might not be appropriate to codify the new United States position on joint and several liability. This could be done simply by inserting in § 113(b) of the House bill, in proposed new CERCLA § 113(f)(1) after "account,"¹³ the following sentence:

Once the court concludes that liability is to be apportioned in a contribution action, the liability of each responsible party is limited to its apportioned share.

This would codify the United States view expressed at pages 7 and 8 of its brief as described above. Holy Mola!

1. The Merchant of Venice, Act IV, scene i, line 184.

2. 42 U.S.C. § 9607, ELR STAT. 41941.

3. No CV 82-0819-RMT (JRx), ELR PEND. LIT. 65891 (C.D. Cal. brief filed Dec. 16, 1985) (hereinafter cited as Brief). Cf Kelley v. United States, 23 Env't Rep. Cas. (BNA) 1500, 1503 (W.D. Mich. Sept. 19, 1985) (U.S. argued successfully that defendant United States must be allowed to implead third-party defendants to avoid undue prejudice and for the sake of judicial efficiency. The judge reversed magistrate's order).

4. See Brief, supra note 2, at 8-9.

5. Id. at 10 n. 9.

6. 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983).

7. Brief, supra note 2, at 7-8. This was, of course, also the express view of the House of Representatives in its 1980 CERCLA bill,which stated in its liability provision, "Following any apportionment …, no person shall be required to pay in excess of his apportioned share of the total costs …" H.R. 7020, § 3071(a)(2)(C), 96th Cong., 2d Sess. (1980), reprinted in 2 A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, 97th Cong., 2d Sess. 185 (1983).

8. See Brief, supra note 2, at 4 (citing United States v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337 (D. Colo. 1985) with approval for the proposition that a CERCLA case "is not unlike a comparative negligence case") and Brief, supra note 2, at 5 n.5 (citing Uniform Comparative Fault Act § 1(b) as an example of how negligence may be used to apportion liability even though liability is strict).

9. Brief, supra note 2, at 9.

10. See, e.g., his April 3, 1985 testimony before the Senate Environment and Public Works Committee.

11. Brief, supra note 2, at 9.

12. Brief, supra note 2, at 8.

13. The equivalent place in the Senate bill would be § 135, in proposed new CERCLA § 107(1)(1) after "appropriate."