Part I explains the evolution of the EPA and the DOJ’s position regarding the private cause of action under CERCLA Section 107, the right of contribution under CERCLA Section 113f, and t
Evolution of the Two Private Rights of Action
a The Early History: EPA Encourages the Section 107 Private Cause of Action
In 1993, my article in the St Thomas Law Review examined the complex relationship between private cost recovery actions and CERCLA, highlighting that Congress did not clearly intend a private cause of action under Section 107(a)(4)(B) in 1980 or 1986 The article argues that, even after SARA amendments, CERCLA’s text primarily establishes a federal cause of action for the government to recover response costs when the Superfund is used to pay claims, but does not explicitly authorize private parties to sue each other directly under the Act Notably, the “lame duck” compromise deleted provisions for a federal cause of action and added requirements for response costs claims, raising questions about the scope of private liability under CERCLA.
The EPA’s cleanup priorities are established in accordance with the National Contingency Plan (NCP), which provides the regulatory framework for CERCLA cleanup operations The NCP sets forth both procedural and substantive requirements, ensuring that all remediation efforts are systematically directed and compliant with federal standards This regulation guides the EPA in effectively managing hazardous waste sites and prioritizing cleanup actions under CERCLA authority.
The presumption against private causes of action stems from various canons of statutory construction developed by Supreme Court jurisprudence in the 1980s and 1990s Courts are less likely to infer additional remedies in areas with extensive government regulation and comprehensive statutory regimes that specify remedies, such as penalties for violations For instance, in the 1981 Supreme Court case involving the Clean Water Act (“CWA”), the Court interpreted the 1972 amendments as precluding a federal common law right of action previously recognized, highlighting this presumption.
1972 prior to those amendments 32 Expressio unius est exclusio alterius—the express mention of one thing excludes all others
Section 107(a)(4)(B) of CERCLA’s language is ambiguous, suggesting Congress may have intended that parties other than the U.S or states could recover cleanup costs incurred “consistent with the national contingency plan” without the Fund needing to have paid those costs first This interpretation ensures liable parties bear the full cost of cleanup regardless of whether the EPA or a state financed those expenses Additionally, the separate mention of “other person” costs in CERCLA’s liability section aims to allocate the burden of proof on plan consistency differently for government and non-government plaintiffs, with government costs needing only to be “not inconsistent.”
“consistent” for “any other person”) 34 Even under this approach,
32 City of Milwaukee v Illinois & Michigan, 451 U.S 304, 317–21 (1981)
11 however, the statute’s text seems only to contemplate “response” under the direction of the EPA under their “national contingency plan.” 35
Over the past 25 years since the enactment of CERCLA, the U.S Supreme Court has established a strong presumption against implied private rights of action In 2001, the Court affirmed that no private right of action exists to enforce Title VI's disparate impact regulations, stating that courts may not create such rights regardless of policy desirability Justice Scalia and Professor Bryan Garner emphasized that a private right of action must be clearly implied within the statute’s text, not merely inferred from its purpose However, in 2007, the Supreme Court ruled that CERCLA's text likely provides a basis for a private right of action, making that interpretation the law of the land.
In the 1980s, the EPA encouraged federal courts to recognize a private cause of action under CERCLA Section 107, primarily to support its stance on joint and several liability This strategic move aimed to ensure that liable parties could pursue claims against other private parties, even in the absence of an explicit contribution right prior to SARA The lack of an express contribution right was significant under Supreme Court precedent at the time, which often interpreted the absence of explicit statutory language as indicating the absence of liability.
35 E.g., United States v E.I DuPont de Nemours & Co., 432 F.3d 161, 178 (3d Cir 2005); United States v W.R Grace & Co., 429 F.3d 1224, 1232 n.13 (9th Cir 2005); Cnty Line Inv Co v Tinney, 933 F.2d 1508, 1515 (10th Cir 1991)
37 A NTONIN S CALIA & B RYAN G ARNER , R EADING L AW : T HE
38 United States v Atl Research Corp., 551 U.S 128, 140–41 (2007)
In 1986, SARA explicitly introduced a right of contribution under federal law, which the EPA has recognized in its regulations, including the 1990 revisions to the national contingency plan, affirming a private right of action under Section 107 However, there is ongoing confusion between the private right of action under Section 107 and the contribution protections under Section 113, leading to what's often referred to as the "Contribution Protection Racket," which muddles the distinction between these statutory provisions.
In the late 1990s, the EPA changed its posture in litigation to claim that potentially responsible parties did not have a Section
The revised view clarifies that only non-liable "volunteers" can base a claim on the 107 cause of action The EPA likely revised its litigation stance for two reasons: firstly, because SARA Section 107 no longer needed to address the absence of a contribution right after the addition of Section 113(f).
Limiting PRPs to claims under Section 113(f) could allow the EPA to delay court hearings for such cases until it decides to initiate a lawsuit Section 113(f) only authorizes claims "during or following" EPA actions, potentially hindering timely legal recourse for affected parties.
Under CERCLA, a "civil action" typically involves the United States as the primary plaintiff, preventing private parties from suing each other until the federal government initiates a lawsuit Private parties must wait for the EPA or the U.S government to take legal action before pursuing contribution claims The EPA's interpretation regarding the timing of such contribution claims was addressed by the Supreme Court in Cooper Industries, Inc v Aviall Services, Inc., clarifying important aspects of CERCLA litigation.
The memorandum from Bruce S Gelber, Deputy Chief of the Environmental Enforcement Section at the U.S Department of Justice, and Sandra L Conner, Director of the Office of Site Remediation Enforcement at the EPA, provides essential guidance to all attorneys, paralegals, and EPA Regional Counsel Branch Chiefs across Regions I-X It clarifies protocols and enforcement priorities related to environmental remediation efforts, emphasizing the importance of coordinated actions to ensure effective compliance and environmental protection This document serves as a crucial reference for maintaining consistency and effectiveness in environmental enforcement activities nationwide.
“Matters Addressed” in CERCLA Settlements 2 (Mar 14, 1997), available at http://www2.epa.gov/sites/production/files/2013-09/documents/defin- cersett-mem.pdf
43 Brief for United States as Amicus Curiae Supporting Petitioner at 12–13, Cooper Indus., Inc v Aviall Serv., Inc 543 U.S 157 (2004) (No 02-1192), 2014
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44 Memorandum from Bruce S Gelber, supra note 40
48 Id at 10 n.9 (citing Waste Mgmt of Pa., Inc v City of York, 910 F Supp
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502 Bad GatewayUnable to reach the origin service The service may be down or it may not be responding to traffic from cloudflared
Article III Issues with CERCLA Settlements
Under Supreme Court precedent established shortly after CERCLA was enacted, Congress's authority to assign dispute adjudication to a non-Article III tribunal is restricted to cases where the dispute is “closely integrated into a public regulatory scheme.” This principle, often referred to as the “public rights/private rights distinction,” limits non-Article III tribunals to addressing issues that involve significant public interests As the Court has explained, this distinction ensures that fundamentally private disputes remain within the jurisdiction of Article III courts, maintaining the integrity of judicial review in private rights matters.
When a statutory right is not closely connected to a federal regulatory program that Congress has authority to enact, and if that right does not belong to or exist against the Federal Government, then it must be adjudicated by an Article III Court.
The Article III issue became relevant to CERCLA during SARA’s reauthorization process due to the EPA’s desire for express congressional endorsement of administrative settlement
114 Brief for Petitioner at 26–36, United States v Atlantic Research Corp., 551
116 See, e.g., Cooper Indus., Inc v Avail Serv., Inc., 543 U.S 157 (2004); Key Tronic Corp v United States, 511 U.S 809 (1994)
118 Mila Sohoni, Agency Adjudication and Judicial Nondelegation: An Article III Canon,
107 N W U L R EV 1569, 1585 (2013) (stating an excellent general defense of the constitutional distinction, including a discussion in the context of federal agency administrative orders)
The article discusses a unique provision related to authority, granting the President the power to "enter into an agreement with any person to perform any response action," as outlined in administrative proposals It details the specific timetables for settlement negotiations, restrictions on covenants not to sue, and emphasizes the significant role of the Attorney General in overseeing the CERCLA settlement process Additionally, the statute eliminates the rights of contribution among parties involved in the cleanup efforts, ensuring streamlined and authoritative environmental response actions.
“person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement” regarding
The settlement addresses several key matters, reflecting Congress’s concern about granting final settlement authority to the EPA, a non-Article III tribunal Additionally, the statute includes a provision examining whether an administrative settlement that prevents non-settlor parties from seeking contribution could be considered a "taking" under the Fifth Amendment, highlighting ongoing debates over the legal and constitutional implications of administrative settlements.
In the mid-1980s when CERCLA was amended, Congress was especially sensitive about the Article III issues because of the Supreme Court’s landmark decision in Northern Pipeline Construction
In 1982, the Supreme Court case Co v Marathon Pipe Line Co struck down the authority of non-Article III bankruptcy judges to adjudicate certain claims, raising concerns about judicial authority in bankruptcy proceedings In response, Congress amended the Bankruptcy Code in 1984 to designate bankruptcy judges as units of the federal district court, allowing district judges to review findings of fact and legal conclusions in non-core proceedings Despite these legislative changes, unresolved issues persisted regarding the circumstances under which non-Article III judges can make final decisions, prompting the Court to clarify the limited situations in which final adjudication of claims can be assigned to non-Article III judges.
The III tribunal operates under the “public rights” exception, as highlighted in the landmark case of Granfinanciera, S.A v Nordberg In this decision, the Court determined that a person sued by a bankruptcy trustee for fraudulent transfer, who has not filed a claim against the estate, has a constitutional right to a jury trial Justice Brennan clarified that the trustee’s claim involves a “private right” and is procedural in nature, classification that aligns with legal rather than equitable proceedings This case underscores the importance of protecting individual constitutional rights within bankruptcy litigation involving private rights.
In our recent decisions on the "public rights" doctrine, we clarified that such matters are not limited to disputes between the government and others The Federal Government is not required to be a party for a case to involve "public rights." The key consideration is whether Congress, exercising a valid legislative purpose, has created a matter that appropriately falls under the public rights doctrine.
A 'private' right that is deeply integrated into a public regulatory scheme is typically managed through agency resolutions with minimal involvement from the Article III judiciary Conversely, if a statutory right is not closely connected to a federal regulatory program, which Congress has the authority to establish, and if that right does not belong to or against the Federal Government, then it must be adjudicated by an Article III court.
While CERCLA’s settlement provisions added in 1986 require judicial approval of some agreements, for example “remedial actions under section [106],” 130 they also provide for an
127 See Stern v Marshall, 131 S Ct 2594 (2011); see also Exec Benefits Ins Agcy v Arkison, 134 S Ct 2165 (2014) (following Stern when deciding how to adjudicate bankruptcy claims)
129 Id at 54–55 (internal citations omitted)
An "administrative" alternative to the "civil action" exists for certain agreements, particularly when only a minor portion of response costs is involved at the facility The statute grants settlement authority to the head of any department or agency authorized to undertake response actions, provided the claim has not been referred to the Department of Justice Notably, the administrative settlement clause states that once liability is resolved with the United States, the party is barred from claims for contribution related to those matters Unlike judicial oversight, the law requires only a 30-day comment period following the publication of a notice in the Federal Register, after which the agency head has discretion to proceed.
Parties must either withdraw or withhold consent to a proposed settlement if they have concerns Failure to comply with any term or condition of the order can result in civil penalties for any party involved in such an agreement Ensuring adherence to settlement terms is crucial to avoid legal repercussions and maintain compliance with court orders.
Several Supreme Court decisions from the 1980s, including Thomas v Union Carbide Agricultural Products Co., complicate the analysis under Article III In this case, the Court upheld the constitutionality of binding arbitration among pesticide manufacturers within the FIFRA regulatory framework, emphasizing that such arbitration is closely integrated into public regulation and suitable for agency resolution with minimal judicial involvement The FIFRA regime restricts judicial review of arbitrator decisions to instances of fraud, misconduct, or misrepresentation, further highlighting the limited role of courts in these arbitration proceedings.
In Commodity Futures Trading Commission v Schor, the Supreme Court upheld the CFTC’s administrative supplemental jurisdiction over disputes involving the enforcement of rights under the Commodity Exchange Act The Court confirmed that the agency's ability to adjudicate claims arising under state law is constitutional when such claims are incidental to and depend on the resolution of federal reparations claims, which are limited to issues originating from the same transaction or occurrence This decision affirms the CFTC’s authority to resolve related state law claims intertwined with federal enforcement actions, ensuring a cohesive approach to commodity futures regulation.
The CFTC's limited jurisdiction over state law claims, which arises as a necessary incident to resolving federal claims submitted for initial agency adjudication, does not violate separation of powers principles or Article III.
Sovereign Immunity and CERCLA Settlements
Where the United States or a State is among the potential defendants in a statutory regime, there is a presumption against the waiver of sovereign immunity—requiring that the waiver be
“unequivocally clear.” 142 The landmark Supreme Court decision in
In 1995, the case Seminole Tribe of Florida v Florida (143) addressed the limits of Congress's authority to abrogate state sovereign immunity, effectively overruling a prior CERCLA decision that had upheld such abrogation Since its inception, CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) has defined "person" to include both the United States Government and liable entities, expanding the scope of potentially responsible parties under environmental law.
142 Pennhurst State Sch & Hosp v Halderman, 465 U.S 89, 99 (1984) (expressing the Court’s “reluctance to infer that a State’s immunity from suit in the federal courts has been negated”)
In 1989, the Supreme Court concluded that Congress intended to abrogate the Eleventh Amendment immunity, making states like Pennsylvania liable for contributions to CERCLA defendants such as the Union Gas Company However, five years later, the Court reversed this decision, ruling that Congress lacked the power to abrogate state immunity under the Eleventh Amendment when acting through its Commerce Power, as doing otherwise would undermine the fundamental purpose of Article III.
The Seminole Tribe argues that Congress cannot override the immunity of states under CERCLA due to the Eleventh Amendment This is because CERCLA’s liability is based on the Commerce Clause, not the Fourteenth Amendment, which allows for abrogation of Eleventh Amendment immunity While the Eleventh Amendment primarily limits federal court jurisdiction, the Supreme Court has also determined that state sovereign immunity extends to administrative agency jurisdiction Consequently, despite congressional intent for states to share CERCLA liability, the Constitution prevents imposing liability on a state when the claim is against a private party.
146 Pennsylvania v Union Gas Co., 491 U.S 1, 23 (1989), overruled by Seminole Tribe, 517 U.S at 44
In the case of 151 Fed Maritime Comm’n v S.C State Port Auth., 535 U.S 743, 769 (2002), the Supreme Court emphasized that the principle of respecting the sovereignty and dignity of states should be equally applied in administrative adjudications This ruling underscores the importance of honoring state sovereignty within the administrative legal context, ensuring that states are afforded the same respect as they do in other areas of law Recognizing the sovereign status of states is crucial for maintaining the balance of power between federal and state governments in administrative proceedings.
The Supreme Court in 152 Union Gas Co., 491 U.S at 22, held that Congress intended to abrogate the Eleventh Amendment immunity of states under CERCLA Interestingly, while a majority of justices believed Congress's intent was clear, some considered that such abrogation might not be constitutionally permissible regardless of legislative intent Justice White opined that even if Congress did not intend to abrogate immunity, it might still have the constitutional authority to do so.
State sovereign immunity under the Eleventh Amendment applies exclusively when the plaintiff is not the United States, limiting the ability of private parties to bring claims against states While the Northern Pipeline cases suggest constraints on the EPA’s authority to resolve private claims without judicial oversight, the Seminole Tribe decision eliminates private party claims against states entirely, regardless of court involvement Therefore, Eleventh Amendment immunity prevents states from participating in CERCLA settlements unless the federal government explicitly chooses to pursue such actions.
How the EPA Should Adjust its Settlement Policies in Light
in Light of These Complexities
Once the independent private cost recovery cause of action is recognized, CERCLA cases become more complex, influencing settlement negotiations and legal proceedings A single contamination event can lead to both government and private party response actions under CERCLA, often resulting in a consolidated civil lawsuit under CERCLA Section 107 Multiple plaintiffs with claims arising from the same contamination can file their claims together under Federal Rule of Civil Procedure 20, allowing them to sue multiple parties in one case Private parties sued by the government may have both contribution claims—derivative of the government's claim—and separate cost recovery claims for their own cleanup efforts However, recent legal developments, such as the overruling of the Union Gas decision by the Supreme Court in Seminole Tribe, have clarified the legal landscape regarding these claims.
154 See 42 U.S.C § 9607(a)(4) (2012) CERCLA Section 107 provides for cost recovery where there is “a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.” Id
The case 157 United States v Atlantic Research Corp., 551 U.S 128, 138 (2007), defines contribution as "the tortfeasor’s right to recover from other responsible parties after paying more than their proportionate share of the tort." This legal principle highlights the ability of a party who has compensated for a loss to seek reimbursement from co-defendants who are also liable Understanding contribution is crucial for determining how liability is distributed among multiple responsible parties in tort law.
This is an inevitable consequence of the existence of a separate private cause of action under Section 107(a)(4)(B), as explained in
The complexities of CERCLA adjudication extend beyond federal rules, as some private party claims cannot be resolved administratively due to constitutional restrictions preventing their assignment to non-Article III courts like the EPA Additionally, sovereign immunity, upheld by the Eleventh Amendment, prevents certain potentially responsible parties, such as state agencies, from being joined in litigation, further complicating the enforcement process.
If the EPA and DOJ decide to adjust their enforcement and settlement policies to better address these complexities, they should take specific actions First, the agencies must end their one-size-fits-all approach and develop more nuanced, tailored strategies that consider the unique circumstances of each case By implementing these reforms, they can enhance the effectiveness of their enforcement efforts and ensure fair and appropriate settlements.
The government cannot eliminate private party response cost claims unrelated to its cleanup plans or reimbursement claims due to Due Process protections Therefore, attempts to address these claims through settlement negotiations by manipulating the definition of “matters addressed” are inappropriate If the government genuinely aims to control private party response costs, it should amend the national contingency plan to incorporate such controls into the regulatory framework.
Consistent adherence to the plan is crucial; when a private party incurs response costs in line with the plan, the EPA should recognize that such costs are recoverable without additional approval Under CERCLA Section 113(f)(2), claims for contribution related to fault shares are only extinguished in the traditional sense, meaning the EPA cannot prevent PRPs from asserting their claims without their consent This ensures that PRPs retain their right to recover costs, reinforcing the importance of maintaining consistency with approved response plans.
Paragraph: Under U.S law, §§ 107(a) and 113(f) offer two distinct legal remedies for environmental cleanup liabilities Specifically, § 107(a) grants parties the right to cost recovery in certain situations, while § 113(f) provides separate rights to contribution among responsible parties These provisions are recognized as "clearly distinct" remedies, ensuring different avenues for addressing environmental cleanup costs and liabilities.
Limiting CERCLA settlement negotiations to the resolution of the Government's own claims helps avoid due process violations under the Fifth Amendment This approach restricts costs and requirements imposed on the contribution plaintiff by the Government, ensuring a fair and legally compliant resolution process By focusing solely on the Government’s claims, CERCLA settlements maintain procedural fairness and uphold constitutional protections.
Agencies should defer to Article III courts for resolving private response costs rather than handling these claims through administrative settlements Limiting administrative settlements to the government’s response costs helps avoid potential Article III controversy To ensure contribution protection is effective, the EPA should seek judicial approval for settlements involving its claims, with the date of judicial approval establishing the effective date of the administrative order This grants settling parties a three-year window post-approval to pursue contribution claims against other PRPs Additionally, settlement orders should clearly specify that the issues addressed in the agreement are not subject to further dispute.
A contribution right does not arise until the recipient of the settling order has actually paid the required costs or performed the necessary tasks outlined in the order This approach aligns with the "contribution protection" principles defined in the Restatement of Torts, ensuring that protections are only granted once the specified obligations have been fulfilled.
When the government identifies a state or state agency with Eleventh Amendment immunity, it is fair to require the government to assume equitable responsibilities This includes adjusting its claims for relief against private potentially responsible parties (PRPs) to fairly reflect the state's share of liability, ensuring just and balanced enforcement.
It should also treat the federal government’s own agencies who owned, operated, or generated wastes at a site the same as private
161 H OTALING ET AL , supra note 2, at §2, 10978–79 (concluding that in the
Seventh Circuit that work under an AOC must be complete but before three years after signing the AOC has elapsed in order to obtain contribution under § 113(f)).