FAVORING JUDICIAL DISCRETION NOT TANTAMOUNT TO USHERING IN UNPREDICTABILITY: AN EXPLORATION OF THE CERCLA CIRCUIT SPLIT AND A LOOK AT HOW THE NINTH CIRCUIT SIDED CORRECTLY AMONG THE DIVIDE

Note Written By: Lorran Hart Ferguson

When parties are responsible for causing contamination to sites by exposure to hazardous substances, pollutants, or contaminants, they are subject to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) or Superfund. This act was created and designed to facilitate the effective clean up of contaminated areas. Frequently, several parties are responsible for environmental contamination sites. In these instances, it is common for one party to undertake the cleanup efforts and then seek reimbursement from other liable parties.

This note will discuss the Comprehensive Environmental Response, Compensation and Liability Act and will explore its functions in Section II. It will also explore the different methods of liability allocation, which different parties have viewed as the appropriate means of liability allocation for PRPs under the act, including the pro tanto approach and the proportionate share approach. Section III will discuss the current circuit split regarding multiparty liability in cleanup sites, and how the Seventh, Ninth, and First Circuit Courts of Appeals have ruled on the issue. Section III will also include the proposed method of allocation presented by Texas Eastern Overseas. Finally, Section IV will outline my recommended stance for courts to take in the future: the courts should view CERCLA’s lack of explicit language governing instances involving private parties, as their intention to treat private parties differently from governmental parties whose actions are explicitly guided. In the future, courts should thus adopt the approach favored by the First and Ninth Circuit Courts.

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