May 14, 2020
Superfund
Superfund
Inappropriate and Unconstitutional Retroactive Application of Superfund LiabilityGeorge Clemon Freeman, Jr., 42(1): 215–48 (Nov. 1986)
This Article argues that the EPA's interpretation of Superfund—retroactive application of a new federal substantive liability (strict, joint, and several liability) without any requirement of proof of causation—is fatally flawed. The EPA and the courts it has persuaded have ignored the strong presumption against retroactive construction and have failed to consider grave constitutional problems, including separation of powers, bill of attainder, ex post facto, and due process concerns.
The Proposed European Community Directive on Civil Liability for Waste—The Implications for U.S. Superfund Reauthorization in 1991
George Clemon Freeman, Jr. and Kyle E. McSlarrow, 46(1): 1–28 (Nov. 1990)
The European Community is on the verge of passing new legislation that will address many of the liability issues covered in the United States "Superfund" law. This Article argues that the European approach reflects a more considered approach that may place American business at a competitive disadvantage in world markets, unless changes are made to Superfund when it is reauthorized in 1991.
Superfund Response Cost Allocations: The Law, The Science, and The Practice
Ridgway M. Hall, Jr., Robert H. Harris, and Judith A. Reinsdorf, 49(4): 1489–1540 (Aug. 1994)
One of the most contentious aspects of Superfund cases is the allocation of response costs among potentially responsible parties. The statute allows courts to consider a variety of equitable factors, but the task is often complicated by incomplete data and missing parties. This Article reviews the caselaw and the practical problems faced by parties engaged in cost allocations. It describes some practical approaches, including formulas for evaluating and weighing the relevant factors, to assist practitioners in achieving reasonably fair allocations without excessive transaction costs.
A Public Policy Essay: Superfund Retroactivity Revisited
George Clemon Freeman, Jr., 50(2): 663–85 (Feb. 1995)
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court gave new guidance on when statutes imposing new obligations or liabilities are, or are not, to be interpreted as applying retroactively. Taking this new guidance, the author reexamines the text of the Superfund Act and its legislative history and shows that, from hindsight, the earlier line of lower federal court cases, holding that the act's general liability provision applies retroactively, fail the Landgraf tests. After summarizing the general policy reasons why the common law and the Constitution were hostile to retroactive legislation of this sort, the Article shows that many of the evils anticipated have been realized in Superfund's retroactive application. In the author's view, because it is probably too late for the courts to correct their errors, the only practical solution to these problems is for Congress to repeal Superfund's retroactive liability when it reauthorizes the act during the present session.