June 01, 2016

Literary Resources

JoAnne L. Dunec


The Superfund Manual: A Practitioner’s Guide to CERCLA Litigation

Peter L. Gray
ABA Section of Environment, Energy, and Resources, 2016 

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund) filled a gap in the federal regulatory scheme by providing a means to clean up abandoned contaminated sites. At the time, “Congress knew it was creating a litigation behemoth,” author Peter Gray observes. “[T]here has been, and continues to be, an endless appetite to litigate the contours of CERCLA liability,” he notes.

CERCLA authorizes the U.S. Environmental Protection Agency (EPA) to use congressionally appropriated funds known as the Hazardous Substances Superfund (Superfund or the Fund) to clean up contaminated sites the EPA includes in the National Priorities List (NPL). According to Gray, “[a]n underlying principle of Superfund, however, is to shift the costs of remediation from taxpayers to the parties whose operations caused the contamination—the ‘polluters pay’ principle.” EPA may seek recovery of costs from such responsible parties, or it may order the responsible party to perform the remediation. Congress omitted the phrase “joint and several” from CERCLA, but the courts have interpreted liability to be strict, joint, and several among potentially responsible parties (PRPs).

Gray observes:

The harsh realities of CERCLA’s liability provisions have met considerable, if mostly unsuccessful, resistance from PRPs. Nevertheless, as the Superfund cleanup program has evolved and developed, and as PRPs have gained experience, albeit painful, with the intricacies and realities of Superfund litigation, insights and lessons have emerged.

Gray then succinctly summarizes the approach and content of The Superfund Manual as follows:

One goal of this book is to identify and develop these insights and lessons. They require a full understanding of the major elements of the CERCLA program. To that end, this book describes EPA’s response and enforcement authorities; EPA procedures for identifying cleanup standards and selecting remedial plans that achieve those standards; the statutory liability and judicial review provisions; PRP organization and settlement issues; litigation, both as between PRPs and the United States and as among PRPs; and a handful of other significant issues arising out of CERCLA cleanup activities.

The Superfund Manual also addresses the continuing concern with “how clean is clean?” and related cleanup costs and settlement, together with the limitations on judicial review, potential insurance coverage for contaminated sites, and the necessity of being knowledgeable about bankruptcy law. With respect to settlement, the author observes:

Faced with a steady stream of precedent supporting the imposition of strict, joint, and several liability under CERCLA, a fairly limited set of affirmative defenses, and the high costs of litigation, the litigation reflex that predominated [PRP] strategy during the first decade of the Superfund program has gradually shifted toward consideration of early settlement evaluation.

The shift corresponded with the Superfund Amendments and Reauthorization Act of 1986 (SARA) which added a statutory framework for settlement.

Natural resource damages are also addressed in a separate chapter. “Natural resource damages pick up where response costs leave off,” the author explains. “Response costs are expenses incurred to remediate contamination at a site, whereas natural resource damages provide funds either to restore the contaminated site in its original condition, or to provide compensation for the loss in value or use of the resource.” He continues, observing that “the CERCLA litigation landscape has been dominated by cost recovery, and contribution actions focused on response costs. Only a relative handful of cases have specifically addressed natural resource damages. In a sense, recovery of natural resource damages is the last frontier of Superfund.”


Wilderness Act

John Hart, “Bay Area Wild: Reflections on 50 Years of Wilderness Protection,” 14 Bay Nature 3 (July–Sept. 2014), at 24, available at https://issuu.com/baynature/docs/bn_v14n3_fullbook_06_17_2014, focuses on the San Francisco Bay Area as a place, but the reflections encompass the far-reaching effects of the Wilderness Act of 1964.

“Wilderness,” Hart notes, is “a word with a kind of electrical charge; merely to mouth it produces a vague thrill and an image of some place enchantingly alien to our daily lives: a perfect mountain meadow, a swamp that no path penetrates, a desert mesa under a trumpet-blast of stars.” He continues:

In a world thoroughly worked over by humankind, wilderness is our term for those places that seem the least altered, the least managed. It identifies the rawer end of a spectrum, with downtown San Francisco on one end and, say, the Wrangell Mountains on the other. But the word is elastic.

Hart notes that “it was the purpose of [the Wilderness Act] to turn the wilderness concept from a squishy abstraction into something very specific, a land classification with legal meaning and ‘teeth,’” and he observes:

A “wilderness area,” says the law, is “an area of federal land that appears primarily to have been influenced by the forces of nature” and that has been designated for preservation, within precisely surveyed boundaries, by an Act of Congress. Inside these limits, roads, mechanized access, and most forms of resource extraction are forbidden.

According to Hart, “[t]he National Wilderness Preservation System is now up to some 110 million acres; California has 15 million acres—about 15 percent of the state, second only to Alaska.” However, Hart notes, “[t]he local array shows that ‘wilderness’ does not have to mean ‘remote’ or ‘difficult to access,’ and it illustrates several other aspects of wilderness area in general: the reasons for their designation, the debates they engender, and the management issues they involve.”

Exactly what does “wilderness” mean? “In the early years,” according to Hart, “government planners, and some conservationists too, felt that busy peripheral areas should be left out of wilderness or called by another name.” However, Hart notes, the Wilderness Act “carefully describes wilderness as providing ‘an opportunity for solitude or a primitive and unconfined type of recreation.’ Crossing that boundary does not have to mean being alone.” In addition, Hart continues,

“creative” wilderness is implicit in the Wilderness Act. The Wilderness Society’s Howard Zahniser, architect of the law, vetoed the use of words like “pristine” or “undisturbed” to describe the lands at stake. To renaturalize formerly occupied lands is a legitimate choice. Whether it is the right choice in every case is another matter.

The wilderness movement “whose leaders are mostly white and largely of pre-digital image,” the author explains, “knows it must find more recruits among the young, the brown, and the wired. Meanwhile, the wilderness concept itself, and the attitudes of its supporters, have faced attack from unexpected quarters.” The author elaborates:

Wilderness, some critics complain, is a sentimental idea, a romantic indulgence. There is no such thing as a “primeval” place. The Native Americans were there first, followed in many cases by farmers and loggers; and the broader human influence is inescapable. . . . From what seems the opposite direction comes another argument: that the wilderness movement is too timid. Drawing lines around a few scattered areas, largely high, cold, or dry, or otherwise infertile, is a “strategy of weakness,” some say, doing little to help the biosphere adapt to climate change and other human-caused disruptions; what is needed is a vast continental system of protected corridors along which species can migrate and shift. . . . The two lines of criticism converge on a single point: that wilderness as we know it is a limited tool. This seems fair enough. It does not follow that it is a bad tool.

In many areas, core wilderness areas are being identified to be wrapped “in a matrix of less strictly managed recreation lands, with working agricultural landscapes outside as well,” notes the author. “When wilderness areas are seen in this context, much of the tension surrounding the concept disappears.”

Hart concludes with a personal note:

I recalled how moved I was, many years ago, when I first stepped across the boundary of a wilderness area (it was the Hoover Wilderness near Yosemite). Behind the modest boundary notice, the scenery was not different; the flowers no more vivid, the waters no more clear. What changed was in my mind. I knew that I was entering a zone where society had decided to arrest, even reverse, the sometimes slow but seemingly relentless process by which land becomes more civilized, more imprinted by human needs, more doodled on by random human markers. . . .

I’ve learned a lot since then about the complexities involved in carrying out such a decision, but the feeling has not died. . . . Looking out from the roadless clifftops of Point Reyes toward the black-on-silver outlines of the Farallones . . . I can forget the marginal puzzles and disputes and simply be glad for places like this—and for the laws and stubborn human efforts that provide their enduring shield.

JoAnne L. Dunec

Ms. Dunec is vice president, underwriting counsel with Old Republic Title Company in San Francisco and a member of the Natural Resources & Environment editorial board. She may be reached at jdunec@ortc.com.