Perspectives: CERCLA: In the Midst of Death, Life Persists

Forty years ago this month, I loaded everything I owned into my car and drove to Texas, where I began my career. Environmental law was in its infancy, and new environmental laws—and lawyers—were emerging and developing. It was a robust period, with the pronouncement of what would become seminal cases and the remediation of the most contaminated sites in the country. Of most relevance to me, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was only a few years old, and its tentacles were rapidly growing and expanding across the country. The passage of CERCLA, and the statutory interpretations that followed, had a profound impact on many facets of business, especially as it relates to land.

It was, however, around 1997 that I began to hear CERCLA referred to as a dying statute, and some had already written its obituary, calling it dead. Recently, a law clerk even informed me that during her environmental law class they only spent one day on CERCLA because the statute was dead. While most environmental attorneys know that CERCLA is very much alive, the real question perhaps is whether it should die, or at least substantially reform.

At its heart, CERCLA has numerous weaknesses. Among others, it has an inequitable liability structure that was designed to make the polluter pay, but in reality simply focuses liability on the deepest pockets; it is procedurally clunky, time consuming, expensive, and prone to decades-long “science projects” when remedial options are limited and apparent; it is routine to see overly complex and expansive remedies that are in contrast to the actual risks posed by the site; it lacks options to address either agency inaction or overreach; and it has been late to the game in recognizing that future reuse of a site requires consideration of fundamental real estate components.

Sadly, there seems little appetite for significant CERCLA reform, and without such reform it could be an uphill battle to alter the current CERCLA landscape. Andrew Wheeler had the right idea with the Superfund Task Force, but such policy measures tend to be impermanent and subject to the whims of each new administration. As such, the components of the task force initiative have been slow to materialize, if at all. Anything lasting seems to require some type of fundamental change to the CERCLA statute.

First, CERCLA must become fairer since it is arguably inequitable for the deep pocket to bear the cost and be asked to chase others for contribution. Second, actual remedial work should not become lost or delayed in the administrative process, especially when the most cost-effective solution is apparent. Third, long-term science projects at the expense of progress rob the community of critical resources and resolution, and the responsible party (and its customers) of millions of dollars that could be spent sooner and more effectively on cleanup. Fourth, the remediation should be consistent with the risk it poses and the intended future use of the site. Fifth, remedial work and restoration/redevelopment efforts should be conducted in tandem to improve efficiency.

CERCLA is not dead and, in fact, is breathing new life with regulation of emerging contaminants, such as PFAS. These developments likely mean that CERCLA will expand, new sites will be identified, and old sites will reopen. There will be new investigations and the corresponding technical and legal negotiations. While they may not know it yet, this month, a new lawyer is loading their car and heading to their first job to begin a long career as a CERCLA practitioner. This newer generation of environmental lawyers will likely be presented with the opportunity to reform environmental law at some point in the foreseeable future. I am optimistic that they will muster the challenge as their colleagues did in years past. So, to quote Mahatma Gandhi, “in the midst of death life persists, in the midst of untruth truth persists, in the midst of darkness light persists.” In the midst of death and darkness CERCLA persists, yet I see a glimmer of light for CERCLA’s future.