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A Year After Waldburger, Are Lower Courts Ready to Dump CERCLA's Broad Remedial Purpose?

In the Winter 2015 issue of the ABA’s Natural Resources & Environment magazine, John Barkett retraced the Supreme Court’s treatment of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) from Key Tronic to Waldburger and, looking back over that history, he makes the unassailable observation that the Court’s decisions have been, and will continue to be, guided by the plain meaning of CERCLA’s text. See e.g., Burlington Northern & Santa Fe Railway v. United States, 556 U.S. 599 (2009)(“liability may not extend beyond the limits of the statute itself”); Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004)(“Given the clear meaning of the text, there is no need . . . to consult the purpose of CERCLA at all.”). While Superfund lawyers, and the Justices themselves, may argue over the plain meaning of a given statutory term or phrase, a majority of the Court has not deviated from this textual approach to CERCLA disputes.

The Court’s consistency stands in stark contrast to the lower courts’ historical tendency to be guided, not by CERCLA’s text, but by its supposedly “broad remedial purpose.” Indeed more than 125 District Court and Court of Appeals opinions proffer CERCLA’s broad remedial purpose as a basis for the outcome of the case. Given how unequivocally the Supreme Court has endorsed a textualist approach to deciding CERCLA cases, why don’t the lower courts follow its lead?

The answer lies in part with the fact that, as even the Supreme Court has repeatedly recognized, CERCLA was intended “to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the contamination.” Burlington Northern (emphasis added); see also Pennsylvania v. Union Gas, 491 U.S. 1 (1989). But three decades of CERCLA plaintiffs have persuaded the courts that the statute’s remedial purpose mandates a liberal interpretation of its text. See e.g., Dedham Water Company v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1986), citing New York v. Shore Realty Corp., 759 F.2d 1032, 1045 (2d Cir.1985) (“[W]e will not interpret section 9607(a) in any way that apparently frustrates the statute’s goals, in the absence of a specific congressional intent otherwise.”). Because of their understandable aversion to taxpayer-funded cleanups (not to mention the lack of available taxpayer funding), the courts, for the most part, have accepted plaintiffs’ invitations to liberally construe and broadly apply CERCLA to say that cleanup costs should be paid by those who benefitted from or had a nexus to the contamination. See OHM Remediation Services v. Evans Cooperage Co., 116 F.3d 1574 (5th Cir. 1997); Brief for Respondent United States of America at 12, 39, 556 U.S. 599 (2009).

The Waldburger case followed this familiar path on its way to the Supreme Court: the Fourth Circuit identified an ambiguity in CERCLA §9658 and concluded that the statute’s broad remedial purpose helped resolve that ambiguity to preserve plaintiffs’ CERCLA claim. CTS Corp. v. Waldburger, 134 S.Ct. 2175 (2014); Waldburger v. CTS Corp., 723 F.3d 434 (4th Cir. 2013). Then, true to form, the Supreme Court rejected the assertion of an ambiguity and again asserted the primacy of CERCLA’s text. 134 S. Ct. 2175 (2014). Writing for the majority in reversing the Fourth Circuit’s decision, Justice Kennedy concluded: “the Court of Appeals was in error when it treated [a liberal interpretation of remedial statutes] as a substitute for a conclusion grounded in the statute’s text and structure.” Id. at 2185.

Waldburger is arguably the Supreme Court’s most explicit statement that lower courts handling CERCLA cases should honor the statutory text. Indeed subsequent Courts of Appeals decisions suggest that, after Waldburger, the lower courts may be ready to follow the Supreme Court’s lead. In NCR Corp. v George Whiting Paper Co., the Seventh Circuit affirmed the District Court’s determination that by selling paper scraps containing polychlorinated biphenyls NCR had not arranged for disposal of a hazardous substance because NCR lacked the intent which, according to the Supreme Court in Burlington Northern, is required of an “arrangement” under CERCLA §9607(a)(3). 768 F.3d 682, 703-707 (7th Cir. 2014). See also Consolidation Coal Co. v. Georgia Power, 13-1603, slip op., 4th Cir. (March 20, 2015) (upholding the District Court’s text-based decision in favor of the defendant); Vine Street LLC v. Borg Warner Corp., 07-40440, slip op., 5th Cir. (January 14, 2015) (rejecting nexus-based approach to arranger liability); But it will be some time before we know for certain whether Waldburger can achieve what the Court’s prior precedents have not and whether it comes to be viewed as the nail in the broad remedial purpose’s coffin.

If you have any questions about this topic, please contact the author(s) or your principal Mintz Levin attorney.


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