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CERCLA Litigation

Christopher Lane, Alan J. Gilbert, Natural Resources and Environmental Litigation (1989)

CERCLA has given rise to a host of legal issues: its retroactive effect; the statutory judicial review standard; joint and several liability; an atrophied causation requirement; the technical, legal, and common sense validity of extraordinarily expensive remedial decisions; and many others. But the purpose of this paper is not to serve as a primer on CERCLA legal issues. Rather, it addresses the practical problems which the lawyer and the client face as they work through a CERCLA case.

This paper addresses the unique aspects of CERCLA litigation, from the defense lawyer's perspective. To cut down its complexity as much as possible, we have focused upon CERCLA litigation with the government, and not litigation solely between private parties.4

The paper is organized to follow the course of our thinking in a typical CERCLA representation. We first address the law — CERCLA's nightmarishly broad liability scheme and convoluted procedural settings. Our next sections discuss why CERCLA litigation requires a unique approach by the defense lawyer — its focus on a multiplicity of liable parties, strict and joint and several liability, and cleanup standards. We then turn to the legal, technical, “political,” and insurance planning necessary to prepare a case for administrative proceedings or for trial. How to conduct that litigation is our next topic, with emphasis aga