From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims

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Strict liability for environmental contamination has become a fact of life in the past twenty years since the 1980 enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and similar state laws imposing strict liability for the release of hazardous substances. Since that time, awareness of the widespread nature and risks of environmental contamination and the need for strong tools to remedy those conditions has permeated the public consciousness, the business community, and the courts. As a result, our society has come to live with the existence of widespread strict liability for environmental contamination under various federal and state statutes, even if many believe the current statutory liability scheme is misguided or ineffective.

Over the same period of time, however, some scholars have argued that courts have grown reluctant to apply common law strict liability in general under either the doctrine of Rylands v. Fletcher or Sections 519 and 520 of the Restatement (Second) of Torts, which impose strict liability for abnormally dangerous activities. These commentators conclude that, apart from cases involving blasting and a few other historic applications, the current trend is for courts to reject the expansion of strict liability in favor of negligence as the dominant tort theory. The existence of these two seemingly divergent trends raises the question of whether CERCLA's enactment and implementation have influenced courts' willingness to impose common law strict liability in environmental contamination cases, even if the doctrine is not otherwise expanding.

That CERCLA may be impacting common law strict liability is significant and somewhat unexpected because the Restatement (Second) of Torts does not identify the existence of a federal or state statute governing the conduct at issue as a factor to consider in determining whether the activity is abnormally dangerous. In other words, if courts are being influenced by the existence of CERCLA and state strict liability statutes when considering application of the common law strict liability doctrine to environmental contamination cases, they are doing so for policy reasons beyond the black letter law of Rylands or the Restatement.

A review of post-CERCLA court decisions involving environmental contamination and claims for common law strict liability reveals that even though the existence of a state or federal strict liability statute is not one of the factors a court is directed to consider under the Restatement, courts consistently refer to the existence of such a statute or the general importance of addressing hazardous waste problems as a justification for applying strict liability. These cases show that while the prevailing trend among courts may be to reduce the reach of common law strict liability, the trend in environmental contamination cases appears to be the opposite.

This Article argues that it is both appropriate and desirable for courts to consider state and federal statutes and other indications of public policy when determining whether an activity is abnormally dangerous. This can be best accomplished by revising the current draft of the Restatement (Third) of Torts to include the existence of a state or federal statute imposing strict liability for the activity as a factor in determining whether or not the activity is abnormally dangerous under the common law.


Work published when author not on Michigan Law faculty.