Easment Holder Liability Under CERCLA: The Right Way to Deal with Rights-of-Way

Authors

Jill D. Neiman, University of Michigan Law School

Abstract

Responding to growing public concern about the accumulation of toxic wastes, Congress in 1980 passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA authorizes federal action to clean up, or to require others to clean up, leaking hazardous waste sites. Congress placed the financial burden for this cleanup on those responsible for the problem and on those who benefited from improper methods of hazardous waste disposal. Through this liability scheme, Congress also intended CERCLA to encourage responsible or benefited parties to respond voluntarily to the hazardous waste problem.

Part I asserts that CERCLA's legislative history, when read against the language of the statute itself, supports liability for easement holders as owners under CERCLA. Part II contends that, based on common law and statutory law regarding their general liabilities, easement holders should be found liable as owners under CERCLA if they exercise sufficient control over the land subject to the easement. Part III analogizes to other CERCLA decisions which have broadened the concept of ownership, and argues that easement holders should fall within this wide category. Part IV argues that policy considerations, such as risk spreading and monitoring of hazardous waste sites, suggest that liability should be extended to easement holders. This Part also responds to arguments that interpreting CERCLA to impose liability on easement holders would be unfair or economically inefficient. Part V offers an example of an easement holder who, based on the analysis of this Note, meets the criteria for ownership under CERCLA. This Part also suggests a way of mitigating the harsh consequences of finding this easement holder to be an owner. Finally, this Note concludes that easement holders whose control of the land subject to the easement crosses a certain threshold should be considered owners under CERCLA. In some cases, however, these holders should be entitled to greater protection under the innocent landowner defense than that afforded fee simple owners.

Recommended Citation

Jill D. Neiman, Easment Holder Liability Under CERCLA: The Right Way to Deal with Rights-of-Way, 89 Mich. L. Rev. 1233 (1991).
Available at: https://repository.law.umich.edu/mlr/vol89/iss5/5