CERCLA, Causation, and Responsibility

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( CERCLA ) and causation have enjoyed an uneasy coexistence. The tension between them results from the circumstances in which CERCLA became law. The Congress that enacted CERCLA considered two alternative liability schemes, both of which required that polluters pay for the cleanup of hazardous wastes. The House proposed imposing liability on those who caused or contributed to hazardous waste problems, while the Senate looked to specifically designated responsible parties. The Senate prevailed. The consequences of that choice for the traditional tort concept of causation, like many other questions left unanswered in the last-minute rush to enact CERCLA, remained for the courts to discern. This Article considers the relationship between causation and responsibility in CERCLA. Part I describes what might have occurred if Congress had enacted the House version, which would have imposed liability on those who caused or contributed to hazardous waste contamination. This hypothetical discussion permits a brief survey of the literature addressing the place of causation in common law tort litigation involving hazardous substances. Part II analyzes the responsible party scheme that Congress actually adopted and describes how the courts have struggled to frame a coherent liability scheme from the often incomplete statutory language. Part III argues that because responsibility should not attach when a party disproves causation, the existing CERCLA framework is overinclusive and does not accomplish its stated goal of imposing liability on responsible parties. This Article concludes by proposing three amendments to the CERCLA liability provisions to assure that a defendant who can show that it did not cause the plaintiffs injury will avoid responsibility for that injury. These amendments would eliminate from the liability scheme current owners and operators with no connection to the site at the time of the disposal of hazardous substances, would establish proof of the absence of causation as an absolute defense to liability, and would provide an early opportunity to apportion or allocate liability among responsible parties, primarily based on the amount of the injury attributable to each party. These proposals, represented in part in proposed legislation to reform CERCLA, would make the statute\u27s liability scheme better serve its original purpose of imposing responsibility for cleanup costs on the parties that actually caused the contamination