CERCLA's Mistakes

Article excerpt

Judge Dowd was far too modest. Three years after Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),(1) he wrote that CERCLA was rushed through a lame-duck session of Congress, and therefore, might not have received adequate drafting."(2) Courts struggling to interpret CERCLA since then have abandoned such understatement. Judges now hope that "if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain."(3) The usual explanation for CERCLA's poor drafting blames the hurry with which the lame-duck Ninety-sixth Congress passed the hazardous waste law in December 1980 before President-elect Reagan and a Republican Senate majority assumed office.(4)

The circumstances of CERCLA's enactment present formidable challenges to any theory of statutory interpretation. You favor a textualist theory that examines the statutory language alone? "CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage."(5) You rely on canons of construction from which to glean statutory meaning? "Because of the inartful crafting of CERCLA ... reliance solely upon general canons of statutory construction must be more tempered than usual."(6) You prefer to rely on the legislative history of a statute's enactment? "[T]he legislative history of CERCLA gives more insight into the `Alice-in-Wonderland'-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature."(7) You seek to implement congressional intent? "[C]ongressional intent may be particularly difficult to discern with precision in CERCLA."(8) You try to interpret statutes to promote good public policy? "CERCLA `can be terribly unfair in certain instances in which parties may be required to pay huge amounts for damages to which their acts did not contribute'."(9) You consider the current attitude toward a statute? "CERCLA is now viewed nearly universally as a failure."(10) Those who emphasize the purpose of a statute have found CERCLA more to their liking,(11) but there is an increasing awareness that purpose alone cannot solve all of CERCLA's riddles.(12)

Congress did not foresee this confusion in 1980. Alarmed by Love Canal," but perhaps even more alarmed by the prospect of a transfer of political power in the presidency and in the Senate, Congress rushed to pass a federal hazardous waste law."(14) Earlier in 1980, Congress had considered several different bills addressing the problem of hazardous wastes, and the Senate and House had approved strikingly different proposals.(15) The November election of Ronald Reagan and a Republican majority in the Senate created a new sense of urgency for members of Congress and the Carter Administration who feared that all of their work would go for naught once the new Senate and President assumed office on January 20, 1981.(16) Congress acted immediately after the election:

The bill which became law was hurriedly put together by a

bipartisan leadership group of senators (with some assistance

from their House counterparts), introduced, and passed by the

Senate in lieu of all other pending measures on the subject.... It

was considered [by the House] on December 3, 1980, in the

closing days of the lame duck session of an outgoing Congress. It

was considered and passed, after very limited debate, under a

suspension of the rules, in a situation which allowed for no

amendments. Faced with a complicated bill on a take it-or-leave it

basis, the House took it, groaning all the way.(17)

The result, not surprisingly, was a statute that left many questions unanswered and that did not answer clearly even those questions that it addressed.

Time has failed to remedy the mistakes resulting from Congress's haste. …