The Comprehensive Environmental Response, Compensation, and Liability Act: The Correct Paradigm of Strict Liability and the Problem of Individual Causation

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I.

INTRODUCTION

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, ("CERCLA")(1) does not expressly impose strict liability. Rather, CERCLA provides generally in the definitional section that "the terms `liable' or `liability' under this subchapter shall be construed to be the standard of liability which obtains under section 1321 of Title 33,"(2) which is Section 311 of the Clean Water Act.(3) As of the time of CERCLA's enactment in 1980, federal courts had construed Section 311 of the Clean Water Act to impose "strict liability."(4) Therefore, numerous federal courts have concluded that CERCLA also imposes "strict liability" on the four statutory categories of responsible persons for the costs and damages resulting from the release or threatened release of a hazardous substance from a vessel or facility into the environment.(5) Courts and commentators, however, have failed to clarify that the concept of "strict liability" has different meanings in different contexts, and it is necessary to take into account the correct paradigm(6) of strict liability to properly interpret CERCLA.

The term "strict liability" can refer either to strict liability for criminal offenses and civil public welfare offenses, or to strict liability in tort for "ultrahazardous" or abnormally dangerous activities.(7) In the context of strict liability for criminal offenses and civil public welfare offenses, the definition of strict liability is limited to the concept of mens rea, or the mental element of a crime or infraction.(8) Under this paradigm, strict liability applies to the commission of a prohibited act, regardless of the mental state of the defendant.(9) Strict liability in tort for highly hazardous activities is similar to strict liability for criminal and public welfare offense because proof of a defendant's mental state, such as intent or negligence, is not required for liability. However, the tort concept of strict liability for ultrahazardous activity also encompasses important concepts of causation that make it a significantly different conceptual paradigm.(10) Most importantly, the causation inquiry in the context of strict liability for ultrahazardous activity focuses on harm that flows from an instrumentality, as opposed to harm from the conduct of a specific individual defendant.(11) A defendant's liability is based on the defendant's relationship to the instrumentality, such as being the owner, operator or user.(12) In addition, a plaintiff establishing strict tort liability for ultrahazardous activity may recover damages for all harm that is caused by the dangerous instrumentality, as long as it is of the type that made the instrumentality ultrahazardous in the first place.(13) A "proximate causation" analysis, to the extent applicable at all, does not include a requirement that harm was foreseeable based on a particular defendant's vantage point, as in negligence law.(14) Strict liability for ultrahazardous activity also has a unique approach regarding intervening causes such as third parties and acts of God.(15)

Litigants have, on occasion, advanced the concept of strict liability as a basis to explain the nature of CERCLA causation, but some courts and commentators have mistakenly responded that strict liability only relates to mens rea and is irrelevant to causation.(16) These courts and commentators have failed to clarify that CERCLA's liability structure is derived in large measure from the tort paradigm of strict liability for ultrahazardous activity, not from the criminal/civil public welfare offense paradigm, and have incorrectly conceptualized CERCLA causation in terms of the activity of an individual defendant.(17) Thus, rather than viewing the basis of liability as a relationship between the defendant and an instrumentality that causes harm (the CERCLA vessel or facility), some courts have required a showing that an individual defendant's acts caused harm in the form of cleanup costs or natural resource damages. …