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

By MacAyeal, James R. | UCLA Journal of Environmental Law & Policy, Winter 2000 | Go to article overview

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


MacAyeal, James R., UCLA Journal of Environmental Law & Policy


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.