CONTRACTUAL RELATIONSHIPS UNDER CERCLA: RESTORING CERCLA'S INNOCENT LANDOWNER DEFENSE, ONE CIRCUIT AT A TIME

摘要

First passed in 1980, the Comprehensive Environmental Response Compensation Act (CERCLA) has served as a robust tool for responding to environmental contamination and promoting remediation efforts. Because the singular purpose of the statute is to address and remediate hazardous contamination, the statute as written applies strict liability broadly with only a few narrow exceptions. Two of these exceptions, the third-party liability defense and related "innocent landowner defense," allow landowners to avoid liability for contamination if the landowner satisfies specific criteria. These defenses will not apply if the polluting activities occur "in connection with a contractual relationship[.]" Starting in 1992, this language was interpreted to require that the contractual relationship relate directly to the polluting activity, not any contractual relationship between polluter and landowner generally. This served to greatly expand the availability of these landowner defenses by allowing any purchaser or landowner to avoid liability by simply omitting polluting activity from any contract. Recently, the Ninth Circuit in California Department of Toxic Substances Control v. Westside Delivery, correctly held that this interpretation was not in accordance with the statute and rightly determined that the "in connection with a contractual relationship" language required a contractual relationship generally, whether or not it specifically pertained to the contamination. This interpretation restored the third-party liability defense and the innocent landowner defense in particular to their original narrow application, in line with the plain meaning of the statute, CERLCA's purpose, the statute taken as a whole, and Congress's intent.