Sharing the Burden: Allocating the Risk of CERCLA Cleanup Costs

摘要

In the 1970's and 1980's, government contracts rarely addressed environmental issues or delineated the responsibilities of the parties. With the passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, many defense contractors were suddenly faced with enormous liability for the cleanup of long-forgotten sites dating back as far as World War II. Faced with limited success in seeking contributions from the federal government under CERCLA, imaginative contractors have sought other avenues of redress. One such avenue is to bring suit against the United States based on a breach of contract theory. Several defense contractors have attempted to recover clean-up costs under a contract theory based on these indemnification clauses. The United States Supreme Court has lent support to such contractual theories in United States v. Winstar. This thesis addresses ongoing problems with the cleanup of defense contractor sites required under CERCLA. Section I briefly deals with the different situation contractors of today and yesterday face when dealing with environmental issues. Section 2 II details defense contractor and governmental liability under CERCLA section 107. Section III of the thesis focuses on contractors seeking damages from the United States under a breach of contract theory based on the enactment of CERCLA as a change in the law analogous to Winstar. The thesis analyzes the Winstar issue as applied to environmental issues by the Federal Circuit in Yankee Atomic Electric Co. v. United States. Even if these contracts should survive the Winstar analysis, this thesis describes additional impediments to recovery. This thesis concludes that governmental liability should depend on the nature of the risk allocation in the particular contract.