Regressing toward Federal Common Law: The Catalytic Effect of CERCLA’s Private Cause of Action

Abstract

CERCLA’s Section 113, its civil proceedings provision, does not contemplate the private cause of action context in such areas as personal jurisdiction or contribution protection. The Section directly addresses only Government claims, and SARA’s legislative history rarely even discusses the private cause of action. Courts have had to manufacture a federal common law to fill in the gaps which Congress left. The congressional silence has caused courts to strain to reconcile private claims with CERCLA’s language. Atlantic Research means that process must continue.This has led to a regression to common law principles for the CERCLA private cause of action. For personal jurisdiction, failure to provide expressly for nationwide service of process relegates the matter to the usual “minimum contacts” approach constrained by principles of state sovereignty. For joinder and related issues, SARA’s confused language encourages resort to general principles of common law embodied in the uniform acts. With little prospect for reinstituting taxes for the Superfund, the key is to find a set of realistic incentives and disincentives to encourage effective remedial action with reduced government intervention. CERCLA’s private cause of action will continue to be a central catalyst in that process.This paper is a draft of a paper to be presented at the Southwestern Law School Symposium, “CERCLA and the Future of Liability-Based Environmental Regulation,” at the Southwestern Law School on November 11, 2011.