The Case For a Broad Pre-Emption Rule for CERCLA Contribution

Although some of the proposed tax plans and budgets being discussed in this election year suggest that the same dollar can be counted and spent multiple times, a growing number of courts have held that CERCLA response costs can only be allocated once. The most recent holding comes in the Lower Fox River litigation where Judge Greisbach ruled that CERCLA pre-empts most ancillary state law claims – whether styled as state law contribution claims or common law claims for negligence and strict liability: “If the funds were expended pursuant to CERCLA, and if CERCLA itself provides a scheme for reapportioning those funds, then allowing a state law claim to essentially re-reapportion those funds in a way CERCLA did not intend would pose a conflict.”

Affording CERCLA contribution proceedings broad pre-emption makes good sense. Whenever the damages being sought in an ancillary claim are the functional equivalent of CERCLA response costs, that ancillary claim should be pre-empted since the same response cost cannot be given alternative allocations. Such a broad pre-emption rule would still permit a party to pursue a state law property damages claim provided that that claim will not be cured by a CERCLA response action. Such a rule would also permit state law claims brought by innocent parties that are not themselves PRPs since those parties are not subject to having their damages apportioned by a CERCLA contribution claim.

Perhaps most importantly, a broad pre-emption rule for CERCLA contribution actions provides meaningful protection to CERCLA settling parties. While CERCLA settling parties get complete protection from CERCLA contribution claims under Section 113(f)(3), that protection would be illusory if non-settling parties could circumvent it merely by re-casting their claims as state law contribution or common law claims.

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