CERCLA’s Statutory Liability Defenses — How Strict Is CERCLA Liability?

It was no surprise that the Second Circuit in In re September 11 Litigation recently affirmed the lower court’s ruling that contamination caused by the 9/11 attacks was within CERCLA’s “Act of War” defense.  Although CERCLA is often said to impose strict liability regardless of fault, the Second Circuit’s decision indicates that CERCLA’s liability scheme was not intended to reach contamination that was caused entirely by the hostile acts of others:

The attacks wrested from the defendants all control over the planes and the buildings, obviated any precautions or prudent measures defendants might have taken to prevent contamination, and located sole responsibility for the event and the environmental consequences on fanatics whose acts the defendants were not bound by CERCLA to anticipate or prevent. 

This rationale for the the Act of War defense would seem to apply with equal force  to CERCLA’s two other defenses — an Act of God and Third Party acts.  In the end, all three of CERCLA’s statutory liability defenses turn on the same simple principle — where the contamination was not caused in any way by the PRP’s acts or omissions, CERCLA liability will not attach.   In other words, if there really was nothing the PRP could do to prevent the release of hazardous substances, there will be no CERCLA liability.

One thought on “CERCLA’s Statutory Liability Defenses — How Strict Is CERCLA Liability?

  1. Money vs the Rights of Nature

    Massachusetts (US)

    Massachusetts now has two constitutional amendments/laws/judgements which remove money as an issue for the return of the natural landscape.

    1. Several decades ago Massachusetts removed all individual liability from the owners of land open to the public. That allowed conservationists to set aside land without the burden of liability insurance. Although intended to serve community interests this amendment to the MA constitution actually advanced the Rights of Nature.


    2. The high court of Massachusetts has now said that land set aside for public conservation benefit cannot be taxed by the towns. Again, this advances the Rights of Nature by making it easier for conservation groups to own conservation land and not be burdened by costs.


    This (1) relief of insurance obligation and (2) no tax obligations is a one-two punch for the Rights of Nature.

    Please keep in mind that the only healthy forest is one that is in and has been in equilibrium for a long period of time. Human activity of the smallest kind is antithetical to a species’ forest. There is no forestry “best practices.” All logging, hunting and trail building prevent the return of the natural century-old forest. A species’ forest is of, by and for all the other native plants, animals, fungi and soil microbes that occupy or have occupied that place. http://speciesforest.blogspot.com/

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