Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan Consolidated Gas. The decision is the latest judicial effort to clarify the distinction between cost recovery actions under § 107 of CERCLA and contribution actions under § 113 of CERCLA.
I don’t have any criticism of Judge Borman’s decision. It seems fairly clearly correct under 6th Circuit jurisprudence. I will say, nonetheless, that the decision is gibberish. That’s a technical legal term. It’s also the reason for this post. Again, I don’t criticize Judge Borman. I’m generally opposed to specialist courts. However, does any experienced Superfund practitioner think that a decision such as this will make any sense to a lay person? Isn’t that problematic? Here’s my ultimate conclusion:
It is simply not possible to craft a decision explicating §§ 107 and 113 of CERCLA that is not gibberish.
Judge Borman made the now-usual bow towards prior precedent, noting that:
[n]o one accuses CERCLA of being a well-drafted or easy-to-follow statute.
At this point, I’m tired of these sheepish acknowledgements. CERCLA is an embarrassment. If it were just an embarrassment, it would be bad enough. Unfortunately, it’s more than that. It’s a waste of environmental protection dollars. And, more to the point here, the terrible drafting has also led to a huge waste of transaction costs.
I know that sunk costs are sunk, but can we just junk the whole thing and start over?