Acts of God, War, and Third Parties: The Previously Overlooked CERCLA Defenses

Date01 February 2015
2-2015 NEWS & ANALYSIS 45 ELR 10129
I. Introduction
In a recent decision, a federal appeals court for the rst
time relied on the statutory act of war defense to dismiss
a Comprehensive Environmental Response, Compensa-
tion, and Liability Act (CERCLA)1 claim, one that sought
recovery of the costs of remediating asbestos and other haz-
ardous substances that were released by the September 11,
2001, attack on the World Trade C enter (W TC).2 CER-
CLA imposes strict liability on a broad range of poten-
tially responsible pa rties (PRPs) for releases of hazardous
substances into the environment. CERCLA provides three
statutory defenses: A PRP can avoid liability if it can dem-
onstrate that an act of God, act of war, or act of third party
was the sole cause of the hazardous substance release. e
act of third-party defense has been asserted succesfully
only rarely, and the other two defenses not at all. e U.S.
Court of Appeals for the Second Circuit’s application of
the act of war statutory defense in -
tion may open the door (at least slig htly) to broader use of
these usually narrowly construed and underused defenses.
is Comment explores the t hree statutory defenses,
the diculties CERCLA defendants have faced in try-
ing to assert t hem, a nd whether     will
result in more successful assertions of these defenses in
the future. As discussed below, although the 
decision dismissed a CERCLA action based on the act of
war defense for the rst time, that defense may be limited
to war-like events such as occurred on September 11. e
  case, however, recognized a broader deni-
tion of act of war than is traditionally applied; applied an
expansive denition of sole cause; and, in dicta, recognized
that an act of God (like a tornado) can be the sole cause of
a release, thus suggesting a potentially broader application
of these defenses. In particula r, if predictions that climate
change will bring more severe storms prove accurate, CER-
1. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.
2. In re Sept. 11 Litig., 751 F.3d 86, 44 ELR 20104 (2d Cir. 2014), cert. denied
sub nom. Cedar & Washington Assocs. v. Port Auth. of N.Y. & N.J., No.
14-239, 2014 WL 6724336 (U.S. Dec. 1, 2014).
CLA defendants may be looking increasingly to t he act of
God defense.
II. CERCLA Statutory Liability and
e U.S. Congress enacted CERCLA to fund and promote
the remediation of sites where there is a release or threat
of release of hazardous substances into the enviroment by
imposing liability on a broad group of PRPs. As origina lly
enacted in 1980, CERCLA allowed federal or st ate gov-
ernments or private parties to seek recovery of necessary
response costs incurred in cleaning up contaminated sites
through claims under §107(a). Section 107 imposes strict
liability on current owners or operators of facilities where
hazardous substa nces were released, owners and operators
of facilities at the time of disposal of hazardous substances,
and parties that a rranged for disposal or transportation
of t hese substances.3 Governments may recover damages
“not inconsistent” with the U.S. Environmental Protection
Agency’s (EPA’s) National Contingency Plan (NCP), and
private parties may recover damages “consistent with” the
NCP. Congress has also amended CERCLA to provide for
a right of contribution under certain circumstances.4
CERCLA §107(b) provides that a PRP will not be liable
for damages resulting from a release if it can establish by a
preponderance of the evidence that the release was caused
solely by:
(1) an act of God;
(2) an act of war;
(3) an ac t or omission of a th ird par ty ot her than an
employee or agent of the defendant, or than one whose
act or omission occurs in connection with a c ontractua l
relationship, existing directly or indirectly, with the defen-
dant (except where the sole contractual arrangement arises
from a published tari  and ac ceptance for carriage by a
3. 42 U.S.C. §9607.
4. 42 U.S.C. §9613(f).
Acts of God, War, and Third
Parties: The Previously
Overlooked CERCLA Defenses
by Frank Leone and Mark A. Miller
Frank Leone and Mark A. Miller are attorneys with Hollingsworth LLP in Washington, D.C.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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