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

• Date: 01 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

Defenses

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®, http://www.eli.org, 1-800-433-5120.