CERCLA's mistakes.

• Author: Nagle, John Copeland

Judge Dowd was far too modest. Three years after Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),(1) he wrote that CERCLA was rushed through a lame-duck session of Congress, and therefore, might not have received adequate drafting."(2) Courts struggling to interpret CERCLA since then have abandoned such understatement. Judges now hope that "if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain."(3) The usual explanation for CERCLA's poor drafting blames the hurry with which the lame-duck Ninety-sixth Congress passed the hazardous waste law in December 1980 before President-elect Reagan and a Republican Senate majority assumed office.(4)

The circumstances of CERCLA's enactment present formidable challenges to any theory of statutory interpretation. You favor a textualist theory that examines the statutory language alone? "CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage."(5) You rely on canons of construction from which to glean statutory meaning? "Because of the inartful crafting of CERCLA ... reliance solely upon general canons of statutory construction must be more tempered than usual."(6) You prefer to rely on the legislative history of a statute's enactment? "[T]he legislative history of CERCLA gives more insight into the `Alice-in-Wonderland'-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature."(7) You seek to implement congressional intent? "[C]ongressional intent may be particularly difficult to discern with precision in CERCLA."(8) You try to interpret statutes to promote good public policy? "CERCLA `can be terribly unfair in certain instances in which parties may be required to pay huge amounts for damages to which their acts did not contribute'."(9) You consider the current attitude toward a statute? "CERCLA is now viewed nearly universally as a failure."(10) Those who emphasize the purpose of a statute have found CERCLA more to their liking,(11) but there is an increasing awareness that purpose alone cannot solve all of CERCLA's riddles.(12)

Congress did not foresee this confusion in 1980. Alarmed by Love Canal," but perhaps even more alarmed by the prospect of a transfer of political power in the presidency and in the Senate, Congress rushed to pass a federal hazardous waste law."(14) Earlier in 1980, Congress had considered several different bills addressing the problem of hazardous wastes, and the Senate and House had approved strikingly different proposals.(15) The November election of Ronald Reagan and a Republican majority in the Senate created a new sense of urgency for members of Congress and the Carter Administration who feared that all of their work would go for naught once the new Senate and President assumed office on January 20, 1981.(16) Congress acted immediately after the election:

The bill which became law was hurriedly put together by a

bipartisan leadership group of senators (with some assistance

from their House counterparts), introduced, and passed by the

Senate in lieu of all other pending measures on the subject.... It

was considered [by the House] on December 3, 1980, in the

closing days of the lame duck session of an outgoing Congress. It

was considered and passed, after very limited debate, under a

suspension of the rules, in a situation which allowed for no

amendments. Faced with a complicated bill on a take it-or-leave it

basis, the House took it, groaning all the way.(17)

The result, not surprisingly, was a statute that left many questions unanswered and that did not answer clearly even those questions that it addressed.

Time has failed to remedy the mistakes resulting from Congress's haste. The lower federal courts remain split concerning numerous issues raised by CERCLA.(18) The Supreme Court rarely has intervened to resolve this confusion in the lower courts.(19) The Superfund Amendments and Reauthorization Act (SARA) of 1986(20) failed to resolve these disputes, and no subsequent effort to amend the statute has succeeded. Administrative reforms have not corrected the mistakes inherent in the statute itself. Lacking direction from the traditional tools of statutory construction, and unable to wait for Congress to correct the errors, the courts interpreting CERCLA muddle along.

The thesis of this Article is that CERCLA confounds every theory of statutory interpretation. This conclusion should be obvious from the conflicting readings of CERCLA announced by the lower federal courts and from their frequent complaints about CERCLA's drafting. Because the lower federal courts cannot turn to past Supreme Court cases or to existing administrative interpretations for guidance, CERCLA's drafting problems are magnified. The few CERCLA cases that the Supreme Court has decided provide little help in understanding CERCLA's many other unclear provisions. The Environmental Protection Agency's (EPA) understanding of CERCLA is not dispositive because the courts do not owe such interpretations the deference usually accorded administrative interpretations under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc."(21) CERCLA thus offers a rare opportunity to examine how lower federal courts interpret a statute when they are unconstrained by the interpretations of others and unhelped by most of the tools traditionally used in determining congressional intent.

This Article considers the interpretive issues raised by CERCLA in the context of three different kinds of mistakes made by Congress when it enacted the law in 1980. Building on a description of statutory mistakes that I have developed else where,(22) this Article focuses on three recent cases to demonstrate how the courts struggle to interpret CERCLA's mistakes. Section I discusses CERCLA's drafting errors. There is widespread agreement that CERCLA contains many such errors, but there is less consensus regarding which of CERCLA's provisions resulted from such drafting mistakes or what the response of the courts should be. Thus, the district court in Redwing Carriers, Inc. v. Saraland Apartments, Ltd.(23) adopted an interpretation of an apparent drafting error that every previous court to decide the question had rejected.(24) The court's interpretation is difficult to disprove even though it was original, so Section I also discusses approaches to statutory interpretation that seek to preserve widely accepted understandings of a statute.

Section II considers CERCLA's ambiguous and vague provisions. The absence of definitions for key statutory terms and the lack of other evidence of congressional intent regarding many of CERCLA's key provisions has produced many circuit splits. Citizens Electric Corp. v. Bituminous Fire & Marine Insurance Co.,(25) a case involving one of CERCLA's many ambiguous provisions, presents the unusual spectacle of noted textualist Judge Frank Easterbrook adopting an interpretation of CERCLA that is seemingly contrary to the plain statutory language and to numerous district court decisions adhering to that language. Section II also uses Citizens Electric to analyze the debate concerning the propriety of relying on CERCLA's broad remedial purposes as a way of interpreting the statute.

Section III examines a different kind of mistake. Repeated judicial criticism of CERCLA as unfair, harsh, and inequitable echoes broader complaints that Congress made a policy error in the first instance when it crafted CERCLA Although courts usually leave to Congress debates about the wisdom of a statute, many courts do consider the policy results of various possible statutory interpretations. New York v. Lashins Arcade Co.(26) is one of many recent cases that openly struggles to interpret CERCLA in light of the actual results that the law produces. Lashins Arcade also is notable because it was the first CERCLA case heard by Judge Guido Calabresi, who has written extensively about tort liability and about statutory interpretation. Section III reviews the possible consequences of Judge Calabresi's writings as they relate to the continuing vitality of CERCLA. In particular, CERCLA displays some (though not all) of Judge Calabresi's characteristics of an obsolete statute.(27) CERCLA's problems, however, go further than that. The hurried enactment of CERCLA by obsolete representatives--a lame-duck Congress and a lame-duck President--explains many of the problems CERCLA encounters today, but it does little to aid those who continue to grapple with the law's meaning.

1. INTERPRETING CERCLA'S DRAFTING MISTAKES

   Congress commits a drafting mistake when it says one thing but means another. CERCLA subsection 101(23) describes what "[t]he terms `remove' or `removal' means,"(28) and CERCLA subsection 10 1(24) describes what "[t]he terms `remedy' or `remedial action' means,"(29) which shows that Congress did not use a grammar-check program when it drafted the law. An apparently misplaced comma in CERCLA section 107(a)(4) has divided the courts.(30) The fact that CERCLA contains many such errors would not surprise the Congress that rushed to enact the law in 1980.(31) Identifying those drafting mistakes is another matter. To identify a drafting error there must be some indicia that the statutory text is mistaken. Finding that evidence proves to be an especially challenging task in CERCLA cases because of the confusion that surrounds other evidence of the meaning of the statute. Even if all can agree that a certain provision did, in fact, result from a drafting mistake, the authority of the courts to correct the error is not self-evident.

   Consider an issue thought to have been settled long before 1995. CERCLA section 107 contains two provisions that address the liability of facility "owners" and the liability of facility "operators." Subsection 107(a)(1)...