The Comprehensive Environmental Response, Compensation, and Liability Act: the correct paradigm of strict liability and the problem of individual causation.

• Author: MacAyeal, James R.

I.

INTRODUCTION

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, ("CERCLA")(1) does not expressly impose strict liability. Rather, CERCLA provides generally in the definitional section that "the terms `liable' or `liability' under this subchapter shall be construed to be the standard of liability which obtains under section 1321 of Title 33,"(2) which is Section 311 of the Clean Water Act.(3) As of the time of CERCLA's enactment in 1980, federal courts had construed Section 311 of the Clean Water Act to impose "strict liability."(4) Therefore, numerous federal courts have concluded that CERCLA also imposes "strict liability" on the four statutory categories of responsible persons for the costs and damages resulting from the release or threatened release of a hazardous substance from a vessel or facility into the environment.(5) Courts and commentators, however, have failed to clarify that the concept of "strict liability" has different meanings in different contexts, and it is necessary to take into account the correct paradigm(6) of strict liability to properly interpret CERCLA.

The term "strict liability" can refer either to strict liability for criminal offenses and civil public welfare offenses, or to strict liability in tort for "ultrahazardous" or abnormally dangerous activities.(7) In the context of strict liability for criminal offenses and civil public welfare offenses, the definition of strict liability is limited to the concept of mens rea, or the mental element of a crime or infraction.(8) Under this paradigm, strict liability applies to the commission of a prohibited act, regardless of the mental state of the defendant.(9) Strict liability in tort for highly hazardous activities is similar to strict liability for criminal and public welfare offense because proof of a defendant's mental state, such as intent or negligence, is not required for liability. However, the tort concept of strict liability for ultrahazardous activity also encompasses important concepts of causation that make it a significantly different conceptual paradigm.(10) Most importantly, the causation inquiry in the context of strict liability for ultrahazardous activity focuses on harm that flows from an instrumentality, as opposed to harm from the conduct of a specific individual defendant.(11) A defendant's liability is based on the defendant's relationship to the instrumentality, such as being the owner, operator or user.(12) In addition, a plaintiff establishing strict tort liability for ultrahazardous activity may recover damages for all harm that is caused by the dangerous instrumentality, as long as it is of the type that made the instrumentality ultrahazardous in the first place.(13) A "proximate causation" analysis, to the extent applicable at all, does not include a requirement that harm was foreseeable based on a particular defendant's vantage point, as in negligence law.(14) Strict liability for ultrahazardous activity also has a unique approach regarding intervening causes such as third parties and acts of God.(15)

Litigants have, on occasion, advanced the concept of strict liability as a basis to explain the nature of CERCLA causation, but some courts and commentators have mistakenly responded that strict liability only relates to mens rea and is irrelevant to causation.(16) These courts and commentators have failed to clarify that CERCLA's liability structure is derived in large measure from the tort paradigm of strict liability for ultrahazardous activity, not from the criminal/civil public welfare offense paradigm, and have incorrectly conceptualized CERCLA causation in terms of the activity of an individual defendant.(17) Thus, rather than viewing the basis of liability as a relationship between the defendant and an instrumentality that causes harm (the CERCLA vessel or facility), some courts have required a showing that an individual defendant's acts caused harm in the form of cleanup costs or natural resource damages.(18) Similarly, courts have attempted to introduce a requirement that a particular defendant caused foreseeable harm from that defendant's perspective as part of CERCLA's third party defense based on notions of "proximate causation".(19) Other courts have introduced the notion that a particular defendant must have caused harm under a defense of zero apportionment in the context of joint and several liability.(20) Again, these courts have relied on the idea that an individual defendant must have caused harm, fundamentally misunderstanding the theoretical underpinnings of CERCLA causation: strict liability for ultrahazardous activity, which focuses on the harm caused by an instrumentality, not harm caused by an individual defendant.

This article will argue that issues of individual causation under CERCLA should be interpreted and resolved in light of the conceptual paradigm of strict liability for ultrahazardous activity. Section II explains the distinction between the two principal strict liability paradigms. Section III traces the legislative development of CERCLA, showing that the common law causation standards applicable to strict liability for ultrahazardous activity greatly influenced CERCLA's liability scheme. Section IV reviews and summarizes basic rules on CERCLA liability. Section V critiques judicial attempts to resolve issues of causation without reference to the correct paradigm of strict liability and argues that consideration of the proper paradigm achieves a more consistent and logical approach to interpreting individual causation issues under the statute.

II.

THE TWO PARADIGMS OF STRICT LIABILITY

A. The Criminal Law/Public Welfare Offense Concept of Strict Liability

Generally, a criminal offense consists of two elements: a prohibited act (actus reus) and a specified mental state (mens rea) such as intent, knowledge or recklessness.(21) A strict liability criminal offense requires no proof of mens rea.(22)

The criminal law concept of strict liability has deep roots in common law. Under ancient English law up to the Twelfth Century, mens rea was not a requirement for criminal liability, and criminal liability attached simply on the basis of commission of a prohibited act.(23) Thus, all criminal offenses were strict liability. By the Eighteenth Century, however, moral fault based on mens rea had become the main basis for distinguishing and aggravating criminal punishments.(24) A mens rea requirement for criminal liability reflects a "theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong."(25) Defining criminal offenses based on mens rea also reflects society's desire for retribution against morally wrongful behavior.(26) In addition, a mens rea requirement furthers the criminal law goal of deterrence because wrongdoers in theory will weigh the threat of punishment when making a conscious choice to commit a crime.(27)

Nonetheless, even as criminal law came to adopt a mens rea requirement to distinguish degrees of punishment for a prohibited act, important exceptions remained. For example, the criminal offenses of statutory rape, bigamy, misdemeanor-manslaughter and felony-murder remained in essence strict liability crimes requiring no proof of a particular defendant's state of mind.(28) Moreover, the unavailability of a mistake-of-law defense in some contexts can be viewed as a form of strict liability.(29) Finally, the criminalization of civil negligence is similar to imposing strict liability because a defendant is punished even if the defendant did not actually perceive a risk of harm from the prohibited act.(30) Criminalizing civil negligence punishes a defendant based on an absence of the mental element of due care.(31)

The most important exception to the general criminal law requirement for mens rea, however, is strict liability public welfare offenses. Public welfare offenses dispense with the requirement of proving mens rea. Commission of the prohibited act is sufficient for liability.(32) Since the industrial revolution, public welfare offenses have become common in areas of public health and safety regulations, where the goal of strict compliance with the law to protect the public is deemed more important than punishing one with a guilty mind.(33) Thus, public welfare offenses typically consist of violations of laws dealing with "dangerous foods, misbranded pharmaceuticals, toxic substances and the like.(34)

Generally, strict liability public welfare offenses concern business activities that one would expect to be the subject of regulation.(35) Where "dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation."(36) The law places a heightened obligation on those engaged in the activity to find out what the law requires, and those who fail to conform their behavior to the requirements of the law do so at their own peril.(37) The tacit assumption is that one violating a public welfare provision did so knowingly to avoid the costs of compliance.(38) If the violation was not a knowing violation, then it was a failure to act in "responsible relation to a public danger."(39) "The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities."(40) Dispensing with proof of mens rea simply makes enforcement more swift and certain, and leads to more effective compliance.(41) Generally the penalties for public welfare offenses are light and carry no stigma,(42) but courts have upheld felony strict liability criminal provisions.(43) Violations of federal...