Endnotes
| Pages | 24-31 |
24 Sustainable Development Law & Policy
16 See Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 [hereinafter MBTA]
(making it unlawful to take, kill, or possess migratory birds); see also 50 C.F.R.
§ 10.13 (2016) (listing the protected birds under the Migratory Bird Treaty Act
and treaties).
17 See Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. §§ 1801-1891 (acting to conserve and manage shery resources found
off the coasts of the United States).
18 See generally National Environmental Policy Act, 42 U.S.C. §§ 4321-4370
[hereinafter NEPA] (enriching the understanding of the importance of natural
resources and ecological systems to citizens).
19 See, e.g., National Park Organic Act, 54 U.S.C. § 100101 (2012); National
Forest Management Act, 16 U.S.C. §§ 1601-1687 (2012); Federal Land Man-
agement and Policy Act, 43 U.S.C. §§ 1701-1787 (2012); National Wildlife
Refuge System Act, 16 U.S.C. §§ 668dd-668ee (2012).
20 See Joseph Tomain, Kavanaugh’s Political Leanings Likely Will Be Written
into Law, cincinnati enquirer (August 6, 2018), https://www.cincinnati.com/
story/opinion/2018/08/06/opinion-kavanaughs-political-leanings-likely-writ-
ten-into-law/862653002/ (stating that environmental cases often “pit corporate
interests against the public interest for a clean and healthy environment. Here,
Kavanaugh’s ‘hands-off’ approach to policy is jettisoned. In his opinions,
Kavanaugh is unafraid to strain the interpretation of statutes, engage the judi-
ciary in policymaking, and, on occasion, give mini-lectures on constitutional
law and government. His environmental law opinions, then, directly involve
policy and politics. In other words, Kavanaugh is unafraid to make, not follow,
the law”).
21 See, e.g., U.S. Envtl. Prot. Agency v. EME Homer City Generation, 572
U.S. 489, 524 (2014) (overturning Justice Kavanaugh’s decision 6-2 in a case
where Justice Kavanaugh holds the EPA to an illegally high standard of review,
with human lives and health on the line); Mexichem Fluor, Inc. v. U.S. Envtl.
Prot. Agency, 866 F.3d 451, 453-54, 464 (D.C. Cir. 2017) (stating Justice
Kavanaugh, over a powerful dissent, created a new reading of Section 612 of
the Clean Air Act that allows foreign manufacturers of ozone-depleting and
climate change-inducing hydrouorocarbons to avoid regulation; this decision,
too, has been appealed to the U.S. Supreme Court on a writ of certiorari).
22 According to an August 2018 Public Citizen study, Justice Kavanaugh
ruled in favor of Big Business – dened as the Chamber of Commerce, National
Association of Manufacturers, and American Petroleum Institute – in twenty-
ve (25) of the thirty-three (33) cases in this category, for a seventy-six percent
favorable bias rate. Judge Brett Kavanaugh’s Decisions in Cases with Leading
Business Association Involvement, chamber watch (Aug. 30, 2018), https://
www.chamberofcommercewatch.org/judge-kavanaugh-business-decisions/.
23 Id.
24 No. 17-71, slip op. 1 (U.S. Nov. 27, 2018).
25 Id. at 15.
26 Id.
27 See, e.g., Massachusetts v. U.S. Envtl. Prot. Agency, 549 U.S. 497, 534-35
(2007) (forcing the EPA to take action under the Clean Air Act against global
warming and climate change); Rapanos v. United States, 547 U.S. 715, 733-37
(2006) (emphasizing that regulation of wetlands falls under the Clean Water
Act); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S.
687, 703-08 (1995) (upholding the inclusion of “habitat harm” as denition of
“take” under the ESA).
28 See Carpenter Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017); Otay
Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 646 F.3d 914, 918-19 (D.C. Cir.
2011); Am. Bird Conservancy v. Fed. Comm. Comm’n, 516 F.3d 1027, 1035-
37 (D.C. Cir. 2008).
29 Am. Bird Conservancy, Inc., 516 F.3d at 1035-37.
30 Id. at 1031 n.1 (explaining that Justice Kavanaugh was incorrect in assert-
ing that the petitioner’s case was not ripe because the FCC was not, in fact,
reconsidering its order regarding migratory birds and communication towers in
the Gulf Coast region).
31 854 F.3d at 1.
32 Id. at 5 (“A dollar of economic harm is still an injury-in-fact for standing
purposes.”).
33 Id.
34 646 F.3d 914 (D.C. Cir. 2011).
35 Id. at 918 (nding that, absent further explanation, a survey of the plain-
tiffs’ property which found an endangered species in one location was not
enough to demonstrate that the plaintiffs’ property was occupied by that species
for the purposes of the ESA).
36 829 F.3d 710 (D.C. Cir. 2016).
37 Id. at 732 (Kavanaugh, J., dissenting) (emphasis in original) (contending
that the “EPA considered the benets to animals of revoking the permit, but
[the] EPA never considered the costs to humans”).
38 Order No. 15-1363 (D.C. Cir. 2018) (concerning the Clean Power Plan).
39 Id.
40 472 F.3d 872 (D.C. Cir. 2006).
41 Id. at 879-82 (Kavanaugh, J., concurring).
42 Justice Kavanaugh’s 96-4 “against wildlife” total score is notable because
other judges on the D.C. Circuit scored much better than Justice Kavanaugh’s.
Judge David Sentelle, for example, undoubtedly a conservative jurist, appointed
by President Reagan to ll Justice Scalia’s seat on the D.C. Circuit, possesses
a 57-43 “against wildlife” score. Judge Merrick Garland, President Obama’s
pick to replace Justice Scalia on the Supreme Court, but who never received a
vote by the majority Senate Republicans, possesses a 46-54 “against wildlife”
score, meaning he votes with wildlife fty-four percent of the time. See infra
Appendix A and B.
43 Fund for Animals v. Kempthorne, 472 F.3d 872, 873 (D.C. Cir. 2006)
(holding that “[t]he amended Migratory Bird Treaty Act does not ban the hunt-
ing or killing of non-native migratory bird species, including mute swans”).
44 Id. at 873, 879.
45 See generally Convention for the Protection of Migratory Birds, U.S. –
Great Britain, Aug. 16, 1916, 39 Stat. 1702; Convention Between the United
States of America and the United Mexican States for the Protection of Migra-
tory Birds, Etc., February 7, 1963, 50 Stat. 1311; The Convention Between the
Government of the United States of America and the Government of Japan for
the Protection of Migratory Birds in Danger of Extinction, and Their Environ-
ment, Mar. 4, 1972, 25 U.S.T. 3329; Convention Between the United States of
America and the Union of Soviet Socialist Republics Concerning the Conserva-
tion of Migratory Birds and Their Environment, Nov. 19, 1976, 29 U.S.T. 4647.
46 Fund for Animals Inc., 472 F.3d at 881-82.
47 See, e.g., 1911 Treaty for the Preservation and Protection of Fur Seals, July
7, 1911, 37 Stat. 154; 1942 Western Hemisphere Convention on Nature Protec-
tion and Wildlife Preservation, May 1, 1942, 56 Stat. 1374; 161 U.N.T.S 193;
1975 Convention on International Trade in Endangered Species of Wild Fauna
and Flora; Mar. 3, 1973, 12 I.L.M 1085; 1976 Agreement on Conservation of
Polar Bears, Nov. 15, 1973, 13 I.L.M 13.
48 Despite voluminous U.S. Supreme Court precedent upholding the law-
making force of treaties pursuant to U.S. Const. Art. II, § 2, Justice Kavana-
ugh’s unnecessary “extra” concurrence also oddly laments treaties’ ability “to
eliminate the House of Representatives from the law-making process.” Fund
for Animals, 472 F.3d at 881 (Kavanaugh, J., concurring); see also Darren
Samuelsohn, Kavanaugh’s Words on Presidential Probes Come Back to Haunt
Him, politico (July 10, 2018), https://www.politico.com/story/2018/07/10/
brett-kavanaugh-presidential-investigations-708705.
49 Fund for Animals, 472 F.3d at 875-76.
50 Id. at 873 (quoting 16 U.S.C. § 703(a) (2012)).
51 Migratory Bird Treaty Reform Act of 2004, 16 U.S.C. § 703 (a)(1) (2012).
52 Fund for Animals, 472 F.3d at 876-77.
53 Id. at 873, 879.
54 Oceana, Inc. v. Gutierrez, 488 F.3d 1020, 1021, 1025 (D.C. Cir. 2007).
55 Id. at 1021-22, 1025-26.
56 Id. at 1025-26.
57 See id. at 1021-22, 1025-26.
58 See Am. Bird Conservancy v. Fed. Comm. Comm’n, 516 F.3d 1027, 1034-
35 (D.C. Cir. 2008).
59 Id. at 1035.
60 Id. at 1031.
61 Id.
62 North Carolina Fisheries Ass’n v. Gutierrez, 550 F.3d 16, 17 (D.C. Cir.
2008).
63 Id. at 19.
64 Id. at 21.
enDnoteS: a pattern of ruling againSt mother nature: wilDlife SpecieS caSeS DeciDeD by JuStice
Kavanaugh on the Dc circuit
continued from page 10
25
Fall 2018
65 E. Niagara Pub. Power All. v. Fed. Energy Regulatory Comm’n, 558 F.3d
564, 566 (D.C. Cir. 2009).
66 Id.
67 Id.; see also 16 U.S.C. § 808(a)(2)(D) (2012).
68 E. Niagara Pub. Power All., 558 F.3d at 567.
69 Id. at 567-68.
70 For full disclosure, the author represented and argued for the Defendant-
Intervenor, which was on the losing side of the case.
71 Otay Mesa Prop. v. U.S. Dep’t of Interior, 646 F.3d 914, 916-19 (D.C. Cir.
2011) [hereinafter Otay Mesa II].
72 Otay Mesa Prop. v. U.S. Dep’t of Interior, 714 F. Supp. 2d 73, 83 (D.D.C.
2010) [hereinafter Otay Mesa I].
73 Otay Mesa II, 646 F.3d at 916-17.
74 Id. at 918-19.
75 Id. at 919.
76 Sierra Club v. Van Antwerp, 661 F.3d 1147, 1149-50 (D.C. Cir. 2012)
[hereinafter Sierra Club II].
77 Id.; see also Sierra Club v. Van Antwerp, 719 F. Supp. 2d 58, 76 (D.D.C.
2010) [hereinafter Sierra Club I].
78 Sierra Club I, 719 F. Supp. 2d at 61.
79 Sierra Club II, 661 F.3d at 1156.
80 Id. at 1157.
81 See 16 U.S.C. § 1538(a)(2) (2012); see also Sierra Club II, 661 F.3d at
1156.
82 Justice Kavanaugh did not order ESA Section 7 consultation in this case
despite the clear federal scientic evidence that the snake would be harmed.
On other environmental cases where it has been alleged Justice Kavanaugh was
“pro-environment,” these very small handful of decisions are easily explainable
on other grounds. See, e.g., Nat’l Mining Assoc. v. McCarthy, 758 F.3d 243
(D.C. Cir. 2014) (holding that the Clean Water Act did not prohibit interagency
coordination and that an EPA guidance on state-issued water pollution permits
was not subject to judicial review); Nat. Res. Def. Council v. U.S. Envtl. Prot.
Agency, 749 F. 3d 1055 (D.C. Cir. 2014) (denying the Natural Resources
Defense Council’s petition on cement pollution except with regard to clearly
suspect the EPA afrmative defense policy in the Agency rule); Am. Trucking
Ass’ns v. Envt. Prot. Agency, 600 F.3d 624 (D.C. Cir. 2010) (upholding stricter
California motor vehicle standards). Assuming these imsy “defenses of the
environment” represent “two total wins,” even a broken clock is correct twice
per day.
83 Friends of Blackwater v. Salazar, 691 F.3d 428, 439-40 (D.C. Cir. 2012).
84 Id. at 438 (arguing the impracticability of the Secretary adopting criteria
that “by their nature could never be met and hence would preclude delisting a
species so long as those criteria remain in effect”).
85 Id. at 440.
86 16 U.S.C. § 1535(f) (2012) (stating that state laws may be more, but not
less, restrictive than the regulations in the ESA).
87 Conservation Force v. Jewell, 733 F.3d 1200, 1202, 1207 (D.C. Cir. 2013).
88 Id. at 1207.
89 Id. at 1203-05.
90 Center for Biological Diversity v. U.S. Envtl. Prot. Agency, 749 F.3d 1079,
1080 (D.C. Cir. 2014); see generally Clean Air Act, 42 U.S.C.S. § 7409(b)(2)
(describing national secondary ambient air quality standards which specify “a
level of air quality the attainment and maintenance of which . . . is requisite
to protect the public welfare from any known or anticipated adverse effects
associated with the presence of such air pollutant in the ambient air”).
91 See generally Center for Biological Diversity,749 F.3d at 1080-82.
92 Id. at 1085 (quoting the Final Rule, 77 Fed. Reg. 10218, 20,236 (Apr. 3,
2012), to explain that direct exposure is not the only way in which chemicals
can cause harm).
93 Id. at 1089 (quoting the rule and explaining that the EPA “determined that a
revision was not ‘appropriate’ when scientic uncertainty deprived the Agency
of a ‘reasoned way to choose’ an appropriate standard”).
94 Id. at 1090 n.18.
95 Id. at 903.
96 Id. at 901.
97 Id.; see also 16 U.S.C. § 1533 (a)(1) (2012) (stating that determinations are
conclusions that a species is or is not endangered or threatened); 16 U.S.C. §
1533 (b)(3)-(4) (2012) (outlining the statutory time frames by which FWS or
NMFS must respond to petitions to list or delist)
98 Friends of Animals v. Ashe, 808 F.3d 900, 9 01 (D.C. Cir. 2015).
99 Id. at 903.
100 Id. at 900-01.
101 Id. at 904-05.
102 See 16 U.S.C. § 1533(b)(3)(B) (2012).
103 Defs. of Wildlife v. Jewell, 815 F.3d 1, 3, 5 (D.C. Cir. 2016).
104 Id. at 3, 7, 8.
105 Id. at 7.
106 Id.
107 Id. at 3, 6-7.
108 Ark Initiative v. Tidwell, 816 F.3d 119, 121, 122 (D.C. Cir. 2016); see 36
C.F.R. § 294.41 (dening roadless area characteristics as “(1) high quality or
undisturbed soil, water, and air; (2) sources of public drinking water; (3) diver-
sity of plant and animal communities; (4) Habitat for threatened, endangered,
proposed, candidate, and sensitive species, and for those species dependent on
large, undisturbed areas of land; (5) primitive, semi-primitive nonmotorized
and semi-primitive motorized classes of dispersed recreation; (6) reference
landscapes; (7) natural-appearing landscapes with high scenic quality; (8)
traditional cultural properties and sacred sites; and (9) other locally identied
unique characteristics”).
109 See Ark Initiative, 816 F.3d at 122, 128.
110 Id. at 122.
111 See Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 105-06 (D.D.C.
2009).
112 See 16 U.S.C. § 1539(a)(1)(A).
113 See Salazar, 626 F. Supp. 2d at 107 (stating the cause of action and dis-
cussing the import take permit exemption to the ESA that allows for the trade
of hunted trophies of an endangered captive-bred animal).
114 See Friends of Animals v. Jewell, 824 F.3d 1033, 1036-37 (D.C. Cir. 2016).
115 Id. at 1037.
116 See Earthreports, Inc. v. Fed. Energy Regulatory Comm’n, 828 F.3d 949,
952 (D.C. Cir. 2016).
117 Id. at 952.
118 Id. at 959.
119 See generally id.
120 Mingo Logan Coal Co. v. U.S. Envtl. Prot. Agency, 829 F.3d 710, 730-41
(D.C. Cir. 2016) (Kavanaugh, J., dissenting).
121 Id. at 717, 730; see also Clean Water Act, 33 U.S.C. §§ 1251-1388. The
Clean Water Act’s wetlands provisions, under Section 404 of the Act, have
proven to be a lightning rod for conservative legal activists, including Justice
Kavanaugh, over the years.
122 See generally Mingo Logan Coal Co., 829 F.3d at 732, 737-38 (Kava-
naugh, J., dissenting) (construing a cost-benet analysis to the EPA’s permit
decision making under Section 404 of the Clean Water Act).
123 See id.
124 Id. at 722, 723-24 n.7.
125 See id.
126 Carpenters Indus. Council v. Zinke, 854 F.3d 1, 2 (D.C. Cir. 2017).
127 Id.
128 Id.
129 Id.
130 Id.
131 Id. at 2-3.
132 Id. at 9.
133 See generally Clean Air Act, 42 U.S.C. §§ 7401-7671 (2012).
134 Coral Davenport, Appeals Court Hears Challenges to Obama’s Cli-
mate Change Rule, N.Y. timeS (Sept. 27, 2016), https://www.nytimes.
com/2016/09/28/us/politics/appeals-court-hears-challenge-to-obamas-climate-
change-rules.html.
135 42 U.S.C. § 7602(h).
136 549 U.S. 497 (2007).
137 See id. at 534.
138 See, e.g., Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 4 (D.C. Cir.
2009) (“The First Amendment, as interpreted by the Supreme Court, protects
the right of individual citizens to spend unlimited amounts to express their
views about policy issues and candidates for public ofce.”).
139 See, e.g., 42 U.S.C. § 7521(a)(1)–(3) (2012) (obligating the Agency’s to
make endangerment ndings in specic circumstances).
140 See generally Donald J. Wuebbles, David W. Fahey, & Kathy A. Hibbard,
Climate Science Special Report: Fourth National Climate Assessment, u.S.
global climate change reSearch program (2017) (analyzing how human-
caused climate pollution has led to a number of negative impacts including
wildlife and habitat declines).
26 Sustainable Development Law & Policy
141 See generally Robert Weissman, An analysis of Justice Kavanaugh’s Opin-
ions in Split-Decision Cases, public citizen (2018) (nding an “overwhelming
tendency to reach conclusions favorable to business interests and opposed to
consumers, workers, environmental protections, and victims of human rights
abuses”).
142 The U.S. Constitution places no upper or lower limit on the number of
Supreme Court justices. The number does not need to be nine. In the short
term, the Senate should not be “rushed” in conrming an ideological jurist
who would tip the balance of the Court, particularly with mid-term elections
coming up, as well as the ongoing criminal investigation of the President
and his aides. See, e.g., Bobby Cervantes, Ted Cruz Says ‘Long Historical
Precedent’ for Smaller Supreme Court, politifact (Nov. 23, 2016), https://
www.politifact.com/texas/statements/2016/nov/23/ted-cruz/ted-cruz-says-long-
historical-precedent-smaller-su/ (explaining that throughout the history of the
Supreme Court, there have been large gaps of time with only eight justices,
several times lasting over one year); Nick Fahey, The Supreme Court Can Deal
with Eight Justices, cnbc (Mar. 3, 2016), https://www.cnbc.com/2016/03/03/
the-supreme-court-can-deal-with-eight-justices.html (noting that nearly twenty
percent of all Supreme Court opinions since 1946 have been tie votes).
143 See, e.g., Igor Bobic, Democratic Senator says Brett Kavanaugh
conrmation process is “Not Normal,” huffington poSt (Sept. 2, 2018),
https://www.hufngtonpost.com/entry/brett-kavanaugh-documents_
us_5b8c0a28e4b0cf7b00373cf9; John Bowden, Feinstein ‘Alarmed’ National
Archives is Withholding Kavanaugh Documents, the hill (Aug. 8, 2018),
http://thehill.com/homenews/senate/400860-feinstein-alarmed-national-
archives-is-withholding-kavanaugh-documentshttp://thehill.com/homenews/
senate/400860-feinstein-alarmed-national-archives-is-withholding-kavanaugh-
documents; Sheryl Stolberg, White House Withholds 100,000 pages of Judge
Brett Kavanaugh’s Records, N.Y. timeS (Sept. 1, 2018), https://www.nytimes.
com/2018/09/01/us/politics/kavanaugh-records.html).
144 Jordain Carney, Republicans Conrming Trump’s Court Nominees
at Record Pace, the hill (May 1, 2018), https://thehill.com/homenews/
senate/385728-republicans-conrming-trumps-court-nominees-at-record-pace.
145 Cf. “And I brought you into a plentiful country, to eat the fruit thereof and
the goodness thereof: but when ye entered, ye deled my land, and made mine
heritage an abomination.” Jeremiah 2:7 (King James).
enDnoteS: real property SubleSSorS eScape cercla owner liability in the SeconD circuit
continued from page 21
8 See id. (adding that an employee of the sublessee later burned the site to the
ground, causing further PCE contamination).
9 See Next Millennium Realty, LLC v. Adchem Corp., 2017 WL 4350729,
at *10 (2017) (explaining that Next Millennium voluntarily conducted a
cleanup of the site upon purchase in 1987-98 and sought cost recovery and
contribution under CERCLA Sections 107, 113(f)(3)(B), and (g)(2)).
10 See Brief for Defendants-Appellees at 5, Next Millennium Realty, LLC v.
Adchem Corp., 2016 WL 5699964 (2d Cir. 2016) (No. 16-1260-cv) (arguing
that strict liability is justied due to NSR’s benet from the activities that
caused the contamination).
11 215 F.3d 321 (2d Cir. 2000).
12 See Next Millennium, 690 F. App’x at 714 (denying the plaintiff’s request
to overrule Commander Oil due to case law that says the court is bound by prior
decisions unless overruled by an en banc panel or by the Supreme Court).
13 See generally Commander Oil Corp., 215 F.3d at 321 (diverging from the
state-specic common law denition of “owner” under CERCLA).
14 See id. at 330-31 (explaining that the ve factors are non-exclusive).
15 See Next Millennium Realty, LLC v. Adchem Corp., No. CV
03-5985(ARL), 2014 WL 5425488, at *11 (E.D.N.Y. Oct. 22, 2014), aff’d sub
nom. Next Millennium Realty, LLC v. Adchem Corp., 690 F. App’x 710, 715
(2d Cir. 2017) (concluding that the landowner had the benets and responsibili-
ties of ownership).
16 See id. (refusing to hold the dissolved corporation responsible despite the
tenant acting as an owner by subleasing to an operator who caused the contami-
nation of the site).
17 See generally Commander Oil Corp., 215 F.3d at 327 (emphasizing the
distinctions between “owner” and “operator” and assigning liability based on
the unique facts of the case).
18 See Petition for Writ of Certiorari, supra note 1, at i (distinguishing the
facts of the case from the factors set by Commander Oil).
19 See Next Millennium Realty, LLC v. Adchem Corp., 138 S. Ct. 510 (2017)
(giving no explanation as to why the Supreme Court denied certiorari).
20 See generally, Next Millennium Realty, LLC v. Adchem Corp., No. CV
03-5985(GRB), 2016 WL 1178957 (E.D.N.Y. Mar. 23, 2016).
21 See Petition for Writ of Certiorari, supra note 1, at i, (asking the Supreme
Court to change the standards for determining owner liability under CERCLA).
22 See infra Part II (discussing Congressional intent and liability under
CERCLA).
23 See infra Part II (outlining CERCLA, liability, contribution, and the Circuit
split in owner liability under CERCLA).
24 See infra Part III (demonstrating that courts that follow state common law
denition of “ownership” place the nancial burden of cleanup on those respon-
sible for the contamination).
25 See infra Part IV (explaining that the Second Circuit does not have the
authority to overturn the awed test itself).
26 See infra Part V (concluding that the Second Circuit’s CERCLA interpreta-
tion does not hold true to the purpose of the statute).
27 See Joseph A. Fischer, All CERCLA Plaintiffs Are Not Created Equal:
Private Parties, Settlements, and the Ucata, 30 houS. l. rev. 1979, 1988-90
(1994).
28 See 126 Cong. Rec. 31, 981-82, reprinted in 1 Legislative History of the
Comprehensive Environmental Response, Compensation, and Liability Act,
1980, at 820-23 (1983).
29 Congress did not include a statement of congressional ndings or a
declaration of the statuteʼs policies, purposes, and goals as it usually does for
environmental statutes, but courts have divined the larger remedial purposes of
the statute. See OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d
1574, 1578 (5th Cir. 1997) (explaining that Congress enacted CERCLA to
facilitate prompt cleanup of hazardous waste sites and shift the cost of environ-
mental response from taxpayers to parties who benetted from activities that
caused harmful waste).
30 See 80 am. Jur. 3D Proof of facts § 281, 293-94 (2004) (detailing Con-
gress’s intent and scope for CERCLA liability).
31 See 42 U.S.C. § 9604(a) (2012) (highlighting the President’s broad author-
ity to act in response to contaminations).
32 The original House bill makes it clear that Congress intended to impose
liability on “any person who caused or contributed to the release or threatened
release . . . .” H.R. 7020, 96th Cong. § 3071(a)(1)(C) (1980), reprinted in 2 A
Legislative History of the Comprehensive Environmental Response, Compen-
sation, and Liability Act, 1980, at 39 (1983). However, this causation language
was omitted from the nal bill. See 126 Cong. rec. 31,981-82, reprinted
in 1 legiSlative hiStory of the comprehenSive environmental reSponSe,
compenSation, anD liability act, 1980, at 821-24 (1983); see also b.f.
gooDrich co. v. murtha, 958 f.2D 1192, 1198 (2D cir. 1992) (explaining that
CERCLA extends to those who contribute to the problems caused by hazard-
ous substances); 3550 Stevens Creek Assoc. v. Barclays, 915 f.2D 1355, 1363
(9th cir. 1990) (explaining that CERCLA resulted from compromise within
Congress to pass the statute quickly).
33 See 42 U.S.C. § 9607(b) (2012) (amending CERCLA to exempt subsequent
“innocent owners” from liability).
34 See 42 U.S.C. § 9601(20)(F) (2012) (clarifying that the denition of
“participation in management” requires more than “the capacity to inuence,
or the unexercised right to control . . . .”); Timothy Holly, Comment, Potential
Responsibility Under CERCLA: Canadyne-Georgia Corp. v. Nationsbank, N.A.
(South)— An Illustration of Why We Need a Common Federal Rule Dening
“Owned” and “Operated,” 12 vill. envtl. l.J. 119, 131–32 (2001) (noting
that while SARA helped achieve a comprehensive CERCLA program, it did not
clarify the circular denition of “owner”).
35 See Holly, supra note 34, at 168-69 (clarifying that “participating in the
management” as dened in ACA did not dene “owner” as dened in section
101 of CERCLA).
36 See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d
1074, 1081 (1986) (citing New York v. Shore Realty Corp., 759 F.2d 1032,
1045 (2d Cir. 1985)) (“[W]e will not interpret section 9607(a) in any way that
27
Fall 2018
apparently frustrates the statute’s goals, in the absence of a specic congres-
sional intent otherwise.”).
37 573 U.S. 1 (2014).
38 Id. at 17-19.
39 See OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574,
1578 (explaining that Section 107 does not limit recovery of response costs to
PRPs that caused the contamination).
40 See 42 U.S.C. §§ 9607(a)(1)-(4) (2012) (holding parties liable for govern-
ment response costs, private response costs, costs related to destruction or loss
of natural resources, and costs of health studies).
41 See United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 938
nation is not dispositive).
42 See New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985)
(noting that section 9607(a)(1) imposes strict liability on the current owner of a
facility from which there is contamination, without regard to causation).
43 42 U.S.C. § 9601(20)(A)(ii); see El Paso Nat. Gas Co. v. United States,
No. CV-14-08165-PCT-DGC, 2017 WL 2405266, at *2 (D. Ariz. June 2, 2017)
(explaining that when Congress assigns a circular denition, a court typically
looks to the word’s ordinary meaning).
44 Cf. United States v. Bestfoods, 524 U.S. 51, 66 (1998) (looking to the plain
denition and common law denition to determine “operator” liability under
CERCLA).
45 See Kelley v. U.S. Envtl. Prot. Agency, 15 F.3d 1100, 1107-08 (D.C. Cir.
1994) (explaining that Congress intended the courts to adjudicate Section 107,
rather than the Environmental Protection Agency); see also Reply Brief in
Support of Petition for Writ of Certiorari at 2, Next Millennium Realty, LLC
v. Adchem Corp., 2017 WL 5479484, *2-3 (2017) (demonstrating how courts
correctly looked to state common law to determine the appropriate interpreta-
denition of “owner or operator” prompts judiciary review).
46 See Shelby D. Green, Understanding CERCLA Through Webster’s New
World Dictionary and State Common Law: Forestalling the Federalization of
Property Law, 44 new eng. l. rev. 835, 868 (2010) (arguing that state prop-
erty law should replace federal standards).
47 See id. at 860 (noting that the U.S. Constitution does not dene property
law).
48 See Bestfoods, 524 U.S. at 66.
49 See id. at 63 (acknowledging the disagreement among courts as to whether
courts should apply state or federal common law).
50 See Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 327 (2d
Cir. 2000) (acknowledging that Congress gave “owner” a circular denition
under CERCLA).
51 See New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985)
(holding that causation is not a requirement to be held liable under CERCLA);
El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-DGC, 2017
WL 2405266, at *2 (D. Ariz. June 2, 2017) (holding parties liable retroactively
when Congress rst enacted the statute).
52 See Fischer, supra note 27, at 2007 (explaining that the burden of proving
divisibility is on the defendant).
53 See United States v. Chem-Dyne Corp., 572 F. Supp. 802, 807, 810 (S.D.
Ohio 1983) (applying joint and several liability when the harm is indivisible
regardless of whether there is a reasonable basis for apportionment and nd-
ing that the burden of proof on the defendants to prove that the harm is not
indivisible).
54 See Fischer, supra note 27, at 1979, 2006-07 (explaining the precedential
standard).
55 See Chem-Dyne Corp., 572 F. Supp. at 806–07.
56 See generally id. (evaluating the standards for liability under section 311
of the Clean Water Act and the Restatement divisibility rule and deciding to
evaluate cases based on their unique facts).
57 See Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1489 (D. Colo. 1985)
(citing 126 Cong. Rec. 30,932 (1980)) (encouraging courts to use state com-
mon law to determine when joint tortfeasors become liable under CERCLA to
incentivize settlement and therefore promote investment in land).
58 See 42 U.S.C. § 9613(f)(1) (2012) (clarifying CERCLA with SARA that
there is contribution); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d
Cir. 1992) (imposing joint and several liability where contamination is indivis-
ible); reStatement (SeconD) of tortS § 433a (am. law inSt. 1965) (presum-
ing liability to be joint and several without a reasonable basis upon which to
determine the contribution of each cause of a single harm);
59 See United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 935
(9th Cir. 2008) (noting that circuits have looked to common law principles of
tort for guidance as to how to impose joint and several liability), rev’d 556 U.S.
599 (2009).
60 See id.
61 See Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155, 156
(7th Cir. 1988) (clarifying that a party can be liable as an owner without a con-
nection to the release of pollution and permits).
62 See United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir. 1989)
(afrming joint and several liability).
63 See id. at 1508 (adding that to seek contribution, a defendant must demon-
strate that it paid more than its fair share).
64 See 42 U.S.C. § 9613(f) (2012); see, e.g., United States v. Twp. of Brigh-
ton, 153 F.3d 307, 318–319 (6th Cir. 1998) (using a list of factors to determine
divisibility that was part of an unsuccessful CERCLA amendment, sponsored
by Senator Al Gore and therefore known as the “Gore Factors”).
65 543 U.S. 157 (2004).
66 551 U.S. 128 (2007).
67 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 163 (2004).
68 See id. (distinguishing that CERCLA provides for a right to cost recovery
under Section 107 in some situations and a separate right to contribution under
Section 113 in other situations).
69 Small Business Liability Relief and Brownelds Revitalization Act, 42
U.S.C. §§ 9601, 9607 (2012) (enacting what is generally known as the 2002
Browneld Amendment).
70 See Consolidated Appropriations Act, 2018, H.R. 1625, 115th Cong., Div.
N § 5 (2018) (dening “bona de prospective purchaser” to include landown-
ers and tenants and reafrming their consequent exemption from CERCLA
liability).
71 See id. (establishing three avenues for tenants to assert a bona de prospec-
tive purchaser defense similar to the innocent landowner defense).
72 See 42 U.S.C. § 9601(20) (2012).
73 See Next Millennium Realty, LLC v. Adchem Corp., 138 S. Ct. 510 (2017)
(No. 17-468); Petition for Writ of Certiorari, supra note 1, at i.
74 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 447-48
(9th Cir. 2011) (looking to California property law); see also Next Millennium
Realty, LLC v. Adchem Corp., No. CV 03-5985(GRB), 2016 WL 1178957,
*5 (E.D.N.Y. Mar. 23, 2016), aff’d sub nom. Next Millennium Realty, LLC v.
Adchem Corp., 690 F. App’x 710 (2d Cir. 2017), cert. denied, 138 S. Ct. 510
(2017) (describing a circuit divergence in interpretation of the denition of
“owner” regarding CERCLA liability for sublessors).
75 See Petition for Writ of Certiorari, supra note 1, at 8–9 (explaining that
New York common law treats lessees as owners if they exercise control over a
site at the time of an injury-causing activity).
76 See, e.g., Rivera v. Nelson Realty, LLC, 858 N.E.2d 1127, 1128-29 (N.Y.
2006) (noting that a statute or contract may assign liability to a landlord for tort
on the property).
77 See Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 328 (2d
Cir. 2000) (abandoning New York common law principles).
78 See generally id. at 321 (suggesting that some sublessors may be held liable
as a de facto owner).
79 See id. at 324 (relieving Barlo from liability).
80 See id. (analyzing whether a sublessor can be held liable as a de facto
owner under CERCLA).
81 See id. at 325 (explaining that the original discovery of contamination was
nine years before this suit); see also 42 U.S.C. § 9601 (dening remediation as
“those actions consistent with permanent remedy taken instead of or in addition
to removal actions in the event of a release or threatened release of a hazardous
substance into the environment, to prevent or minimize the release of hazardous
substances so that they do not migrate to cause substantial danger to present or
future public health or welfare or the environment”).
82 See Commander Oil Corp., 215 F.3d at 325 (reversing partial summary
judgment).
83 See id. at 331–32 (showing that Commander Oil retained all rights of an
owner); see generally Next Millennium Realty, LLC v. Adchem Corp., 690 F.
App’x 710, 714 (2d Cir.), cert. denied, 138 S. Ct. 510 (2017) (explaining that
the decisions of prior panels bind the Second Circuit unless an en banc panel of
the Second Circuit, or the Supreme Court, overrules the decision).
84 See id. at 327–28 (distinguishing Bestfoods and Commander Oil); see
also id. at 328-29 (reasoning that site control is exclusively an “operator”
28 Sustainable Development Law & Policy
characteristic). See generally United States v. Bestfoods, 524 U.S. 51, 66
(1998) (dening “operate” as to manage, direct, or conduct contaminating
actions).
85 Bestfoods, 524 U.S. at 52.
86 Id. at 56 (noting that a circular denition requires court interpretation).
87 See Commander Oil, 215 F.3d at 328 (deciding to treat “owner” as separate
from “operator”).
88 See Petition for Writ of Certiorari, supra note 1, at 10 (noting that the Com-
mander Oil test encourages litigation).
89 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 447 (9th
Cir. 2011) (encouraging imposition of cleanup costs on those who are respon-
sible for contamination).
90 See id. at 449–50 (9th Cir. 2011) (emphasizing that a lease confers greater
possessory interest than a revocable permit).
91 See Long Beach Unied Sch. Dist. v. Dorothy B. Godwin Cal. Living Tr.,
32 F.3d 1364, 1368 (9th Cir. 1994) (looking to California property law).
92 See San Pedro Boat Works, 635 F.3d at 447.
93 See id. at 447.
94 See Long Beach Unied Sch. Dist., 32 F.3d at 1366, 1369 (demonstrating
voluntary acceptance of responsibility for contamination, which Congress
intended).
95 See id. at 1368 (explaining that circular denitions imply that terms take
their “ordinary” meaning).
96 635 F.3d. 440 (9th Cir. 2011).
97 See id. at 444–45 (explaining that revocable permits confer property interest
that is less than that of a lease); see also Reply Brief in Support of Petition for
Writ of Certiorari at 2, Next Millennium Realty, LLC v. Adchem Corp., 2017
WL 5479484 (2017) (arguing that leases usually have greater property interest
than revocable permits; therefore, Commander Oil and San Pedro Boat Works
have notably different approaches to CERCLA liability).
98 See San Pedro Boat Works, 635 F.3d at 447 (explaining that the successor-
in-interest constitutes an “owner” if Pacic American is an “owner”).
99 See id. at 443 (distinguishing ownership interests and possessory interests).
100 See id. at 451 (recognizing that Pacic American did not have the power to
convey the permit without the owner’s approval).
101 No. CV-14-08165-PCT-DGC, 2017 WL 2405266 (D. Ariz. June 2, 2017).
102 See id. at *1.
103 See id. at *4 (looking to state property law and rejecting the plaintiff’s argu-
ment that a party is liable if it merely holds fee title).
104 See id. at *5 (noting that California property law interprets “owner” without
a modier to mean “absolute owner”); see also Cal. Dep’t of Toxic Substances
Control v. Hearthside Residential Corp., 613 F.3d 910, 915 (9th Cir. 2010)
(dening ownership at the time cleanup costs are incurred to prevent delay of
lawsuits).
105 See Kelley v. U.S. Envtl. Prot. Agency, 15 F.3d 1100, 1111 (D.C. Cir.
1994) (explaining that the preponderance-of-the-evidence standard in § 106(b)
(2)(C) signals that Congress intended to reserve determinations of CERCLA
liability for the courts).
106 See generally Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1486 (D.
Colo. 1985) (explaining that Congress empowered federal courts to interpret the
statute within the intentions of the Congress).
107 See 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1365
(9th Cir. 1990) (reasoning that narrow interpretations of CERCLA liability
frustrate the purposes of the statute).
108 See id. at 1366 (Pregerson, J., dissenting) (explaining that there is no clear
common law remedy for disposal of commercial building materials that use
asbestos, and the court should have treated this issue more broadly and within
reach of CERCLA liability to follow Congressional intent).
109 See, e.g., El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-
DGC, 2017 WL 3492993, at *1 (D. Ariz. Aug. 15, 2017) (considering the pur-
pose of broad liability in determining that the defendants were liable as owners
under CERCLA).
110 See generally Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321
(2d Cir. 2000) (diverging from the state-specic common law denition of
“owner” under CERCLA).
111 See United States v. Bestfoods, 524 U.S. 51, 56 (1998) (reaching a deci-
sion based on the plain meaning of the word “operator” and state common law
as bedrock principles when Congress used the word “operator” and gave the
term a circular denition); ASARCO, 608 F. Supp. at 1490 (using the Second
Circuit’s ve-factor ownership test to dene “ownership” of both PRPs and
“victims” of cleanup costs for contamination under CERCLA).
112 See James Morrow, Owning Up: Determining the Proper Test for Owner-
ship Liability Under CERCLA, 43 waSh. u. J.l. & pol’y 333, 350 (2013)
(explaining that site control is indicative of operation rather than ownership).
See generally City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 448
(9th Cir. 2011) (recognizing that site control is an important consideration in
determining ownership, but that alone, it is insufcient).
113 See Petition for Writ of Certiorari, supra note 1, at i (emphasizing that Con-
gress intended courts determine liability using the state property law denition
of “owner”).
114 See OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574,
1578 (5th Cir. 1997) (noting that CERCLA creates private rights of action).
But see New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985)
(clarifying that Congress rejected a causation requirement for liability despite
the underlying goal to place the nancial burden of contamination on those who
are connected to the site).
115 See Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 613
(2009) (conrming the importance of developing common law in dening
the scope of CERCLA liability nine years after Commander Oil was tried and
common law rule in favor of contribution).
116 See ASARCO, 608 F. Supp. at 1489 (citing 126 Cong. Rec. 30,932 (1980))
(emphasizing that developing the common law would foster uniformity among
judicial interpretation of the statute).
117 See United States v. Bestfoods, 524 U.S. 51, 64 (1998) (explaining that
circuits disagree over whether to rely on state common law or federal common
law for veil piercing). Compare Long Beach Unied Sch. Dist. v. Dorothy B.
Godwin Cal. Living Tr., 32 F.3d 1364, 1368 (9th Cir. 1994) (concluding that
the circular denition of “owner” within the statute demonstrates Congress’s
intent that courts incorporate common law denitions within the terms of the
statute), with Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 327
(2d Cir. 2000) (reasoning that the circular denition of “owner” within the stat-
ute “does not automatically assign liability to every party that has a connection
to the contaminated facility”).
118 See, e.g., El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-
DGC, 2017 WL 3492993, at *1 (D. Ariz. Aug. 15, 2017) (looking to the reme-
dial purpose of broad liability in determining that the defendants were liable as
owners under CERCLA).
119 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 443,
449 (9th Cir. 2011) (rejecting the Second Circuit’s factor test as susceptible
to manipulation); see, e.g., Petition for Writ of Certiorari, supra note 1, at
8 (showing that Commander Oil is susceptible to manipulation in litigation
because the factors are unclear which allows courts too much discretion which
would result in a narrower interpretation of CERCLA liability).
120 See San Pedro Boat Works, 635 F.3d at 443 (emphasizing further the
importance in the ability to be able to seek contribution so that investors in land
know what to expect and can take actions that do not make themselves suscep-
tible to this manipulation).
121 See id. at 447 (suggesting that the government would prefer to allow liberal
contribution to incentivize landowners pay for their own cleanup of contamina-
tion, rather than rely on government funding to clean up).
122 See Petition for Writ of Certiorari, supra note 1 (arguing that the Second
Circuit’s interpretation of ownership liability does not accomplish the remedial
goals of the statute to hold those responsible that created the contamination).
123 See OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574,
1578 (5th Cir. 1997) (explaining that remedial actions are generally permanent
responses whereas removal actions are generally immediate or interim).
124 See Petition for Writ of Certiorari, supra note 1, at 9 (arguing that where a
tenant subleases a site without notice or consent to the owner and benets from
the sublease, there should be a path of liability to hold the sublessor liable for
the cleanup of the sublessee’s contaminating actions).
125 See id. (arguing that the Commander Oil ownership test is susceptible to
manipulation in litigation, which makes the test inconsistent with Congress’s
intent).
126 See, e.g., Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 330
(2d Cir. 2000) (holding Barlo not liable as an owner despite Barlo having attri-
butes of ownership because Barlo did not manage, direct, or conduct operations
specically related to the pollution).
127 See Petition for Writ of Certiorari, supra note 1, at 8 (suggesting that where
a sublessor completely facilitates and controls access to property when pollu-
tion occurs that such sublessors should not be relieved from owner liability).
29
Fall 2018
128 See, e.g., City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 449
(9th Cir. 2011) (rejecting both the Commander Oil ownership test and the site
control test for not clearly outlining what an investor in a facility can expect
when seeking contribution from other PRPs).
129 See Commander Oil, 215 F.3d at 330 (creating a ve-factor test based on
the specic facts of a case rather than from legislative history); 126 Cong. Rec.
30,932 (1980) (emphasizing the intent for a broad interpretation of CERCLA
liability).
130 See Petition for Writ of Certiorari supra note 1, at 8–9 (arguing that the
Supreme Court should overrule Commander Oil because it does not follow the
remedial purposes of the statute).
131 See, e.g., Rivera v. Nelson Realty, LLC, 858 N.E.2d 1127, 1129 (N.Y.
2006) (noting that statute or contract may assign liability to a landlord for tort
on the property, but this is not the presumption).
132 See Commander Oil, 215 F.3d at 329 (releasing a tenant from ownership
liability despite having attributes of ownership, thereby allowing a PRP to
escape liability when Congress intended that PRP to be held liable for cleanup
costs).
133 See id. (expanding upon the site control test, which follows the state com-
mon law denition of “ownership” along with occupation of a property, which
creates a higher standard for PRPs to meet).
134 See id. at 328 (reasoning that the denition of “operator” assigned by the
Supreme Court in Bestfoods should not overlap with the denition of “owner”).
135 See id. at 328–29 (nding that site control alone is an improper basis for the
imposition on sublessees of owner liability).
136 See id. at 327 (noting that Congress gave “owner” a circular denition
under CERCLA).
137 See id. at 329 (acknowledging that lessees are often liable as operators, but
not usually as owners under CERCLA).
138 See United States v. Bestfoods, 524 U.S. 51, 52 (1998) (noting that com-
mon law principles are the presumption for interpreting a statute that does not
directly instruct otherwise); Petition for Writ of Certiorari, supra note 1, at 8
(emphasizing that property law is a matter of state law, not federal law).
139 Cf. Bestfoods, 524 U.S. at 65 (nding that PRPs may be liable as operators
where they are not liable as owners).
140 See Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1489 (D. Colo. 1985)
(supporting the development of the federal common law to achieve uniformity
of the law).
141 See United States v. Md. Bank & Tr. Co., 632 F. Supp. 573, 577 (D. Md.
1986) (explaining that a party may be held liable as “the owner and operator,”
and also may be held liable as either the “owner” or the “operator”).
142 See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.
1985) (holding the defendant liable as both owner and operator).
143 See 42 U.S.C. § 9607(a)(1)-(2) (stating “the owner and operator of a vessel
or a facility” and “any person who . . . owned or operated”); see, e.g., Shore
Realty Corp., 759 F.2d at 1052 (suggesting that an “owner” may or may not
also be the “operator” of a property).
144 See Maryland Bank, 632 F. Supp. at 578 (nding that operator and owner
can be held liable separately but acknowledging from the grammar of statute
that a party can be held liable as both).
145 See id. (explaining that due to Congress’s haste in writing the statute, courts
need not interpret the statute as exact).
146 See generally Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1486 (D.
Colo. 1985) (noting that federal courts may use their discretion to interpret the
statute within the intentions of the Congress).
147 See id. (concluding that Congress empowered federal courts to decide
whether to permit contribution among responsible parties).
148 See generally Petition for Writ of Certiorari, supra note 1 (comparing the
Second Circuit ownership test to the Ninth Circuit approach to CERCLA own-
ership liability and arguing that the Second Circuit ownership test is incorrect).
149 See El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-DGC,
2017 WL 2405266, at *4 (D. Ariz. June 2, 2017) (relying on California case
law to determine that a fee title owner has control over how a holder of a permit
uses the property).
150 Compare id. at *7 (citing Castlerock Estates, Inc. v. Estate of Markham,
871 F. Supp. 360, 364 (N.D. Cal. 1994)) (questioning “indicia of ownership,”
which may no longer be good law in California, in determining owner liability
under CERCLA, and noting that even San Pedro discussed the unique facts
of the case to support its nding), with Commander Oil Corp. v. Barlo Equip.
Corp., 215 F.3d 321, 330-331 (2d Cir. 2000) (applying the unique facts of the
case to a factor test to determine liability, and expanding the common law site
control test).
151 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 449 (9th
Cir. 2011) (rejecting both the Commander Oil test and the “site control” test).
152 See, e.g., Long Beach Unied Sch. Dist. v. Dorothy B. Godwin Cal. Living
Tr., 32 F.3d 1364, 1368 (9th Cir. 1994) (analyzing mostly California common
law); San Pedro Boat Works, 635 F.3d at 448 (looking to common law to
distinguish between ownership interests and possessory interests); El Paso Nat.
Gas Co., 2017 WL 2405266, at *5 (following the example of common law to
look to the law governing the property rather than to the unique facts of the
case).
153 Compare El Paso Nat. Gas Co., 2017 WL 2405266, at *5 (questioning
whether fee title is sufcient to dene ownership for liability under CERCLA)
with Commander Oil, 215 F.3d at 330 (deciding that site control alone is insuf-
cient for dening ownership under CERCLA).
154 See, e.g., San Pedro Boat Works, 635 F.3d at 449 (looking to state common
law to determine that merely holding possessory interests does not constitute an
ing to state common law to determine that holding an easement does not itself
constitute “ownership” holding).
155 See Long Beach Unied Sch. Dist., 32 F.3d at 1368 (noting that Congress
purposefully wrote a circular denition for “owner” in CERCLA).
156 See id. at 1370 (afrming the district court’s decision to grant the defen-
dant’s motion to dismiss, because merely having an easement does not consti-
tute “ownership”).
157 See id.
158 Id. at 1368 (recognizing the distinctions between property interest and
rights of exclusion, and between owning an easement and owning the property
itself).
159 See generally San Pedro Boat Works, 635 F.3d at 443 (holding that because
Pacic American was a holder of mere possessory interests, BCI Coca-Cola
was not an owner and therefore not held liable as an owner).
160 See id. (holding that Pacic American was not liable as an owner for contri-
bution to costs of cleanup).
161 See Petition for Writ of Certiorari, supra note 1, at 8 (calling upon the
Supreme Court to overturn the Second Circuit’s ownership test).
162 See id. at 9 (explaining that under New York common law, courts gener-
ally hold tenants and not landlords responsible for injury caused by the leased
property).
163 See El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-DGC,
2017 WL 3492993, at *5 (D. Ariz. Aug. 15, 2017) (emphasizing the relevance
of federal statutory and common law in addition to the ordinary meaning of
property ownership in deciding to hold the party liable that was responsible for
the contamination).
164 See id. at *3. (noting that no authority limits ownership to one entity).
165 See id. at *5. (explaining that although the Navajo Nation had a signicant
property interest in the land, the defendants were held liable as owners when
considering the remedial purpose of the statute and the defendants’ supervisory
and plenary powers in the land).
166 See, e.g., City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 447
(9th Cir. 2011) (relieving a party who did not know or have reason to know of
the contamination); Long Beach Unied Sch. Dist. v. Dorothy B. Godwin Cal.
Living Tr., 32 F.3d 1364, 1366 (9th Cir. 1994) (avoiding placing the burden on
those who merely have an easement for the facility and are not responsible for
the pollution); El Paso Nat. Gas Co., 2017 WL 2405266, at *1, *5 (D. Ariz.
June 2, 2017).
167 See Petition for Writ of Certiorari, supra note 1, at 11 (noting that Congress
intended to encourage parties to share the costs of cleanup).
168 613 F. 3d 910 (9th Cir. 2010).
169 See id. at 916 (calculating the statute of limitations from the time a party
incurs cleanup costs).
170 See id. at 915 (noting that lawsuits would be delayed if ownership was
calculated at the time a lawsuit was led).
171 See Next Millennium Realty, LLC v. Adchem Corp., No. CV
03-5985(GRB), 2016 WL 1178957 (E.D.N.Y. Mar. 23, 2016), aff’d sub
nom. Next Millennium Realty, LLC v. Adchem Corp., 690 F. App’x 710 (2d
Cir. 2017), cert. denied, 138 S. Ct. 510 (2017) (holding the subsequent buyer
liable as the owner and not allowing the subsequent buyer to receive contribu-
tion from the other PRPs).
30 Sustainable Development Law & Policy
172 See Petition for Writ of Certiorari, supra note 1, at 10 (noting that Congress
intended that PRPs share the costs of cleanup and therefore the subsequent
buyer could have sought contribution from the PRPs).
173 Next Millennium, 690 F. App’x at 714 (explaining the plaintiff’s argument
that tenants who sublease a site without notice or consent to the owner and
benet from the sublease should be held liable for the cleanup of contaminants
that occur as a result of the sublease).
174 See id. (emphasizing that the subsequent purchaser was understandably
condent that the other PRPs would be held liable).
175 See Petition for Writ of Certiorari, supra note 1, at 7 (demonstrating the
room for manipulation in Second Circuit litigation of CERCLA liability, which
makes the Commander Oil factor test invalid and inconsistent with Congress’s
intent).
176 See OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574,
1578 (5th Cir. 1997) (specifying that all sued parties are “potentially liable”).
177 See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992)
(expressing that the Supreme Court has held that courts should follow the plain
language of the statute); 3550 Stevens Creek Assocs. v. Barclays Bank, 915
F.2d 1355, 1363 (9th Cir. 1990) (enforcing broad interpretations that the statute
also permits on its face).
178 See Petition for Writ of Certiorari, supra note 1, at 8 (explaining that under
New York common law, liability in tort concerning property generally depends
on occupation and control, and New York’s courts followed this principle to
interpret state environmental statutes). But see Dept. of Toxic Substances
Control v. Hearthside Residential Corp., 613 F.3d 910, 914 (9th Cir. 2010)
(explaining that the statute of limitations is calculated from the time cleanup
costs are incurred).
179 See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.
1985) (nding the defendant sufciently liable as both owner and operator of
the facility).
180 See United States v. Md. Bank & Tr. Co., 632 F. Supp. 573, 577 (D. Md.
1986) (explaining that a party may be held liable as “the owner and operator,”
the “owner,” or the “operator”).
181 See id. at 578 (assigning operator and owner liability separately and
explaining the imperfect nature of the statute’s grammar).
182 See Petition for Writ of Certiorari, supra note 1, at i (arguing that tenants
who sublease a site without notice or consent to the owner and benet from the
sublease should be held liable for the cleanup of contaminants that occur as a
result of the sublease).
183 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 444–45
(9th Cir. 2011) (recognizing that the PRP did not have the power to convey the
revocable permit without the landowner’s approval and thus did not pass the
“bundle of sticks” rule).
184 See Petition for Writ of Certiorari, supra note 1, at 8–9 (relying on state
common law for land and buildings, and specifying that in New York common
law, this rule remains the presumption unless expressly modied by contract or
statute).
185 See id. (concluding that because New York common law generally depends
on occupation and control, the sublessor of the facility, not the landlord, should
be held responsible).
186 See 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1365
(9th Cir. 1990) (nding that CERCLA’s strict liability cannot be extended to
past and present owners of buildings containing asbestos).
187 Compare Next Millennium Realty, LLC v. Adchem Corp., No. CV
03-5985(GRB), 2016 WL 1178957 (E.D.N.Y. Mar. 23, 2016), aff’d sub
nom. Next Millennium Realty, LLC v. Adchem Corp., 690 F. App’x 710 (2d
Cir. 2017), cert. denied, Next Millennium Realty, LLC v. Adchem Corp., 138
S. Ct. 510 (2017) (describing that the sublessor may have exercised site control
over the property, but still nding that the sublessor was not liable for contribu-
tion because it was dissolved) with 3550 Stevens Creek Assocs., 915 F.2d at
1365 (noting that the PRP did not hold the “bundle of rights” that are required
under California common law to constitute ownership, and therefore nding the
PRP not liable as an owner under CERCLA).
188 See 3550 Stevens Creek Assocs., 915 F.2d at 1365 (Pregerson, J., dissent-
ing) (noting that Section 107(a)(2) applies to a narrow private class of landown-
ers under CERCLA).
189 See id. (recognizing that a narrow interpretation of CERCLA liability
would frustrate the purpose of the statute, and instead applying a narrow
interpretation of owner liability due to lack of relevant common law regarding
asbestos disposal).
190 See Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 327 (2d
Cir. 2000) (recognizing the difculty in limiting CERCLA liability, yet limiting
liability to those who do not pass a ve-factor test).
191 See id. at 327–28 (distinguishing between Bestfoods and Commander
Oil). See generally United States v. Bestfoods, 524 U.S. 51, 52 (1998) (den-
ing “operator” as the entity that manages, directs, or conducts contaminating
actions).
192 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 448 (9th
Cir. 2011) (specifying that an easement alone does not constitute ownership and
that other elements are required to be liable under CERCLA).
193 See id. at 445 (looking to common law in the state where the land at issue is
located).
194 See id. at 447 (explaining that BCI Coca-Cola, as successor-in-interest to
Pacic American, would constitute an “owner” if Pacic American constitutes
an “owner”).
195 See id. at 448–49 (considering case law where courts looked at site control
to determine ownership and expressly rejecting the Commander Oil factor test
as nebulous and exible).
196 See id. at 449 (rejecting the Second Circuit’s factor test as susceptible to
manipulation).
197 See Petition for Writ of Certiorari, supra note 1, at 9 (explaining that New
York common law presumes tenants and not landlords are held responsible for
injury caused by leased property).
198 See id. (stating that the Ninth Circuit follows Congress’s intent to hold
liable as owners those who retained the power of the property).
199 See id. at 8-9 (explaining that New York common law has treated les-
sees as owners when they have control over the site at the time of injury or
contamination).
200 See generally id. (summarizing that the New York common law test for
ownership is whether the party had occupation and site control).
201 See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992);
3550 Stevens Creek Associates v. Barclays Bank, 915 F.2d 1355, 1363 (9th Cir.
1990) (enforcing broad interpretations that are also permitted on the face of the
statute).
202 See Petition for Writ of Certiorari, supra note 1, at 6–7 (arguing that the
indicia of ownership test is unpredictable).
203 See 3550 Stevens Creek Associates, 915 F.2d at 1363 (interpreting CER-
CLA broadly because it is a remedial statute).
204 See El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-DGC,
2017 WL 3492993, at *5 (D. Ariz. Aug. 15, 2017) (specifying that the defen-
dants granted the Navajo Nation exclusive use and occupancy of the property,
and yet the defendants remained liable as owners).
205 See id. (nding that the defendants’ power over the land contributed to their
liability as owners under CERCLA).
206 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 449 (9th
Cir. 2011) (dening the term “owner” by common law rather than by a factor
test and criticizing the Commander Oil ve-factor test as easy to manipulate in
litigation due to exible factors).
207 Compare El Paso Nat. Gas Co., 2017 WL 2405266, at *7 (citing Cas-
tlerock Estates, Inc. v. Estate of Markham, 871 F. Supp. 360, 364 (N.D. Cal.
1994)) (questioning the role of “indicia of ownership,” which may no longer
be good law in California, in determining owner liability under CERCLA, and
noting that even San Pedro discussed the unique facts of the case to support
its nding), with Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321,
330-331 (2d Cir. 2000) (applying the unique facts of the case to a factor test to
determine liability, and expanding the common law site control test).
208 See El Paso Nat. Gas Co., 2017 WL 2405266, at *7 (focusing on the rel-
evant common law).
209 See Petition for Writ of Certiorari, supra note 1, at 7 (noting that the ve
factors are easy to manipulate due to their nebulous nature).
210 See id. (noting that New York’s courts followed the common law to inter-
pret state environmental statutes).
211 See, e.g., El Paso Nat. Gas Co., 2017 WL 3492993, at *5 (holding defen-
dants liable because they had signicant power and control over the property).
212 See Petition for Writ of Certiorari, supra note 1, at 7 (explaining that New
York common law generally holds tenants and not landlords responsible for
injury caused by the leased property).
213 See OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574,
1578 (5th Cir. 1997) (distributing liability among those who were responsible
for the contamination, so that they bore the nancial burden of the costs of
cleanup of the contamination).
31
Fall 2018
214 See, e.g., 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355,
1363 (9th Cir. 1990) (recognizing that despite broad interpretation of CERCLA
liability, construction of a statute cannot extend to what is not permitted on the
face of the statute or to what is not supported by legislative history).
215 See Petition for Writ of Certiorari, supra note 1, at 10 (arguing that Con-
gress should create a clear path for liability of lessees where a tenant has exclu-
sive control of a facility, subleases without the landlord’s consent or notice, and
prots substantially from subleasing the facility).
216 See id. at 9–10 (referencing judicial precedent that promotes recovery from
responsible parties).
217 See id. at 10 (emphasizing that a sublessor who has exclusive control over a
facility should be an indicator of ownership).
218 See id. (explaining that Next Millennium agreed to conduct the site reme-
diation, with the condence that other liable parties would contribute to the
nancial burden).
219 See id. (noting that Congressional intent is typically followed by courts,
with the Second Circuit as the exception).
220 See id. (noting that the Second Circuit has not followed congressional
intent). See generally City of Los Angeles v. San Pedro Boat Works, 635 F.3d
440, 449 (9th Cir. 2011) (rejecting the Commander Oil ownership test because
it does not clearly outline what an investor in a facility can expect).
221 See Fischer, supra note 27, at 1987 (explaining that government response
rather than private cleanup delays cleanup).
222 See id. at 1984 (explaining that government response rather than private
cleanup delays cleanup).
223 See Next Millennium Realty, LLC v. Adchem Corp., 138 S. Ct. 510, 199
(2017) (providing no explanation as to why certiorari was denied).
224 See generally Petition for Writ of Certiorari, supra note 1 (arguing that the
ve-factor Commander Oil test does not allow an investor in land to predict the
outcome of a contribution suit).
225 See, e.g., id. (showing that Commander Oil is susceptible to manipulation
in litigation because the factors are unclear, giving courts too much discretion
which is likely to result in a narrower interpretation of CERCLA liability).
226 See, e.g., id. at i (emphasizing that the subsequent purchaser was under-
standably condent that the other PRPs would be held liable under CERCLA
Section 113(f)).
227 See Fischer, supra note 27, at 1987 (noting the importance of private
cleanup, and that the CERCLA amendments conrm the importance of the
remedial goals of the statute).
228 See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 448–49
(9th Cir. 2011) (considering case law where courts looked at site control to
determine ownership and expressly rejecting the Commander Oil factor test as
nebulous and exible).
229 See generally id. (explaining that parties of a CERCLA suit should be able
to expect a certain outcome, which would incentivize quick settlements).
230 See 42 U.S.C. § 9601(20)(a) (2012) (dening “owner or operator” as a
party that owns or operates); Petition for Writ of Certiorari, supra note 1, at 8
(calling upon the Supreme Court to overturn the Second Circuit’s ownership
test).
231 See Next Millennium Realty, LLC v. Adchem Corp., No. CV
03-5985(GRB), 2016 WL 1178957 (E.D.N.Y. Mar. 23, 2016), aff’d sub
nom. Next Millennium Realty, LLC v. Adchem Corp., 690 F. App’x 710 (2d
Cir. 2017), cert. denied, 138 S. Ct. 510 (2017) (denying the plaintiff’s request
to overrule Commander Oil due to case law that says the court is bound by prior
decisions unless overruled by an en banc panel or by the Supreme Court).
232 Cf. Holly, supra note 34 at 159-61 (emphasizing the need for uniformity in
the application of CERCLA).
233 Cf. id. (noting the diversity among state case law under CERCLA).
234 See generally Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d
321 (separating “owner” and “operator,” therefore limiting liability to either
“owner” or “operator” liability rather than both).
235 The Supreme Court must wait to grant certiorari in a case alternative to
Next Millennium, where the tenant corporation has not been dissolved. Cf. Peti-
tion for Writ of Certiorari, supra note 1, at 8 (arguing that the Supreme Court
should overrule Commander Oil).
236 See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992)
(prioritizing congressional intent when making pivotal decisions regarding
CERCLA interpretation).
237 See Petition for Writ of Certiorari, supra note 1, at i (asking the Supreme
Court to change the standards for determining owner liability under CERCLA).
238 See, e.g., El Paso Nat. Gas Co. v. United States, No. CV-14-08165-PCT-
DGC, 2017 WL 3492993, at *1 (D. Ariz. Aug. 15, 2017) (relying on CER-
CLA’s remedial purpose to support that the defendants were liable as owners
under CERCLA).
239 See, e.g., id. at *1 (noting that the Ninth Circuit’s approach to owner liabil-
ity under CERCLA allows parties of a case to predict the outcome).
240 See Fischer, supra note 27, at 2003 (noting that CERCLA attempts to
remove hazards of contamination quickly and efciently).
