Vanderbilt Law Review

First Page



The rise of environmental concerns in the 1950s and 1960s' led Congress to adopt a number of statutes designed to curtail the pro- duction of air and water pollution as well as to promote the proper handling, storage, and disposal of those substances capable of contaminating the nation's natural resources. Citizen suit provisions were eventually incorporated into these environmental statutes in an effort to supplement what many perceived to be less than diligent governmental enforcement measures. However, despite early congressional efforts to regulate air and water pollution, disposal of hazardous waste on land went largely unregulated. This legislative oversight resulted in the widespread transfer of air and water pollution, the disposal of which was highly regulated and incredibly expensive, into land pollution, where unregulated disposal was a relative bargain. Congress soon came to realize that simply transferring pollution from one medium to another did little to reduce the environmental risks of hazardous waste. In 1976, Congress passed the Resource Conservation and Recovery Act ("RCRA") in an attempt to "eliminate the last remaining loophole in environmental law," that of unregulated pollution transferss RCRA is a comprehensive environmental statute designed to regulate solid and hazardous wastes from "cradle to grave." Like nearly every modern environmental statute, RCRA includes a variety of enforcement mechanisms, including a citizen suit provision.

Despite certain unique advantages, RCRA's citizen suit provision was not thought to provide for the recovery of past environmental cleanup costs. As a result of this limitation, innocent landowners, forced to remediate toxic waste sites before suing those at fault, were occasionally left without a means to recover their environmental cleanup costs. Concerned by this dilemma, the Ninth Circuit, in KFC Western Inc. v. Meghrig, broke with traditional thinking and held that RCRA's imminent citizen suit provision provides plaintiffs a private right of action to recover their past environmental response costs. Shortly thereafter, the Eighth Circuit, in Furrer v. Brown, rejected the reasoning of KFC, denying the recovery of response costs under similar circumstances. In September 1995, the Supreme Court agreed to hear KFC to resolve the circuit court split.'