Understanding Causation and Threshold of Release in CERCLA Liability: The Difference Between Single- and Multi-Polluter Contexts
Toxic waste has become an increasing public health problem in America.' Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act CCERCLA" or "the Ace) in 1980, as a means to improve the efficiency of hazardous waste site cleanups. CERCLA encourages parties to clean up toxic sites by allowing those parties to recover response costs from potentially responsible parties (TRPs"). To accomplish this goal, CERCLA contains an expansive liability scheme that imposes strict liability on, among others, a party that has released or threatened release of a toxic substance that has caused or may cause the incurrence of response costs. Liability under CERCLA may be joint or several. CERCLA is notoriously ambiguous, leaving many questions open to judicial interpretation. This Note, for instance, addresses the issue of whether CERCLA's strict liability scheme includes a causation or minimum threshold of release element or defense. Courts and commentators have taken different approaches and views on this issue. While the Supreme Court has not addressed this issue, the question is significant because the burden of establishing liability affects the speed and efficiency with which toxic waste sites are cleaned.