A Year After Waldburger, Are Lower Courts Ready To Dump CERCLA's Broad Remedial Purpose?

In the Winter 2015 issue of the ABA's Natural Resources & Environment magazine, John Barkett retraced the Supreme Court's treatment of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) from Key Tronic to Waldburger and, looking back over that history, he makes the unassailable observation that the Court's decisions have been, and will continue to be, guided by the plain meaning of CERCLA's text. See e.g., Burlington Northern & Santa Fe Railway v. United States, 556 U.S. 599 (2009)("liability may not extend beyond the limits of the statute itself"); Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004)("Given the clear meaning of the text, there is no need . . . to consult the purpose of CERCLA at all."). While Superfund lawyers, and the Justices themselves, may argue over the plain meaning of a given statutory term or phrase, a majority of the Court has not deviated from this textual approach to CERCLA disputes.

The Court's consistency stands in stark contrast to the lower courts' historical tendency to be guided, not by CERCLA's text, but by its supposedly "broad remedial purpose." Indeed more than 125 District Court and Court of Appeals opinions proffer CERCLA's broad remedial purpose as a basis for the outcome of the case. Given how unequivocally the Supreme Court has endorsed a textualist...