Is the United States v. Olin Decision Full of Sound and Fury Signifying Nothing?: The Future of Retroactive Liability of the Comprehensive Environmental Response, Compensation, and Liability Act

Abstract

Because multitudes of Troop 1313s exist, a host of reformers from all levels of government and law urge major restructuring of CERCLA. While some support for maintaining the status quo exists, the more pervasive notion holds that CERCLA falls woefully short of its original and most fundamental charge--to clean up hazardous waste sites across the country-and ushers in a new urgency for the statute's reform. Instead of marshaling and funding cleanups, CERCLA has left a bitter trail of broken promises and bankrupt Troop 1313s. Many tab CERCLA's retroactivity as a primary cause of this disappointment. Following several uninterrupted years of retroactive application, a 1996 Alabama District Court in United States v. Olin Corp., became the first court to hold that CERCLA should not apply retroactively. In addition, several congressional leaders have recently conditioned CERCLA reauthorization on the elimination of the retroactive element of CERCLA's liability scheme. As criticism of CERCLA mounts, retroactivity draws much fire. Given the atmosphere of reform already hovering in the air, these recent developments warrant a renewed look at the viability and fairness of CERCLA retroactivity. Olin's reversal on appeal does not minimize the underlying CERCLA policy debate which continues to be waged, and Olin continues to be a lightning rod for discussion of CERCLA retroactivity. This Comment will further that discussion by addressing whether CERCLA retroactivity should continue and what form it should ultimately adopt.

Section II of this Comment frames the statute in its impetus and legislative history. First, this section traces the congressional actions and social outcry which triggered CERCLA's passage. More particularly, this section measures the congressional intent behind retroactivity, given its central role in any judicial ruling on the question. This section will then examine the early line of court cases which established the retroactive liability. Finally, Section II looks to recent events culminating in the United States v. Olin Corp. decision denying CERCLA retroactivity and its subsequent reversal on appeal. Section III documents the arguments supporting CERCLA retroactivity as imperative to the bill's purpose. Section IV presents the fundamental arguments in opposition to CERCLA retroactive application, focusing on fairness. Section V lays out several viable proposals for CERCLA modification and reform. Section VI concludes that, in order to both remain true to its site cleanup mission and to avoid egregious inequities, CERCLA should adopt a negligence standard for pre-enactment PRPs-thereby applying retroactivity only to culpable parties.