The Effectiveness and Fairness of Superfund's Judicial Review Preclusion Provision
By Michael P. Healy
INTRODUCTION
This article examines the effectiveness and fairness of section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). That broadly-worded provision forecloses judicial review of Superfund cleanups prior to enforcement or cleanup completion by requiring that any review action fall within several narrowly-defined exceptions.
After providing an overview of the statute, its enforcement mechanisms, and a context for considering section 113(h), the article summarizes how courts have applied CERCLA's timing of review provision, focusing principally on recent interpretations of the provision. Finally, the article evaluates the effectiveness and fairness of CERCLA review preclusion and concludes by offering recommendations about how the provision should be interpreted and amended.
Given the terms and intent of section 113(h), courts uniformly hold that a district court lacks jurisdiction when, prior to a government action to recover response costs, a potentially responsible party (PRP) seeks judicial review to determine its liability under section 107 of CERCLA. By foreclosing review of such claims, the provision has been quite effective in ensuring that cleanups are not slowed as a result of litigation concerning CERCLA liability. However, because section 113(h) postpones litigation of the liability issue, the review preclusion provision intensifies PRP concerns about the fairness of CERCLA's liability scheme.
Section 113(h) has been less effective in foreclosing immediate judicial review of CERCLA claims that are unrelated to liability, with a minority of courts deciding that immediate review is available because delayed review would be inadequate. A particularly troublesome claim of this type is present when a plaintiff contends that the implementation of the challenged response action will itself do irreparable harm to public health and the environment. If section 113(h) forecloses review of this type of claim until after implementation of the response action, the provision operates to bar adequate review of the claim because the health-based concerns arise out of the planned cleanup measures themselves.
Courts must also decide whether section 113(h) bars federal court jurisdiction when claimants rely on other federal statutes or the Constitution to gain review of a CERCLA response action. Courts have come to a variety of inconsistent conclusions about whether the provision forecloses review in these cases. When courts have decided that section 113(h) does not bar judicial review, they have typically allowed review because of fairness concerns. That is, notwithstanding the broad and categorical terms of section 113(h), concern for the preservation of statutory and constitutional rights through timely judicial review has motivated such grants of early review.
This article examines the effectiveness and fairness of section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). That broadly-worded provision forecloses judicial review of Superfund cleanups prior to enforcement or cleanup completion by requiring that any review action fall within several narrowly-defined exceptions.
After providing an overview of the statute, its enforcement mechanisms, and a context for considering section 113(h), the article summarizes how courts have applied CERCLA's timing of review provision, focusing principally on recent interpretations of the provision. Finally, the article evaluates the effectiveness and fairness of CERCLA review preclusion and concludes by offering recommendations about how the provision should be interpreted and amended.
Given the terms and intent of section 113(h), courts uniformly hold that a district court lacks jurisdiction when, prior to a government action to recover response costs, a potentially responsible party (PRP) seeks judicial review to determine its liability under section 107 of CERCLA. By foreclosing review of such claims, the provision has been quite effective in ensuring that cleanups are not slowed as a result of litigation concerning CERCLA liability. However, because section 113(h) postpones litigation of the liability issue, the review preclusion provision intensifies PRP concerns about the fairness of CERCLA's liability scheme.
Section 113(h) has been less effective in foreclosing immediate judicial review of CERCLA claims that are unrelated to liability, with a minority of courts deciding that immediate review is available because delayed review would be inadequate. A particularly troublesome claim of this type is present when a plaintiff contends that the implementation of the challenged response action will itself do irreparable harm to public health and the environment. If section 113(h) forecloses review of this type of claim until after implementation of the response action, the provision operates to bar adequate review of the claim because the health-based concerns arise out of the planned cleanup measures themselves.
Courts must also decide whether section 113(h) bars federal court jurisdiction when claimants rely on other federal statutes or the Constitution to gain review of a CERCLA response action. Courts have come to a variety of inconsistent conclusions about whether the provision forecloses review in these cases. When courts have decided that section 113(h) does not bar judicial review, they have typically allowed review because of fairness concerns. That is, notwithstanding the broad and categorical terms of section 113(h), concern for the preservation of statutory and constitutional rights through timely judicial review has motivated such grants of early review.