Judicial Review and CERCLA Response Actions: Interpretive Strategies in the Face of Plain Meaning

The role of courts under CERCLA in cleaning up releases of hazardous substances is examined. Litigants are increasingly turning to the courts, relying on several theories grounded in the language of CERCLA. A provision of CERCLA, however, demands that citizen suits, as well as other litigation that requires a federal court to review challenges to removal or remedial action at a Superfund site, must satisfy a critical limit on the timing of review. Claims for which immediate review is obviously foreclosed are identified, as well as more difficult situations in which no apparent threat to the policies of CERCLA are present. Under the broad and categorical language of Section 113(h), courts have reached a variety of conclusions about the extent to which CERCLA forecloses review. An amended statute is recommended that explicitly grants the courts discretion to weigh the values implicated in a particular case, maintaining a strong and absolute rule of review preclusion when responsible parties bring actions to adjudicate issues of CERCLA liability prior to a cost-recovery action.