Comment: Obtaining a Declaratory Judgment under CERCLA: Should the Past Control the Future?

By Rachael A. Doyle

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") to address and remedy the improper disposal of toxic and hazardous wastes. Since its enactment, CERCLA has been highly criticized for its ostensibly high transaction costs, its strict liability scheme, and the expensive cleanup costs associated with the program. Yet CERCLA purports to encourage private parties who had no part in improper disposal to clean up hazardous waste in a cost-effective manner and to then seek reimbursement of these response costs from the responsible party. By bifurcating the issues of liability and damages in a recovery response action, CERCLA seeks to prevent relitigation of issues by allowing for a declaration of liability, relegating the complicated issue of damages to a later stage in the litigation.

Section 113(g)(2) provides for mandatory declaratory relief in a CERCLA action. Circuits are split on whether a private party plaintiff can seek a declaratory judgment for future liability without successfully proving costs incurred under section 107(a). This Comment considers the far-reaching consequences of such a prerequisite to declaratory relief. In order to consider whether a plaintiff can seek declaratory relief based solely on future liability, Part I explores whether such claims are truly ripe, whether the federal courts have subject matter jurisdiction over these claims, and finally, whether a declaratory judgment should be awarded under CERCLA's declaratory relief provision or under the Declaratory Judgment Act. Part II presents the United States Courts of Appeals' divergent approaches to the question of declaratory relief for future liability. Finally, Part III argues that the statutory language and remedial purposes of CERCLA justify allowing declaratory relief based only on future liability.

Purchase the article, Comment: Obtaining a Declaratory Judgment under CERCLA: Should the Past Control the Future?, 46 Wake Forest L. Rev. 359 (Summer, 2011).

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