St. Mary's Law Journal


After several decades of environmental legislation, the regulated community faces an extremely complex and costly matrix of obligations and responsibilities. For industry in general, the most expensive environmental statute enacted has been the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). CERCLA created the Hazardous Substances Superfund (Superfund) and established retroactive liability for remediation of hazardous substance contamination. President Clinton admitted CERCLA does not work and even labelled the Superfund a “disaster.” Even though public and private entities have already spent twenty billion dollars on the CERCLA program since its inception, only around ten or twenty percent of the sites designated for cleanup have been remediated. Because of the often-disastrous effects of falling under the web of CERCLA regulation, most industries closely monitor any legislative action which might open the door for CERCLA liability. One such industry is the oil and gas industry. Some of the proposed Congressional amendments will have a profound impact on the oil and gas industry, because many of the basic premises of CERCLA need clarification.

With many of the basic premises of CERCLA open to question, Congress and the industry should be able to develop a more workable alternative which protects the environment, while being fair to owners and operators of private facilities. More specifically, Congress should consider eliminating retroactive liability. Congress should be cognizant of the corresponding impact on the rest of the CERCLA structure. For the oil and gas industry, the elimination of retroactive liability will be a hollow victory if Congress expands the scope of CERCLA to include formerly exempted oil and gas wastes. Therefore, Congress should clarify the definition of a hazardous substance to continue excluding oil and gas wastes from CERCLA liability.


St. Mary's University School of Law