Document Type



The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") was hastily enacted in 1980 in the wake of the Love Canal disaster, where vast amounts of toxic wastes were found buried beneath a residential community. The contours of this legislation, though comprehensive in its outward scope, have been difficult to discern, largely as a consequence of vague and confusing expression. Though often the first tool resorted to for interpretation is the dictionary, the courts have looked beyond the literal terms, in an effort to determine the intended and sensible limits, consistent with both the congressional aim to reach broad categories of responsible parties and conduct, as well as with long-settled principles on the burdens that come with land ownership and enterprise. The most recent Supreme Court decision interpreting CERCLA, Burlington Northern & Santa Fe Railway Co. v. United States, recognized the challenges of applying the statute and seemed to affirm the approach taken by the lower courts. That approach stands in clear contrast to what appears in other areas to be a determined march by federal courts toward the federalization of property law-either by redefining or reshaping well-settled common law concepts or by devising a federal concept calculated to serve particular federal interests. These maneuvers, where they are not principled and ignore historical rationales for the state law concept, threaten to undermine the law's validity and legal theory. The approach taken in interpreting CERCLA should guide federal courts in preserving the historical importance of common law concepts. Understanding CERCLA teaches us about purposive decisionmaking.