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Research on Environmental Civil Liability under CERCLA

Author: LiDongMei
Tutor: ZhaoXinHua
School: Jilin University
Course: Civil and Commercial Law
Keywords: Dangerous substances Persons responsible for Joint and several liability Natural resources Strict liability The main responsibility The operator Environmental tort Tort Law Causal relationship
CLC: D971.2
Type: PhD thesis
Year: 2008
Downloads: 648
Quote: 4
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Abstract


Environmental civil liability theory is developed from the general civil liability theory and becomes an important part of it. In order to compensate and relief the victims the environmental civil liability theory has to been reformed on the base of general civil liability because of the particularity of environmental tort. In 1980 CERCLA enacted federally in direct response to the serious polluted sites and natural resources damages resulted from the release of hazardous substances sets up tort liability system for the cleanup of hazardous substances and restoration of damaged natural recourses. CERCLA impose strict, joint and several and retroactive liability on Potentially Responsible Parties for releases or the threatened release of hazardous substances.During the past decade, the CERCLA civil liability system has facilitated the cleanup of polluted sites and recovery of damaged natural resources, on the other hand it become the object of attack from its detractors because of its negative effects. CERCLA has to been amended for several times to balance the interests of various entities. Although it is too earlier to replicate and remote the civil liability system under CERCLA to other country, but it is worth to research the construction and the problems arisen from it when the system is applied. This thesis includes the following chapters:Chapter I Summery of CERCLAThis chapter is mainly to analyze the legislative background of and the scope applied to CERCLA, the authorization to the Federal Government to response to the release or the threatened release of hazardous substances and the use of the Superfund and so on. Chapter II the Person Liable under CERCLA——Potentially Responsible PartiesThis chapter is mainly to analyze the determination, type and defense of PRPs. The liable party is decided on the legal status of parties rather than their actions. If the party belongs to the scope of Potentially Responsible Parties under CERCLA such as owner or operator of facilities which hazardous substances is released, the generator of hazardous substances or arranger of disposal of hazardous substance or transporter, the party shall be liable for the release of hazardous substances, even the party does not cause the result. The definition of PRPs under CERCLA is broad and then federal courts expand the definition of PRPs in judicial practices, so any party, which is related to the polluted facility, would almost be the PRP under CERCLA. The speculation of liable party under CERCLA makes the determination of liable party of environmental tort, special joint environmental torts easier than before, and the burden to prove for the plaintiff is transformed from to prove torts existing into to prove the legal status of the reluctant party, which decreases the plaintiff burden to prove. The scope of liable party under CERCLA is constantly be adjusted by Congress through the amending the defense and exemption liability.Chapter III the Liability Principle I under CERCLA——Strict Liability This chapter is first to analyze the legislative history, caution and defense of strict liability, then confirm that the PRPs’liability standards under CERCLA is the strict liability for abnormally dangers activity in common law. Most importantly, the caution inquiry in the context of strict liability for abnormally dangers activity focuses on harm that flows from an instrumentality, as opposed to harm form the conduct of a special individual defendant. A PRPs’liability is based on their relationship to the instrumentality, such as being the owner, operator or user. CERCLA borrow the liability standards from the Clean Water Act and extended it. Under CERCLA, the instrumentality came to include not only vessels and facilities, as defined under the Clean Water Act, but also geographic areas where hazardous substances had been deposited. CERCLA also extended liability not only to owners and operators, as under the Clean Water Act, but also to more indirect users of a facility, such as transporters and generator of hazardous waste. The legislative history of the Clean Water Act and CERCLA shows a clear reliance on the basic concepts that defined in Rylands v. Fletcher and RESTATEMENT (SECONE) OF TORTS. But some courts relied on the idea that an individual defendant must have caused harm misunderstand the theoretical underpinnings of CERCLA caution.ChapterⅣthe Liability Principle II under CERCLA——Joint and Several Liability and ContributionThis chapter is mainly to analyze the joint and several liabilities and contribution by and between PRPs. CERCLA itself does not contain substantive provisions relating to the imposition of joint and several liability upon PRPs. The doctrine has instead developed in the federal courts, which have concluded that Congress intended for the courts to develop a federal common law of joint and several liability. To aid in the development of this new doctrine, the courts turned to the RESTATEMENT (SECOND) OF TORS and derived the federal common law principle from it. After years of recognizing and accepting the potential unfairness of the liability provisions of CERCLA, some federal courts have attempted to infuse fairness into CERCLA by limiting the imposition of joint and several liability upon CERCLA defendants through a backdoor defense of lack of causation, but the causation inquiry stands in conflict with the more demanding requirements of defense provisions of CERCLA. The Chapter is involved in the contribution between PRPs.ChapterⅤNatural Resources Damages Compensation liability under CERCLAThis chapter is mainly to analyze the significant aspects of the burgeoning field of natural resource damage assessment and recovery under CERCLA. Among other thing, it discusses the statutory definition of natural resource, the prerequisite to and exemptions from damage liability, the requirement that natural resource damage recovery plaintiffs be governmental entities, and the damages and evaluation process for compensation of natural resources damages under CERCLA. CERCLA imposes liability on PRPs for hazardous substance release or threatened releases that result in injury to, destruction of, or loss of natural resources and reasonable costs of assessing the injury, destruction and loss of natural resource. The natural resource damage liability provisions of CERCLA have their roots in the public trust doctrine. The principle of measuring the damages developed from the lesser of restoration or replacement costs, or diminution of use values to restoration costs and the intrinsic value of the existence of the natural resource for recreational use or enjoyment to be considered adequately when the federal courts explained and applied to the provisions of CERCLA. CERCLA required the President to issue regulations for the assessment of natural resource damage caused by a release or hazardous substances. The Interior Department’s 1994 revised natural resource damage assessment regulation have detailed operability.

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