WLF Urges Supreme Court to Clarify Limits of CERCLA Liability

Click here to read WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to grant review of a Ninth Circuit decision that dramatically expands the scope of recoverable damages in key environmental cases.

The case arises from a claim brought by the Confederated Tribes of the Colville Reservation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the so-called Superfund law. Under CERCLA, the federal, state, and tribal governments are authorized to bring cases against Superfund owners and operators for injuries derived from the “loss of natural resources” after the release of a hazardous substance. The Tribes prevailed in the Ninth Circuit on the argument that a community’s cultural disconnection from a damaged natural resource constitutes a recoverable injury.

WLF’s brief explains why that’s wrong. Cultural-loss injury isn’t contemplated by the statute, which was designed to ensure the rapid restoration of damaged air, land, or water. And since cultural loss can’t be predictably priced or insured against, the Ninth Circuit’s rule invites essentially random damages awards. That uncertainty will unduly deter beneficial economic activity.