The Case For A Broad Pre-Emption Rule For CERCLA Contribution

Although some of the proposed tax plans and budgets being discussed in this election year suggest that the same dollar can be counted and spent multiple times, a growing number of courts have held that CERCLA response costs can only be allocated once. The most recent holding comes in the Lower Fox River litigation where Judge Greisbach ruled that CERCLA pre-empts most ancillary state law claims – whether styled as state law contribution claims or common law claims for negligence and strict liability: “If the funds were expended pursuant to CERCLA, and if CERCLA itself provides a scheme for reapportioning those funds, then allowing a state law claim to essentially re-reapportion those funds in a way CERCLA did not intend would pose a conflict.”