The Shrinking Of Environmental Liability

Environmental liability has always been a dish best served in as many slices as possible. Hence, CERCLA jurisprudence in its first two decades was characterized by a judicial willingness to entertain ever more creative theories to extend environmental liability to new classes of parties, such as a developer who unknowingly moved contaminated soil (Tanglewood East) to a toll manufacturer who merely directed the production of a useful product with knowledge that there would be hazardous waste by-products (Aceto). More recently, however, courts have shown far less appetite for expanding the traditional boundaries of environmental liability beyond owners, operators, arrangers and transporters. Typical of this new trend is Hinds Investment, L.P. v. McLaughlin, decided yesterday. In two short decisions, the Ninth Circuit held that the manufacturer of a dry cleaning machine could not be held liable under either CERCLA or RCRA merely for selling a machine that by design would