Southwestern Law Review
This essay discusses the continuing role of state statutory and common law remedies for remediating contaminated property at a time where federal liability under the Comprehensive Response, Compensation, and Liability Act (“CERCLA”) has, after thirty years, become an established part of the legal and business landscape. In recent years, a growing number of courts have struggled with the extent to which CERCLA does or should preempt or displace state statutory or common law governing claims for recovering costs associated with contaminated property. This essay begins with the premise that the language of CERCLA as well as general principles of federalism argue against preemption of state law remedies when state law provides an independent, substantive statutory or common law basis for relief and does not directly interfere with CERCLA’s settlement framework. It then provides a practical example of how federal and state remedies for contaminated property can co-exist comfortably through the story of two jury trials involving CERCLA and state law claims for recovering cleanup costs and damages associated with contaminated property. These cases show that juries and courts are able to understand and apply the different standards imposed under state and federal law governing hazardous substance contamination in a manner that does not result in interference with either jurisdiction’s policies or result in duplicative recoveries for plaintiffs. Through a discussion of these cases, it becomes clear that the variations in state statutory law, state common law, and federal law can serve to complement each other without interfering with federal goals, and serve as a positive example of federalism in action
Alexandra B. Klass, CERCLA, State Law, and Federalism in the 21st Century, 41 Sw. L. Rev. 679 (2012), available at http://scholarship.law.umn.edu/faculty_articles/35.