COMMENT: OBTAINING A DECLARATORY JUDGMENT UNDER CERCLA: SHOULD THE PAST CONTROL THE FUTURE? Skip over navigation
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Copyright (c) 2011 Wake Forest Law Review Association, Inc.
Wake Forest Law Review

COMMENT: OBTAINING A DECLARATORY JUDGMENT UNDER CERCLA: SHOULD THE PAST CONTROL THE FUTURE?

Summer, 2011

Wake Forest Law Review

46 Wake Forest L. Rev. 359

Author

Rachael A. Doyle*

Excerpt



Introduction
 
Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 1 to address and remedy the improper disposal of toxic and hazardous wastes. 2 Since its enactment, CERCLA has been highly criticized for its ostensibly high transaction costs, its strict liability scheme, and the expensive cleanup costs associated with the program. 3 Yet CERCLA purports to encourage private parties who had no part in improper disposal to clean up hazardous waste in a cost-effective manner and to then seek reimbursement of these response costs from the responsible party. 4 By bifurcating the issues of liability and damages in a recovery response action, CERCLA seeks to prevent relitigation of issues by allowing for a declaration of liability, relegating the complicated issue of damages to a later stage in the litigation. 5

Section 113(g)(2) 6 provides for mandatory declaratory relief in a CERCLA action. 7 Circuits are split on whether a private party plaintiff can seek a declaratory judgment for future liability without successfully proving costs incurred under section 107(a). 8 This Comment considers the far-reaching consequences of such a prerequisite to declaratory relief. In order to consider whether a plaintiff can seek declaratory relief based solely on future liability, Part I explores whether such claims are truly ripe, whether the federal courts have subject matter jurisdiction over these claims, and finally, whether a declaratory judgment should be awarded under CERCLA's declaratory relief provision or under the Declaratory Judgment Act. 9 Part II presents the United States ...
 
 
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