ELR Citation: ELR 21358
No(s). 88-3760 (9th Cir. Aug 10, 1989)

The court holds that the liability exemption under Comprehensive Environmental Reponse, Compensation, and Liability Act (CERCLA) §107(f) for natural resource damages that were identified in an environmental impact statement (EIS) does not apply to damages from activities before the EIS was issued. The EIS exception in CERCLA §107(f) allows liability to be waived only for pollution caused by the facility that is the subject of the EIS, not the problems that existed before the facility. The court also holds that the EIS exception of CERCLA §107(f) does not require that the EIS use the specific words "irreversible and irretrievable commitment of resources." While these specific terms are the best way to meet the exception, and should be placed in the EIS's summary section, other language would be satisfactory if it is clear and unambiguous. Finally, the court declines to award attorney fees, observing that CERCLA is silent on the issue and no other cases resolve the question.

[Other opinions in this case appear at 16 ELR 20407, 17 ELR 20659, and 18 ELR 20360, with earlier appellate briefs summarized at ELR PEND. LIT. 65920.]

Counsel for Defendants-Appellants
Anthony O. Garvin, R. Christopher Locke
Landels, Ripley & Diamond
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000

Counsel for Plaintiff-Appellee
Merrillee Caldwell, Deputy Attorney General
Natural Resources Division
State House, Boise ID 83720
(208) 334-2400

Farris (before Norman and Leavy, JJ):