ELR Citation: ELR 21303
No(s). 95-0526-BH-S (S.D. Ala. May 20, 1996)

The court holds that applying the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to a contaminated plant site that has virtually no effect on interstate commerce violates the Commerce Clause of the U.S. Constitution. Applying the U.S. Supreme Court's decision in Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994), the court first holds that CERCLA §107(a), and §106(a) as linked to §107(a) in this case, are not retroactive. Landgraf requires a court, in deciding whether a statute applies retroactively, to determine whether Congress has expressly stated the statute's reach and, if it has not, to determine whether the text and legislative history have clearly prescribed Congress' intent to apply the provision retroactively. If they have not, Landgraf requires the court to determine whether the provision actually has a retroactive effect on the parties in the litigation, and if so, to apply the traditional presumption against retroactivity, absent a clear congressional intent to the contrary. The court holds that CERCLA contains no language explicitly stating that it is retroactive. In addition, §107 provides no clear evidence of congressional intent that CERCLA's liability provisions be given retroactive effect, and §106 contains no language indicating congressional intent to authorize relief that is retroactive. Furthermore, the legislative history lacks the clear congressional intent to make CERCLA liability retroactive. The court notes that §106 provides for fines, which are clearly punitive, and that the U.S. Environmental Protection Agency (EPA) uses the threat of punitive damages as a negotiating tool. According to Landgraf, a provision for punitive damages should not be construed as retroactive unless the language forces that conclusion. The court holds that nothing in the U.S. Department of Justice's brief or pre-Landgraf cases concerning the statutory language of CERCLA or its legislative history demonstrates that §107(a), and §106(a) as related to §107(a) in this case, are the sort of provisions that must be understood to operate retroactively because a contrary reading would render them ineffective.

The court next rejects defendant's argument that EPA's decision to apply CERCLA retroactively against private parties is an unauthorized exercise of legislative power. In addition, applying the U.S. Supreme Court's decision in United States v. Lopez, 115 S. Ct. 1624 (1995), the court holds that applying CERCLA to the plant site at issue in this case violates the Commerce Clause. Lopez requires that when Congress exercises its commerce authority, the statute must regulate economic activity, which activity substantially affects interstate commerce, and that the statute must include a jurisdictional element that would ensure, through case-by-case inquiry, that the statute affects interstate commerce. The activity in question inthis case has virtually no effect on interstate commerce. Any contaminants at the site affect groundwater mostly by migrating through the locally contained alluvial aquifer. There is little or no migration between this aquifer and the aquifer below it, and there is no evidence that contaminants at the site travel across state lines.

Counsel for Plaintiff
Eugene A. Seidel, Ass't U.S. Attorney
U.S. Attorney's Office
169 Dauphin St., Ste. 200, Mobile AL 36602
(334) 441-5845

Counsel for Defendant
Caine O'Rear III
Hand, Arendall, Bedsole, Greaves & Johnston
First National Bank Bldg.
107 St. Francis St., Ste. 26, Mobile AL 36602
(334) 432-5511