Blawg
About UsIn the module posted today on causation, among other things, I note how some legislatures, like Congress, have removed some causation requirements via statute for certain types of environmental discharge cases. Other modules and blog entries will discuss the relationship between such legislative acts and the common law - i.e., the differences between a legislature, weighing various economic considerations and other public policy factors, in crafting statutes to address a perceived issue affecting the public at large, versus the common law, developed to adjudicate individual cases in accordance with predictable and established legal principles.
A 2005 student Note has some interesting thoughts on the constitutional limits of removing causation requirements in discharge cases. See P. Jordan, "Substantive Due Process Since Eastern Enterprises, With New Defenses Based on Lack of Causative Nexus: The Superfund Example," 32 B.C. Envtl. Law Aff. L. Rev. 395 (2005).
The article suggests that, collectively, the views of a majority of Justices in Eastern Enterprises v. Apfel, 524 U.S. 598 (1998), http://www.law.cornell.edu/supct/pdf/97-42P.ZO, http://www.law.cornell.edu/supct/pdf/97-42P.ZD1, http://www.law.cornell.edu/supct/pdf/97-42P.ZX, suggest that some Superfund provisions imposing liability on certain types of defendants may run afoul of substantive due process principles when there is no causative nexus between the defendant's actions and the alleged harm.
In discharge cases involving Superfund-type statutes, defendants cited Eastern Enterprises to argue that retroactive liability should not be imposed. These arguments have failed. See, e.g., U.S. v. Alcan Aluminum Corp., 315 F.3d 179 (2d Cir. 2003), http://bulk.resource.org/courts.gov/c/F3/315/315.F3d.179.01-6008.html. The 2005 Note takes a different perspective, focusing not on retroactivity, but the constitutional limits of imposing liability without causation, and raises some interesting arguments.
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