The Supreme Court's resolution of United States v. Atlantic Research Corp. will have a huge impact on the future scope and effect of the Superfund program. For more than 25 years, private parties have assumed that if they clean up contamination on their properties, they can use the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund") to spread at least some portion of the relevant costs among others who may have played a role in causing the relevant contamination. The courts have nearly universally supported this position. In Atlantic Research, the Government argues that those who themselves bear potential liability at a given site cannot use § 107(a)(4)(B) of the statute to seek from others the recovery of even a portion of their cleanup costs. If the Supreme Court upholds this position, it will drastically change the operation of the Superfund program, essentially limiting its effect to sites that are so contaminated as to warrant EPA involvement. This would mean that many fewer contaminated sites would be cleaned up. Additionally, it would mean that those who do undertake cleanup activities will bear disproportionate responsibility, while others get off scot-free, thus undermining the "polluter pays" principle.

Read Lewis & Clark Law Professor Craig Johnston's Amicus Brief to the U.S. Supreme Court.