Attorney Geoff Tichenor was quoted by Law360 in an article titled “CERCLA Deals Face Tough Road After High Court Snub.” The article discusses the effects of a decision by the Ninth Circuit Court of Appeals holding that district courts must closely analyze the details of early Superfund settlements, including scrutinizing the terms of Comprehensive Environmental Response, Compensation and Liability Act consent decrees to determine the fairness of settlement amounts to be paid by settling parties. The U.S. Supreme Court declined to review the Ninth Circuit’s holding.
The fear is that the decision will slow the execution of the settlements because if minimally-involved parties that would have not expected to have to cover a large portion of the total settlement face greater initial scrutiny as to their share, they may opt to stay in the litigation to possibly end up with a smaller share.
Tichenor said that requiring states to focus too many resources on early settlements involving so-called de minimis, or minor, potentially responsible parties could impede early settlements and take attention from the actual cleanup process. “The downside to this case is the extent to which it increases transaction costs — time and money — for states that have to deal with de minimis PRPs," he said. "States depend on early settlements with PRPs that don’t have much responsibility to fund cleanups and make the administration of the site cleanup less complex."
Read “CERCLA Deals Face Tough Road After High Court Snub,” published on October 8, 2015. (Subscription required.)