CERCLA Liability of U.S. Government as Owner, Operator or Arranger for Clean-Up Cost and NRD on Public Lands

Two federal courts recently ruled that the U.S. government, as “owner” of public lands, may be liable for the cleanup costs of mining operations on federal land. The courts held that an “owner” under CERCLA is the legal titleholder, and liability does not require a finding that the owner operated the site, had oversight responsibility or released the hazardous substance.

These decisions represent a growing trend of courts holding the federal government liable in its various roles as landlord. Private companies engaged in cleanup negotiations can potentially leverage these decisions to their benefit. Conversely, the federal government may impose more conditions on the lease of public land and take other measures to mitigate this growing liability risk.

While these cases involved mining operations with significant CERCLA cleanups, the leasing and permitting issues involved in mining operations are similar to other permitted uses like natural gas extraction and oil drilling on public land. Given that courts are more willing to hold the U.S. liable as landlord/owner, these rulings potentially could extend broadly to other industries.

Listen as our authoritative panel of environmental attorneys discusses CERCLA and PRP liability of the U.S. government for cleanup costs and natural resource damages to public lands, and analyzes recent cases reflecting a growing trend of finding the government liable in its various roles as landlord.

1. Brief overview of CERCLA and PRP liability
2. Recent case law developments
   1. Chevron Mining v. United States, 863 F.3d 1261 (2017)
   2. El Paso Natural Gas Co. LLC v. United States, 2017 WL 3492993 (D. Ariz. 2017)
   3. Other similar case law developments, e.g., other federal facilities.
3. Leveraging federal government liability in cleanup negotiations, including parallel CERCLA lawsuits against the U.S.

The panel will review these and other key issues:

• What is the potential impact of Chevron Mining and El Paso Natural Gas Co. for industries beyond mining?
• How can companies leverage the growing trend in federal government CERCLA liability in cleanup negotiations or parallel litigation?
• What response can companies expect from the federal government to the trend toward government CERCLA liability?