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When Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in 1980 in response to the problems of toxic waste and hazardous substances, the central goals of the Act were clear. CERCLA was intended to provide an effective mechanism for cleaning up such dangers as quickly as possible, with as little expense as feasible, and with as much of that expense as possible borne by the responsible parties, rather than by the taxpayers. Accordingly, CERCLA included provisions for establishing liability for the costs of cleaning up hazardous waste sites. Congress also created the Superfund to pay for those cleanups for which no solvent responsible parties could be found.

The Article examines the timing of judicial review of CERCLA cleanup programs and the delicate balance needed to create an equitable rule. It begins with an overview of the legislation as it is currently written: the general ban on judicial review, its limited exceptions, and the legislative history justifying it. The Article then explores the ways in which courts prior to the landmark United States v. Princeton Gamma-Tech have addressed this issue and worked within the parameters of the legislation. Next, the Article discusses the Gamma-Tech decision, the logic behind the court’s creation of an exception not found on the face of the Acts, and the effect of the court’s ruling on subsequent cases. The Article posits that the rule of Gamma-Tech provides an effective way to foster the remedial goals of CERCLA. Thus, the Article presents a model for a legislative solution to the problem based on the reasoning of the Gamma-Tech case. The Article concludes by critiquing some of the relevant proposals before Congress that address the jurisdictional bar and explains how the Gamma-Tech approach is superior.

Although 15 years have passed from the publication of this article, the conflicting public policy issues it tackled continue to challenge environmental policy makers to this day.



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