Imposing Liability as a Policy Choice : Holmesian 'Intuitions' and Superfund Reform

Courts, Congress, and commentators commonly justify the imposition of civil liability on non-blameworthy individuals by citing various societal imperatives once described Justice Holmes as "intuitions of public policy." The current debate over reforming the federal Superfund law illustrates the importance of examining these societal imperatives and "intuitions." The societal imperative on which Superfund's liability system is based is the "polluter pays" principle, and so the statute imposes liability on parties connected to hazardous waste sites for the considerable costs of cleaning up the sites. However, widespread agreement on the polluter pays principle at the time of Superfund's passage masked deep disagreements over the meaning and implementation of that principle, differences which continue to fuel the enormous body of Superfund litigation in the federal courts and the contentious and long-standing debate over Superfund reform in Congress. These differences include disagreements over the definition of what is fair, and over the relative importance of three rationales for imposing liability on polluters--illegality, culpability, and shifting disposal costs to society. The current logjam on liability reform can be broken only by examining more closely these liability rationales and the ways in which the current system reflects (or fails to reflect) them. Doing so reveals the likely existence of common ground on the merits and faults of the current system, and on parts of the prescription for reforming that system