A federal district court in Oklahoma has held that CERCLA may not be used as a regulatory standard to state a claim for negligence per se. The plaintiffs in Bristow First Assembly of God, et al. v. BP, p.l.c., et al., N.D. Okla., No. 15-CV-523, brought a series of claims against a group of oil and pipeline companies that were alleged to have a prior interest in the Church’s property, which they had been advised by the Oklahoma Department of Environmental Quality was contaminated and no longer safe to use. Among them was a count brought under a theory that the defendants’ failure to clean up the site was a violation of a continuing duty to remediate damages from their operations under CERCLA and therefore constituted negligence per se.
Judge Terence Kern dismissed the claim, finding that “Plaintiffs have failed to establish that CERCLA sets a standard of conduct on which a negligence per se claim can be based.” The specific issue was apparently one of first impression in the 10th Circuit. The Court, however, relied on decisions of district courts elsewhere in the country to support its decision. Most convincingly, the court in W. Greenhouses v. United States, 878 F. Supp. 917 (N.D. Tex. 1995), reasoned that violations of neither CERCLA nor RCRA can support a negligence per se allegation because they are strict liability statutes. They therefore set no standard of care. Negligence per se relies on borrowing a standard of care from statute in lieu of applying one established by common law. No strict liability regime can serve that function.
The decision in Trinity Indus., Inc. v. Greenlease Holding Co., 35 F. Supp. 3d 698 (W.D. Pa. 2014), also relied on by the court in Bristow First, applied somewhat different logic. In that court’s opinion, CERCLA is an environmental statute that is not “tailored to protect a particular class of individuals,” and therefore “does not establish the applicable standard of care for purposes of negligence law.” This reasoning is easier to quibble with. The statute requires the remediation of contaminated property, so the occupants of those sites are at least among the group of individuals CERCLA sets out to protect. Negligence per se claims that attempt to drag CERCLA liability into the realm of tort are likely best challenged not on that ground, but for the absence of a fault-based standard of care in that statute.
We will be following this issue and other legal developments related to the intersection of statutory and common law environmental claims. Check Environmental Law Next in the future for more information and analysis.