Discourse and Discussion - Cap/Com

[Arrian]

Kuci:

Liability Under CERCLA.
CERCLA imposes joint and several liability for cleaning up
contamination caused by hazardous substances on four categories of responsible parties: (1) the current owner or operator of a vessel or a facility; (2) the owner or operator of a vessel or facility at the time of disposal of any hazardous substance; (3) the generators of any
hazardous substances located on the site; and (4) any transporter of hazardous substances to a site the transporter selected. 42 U.S.C. sec. 9607(a)(1)- (4). Although agreements can be made to apportion liability
between responsible parties, no agreement will shield any responsible party from CERCLA liability. CERCLA also imposed liability retroactively to contamination predating the act's passage in 1980.

Defenses to Liability Under CERCLA. CERCLA is a strict liability statute. The only defenses allowed are:
act of god, act of war, or, in some limited circumstances, an act of a third party. 42 U.S.C. sec. 9607(b). The third party defense includes protection for innocent landowners, provided they had no reason to know
of the existence of hazardous substances and made all "appropriate inquiry into the previous owner and uses of the property consistent with good commercial or customary practice." 42 U.S.C. sec. 9601(35).

[Flubber]

Originally posted by Kuciwalker


Huh? If you are given specific authorization to do something by Congress, how can you be sued?

I don't know about the US but in Canada we have all sorts of absolute liability laws. You could do everything perfectly legally and exceed all standards BUT if somehow (say an eartquake) you had a spill or created debris, you could face ABSOLUTE LIABILITY up to prescribed limits.

In Canadian offshore oil operations the absolute liability level is $30 million and this require NO PROOF of ANY fault or negligence. . . NONE. IN theory a terrorist could fire a missile into our platform and you would still be liable.

[Arrian]

Originally posted by Kuciwalker


...

What's the justification there? The only rational one I can see is if the court says that whoever issued the permit doesn't have the power to issue it (i.e. Congress isn't allowed to do X, so it can't issue a permit to do X).

Justification? Public Policy.

Congress passed CERCLA in 1980, and revised it in 1984. The original passage was heavily influenced by Love Canal (so, in essence, it was a somewhat knee-jerk response to something that had been ignored for too long).

SCOTUS upheld it.

-Arrian

[Flubber]

Originally posted by Kuciwalker

Originally posted by Flubber
Actually you are wrong. Parties get successfully sued all the time for matters where they are in violation of no permit or regulation.

Do they get sued for doing exactly what the permit says they are allowed to do?

YES

[Kuciwalker]

Arrian, that's an explicit law saying that you can't pollute (or that you have to clean it up). As such, the reason you can sue is because that law overrides any permits granted by someone other than Congress - meaning my point stands.

(btw, the part about it applying prior seems unconstitutional)

[Kuciwalker]

Originally posted by Flubber
I don't know about the US but in Canada we have all sorts of absolute liability laws. You could do everything perfectly legally and exceed all standards BUT if somehow (say an eartquake) you had a spill or created debris, you could face ABSOLUTE LIABILITY up to prescribed limits.

In Canadian offshore oil operations the absolute liability level is $30 million and this require NO PROOF of ANY fault or negligence. . . NONE. IN theory a terrorist could fire a missile into our platform and you would still be liable.

But if your parliament gave explicit authorization to do whatever it was doing, then it clearly wouldn't be liable. Such authorization is basically a law saying "you can't be sued for doing this".

[Flubber]

Originally posted by Kuciwalker
Arrian, that's an explicit law saying that you can't pollute (or that you have to clean it up). As such, the reason you can sue is because that law overrides any permits granted by someone other than Congress - meaning my point stands.

(btw, the part about it applying prior seems unconstitutional)

Nope your point is still wrong. Outside of absolute liability statutes, people get sued all the time for stuff done precisely as permitted


1. Construction that redirects a water flow in an unexpected manner ( perhaps due to unexpected rains)-- cases where people are liable for damages to those flooded

2. Hockey games played in approved rinks and in accordance with all the rules of the game, but there have been successful flying puck liability cases

3. Construction again-- you may get a permit to blast and do it precisely correctly but still be liable for nearby damage foundations

4. Offshore seismic operations-- Even if you get all the premits and take every precaution possible, you still end up paying for any fishing gear that gets damage.

5. Oil storage-- you can meet every regulation and would still be liable for any seepage to adjoining properties

etc etc etc

[Kuciwalker]

Anyway, that's a peculiarity of our system, and it doesn't make any sense. If you have a specific permit from Congress or your Parliament, it makes no sense that you can be sued.

[Kidlicious]

Originally posted by Kuciwalker


If that's the most cost-effective way to achieve our ends, yes.

Of course it's not. Unless you don't have the power to tax, and you do.

[Kuciwalker]

Unless enforcing such a tax would cost more than it's worth.

[Arrian]

Originally posted by Kuciwalker
Arrian, that's an explicit law saying that you can't pollute (or that you have to clean it up). As such, the reason you can sue is because that law overrides any permits granted by someone other than Congress - meaning my point stands.

(btw, the part about it applying prior seems unconstitutional)

On the first part - whatever. I'm just trying to tell you how it works.

That was the basis for the constitutional challenge, IIRC.

-Arrian

[Kidlicious]

Originally posted by Arrian
1) Crashing the economy
2) Poisoning the relationship between government and business

The weakness in my plan at this point is actually corporate flight overseas.

-Arrian

What we really need to do is find a way to stop being held hostage to corporations. You want to pay them to do business here. I'm very much opposed to that. If that's the best way that capitalism to work it aint worth a ****. Just another reason to oppose it.

[Flubber]

Originally posted by Kuciwalker


But if your parliament gave explicit authorization to do whatever it was doing, then it clearly wouldn't be liable. Such authorization is basically a law saying "you can't be sued for doing this".

I don't believe our parliament ever gives such an authorization and furthermore I don't think EITHER a federal or a provincial body alone could effectively give such an authorization due to the constitutional division of powers . Provincial environmental rules may apply generally to land while federal rules would apply to oceans and "navigable waters" (pretty much any stream any boat could traverse). Any such law could not bar liability from accruing from a statute passed by the other level of government within a field of its jurisdiction.

So I find your example to be unlikely and impractical. Do you have an example of the US or Canada giving soemone carte blanche with respect the liability. The only scenario where it makes any sense to me would be the US if it were something to do with waging war

[Kidlicious]

Originally posted by Kuciwalker
Unless enforcing such a tax would cost more than it's worth.

Stick to one side of the argument for Christ sake. Do you believe in the neoclassical model for polution control or not?

[Kuciwalker]

(Aren't your federal laws superior to provincial ones?)

My argument would be that a permit to do something is such authorization.