Court Holds Tribes Immune To CERCLA Liability

The Federal Court for the Eastern District of Washington has held that Native American Tribes are exempt from potential liability under 42 U.S.C. Section 9601 et seq., the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

The Court first reviewed the statutory construction of CERCLA and the definitions of its applicability:

“42 U.S.C. Section 9607 imposes liability upon certain “persons” (i.e, owner/operator, arranger, transporter) for costs incurred in responding to a release of hazardous substances. “Person” is defined in Section 9601(21) as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” “Indian tribe” is not expressly included in this list and indeed, is defined separately at Section 9601(36)…CERCLA’s definition of “person” is plain. It does not include “Indian tribes.”

The Court then reviewed the legislative history of CERCLA with an eye to Congress’ intent:

“Congress has had more than an adequate opportunity to address any oversight regarding liability of Indian tribes under CERCLA. If Congress intended to make Indian tribes liable under CERCLA, one has to ask why it did not specifically include “Indian tribes” among the entities covered by the term “person” in Section 9601(21), nor specifically define “municipality,” “association,” or “consortium” to include “Indian tribes.” It seems extremely implausible that Congress would simply leave it to chance that some court would conclude an Indian tribe qualifies as one of those entities subject to CERCLA liability…the plain language of CERCLA reveals that Indian tribes are not subject to liability under that statute.”