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Washington and Lee Law Review - CERCLA


by Kiersten E. Holms

This Note argues that the recent court decisions rejecting the government’s bare legal title defense are consistent with CERCLA. Courts should not treat the federal government any differently than a private entity and, therefore, courts should hold the federal government liable as an owner under CERCLA for its role as legal titleholder to public lands. Part II of this Note begins by providing a brief overview of the background and goals of CERCLA. Part II also provides an examination of the issue of ownership liability under CERCLA and recounts the federal courts’ difficulty in applying ownership liability. Part II then describes how the federal government’s “bare legal title” argument arose out of the confusion surrounding ownership liability in CERCLA litigation. Part III moves on to examine the recent trend in CERCLA litigation rejecting the federal government’s bare legal title argument, thus holding the federal government liable as an owner based on its possession of legal title to contaminated public lands. Part IV analyzes whether the bare legal title defense is consistent with CERCLA, taking the position that the defense is not. Finally, Part V contends that federal government liability for its role as titleholder of public lands should extend beyond the context of contaminated mining lands.