Cercla Liability Is Not A Taking

CERCLA Liability is not a Taking By Anthony J. Fejfar, B.A., J.D., Esq., Coif © Copyright 2009 by Anthony J. Fejfar In Lucas v. South Carolina Coastal Commission, Justice Scalia, writing for the majority, held that there can be no Taking of Property for purposes of the 5th Amendment where a common law nuisance or public nuisance is involved.

It is clear that Toxic

Wastes on land would constitute a Public or Private Nuisance because sooner or later there would be an effect upon Public Health and upon adjoining landowners. Thus, CERCLA liability for the removal of Toxic Wastes from land which is paid for by an Owner or Operator of a Toxic Waste Facility would not constitute a Taking for purposes of the 5th Amendment since such liability would constitute a Public Nuisance or a Common Law Nuisance, or at least is analogous thereto, and thus falls within the Lucas exception to Takings compensation.