| In the year 1980, the United States Congress passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA is a remedial statute designed to protect and preserve public health and the environment. Courts have construed it broadly in order to effectuate its purpose. Following the enactment of CERCLA, many states enacted similar statutes.
By its terms, CERCLA provided for the government to recover the costs involved in the cleanup of contaminated sites. Such costs include:
- investigation;
- monitoring;
- clean-up;
- administrative costs;
- certain legal fees; and
- security measures.
One of the most powerful mechanisms for the government's recovery of its costs is an environmental lien. The scope of the lien is quite broad. By its terms, CERCLA provides that all costs and damages for which a person is liable shall constitute a lien in favor of the United States upon all real property and rights to such property that belong to the person liable and are subject to or affected by a removal or remedial action.
A lien under CERCLA continues until it is satisfied, reduced to judgment, or the United States loses its right to enforce the lien by operation of the limitations periods that is set forth in the statute. The applicable limitations periods differ depending on the type of recovery sought by the government.
Notably, an environmental lien in favor of the federal government under CERCLA is subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest was perfected under state law before the United States filed its notice of lien under CERCLA.
CERCLA provides that the United States may foreclose an environmental lien by initiating an in rem action in federal district court.
The laws governing environmental liens under state law vary from state to state.
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