Do environmental statutes encourage the application of strict liability for environmental harms? Perhaps they do, argues a new paper by Alexandra Klass. Although the general legal trend in tort law may be against the finding of strict liability (at least outside of the context of product liability), in the environmental area, the trend seems to go the other way -- and Klass thinks that is a good thing. The paper is here, the abstract is below.

Strict liability for environmental contamination has become a fact of life in the past twenty years since the 1980 enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and similar state laws imposing strict liability for the release of hazardous substances. Since that time, awareness of the widespread nature and risks of environmental contamination and the need for strong tools to remedy those conditions has permeated the public consciousness, the business community, and the courts. As a result, our society has come to live with the existence of widespread strict liability for environmental contamination under various federal and state statutes, even if many believe the current statutory liability scheme is misguided or ineffective.

Over the same period of time, however, some scholars have
argued that courts have grown reluctant to apply common law
strict liability in general under either the doctrine of Rylands
v. Fletcher or Sections 519 and 520 of the Restatement (Second)
of Torts, which impose strict liability for abnormally dangerous
activities. These commentators conclude that, apart from cases
involving blasting and a few other historic applications, the
current trend is for courts to reject the expansion of strict
liability in favor of negligence as the dominant tort theory.
The existence of these two seemingly divergent trends raises the
question of whether CERCLA's enactment and implementation have
influenced courts' willingness to impose common law strict
liability in environmental contamination cases, even if the
doctrine is not otherwise expanding.

That CERCLA may be impacting common law strict liability is
significant and somewhat unexpected because the Restatement
(Second) of Torts does not identify the existence of a federal
or state statute governing the conduct at issue as a factor to
consider in determining whether the activity is abnormally
dangerous. In other words, if courts are being influenced by the
existence of CERCLA and state strict liability statutes when
considering application of the common law strict liability
doctrine to environmental contamination cases, they are doing so
for policy reasons beyond the black letter law of Rylands or the
Restatement.

A review of post-CERCLA court decisions involving
environmental contamination and claims for common law strict
liability reveals that even though the existence of a state or
federal strict liability statute is not one of the factors a
court is directed to consider under the Restatement, courts
consistently refer to the existence of such a statute or the
general importance of addressing hazardous waste problems as a
justification for applying strict liability. These cases show
that while the prevailing trend among courts may be to reduce
the reach of common law strict liability, the trend in
environmental contamination cases appears to be the opposite.

This Article argues that it is both appropriate and desirable
for courts to consider state and federal statutes and other
indications of public policy when determining whether an
activity is abnormally dangerous. This can be best accomplished
by revising the current draft of the Restatement (Third) of
Torts to include the existence of a state or federal statute
imposing strict liability for the activity as a factor in
determining whether or not the activity is abnormally dangerous
under the common law.