The constitutional rights of nonsettling potentially liable responsible parties in the allocation of CERCLA liability.

I. INTRODUCTION

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)(1) is widely criticized as unfair because it imposes retroactive, strict, and joint and several liability upon a broad class of persons whom Congress has deemed "responsible" for hazardous waste contamination.(2) Because of the low threshold for liability(3) and the massive costs of cleanup,(4) CERCLA cases tend to become complex as parties implead as many defendants as possible.(5) Often, "[t]he key issue becomes how to allocate the clean-up costs among defendants."(6)

Congress and the Environmental Protection Agency (EPA) have sought to minimize litigation over allocation issues by encouraging settlements.(7) Among EPA's most powerful tools to promote settlements is the authority to provide settling Potentially Responsible Parties (PRPs) contribution protection.(8) A PRP who enters into a consent decree resolving its liability with EPA is immunized against contribution actions by nonsettling PRPs and the nonsettling PRPs' liability is reduced by the amount of the settlement.(9)

Under CERCLA's liability scheme, parties who may have legally disposed of relatively insignificant amounts of waste(10) can find themselves having to pay the bulk of the cleanup costs at a site, costs that average between $25 million and $30 million.(11) A PRP contemplating settlement recognizes that if other PRPs settle with the government, its own liability is "reduced by the amount of the settlement,"(12) not by the proportion of fault that would be attributed to the settling PRPs.(13) Consequently, nonsettling PRPs bear the risk that EPA may settle such claims for less than they are worth.(14) EPA fully appreciates the inequity that settlements may impose on nonsettling parties and uses this hardship to coerce parties into settling.(15)

This Article examines the settlement process under CERCLA and concludes that EPA's use of the contribution bar in CERCLA cases to shift part of the equitable share of settling PRPs' liability to nonsettling PRPs violates the Due Process Clause of the Fifth Amendment.(16) It will be argued that PRPs have a protected property right in the money they pay as legal damages and due process should ensure that any method used for allocating liability is equitable. The U.S. Supreme Court has repeatedly recognized that due process precludes the use of a consent decree to impose a legal burden on third parties who are not before the court.(17) Therefore, EPA and settling parties cannot use CERCLA's settlement provisions to negotiate and resolve the liability of nonsettling PRPs through a consent decree in a manner that is inconsistent with the Due Process Clause.

Part II provides an overview of CERCLA's liability scheme and contribution provisions. Part III argues that CERCLA's settlement scheme denies nonsettling parties due process. Part IV concludes by suggesting that rather than promote settlements through coercion, CERCLA should foster settlements by providing PRPs the necessary information to resolve the liability among themselves.

H. Overview of CERCLA's Liability Scheme and Contribution Provisions

CERCLA "has been uniformly interpreted as imposing retroactive, strict, joint and several liability on responsible parties."(18) CERCLA imposes liability, with rights of contribution, on the following types of entities associated with a hazardous disposal facility: current owners or operators of the facility, past owners and operators, those who arranged for disposal of hazardous waste (usually referred to as 'generators' of hazardous materials), and transporters of such materials."(19)

As originally enacted, Congress did not provide Potentially Responsible Parties (PRPs) an explicit contribution cause of action in CERCLA, but one was implied from the structure of the statute.(20) Courts implied contribution rights because a literal reading of CERCLA's joint and several liability provision "left a PRP faced with the prospect of being singled out as the defendant in a cost recovery action without any apparent means of fairly apportioning CERCLA costs awarded against it to other PRPs."(21)

In 1986, Congress amended CERCLA and provided PRPs an explicit right to contribution.(22) However, Congress also added a provision to insulate favored, settling parties from contribution claims through an amendment that provides:

A person who has resolved its liability to the United States or a State in an

administrative or judicially approved settlement shall not be liable for claims

for contribution regarding matters addressed in the settlement. Such settlement

does not discharge any of the other potentially liable persons unless its

terms so provide, but it reduces the potential liability of the others by the

amount of the settlement.(23)

The legislative history further explains that Congress expected a court evaluating a proposed consent decree to "satisfy itself that the settlement is reasonable, fair, and consistent with the purposes that CERCLA is intended to serve."(24)

The First Circuit aptly described CERCLA's settlement provision by explaining that

Congress explicitly created a statutory framework that left nonsettlors at risk

of bearing a disproportionate amount of liability. The statute immunizes

settling parties from liability for contribution and provides that only the amount

of the settlement -- not the pro rata share attributable to the settling party

-- shall be subtracted from the liability of the nonsettlor. This can prove to be a

substantial benefit to settling PRPs -- and a corresponding detriment to their

more recalcitrant counterparts.(25)

One district court has described CERCLA's settlement procedures as a "carrot and stick" approach, where the "carrot" is the promise that settling parties' liability will be limited and the "stick" is that if the settlement is too low, nonsettling parties pay the difference.(26)

Still other courts note that the risk of placing a disproportionate share of CERCLA's liability on nonsettling parties has been well accepted. These courts point to the fact that Congress allows d& risk to exist, even though it may seem unfair.(27) Indeed, some courts have concluded that the threat of "disproportionate liability" is 'an integral part of the statutory plan" and "a technique which promotes early settlements and deters litigation for litigation's sake."(28)

III. CERCLA's Settlement Scheme Denies Nonsettling Parties Due Process

A. Due Process Precludes Nonparties from Being Bound by a

Judgment Among Other Parties

The Due Process Clause requires the judiciary to employ fair procedures when resolving disputes between civil litigants.(29) As the Supreme Court explained, "[t]his conclusion is hardly a novel one. The Court traditionally has held that the Due Process Clause protects civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances."(30)

Accordingly, a fundamental tenet of the Due Process Clause is that only parties and their privies can be bound by a judgment.(31) This tenet stems from the firmly established principle that every party deserves to have their case fully and fairly litigated.(32) As part of due process, parties that have never appeared in a prior action should have a chance to present their evidence and arguments on the claim.(33) For this reason, the Supreme Court has repeatedly recognized that [i]t is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard."(34)

Although the Court has encouraged the development of procedures to simplify complex litigation,(35) it has remained cognizant of the fact that there is "a failure of due process ... where it cannot be said that the procedure adopted fairly insures the protection of the interests of absent parties who are bound by it."(36) Consequently, the Court has, for example, preserved due process by limiting the ability of parties to bind nonparties through class actions when "the selection of representatives for purposes of litigation whose substantial interests are not necessarily or even possibly the same as those whom they are deemed to represent, does not afford the protection to absent parties which due process requires."(37)

Likewise, the Supreme Court has precluded parties from imposing obligations on nonparties through the use of consent decrees. Among the Supreme Court's most relevant decisions in this context is Local No. 93, Int'l Assn of Firefighters v. City of Cleveland.(38) In due case, groups of black and hispanic firefighters brought a class action against the City of Cleveland under Title VII seeking an affirmative action decree to redress previous discrimination by the City.(39) The City and the plaintiffs proposed a consent decree that would establish an affirmative action program, and Local 93 intervened complaining that affirmative action would harm its members.(40) After extensive hearings on the decree, the District Court ordered the consenting parties to negotiate a new consent decree with Local 93.(41) The parties were unable to agree, however, and the District Court entered a consent decree between the plaintiffs and the City requiring affirmative action.42 Local 93 appealed.(43)

The Supreme Court upheld the consent decree, but emphasized that Local 93 would not be bound by the agreement.(44) The Court explained that the rights and responsibilities accorded by a consent decree apply only to those who give their consent.(45) As the Court explained, "[i]t has never been supposed that one party -- whether an original party, a party that was joined later, or an intervenor -- could preclude other parties from setting their own disputes and thereby withdrawing from litigation."(46) Therefore, Local 93 "does not have the authority to block the decree merely by withholding its consent."(47)

However, the Court recognized without hesitation that the consent decree could not be used to restrict the rights of Local 93's members or other nonparties.(48) The Court emphasized, "[o]f course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement."(49)

The Supreme Court later confirmed that the holding in Local 93, protecting the rights of nonparties to a consent decree, did not depend on the fact that the union had intervened to protect its rights.(50) In Martin v. Wilks,(51) caucasian firefighters sued the City of Birmingham claiming that they were being discriminated against under an affirmative action program required by consent decrees the City had previously entered into with black firefighters.(52) These consent decrees had been approved after an extensive fairness hearing and after notice of the hearing was made in two local newspapers.(53) These same caucasian firefighters participated in the fairness hearing on the consent decree by filing amicus curiae briefs in opposition.(54)

The City admitted that it was discriminating against the caucasian firefighters on the basis of race, but claimed that its actions were lawful because they were required by a consent decree.(55) The City further maintained that the caucasian firefighters could not collaterally attack the consent decree because the firefighters were aware that the consent decree would harm their interests, but failed to timely intervene and challenge the decree directly.(56)

The Supreme Court held that "it is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he is not made a party by service of process."(57) The Court emphasized that "[j]oinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a consent decree."(58) Therefore, the Court found it very easy to conclude that the caucasian firefighters could not be bound by the decree for their failure to intervene.(59) The Court felt that it had established this principle more than fifty years earlier, when the Court held that "[t]he law does not impose on any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger .... Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights."'(60)

The results in Local 93 and Martin were foreseen by Justices Rehnquist and Brennan in their dissent from a denial of certiorari in Ashley v. City of Jackson.(61) Justice Rehnquist characterized that case as presenting "the question whether a victim of alleged racial discrimination may have his right to sue totally extinguished by a prior suit to which he was not a party and in which a consent decree was entered before his cause of action even accrued."(62) Justices Rehnquist and Brennan would have held that the answer to this question was clearly "no."

Justice Rehnquist explained that "[i]t is a fundamental premise of preclusion law that nonparties to a prior action are not bound by the judgment."(63) Moreover, he explained that it is well established that precluding such claims would be a denial of due process.(64) "Such a decree binds the signatories, but cannot be used as a shield against all future suits by non-parties seeking to challenge conduct that may or may not be governed by the decree."(65)

Therefore, it is well-established that the traditional protection the Due Process Clause accords third parties remains applicable in the context of multi-party complex litigation.

B. Reducing Nonsettling Parties' Liability Pro Tanto While Denying

Them Contribution Rights Violates Due Process

In fashioning a federal common law rule for apportioning joint and several liability after partial settlements in admiralty cases, the Supreme Court strongly suggested that CERCLA's approach for crediting partial settlements violates due process. In McDermott, Inc. v. AmClyde,(66) the Supreme Court analyzed three different approaches to resolving the consequences of a partial settlement in joint and several liability cases: 1) reduce the total liability of nonsettling parties by the amount of the partial settlement (commonly called a pro tanto reduction), but allow nonsettling parties to retain contribution rights to recover excessive judgments against them; 2) reduce the liability of nonsettling parties pro tanto, while denying nonsettling parties contribution rights; and 3) reduce the liability of nonsettling parties by the amount of the settling parties' equitable share of responsibility.(67)

The Court quickly dismissed the first option as being inferior to the other two because it discourages settlements and leads to unnecessary ancillary litigation.(68) Therefore, the Court focused its attention on the second and third options.(69)

In evaluating the remaining options, the Court followed the same analysis used in procedural due process cases.(70) The Court evaluated the burden each rule would place on the judicial process, whether settlement would be promoted, and whether liability would be fairly allocated between the parties.(71)

The Court adopted the proportionate share rule of option three and harshly criticized the unfairness of option two, which, like CERCLA, reduces nonsettling parties liability pro tanto and bars contribution claims.(72) The Court explained that "[u]nder the pro tanto approach.... a litigating defendant's liability will frequently differ from its equitable share, because a settlement with one defendant for less than its equitable share requires the nonsettling defendant to pay more than its equitable share."(73)

Moreover, the Court recognized that the pro tanto approach would transform settlements into a coercive, unfair process.(74) "The rule encourages settlements by giving the defendant that settles first an opportunity to settle for less than its fair share of the damages, thereby threatening the nonsettling defendant with the prospect of paying more am its fair share of the loss."(75) The Court objected to using the pro tanto rule to pressure the parties to settle "[b]y disadvantaging the party that spurns settlement offers."(76) As the Court explained, this "additional incentive to settlement provided by the pro tanto rule comes at too high a price in unfairness."(77)

The Court noted that most courts and legislatures applying this legislative scheme require "good-faith" hearings, as CERCLA does, to provide some protection for nonsettling parties. However, the Court went on to state:

Nevertheless, good-faith hearings cannot fully remove the potential for inequitable allocation of liability. First, to serve their protective function effectively, such hearings would have to be minitrials on the merits, but in practice they are often quite cursory. More fundamentally, even if the judge at a good-faith hearing were able to make a perfect forecast of the allocation of liability at trial, there might still be substantial unfairness when the plaintiffs success at trial is uncertain. In sum, the pro tanto approach, even when supplemented with good-faith hearings, is likely to lead to inequitable apportionment of liability ....(78)

Although the Court generally agreed with the public policy of encouraging settlements, it felt that such additional pressure to settle was unnecessary.(79) The Court preferred relying on the fact that parties already had sufficient reasons to settle, i.e., to avoid costs of litigation, to reduce uncertainty of outcome, and to maintain ongoing commercial relationships.(80)

Moreover, the Court explained that joint and several liability and a proportionate share approach to settlement could easily coexist.(81) Where tortfeasors subject to joint and several liability are forced to pay a greater share of liability than they individually caused, it is due to "outside forces," such as a defendant's insolvency.(82) In cases involving settlement, however, "the plaintiffs recovery against the settling defendant has been limited not by outside forces, but by its own agreement to settle."(83)

The Court found this distinction "one of the virtues of the proportionate share rule."(84) In terms that sound very much like the due process cases of the previous section, the Court explained that "unlike the pro tanto rule, [the proportionate share rule] does not make a litigating defendant's liability dependent on the amount of a settlement negotiated by others without regard to its interest."(85) Arguing for the proportionate share rule, the Court stated that

[t]here is no reason to allocate any shortfall to the other defendants, who were not parties to the settlement. Just as the other defendants are not entitled to a reduction in liability when the plaintiff negotiates a generous settlement, so they are not required to shoulder disproportionate liability when the plaintiff negotiates a meager one.(86)

Likewise, federal courts have held in other joint and several liability contexts that contribution bar orders cannot be entered where they would threaten the due process rights of nonparties.(87) In such cases, the courts have appropriately recognized that "[i]f the proposed settlement is intended to preclude further litigation by absent persons, due process requires that their interests be adequately represented."(88)

It is difficult to imagine a statutory scheme that diverges further from the constitutional right to due process than CERCLA's contribution bar provisions. Congress certainly stretched its powers to the limit by retroactively imposing several billion dollars in damages through CERCLA's strict, joint and several liability scheme. Yet this scheme crosses the constitutional breaking point by providing that parties who do not accept this liability promptly, and who do not enter settlements to that effect, will have their liability determined for them by the remaining tortfeasors and EPA. It is certainly a perverse form of justice that allows self-interested parties to decide how much third parties will pay to them as a sanction for those third parties deciding to exercise their constitutional right to judicial review.(89)

Nonsettling PRPs clearly have a protected property interest in the amount of money they pay as damages, and due process should ensure that they are not forced to pay more than their equitable share. Although Congress has considerable flexibility to establish a method for allocating liability, the Due Process Clause precludes Congress from creating a liability scheme where the liability of nonsettling PRPs is reduced pro tanto without providing any remedy in situations where liability in excess of the nonsettling PRPs' equitable shares would occur.

C CERCLA's Provision Allowing Settling Parties to Shift Their

Liability to Nonsettling Parties Through Consent Decrees Violates

Due Process

1. The Interests of Nonsettling Parties Under CERCLA Have Been Misunderstood 

Litigants and the courts recognize the unfairness of CERCLA's settlement scheme but generally fall to appreciate its constitutional significance because they misunderstand the nature of the nonsettling parties' interests.(90) Although it should be clear that nonsettling parties have a protected property interest in ensuring that any judgment rendered against them is equitably apportioned,(91) litigants and the courts have looked past this constitutional issue and simply asked whether a plaintiff has a statutory right to contribution.(92)

Of course Congress and the courts have considerable discretion to decide which procedures will be applied to protect a property interest in equitable apportionment; the Due Process Clause merely requires that the procedures used be fair.(93) Nevertheless, in a joint and several liability system that bars any form of contribution, it is important to provide indemnity based on differences in relative fault to ensure fairness.(94) Otherwise, "a minimally culpable defendant might have to bear the burden of entire judgment even though another, more favored tortfeasor was solvent."(95)

By asking the wrong question, courts have mistakenly concluded that Congress's broad authority to create, limit, and extinguish private causes of action places PRPs at the mercy of having to accept whatever recourse Congress offers.(96) This conclusion, however, eviscerates any limitation the Due Process Clause imposes on the government. Courts should remain cognizant that there are significant differences between "the creation of new rights" and providing a scheme for allocating responsibility among those who violate these rights.(97) CERCLA's contribution provision does not establish the standards for imposing liability; it merely provides a mechanism for allocating liability among PRPs who are liable.(98)

In the securities context, the Court explained that "[e]ven though we are being asked to recognize a [contribution] cause of action that supports a suit against these parties, the duty is but the duty to contribute for having committed a wrong that courts have already deemed actionable under federal law."(99) Therefore, the Court treated the question of whether to establish a contribution cause of action between parties "who share joint liability for [a] wrong under a remedial scheme" as "the ancillary one of how damages are to be shared among persons or entities already subject to that liability."(100) The Court held that "[h]aving implied the underlying liability in the first place, to now disavow any authority to allocate it on the theory that Congress has not addressed the issue would be most unfair to those against whom damages are assessed."(101) Thus, the Court recognized that providing tortfeasors with contribution claims against other tortfeasors who are already subject to liability under section 10(b) of the Securities Exchange Act(102) does not create any new liability, but merely expands an existing remedy.(103)

The courts' misguided focus upon statutory rights in the CERCLA context has placed nonsettling PRPs in the difficult position of demonstrating that their contribution claims have vested before a settling party has attempted to extinguish such claims through a partial settlement.(104) Courts are divided as to whether nonsettling PRPs have a vested property interest in their contribution claims.(105) The difficulty with making this determination is that a PRP is, as the name implies, only "potentially responsible." Whether a PRP will have a legal obligation to pay anything is contingent on a finding of liability. At the same time, courts realize that this contingency is little more than a technicality.(106) The reality is that CERCLA's low threshold for liability ensures that virtually all PRPs will eventually be found liable.(107)

For the most part, courts have analyzed the nature of a nonsettling PRP's contribution rights in the context of motions to intervene.(108) Nonsettling PRPs often attempt to intervene in judicial proceedings to block the entry of consent decrees resolving liability between other parties.(109) Because of the confusion over whether a nonsettling PRP's interest is real or contingent, courts are divided with regard to whether nonsettling PRPs have a right to intervene in such cases.(110)

Unfortunately, both the parties and the courts have overestimated the importance of intervention in this context. Courts and PRPs apparently assume that the only opportunity nonsettling PRPs have to prevent settling parties from determining their liability is through intervention. This misconception is driven by CERCLA's provision requiring a settlement to reduce the liability of nonsettling PRPs pro tanto, while extinguishing their claims for contribution.

Litigants and the courts should realize that intervention is not an adequate remedy for protecting the rights of nonsettling parties to a settlement. In fact, intervention should not provide nonsettling PRPs any benefit whatsoever. Whether or not they have intervened in a suit, nonsettling PRPs have the opportunity to contest consent decrees during fairness hearings before the court. Intervention should not provide nonsettling PRPs any right to block or appeal the entry of a settlement they oppose. As the Supreme Court explained in Local 93 v. City of Cleveland,

[i]t has never been supposed that one party -- whether an original party, a party

that was joined later, or an intervenor -- could preclude other parties from

settling their own disputes and thereby withdrawing from the litigation. Thus,

while an intervenor is entitled to present evidence and have its objections

heard at the hearings on whether to approve a consent decree, it does not have

power to block the decree merely by withholding its consent.(111)

Nevertheless, Local 93 and Martin v. Wilks(112) demonstrate that the nonsettling PRPs cannot have their rights restricted by the consent decree.(113) Whether the nonsettling PRPs' interests in the litigation are real or contingent at the time the consent decree is entered is of no consequence. "Such a decree binds the signatories, but cannot be used as a shield against all future suits by nonparties seeking to challenge the conduct that may or may not be governed by the decree."(114) Therefore, it is irrelevant when the non-settling PRPs become "interested" because settling parties can never bind them through consent decrees.

Once PRPs are found liable they have a very real property interest in paying only their equitable share of the total liability. While the amount of liability each PRP will have to pay may turn on many factors beyond their control, such as the insolvency or an inability to find other tortfeasors, consideration of these factors is equitable under the premise of joint and several liability that it is better for a wrongdoer to pay than for the victim to pay.(115) In contrast, there is no equitable principle am would allow a group of joint tortfeasors to conspire in shifting their equitable share of the liability to another joint tortfeasor.

The interest of nonsettling PRPs, which cannot be deprived without due process, is to pay only their equitable share of liability. While Congress has discretion to establish a variety of means for equitably allocating liability between tortfeasors, the procedure chosen must be equitable.(116) Thus, Congress cannot establish a scheme that arbitrarily places a disproportionate share of liability on one tortfeasor without affording that tortfeasor the right to obtain justice.(117)

2. CERCLA's Present Safeguards Are Not Sufficient to Provide Nonsettling

PRPs Due Process

Once it is recognized that nonsettling PRPs have a property interest in paying no more than their equitable share to remedy a CERCLA site, the potential for unconstitutional applications of CERCLA's settlement scheme become readily apparent. Congress cannot delegate to EPA and some PRPs the authority to determine the allocation of liability that is to be paid by nonsettling parties.(118) Nonsettling parties have in no sense "consented" to these consent decrees and they are entitled to have their liability determined by a court on the merits.(119)

The Supreme Court has ruled that the model CERCLA is based upon is "likely to lead to inequitable apportionments of liability" and "comes at too high a price in unfairness."(120) Moreover, the courts that have evaluated the potential applications of CERCLA have described it as unfair and even Draconian.(121) Once courts recognize that this unfairness impacts upon a constitutional right, CERCLA's settlement provisions should fall under the weight of the Due Process Clause.

Without describing the right that is protected, some courts have suggested that CERCLA provides due process by requiring publication of notice in the Federal Register, subjecting consent decrees to fairness hearings and allowing EPA to reopen misguided settlements.(122) Although each of these procedures is useful for the protection of nonsettling parties' rights, they are insufficient in a due process context because none of these procedures prevents a third party from being bound by a judgment.(123)

The consent decrees reviewed by the Supreme Court in Martin and Local 93 did not involve publication in the Federal Register, but it is doubtful that publication would have altered the disposition of those cases. While publication in the Federal Register could arguably provide notice to the nonsettling parties, and enable them to protect their rights by participating in fairness hearings,(124) "publication in the Federal Register still is unlikely to provide constitutionally adequate notice."(125) Moreover, notice of the fairness hearings would in no way transform those hearings into a fair opportunity to be heard.

The nonsettling parties in Martin and Local 93 received notice, participated in the proceedings, and, in Local 93, the nonsettling party had actually intervened in the suit. Nevertheless, the Court concluded in both cases that the nonsettling parties had not received due process and could not be bound by the decrees.(126)

Likewise, numerous courts, including the Supreme Court, have routinely criticized the inadequacies of fairness hearings. The existence of fairness hearings in Martin and Local 93 was held insufficient to provide due process to parties who had actually participated in those hearings.(127) Such results are not surprising. As the Supreme Court explained in McDermott, "good-faith hearings cannot fully remove the potential for inequitable allocation of liability . . . . [T]he pro tanto approach, even when supplemented with good-faith hearings, is likely to lead to inequitable apportionments of liability."[128]

Chief Justice Rehnquist has explained that the principle that a nonparty cannot be bound by a judgment "should apply with all the more force to a consent decree, which is little more than a contract between the parties, formalized by the signature of a judge. The central feature of any consent decree is that it is not an adjudication on the merits."(129) A court's discretion in entering a consent decree is limited to either accepting or rejecting it;(130) a court "may not substitute [its] own judgment for that of the parties to a decree."(131) Thus, courts must defer heavily to the parties' agreement and the EPA's expertise."(132)

CERCIA fairness hearings, by themselves, fail to provide sufficient protection to nonsettling parties. Numerous courts have held that while a settlement's effect on nonsettling parties should be considered, it is not determinative.(133) Moreover, courts have been hesitant to make detailed investigations into the fairness of settlements because the "preparation for such `mini trials,' and the uncertainty of outcomes, would discourage parties from settling, and this would be contrary to CERCIA's policy of encouraging early settlement."(134) "Consequently, requests for evidentiary hearings are, for the most pan, routinely denied."(135) In fact, such careful review is "the long-odds exception" to the rule.(136)

Likewise, the fact that EPA generally includes a provision in the settlements allowing EPA to reopen the settlements under certain conditions provides nonsettling parties very little protection.(137) The reopener provision does not provide the nonsettling party any opportunity to protect its own interests directly. Furthermore, it is unlikely that EPA would reopen a settlement to protect the interests of a nonsettling party. EPA is surely aware of the interests of nonsettling parties before a consent decree is entered and it is doubtful that EPA would change its mind. EPA has no incentive to reopen a settlement that would add to its work load because, as CERCLA is currently applied, it will be compensated by nonsettling parties whether or not the settlement it has already entered is fair.

D. Legal Consequences of Finding that CERCLA's Settlement

Provisions May Violate Due Process

Once the potential for CERCLA settlements to deprive nonsettling parties of their constitutional rights is realized, the burden on parties wishing to conclusively resolve their liability through a settlement will become more demanding. Nevertheless, the legitimate incentives for settlement, such as the avoidance of transaction costs and the certainty of the damages to be paid, will remain.(138) The only incentives for settlement that are removed by recognizing the rights of nonsettling parties are those based on th epossibility that an overly generous settlement can be obtained from EPA or the fear that others will obtain such a settlement. Although the removal of these incentives may reduce the number of settlements, it should increase the likelihood that the settlements actually reached will be fair.

Recognizing the constitutional rights of nonsettling parties would force settling PRPs to account for the contingency that nonsettling parties may challenge the adequacy of the settlement. For example, settling parties may stipulate to how any additional liability would be divided among themselves, or one group of PRPs may agree to completely indemnify another.

Current law inhibits such settlements because PRPs who wish to settle can obtain a better deal from EPA than can be obtained by settling with other parties. In the absence of any guaranty that contribution protection can truly be conferred, risk averse PRPs will likely settle and receive indemnification from PRPs who are less risk averse. Because these PRPs will be negotiating their own risks and their own benefits, any settlement that is struck is likely to be far more equitable than one which is currently struck between a PRP and EPA.(139)

Depending on the extent of inequity in settlements that have been reached with EPA this far, existing settlements may be disrupted. The Supreme Court has recognized that consent decrees may be modified "in light of changes in circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered."(40) "While a decision that clarifies the law will not, in and of itself, provide a basis for modifying a decree, it could constitute a change in circumstances that would support modification if the parties had based their agreement on a misunderstanding of the governing law."(141)

Settling parties' misunderstanding that nonsettling PRPs would be bound by any settlement between settling parties and EPA would likely warrant a modification of many decrees that have already been entered. At the heart of these settlements is the belief that any resulting shortfalls will be absorbed by nonsettling PRPs, rather than the settling parties. Accordingly, the purpose of those settlements will be undermined if EPA cannot recoup all remaining expenses from nonsettling PRPs. There will be further problems when PRPs, who have funded a cleanup, bring claims against settling parties to recover expenses beyond their own equitable liability. Nevertheless, it is likely that the allocation of liability determined by most existing settlements would not be disrupted beyond the courts' capacity to cope. The allocation used in the original settlement will remain a useful means for distributing any additional liability that should be absorbed by settling parties. In many cases, the best solution may be for the settling parties to preserve the existing agreement between themselves and to negotiate a global settlement with the nonsettling PRPs.

Any significant disruption of existing settlements would likely involve only the most inequitable settlements. Indeed, nonsettling parties would have very little to gain from challenging a settlement that already provides an equitable division of liability. In those circumstances where a settlement does impose an inequitable burden on a nonsettling party, there are no compelling reasons why the settlement should not be modified or vacated.

IV. Conclusion

The coercive nature of CERCLA's settlement process produces settlements that are neither fair nor consistent with the due process guaranty of the Constitution. Such results are the predictable consequences of a scheme that was apparently designed to foster settlements without having to address the complex and difficult issues which are inherent in CERCLA litigation.

Rather than promote settlements through coercion, CERCLA should foster settlements by providing PRPs the information that they win need to resolve the liability among themselves. This may require courts to take an aggressive role in policing discovery, narrowing the issues for trial by summarily disposing of some legal issues early in the case, promptly ruling on motions that will clarify the liability of parties, and structuring the trial to address dispositive issues first.(142) Although such actions will place a heavy burden on the parties and the courts, they will encourage a resolution of CERCLA cases in a manner that promotes fairness and protects the interests of all parties before the courts.

(1) 42 U.S.C. [sub-sections] 9601-9675 (1994 & Supp. I 1995). The Superfund Amendments and Reauthorization Act of 1986 (SARA) amended CERCLA Pub. L. No. 99-499, 100 Stat. 1613.

(2) 42 U.S.C. [section] 9607 (1994) (imposing liability on a broad class of persons under the Act). This section has been consistently interpreted to impose retroactive, strict, and joint and several liability on responsible parties. Michael P. Healy, The Effectiveness and Fairness of Superfund's Judicial Review Preclusion Provision, 15 Va. Envtl. L.J. 271, 281 (1996). CERCLA's strict liability scheme is based on the polluter pays" principle, which effectively limits the cleanup costs that the federal government and taxpayers must incur. Id. The imposition of significant liability on parties who may have disposed of only trivial amounts of waste in a manner that was legal at the time is unfair in a sense, but there does not appear to be a truly fair solution to the problem. See Reichhold Chems., Inc. v. Textron, Inc., 888 F. Supp. 1116, 1129 (N.D. Fla. 1995) (discussing the liability of passive downstream landowners for their neighbors' run-off pollutants). "While it may seem inequitable, the mere migration of contaminants from adjacent land constitutes disposal for the purposes of CERCLA, and passive downstream landowners are liable for the cleanup costs resulting from their neighbors' activities." Id. Although CERCLA does not require a close correlation between liability and culpability, it certainly appears more equitable to place the costs of cleanups on those responsible for the problem than on the innocent taxpayers. See Benefits and Drawbacks of the Superfund Statute's Liability Provisions: Hearing Before the Env't, Energy, and Natural Resources Subcomm. of the House Comm. on Gov't Operations, 103d Cong. 114 (1994) (statement of Katherine N. Probst, Research Fellow, Center for Risk Management, Resources of the Future) (There probably is no 'fair' Superfund facing scheme -- either in terms of liability, or in terms of the taxes to finance the trust fund. Each of the liability schemes introduces a new element of unfairness."); Colin Crawford, Medical Monitoring and the Future of CERCLA: Reinvigorating the Superfund Law's Consequentialist Purpose, 28 Ariz. St. L.J. 839, 840 (1996) ("People with different political philosophies and divergent views on the appropriate role of environmental protection nonetheless often agree that various CERCLA provisions, and in particular its imposition of joint and several liability, are unjust in practice."); Melody A. Hamel, The 1970 Pollution Exclusion in Comprehensive General Liability Policies: Reasons for Interpretations in Favor of Coverage in 1996 and Beyond, 34 Duq. L Rev. 1083, 1122 (1996) (noting that CERCLA's strict liability scheme is often criticized as flawed and unfair); Hon. James L. Oaks, Developments in Environmental Law: What to Watch, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,308, 10,308 (1995) (noting widespread criticism of CERCLA's retroactive, joint and several liability scheme).

(3) See 42 U.S.C. [section] 9607 (1994) (liability provision); Robert V. Percival et al., Environmental Regulation: Law, Science, & Policy 285, 369-71 (discussing CERCLA's low threshold for liability and 42 U.S.C. [section] 9607).

(4) See Percival et al, supra note 3, at 384 (estimating average cleanup costs at around $8.3 million per site in 1985); see also Michael P. Healy, Direct Liability for Hazardous Substance Cleanups Under CERCLA: A Comprehensive Approach, 42 Case W. Res. L. Rev. 65, 73 (1992) (estimating that the cost to clean up 1200 to 2000 of the most dangerous sites at that time would have been between $13.1 billion and $22.1 billion); infra note 11 and accompanying text.

(5) Manual for Complex Litigation, Third [section] 33.73 (1995) ("Incentives for defendants to round up all potentially responsible parties (PRPs) can lead to a continuous parade of new parties."). See, e.g., United States v. Kramer, 770 F. Supp. 954, 960 (D.N.J. 1991) (involving more than 50 primary defendants and approximately 300 third-party defendants); New York v. Exxon Corp., 744 F. Supp. 474, 476, 479 (S.D.N.Y. 1990) (involving 15 primary defendants and approximately 300 third-party defendants); United States v. Stringfellow, 661 F. Supp. 1053, 1055-58 (C.D. Cal. 1987) (involving more than 100 parties, 15 of which were defendants).

(6) Manual for Complex Litigation, Third [section] 33.71 (1995) (adding that one of the difficulties of the allocation process is that "[defendants] may believe that they are being singled out to pay more than their fair share"). Not surprisingly, virtually all potentially responsible parties (PRPs) believe that the complex problem of allocating liability under the CERCLA program is "extremely serious" and acts as "a heavy weight on progress of the overall Superfund program." Review of the Hazardous Substance Superfund: Hearings Before the Subcomm. on Oversight of the House Comm. on Ways and Means, 102d Cong. 380 (1992) [hereinafter Ways and Means Review Hearings] (statement of Brent J. Gilhousen, Corporate Counsel, Monsanto Co., on behalf of the Superfund Settlements Project).

(7) 42 U.S.C. [sub-section] 9613(f)(2), 9622 (1994); 40 C.F.R. [section] 305.25 (1996); see Manual for Complex Litigation, Third [section] 33.73, at 379 (1995) (stating in the subsection on facilitating settlements that "CERCLA expressly encourages settlement, and the EPA has generally sought consent decrees to conclude CERCLA litigation").

(8) 42 U.S.C. [section] 9613(f) (1994). A similar settlement procedure exists for de minimis settlements with EPA under 42 U.S.C. [section] 9622(g)(5) (1994). See, e.g., Dravo Corp. v. Zuber, 13 F.3d 1222, 1225 (8th Cir. 1994) (explaining that contribution protection "provide[s) powerful incentives for PRPs to resolve their potential liability"); Central Illinois Pub. Serv. Co. v. Industrial Oil Tank & Line Cleaning Serv., 730 F. Supp. 1498, 1505 (W.D. Mo. 1990) (The prospect of a larger contribution for nonsettling parties was precisely the incentive intended by Congress to promote early settlements.").

(9) 42 U.S.C. [section] 9613(f)(2) (1994).

(10) See, e.g., Stewman v. Mid-South Wood Prods. of Mena, Inc., 993 F.2d 646, 649 (8th Cir. 1993) ("[T]here is no minimum quantitative requirement to establish a release or a threat of a release of a hazardous substance under CERCLA . . . "); United States v. Alcan Aluminum Corp., 964 F.2d 252, 259 (3d Cir. 1992) (discussing CERCLA's lack of quantitative requirements).

(11) House Subcomm. on Investigations and Oversight of the Comm. on Public Works and Transportation, Administration of the Federal Superfund Program, H.R. Rep. No. 103-35, at 5 (1993).

(12) 42 U.S.C. [sub-sections] 9613(f)(2), 9622(g)(5) (1994).

(13) For example, if the equitable allocation of a $1 million site is 90% for PRP A and 10% for PRP B, the equitable allocation of liability is $900,000 for PRP A and $100,000 for PRP B. If EPA settles PRP A's $900,000 equitable share for $100,000, then PRP A's remaining equitable share of $800,000 is shifted by joint and several liability to the remaining PRPs, who cannot recover the money from PRP A due to the contribution bar. Therefore, PRP B would be left paying $900,000 or 9096 of the liability, even though PRP B's equitable proportion of the fault is only 10%.

(14) See, e.g., City of New York v. Exxon Corp., 697 F. Supp. 677, 681 (S.D.N.Y. 1988) (discussing potential inequities for nonsettling PRPs).

(15) See Ways and Means Review Hearings, supra note 6, at 235-36 (statement of Don R. Clay, Assistant Administrator, Office of Solid Waste and Emergency Response, EPA) (explaining that EPA may "waive the recovery of past costs from settling parties and pursue nonsettling parties for those past costs"); United States v. Cannons Eng'g Corp., 899 F.2d 79, 89 (1st Cir. 1990) (upholding EPA's approach of upping the "ante" required to obtain a settlement as the settlement process progresses).

(16) U.S. Const. amend V (declaring that no person shall be deprived of life, liberty, or property without due process of law). See U.S. Const. amend. XIV, [section] 1 (extending the due process requirement to the states).

(17) See, eg., Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986) (holding that consent decrees could not be used to restrict the rights of nonparties); cases cited infra Part III.A

(18) Healy, supra note 2, at 281. But see Matter of Bell Petroleum Serv., Inc., 3 F.3d 889, 903 (5th Cir. 1993) (explaining that "apportionment is available, at least theoretically, when there is a reasonable basis for determining the contribution of each cause to a single harm").

(19) Manual for Complex Litigation, Third [section] 33.71 (1995); see also 42 U.S.C. [section] 9607(a) (1994) (describing the classes of persons that can be held liable under CERCLA); id. [section] 9607(b) (establishing very narrow defenses to liability); Frank P. Grad, Treatise on Environmental Law [section] 4A.01-.03 (1996) (providing an in-depth discussion of the "Superfund Law" and the disposal of hazardous waste); 1 Allan J. Topol & Rebecca Snow, Superfund Law & Procedure pt. 2, ch. 3 (1992) (discussing the identification of parties within government enforcement actions under CERCLA).

(20) See United States v. Conservation Chem. Co., 619 F. Supp. 162, 216-21 (W.D. Mo. 1985) (stating that rather than preclude CERCLA contribution actions, Congress intended they be determined under federal common law).

(21) United States v. Colorado & East. R.R. Co., 50 F.3d 1530, 1535 (10th Cir. 1995).

(22) Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, [section] 113, 100 Stat. 1613, 1647-48.

(23) Id.

(24) H.R. Rep. No. 99-253, pt. 3, at 19 (1985); see also United States v. Charter Int'l Oil Co., 83 F.3d 510, 515 (1st Cir. 1996) ("In approving a consent decree, the district court must determine three things: that the decree is fair, that it is reasonable, and that it is faithful to the purposes that CERCLA is intended to serve.").

(25) United States v. Cannons Eng'g Corp., 899 F.2d 79, 91 (1st Cir. 1990).

(26) United States v. Pretty Prods., Inc., 780 F. Supp. 1488, 1494 (S.D. Ohio 1991).

(27) United States v. ABC Indus., 153 F.R.D. 603,607 (W.D. A&ch. 1993) ("The possibility of a disproportionate share of CERCLA liability falling on nonsettlors has been well-accepted. Courts have noted that Congress allowed this possibility, however unfair it may seem, to exist."); see also Pretty Prods., Inc., 780 F. Supp. at 1494 (explaining that the procedure is "somewhat Draconian" in its effects, but plainly established by Congress); Central Illinois Pub. Serv. Co. v. Industrial Oil Tank & Line Serv., 730 F. Supp. 1498, 1504 (W.D. Mo. 1990) (explaining that "Section 113(f)(2) apparently compels the non-settlers to absorb the short fall" of low settlements (quoting City of New York v. Exxon Corp., 697 F. Supp. 677, 681 (S.D.N.Y. 1988))).

(28) Cannons Eng'g Corp., 899 F.2d at 92; see also In re Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 1032 (D. Mass. 1989) (finding that because "sovereigns" often award lower settlements to early, good faith negotiators, defendants who do not receive such settlements "have only themselves to blame"); City of New York v. Exxon, 677 F. Supp. 677, 694 (S.D.N.Y. 1988) (stating that to the extent nonsettling parties are disadvantaged by section 113(f)(2), their "dispute is with Congress").

(29) As one court explained in the CERCLA context, "due process requires that a person subject to enforcement of a statutory or administrative scheme be permitted to test the validity of that scheme through judicial review." Louisiana Pac. Corp. v. Beazer Materials & Serv., Inc., 842 F. Supp. 1243, 1252 (E.D. Cal. 1994). This principle has long been recognized in other areas. See, eg., Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 482, 491 (1915) (holding that a statute dealing with rate-setting of public corporations violated the Due Process Clause because it imposed automatic damages that were plainly arbitrary and oppressive" in comparison to the actual harm caused).

(30) Logan v. Zimmerman Brush Co., 455 U.S. 422, 429 (1982). The Supreme Court has recently explained the due process requirement of rational decision making precludes courts from imposing excessive tort damages. BMW of North America, Inc. v. Gore, 116 S. Ct. 1589, 1592 (1996) ("The Due Process Clause ... prohibits a State from imposing a 'grossly excessive' punishment on a tortfeasor." (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 454 (1993))); id. at 1605 (Breyer, J., concurring) ("This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through application, not of law and legal processes, but of arbitrary coercion."); TXO Prod. Corp., 509 US. at 453-54 (1993) (recognizing that due process limits excessive punitive damages); id. at 467 (Kennedy, J., concurring) (recognizing that due process requires "rationality and fairness" in decision making and "its fundamental guarantee is that the individual citizen may rest secure against arbitrary or irrational deprivations of property); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20 (1991) (recognizing a due process interest in "rational decisionmaking").

(31) Davis v. Wood, 1 Wheat (14 U.S.) 6, 8-9 (1816) ("The rule is, that verdicts are evidence between parties and privies. The court does not feel inclined to enlarge the exceptions to this general rule . . .").

(32) Id. (stating that it is part of our "deep-rooted historic tradition that everyone should have his own day in court").

(33) See, eg., Blonder-Tongue v. University Found., 402 U.S. 313, 329 (1970) ("Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.").

(34) Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979); see also Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 593 (1974) ("[T]he general rule is that nonparties to the first action are not bound...."); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969) ("It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process."); Postal Tel. Cable Co. v. City of Newport, 247 U.S. 464, 476 (1918) ("The opportunity to be heard is an essential requisite to due process of law in judicial proceedings[,] ... so [a court] cannot, without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who is neither a party nor in privity with a party therein."); Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 (1915) ("[B]ut before a third party's property may be taken ... he is entitled upon the most fundamental principles, to a day in court...."); Scott v. McNeal, 154 U.S. 34, 46 (1894) ("No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party."); Pennoyer v. Neff, 95 U.S. 714, 732 (1878) ("[T]here can be no doubt [as to the meaning of the Due Process Clause] when applied to judicial proceedings .... [I]f [a judgment) involves merely a determination of personal liability of the defendant, he must be brought within [the court's) jurisdiction by service of process within the State, or his voluntary appearance.").

(35) The Court has consistently recognized that courts have inherent judicial power to manage cases in an orderly and expeditious manner. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991) (discussing inherent judicial powers, including the power to manage cases in an orderly and expeditious manner); Lank v. Wabash R.R. Co., 370 U.S. 626, 630-32 n.4 (1962) (discussing a court inherent power to dismiss sua sponte for lack of prosecution and listing other cases further discussing court managerial powers); see also Manual for Complex Litigation, Third [section] 20.1 (1995) ("Case management ... is intended to bring about a just resolution as speedily and inexpensively as possible.").

(36) Hansberry v. Lee, 311 U.S. 32, 42 (1940); see also Boddie v. Connecticut, 401 U.S. 371, 375 (1971) ("Private structuring of individual relationships and repair of their breach is largely encouraged in American life, subject only to the caveat that the formal judicial process, if resorted to, is paramount...."). Lower courts have reflected the same position. See Franklin v. Kaypro Corp., 884 F.2d 1222, 1225 (9th Cir. 1989) (Trial courts in which litigation is pending have a natural desire to clear court dockets of complex litigation in as expeditious a manner as possible. This desire, however, is tempered by the need to assure factual fairness and the correct application of legal principles.").

(37) Hansberry, 311 U.S. at 45. The Court also has precluded interested parties from determining the rights of others through the legislative process. For example, the Court has precluded the zoning of real property from being determined by the vote of neighboring property owners with adverse interests. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928); Eubank v. Richmond, 226 U.S. 137 (1912). Likewise, the Court has precluded the governing bodies of schools and churches from having the authority to block the issuance of liquor business. Larkin v. Grendel's Den, 459 U.S. 116 (1982). The Court has also prohibited states from terminating causes of action between private parties through arbitrary administrative procedures, Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-36 (1982), and has precluded courts from dismissing claims based on violations of court rules that do not provide due process, Societe Internationale v. Rogers, 357 U.S. 197, 209 (1958).

(38) 478 U.S. 501 (1986).

(39) Id. at 504.

(40) Vanguards of Cleveland v. City of Cleveland, No. CIV.A. C80-1964, 1992 WL 672237, at *1 (N.D. Ohio Nov. 25, 1992).

(41) Id. at *2.

(42) Id. at *2-*3.

(43) Vanguards of Cleveland v. City of Cleveland, 753 F.2d 4119 (6th Cir. 1985).

(44) 478 U.S. at 529-30.

(45) Id. at 529.

(46) Id. at 528-29.

(47) Id. at 529.

(48) Id.

(49) Id. The Court later reiterated this same point by saying of course, a court may not enter a consent decree that imposes obligations on a party that did not consent to the decree." Id.

(50) Martin v. Wilks, 490 U.S. 755 (1989).

(51) Id.

(52) Id. at 758.

(53) Id.

(54) Id. The caucasian firefighters had also attempted to intervene, but their right to do so was rejected as untimely by the District Court. Id.

(55) Id. at 760.

(56) Id. at 762.

(57) Id. at 761 (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)).

(58) Id. at 765.

(59) Id. at 769.

(60) Id. at 763 (quoting Chase National Bank v. Norwalk, 291 U.S. 431, 441 (1934)).

(61) Ashley v. City of Jackson, 464 U.S. 900 (1983) (Rehnquist, J., dissenting from denial of certiorari); see Martin, 490 U.S. at 763 n.3 (relying on Justice Rehnquist's opinion in Ashley); Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986) (same).

(62) Ashley, 464 U.S. at 900 (Rehnquist, J., dissenting from denial of certiorari).

(63) Id. at 902.

(64) Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)).

(65) Id. at 902. Recognizing the potential problems of binding nonparties through contribution bar orders, the Federal Judicial Center recommends that "[t]o ensure binding effect, the parties affected (or those representing their interests) should be before the court, and their rights should be protected" Manual for Complex Litigation, Third [sections] 23.13 (1995); see also Douglas Laycock, Consent Decrees Without Consent: The Rights of Nonconsenting Third Parties, 1987 U. Chi. Legal F. 103 (encouraging courts to have all affected parties affected by a proposed consent decree joined as parties before entering the decree).

(66) 511 U.S. 202 (1994).

(67) Id. at 208-09. These three options correspond to three model acts proposed by the National Conference of Commissioners on Uniform State Laws. Option one is described in the Unif. Contribution Among Tortfeasors Act (revised 1955), 12 U.L.A. 57-59 (1975). Option two is described in the revised Unif. Contribution among Tortfeasors Act, 12 U.L.A. 63-107 (1975). Option three is described in the Unif. Comparative Fault Act, 12 U.L.A. 45-61 (1993 Supp.). See McDermott, 511 U.S. at 209 n.8 (summarizing these options and others, which the court did not consider).

(68) McDermott, 511 U.S. at 211.

(69) Id. at 212-21.

(70) Procedural due process is determined through a balancing of three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

(71) McDermott, 511 U.S. at 212-21.

(72) Id. at 217.

(73) Id. at 212.

(74) Id. at 213; see also Franklin v. Kaypro Corp., 884 F.2d 1222 (9th Cir. 1989). In Kaypro the court stated: There are several disadvantages to this scheme. Plaintiffs may be tempted to engage in collusion with certain defendants. By accepting a low partial settlement, plaintiffs would be able to fund further litigation with no diminution of the total amount eventually received. Similarly, plaintiffs could effect low settlements with defendants who had limited resources, and thereby force wealthier defendants to pay more than if all parties proceeded to trial. Id. at 1230. Plaintiffs typically forego complete relief through settlement to discount litigation costs, but "under the offset scheme, nonsettling defendants are forced to pay to plaintiffs the amount of the discount." Id.; see also In re Master Mates & Pilots Pension Plan and IRAP Litig., 957 F.2d 1020, 1029 (2d Cir. 1992) (explaining that the pro tanto approach is particularly vulnerable to collusive settlements (citing Gomes v. Brodhurst, 394 F.2d 465 (3rd Cir. 1967))); In re Jiffy Lube Sec. Litig., 927 F. 2d 155, 161 (4th Cir. 1991) (explaining that settlements under the proportionate approach are fair because the plaintiff bears the risk of a bad settlement, but no similar incentive exists under the pro tanto approach); Gomes v. Brodhurst, 394 F.2d 465, 468 (3d Cir. 1967) (explaining that the pro tanto approach leaves "the field of settlement very much open to collusive arrangement between a plaintiff and a favored tortfeasor").

(75) McDermott, 511 U.S. at 215.

(76) Id.

(77) Id.; see also Alvarado Partners, L.P. v. Mehta, 723 F. Supp. 540, 553 (D. Colo. 1989) ("The pro tanto rule, however, tends to encourage a hasty, ill-conceived settlement between plaintiff and the most culpable defendants.").

(78) McDermott, 511 U.S. at 213-14.

(79) Id. at 215 ("While public policy wisely encourages settlements, such additional pressure to settle is unnecessary."). The Court went on to state that "[t]he parties' desire to avoid litigation costs, to reduce uncertainty, and to maintain ongoing commercial relationships is sufficient to ensure nontrial dispositions in the vast majority of cases." Id.

(80) Id.; see also United States v. Reliable Transfer, 421 U.S. 397, 408 (1975) ("Experience with comparative negligence in the personal injury area teaches that a rule of fairness in court will produce fair out-of-court settlements."); Franklin v. Kaypro Corp., 894 F.2d 1222, 1225 (9th Cir. 1989) (explaining that an "overwhelming majority of class action suits settle before reaching trial"); Thomas M. Jones, An Empirical Examination of the Resolution of Shareholder Derivative and Class Action Lawsuits, 60 B.U. L. Rev. 542, 544-47 (1980) (providing a study showing that 71% of class action suits settle). In McDermott, the Court also noted that neither the pro tanto nor the proportional approach consistently produced better results in terms of judicial economy. McDermott, 511 U.S. at 216-17. Under either scheme, courts will have to resolve the same difficult issues of apportioning equitable responsibility, either in a fairness hearing before trial or at the trial itself. Id. at 217. Delaying this determination until trial does not necessarily reduce the complexity of the trial because it will often be necessary to explain the damage caused by settling parties. Id. Moreover, delay would allow the court to completely avoid an equitable apportionment determination in those cases where all parties settle. Id.

(81) McDermott, 511 U.S. at 220 (stating that "no tension" exists between these approaches).

(82) Id. at 221; see Restatement (Second) of Torts [section] 433B cmt. d (1965) (discussing the equitable nature of placing the burden of proof on wrongdoer defendants instead of placing that burden on innocent plaintiffs). According to the Restatement, The reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned. In such a case the defendant may justly be required to assume the burden of producing that evidence, or if he is not able to do so, of bearing the full responsibility. As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former. Id.

(83) McDermott, 511 U.S. at 221.

(84) Id. at 220.

(85) Id.

(86) Id. at 221 (citation omitted).

(87) See, e.g., In re Masters Mates & Pilots Pension Plan and IRAP Litig., 957 F.2d 1020, 1031-32 (2d Cir. 1992) (vacating contribution bar because rights of third parties were not adequately protected); FDIC v. Geldermann, Inc., 975 F.2d 695, 698 (10th Cir. 1992) ("The nonsettling defendant has nothing to win and everything to lose when the court considers such bar orders."); In re Jiffy Lube Sec. Litig., 927 F.2d 155, 160 (4th Cir. 1991) (vacating contribution bar order for failure to specify setoff method to be used); Franklin v. Kaypro Corp., 884 F.2d 1222, 1230 (9th Cir. 1989) (rejecting contribution bar because settlement did not reflect equitable apportionment of damages); Energetics, Inc. v. Allied Bank of Texas, 784 F.2d 1300, 1305 (5th Cir. 1986) (recognizing that the court cannot resolve the rights of third parties not before it); Laventhol, Krekstein, Horwath & Horwath v. Horwitch, 637 F.2d 672, 675 (9th Cir. 1980) (rejecting contribution bar because the settlement failed to protect third parties by equitably allocating the harm).

(88) In re Jiffy Lube, 927 F.2d at 158; see also Geldermann, Inc., 975 F.2d at 697 (recognizing that "due process rights of third parties" are not protected because such parties are not before the court); In re Masters Mates, 957 F.2d at 1031 (stating that adequate procedures "are necessary to protect the due process rights of third parties"); Alvarado Partners, LP. v. Mehta, 723 F. Supp. 540, 554 (D. Colo. 1989) ("To the extent settling parties seek to bar claims by persons or entities other than [parties to this case], such persons or entities are not before me. Fundamental due process principles prohibit claim extinguishment against anyone not a party to this action." (citing Martin v. Wilks, 490 U.S. 755 1989))).

(89) The fact that the imposition of excessive liability is allowed as a punishment for those who seek to exercise their right to judicial review violates the unconstitutional conditions doctrine. That doctrine prohibits the government from conditioning the conferral of a discretionary benefit on the abandonment of a constitutional right. Ex parte Young, 209 U.S. 123, 147 (1908). One court has already recognized that conditions EPA imposes on a CERCLA settlement are subject to unconstitutional conditions analysis. Louisiana Pac. Corp. v. Beazer Materials & Serv., Inc., 842 F. Supp. 1243, 1251 (E.D. Cal. 1994) (explaining that the doctrine prohibits the government from exacting a "surrender of due process rights under circumstances where the Due Process Clause would prohibit direct circumscription of those rights"). In striking down another statute that placed harsh restrictions on judicial review, the Supreme Court explained that imposing such conditions was unconstitutional because the restrictions effectively precluded the right to appeal for judicial relief. Ex parte Young, 209 U.S. at 147. Therefore, it follows that the choice CERCLA mandates -- choosing between accepting liability through settlement now, or possibly paying for the liability of other parties later -- places an unconstitutional burden on PRPs. See Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 391 (8th Cir. 1987) (implying a good faith exception to treble damages for those refusing, on due process grounds, to carry out EPA orders to cleanup a site under CERCLA).

(90) Although courts have not addressed the merits of this due process challenge to CERCLA, some courts have suggested that CERCLA's settlement process raises due process concerns. See, e.g., Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 768 n.11 & n.13 (7th Cir. 1994) (discussing potential for infringing upon the due process rights of third parties); Louisiana Pac. Corp., 842 F. Supp. at 1252-56 (evaluating CERCLA settlements for consistency with due process and the unconstitutional conditions doctrine); General Time Corp. v. Bulk Materials, Inc., 826 F. Supp. 471, 476-77 (M.D. Ga. 1993) (noting that significant due process issues exist); United States v. Moore, 703 F. Supp. 455, 459 (E.D. Va. 1988) (questioning whether "the United States could shield one of its agencies from contribution claims by private parties, later sued by the United States, who had no say in the settlement process"). One federal court, however, has appropriately refused to approve a consent decree that would purport to affect the rights of a nonsettling PRP because that PRP was not before the court. City of New York v. Exxon Corp., 697 F. Supp. 677, 687 (S.D.N.Y. 1988).

(91) See supra note 30 and accompanying text (explaining that parties have a due process interest in a fair apportionment of damages).

(92) "`It is now widely recognized that fundamental fairness demands a sharing of the liability.'" In re Masters Mates, 957 F.2d at 1028 (discussing joint and several liability under ERISA (quoting Glus v. G.C. Murphy Co., 629 F.2d 248, 252 (3d Cir. 1980), vacated sub nom., Retail, Wholesale & Dept. Store Union v. G.C. Murphy Co., 451 U.S. 935 (1981))); see also Withrow v. Larkin, 421 U.S. 35, 47 (1975) (stating that "our system of law has always endeavored to prevent even the probability of unfairness" (quoting In re Murchison, 349 U.S. 133, 136 (1955))); In re Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process...."); Hansberry v. Lee, 311 U.S. 32, 41 (1940) ("[J]udicial action enforcing [a judgment] against the person or property of [an] absent party is not that due process which the Fifth and Fourteenth Amendments require."); Alvarado Partners, L.P. v. Mehta, 723 F. Supp. 540, 554 (D. Colo. 1989) ("To the extent settling parties seek to bar claims by persons or entities other than [those before the court], such persons or entities are not before me. Fundamental due process principles prohibit claim extinguishment against anyone not a party to this action.").

(93) See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (weighing private interests against governmental interests to determine the need for additional safeguards, and explaining that due process is a flexible concept). There are ways to allocate liability without contribution. For example, Congress could devise a scheme that would limit plaintiffs' ability to recover damages in excess of the defendants' equitable allocation, eliminating any need for contribution. The fact that Congress has considerable discretion to establish procedures for implementing liability schemes does not free Congress from the requirement that the procedures chosen supply due process.

(94) In re Masters Mates, 957 F.2d at 1028.

(95) Id. The Supreme Court recognized that a statutory scheme similar to CERCLA's implicated due process concerns in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 307-13 (1950). In that case, the Court addressed a due process challenge brought by the guardian of absent trust beneficiaries to an accounting of their individual interests in a common trust fund. Id. Pursuant to a New York banking law, a judicial decree approving the accounting would be conclusive and could not be challenged subsequently by any beneficiary. Id. at 309. The Court recognized that the trust beneficiaries were entitled to adequate notice and an opportunity to be heard under the Due Process Clause because the judicial decree would "cut off" any rights they may have to challenge an improper "diminution" in their property. Id. at 313.

Although CERCLA PRPs seek to allocate their equitable share of a common liability (instead of seeking to divide a common asset, as in Mullane), the legal issues are essentially the same. In both cases the parties are entitled to procedures which will equitably determine the individual interests of the parties in something they hold in common. Whether the interest is in money to be received or paid out, the parties retain an interest in how that money is allocated that is protected by the Due Process Clause.

(96) See, e.g., Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 291 (1993) (noting that generally "the creation of new rights ought to be left to the legislatures, not the courts").

(97) Id. (holding that contribution exists between joint tortfeasors under the securities laws); see also Texaco, Inc. v. Short, 454 U.S. 516, 528 (1982) ("[W]hen the practical consequences of extinguishing a right are identical to the consequences of eliminating a remedy, the constitutional analysis is the same."). Courts have not made the mistake of viewing the setoff provisions of other statutes as merely procedural. See, e.g., In re Masters Mates, 957 F.2d at 1027 ("Clearly, judgment reduction affects the substantive ERISA rights...."); Singer v. Olympia Brewing Co., 878 F.2d 596, 599 (2d Cir. 1989) (advocating a uniform national rule of settlement credit because "credit[ing] a defendant with a setoff affects substantive rather than procedural rights of the parties under the federal securities laws").

(98) The standards for imposing liability are established in 42 U.S.C. [sections] 9607(a) (1994). That section imposes liability on a class of persons, but does not require that each member of the class be joined before any single member of the class may be held liable. Contribution merely allows PRPs who are held liable for the injuries caused by the class as a whole to recover from the remaining class members.

(99) Musick, Peeler & Garrett, 508 U.S. at 292.

(100) Id.; see also Little v. Streater, 452 U.S. 1, 13-16 (1981) (requiring the state to pay for blood tests for indigent alleged fathers under the Due Process Clause, where paternity suits are required by the state for mothers to collect public aid).

(101) Musick, Peeler & Garrett, 508 U.S. at 292. The Court, in Musick, was considering whether an implied cause of action under the securities laws included a claim for contribution among joint tortfeasors. Id. Congress had not addressed the issue of contribution, or otherwise provided how liability should be allocated. Id. In contrast, Congress provided explicit allocation procedures under CERCLA. 42 U.S.C. [sections] 9613(f)(2) (1994). Nevertheless, Musick is relevant because it shows that it is "most unfair" to establish a liability scheme that inequitably allocates liability between joint tortfeasors. Musick, Peeler & Garrett, 508 U.S. at 292.

(102) Securities Exchange Act of 1934, ch. 404, [sections] 10(b), 48 Stat. 881, 891 (codified as amended at 15 U.S.C. [sections] 78j(b) (1994)).

(103) Musick, Peeler & Garrett, 508 U.S. at 292-93, 298.

(104) See, e.g., United States v. Maryland Sand, Gravel & Stone Co., No. HAR 89-2869, 1994 WL 541069, at *10 (D. Md. Aug. 12, 1994) (holding that a property right in a contribution claim had not "vested" because "the right to seek contribution does not exist until a recovery action has been initiated"); United States v. Serafani, 781 F. Supp. 336, 338-39 (M.D. Pa. 1992) (holding that contribution bar does not violate due process even though nonsettling parties had not been identified as a PRP at the time the consent decree was entered); United States v. Cannons Eng'g Corp., 720 F. Supp. 1027, 1050 (D. Mass. 1989) (rejecting a due process challenge to the contribution bar because the Supreme Court had refused to infer contribution rights from other statutes and Congress can restrict causes of action), aff'd, 899 F.2d 79 (1st Cir. 1990). But see General Time Corp. v. Bulk Materials, Inc., 826 F. Supp. 471, 477 (M.D. Ga. 1993) (finding that a contribution claim is a property right that cannot be extinguished by a settlement with a state, even though it can be extinguished by a settlement with EPA because CERCLA provides sufficient due process). Persons have a protected property right in a cause of action once it has vested. Accord Logan v. Zimmerman Brush Co., 455 U. S. 422, 428 (1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

(105) See supra note 104 (describing the split in authority).

(106) See, e.g., United States v. Union Elec. Co., 64 F.3d 1152, 1167 (8th Cir. 1995) ("The interests here may be 'inchoate' to the extent that the value of any contribution claim has not yet been determined, but the interest is nonetheless sufficiently certain once a person has been identified as a PRP to support intervention."); see also Union Pac. R.R. Co. v. Mullen, 966 F.2d 348, 350 (8th Cir. 1992) (explaining that a claim for contribution accrues at the time of the underlying tort under the Unif. Contribution Among Tortfeasors Act, which CERCLA is based upon).

(107) See supra note 3.

(108) Two Courts of Appeals have suggested that a nonsettling PRP has a sufficient property interest in a contribution claim to justify intervention before a consent decree is approved. United States v. Union Elec. Co., 64 F.3d 1152, 1162-67 (8th Cir. 1995) (holding that intervention is appropriate); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 770 (7th Cir. 1994) (suggesting in dicta that intervention should be allowed); see also United States v. Acton Corp., 131 F.R.D. 431, 433 (D.N.J. 1990) (holding that nonsettling PRPs may intervene to challenge a consent decree made by others). However, the majority of courts that have decided this issue have denied motions to intervene by nonsettling parties. United States v. ABC Indus., 153 F.R.D. 603, 607-08 (W.D. Mich. 1993); United States v. Wheeling Disposal Serv., Inc., No. 92-0132-CV-W-1, 1992 WL 685724, at *1-*3 (W.D. Mo. Oct. 1, 1992); Arizona v. Motorola, Inc., 139 F.R.D. 141, 144-146 (D. Ariz. 1991); United States v. Vasi, No. 5:90 CV 1167, 1168 (N.D. Ohio March 6, 1991); United States v. Mid-State Disposal, Inc., 131 F.R.D. 573, 576-77 (W.D. Wis. 1990); see also United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994) (holding that PRPs who had actually settled have a tangible interest in their contribution claims that supported intervention in subsequent settlements among remaining PRPs, but suggesting in dicta that nonsettling PRPs would have only a contingent interest); United States v. Browning-Ferris Indus., Inc., No. CIV. A. 89-568-A, 1990 WL 112247 (M.D. La. Feb. 13, 1990) (precluding a settling PRP from intervening in a subsequent settlement among remaining PRPs).

(109) See supra note 108 (listing cases where PRPs have sought to intervene to challenge settlements between other PRPs).

(110) See supra note 108 (describing the split in authority).

(111) Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29 (1986).

(112) 490 U.S. 755 (1989).

(113) See supra notes 39-60 and accompanying text (describing these cases).

(114) Ashley v. City of Jackson, 464 U.S. 900, 902 (1983) (Rehnquist, J., dissenting from denial of certiorari).

(115) See supra note 82 (describing the driving principles behind joint and several liability).

(116) See, e.g., Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (discussing the flexible nature of due process). Although the Supreme Court has upheld statutes imposing joint and several liability without contribution on statutory grounds, it has never decided whether such liability schemes violate the due process rights of joint tortfeasors who pay more than their equitable share. Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981); Northwest Airlines, Inc. v. Transport Workers Union of Am., 451 U.S. 77 (1981). Consequently, these decisions are not precedential for purposes of due process analysis. See, e.g., Webster v. Fall, 266 U.S. 507, 511 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having so been decided as to constitute precedents.").

(117) There has been some confusion in the common law regarding whether contribution should be allowed between joint tortfeasors. Early British and American decisions recognized a bar on contribution where the tortfeasor was a willful and conscious wrongdoer, which is not necessarily the case under a strict inability scheme like CERCLA's. See, e.g., Betts v. Gibbins, 111 Eng. Rep. 22 (K.B. 1834) (recognizing an exception when the act was not clearly illegal); Adamson v. Jarvis, 130 Eng. Rep. 693 (C.P. 1827) (allowing innocent tortfeasor to seek indemnity); See also W. Page Keeton et al., Prosser and Keeton on the Law of Torts [section] 50 at 337 (5th ed. 1984) (explaining that contribution would not be barred by early American courts if "the tort committed by the claimant was a matter of negligence or mistake"). As the rules of joinder became more liberal, courts mistakenly concluded that contribution was barred in all cases. Northwest Airlines, Inc., 451 U.S. at 86 n. 16 (explaining that the states originally misconstrued Merryweather v. Nixan, 101 Eng. Rep. 1337 (K.B. 1799), as precluding contribution in all cases arising under joint and several liability); Keeton et al., supra, [section] 50 at 337 (explaining the evolution of the rule). Most states have now modified joint and several liability to allow for contribution because they recognize the inequity that otherwise results. See, e.g., Northwest Airlines, 451 U.S. at 87 n. 17 (providing a list of cases from state jurisdictions); see also Keeton, et al., supra, [section] 50 at 337 (explaining that many early American courts departed from the negligence exception allowing contribution without providing a rationale and that such decisions were later abandoned because of the "obvious lack of sense and justice" in the rule).

Even when the common law precluded contribution, however, it would not approve a settlement scheme like CERCLA's, which allows a victim to settle with one joint tortfeasor and shift the remaining liability to another. Under the "one satisfaction rule," an equally outdated and repudiated principle once applicable to joint and several liability, a victim that settled and released one joint tortfeasor was barred from litigating against the remaining tortfeasors. See McDermott, Inc. v. AmClyde, 511 U.S. 202, 218 (describing the one satisfaction rule).

It is not uncommon for courts to modify the common law's harshness in the tort context, when it becomes apparent that traditional rules do not create "the `just and equitable' allocation of damages" that were intended. United States v. Reliable Transfer Co., 421 U.S. 397, 407, 411 (1975) (abandoning early precedent that required equally divided damages when both parties to a collision are at fault because the old rule was "unnecessarily crude and inequitable" and "[p]otential problems of proof in some cases hardly require adherence to an archaic and unfair rule in all cases"). That is apparently what has happened in the contribution context.

Regardless of how the common law bar on contribution is viewed, it is irrelevant to due process analysis. Williams v. Illinois, 399 U.S. 235, 239 (1970) ("[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack ..."); see also Brown v. Board of Educ., 349 U.S. 294 (1955) (discarding the "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), in light of new information demonstrating the unconstitutionality of the doctrine).

(118) Courts also confront similar issues when deciding the consequences of a CERCLA settlement among purely private PRPs. Section 113(f)(2) explicitly provides that settlement with EPA provides contribution protection and a pro tanto reduction of the liability of the remaining PRPs. 42 U.S.C. [sections] 9613(f)(2) (1994). CERCLA is silent with respect to the effect a private settlement has on contribution protection or how liability win be offset. Consequently, courts have split over whether contribution protection can be conferred by private settlements. See Atlantic Richfield Co. v. American Airlines, Inc., 836 F. Supp. 763, 777 (N.D. Okla. 1993) (conferring contribution protection); City & County of Denver v. Adolph Coors Co., 829 F. Supp. 340, 344 (D. Colo. 1993) (same); United States v. SCA Servs. of Indiana, Inc., 827 F. Supp. 526, 532 (N.D. Ind. 1992) (same); Allied Corp. v. Acme Solvent Reclaiming, Inc., 771 F. Supp. 219, 222 (N.D. Ill. 1990) (same); City of New York v. Exxon Corp., 697 F. Supp. 677, 694 (S.D.N.Y. 1988) (same). But see Comerica Bank-Detroit v. Allen Indus., Inc., 769 F. Supp. 1408, 1413-14 (E.D. Mich. 1991) (concluding that section 113(f)(2) does not apply to private settlements). Likewise, courts have split on whether the proportionate approach or the pro tanto approach should be used to offset the liability of nonsettling parties. See SCA Servs., 827 F. Supp. at 533-36 (adopting proportionate approach); Allied Corp., 771 F. Supp. at 223 (same); Comerica Bank-Detroit, 769 F. Supp. at 1414 (same); United States v. Western Processing, Co., 756 F. Supp. 1424, 1430-32 (W.D. Wash. 1990) (same); City of New York, 697 F. Supp. at 694 (same); Edward Hines Lumber Co. v. Vulcan Materials, Co., 685 F. Supp. 651, 657-58 (N.D. Ill. 1988) (same), aff'd, 861 F.2d 155 (7th Cir. 1988); Lyncott Corp. v. Chemical Waste Mgmt., Inc., 690 F. Supp. 1409, 1417-18 (E.D. Pa. 1988) (same); United States v. Conservation Chem. Co., 628 F. Supp. 391-402 (W.D. Mo. 1985) (same), modified 681 F. Supp. 1394 (W.D. Mo. 1988). But see Atlantic Richfield Co., 836 F. Supp. at 774-77 (advocating a flexible choice between proportionate and pro tanto, but applying pro tanto on the facts of that case); Adolph Coors Co., 829 F. Supp. at 345-46 (applying pro tanto approach).

Nonsettling PRPs receive even less protection when a settlement takes place among private parties than they do in a settlement with EPA. In a private settlement, there is no publication in the Federal Register and no provision allowing the government to reopen the settlement. Furthermore, private parties have even less responsibility than the government to consider the interests of third parties. Consequently, it is particularly difficult to reconcile the ability of private parties to adjust the obligations of third parties with the Due Process Clause.

(119) See United States v. Ward Baking Co., 376 U.S. 327, 334 (1964) ("[T]he District Court may not enter a `consent' judgment without the actual consent of the [parties] ...."); supra note 65 (arguing that third parties cannot be bound by a consent decree because they have not given their consent).

(120) McDermott, Inc. v. AmClyde, 511 U.S. 202, 214-15 (1994); see also supra note 118 (suggesting that perhaps a majority of courts have adopted the proportionate approach in private settlements because it is more equitable).

(121) See supra notes 27-28 and accompanying text (describing the unfairness of CERCLA).

(122) See United States v. Colorado & E. R.R. Co., 50 F.3d 1530, 1538 (10th Cir. 1995) (noting that EPA's ability to rescind a settlement is a check on abuse by settling parties); Dravo Corp. v. Zuber, 13 F.3d 1222, 1228 (8th Cir. 1994) (precluding a challenge to a de minimis settlement, while noting that other parties have recourse by filing comments with EPA after they receive notice in the Federal Register); United States v. Serafani, 781 F. Supp. 336, 339 (M.D. Pa. 1992) (arguing that constructive notice in the Federal Register is sufficient); Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828, 834-36 (D.N.J. 1989) (holding that publication in the Federal Register gave nonsettling parties due process): see also 28 C.F.R. [sections] 50.7 (1996) (describing the notice and comment procedures for administrative settlements).

(123) Of course, the constitutional adequacy of the process provided is subject to the Mathews balancing test. See supra note 70 (providing the balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Although this balancing test provides a great deal of flexibility, the Court has never allowed parties to have their liability resolved through judicial proceedings where their interests were not adequately represented. See supra notes 31-37 and accompanying text (summarizing cases precluding nonparties from being bound by judgments among others). Even when necessity precludes a hearing prior to the deprivation of a property right, due process requires that a hearing of some kind be provided promptly thereafter. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680 (1974) (upholding postponement of a hearing on the seizure of a ship used for transporting contraband until after the seizure had occurred). While the immediate dangers of hazardous waste contamination may necessitate abbreviated process prior to the imposition of a remedy, there is no reason why liability issues cannot be resolved through ordinary procedural safeguards after a remedy is in place. Thus, it is a drastic departure from the Court's precedents to allow liability to be permanently resolved through judicial proceedings when the person being held liable is not a party to the proceeding where its share of the liability is allocated.

(124) In Martin v. Wilks, 490 U.S. 755 (1989), notice was published in two local newspapers, but this notice was held insufficient to bind nonparties. See supra notes 50-60 and accompanying text (discussing Martin in further detail). There is nothing about the Federal Register that confers due process like a magic wand. Indeed, it can be safely assumed that notice in a local newspaper provides more effective notice to typical litigants than an obscure reference in the Federal Register. See also United States v. Town of Moreau, 751 F. Supp. 1044, 1050-51 (N.D.N.Y. 1990) (revoking a consent decree because notice and comment was not complied with).

(125) Harrison v. PPG Indus., Inc., 446 U.S. 578, 594 (1980) (Powell, J., concurring) (criticizing the short time-frame for challenging rulemakings under the Clean Air Act, [sections] 307, 42 U.S.C. [sections] 7607 (1994)); see also Tulsa Prof'l Collection Serv., Inc. v. Pope, 485 U.S. 478, 487 (1988) (actual notice must be given if possible to satisfy due process); Adamo Wrecking Co. v. United States, 434 U.S. 275, 290 (1978) (Powell, J., concurring) ("It also is totally unrealistic to assume that more than a fraction of the persons and entities affected ... would have knowledge of its promulgation or familiarity with or access to the Federal Register."); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) (concluding that general newspaper notice failed to provide due process because "the notice required does not even name those whose attention it is supposed to attract"); United States v. Alexander, 938 F.2d 942, 947 (9th Cir. 1991) (Kozinski, J.) ("The image of these two defendants driving their beat-up Dodge station wagon to the Board of Fisheries to argue that a small section of the regulations is inconsistent with an obscure phrase in a massive federal statute is a bit incongruous; they are fishermen, not legal scholars."); New England Tel. & Tel. v. Public Util. Comm'n, 742 F.2d 1, 7 (1st Cir. 1984) (Breyer, J.) (recognizing unfairness in binding parties to a rulemaking if they were not parties to the rulemaking); Chrysler Corp. v. EPA, 600 F.2d 904, 912-13 (D.C. Cir. 1979) (noting unfairness of precluding rights of parties after publication in the Federal Register if they did not have the resources to monitor government agencies actions).

(126) See supra notes 38-60 and accompanying text (describing Local 93 and Martin).

(127) Id.

(128) McDermott, Inc. v. AmClyde, 511 U.S. 202, 214 (1994).

(129) Ashley v. City of Jackson, 464 U.S. 900, 902 (1983) (Rehnquist, J., dissenting from denial of certiorari); see also Alvarado Partners, L.P. v. Mehta, 723 F. Supp. 540, 552 (D. Colo. 1989) ("This [fairness hearing] procedure, if too modest or streamlined, undermines the protective cloak of judicial review of settlement fairness that is the basis for adoption of a settlement contribution bar in the first place ....").

(130) Ashley, 464 U.S. at 902.

(131) United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1435 (6th Cir. 1991) (addressing the standard for approving CERCLA settlements); see also United States v. ITT Continental Baking Corp., 420 U.S. 223, 238 (1975) (describing consent decrees as reflecting the views of the parties, rather than the court).

(132) United States v. Charles George Trucking Co., 34 F.3d 1081, 1085 (1st

(133) United States v. Cannons Eng'g Corp., 720 F. Supp. 1027, 1040 (D. Mass. 1989), aff'd, 899 F.2d 79, 89 (1st Cir. 1990) ("The effect [of a settlement] on non-settlers should be considered, but is not determinative in the Court's evaluation."). Accord Akzo Coatings, 949 F.2d at 1435; In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1019, 1029 (D. Mass. 1989). Favoring either settling or nonsettling parties has been criticized. Manual for Complex Litigation, Third [sections] 23.14 (1995) ("Neither the proponents of the settlement nor those who are opposed or absent should be favored."). The Manual also states that the proponents of settlement should explain to other nonsettling parties why the proposed settlement is preferable to continuing the litigation, and proponents should respond to any objections. Id.

(134) Comerica Bank-Detroit v. Allen Indus., Inc., 769 F. Supp. 1408, 1411 (E.D. Mich. 1991) ("[A] detailed investigation of the fairness of the settlement, including a full blown evidentiary hearing, is not necessary or appropriate ...."). Although few courts apply rigorous review in the CERCLA context, many courts protest, rather unconvincingly, that they are not mere "rubber stamps." Id.; see also AKZO Coatings, 949 F.2d 1409, 1439 (6th Cir. 1991) ("Congress intended ... [inter alia] that the district courts treat each case on its own merits, recognizing the wide range of potential problems and possible solutions.").

(135) Charles George Trucking, 34 F.3d at 1086.

(136) Id.

(137) See, e.g., Dravo Corp. v. Zuber, 13 F.3d 1222, 1227 (8th Cir. 1994) (explaining that EPA reserves a right to void a covenant not to sue in settlements); Manual for Complex Litigation, Third [sections] 33.73 (1995) ("[A] settlement can generally be expected to include `reopeners."). Reopeners are required in settlements with EPA because EPA is precluded from settling claims for future liability that may result from unforeseen releases from a facility. 42 U.S.C. [sections] 9622(f) (1994).

(138) See supra note 80 and accompanying text (explaining that these factors are sufficient to produce settlements in most cases).

(139) See supra notes 81-86 and accompanying text (explaining that settlements under pro rata schemes are more fair than those made under pro tanto schemes).

(140) Rufo v. Inmates of Suffolk County Jail 502 U.S. 367, 380 (1992).

(141) Id. at 390; see also Pasadena City Bd. of Ed v. Spangler, 427 U.S. 424, 438 (1976) (explaining that a misunderstanding of law supports a modification of a consent judgment); System Fed'n No. 91 v. Wright, 364 U.S. 642, 647 (1961) (recognizing the authority of courts to modify consent judgments in light of a change in the law).

(142) Manual for Complex Litigation, Third [sections] 33.73 (1995) (recommending actions for courts to use in simplifying the resolution of