Hurricanes & Superfund: Has the Act of God Defense Been Washed Out to Sea?
The Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”), 42 U.S.C. §9601 et sec., is a strict liability statute with few defenses to liability for Potentially Responsible Parties (“PRPs”). An act of God is one such defense, but the circumstances that might qualify arise so rarely it is seldom invoked. One might assume that a hurricane, especially a Category 4 or 5, would satisfy the act of God defense. Existing caselaw suggests otherwise.