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Fresh Start, Not So Fresh: Courts Hold That Environmental Liabilities Survive Chapter 11 Reorganization
December 1, 2010
For more than 30 years, the conflicting goals of U.S. bankruptcy and environmental laws have confounded investors and practitioners in their attempts to predict how a debtor's responsibility for historic contamination will be dealt with in chapter 11. Environmental statutes are in significant part designed to ensure that entities responsible for contamination pay the costs of cleanup, irrespective of fault or the passage of time. This statutory goal directly collides with a principal purpose of chapter 11, namely the achievement of a fresh start for the debtor, free from the overhang of legacy liabilities. Some courts have bent logic to favor the environmental goals, while others have done the same to favor chapter 11's objectives. Two recent decisions - Mark IV Industries, Inc. and Apex Oil Co., Inc. - establish a clear trend of favoring environmental over bankruptcy goals.