|
On October 6, 2004, the United States Supreme Court heard oral arguments in Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192.
The case involves the interpretation of §113(f) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and will decide whether private parties conducting voluntary cleanups may bring contribution actions against other responsible parties in the absence of an enforcement action under §106 or §107 of CERCLA.
The case arises because of the seeming contradiction between the first and last sentences of §113(f)(1). The first sentence states, “Any person may seek contribution from any other person who is liable or potentially liable under [§107(a)] of this title, during or following any civil action under [§106] of this title or [§107(a)] of this title.”
Cooper Industries argues that this sentence requires the government to have brought an action under CERCLA against the responsible party before that party may file a contribution claim against others.
Aviall Services, Inc. argues that the last sentence, which states, “Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§106] of this title or [§107] of this title,” allows a party conducting a voluntary remediation to bring a contribution action without the prior intervention of the U.S. EPA. The United States Court of Appeals for the Fifth Circuit sitting en banc ruled in favor of Aviall Services.
The United States Department of Justice, in its amicus curiae brief, supported Cooper Industries. It stated that “… CERCLA does not create a federal cause of action under which responsible parties may sue each other at any time for costs they have incurred … Rather a responsible party that satisfies its CERCLA liability to the government, through settlement or judgment, may obtain contribution from other responsible parties …”
Yet the Justice Department recognizes that “private parties have played, and will continue to play, a prominent role in cleaning up” many of the estimated 450,000 contaminated sites nationwide.
If the Supreme Court reverses the Fifth Circuit and rules in favor of Cooper Industries, the outcome will likely change the manner in which private parties conduct response actions.
Rather than proceeding with a timely voluntary cleanup, parties may feel that they must resist until U.S. EPA brings an enforcement action. Only such an action would preserve the first party’s contribution rights against others. This change could tend to bog down the courts and the U.S. EPA, slowing the rate of cleanups across the country.
A decision by the Supreme Court will likely be announced within the next six months.
Janine Landow-Esser is a partner in the Chicago office of Quarles
& Brady LLP. She is a member of the Environmental Law Practice Group and
specializes in the transfer and redevelopment of brownfield properties.