Those who follow Supreme Court litigation know that the Court is prone to let issues percolate in state and lower federal courts before granting certiorari. Environmental litigation is no exception. Knowing this, it seems only a matter of time before the Court revisits an intensely-litigated issue it last addressed twelve years ago—the remedies available to private parties under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and the relationship between those remedies. This matter is critical for those caught in the web of environmental cleanup because the two remedies available to them under CERCLA—cost recovery under § 107 and contribution under § 113—are entirely distinct. Whichever remedy a court affords plaintiffs will affect the litigantsburden of proof, the standard of liability, the available defenses, the allocation of costs, and the applicable statutes of limitations—indeed, the entire proceeding. Furthermore, given the cost of environmental response actions, the effect on a party’s financial liability pursuant to a court’s decision on this issue can be staggering.
This article suggests this issue is not only worthy of the Court’s attention but may now be ripe for consideration. First, there is a clear split of authority among the federal courts with respect to several questions left unresolved when the Court last addressed this issue in Atlantic Research. Second, the lower courts positions on these questions are becoming increasingly well-defined and articulated. Third, without further clarification, those exposed to liability under CERCLA face uncertainty and extremely high financial risks. Finally, if not addressed, some positions taken by lower courts have the capacity to be both unfair to the parties involved and counterproductive to CERCLA’s goals.
It is not surprising that courts could disagree on the application of CERCLA. The statute has never been considered a “model of legislative clarity.” It was, after all, hastily enacted by Congress as a “last-minute compromise” during the waning days of a lame-duck session without the benefit of full technical revisions of the text. Although the House and Senate had considered related legislation for years, the bill that finally became law was hurriedly put together with little debate and finalized during the interim between the 1980 national election and the assumption of office by President Reagan. CERCLA’s provisions are complex, and its text has been described as “puzzl[ing]” and “cryptic”—even “indecipherable.” Given the haste with which the final bill was negotiated and drafted, its legislative history is also largely unhelpful, having been characterized as “vague,” “sparse,” and “self-contradictory.” The Supreme Court has provided some clarity from time to time, but the Atlantic Research opinion in 2007 was its last word on this issue, and, in that decision, the Court knowingly left a number of critical questions unresolved.
Since the Court rendered the Atlantic Research decision, splits of authority have developed among the lower courts on several of the case’s unresolved questions, and the many disparities those courts have created suggest the need for Supreme Court intervention. This article focuses on just one of the issues on which the courts are divided: whether a party that is eligible to seek contribution under § 113 may simultaneously pursue a cost recovery claim under § 107 for unrelated expenses.
This article suggests that the answer to that question should be yes. A majority of courts that have considered this issue have taken that position, but some courts have diverged, creating both uncertainty and unfairness for the parties involved. Courts that have taken the minority position appear to have done so based upon a false dichotomy, i.e., a perceived choice that is unnecessary under the terms of the statute and uncalled for under the Atlantic Research decision. A minority of courts have suggested that: (1) a private plaintiff may only assert one type of claim—either a cost recovery claim or an action for contribution; (2) a determination as to which type of claim the plaintiff may assert is inherently based upon either the nature of the costs at issue or the procedural status of the party; and (3) of those two factors, the party’s procedural status takes priority.
The better position—followed by the majority of courts—is that both the nature of the costs and the procedural status of the party matter, and to ignore the nature of the specific costs claimed is neither necessary nor appropriate. Instead, the court should consider the procedural status of the party with respect to each specific cost claimed. Under that approach, a party might be limited to contribution as a remedy for some costs but, at the same time, be permitted to seek full cost recovery for other expenses. This approach would be consistent with the text and structure of CERCLA and with the Court’s decision in Atlantic Research. It would, furthermore, encourage private-party cooperation and reinforce CERCLA’s goal of promoting voluntary and timely cleanups. In support of this thesis, Part II of this article will discuss the Atlantic Research decision. For context, that part will briefly explain the alternatives for private cost allocation under CERCLA, discuss the historical interplay of §§ 107 and 113, and then summarize the decision itself. Part III will discuss the aftermath of Atlantic Research in terms of: (1) the substantial number and nature of issues still unresolved; (2) the current split among the courts on the question of simultaneous contribution and cost recovery claims; and (3) the ongoing South Dayton Landfill litigation, which provides a case in point. Finally, Part IV will address the article’s suggested approach in permitting simultaneous claims under §§ 107 and 113 and discuss how such an approach would comport with the text and goals of CERCLA and with the Court’s decision in Atlantic Research.