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Good Afternoon,
We are pleased to announce that Jenner & Block's
Environmental, Energy and Natural Resources Law Practice
has updated its Environmental Alert - an e-mail
advisory system designed specifically to keep our
clients and colleagues advised on state and federal
environmental law developments as well as important
court decisions.
The attached Environmental Alert was written
by Gay Sigel, a partner in our Environmental, Energy and
Natural Resources Law Practice, and it discusses the
U.S. Supreme Court's decision to grant
certiorari in Cooper Industries, Inc. v.
Aviall Services, Inc.. The Court's decision will
have a significant impact on federal liability for
environmental cleanups. If you have questions about this
(Environmental Alert), please feel free to contact Gay
Sigel directly at gsigel@jenner.com.
Please feel free to pass this on to any colleague who
may be interested in this news.
Please look for additional Environmental Alerts in
the near future. Please feel free to reply to this email
or to E. Lynn Grayson at lgrayson@jenner.com,
if you have any questions or comments regarding our
Environmental Alert communications. If you would like to
discontinue receiving our mailings, please reply to this
email with the word "Unsubscribe" in the Subject
Line.
Very truly yours,
Jenner & Block
Environmental, Energy and
Natural Resources Law Practice
U.S.
Supreme Court to Consider Major Issue for CERCLA Cost
Recovery Scheme
On January 9,
2004, the U.S. Supreme Court agreed to consider an issue
under the federal Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA” a/k/a
Superfund) that could have a significant impact on
remediation activities throughout the country. The
Court will consider whether a potentially responsible
party (“PRP”) under CERCLA must first be subject to a
CERCLA claim before it is permitted to bring a CERCLA
Section 113 contribution claim to recover remediation
costs. Section 113 provides that a claim for
contribution may be brought “during or following” a
claim brought under CERCLA Section 106 (an
administrative order brought by the USEPA) or under 107
(a lawsuit brought by the USEPA or a private party to
recover cleanup costs). However, the last
sentence of Section 113 provides that “nothing [in
Section 113] shall diminish the right ... to bring an
action for contribution in the absence of a civil action
[under CERCLA].” These two provisions seemingly
contradict each other and have caused confusion
regarding when it is permissible to bring a CERCLA
contribution claim.
In Cooper Industries,
Inc. v. Aviall Services, Inc., responding to
direction from the Texas environmental agency, Aviall
cleaned up contamination on its property. Aviall
tried to recover its cleanup costs by suing the
property’s former owner, Cooper, under CERCLA Section
113. A divided Court of Appeals for the Fifth
Circuit ruled that a PRP, such as Aviall, may sue to
recover response costs even though Aviall had not first
been subject to a CERCLA civil action. Cooper then
asked the Supreme Court to consider the question and the
Supreme Court asked the U.S. Solicitor General to
provide an opinion on whether the Court should consider
this issue of statutory interpretation. The
Solicitor urged the Court to reverse the appellate court
as a matter of statutory construction and to protect the
federal courts from the “substantial burden of resolving
these complex cases.” The Supreme Court
granted Cooper’s and the Solicitor General’s request for
a review of this issue. The Supreme Court may
issue its decision by the end of June 2004.
If the Court
rules that a party must be subject to a CERCLA lawsuit
before it can bring a CERCLA contribution claim, many
PRPs may cease conducting remediation activities without
first being required to do so, potentially disrupting
“voluntary” remediation programs currently ongoing
throughout the country. Moreover, if the Supreme
Court were to rule in Cooper’s favor, other PRPs in
currently pending CERCLA actions would, like Aviall,
lose their ability to recover remediation costs under
federal law. In light of the negative impact on
state and federal remediation programs, such a ruling by
the Supreme Court would likely prompt calls for a
legislative response by Congress.
If you have any
questions regarding this issue, please contact Gay Sigel
at gsigel@jenner.com or
at 312/923-2758. |
