Polluters' suit against U.S. is revived

Third Circuit Judge Dolores K. Sloviter has turned her August 2006 dissenting opinion in an environmental case into a unanimous opinion, finding that a recent U.S. Supreme Court decision shows she was right in arguing that the court should revive a suit brought by three polluters who wanted the government to contribute to the cost of their voluntary cleanups of 15 sites.

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Third Circuit Judge Dolores K. Sloviter has turned her August 2006 dissenting opinion in an environmental case into a unanimous opinion, finding that a recent U.S. Supreme Court decision shows she was right in arguing that the court should revive a suit brought by three polluters who wanted the government to contribute to the cost of their voluntary cleanups of 15 sites. E.I. DuPont de Nemours & Co. v. U.S., No. 04-2096. In its 2006 opinion, the 3d U.S. Circuit Court of Appeals held that a polluter that voluntarily takes on the duty to clean up a toxic waste site cannot later seek contributions from the U.S. government � even if the government itself was also a polluter. Sloviter dissented. In June, the U.S. Supreme Court vacated the decision and remanded it for reconsideration in light of the high court’s U.S. v. Atlantic Research Corp., 127 S.Ct. 2331. In the suit, three companies � DuPont, Conoco Inc. and Sporting Goods Properties Inc. � sought contributions from the government for cleanups at 15 sites. Each of the sites was owned or operated by the United States at various times during World War I, World War II and the Korean War, the suit said, during which time the United States was responsible for some of the contamination. A New Jersey federal court granted summary judgment in favor of the government, holding that a “responsible party” that conducts a voluntary, unsupervised cleanup cannot assert a claim for contribution. The 3d Circuit affirmed. But in dissent, Sloviter said she agreed with DuPont’s argument that the U.S. Supreme Court’s 2004 ruling, Cooper Industries Inc. v. Aviall Services Inc., 125 S.Ct. 577, forced the 3d Circuit to reconsider its precedents. In light of Cooper Industries, she said, courts must now allow responsible parties to seek contribution from other responsible parties under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In the latest ruling, Sloviter said that Atlantic Research is an even stronger “intervening authority” that compels the 3d Circuit to overturn its precedents. For years after the 1980 enactment of CERCLA, she said, the courts almost unanimously found that Section 107 contained an implied cause of action for contribution. But after the 1986 passage of the Superfund Amendments and Reauthorization Act, Sloviter found that courts turned to the newly enacted Section 113 and away from Section 107 to provide the cause of action. The trend toward applying Section 113 was halted, Sloviter said, by Cooper Industries. The justices held that the plain language of Section 113 does not allow responsible parties to bring contribution actions unless and until a related civil action is brought against them under either Section 106 or 107. But Cooper Industries left open the question of whether those same parties may instead seek relief under Section 107(a)(4)(B). After Cooper Industries, Sloviter said, the 8th Circuit overturned one of its long-standing precedents, finding that, in a post- Cooper Industries world, responsible parties are no longer foreclosed from obtaining relief under Section 107. The 8th Circuit said that barring Atlantic Research from a cost recovery action under Section 107 would be “contrary to CERCLA’s purpose” to encourage voluntary cleanups and would be “an absurd and unjust outcome.” In June, the Supreme Court affirmed the 8th Circuit. Under the high court’s reading of the statute, Sloviter said, the claims of the polluters against the government must be revived because “permitting parties who voluntarily incur cleanup costs to bring suit under Section 107 comports with the fundamental purposes of CERCLA.” Voluntary cleanups “are vital to fulfilling CERCLA’s purpose,” Sloviter wrote.

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