Last month, the U.S. Court of Appeals for the Second Circuit decided Revitalizing Auto Communities Environmental Response Trust v. National Grid USA, No. 20-1931-cv (2d Cir. Aug. 18, 2021), another appellate decision amplifying the confusion around private actions to reallocate costs under the federal Superfund statute, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Revitalizing Auto Communities Environmental Response Trust (RACER Trust) affirms the proposition that if a party has a contribution claim available under CERCLA section 113(f), 42 U.S.C. Section 9613(f), then that party only has a contribution claim and cannot sue for cost recovery under section 107(a)(1-4)(B), 42 U.S.C. Section 9607(a)(1-4)(B). However, the court of appeals seems to conduct that analysis action-by-action or settlement-by-settlement.
CERCLA “is known neither for its concinnity nor its brevity.” See RACER Trust, slip op. at 5 (quoting W.R. Grace & Co.-Connecticut v. Zotos International, 559 F.3d 85, 88 (2d Cir. 2009)). The Second Circuit may have picked up the rhetorical gauntlet laid down by the U.S. Supreme Court’s description of CERCLA’s “reticulated statutory matrix of environmental duties and liabilities,” Territory of Guam v. United States, 141 S. Ct. 1608, 1613 (2021), but the decision to apply Section 113 or Section 107 action-by-action or settlement-by-settlement does not improve CERCLA’s concinnity. Just learning that word (which means the harmonious arrangement of parts or, alternatively, studied elegance and facility in style of expression) may have to serve as a consolation prize.