The Superfund Cost Allocation Liability Conflicts Among the Federal Courts

Abstract

Seldom in judicial history does the Supreme Court decide a case where it can, let alone will, reverse the standing precedent articulated by essentially every federal judicial circuit court across the nation. Eleven federal circuits, one after the other in a compressed period, barred the use of section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cost recovery by most plaintiffs. This, coupled with the practical result of the 2004 Supreme Court decision in Cooper Industries v. Aviall Services, Inc., greatly discouraged voluntary remediation activities at many of the 450,000 contaminated sites in the United States. In 2007, in Atlantic Research Corp. v. United States, the Supreme Court unanimously reversed the prior wall of consistent precedent from these eleven unanimous federal circuit courts, as an error in statutory interpretation. This article analyzes each piece of this evolving and intertwined puzzle and practical results:• The initial actions of all the federal circuits between 1994-2003 walling off private hazardous waste cost recovery actions,• The pivotal impact of the 2004 Supreme Court decision in Aviall, which greatly limited CERCLA section 113 contribution liability allocation,• The 2007 unanimous Supreme Court opinion in Atlantic Research reopening section 107 based on “plain meaning” statutory interpretation,• How the lower courts have responded to these new commands, and• The checkerboard of results that ensued.