Closing the Book on CERCLA Section 107 "Joint and Several" Claims by Liable Private Parties
By Karl Tilleman and Shane Swindle
INTRODUCTION
On June 22, 1998, the United States Supreme Court denied a petition for certiorari in Pinal Creek Group v. Newmont Mining Corp. et al. Denial of certiorari is common and often of little importance to parties outside the litigation. In this case, however, the Court's action is of great importance to parties around the country involved in litigation under the Comprehensive Environmental Response, Compensation, and Recovery Act of 1980 (CERCLA).
The Court's denial of certiorari left in place the Ninth Circuit's holding that the “Pinal Creek Group,” three mining companies that are admittedly liable under CERCLA, can sue other potentially liable parties only for contribution, or their “fair share” of response costs, not for the joint and several recovery of the totality of the response costs. This article argues that the Court's action and the Ninth Circuit's decision should mark the end of the long-running dispute regarding the remedies available in private-party CERCLA actions. All nine circuit courts that have faced this issue (including two that dealt with the issue since the Ninth Circuit decision) have held that CERCLA should be interpreted to limit liable private parties to a contribution remedy.
We begin our analysis by identifying how CERCLA sections 107(a) and 113(f)(1) define liability and the remedies available to liable private parties. We then explain the reasoning that led many courts and commentators to conclude (incorrectly) that liable private parties could seek the joint and several recovery of the totality of their response costs under section 107(a). Next we examine the interplay between sections 107 and 113 and discuss which of CERCLA's time-bar provisions governs contribution claims under the statute. Finally, we conclude that the current consensus among the appellate courts, coupled with the Supreme Court's denial of certiorari in Pinal Creek, should effectively close the book on a private party's alleged right to sue for joint and several liability under CERCLA.
On June 22, 1998, the United States Supreme Court denied a petition for certiorari in Pinal Creek Group v. Newmont Mining Corp. et al. Denial of certiorari is common and often of little importance to parties outside the litigation. In this case, however, the Court's action is of great importance to parties around the country involved in litigation under the Comprehensive Environmental Response, Compensation, and Recovery Act of 1980 (CERCLA).
The Court's denial of certiorari left in place the Ninth Circuit's holding that the “Pinal Creek Group,” three mining companies that are admittedly liable under CERCLA, can sue other potentially liable parties only for contribution, or their “fair share” of response costs, not for the joint and several recovery of the totality of the response costs. This article argues that the Court's action and the Ninth Circuit's decision should mark the end of the long-running dispute regarding the remedies available in private-party CERCLA actions. All nine circuit courts that have faced this issue (including two that dealt with the issue since the Ninth Circuit decision) have held that CERCLA should be interpreted to limit liable private parties to a contribution remedy.
We begin our analysis by identifying how CERCLA sections 107(a) and 113(f)(1) define liability and the remedies available to liable private parties. We then explain the reasoning that led many courts and commentators to conclude (incorrectly) that liable private parties could seek the joint and several recovery of the totality of their response costs under section 107(a). Next we examine the interplay between sections 107 and 113 and discuss which of CERCLA's time-bar provisions governs contribution claims under the statute. Finally, we conclude that the current consensus among the appellate courts, coupled with the Supreme Court's denial of certiorari in Pinal Creek, should effectively close the book on a private party's alleged right to sue for joint and several liability under CERCLA.
