U.S. Supreme Court tackles environmental cleanup

Daily Record (Rochester, NY), May 10, 2007 by Kimberly Atkins

For decades, federal environmental law allowed companies sued by the federal government over contaminated industrial waste sites to sue another responsible party in an effort to get the other party to assume part of the cleanup costs.

What happens if the polluter voluntarily cleans up the site? And what if the other responsible party is the government?

The U.S. Supreme Court considered those questions during recent oral arguments in the case of U.S. v. Atlantic Research Corp.

The respondent, a company that retrofitted rocket motors under contract with the United States, contaminated the soil and groundwater of the site it leased. It conducted a voluntary cleanup effort, and in 2002 sued the United States in federal district court alleging the government was a "potentially responsible party" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and seeking contribution.

Soon after, the Supreme Court handed down a decision in Cooper Industries v. Aviall Services, Inc., 543 US 157 (2004), which limited the ability of companies who had not been sued by the government to sue others for contribution for cost of voluntary cleanups.

A district court, relying on Cooper Industries, dismissed the claim but the U.S. Court of Appeals for the Eighth Circuit reversed, holding that a right for contribution should not be barred categorically .

Thomas G. Hungar, a Justice Department deputy solicitor general arguing on behalf of the United States, told the justices that the statute was not meant to apply in this situation. He said it was meant as a tool for innocent private parties to recoup costs from those who are responsible.

To interpret the law as the respondent does makes "a mockery of the textual limitations enforced by this court in Cooper Industries, and would frustrate Congress's clear intent to encourage settlements with the government in order to achieve supervised effective cleanups," Hangar argued.

For an hour the justices and the parties' attorneys wrangled over the meaning of the statute, often getting hung up on its phrasing and turning to legislative intent for clues.

Justice Stephen Breyer, who admitted he "can't get anything out of the language" that clearly states its meaning, sought to balance the case by counting "acorns" on each side.

"On [the respondent's] side I have an acorn, which is if they don't win, EPA and DOD [Department of Defense] just are not going to settle these things because they want to escape us suing them," Justice Breyer said to Hungar. "And you say, 'Are you kidding? EPA loves to sue. And they like to settle. Don't worry about it.' All right.

"On your side, you're saying if we don't accept your interpretation, they won't enter into settlements," Justice Breyer continued. "To which I guess they will make the same response. 'Are you kidding? [Companies will think] the EPA loves to sue us and we are frightened of them and we'll settle.'"

Owen T. Armstrong Jr., arguing on behalf of Atlantic Research, said the government's interpretation of the law would be tantamount to a judicial repeal of the act, and that would be too many acorns in the wrong direction.

Attacking the claim that the word "other" should mean anyone other than the United States was meant to fall under the umbrella of potential liability. Armstrong said no evidence of congressional intent supports such a claim.

"It would be very odd for Congress to have so drastically changed CERCLA by inserting the word 'other' without any commentary whatsoever," Armstrong said.

After hearing the assertion that banning lawsuits such as Atlantic Research's would be tantamount to a repeal of the law, Justice Antonin Scalia asked: "No acorns on the other side?"

"No acorns," Armstrong replied, drawing laughter.

A decision is expected before the term ends.