On Monday, the Supreme Court decided Territory of Guam v. United States, No. 20-382 (U.S. May 24, 2021), attempting to clarify which settlements with the United States or a state trigger a right to settling-party contribution under section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B). The practice take-away is that settlement documents that do not expressly recite that the government’s CERCLA claims are resolved may not trigger contribution rights. In Guam’s case, that was a good thing.
Guam ended up owning a landfill that had been used by the Navy for years. The landfill leaked, and Guam entered into a Clean Water Act consent decree under which the Territory agreed to implement what would, were the enforcement program CERCLA, have been a response to the releases from the landfill. Well beyond three years from that consent decree, Guam sought to reallocate some of the costs of the cleanup to the Navy by suing under section 107 of CERCLA for cost recovery and under section 113 for contribution. 42 U.S.C. § 9607, 9613.
The courts below held that if Guam ever had a contribution claim, its only claim was a claim for contribution. Further, the court of appeals held that Guam acquired its contribution claim under section 113(f)(3)(B) when it entered into the Clean Water Act consent decree, and so the limitations period had expired on Guam’s only available CERCLA claim.
The Supreme Court disagreed. It held unanimously in an opinion authored by Justice Thomas that a settlement must expressly resolve the CERCLA liability of the settling party in order for that party to acquire a contribution claim under section 113(f)(3)(B).
Guam’s Clean Water Act consent decree may be a less common set of facts than state law settlements with state enforcement agencies. If the state expressly covenants not to sue or releases all or some of any CERCLA claim the state may have, then that settlement would seem to count for purposes of section 113(f)(3)(B). That settling party may sue for contribution at that point, but only has three years to do so. But sometimes the state settlement bars a later CERCLA claim by the state against the settling party by action of state law, rather than by express terms of the agreement. See, e.g., Trinity Industries, Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131 (3d Cir. 2013).
As is common in this muddled area of CERCLA cost recovery and contribution, the Supreme Court did not address some issues and included language that will raise new issues. Specifically, the Court could have endorsed the “if contribution, then only contribution” holding below, but it expressly declined.
Further, the Court spends pages discussing the interconnection of all the paragraphs of section 113(f) of CERCLA. Cooper Industries, Inc. v. Aviall Services, Inc., 535 U.S. 157 (2004), also written by Justice Thomas, held that one could not bring a conventional contribution claim under section 113(f)(1) without an underlying enforcement action by the government under section 106 or 107. He referred to that decision in Guam and rejected the Navy’s argument that because section 113(f)(3)(B) does not require that underlying lawsuit, the two parts of section 113(f) are different. Someone will surely argue somewhere that this passage applies the “during or following” requirement of section 113(f)(1) to settlement-contribution claims.
The Supreme Court sees CERCLA as a “reticulated statutory matrix of environmental duties and liabilities.” Guam, slip op. at 5. As I have said repeatedly, getting into court to obtain an equitable allocation of responsibility for cleaning up a site does not have to be procedurally difficult. Whether Justice Thomas has cut any of the strands of that net remains to be seen.