SUPREME COURT AGAIN ASKED TO RESOLVE INTERPLAY BETWEEN CERCLA’S CONTRIBUTION AND COST RECOVERY PROVISIONS

by The Session Law Firm on October 3rd, 2012

Solutia, Inc., has filed a Petition for a Writ of Certiorari (Cert Petition) before the Supreme Court. The Cert Petition asks the Supreme Court to reverse a recent Eleventh Circuit ruling that a party with a viable CERCLA Section 113 contribution claim could not also seek recovery under CERCLA Section 107, even when that party has incurred costs voluntarily under a consent decree.

This issue is very familiar to The Session Law Firm (TSLF) who filed a Cert Petition on behalf of Morrison Enterprises, LLC, on essentially the same issue., i.e., whether or not Morrison could seek recovery of response costs it voluntarily incurred pursuant to an administrative order on consent (AOC) and then later a consent decree, responding to contaminants for which it was not responsible for releasing. In fact, Solutia, Inc., filed an amicus brief in support of Morrison’s Cert Petition. Unfortunately, the Supreme Court denied Morrison’s Cert Petition. Hopefully it will grant Solutia’s petition because this issue, left unresolved by the Supreme Court in United States v. Atlantic Research Corp., is very critical to parties who voluntarily enter into AOCs or consent decrees to avoid litigation, only then to be bound by the onerous limitations of CERCLA Section 113.

Solutia’s Cert Petition seeks review, primarily based on the fact that the Eleventh Circuit decision decides an important federal question that conflicts with relevant decisions of the Supreme Court, i.e., Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research. In support of its petition, Solutia has offered three basic arguments.

First, Solutia argues that the Eleventh Circuit and the other circuit courts with which the Eleventh Circuit agreed, have elevated policy considerations over CERCLA’s clear statutory text. Next, Solutia argues that, even lacking a clear circuit split, the question of whether costs incurred under a consent decree are recoverable under Section 107, Section 113, or both, is causing extensive confusion among the courts, parties considering entering into agreements to conduct cleanups, and even the United States. Last Solutia argues that the suit raises an issue of exceptional importance worthy of resolution by the Supreme Court.

We, as environmental practitioners well versed in this issue, eagerly await the Supreme Court’s decision on whether or not it will grant Solutia’s Cert Petition.  For more on this critical issue, read Morrison’s Cert Petition as well as the Brief of Amici Curiae Pharmacia Corporation (F/K/A Monsanto Company) and Solutia Inc. in Support of Morrison’s Cert Petition, link below. 

http://www.scotusblog.com/2011/09/petitions-to-watch-conference-of-september-26-2011-2/

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