Can a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or a settlement that does not explicitly resolve a party’s liability trigger a contribution claim under CERCLA Section 113(f)(3)(B)?
This case asks the Supreme Court to determine how two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) allocate responsibility for cleaning up environmental sites. CERCLA Section 107 allows a party to recover direct costs of cleaning up a site from responsible parties, while Section 113 allows a party who has already settled its own responsibility to recover “contribution” from other responsible parties. The territory of Guam, which owns a toxic waste dump, sued the United States to help fund the dump cleanup under both Sections 107 and 113. However, the lower court found that the availability of Section 113 barred Guam’s Section 107 claim based on a previous settlement between Guam and the federal government unrelated to CERCLA. Petitioner Guam argues that a settlement that does not mention CERCLA and disclaims any liability determination cannot force a party to bring a Section 113 claim instead of a Section 107 claim. Respondent United States counters that Section 113 broadly encompasses settlements that resolve liability under other laws besides CERCLA. This case has implications for prompt cleanups of environmental hazards across the United States.
Questions as Framed for the Court by the Parties
(1) Whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and
(2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).
In the 1940s, the United States Navy constructed a landfill, the Ordot Dump, on the island of Guam. Gov’t of Guam v. United States at 106–07. The Navy used the Dump for the disposal of “munitions, chemicals, and everyday garbage.” Id. Although the Ordot Dump lacked environmental safeguards, the Navy continued to use it even after the United States transferred sovereignty of the land to Guam’s newly-formed civilian government. Id. at 108–09. Due to the continued release of contaminants from the Ordot Dump, the United States Environmental Protection Agency (“EPA”) added the Ordot Dump to its National Priorities List in 1983. Id. at 109. The EPA designated the Navy as a Potentially Responsible Party (“PRP”) for cleanup of the Dump. Id. By the time that the EPA targeted the Ordot Dump, however, Guam, as the sovereign power, had taken over operations from the Navy. Id. Accordingly, the EPA ordered Guam to produce plans for the containment and disposal of waste at the Dump. Id.
In 2002, the EPA, unhappy with Guam’s remediation effort, sued Guam in the U.S. District Court of Guam under the Clean Water Act. Id. at 109. The EPA asserted that Guam had violated the Clean Water Act by routinely releasing contaminants from the Dump without permission. Id. In 2004, the EPA and Guam reached a consent decree, which required Guam to pay a civil fine, close the Dump, and install a “cover system” for the site. Id. Guam closed the Dump in 2011. Id.
In 2017, Guam sued the United States in the U.S. District Court for the District of Columbia, asserting that the Navy bore responsibility for cleaning the Dump. Id. at 109. In particular, Guam brought two claims against the United States under the Comprehensive Environmental Response, Compensation and Liability Act, also known as CERCLA or “Superfund.” Id. at 110. First, Guam brought a claim under CERCLA Section 107(a) to recover direct “removal and remediation costs” for the Dump cleanup. Id. Second, Guam brought a claim under CERCLA Section 113(f) to recover contribution from the Navy for the cleanup. Id. Guam estimated the cleanup cost of the Dump would exceed $160 million dollars. Id.
The United States moved to dismiss these two claims, asserting that Guam could not rely on Section 107 because Section 113 is the exclusive remedy for PRPs that already have judicially-approved settlements with the United States. Id. The United States contended that Guam’s 2004 consent decree with the EPA qualified as a “judicially-approved settlement,” thus resolving Guam’s liability regarding the Ordot Dump. Id. Additionally, the United States argued that since Section 113 has a three-year statute of limitations, Guam was time-barred from pursuing that second claim as well. Id.
The district court denied the United States’ motion to dismiss, finding that the 2004 consent decree did not resolve Guam’s liability for the Dump cleanup under CERCLA. Id. The district court concluded that Guam could maintain its Section 107 claim against the United States. Id. The United States sought interlocutory appeal of the district court’s decision, and the United States Court of Appeals for the District of Columbia Circuit granted the request for review. Id.
The D.C. Circuit reversed the district court’s denial of the United States’ motion to dismiss and remanded the case. Id. at 107. The D.C. Circuit, joining several sister circuits, held that a PRP who may bring a Section 113 claim must bring such a claim for recovery of cleanup costs rather than bringing a Section 107 claim. Id. at 114–16. The D.C. Circuit further held that a settlement need not be “CERCLA-specific” to trigger a Section 113 action, and that the 2004 consent decree had triggered a CERCLA contribution claim, which expired before Guam had sued the United States. Id. at 114, 117–18.
Guam appealed to the United States Supreme Court, which granted certiorari on January 8, 2021.
SECTION 113(F)(3)(B) AND NON-CERCLA SETTLEMENTS
Guam argues that Section 113(f)(3)(B) is only triggered by a prior determination of liability under CERCLA. Brief for Petitioner, Government of Guam at 16. Guam points to the text of Section 113(f)(3)(B), which allows a contribution claim by a party “who has resolved its liability to the United States . . . for some or all of a response action . . . in an administrative or judicially approved settlement.” Id. at 17. Guam claims the term “liability” is best understood by looking to other language within CERCLA. Id. In particular, Guam maintains that the term “liability” is linked to a “response action,” which CERCLA defines as an action that responds to releases of hazardous materials. Id. Therefore, since “response action” is defined by CERCLA, Guam argues that any liability must arise under CERCLA before triggering Section 113(f)(3)(B). Id. Further, Guam claims that reading Section 113(f)(3)(B) to only reach CERCLA settlements fits within the broader context of the statute, where other “interlocking” provisions of Section 113(f) refer to CERCLA-specific liability under Section 107. Id. at 18–20.
The United States agrees that Section 113(f)(3)(B) is triggered by a response action, but counters that a response action does not refer exclusively to CERCLA-specific responses. Brief for Respondent, United States at 12. The United States notes that Section 113(f)(3)(B) does not explicitly reference CERCLA liability itself. Id. at 16–17. Instead, the United States argues, any directive that is legally binding can trigger Section 113(f)(3)(B)—including Guam’s 2004 consent decree under the Clean Water Act. Id. at 13. The United States notes that CERCLA’s broad use of “response action” to include “cleanup or removal of released hazardous substances” need not refer to measures undertaken pursuant to CERCLA alone. Id. Additionally, United States argues that reading Section 113(f)(3)(B) to encompass non-CERCLA settlements makes sense in the context of the entire statute, given that other parts of the statute specifically limit claims to those arising under CERCLA, but Section 113(f)(3)(B) does not. Id. at 17–19.
SECTION 113(F)(3)(B) AND OTHER ENVIRONMENTAL REGULATORY SCHEMES
Guam asserts that reading non-CERCLA settlements to trigger Section 113(f)(3)(B) would interfere with other environmental regulatory schemes. Brief for Petitioner at 25. For example, Guam notes that the Supreme Court has stated that the Clean Water Act contains “unusually elaborate enforcement provisions” that provide the exclusive remedy for violations under that statute. Id. at 26. In order for CERCLA to harmonize with other regulatory frameworks, Guam claims, Congress included a savings clause providing that CERCLA does not modify any “obligations or liability of any person under other Federal or State law.” Id. Guam argues that settlements made under other regulatory frameworks—such Guam’s 2004 consent decree under the Clean Water Act—must not trigger Section 113(f)(3)(B) lest CERCLA permit contribution claims that other regulatory frameworks would bar. Id. at 26–27.
The United States responds that Section 113(f)(3)(B) supplements, rather than displaces, other regulatory schemes. Brief for Respondent at 30. The United States argues that Congress intended for CERCLA to operate in conjunction with other environmental statutes, and that federal statutes overlap frequently. Id. When statutes overlap, the United States notes, the Court attempts to give effect to both statutes rather than reading one statute to preclude the other. Id. at 31–32. Here, the United States contends that the overlap between Section 113(f)(3)(B) and other statutes is limited because Section 113(f)(3)(B) can only be used when “administrative or judicially approved” settlements resolve liability “to the United States or a State” and impose liability for a “response action” or its costs. Id. at 31. Further, the United States argues, the savings clause that Guam cites is irrelevant because CERCLA does not modify any liabilities—contribution under Section 113(f)(3)(B) leaves parties free to invoke remedies for violations under other statutes as well. Id.
SETTLEMENTS THAT DISCLAIM DETERMINATIONS OF LIABILITY
Guam claims that regardless of whether a settlement is reached under CERCLA, Section 113(f)(3)(B) is not triggered when that settlement explicitly disclaims a party’s liability. Brief for Petitioner at 37–38. Given that CERCLA does not define the word “resolved,” Guam asserts that the Court must turn to the ordinary meaning of the word when Congress originally enacted the statute. Id. at 38. The common meaning of the “resolve,” according to Guam, was that an issue was rendered “not susceptible to further dispute or negotiation.” Id. Guam maintains that this reading is underscored by the framework CERCLA lays out for settlement, which allows the EPA to cap the settling party’s liability by including a provision in the settlement agreement which prevents the EPA from suing the settling party. Id. at 39. Since the 2004 consent decree leaves Guam vulnerable to future claims under CERCLA, Guam asserts that the settlement did not resolve Guam’s liability within the meaning of Section 113(f)(3)(B). Id. at 41–43.
The United States counters that the word “resolved” focuses on what a settlement obligates a party to do, rather than on whether the plaintiff’s claim is valid. Brief for Respondent at 38. To support this reading, the United States relies on dictionary definitions which state that “resolve” means “to determine” an issue about “which there is doubt or dispute.” Id. at 35, 38. Therefore, the United States maintains, a resolution of liability does not necessarily require resolution of a legal wrong. Id. at 39. The United States also claims that principles of tort law support this reading, since one party may seek contribution from another without proving that party would have been liable to the plaintiff too. Id. Finally, the United States claims that if a provision in a settlement agreement that blocks the EPA from suing the settling party could also block resolution of liability, it is likely that a CERCLA settlement could never resolve a party’s liability. Id. at 45.
THE MEANING OF A CONTRIBUTION CLAIM
Finally, Guam argues that it could not assert a contribution claim against the United States under Section 113(f)(3)(B) because the two parties lacked “common liability” at the time of the consent decree. Brief for Petitioner at 23. By adopting the term “contribution” in Section 113(f), Guam contends that Congress presumably intended to use the term as courts have traditionally understood it. Id. at 20–21. Guam asserts that under the doctrine of contribution, a settling party that who has discharged its liability to a second person may then sue a third person who was partially responsible for the causing the same harm. Id. at 21–22. However, Guam argues the United States enjoys sovereign immunity from liability under the section of the Clean Water Act that Guam settled; therefore, Guam could not logically assert a contribution claim against the United States when the federal government never faced liability under the 2004 consent decree in the first place. Id. at 23. Likewise, Guam notes that since it too did not admit any CERCLA liability under the 2004 consent decree, and contribution requires that one party discharge a liability, a contribution claim under Section 113(f)(3)(B) would be impossible. Id.
The United States maintains that “common liability” existed with Guam, such that Guam had the opportunity to seek a contribution claim under Section 113(f)(3)(B). Brief for Respondent at 28–30. The United States asserts that although contribution requires that two parties face liability for causing the same harm to a third party, contribution does require the two parties who cause the harm to bear liability for the same reason. Id. at 28–29. The United States points to an example that although a drunk driver and a bar may both be liable to a third person for a car accident, both the drunk driver and the bar may claim contribution against each other even though their liability is based on separate grounds. Id. at 29. Under this reasoning, the United States highlights Guam’s claim that the United States bears partial responsibility under CERCLA for contaminating the Dump and must therefore pay a part of the cleanup costs to Guam. Id. at 30. The United States asserts that Guam’s own rationale establishes common liability which would have sufficed to permit Guam to assert its contribution claim under Section 113(f)(3)(B) after the 2004 consent decree. Id. at 29–30.
EFFICIENT MITIGATION OF ENVIRONMENTAL HARM
ConservAmerica, Inc., in support of Guam, argues that the D.C. Circuit’s decision will have a “chilling effect” on holding responsible parties accountable when mitigating environmental harms. Brief of Amicus Curiae ConservAmerica, Inc., in Support of Petitioner at 15. ConservAmerica warns the D.C. Circuit’s decision would allow parties who polluted to escape liability at the expense of other settling parties, thereby undermining CERCLA’s fundamental goals of “expediting cleanup and holding polluters accountable.” Id. at 15–16. Under-enforcement against responsible parties, ConservAmerica concludes, will be more pronounced in large cleanups, where “sources, parties, and contamination” might not become clear until long after cleanup begins. Id. at 15. The Territories of the Commonwealth of the Northern Mariana Islands, et al. (“Amici States”), also in support of Guam, argue that the D.C. Circuit’s decision restricting Guam from recovering costs from the federal government would create a rule imposing a disproportionate financial burden on state governments. Brief of Amici Curiae Amici States, in Support of Petitioner at 12. The Amici States note that the federal government maintains Superfund sites “in nearly every state and territory,” many of which are highly contaminated from military activity. Id. at 12–14. The D.C. Circuit’s decision, the Amici States contend, would enable the United States to elude liability for numerous sites where it shares responsibility for pollution while leaving individual states with enormous cleanup costs and additional delay in the cleanup process. Id. at 15–16.
Atlantic Richfield Company (“ARCO”), in support of the United States, counters that adopting Guam’s “malleable and unpredictable” rule will enable settling parties to delay bringing their claims, thereby undermining the CERCLA’s stated goals of prompt cleanups and judicial efficiency. Brief of Amicus Curiae ARCO, in Support of Respondent at 7, 14–15. Under Guam’s proposed rule, ARCO argues, settling parties could decide when to trigger the statute of limitations by choosing between Sections 107 and 113, waiting years—or even decades—before pursuing contribution claims. Id. at 16–17. ARCO predicts that this practice could have significant prejudicial impact on defendants in contribution cases who may have lost relevant documents and memories due to the passage of time. Id. at 16, 19–20. Therefore, ARCO concludes, allowing a settling party to wait years before seeking contribution will impede the “reliable determination” of which parties produced the contamination, preventing expedited settlement and cleanup. Id. at 22.
FEDERALISM AND FLEXIBILITY OF CLEANUP PLANS
ConservAmerica argues that requiring settlements to refer specifically to CERCLA would undermine site-specific, case-by-case negotiations and increase exposure for settling parties. See Brief of ConservAmerica at 6. ConservAmerica contends that settlements involving state and federal agencies often include unique cleanup language that do not always fit into one universal standard. Id. Therefore, ConservAmerica maintains, creating a “blanket rule” requiring reference to CERLCA could lead to reinterpretation of these settlements, including those involving “Good Samaritans who engage in the voluntary cleanup,” that would expose those parties to liability after they have come forward to clean up contaminated sites. Id. at 6–8. The Amici States also contend that the D.C. circuit’s decision infringes upon the traditional domain of State law. Brief of Amici States at 17. According to the Amici States, environmental and public health issues vary by state, so states have supplemented CERCLA by implementing varied approaches that tailor to their own environmental problems. Id. at 17–18, 20–24. In light of this patchwork of federalism, the Amici States conclude the D.C. Circuit’s decision would require CERCLA to supplant state law, thereby constricting states’ authority to regulate cleanup and stifling innovative cleanup solutions. Id. at 19, 24–25.
ARCO counters that adopting Guam’s “fluid position” would produce idiosyncratic and inequitable results that are impossible for involved parties to predict. Brief of ARCO at 10, 13–14. ARCO contends that Guam’s proposed rule would make both litigants and the courts interpret “pages upon pages” of EPA consent decrees—which are frequently subject to revision and amendment—thereby leaving businesses confused about the extent of their ongoing exposure to CERCLA contribution actions. Id. at 10–11. By contrast, ARCO asserts, adopting the United States’ clear, bright-line rule that focuses on whether a settlement requires a response action would preclude “similarly-situated parties” from being treated differently based upon non-material differences in their settlement agreements. Id. at 11. ARCO concludes the bright-line rule proposed by the United States would better serve Congress’s intent to “provide some measure of finality” with CERCLA settlements. Id. at 21.
- Pamela King, Supreme Court Loads Up on Environment Cases, E&E News (Feb. 18, 2021).
- Steve Limtiaco, Feds: Guam Missed Deadline for Military to Pay Dump Costs, Pacific Daily News (Mar. 27, 2021).
- Sylvia Carignan, Supreme Court to Tackle Superfund Liability at Guam Landfill, Bloomberg Law (Jan. 8, 2021).