[ Thomas ]
[ Ginsburg ]
COOPER INDUSTRIES, INC., PETITIONER
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE FIFTH CIRCUIT
[December 13, 2004]
Justice Ginsburg, with whom Justice Stevens joins, dissenting.
Aviall Services, Inc., purchased from Cooper Industries, Inc., property that was contaminated with hazardous substances. Shortly after the purchase, the Texas Natural Resource Conservation Commission notified Aviall that it would institute enforcement action if Aviall failed to remediate the property. Aviall promptly cleaned up the site and now seeks reimbursement from Cooper. In my view, the Court unnecessarily defers decision on Avialls entitlement to recover cleanup costs from Cooper.
In Key Tronic Corp. v. United States, 511 U.S. 809, 818 (1994), all Members of this Court agreed that §107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607 unquestionably provides a cause of action for [potentially responsible persons (PRPs)] to seek recovery of cleanup costs. The Court rested that determination squarely and solely on §107(a)(4)(B), which allows any person who has incurred costs for cleaning up a hazardous waste site to recover all or a portion of those costs from any other person liable under CERCLA.1
The Key Tronic Court divided,
however, on the question whether the right to contribution is
implicit in §107(a)s text, as the majority
determined, or whether §107(a) expressly confers the
right, as the dissenters urged. The majority stated: Section
107 impliesbut does not expressly
commandthat [a PRP] may have a claim for
contribution against those treated as joint tortfeasors.
511 U.S., at 818, and n. 11 ((emphasis added)). The
dissent maintained: Section 107(a)(4)(B) states, as
clearly as can be, that [c]overed persons
necessary costs of response incurred by
any other person. Surely to say that A shall be liable
to B is the express creation of a right of action.
Id., at 822. But no Justice expressed the slightest
doubt that §107 indeed did enable a PRP to sue other
covered persons for reimbursement, in whole or part, of cleanup
costs the PRP legitimately
In its original complaint, Aviall identified §107 as the federal-law basis for an independent cost-recovery claim against Cooper, and §113 as the basis for a contribution claim. App. 8A, 16A17A. In amended pleadings, Aviall alleged both §§107 and 113 as the federal underpinning for its contribution claim. Id., at 27A, 48A. Avialls use of §§113 and 107 in tandem to assert a contribution claim conformed its pleading to then-governing Fifth Circuit precedent, which held that a CERCLA contribution action arises through the joint operation of §107(a) and §113(f)(1). See Geraghty and Miller, Inc. v. Conoco, Inc., 234 F.3d 917, 924 (2000) ([W]hile section 113(f) is the vehicle for bringing a contribution action, it does not create a new cause of action or create any new liabilities. Rather, it is a mechanism for apportioning costs that are recoverable under section 107. (footnote omitted)). A party obliged by circuit precedent to plead in a certain way can hardly be deemed to have waived a plea the party could have maintained had the law of the Circuit permitted him to do so. But cf. ante, at 910.
In the Fifth Circuits view,
§107 supplied the right of action for Avialls claim,
and §113(f)(1) prescribed the procedural framework. 312
F.3d 677, 683, and n. 10 (2002) (stating that §107
I see no cause for protracting this litigation by requiring the Fifth Circuit to revisit a determination it has essentially made already: Federal courts, prior to the enactment of §113(f)(1), had correctly held that PRPs could recover [under §107] a proportionate share of their costs in actions for contribution against other PRPs, 312 F.3d, at 687;2 nothing in §113 retracts that right, ibid. (noting that §113(f)s saving clause preserves all preexisting state and federal rights of action for contribution, including the §107 implied right this Court recognized in Key Tronic, 511 U.S., at 816). Accordingly, I would not defer a definitive ruling by this Court on the question whether Aviall may pursue a §107 claim for relief against Cooper.
1. Key Tronic, a PRP, asserted a cost-recovery claim under §107(a) to recoup approximately $1.2 million in costs that it allegedly incurred cleaning up its site at its own initiative. Key Tronic Corp. v. United States, 984 F.2d 1025, 1026 (CA9 1993). Although Key Tronic settled a portion of its liability with the Environmental Protection Agency (EPA), the claim advanced in Key Tronics §107(a) suit rested on remedial action taken before the EPAs involvement, remediation that did not figure in the settlement. Id., at 10261027; Key Tronic Corp. v. United States, 511 U.S. 809, 811812 (1994).
2. The cases to which the Court refers, ante, at 12, Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981), and Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77 (1981), do not address the implication of a right of action for contribution under CERCLA. Texas Industries concerned the Sherman and Clayton Acts, 451 U.S., at 639646; Northwest Airlines, the Equal Pay Act and Title VII, 451 U.S., at 9099. A determination suitable in one statutory context does not necessarily carry over to a different statutory setting.