| Dissent [ Scalia ] | Opinion [ Stevens ] | Syllabus |
|---|---|---|
| HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version |
SUPREME COURT OF THE UNITED STATES
No.
[
Justice
%Covered persons . . . shall be liable for --
"(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
"(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan." (Emphases added).
Title 42 U.S.C. § 9601(25) explains that:
"The terms `respond' or `response' means [sic] remove, removal, remedy, and remedial action;, all such terms (including the terms `removal' and `remedial action') include enforcement activities related thereto." (Emphases added).
Under the plain language of these provisions, a private litigant is entitled to the costs associated with bringing a §107(a)(4)(B) cost recovery action, which is the only "enforcement activit[y]" he can conceivably conduct. Obviously, attorney's fees will constitute the major portion of those enforcement costs.
The Court seeks to characterize the right of recovery created by §107 as an "implied" right of action, see ante, at 6, 7, 9--perhaps in order to support the view that the authorization of attorney's fees included within that right of action is not explicit (a point I shall discuss more fully below). That characterization is mistaken. Section 107(a)(4)(B) states, as clearly as can be, that "[c]overed persons . . . shall be liable for . . . 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. [n.*] Moreover, other language in §107 of CERCLA refers to "amounts recoverable in an action under this section," 42 U.S.C. § 9607(a)(4)(D), and language in §113 discusses the "civil action . . . under section 107(a)," 42 U.S.C. § 9613(f)(1). The Court'sassumption seems to be that only a statute that uses the very term "cause of action" can create an "express" cause of action, and that all other causes of action are "implied." That is not ordinary usage. An implied cause of action is something quite different from what we have here. See, e.g., Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U. S. ___ (1994) (slip op., at 6) (discussing the genesis of the implied private causes of action under §§10(b) and 14(a) of the Securities and Exchange Act of 1934).
The first of the three reasons the Court gives for refusing to read §9607(a)(4)(B) and §9601(25) to cover attorney's fees displays the same confusion between a requirement of explicitness and a requirement of a password. The Court states that "attorney's fees generally are not . . . recoverable . . . `absent explicit congressional authorization,' " ante, at 5 (quoting Runyon v. McCrary, 427 U.S. 160, 185 (1976), and notes further that none of the statutory provisions at issue "expressly mentions the recovery of attorney's fees," ante, at 5. But to meet the demands of Runyon, Congress need only be explicit--it need not incant the magic phrase "attorney's fees." Where, as here, Congress has explicitly authorized recovery of costs of "enforcement activities," and where, as here, the costs of "enforcement activities" naturally (and indeed primarily) include attorney's fees, that textual authorization satisfies Runyon.
The Court also draws a negative inference from the fact that Congress expressly provided for attorney's fee awards in other portions of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, the Act that added the "enforcement activities" language of 42 U.S.C. § 9601(25). From this, the Court concludes that Congress's failure to mention attorney's fees in §9607 or §9613 "strongly suggest[s] a deliberate decision not to authorize such awards." Ante, at 9. That argument would be persuasive if it were ambiguous whether, for a private party, the cost of "enforcement activities" includes attorney's fees. But since it is not, the fact that Congress provided for the recovery of attorney's fees eo nomine in two other sections is of little relevance. Given the explicitness of the award of costs of "enforcement activities," the " `attorney's fees' was used elsewhere" argument is simply a watered down version of the "magic words" argument rejected above.
Finally, the Court comes to grips with the core issue in this case, declaring that "it would stretch the plain terms of the phrase `enforcement activities' too far to construe it as encompassing the kind of private cost recovery action at issue in this case." Ibid. I do not agree. While the term "enforcement" often--perhaps even usually--is used in connection with government prosecution, that is assuredly not the only form of legal action it refers to. It clearly includes the assertion of a valid private claim against another private litigant. Lawyers regularly speak of "enforceable obligations" and "enforceable contracts," and of "enforcing" a private judgment. We have called the private rights of action created by the Clayton Act "vehicle[s] for private enforcement" of the law, Cargill, Inc. v. Monfort of Colorado, Inc., 479 U. S. 104, 109 (1986), and the "private enforcement" characterization seems especially apt here, where the plaintiff's suit must be "consistent with the national contingency plan" promulgated by the EPA. 42 U.S.C. § 9607(a)(4)(B). As I read the Court's opinion, it interprets "enforcement activities" to cover, at most, the government's attorney's fees in a cost recovery action. See, ante, at 9. That gives the specification of §9601(25) that certain terms include "enforcement activities" no application to private parties, and no application to any terms except "removal" and "remedial action"--which is very curious, since the parenthetical in §9601(25) suggests that those two terms, far from beingcentral to the provision (much less an embodiment of its total application), were in danger of being overlooked.
I would read "enforcement activities" in §9601(25) to cover the attorney's fees incurred by both the government and private plaintiffs successfully seeking cost recovery under §9607 of CERCLA.
* I cannot agree with Justice Stevens's contention that CERCLA "expressly identifies the Government as a potential plaintiff and only impliedly identifies private parties" as potential plaintiffs in §107 litigation. Ante, at 9, n. 11. Section 107(a)(4)(A) states that persons are liable for certain costs "incurred by the United States Government or a State or an Indian Tribe," thus providing an express cause of action for those plaintiffs. Section 107(a)(4)(B) states that persons are liable for certain costs "incurred by any other person" (emphasis added), thus providing an express cause of action for private parties.