This week, in the case of Solutia, Inc. and Pharmacia Corp. v. McWane, Inc. (Solutia), the Eleventh Circuit held that a party that performs a cleanup in compliance with a consent decree has no right under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) section 107(a) to recover its cleanup costs. This case represents a continuance of the courts’ clarification of when claims can be brought under CERCLA sections 107(a) and 113(f). To understand the significance of this case, it is best to start by examining the United States Supreme Court cases that proceeded it, beginning with the Supreme Court’s decision in Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004).
In Cooper v. Aviall, the Supreme Court turned decades of CERCLA jurisprudence on its head. Relying on the plain language of CERCLA section 113(f), the court held that a potentially responsible party (“PRP”) can only seek contribution under section 113(f) from other parties “during or following” a civil action under CERCLA section 106 or 107. Therefore, a party that had not been sued and had not entered into a settlement could not seek contribution under CERCLA section 113(f). The court did not address when a party could bring an action under section 107.
Prior to Cooper v. Aviall, courts as a matter of course permitted PRPs to bring contribution actions under section 113(f), regardless of whether they had been sued under CERCLA. Conversely, many courts did not permit PRPs to bring suit under section 107(a), which provides for joint and several liability. The Supreme Court left open the question of whether PRPs that voluntarily incurred response costs could now bring suit under section 107(a). Three years later the Supreme Court answered this question with a resounding YES.
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