Posted May 26, 2021 by Seth Jaffe
On May 24th, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA. I have previously commented on the Court’s tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be. The Court’s approach to section 113 in yesterday’s decision followed this now well-worn path. In a short, sweet, and unanimous decision, the Court found that:
“The most natural reading of§113(f)(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability, as opposed to resolving environmental liability under some other law”
After cogitating yet again on the Court’s ability to find clarity where none exists, I realized that the Court’s approach is really just the adoption of a legal fiction. After all, one judge has noted that:
“those courts which have attempted to unravel CERCLA’s definitions have found no solace in either the “plain meaning” of the statute or the reams of legislative history. Instead, in an attempt to glean legislative intent, courts seem to resort to a sort of “Purkinje phenomenon”, hoping that if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain.”
Or, there’s this, from William Rogers:
“Vagueness, contradiction, and dissembling are familiar features of environmental statutes, but CERCLA is secure in its reputation as the worst drafted of the lot.”
And yet, none of this troubles SCOTUS, which floats above the mess that is CERCLA. I don’t think that this is blissful ignorance of the chaos below. Instead, I think that the Court has simply chosen to ignore that chaos. After all, if any court is entitled to ipse dixit, it would be SCOTUS.
And the more I think about it, the more I am sympathetic to the Court’s approach. After all, it is the Court’s responsibility to say what the law is. It cannot simply throw up its hands in the face of CERCLA’s incomprehensibility. Better to take the Gordian Knot approach. Slice through the mess and just declare CERCLA to be clear and unambiguous.
The merits of the Court’s approach is evident in yesterday’s decision. The Court at least has provided a bright-line rule. Going forward, it’s going to be much clearer when CERCLA contribution rights are triggered and when they are not.
It remains good to be king.