The en banc dissent written by Circuit Judge Garza and joined by two others, expanded on the panel’s majority decision. It adopted a much narrower view of the contribution provision’s language and structure than had the en banc majority. The dissent reasoned that when the term “may” appears in an enabling clause, it is generally intended to create an exclusive cause of action. Thus, it read the first sentence of � 113(f)(1) as limiting contribution suits to those instances where they are commenced during or following a � 106 or � 107 cost recovery suit. As for policy concerns, the dissent took the position that it should not substitute its judgment for that of the Congress as expressed in the plain language of the contribution provision.
Reactions
The attorneys for both sides were quoted in On the Docket, a Web site maintained by the Medill School of Journalism, Northwestern University. (http://journalism.medill.northwestern.edu.) Cooper’s attorney, William Bradford Reynolds, focused on the statutory interpretation: “The question is, does the statute in the first sentence restrict the right of contribution in situations when a civil action is not pending, or is the statute to be read through the savings clause? Cynthia Bishop, one of Aviall’s lawyers had a more expansive and practical view of what was at stake: “I think it is much wider-reaching than that. I know of one company that has suspended cleanup operations until they see how this case is decided.”
Mealeys’ Pollution Liability Report indicated that five amicus curiae briefs have been filed with the Court. The amici include 23 states, major corporations and others. According to Mealeys: “The amici argue to the U.S. Supreme Court that limiting the right to file contribution suits will discourage PRPs from conducting voluntary cleanup actions, enable the federal government to insulate itself from liability, increase the lawsuits filed and delay site remediations.” (http://www.mealeys.com.)
But most interesting of all are the views of the United States as expressed in its amicus brief submitted by the Solicitor General. That brief left no doubt that the government and Cooper were on the same page:
The court of appeals’ decision allows the unauthorized invocation of federal court jurisdiction, endorses a mistaken view of the CERCLA liability scheme, and condones the unauthorized imposition of financial liability under federal law. The en banc Fifth Circuit is the first court to address the issue squarely in a concrete context, but its decision is inconsistent with the statutory restrictions respecting contribution under the CERCLA liability scheme.
Goldshore is a partner at Goldshore, Cash & Kalac of Lawrenceville. His practice is devoted to environmental, land use and municipal law. Goldshore and Wolf are co-authors of New Jersey Environmental Law (ICLE 2003), and Goldshore is a co-author of New Jersey Brownfields Law, published by New Jersey Law Journal Law Books. Their column appears regularly in the Law Journal.
