U.S. v. Atlantic Research Corp. Oral Arguments

Apr 23: The U.S. Supreme Court heard oral arguments in the case of U.S. v. Atlantic Research Corp. (Docket: 06-0562). The case is being appealed from the Eighth Circuit Court of Appeals decision of August 11, 2006 [See WIMS 8/14/06]. The primary questions presented in the case is: "Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), but that does not satisfy the requirements for bringing an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a)?"

The arguments included appearances from Thomas Hungar, Deputy Solicitor General for petitioner United States; Thomas Armstrong of Von Briesen & Roper for respondent Atlantic Research; and Jay Geck, the Deputy Solicitor General of Washington State, an amicus party supporting respondent Atlantic Research. An extensive list of amicus parties are referenced in the contacts below. A group of 40 states, Ford Motor Company, General Motors, Natural Resources Defense Council, former EPA officials and others are supporting respondent Atlantic Research. (See link to the complete transcript below).

In the Eighth Circuit opinion, which the Solicitor General says is incorrect, the Appeals Court said, "We agree with our sister Circuit [referring to the Second Circuit decision in Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005], and hold that it no longer makes sense to view § 113 as a liable party’s exclusive remedy. This distinction may have made sense for parties such as Dico, which was allowed to seek contribution under § 113. But here, Atlantic is foreclosed from using § 113. This path is barred because Atlantic – like Aviall – commenced suit before, rather than 'during or following,' a CERCLA enforcement action. Atlantic has opted to rely upon § 107 to try to recover its cleanup costs exceeding its own equitable share. We conclude it may do so."

In its brief, the U.S. Solicitor General indicated, "This case presents the principal question left open by this Court two Terms ago in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004): Whether a party that is potentially responsible for the cleanup of property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., but is not eligible to bring an action for contribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may nevertheless bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a). In this case, the Eighth Circuit, consistent with an earlier decision of the Second Circuit but in conflict with a later decision of the Third Circuit, held that a potentially responsible party could pursue such an action under Section 107(a).

Access the complete transcript of the oral arguments (click here). Access a Medill News Service summary of the action (click here). Access the U.S. Supreme Court Docket listing all amici curiae parties for the case (click here). Access the Eight Circuit opinion (click here). Access the SCOTUS Blog preview of the argument (click here). Access links to various media coverage of the argument (click here). [*Remed]