Opposition Brief — Territory of Guam, Petitioner v. United States

No. 20-382

In the Supreme Court of the United States

TERRITORY OF GUAM, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

JENNIFER SCHELLER NEUMANN

EVELYN YING

RACHEL HERON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

Section 113(f )(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (CERCLA), provides a cause of action for contribution to any “person who has resolved its liability to

the United States or a State for some or all of a response

action * * * in an administrative or judicially approved

settlement.” 42 U.S.C. 9613(f )(3)(B). The questions

presented are as follows:

1. Whether a judicially approved settlement in a

non-CERCLA case can give rise to a contribution action

under Section 113(f )(3)(B).

2. Whether a judicially approved settlement that

conclusively determined Guam’s obligation to perform

response actions “resolved” Guam’s “liability” for “some

or all of a response action.”

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 9

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Agere Sys., Inc. v. Advanced Envtl. Tech. Corp.,

602 F.3d 204 (3d Cir.), cert. denied, 562 U.S. 1062

(2010) ...................................................................................... 3

Asarco LLC v. Atlantic Richfield Co., 866 F.3d 1108

(9th Cir. 2017) ............................................................ 3, 14, 15

Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335 (2020) ........................................................... 2

Bankert v. Bernstein, 571 U.S. 1175 (2014) ........................ 18

Bernstein v. Bankert, 733 F.3d 190 (7th Cir. 2013),

cert. denied, 571 U.S. 1175 (2014) ........................... 3, 19, 20

Consolidated Edison Co. of New York, Inc. v. UGI

Utilities, Inc., 423 F.3d 90 (2d Cir. 2005),

cert. denied, 551 U.S. 1130 (2007) ..................................... 14

Dodd v. United States, 545 U.S. 353 (2005) ........................ 22

Florida Power Corp. v. FirstEnergy Corp.,

810 F.3d 996 (6th Cir. 2015) ............................................... 20

Hobart Corp. v. Waste Mgmt. of Ohio, Inc.:

758 F.3d 757 (6th Cir. 2014), cert. denied,

135 S. Ct. 1161 (2015) .......................................... 19, 20

135 S. Ct. 1161 (2015) ...................................................... 18

ITT Indus., Inc. v. BorgWarner, Inc.,

506 F.3d 452 (6th Cir. 2007) ................................................. 3

Miller v. Robertson, 266 U.S. 243 (1924) ............................. 19

(III)

IV

Cases—Continued:

Page

Morrison Enter., LLC v. Dravo Corp.,

638 F.3d 594 (8th Cir.), cert. denied,

565 U.S. 879 (2011)................................................................ 3

Niagara Mohawk Power Corp. v. Chevron U.S.A.,

Inc., 596 F.3d 112 (2d Cir. 2010).................................... 3, 15

RSR Corp. v. Commercial Metals Co.,

496 F.3d 552 (6th Cir. 2007) ............................................... 20

Refined Metals Corp. v. NL Indus. Inc.,

937 F.3d 928 (7th Cir. 2019) ........................................... 14, 20

Russello v. United States, 464 U.S. 16 (1983) ................. 7, 11

Solutia, Inc. v. McWane, Inc., 672 F.3d 1230

(11th Cir.), cert. denied, 568 U.S. 942 (2012) ................. 3, 4

Trinity Indus., Inc. v. Chicago Bridge & Iron Co.,

735 F.3d 131 (3d Cir. 2013) ................................................ 14

United States v. Government of Guam:

No. 02-22, 2008 WL 216918 (D. Guam Jan. 24,

2008) ........................................................................ 4, 23

No. 02-22, 2008 WL 732796 (D. Guam Mar. 17,

2008) ............................................................................ 23

United States v. ITT Continental Baking Co.,

420 U.S. 223 (1975).............................................................. 18

United States v. Johnston, 268 U.S. 220 (1925).................. 18

W.R. Grace & Co. v. Zotos Intern., Inc.,

559 F.3d 85 (2d Cir. 2009) .................................................. 14

Statutes and rule:

Clean Water Act of 1977, 33 U.S.C. 1251 et seq.................... 4

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

42 U.S.C. 9601 et seq. ............................................................ 1

42 U.S.C. 9601(21) (§ 101(21)) ...................................... 3, 8

42 U.S.C. 9601(23) (§ 101(23)) .......................................... 8

42 U.S.C. 9601(24) (§ 101(24)) .................................... 8, 15

V

Statutes and rule—Continued:

Page

42 U.S.C. 9601(25) (§ 101(25)) .................................... 8, 11

42 U.S.C. 9601(27) (§ 101(27)) ...................................... 2, 3

42 U.S.C. 9607 (§ 107) ....................................... 3, 5, 11, 12

42 U.S.C. 9607(a) (§ 107(a)) ........................................ 6, 11

42 U.S.C. 9607(a)(1)-(4) (§ 107(a)(1)-(4)) ......................... 2

42 U.S.C. 9607(a)(4)(A) (§ 107(a)(4)(A)) .......................... 2

42 U.S.C. 9607(a)(4)(B) (§ 107(a)(4)(B)) .............. 2, 12, 22

42 U.S.C. 9613 (§ 113) ................................................. 3, 11

42 U.S.C. 9613(b) (§ 113(b)) ............................................ 11

42 U.S.C. 9613(e) (§ 113(e)) ............................................ 11

42 U.S.C. 9613(f ) (§ 113(f ))........................... 2, 5, 6, 13, 17

42 U.S.C. 9613(f )(1) (§ 113(f )(1)) ........................ 11, 13, 14

42 U.S.C. 9613(f )(2) (§ 113(f )(2)) .................................... 10

42 U.S.C. 9613(f )(3)(B) (§ 113(f )(3)(B)) ................ passim

42 U.S.C. 9613(g)(1) (§ 113(g)(1))................................... 11

42 U.S.C. 9613(g)(2) (§ 113(g)(2))................................... 11

42 U.S.C. 9613(g)(2)(A)-(B) (§ 113(g)(2)(A)-(B)) ............ 3

42 U.S.C. 9613(g)(2)(B) (§ 113(g)(2)(B)) ........................ 11

42 U.S.C. 9613(g)(3)(B) (§ 113(g)(3)B)) ....... 3, 5, 9, 17, 22

42 U.S.C. 9613(i) (§ 113(i)) .............................................. 11

28 U.S.C. 1292(b) ................................................................. 2, 6

Sup. Ct. R. 10 ......................................................................... 18

Miscellaneous:

Black’s Law Dictionary (11th ed. 2019) ............................. 15

H.R. Rep. No. 253, 99th Cong., 1st Sess. Pt. 3 (1985) ........ 13

In the Supreme Court of the United States

No. 20-382

TERRITORY OF GUAM, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-26a)

is reported at 950 F.3d 104. The opinion of the district

court (Pet. App. 51a-97a) is reported at 341 F. Supp. 3d

74.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 2020. A petition for rehearing was denied

on May 13, 2020 (Pet. App. 98a-99a). The petition for a

writ of certiorari was filed on September 16, 2020. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

In 2017, petitioner brought this action against the

United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980

(CERCLA), 42 U.S.C. 9601 et seq. Pet. App. 7a-8a. The

(1)

2

district court denied the United States’ motion to dismiss, id. at 51a-97a, but certified its order for interlocutory appeal under 28 U.S.C. 1292(b), Pet. App. 27a50a. The court of appeals accepted the certification, reversed the district court’s denial of the government’s

motion, and remanded with instructions to dismiss. Id.

at 1a-26a.

1. Congress enacted CERCLA, also known as the

Superfund statute, to promote the cleanup of sites containing hazardous substances. See Atlantic Richfield

Co. v. Christian, 140 S. Ct. 1335, 1345 (2020). CERCLA

makes certain broad classes of persons, known as “potentially responsible parties” or “PRPs,” strictly liable

for costs related to contaminated sites. 42 U.S.C.

9607(a)(1)-(4).

This case involves two CERCLA provisions that allow persons who spend money responding to contaminated sites to recover some or all of their costs from potentially responsible parties. The first provision, Section 107(a)(4)(B), allows “any” person to recoup certain

“necessary costs of response” from a potentially responsible party. 42 U.S.C. 9607(a)(4)(B). It also allows

the United States or any State to recoup “costs of a removal or remedial action” from a potentially responsible party. 42 U.S.C. 9607(a)(4)(A); see 42 U.S.C.

9601(27) (defining “State” to include Guam).

The second provision, Section 113(f ), authorizes certain persons to seek contribution—that is, an equitable

share of costs—from other potentially responsible parties in specified circumstances. Most relevant here,

Section 113(f )(3)(B) provides that a “person who has resolved its liability to the United States or a State for

some or all of a response action or for some or all of the

3

costs of such action in an administrative or judicially approved settlement” may obtain contribution from potentially responsible parties. 42 U.S.C. 9613(f )(3)(B);

see 42 U.S.C. 9601(21), (27) (defining “person” to include Guam).

Each of those provisions is subject to its own statute

of limitations. As relevant here, claims under Section

107 to recoup costs of a remedial action must be brought

“within 6 years after initiation of physical on-site

construction of the remedial action.”

42 U.S.C.

9613(g)(2)(A)-(B). In contrast, claims under Section 113

for contribution must be brought within three years after “the date of judgment in any action under this chapter for recovery of such costs” or the “entry of a judicially approved settlement with respect to such costs.”

42 U.S.C. 9613(g)(3)(B). Every court of appeals to have

addressed the question has agreed that, when a party

seeks to recover cleanup costs that it has incurred in

complying with a court judgment or covered settlement,

it must pursue a Section 113 contribution claim and may

not circumvent Section 113(g)(3)(B)’s three-year statute of limitations by suing for response costs under Section 107. See Pet. App. 11a; Niagara Mohawk Power

Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.

2010); Agere Systems, Inc. v. Advanced Environmental

Tech. Corp., 602 F.3d 204, 229 (3d Cir.), cert. denied, 562

U.S. 1062 (2010); ITT Industries, Inc. v. BorgWarner,

Inc., 506 F.3d 452, 458 (6th Cir. 2007); Bernstein v.

Bankert, 733 F.3d 190, 206 (7th Cir. 2013), cert. denied,

571 U.S. 1175 (2014); Morrison Enterprises, LLC v.

Dravo Corp., 638 F.3d 594, 603-604 (8th Cir. 2011), cert.

denied, 565 U.S. 879 (2011); Asarco LLC v. Atlantic

Richfield Co., 866 F.3d 1108, 1117 (9th Cir. 2017); Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1236-1237

4

(11th Cir.) (per curiam), cert. denied, 568 U.S. 942

(2012).

2. The United States acquired the island of Guam

from Spain during the Spanish-American War. Pet.

App. 5a, 54a-55a. From 1898 to 1950, Guam was subject

to the jurisdiction of the United States Navy. Id. at 55a.

Petitioner’s complaint alleges that, at some point before

1950, the Navy began dumping waste at the site now

known as the Ordot Dump. Ibid.

In 1950, the newly established civilian government of

Guam (petitioner here) took over the island—and ownership of the Ordot Dump—from the Navy. Pet. App.

5a, 55a. Petitioner continued to operate the dump for

the next sixty years, accepting waste and storing it in

open ravines long after the enactment of laws that prohibited open dumping, and long after the dump had exceeded its capacity. See id. at 55a; United States v. Government of Guam, No. 02-22, 2008 WL 216918, at *1 (D.

Guam Jan. 24, 2008). Petitioner’s actions allowed contaminants from the dump to leach into adjacent rivers

and the Pacific Ocean. Pet. App. 56a. Eventually, “what

was once a valley became at least a 280-foot mountain of

trash.” Id. at 55a-56a (brackets and citation omitted).

The Ordot Dump has long attracted the attention of

the Environmental Protection Agency (EPA). Pet.

App. 6a. Starting in 1986, EPA issued a series of administrative orders under the Clean Water Act of 1977

(CWA), 33 U.S.C. 1251 et seq., that directed petitioner

to halt further discharges of contaminants from the

dump. Pet. App. 56a. Petitioner did not take the steps

required by those orders. Id. at 56a-57a.

In 2002, the United States sued petitioner under the

CWA, seeking injunctive and declaratory relief to stop

the ongoing discharge from the dump. Pet. App. 57a.

5

In 2004, the parties settled the suit in a court-approved

consent decree. Ibid. The decree, which constituted a

final judgment, required petitioner to pay a civil penalty, to take actions to close the Ordot Dump, to halt the

discharge of contaminants from the dump, and to build

a new municipal landfill to replace the dump. Ibid. The

consent decree stated that the United States reserved

the right to pursue claims for violations unrelated to the

claims in its complaint; that petitioner would be released from the United States’ claims when it complied

with the settlement’s requirements; and that the parties

had entered the agreement “without any finding or admission of liability against or by the Government of

Guam.” Id. at 24a (citation omitted); see id. at 22a-24a.

3. Thirteen years later, petitioner filed this suit in

the United States District Court for the District of Connecticut. Petitioner alleged that the United States is a

potentially responsible party under CERCLA and that

it is liable for some of the costs of complying with the

2004 consent decree. Pet. App. 59a. Petitioner asserted

two causes of action: a claim under Section 107 for recovery of response costs, and an alternative claim under

Section 113(f ) for contribution. Id. at 8a.

After the suit was transferred to the United States

District Court for the District of Columbia, the United

States moved to dismiss the complaint. The United

States argued that petitioner’s claim was properly viewed

as one for contribution under Section 113(f ); that the

claim therefore was barred by Section 113(g )(3)(B)’s

three-year limitations period; and that petitioner could

not circumvent that limitations period by invoking Section 107 instead. Pet. App. 53a.

The district court denied the motion to dismiss, rejecting the United States’ premise that petitioner’s

6

claim fell within the scope of Section 113(f ). Pet. App.

51a-97a. The court observed that Section 113(f )(3)(B)

provides a cause of action to any party that has “resolved its liability to the United States * * * for some

or all of a response action.” Id. at 69a-70a (quoting 42

U.S.C. 9613(f )(3)(B)) (emphasis omitted). The court

held that “the 2004 Consent Decree did not resolve

Guam’s liability for the Ordot Landfill cleanup given the

broad, open-ended reservation of rights, the plain nonadmissions of liability, and the conditional resolution of

liability that that agreement contains.” Ibid. The court

concluded that “the statutorily prescribed conditions

for bringing a contribution claim under section

113(f )(3)(B) have not been satisfied, which means that

Guam is not precluded from maintaining its section

107(a) claim against the United States.” Ibid. At the

United States’ request, the court certified its order for

interlocutory appeal under 28 U.S.C. 1292(b). Pet. App.

27a-50a.

4. The court of appeals accepted the certification,

reversed the district court’s denial of the United States’

motion to dismiss, and remanded with instructions to

dismiss the complaint. Pet. App. 1a-26a.

Like every other court of appeals that has addressed

the issue, the court of appeals here held that, if a party

seeks the type of relief that is available in a contribution

action under Section 113(f )—i.e., recovery of cleanup

costs that the party has incurred in complying with a

covered court judgment or settlement agreement—it

may not proceed under Section 107(a) instead. Pet.

App. 10a-11a. The court observed that “[t]he entire

purpose of section 113(f )(3)(B) is to ‘permit private parties to seek contribution after they have settled their liability with the Government.’ ” Id. at 11a (brackets and

7

citation omitted). The court explained that “[a]llowing

a PRP that has settled with the government to instead

seek recoupment through a section 107 cost-recovery

claim would render section 113(f )(3)(B) superfluous; if

a PRP could choose whether to sue under section 107 or

section 113, ‘a rational PRP would prefer to file an action under § 107(a) in every case.’ ” Ibid. (brackets and

citation omitted).

The court of appeals rejected petitioner’s argument

that the 2004 consent decree fell outside the scope of

Section 113(f )(3)(B) because the decree resolved only

CWA claims, not CERCLA claims. Pet. App. 16a-18a.

The court observed that “another provision of section

113—paragraph (f )(1)—expressly requires that a party

first be sued under CERCLA * * * before pursuing

contribution.” Id. at 17a. It noted that “section

113(f )(3)(B) contains no such CERCLA-specific language.” Ibid. Invoking the presumption that “ ‘Congress acts intentionally and purposely in the disparate

inclusion or exclusion’ ” of language in a statute, the

court concluded that “a settlement agreement can trigger section 113(f )(3)(B) even if it never mentions CERCLA.” Id. at 18a (quoting Russello v. United States,

464 U.S. 16, 23 (1983)).

Petitioner also argued that the 2004 consent decree

had not “resolved [petitioner’s] liability to the United

States * * * for some or all of a response action,” 42

U.S.C. 9613(f )(3)(B), and that the decree therefore

fell outside the scope of Section 113(f )(3)(B). The court

of appeals rejected that contention. See Pet. App. 18a25a. Parsing the statutory terms “resolved,” “liability,”

and “some or all of a response action,” 42 U.S.C.

9613(f )(3)(B), the court explained that, in order to trigger a potential contribution claim, a consent decree

8

must have “decided, determined, or settled, at least in

part,” a party’s “obligation” to undertake some action

that falls within CERCLA’s definition of “response action.” Pet. App. 19a (brackets, citations, and emphasis

omitted). Based on its analysis of the relevant CERCLA definitions, see id. at 20a-21a (discussing 42 U.S.C.

9601(21), (23), (24), and (25)), the court concluded that

“EPA’s [CWA] lawsuit * * * sought injunctive relief

for Guam to take action that qualified as a ‘response action,’ and the 2004 Consent Decree released Guam from

legal exposure for that claim in exchange for Guam’s

commitment to perform work that qualified as a ‘response action,’ ” id. at 21a.

Based on various provisions of the 2004 consent decree, petitioner contended that the decree had not resolved petitioner’s liability for some or all of a response

action. The court of appeals rejected those arguments.

Pet. App. 22a-25a.

Petitioner relied on a clause in the consent decree

that reserved the United States’ right to pursue claims

for violations unrelated to the claims in the complaint.

Pet. App. 22a. The court observed that Section

113(f )(3)(B) “requires merely the resolution of liability

for ‘some’ of a response action”; “a decree need not decisively determine every action that a party may one

day be required to perform at the relevant site.” Ibid.

Petitioner also argued that entry of the consent decree here did not trigger a potential right to contribution under Section 113(f )(3)(B) because the decree by

its terms releases petitioner from the United States’

claims only when the decree’s requirements have

been fully implemented. Pet. App. 23a. The court observed that petitioner’s reading of the pertinent CERCLA language would “nullify section 113(f )(3)(B) in a

9

host of cases.” Ibid. The court explained that Section

113(g)(3)(B)’s three-year statute of limitations for contribution actions begins to run when a judicial settlement is entered, but that full implementation of a settlement’s requirements often takes more than three

years. Ibid. The court observed that petitioner’s reading therefore would produce the “absurd result” that

“most [potentially responsible parties] would find themselves barred by the statute of limitations by the time

they gained the ability to sue.” Ibid.

Finally, petitioner invoked the consent decree’s

statement that the parties’ settlement had been reached

“without any finding or admission of liability against or

by the Government of Guam.” Pet. App. 24a. Notwithstanding that language, the court of appeals concluded

that entry of the consent decree had “ ‘resolve[d]’ [petitioner’s] liability to the United States” within the meaning of Section 9613(f )(3)(B), and had thereby triggered

a potential right to contribution, by requiring petitioner

to engage in specific conduct that constitutes a CERCLA “response action.” Id. at 24a-25a (citation omitted). The court noted that “parties often expressly refuse to concede liability under a settlement agreement,

even while assuming obligations consistent with a finding of liability.” Id. at 24a (citation omitted). The court

concluded that “the disclaimer of liability, standing

alone, cannot overcome the Consent Decree’s substantive provisions.” Ibid.

ARGUMENT

Petitioner contends (Pet. 25-30) that a consent decree can give rise to a contribution claim under Section

113(f )(3)(B) only if the suit underlying the decree involved CERCLA claims. Petitioner also argues (Pet.

30-34) that its 2004 consent decree with the United

10

States does not give rise to a contribution claim because

the decree did not “resolve[]” petitioner’s “liability to

the United States” as Section 113(f )(3)(B) requires.

The court of appeals correctly rejected both those

arguments, and its decision does not conflict with any

decision of this Court. Although the first question presented is the subject of a circuit conflict, the court below

adopted the majority view, and the sole court of appeals

in the minority has expressed doubt about the correctness of its approach. The second question presented

does not implicate a circuit conflict, but rather involves

a case-specific dispute about the interpretation of a particular consent decree. Further review is not warranted.

1. Petitioner contends that a judicially approved settlement can give rise to a contribution claim under Section 113(f )(3)(B) only if the underlying suit raised CERCLA claims. That argument lacks merit and does not

warrant this Court’s review.

a. Section 113(f )(3)(B) provides that “[a] person who

has resolved its liability to the United States or a State

for some or all of a response action or for some or all of

the costs of such action in an administrative or judicially

approved settlement may seek contribution from any

party who is not a party to a settlement referred to in

[Section 113(f )(2)].” 42 U.S.C. 9613(f )(3)(B). That language does not require that the claims resolved by the

settlement must have arisen under CERCLA. Rather,

under the plain terms of that provision, the potential

availability of a contribution remedy depends on whether

a particular settlement with the United States or a

State requires a settling party to incur the costs of a

CERCLA “response action.” The settlement here imposed such a requirement, even though the suit that

11

produced the consent decree arose under the CWA,

since CERCLA broadly defines “response” to encompass any action to “remove” or “remedy” releases of

substances. 42 U.S.C. 9601(25); see Pet. App. 20a-22a.

Comparing Section 113(f )(3)(B) to nearby CERCLA

provisions reinforces that conclusion. Section 113(f )(1)

provides that “[a]ny person may seek contribution from

any other person who is liable or potentially liable under

[Section 107(a) of CERCLA], during or following any

civil action under [Section 106 of CERCLA] or under

[Section 107(a) of CERCLA].” 42 U.S.C. 9613(f )(1)

(emphasis added). That provision makes a right of contribution available only to a person who has been sued

under CERCLA. Other clauses within Section 113 likewise refer specifically to actions arising under CERCLA, a particular part of CERCLA, or a particular statute apart from CERCLA. See, e.g., 42 U.S.C. 9613(b)

(“controversies arising under [CERCLA]”); 42 U.S.C.

9613(e) (“any action by the United States under [CERCLA]”); 42 U.S.C. 9613(g)(1) (“action * * * for damages

* * * under [CERCLA]”); 42 U.S.C. 9613(g)(2) (“action

or actions under [Section 107 of CERCLA]”); 42 U.S.C.

9613(g)(2)(B) (“cost recovery action brought under this

subparagraph”); 42 U.S.C. 9613(i) (“any action commenced under [CERCLA] or under the Solid Waste

Disposal Act”). The provision at issue here, by contrast,

contains no such restriction. That disparity implicates

the established interpretive rule that, “where Congress

includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (brackets

and citation omitted).

12

b. Petitioner suggests (Pet. 25-26) that the cleanup

activities for which it now seeks contribution do not involve a Section 113(f )(3)(B) “response action.” In addition to being contrary to the statutory text, that argument is ultimately self-defeating.

In determining whether petitioner’s suit should be

dismissed, the courts below focused on whether the

2004 consent decree triggered a potential right to contribution under Section 113(f )(3)(B). The ultimate

question before those courts, however, was whether petitioner can pursue a cost-recovery action under Section

107. The CERCLA provision on which petitioner affirmatively relies provides a cause of action for “necessary costs of response.” 42 U.S.C. 9607(a)(4)(B).

Petitioner’s suit can go forward only if it falls outside

the scope of Section 113(f )(3)(B) and is authorized by

Section 107(a)(4)(B). Petitioner’s claim for judicial relief thus depends on the contention that petitioner’s

cleanup costs qualify as “necessary costs of response”

under CERCLA, even though petitioner incurred those

costs to satisfy the commitments it made in settling the

United States’ CWA suit. That argument cannot be reconciled with petitioner’s suggestion that the same cleanup

activities do not constitute a “response action.”

c. Petitioner also argues (Pet. 26-28) that a settlement can give rise to a contribution claim only if it resolves a common liability. That is correct but beside the

point. Section 113(f )(3)(B) permits contribution if the

settlement resolves a common liability “for some or all

of a response action.” 42 U.S.C. 9613(f )(3)(B). Here,

under petitioner’s theory of the case, the United States

had an independent duty to take response actions to address releases from the Ordot Dump. The 2004 consent

decree resolved that common liability, at least “for

13

some” of the response actions, ibid., by requiring petitioner to take specified actions. Petitioner appears

to insist that a contribution action under Section

113(f )(3)(B) requires not just resolution of a common liability for some or all of a response action, but resolution of a common liability in a suit under CERCLA. But

that is not what the statute says.

d. Petitioner also invokes (Pet. 28) a House committee report and the United States’ brief in Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192 (Feb. 23,

2004). Neither source supports petitioner’s reading.

In discussing what is now Section 113(f )(3)(B), the

committee report states that the provision “was added

* * * to expressly provide to settlors the right to seek

contribution from nonsettlors” and to “encourage settlements.” H.R. Rep. No. 253, 99th Cong., 1st Sess. Pt.

3, at 19-20 (1985). The report does not say or suggest

that the language now contained in Section 113(f )(3)(B)

is limited to settlements of CERCLA lawsuits. And the

court of appeals’ broader reading of that language

would more fully accomplish the stated objectives (i.e.,

enhancing settlors’ rights and encouraging settlements)

than would petitioner’s narrower interpretation. In describing other paragraphs within Section 113(f ), the report refers to settlements and consent decrees “under

CERCLA”; but those descriptions do not shed light on

the meaning of the particular provision at issue here.

Ibid. And the United States’ brief in Cooper Industries

focused on Section 113(f )(1), the separate contribution

provision that contains CERCLA-specific language—

not Section 113(f )(3)(B), the contribution provision that

is at issue in this case. See U.S. Br. at 12-28, Cooper

Industries, supra (No. 02-1192).

14

e. The first question presented is the subject of a

(lopsided) circuit conflict. In addition to the D.C. Circuit in this case, three other courts of appeals—the

Third, Seventh, and Ninth—have held that a settlement

in a non-CERCLA case may give rise to a contribution

claim under Section 113(f )(3)(B). See Trinity Industries, Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131,

136 (3d Cir. 2013); Refined Metals Corp. v. NL Industries Inc., 937 F.3d 928, 932 (7th Cir. 2019); Asarco LLC

v. Atlantic Richfield Co., 866 F.3d 1108, 1120-1121 (9th

Cir. 2017); Pet. App. 16a-17a.

The Second Circuit, by contrast, has held that “section 113(f )(3)(B) does not permit contribution actions

based on the resolution of liability for state law—but not

CERCLA—claims.” Consolidated Edison Co. of New

York, Inc. v. UGI Utilities, Inc., 423 F.3d 90, 96 (2d Cir.

2005), cert. denied, 551 U.S. 1130 (2007); see W.R. Grace

& Co. v. Zotos Intern., Inc., 559 F.3d 85, 90-91 (2d Cir.

2009) (stating that, under Consolidated Edison, Section

113(f )(3)(B) creates a right to contribution “only when

liability for CERCLA claims, rather than some broader

category of legal claims, is resolved”) (citation omitted).

As other courts of appeals have recognized, see Consolidated Edison, 423 F.3d at 96; Asarco, 866 F.3d at 1120,

the Second Circuit’s decision in Consolidated Edison

rested on a misreading of the legislative history: the

court relied on a passage that specifically discussed Section 113(f )(1), which (unlike Section 113(f )(3)(B)) is limited by its terms to suits under CERCLA. See 42

U.S.C. 9613(f )(1) (granting potential contribution right

“during or following any civil action under section 9606

of this title or under section 9607(a) of this title”). In a

subsequent case, the Second Circuit acknowledged that

15

“there is a great deal of force” to criticisms of Consolidated Edison “given the language of the statute.” Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc.,

596 F.3d 112, 126 n.15 (2d Cir. 2010).

Although the Second Circuit has not overruled Consolidated Edison, neither has it cited that holding since

its decision in Niagara Mohawk. Because the Second

Circuit has signaled its willingness to reconsider its outlier decision, this Court should deny the petition for a

writ of certiorari and allow an opportunity for the circuit conflict to resolve itself without the Court’s intervention.

2. The court of appeals’ determination that the

2004 consent decree “resolved” petitioner’s “liability”

for “some or all of a response action,” 42 U.S.C.

9613(f )(3)(B), likewise does not warrant this Court’s review.

a. Section 113(f )(3)(B) provides that “[a] person

who has resolved its liability to the United States or a

State for some or all of a response action * * * may

seek contribution.” 42 U.S.C. 9613(f )(3)(B). The “commonly understood meaning of ‘resolve’ is ‘to deal with

successfully,’ ‘reach a firm decision about,’ or to ‘work

out the resolution of ’ something.” Asarco, 866 F.3d at

1122. “Liability,” in turn, refers to the “quality, state,

or condition of being obligated or accountable.” Black’s

Law Dictionary (11th ed. 2019) (emphasis omitted).

And “response action” is a defined term in CERCLA.

See 42 U.S.C. 9601(24). Putting those elements together, Section 113(f )(3)(B) authorizes a contribution

action where an administrative or judicially approved

settlement determines a party’s legal obligation to undertake conduct that fits within CERCLA’s definition

of “response action.”

16

The court of appeals correctly held that the 2004 consent decree satisfies each of those elements. See Pet.

App. 18a-22a. The decree establishes petitioner’s legal

obligation to take specific steps to halt the discharge of

contaminants from the Ordot Dump. See p. 5, supra.

Those steps fall within CERCLA’s definition of “response action.” See p. 8, supra. Because the decree determines petitioner’s legal obligation to undertake response actions, it gives rise to a potential contribution

claim under Section 113(f )(3)(B).

b. Petitioner’s contrary arguments lack merit.

Petitioner asserts that the consent decree disclaims

“any finding or admission of liability against or by the

Government of Guam.” Pet. 31 (citation and emphasis

omitted). But petitioner’s invocation of that disclaimer

elides the key question: “liability for what?” Pet. App.

19a. The disclaimer makes clear that, by entering into

the settlement, petitioner was not admitting that it had

violated the CWA. But “section 113(f )(3)(B) kicks in

where a party has resolved its liability for ‘some or all

of a response action.’ ” Ibid. (citation omitted). Petitioner did not disclaim liability for a response action; to

the contrary, the decree’s “substantive provisions” require petitioner to undertake such actions. Id. at 24a.

Petitioner also emphasizes (Pet. 31-33) that, under

the decree, the United States’ CWA claims are not released until petitioner has fully complied with the decree’s requirements. Again, however, the question is

whether entry of the decree resolves petitioner’s liability for some or all of a response action, not whether it

immediately and definitively resolves the CWA claims.

The consent decree here resolved petitioner’s liability

for a response action by requiring petitioner to undertake such action.

17

Petitioner’s contrary reading would render the

three-year limitations period for Section 113(f ) contribution claims unworkable. That three-year period commences upon the “entry of a judicially approved settlement.” 42 U.S.C. 9613(g)(3)(B). If a consent decree did

not “resolve” liability until performance of the decree’s

requirements is complete, the limitations period might

begin to run, and in many cases would expire, before the

contribution claim accrued—an “absurd result” that

Congress could not have intended. Pet. App. 23a. Petitioner seeks to avoid that problem by arguing (Pet. 3233) that a consent decree that conditions a benefit on

performance of its terms will not give rise to a contribution right under Section 113(f )(3)(B) even after performance is complete. But that answer produces the same

anomalous result (denying contribution in cases involving settlements containing conditional releases) under

a different legal rationale. Under either theory, petitioner’s reading would “nullify section 113(f )(3)(B) in a

host of cases.” Pet. App. 23a.

Finally, petitioner emphasizes (Pet. 33-34) that the

consent decree here reserves the United States’ right

to bring claims unrelated to those raised in its CWA

complaint. That argument likewise fails to account for

the language of Section 113(f )(3)(B), which requires the

resolution of liability “for some or all of a response action.” 42 U.S.C. 9613(f )(3)(B). Notwithstanding the

United States’ reservation of the right to bring future

lawsuits against petitioner, under CERCLA or any

other statute, the consent decree settles petitioner’s obligation to undertake at least the particular response actions that are identified in the decree. See Pet. App.

21a.

18

c. Petitioner argues (Pet. 17-21) that the second

question presented is the subject of a circuit conflict.

Even if that were true, that question would not warrant

this Court’s review. The question presented principally

concerns the interpretation of the 2004 consent decree,

not the interpretation of CERCLA. Consent decrees

“have many of the attributes of ordinary contracts” and

“should be construed basically as contracts.” United

States v. ITT Continental Baking Co., 420 U.S. 223,

236-237 (1975). This Court ordinarily does not grant

certiorari to review decisions that apply general contract-law principles to specific contracts or consent decrees. See Sup. Ct. R. 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication

of a properly stated rule of law.”); United States v.

Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a

certiorari to review evidence and discuss specific

facts.”). In previous cases, the Court has declined to

review lower-court determinations that particular settlements did or did not resolve liability for a response

action within the meaning of Section 113(f )(3)(B). See

Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 135 S. Ct.

1161 (2015) (No. 14-575); Bankert v. Bernstein, 571 U.S.

1175 (2014) (No. 13-568).

In any event, petitioner’s assertion of a circuit conflict is inaccurate. This case concerns the interpretation

of a particular consent decree—the United States’ 2004

consent decree with petitioner. Petitioner does not argue that any other court of appeals has read that particular decree, or a materially identical decree, in a way

that conflicts with the decision below. Petitioner instead identifies (Pet. 22-24) certain provisions of this

decree and argues that other courts of appeals have

19

reached different results with respect to different decrees that contain similar provisions. That approach

overlooks the fundamental principle that the meaning

of a contract “is to be gathered, not from [a] single sentence [in isolation], but from the whole instrument read

in the light of the circumstances.” Miller v. Robertson,

266 U.S. 243, 251 (1924).

Petitioner asserts that the Sixth and Seventh Circuits have adopted a categorical rule that “a settlement

does not resolve liability for purposes of Section

113(f )(3)(B) ‘when (1) the settlement expressly states

that the defendant companies did not admit any liability

or the validity of EPA’s findings; and (2) the covenants

not to sue are not immediately effective, but instead are

conditional on complete performance of the terms of the

settlement.’ ” Pet. 18 (brackets, citation, and emphasis

omitted). That argument reflects a misreading of Sixth

and Seventh Circuit precedent.

Rather than adopting any categorical rule, the Sixth

and Seventh Circuits have held that the meaning and

legal effect of a consent decree turn on the details of

that particular decree. See Hobart Corp. v. Waste Management of Ohio, Inc., 758 F.3d 757, 770 (6th Cir. 2014)

(“[T]his court must look to the specific terms of an

agreement to determine whether it resolves a [potentially responsible party’s] liability * * * ‘The meaning

of any particular contract is to be determined on a caseby-case and contract-by-contract basis, pursuant to the

usual rules for interpreting written instruments.’ ”)

(brackets, citation, and ellipsis omitted), cert. denied,

135 S. Ct. 1161 (2015); Bernstein v. Bankert, 733 F.3d

190, 213 (7th Cir. 2013) (“Whether or not liability is resolved through a settlement simply is not the sort of

question which can or should be decided by universal

20

rule. Instead, it requires a look at the terms of the settlement on a case-by-case basis.”), cert. denied, 571 U.S.

1175 (2014). The Sixth Circuit has sometimes held that

a settlor had “resolved [its] liability” within the meaning

of Section 113(f )(3)(B) even though the settlement contained provisions similar to those on which petitioner

relies. See Florida Power Corp. v. FirstEnergy Corp.,

810 F.3d 996, 1017-1018 (2015) (Suhrheinrich, J., dissenting) (discussing cases); see Hobart, 758 F.3d at 769;

RSR Corp. v. Commercial Metals Co., 496 F.3d 552, 558

(6th Cir. 2007). The Seventh Circuit has declined to “focus on the presence or absence of an admission of liability,” Refined Metals Corp. v. NL Industries Inc., 937

F.3d 928, 931 (2019), explaining that this “is not the central inquiry,” ibid., and has held that a consent order

can resolve liability under Section 113(f )(3)(B) even if

the covenant not to sue is conditioned on satisfactory

performance, see NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682, 692 (2014).

The court below followed the same approach. Like

the Sixth and Seventh Circuits, the court acknowledged

that “ ‘[w]hether or not liability is resolved through a

settlement’ is unanswerable by a ‘universal rule;’ it instead requires examination of ‘the terms of the settlement on a case-by-case basis.’ ” Pet. App. 18a (citation

omitted). The court acknowledged that “a disclaimer of

liability may weigh against the conclusion that the parties intended to resolve liability within the meaning of

section 113(f )(3)(B).” Id. at 24a. The court concluded,

however, that the probative force of the disclaimer here

was outweighed by other provisions of the consent decree at issue in this particular case. Ibid.

21

Petitioner also argues (Pet. 19-20) that, with respect

to the significance of the 2004 consent decree’s reservation of the United States’ right to bring future claims

against petitioner, the decision below conflicts with the

Ninth Circuit’s decision in Asarco. But the Ninth Circuit, like the Sixth and Seventh Circuits, has declined to

adopt any categorical rule concerning the effect of such

a reservation on a potential contribution claim. Rather,

that court has held that the effect of such a reservation

“depends on a case-by-case analysis of a particular

agreement’s terms.” Asarco, 866 F.3d at 1125. In addition, the Ninth Circuit’s decision involved a decree

providing that the settling party would not be released

from any liability under any statute. See id. at 11261127. The decree in this case, by contrast, released petitioner from the claims asserted in the complaint, while

reserving the United States’ right to bring other, unrelated claims. Pet. App. 22a.

Contrary to petitioner’s assertion (Pet. 12), the

United States’ earlier briefing in support of certification for interlocutory appeal does not suggest that the

second question presented warrants this Court’s review. The district court denied the United States’ motion to dismiss in part because it believed that the 2004

consent decree was comparable to settlements discussed in the Sixth Circuit and Seventh Circuit decisions above, and it considered those courts’ analysis

persuasive. See Pet. App. 73a-85a. Accepting that

framing of the issues, the United States argued in its

motion requesting permission to take an interlocutory

appeal that tension exists between those Sixth and Seventh Circuit decisions and the Ninth Circuit’s analysis

in Asarco. See Pet. 12. In its merits briefing, however,

the United States made clear that, notwithstanding that

22

tension, the 2004 consent decree differs from the settlements at issue in those earlier cases. See U.S. Br. at 2526, 32-33, 37-39, Cooper Industries, supra (No. 02-192).

For that reason, the second question presented is not

the subject of a circuit conflict, and there is no sound

reason for this Court to review the court of appeals’

fact-bound decision regarding this specific settlement.

3. Petitioner asserts (Pet. 22-25) that granting review is necessary to prevent the United States from

evading its legal responsibilities under CERCLA. That

argument lacks merit.

During this litigation, the United States has not disputed that CERCLA provides a mechanism by which

petitioner could have sought to recover—either from

the United States or from any other potentially responsible party—a portion of its costs of complying with

the 2004 consent decree. The disagreement between

the parties concerns which of CERCLA’s remedial

mechanisms is available under circumstances like these.

The court of appeals agreed with the government that

petitioner’s claim is properly viewed as one for contribution; that Section 113(f )(3)(B) rather than Section

107(a)(4)(B) therefore provided the appropriate avenue

for relief; and that petitioner’s failure to bring suit

within three years after entry of the consent decree rendered its suit untimely under 42 U.S.C. 9613(g)(3)(B).

Those holdings will not insulate the United States from

potential liability in future cases where settling parties

assert their contribution claims in a timely manner.

And while petitioner emphasizes (Pet. 24-25) the casespecific consequences of the holding below, statutes of

limitations inherently carry the “potential for harsh results.” Dodd v. United States, 545 U.S. 353, 359 (2005).

23

Petitioner also fails to acknowledge its own responsibility for the Ordot Dump. Petitioner alleges that the

Navy disposed of waste at the site decades ago, but

since 1950, petitioner has used the site as a dumping

ground for municipal and industrial waste, converting

“[w]hat was once a valley” into a “mountain of trash.”

United States v. Government of Guam, No. 02-22, 2008

WL 216918, at * 1 (D. Guam Jan. 24, 2008). For decades,

petitioner avoided its obligations under environmental

laws, and it continued to avoid those duties for years after it entered into the 2004 consent decree. Ibid. Indeed, in 2008, the district court in Guam appointed a receiver to carry out petitioner’s responsibilities under

the decree, explaining that “there has been an historical

and present lack of commitment by the island’s leaders

in addressing this solid waste crisis.” United States v.

Government of Guam, No. 02-22, 2008 WL 732796, at *1

(D. Guam Mar. 17, 2008). Contrary to petitioner’s characterization (Pet. 25), this is not an exceptional case in

which this Court’s intervention is needed to prevent a

“grossly unfair” result.

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

JENNIFER SCHELLER NEUMANN

EVELYN YING

RACHEL HERON

Attorneys

DECEMBER 2020