Amicus Curiae Brief — Territory of Guam, Petitioner v. United States

No. 20-382

IN THE

Supreme Court of the United States

________________________________________

GOVERNMENT OF GUAM,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________________________________

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

________________________________________

BRIEF OF AMICI CURIAE STATES AND TERRITORIES

OF THE COMMONWEALTH OF THE NORTHERN

MARIANA ISLANDS, ALASKA, ARKANSAS, THE

DISTRICT OF COLUMBIA, DELAWARE, HAWAII,

IDAHO, ILLINOIS, INDIANA, IOWA, LOUISIANA,

MASSACHUSETTS, MICHIGAN, NEBRASKA, NEVADA,

NEW JERSEY, NEW MEXICO, NORTH DAKOTA, OHIO,

OREGON, RHODE ISLAND, SOUTH DAKOTA, UTAH,

VIRGINIA, WEST VIRGINIA, AND WYOMING

________________________________________

EDWARD E. MANIBUSAN

Attorney General

LILLIAN A. TENORIO

Deputy Attorney General

J. ROBERT GLASS, JR.

Chief Solicitor

ALISON M. NELSON

Asst. Attorney General

OFFICE OF THE

ATTORNEY GENERAL

Caller Box 10007, Capitol Hill

Saipan, MP 96950

JOSEPH S. DIEDRICH

Counsel of Record

KIRSTEN A. ATANASOFF

ERIC M. MCLEOD

HUSCH BLACKWELL LLP

33 E. Main St., 300

Madison, WI 53703

(608) 255-4440

joseph.diedrich

@huschblackwell.com

DAVID A. LOPEZ

HUSCH BLACKWELL LLP

13330 California St., 200

Omaha, NE 68154

JASON A. FLOWER

HUSCH BLACKWELL LLP

190 Carondelet Plaza, 600

St. Louis, MO 63105

Counsel for Amici Curiae (Listing Continued Inside)

ADDITIONAL COUNSEL

TREG R. TAYLOR

Attorney General of

Alaska

DANA NESSEL

Attorney General of

Michigan

LESLIE RUTLEDGE

Attorney General of

Arkansas

DOUGLAS J. PETERSON

Attorney General of

Nebraska

KARL A. RACINE

Attorney General of the

District of Columbia

AARON D. FORD

Attorney General of

Nevada

KATHLEEN JENNINGS

Attorney General of

Delaware

GURBIR S. GREWAL

Attorney General of

New Jersey

CLARE E. CONNORS

Attorney General of

Hawaii

HECTOR BALDERAS

Attorney General of

New Mexico

LAWRENCE G. WASDEN

Attorney General of

Idaho

WAYNE STENEHJEM

Attorney General of

North Dakota

KWAME RAOUL

Attorney General of

Illinois

DAVID A. YOST

Attorney General of

Ohio

THOMAS J. MILLER

Attorney General of

Iowa

ELLEN F. ROSENBLUM

Attorney General of

Oregon

THEODORE E. ROKITA

Attorney General of

Indiana

PETER F. NERONHA

Attorney General of

Rhode Island

JEFF LANDRY

Attorney General of

Louisiana

JASON R. RAVNSBORG

Attorney General of

South Dakota

MAURA HEALY

Attorney General of

Massachusetts

SEAN D. REYES

Attorney General of

Utah

MARK R. HERRING

Attorney General of

Virginia

PATRICK MORRISEY

Attorney General of

West Virginia

BRIDGET HILL

Attorney General of

Wyoming

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF THE ARGUMENT ............................ 3

ARGUMENT................................................................ 7

I. States’ interest in encouraging cleanup

supports limiting Section 113(f)(3)(B) to

CERCLA settlements that conclusively

resolve liability. ...................................................... 7

II. The decision below allows the United States

to evade liability and saddle individual

States with a disproportionate financial

burden................................................................... 12

III.For sites addressed by State regulators

under State law, the decision below

threatens to run roughshod over federalism. ..... 17

A. Consistent with federalism, CERCLA

preserves a substantial role for State law

to regulate cleanup and contribution. ............ 18

B. States approach cleanup and contribution

in varying ways, sometimes similarly to,

but often differently from, CERCLA. ............. 20

C. Interpreting Section 113(f)(3)(B) to reach

State-law settlements risks overriding

States’ preferred approaches. ......................... 24

CONCLUSION .......................................................... 28

ii

TABLE OF AUTHORITIES

Cases

Akzo Nobel Coatings, Inc. v. Aigner Corp.,

197 F.3d 302 (7th Cir. 1999).................................. 23

AmeriPride Servs. Inc. v. Tex. E. Overseas

Inc.,

782 F.3d 474 (9th Cir. 2015).................................. 23

Arizona v. United States,

567 U.S. 387 (2012) ................................................ 18

Atl. Research Corp. v. United States,

459 F.3d 827 (8th Cir. 2006),

aff’d, 551 U.S. 128 (2007) ........................ 5, 9, 14, 15

Atl. Richfield Co. v. Christian,

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

Burlington N. & Santa Fe Ry. Co. v. United

States,

556 U.S. 599 (2009) .................................................. 7

California v. ARC Am. Corp.,

490 U.S. 93 (1989) .................................................. 26

Chevron Mining Inc. v. United States,

863 F.3d 1261 (10th Cir. 2017).............................. 21

City of Fresno v. United States,

709 F. Supp. 2d 888 (E.D. Cal. 2010) .................... 14

CTS Corp. v. Waldburger,

573 U.S. 1 (2014)............................................ passim

Envtl. Transp. Sys., Inc. v. ENSCO, Inc.,

969 F.2d 503 (7th Cir. 1992).................................. 22

iii

Exxon Corp. v. Hunt,

475 U.S. 355 (1986) .................................................. 8

FMC Corp. v. U.S. Dep’t of Commerce,

29 F.3d 833 (3d Cir. 1994) ..................................... 16

Gen. Motors Corp. v. Hirschfield Steel Serv.

Ctr., Inc.,

402 F. Supp. 2d 800 (E.D. Mich. 2005) ................. 14

Great Lakes Dredge & Dock Co. v. Miller,

957 F.2d 1575 (11th Cir. 1992).............................. 23

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................................ 19

Hudson Distributors, Inc. v. Eli Lilly & Co.,

377 U.S. 386 (1964) .................................................. 7

Huron Portland Cement Co. v. City of Detroit,

Mich.,

362 U.S. 440 (1960) ............................................ 8, 18

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ............................................ 7, 11

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ............................................ 5, 18

Members of Beede Site Grp. v. Fed. Home

Loan, Mortg. Corp.,

968 F. Supp. 2d 455 (D.N.H. 2013) ....................... 25

Niagara Mohawk Power Corp. v. Chevron

U.S.A., Inc.,

596 F.3d 112 (2d Cir. 2010) ................................... 25

iv

Tenaya Assoc. Ltd. P’ship v. U.S. Forest Serv.,

No. CV–F–92–5375 REC, 1995 WL 433290

(E.D. Cal. May 19, 1993) ....................................... 14

The Durham Mfg. Co. v. Merriam Mfg. Co.,

128 F. Supp. 2d 97 (D. Conn. 2001) ...................... 25

Tosco Corp. v. Koch Indus., Inc.,

216 F.3d 886 (10th Cir. 2000)................................ 23

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ................................................ 14

United States v. Asarco Inc.,

214 F.3d 1104 (9th Cir. 2000)................................ 12

United States v. Atl. Research Corp.,

551 U.S. 128 (2007) ........................................ passim

United States v. Davis,

31 F. Supp. 2d 45 (D.R.I. 1998),

aff’d, 261 F.3d 1 (1st Cir. 2001) ............................. 22

United States v. Shell Oil Co.,

294 F.3d 1045 (9th Cir. 2002)................................ 16

W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc.,

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

Statutes and Regulations

33 U.S.C. § 1319 ........................................................ 15

42 U.S.C. § 9605 ........................................................ 21

42 U.S.C. § 9607 ................................................ passim

42 U.S.C. § 9613 ................................................ passim

42 U.S.C. § 9614 .................................................. 19, 26

42 U.S.C. § 9620 ........................................................ 14

v

42 U.S.C. § 9652 .................................................. 19, 26

42 U.S.C. § 9659 .................................................. 19, 26

Ariz. Rev. Stat. § 49-285(B)....................................... 22

Del. Code tit. 7, § 9105 .............................................. 22

Fla. Stat. § 403.727 ................................................... 22

Ga. Code § 12-8-96.1 .................................................. 22

Ky. Rev. Stat. § 224.1-400 ......................................... 22

Mich. Comp. Laws § 324.20126 ................................ 22

Mont. Code § 75-10-724 ............................................. 22

N.J. Nev. Stat. § 58:10-23.11f(a) ............................... 22

Or. Rev. Stat. § 465.257 ............................................ 22

40 C.F.R. Part 300 ..................................................... 21

Constitutional Provisions

U.S. Const. art. I § 8 .................................................. 16

U.S. Const. pmbl........................................................ 15

Treatises

2 RCRA and Superfund: A Practice Guide (3d

ed. 2020) ................................................................. 22

Restatement (Second) of Torts § 886A ..................... 23

Restatement (Second) of Torts § 929 ........................ 22

Restatement (Third) of Torts: Apportionment

of Liability § 17 ...................................................... 22

Other Authorities

Becky L. Jacobs, Basic Brownfields, 12 J. Nat.

Resources & Envtl. L. 265 (1997) .......................... 21

vi

Benjamin Niemark et al., The US Military Is

a Bigger Polluter Than More Than 100

Countries Combined, Quartz (June 28,

2019), https://bit.ly/2Zj3H96.................................. 13

Brief of Amici Curiae States of Washington et

al., United States v. Atl. Research Corp.,

551 U.S. 128 (2007) (No. 06-562) ........................ 1, 9

Brownfields Revitalization and

Environmental Restoration Act, S. Rep. No.

107-2 (2001)............................................................ 20

Envt. L. Inst., An Analysis of State Superfund

Programs: 50-State Study, 2001 Update

(2002) ...................................................................... 17

EPA, Overview of EPA’s Brownfields

Program, https://bit.ly/3qM3eIy (last

updated Feb. 5, 2021) ............................................ 21

EPA, Solid Waste And Emergency Response,

Publ. 9320.2-10FS, Pb95-963320, EPA

540/F-99/033, Clarifying The Definition Of

“Site” Under The National Priorities List

(1996) ...................................................................... 12

Gov’t Accountability Office, GAO-19-157SP,

High-Risk Series: Substantial Efforts

Needed to Achieve Greater Progress on

High-Risk Areas (2019).......................................... 14

Gov’t Accountability Office, GAO-13-633T,

Hazardous Waste Cleanup: Observations on

States’ Role, Liabilities at DOD and

Hardrock Mining Sites, and Litigation

Issues (2013) ..................................................... 13, 14

vii

Hearings Before the Subcomm. on Commerce,

Trade and Hazardous Materials of the Sen.

Comm. on Commerce (July 18, 1995),

(Serial No. 104-54) ................................................... 8

James Graziano & Pete Jamison, Better Safe

Than Sorry: CERCLA Contribution Actions

and the Operative Statute of Limitations,

N.J. Law., Oct. 2016 ................................................ 9

Jennifer Liss Ohayon, New Battlegrounds

Over Science, Risk, and Environmental

Justice: Factors Influencing the Cleanup of

Military Superfund Sites (2015)...................... 13, 14

Jonathan H. Adler, Jurisdictional Mismatch

in Environmental Federalism, 14 N.Y.U.

Envtl. L.J. 130 (2005) ............................................ 19

Kiersten E. Holms, This Land Is Your Land,

This Land Is Mined Land: Expanding

Governmental Ownership Liability Under

CERCLA, 76 Wash. & Lee L. Rev. 1013

(2019) ...................................................................... 15

Letter from Christine Todd Whitman, EPA, to

James M. Jeffords, United States Senate

(Oct. 4, 2001) .......................................................... 16

Michael P. Vandenbergh, The Private Life of

Public Law, 105 Colum. L. Rev. 2029 (2005) .......... 9

Michael W. McConnell, Federalism:

Evaluating the Founders’ Design, 54 U. Chi.

L. Rev. 1484 (1987) ................................................ 19

viii

Ronald G. Aronovsky, A Preemption Paradox:

Preserving the Role of State Law in Private

Cleanup Cost Disputes, 16 N.Y.U. Envtl.

L.J. 225 (2008) ............................................... passim

Superfund: Nat’l Priorities List,

https://bit.ly/3dp165R (last updated Feb. 10,

2021) ................................................................. 12, 13

Terry Anderson & P.J. Hill, Environmental

Federalism: Thinking Smaller, PS-8 PERC

Policy Series (1996)................................................ 19

4 William H. Rodgers, Jr., Environmental

Law: Hazardous Wastes and Substances

(1992 & Supp. 2007) .............................................. 21

1

INTEREST OF THE AMICI CURIAE1

Amici are several States and territories—the Commonwealth of the Northern Mariana Islands, Alaska,

Arkansas, the District of Columbia, Delaware, Hawaii,

Idaho, Illinois, Indiana, Iowa, Louisiana, the Commonwealth of Massachusetts, Michigan, Nebraska,

Nevada, New Jersey, New Mexico, North Dakota, Ohio,

Oregon, Rhode Island, South Dakota, Utah, the

Commonwealth of Virginia, West Virginia, and Wyoming—with compelling interests in supporting the

Government of Guam. To protect these interests, the

States2 ask the Court to interpret the Comprehensive

Environmental Response, Compensation, and Liability

Act (CERCLA) consistent with its text and purpose.

The decision below erroneously interprets CERCLA

and stands at odds with all States’ interests in at least

three ways.

First, States have an interest in encouraging timely

cleanup of contaminated sites within their borders.

This interest is best served through cooperation and

negotiation between regulators and responsible

parties—which, in turn, is incentivized when cooperating parties can recover costs from other responsible

parties. In United States v. Atlantic Research Corp.,

1 All parties consented to the filing of this brief. Nobody other than

amici authored this brief in any part or funded its preparation or

filing.

2 Despite varying formal political classifications (state, commonwealth, district, territory), this brief refers to all the amici using

the term “States.” Those varying classifications are immaterial to

this brief and this case.

2

551 U.S. 128 (2007), an expansive coalition of States as

amici curiae urged this Court to interpret CERCLA to

broadly permit cost-sharing among responsible parties.

See Brief of Amici Curiae States of Washington et al.,

551 U.S. 128 (2007) (No. 06-562). The Court agreed

with the States in that case. Again here, States as

amici ask the Court to broadly permit cost sharing, as

plainly envisioned by CERCLA’s text and purpose.

Second, States have an interest in ensuring the

United States pays its fair share. Often as a result of

military activity, the United States bears at least

partial responsibility for high-priority contaminated

sites in nearly every State. While federal use of land

inures to the benefit of all Americans, the decision

below allows the United States to dodge liability and

place an inequitable share of costs on individual States

and their residents.

Third, States have an interest in upholding their

preferred State-law approaches to cleanup and contribution. The decision below jeopardizes that interest by

raising the specter of preemption and upending

CERCLA’s “spirit of cooperative federalism.” Atl.

Richfield Co. v. Christian, 140 S. Ct. 1335, 1356 (2020)

(citation omitted).

Rooted in an interpretation of CERCLA incompatible with the statute’s text and purpose, the decision

below threatens to discourage cooperation and settlement, sanction the United States’ evasion of

responsibility, and override State law—all contrary to

States’ interests.

3

SUMMARY OF THE ARGUMENT

Reprising a theme this Court has “frequently grappled with” in the past, today’s case asks “whether and

how” parties responsible for contamination “may

recoup” cleanup costs from others. Atl. Research, 551

U.S. at 131. CERCLA sets forth two avenues for

recoupment: a generous “cost recovery” claim under

Section 107(a), and a more restrictive “contribution”

claim under Section 113(f). 42 U.S.C. §§ 9607(a),

9613(f); see Pet’r Br. 3–6. For present purposes, the

parties agree that these claims are mutually exclusive.

They also agree that a claim under Section 113(f)(3)(B)

is triggered when a regulator and a responsible party

enter into a settlement under CERCLA that conclusively resolves liability.

The parties diverge, however, over how wide Section 113(f)(3)(B)’s net casts. Defending the decision

below, the United States contends that Section

113(f)(3)(B) stretches to reach settlements under nonCERCLA law, as well as settlements that contain

limiting provisions such as a reservation-of-rights

clause. The Government of Guam, by contrast, maintains that CERCLA’s text and purpose require limiting

Section 113(f)(3)(B) to settlements under CERCLA that

conclusively resolve liability. For three reasons of

interest to States, Guam is correct.

First, States’ interest in encouraging cleanup of

contamination supports limiting Section 113(f)(3)(B) to

settlements under CERCLA that conclusively resolve

liability. Among States’ many duties to the public, few

rival protecting public health, stimulating economic

4

development, and safeguarding lands and waters.

These State interests align with CERCLA’s purpose

and are advanced when regulators and responsible

parties cooperatively negotiate and enter into settlements. Such settlements, in turn, are incentivized

when settling parties can recover costs from other

responsible parties.

The decision below, however, constricts parties’

ability to recover costs. Because “a party who may

bring” the more restrictive Section 113(f) action “must

use [that] action,” Pet. App. 10a–11a (citation omitted),

it follows that as more settlements are covered by

Section 113(f)(3)(B), the less available claims under

Section 107(a) become. The decision below overextends

Section 113(f)(3)(B) to cover settlements under nonCERCLA law and settlements with limiting provisions

that fail to conclusively resolve liability. As a result,

Section 113(f) claims are triggered—and Section 107(a)

claims are barred—for all those settling parties.

Whereas settling parties clean up contamination faster

and save themselves and regulators money, the

decision below perversely constrains their ability to

recover costs. Such constraint disincentivizes settlement and makes for slower, pricier cleanup contrary to

CERCLA’s purpose and antithetical to States’ interests.

Second, the decision below enables the United

States to evade CERCLA liability and saddle individual States with a disproportionate financial burden. At

160 high-priority sites across the country, the United

States shares at least partial responsibility for contamination. The lion’s share of this contamination is the

5

result of military activity, which leaves behind everything from gasoline to Agent Orange—and an

enormous cleanup bill to boot.

For all these sites, the United States acts in a “dual

role” as both “a liable party” under CERCLA and as the

law’s “primary enforcer.” Atl. Research Corp. v. United

States, 459 F.3d 827, 837 (8th Cir. 2006), aff’d, 551

U.S. 128 (2007). In this case, that dual role—together

with its treasure trove of non-CERCLA regulatory tools

and the D.C. Circuit’s expansive reading of Section

113(f)(3)(B)—allowed the United States to avoid

financial liability for cleanup. There is every reason to

believe that affirming the decision below could inspire

similar liability evasion in many other cases where the

United States shares responsibility. But that evasion is

hardly equitable, especially given how the United

States’ use of land (especially for military activity)

benefits all Americans, not just those living in the

particular State where the land is located.

Third, the decision below rings dissonantly with

fundamental principles of federalism. In the American

federal system, “States are independent sovereigns”

that maintain “great latitude” to regulate in areas of

traditional State concern. Medtronic, Inc. v. Lohr, 518

U.S. 470, 475, 485 (1996). Especially in environmental

matters, where respective States’ issues and needs

inevitably vary, federalism facilitates innovative

policymaking and boosts government accountability.

Honoring federalism’s principles, Congress enacted

CERCLA to “supplement”—not “supplant”—States’

traditional role in environmental regulation. Atl.

6

Richfield Co., 140 S. Ct. at 1363 (Gorsuch, J., concurring in part and dissenting in part).

Although the federal EPA takes an active role at

the most complex sites, States oversee efforts to clean

up the majority of the country’s contamination. In

addition to CERCLA, States enact and enforce their

own State-law cleanup and contribution regimes, under

which they may settle with responsible parties. Some

States’ laws closely track CERCLA, while others’ follow

a different path. State law, for instance, may differ

from CERCLA with regard to what costs a settling

party can recover from other responsible parties, how

recoverable costs are apportioned, and in numerous

other ways.

The D.C. Circuit’s misinterpretation of Section

113(f)(3)(B) extends far enough to reach settlements

entered into solely under State law. Because Section

113(f)(3)(B) claims are “governed by Federal law,” 42

U.S.C. § 9613(f)(3)(C), the decision below opens the

door to arguments that State law must yield to monolithic nationwide standards in a vast swath of cleanup

disputes. As a result, the decision threatens to chill

responsible parties’ willingness to cooperate and settle

with State regulators, thereby thwarting States’

interest in promoting quick and cost-effective cleanup.

CERCLA’s text and purpose furnish no evidence to

support the D.C. Circuit’s threatened preemption of

State law. Instead, CERCLA preserves a substantial

role for States to implement their own policies for

cleanup and contribution. And it leaves States ample

discretion to negotiate and settle with responsible

7

parties without necessarily implicating an entirely

different federal regime. The Court should reverse the

decision below.

ARGUMENT

I. States’ interest in encouraging cleanup

supports limiting Section 113(f)(3)(B) to

CERCLA settlements that conclusively resolve

liability.

A. Congress enacted CERCLA to combat “the serious environmental and health risks posed by industrial

pollution.” Burlington N. & Santa Fe Ry. Co. v. United

States, 556 U.S. 599, 602 (2009). The Act seeks “to

promote the timely cleanup of hazardous waste sites

and to ensure that the costs of such cleanup efforts

[are] borne by those responsible for the contamination.” Atl. Richfield, 140 S. Ct. at 1345 (quoting CTS

Corp. v. Waldburger, 573 U.S. 1, 4 (2014)). CERCLA

incentivizes parties to “assume the financial responsibility of cleanup” by providing mechanisms for such

parties to “seek recovery from others.” Key Tronic Corp.

v. United States, 511 U.S. 809, 819 n.13 (1994). Where,

as here, “statutory language and the legislative history

clearly indicate the purpose of Congress,” “that purpose

must be upheld.” Hudson Distributors, Inc. v. Eli Lilly

& Co., 377 U.S. 386, 395 (1964); see also W.R. Grace &

Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 94 (2d Cir.

2009) (declaring that CERCLA’s “text . . . mandates a

statutory interpretation that also supports the[se]

principal congressional concerns”).

Unsurprisingly, States’ interests align with

CERCLA’s purpose. States have a profound interest in

8

encouraging expeditious cleanup of contaminated sites

within their borders. As traditional advocates for their

residents’ health, States have an interest in eliminating hazardous substances, many of which “are

carcinogens with latency periods for the appearance of

injury or disease likely to run for thirty years or more.”

CTS Corp., 573 U.S. at 22–23 (Ginsburg, J., dissenting)

(internal quotations and alterations omitted). As

regulators of real property, States are duly concerned

with maintaining property values and supporting

economic development and redevelopment. See, e.g.,

Exxon Corp. v. Hunt, 475 U.S. 355, 378 n.4 (1986)

(Stevens, J., dissenting). And, as protectors of natural

resources, States have an interest in preserving the

integrity of their lands and waters. See, e.g., Huron

Portland Cement Co. v. City of Detroit, Mich., 362 U.S.

440, 442 (1960).

B. Both CERCLA’s purpose and States’ corresponding interests are advanced by cooperative negotiation

between regulators and responsible parties. Cf. Hearings Before the Subcomm. on Commerce, Trade and

Hazardous Materials of the Sen. Comm. on Commerce

(July 18, 1995), (Serial No. 104-54) (statement of EPA

Assistant Administrator Steven A. Herman)

(“[R]esponsible parties play a vital, and in our view,

irreplaceable role in cleaning up the nation’s Superfund sites.”). Such cooperation by responsible parties,

in turn, flourishes when responsible parties have

maximal ability under the statute to recover costs from

other responsible parties. Conversely, the harder it is

for responsible parties to recover costs, the less incentive they have to cooperate with regulators. And that

9

means “fewer Superfund cleanup actions will occur,”

with “the public fisc [] bear[ing] the enforcement costs

of those that do.” Michael P. Vandenbergh, The Private

Life of Public Law, 105 Colum. L. Rev. 2029, 2089–90

(2005).

Generally speaking, Section 107(a) affords a greater

possibility of recovery than does Section 113(f). As

highlighted in this case, a core difference between the

sections (though not the only one) is their respective

statutes of limitations. Not only is Section 107(a)’s

limitations period twice as long, but “there can [also] be

very different timing regarding when the statute of

limitations begins to run.” James Graziano & Pete

Jamison, Better Safe Than Sorry: CERCLA Contribution Actions and the Operative Statute of Limitations,

N.J. Law., Oct. 2016, at 24, 26–27; compare 42 U.S.C.

§ 9613(g)(2)(B) with id. § 9613(g)(3)(B).

In Atlantic Research, where the question was

whether responsible parties could ever rely on Section

107(a), a diverse coalition of 38 States, the District of

Columbia, and the Commonwealth of Puerto Rico

argued that “[a]llowing liable persons to pursue cost

recovery claims under Section 107(a)(4)(B) advances

CERCLA’s purpose.” Brief of Amici Curiae States of

Washington et al. at 16, United States v. Atl. Research

Corp., 551 U.S. 128 (2007) (No. 06-562). Restricting

Section 107(a)’s availability, by contrast, “frustrates

CERCLA’s fundamental plan of promoting cleanups by

allowing equitable sharing of cleanup costs[,]” id. at 16,

and leaves more “contaminated property” “unused and

unproductive” for a “longer time[,]” id. at 3. This Court

agreed with the States in Atlantic Research, interpret-

10

ing Section 107(a) broadly enough to provide a cause of

action in that case. 551 U.S. at 141. With the same

concerns in play yet again, the States as amici here

seek to maintain the broad availability of Section

107(a) claims compelled by CERCLA’s text and purpose.

C. Assuming for argument’s sake that Sections

107(a) and 113(f) are “mutually exclusive” and that “a

party who may bring a [Section 113(f)] action . . . must

use [that] action,” Pet. App. 10a–11a (citation omitted),

Section 113(f) claims and Section 107(a) claims have an

inverse relationship. As Section 113(f)’s applicability

grows, Section 107(a)’s shrinks. One event that triggers

a Section 113(f) claim is the entry of an “administrative

or judicially approved settlement” that “resolve[s] . . .

liability.” 42 U.S.C. § 9613(f)(3)(B). Consequently,

drawing more settlements—such as non-CERCLA

settlements or settlements that fail to conclusively

resolve liability—into Section 113(f)(3)(B)’s orbit

concomitantly limits the availability of claims under

Section 107(a).

States and their residents frequently enter into

environmental settlements with the United States.

These settlements may require various actions to

protect human health and the environment under the

authority of statutes other than CERCLA, including

the Clean Water Act (CWA), the Resource Conservation and Recovery Act, the Safe Drinking Water Act, or

other federal law. States also enter into environmental

settlements with their respective residents under State

law. Whether under federal or State law, moreover,

settlements often include limiting provisions (including

11

liability disclaimers, conditional releases, reservationof-rights clauses, and the like) that withhold conclusive

resolution of liability. According to the logic of the

decision below, any of these settlements—under nonCERCLA federal law, under State law, or with limiting

provisions—can trigger Section 113(f)(3)(B).

By interpreting Section 113(f)(3)(B) to encompass

non-CERCLA settlements and settlements that fail to

conclusively resolve liability—thus triggering a Section

113(f) claim and barring a Section 107(a) claim—the

decision below curbs settling parties’ ability to “seek

recovery from others.” Key Tronic, 511 U.S. at 819 n.13.

Yet it is settling parties who “save[] [themselves] and

the government litigation costs, and presumably also

limit[] ongoing contamination by promptly remediating

the site.” W.R. Grace, 559 F.3d at 94. Answering such

positive cooperative behavior by restricting cost

recovery disincentivizes cooperation and settlement.

See id. (“To disallow a party who has entered into [a

settlement with a regulator] to seek recovery of

expenditures from other [responsible parties] would

discourage cooperation with [regulators].”). Lesser

cooperation and fewer settlements, in turn, tend to

delay cleanup efforts and increase their overall cost.

Lingering contamination harms the environment,

negatively affects public health, inhibits economic

development, and depletes public resources.

There is “no basis”—textual, purposive, or otherwise—to “interpret[] CERCLA in a way that would

discourage parties from entering agreements . . . to

ensure a proper cleanup.” Id. at 90, 95. But that has

not stopped the United States from inviting this Court

12

to indulge in peak irony: adopt an interpretation of

CERCLA (designed to help the environment) that

allows environmental settlements (intended to help the

environment) to undermine CERCLA’s purpose

(thereby harming the environment). Because it compromises incentives for responsible parties to

cooperate, settle, and promptly clean up contaminated

sites, the Court should rebuff the United States’

invitation.

II. The decision below allows the United States

to evade liability and saddle individual States

with a disproportionate financial burden.

In this case, the United States unquestionably contributed to contamination at a site that needs to be

remediated. Yet, if the Court accepts the United States’

arguments, the Government of Guam will be forced to

pay the entire cost of the cleanup, and the United

States will get off scot-free. Unfortunately, Guam’s

situation is hardly unique.

A. Federal sites—sites where the United States

bears at least some responsibility for contamination—

exist in nearly every state and territory. See Superfund: Nat’l Priorities List, https://bit.ly/3dp165R (last

updated Feb. 10, 2021); see also EPA, Solid Waste And

Emergency Response, Publ. 9320.2-10FS, Pb95-963320,

EPA 540/F-99/033, Clarifying The Definition Of “Site”

Under The National Priorities List (1996), available at

https://bit.ly/3dCMwrD. Indeed, there are 160 current

or proposed federal sites on the EPA’s National Priorities List (NPL), “a list of the most contaminated sites

in the nation.” United States v. Asarco Inc., 214 F.3d

13

1104, 1104 (9th Cir. 2000); see Superfund: Nat’l

Priorities List, https://bit.ly/3dp165R (last updated Feb.

10, 2021). The great majority of these sites are the

responsibility of the Department of Defense, one of the

world’s largest polluters. See Gov’t Accountability

Office, GAO-13-633T, Hazardous Waste Cleanup:

Observations on States’ Role, Liabilities at DOD and

Hardrock Mining Sites, and Litigation Issues 9 (2013)

[hereinafter GAO-13-633T]; see also Benjamin Niemark et al., The US Military Is a Bigger Polluter Than

More Than 100 Countries Combined, Quartz (June 28,

2019), https://bit.ly/2Zj3H96.

Military sites “represent some of the largest [and]

most severely contaminated” sites in the country,

accounting for “millions of acres” of polluted soil and

water. Jennifer Liss Ohayon, New Battlegrounds Over

Science, Risk, and Environmental Justice: Factors

Influencing the Cleanup of Military Superfund Sites 34

(2015), available at https://bit.ly/3qD5BgI; GAO-13633T, supra, at 9–10. This extensive pollution directly

affects many Americans. Nearly 10-percent of the

country’s population, in fact, lives as close as 10 miles

to an NPL-listed military site. Ohayon, supra, at 4.

Comprised of myriad substances—from conventional

industrial products like fuels and solvents, to unexploded ordnance, to napalm and Agent Orange—

contamination at military sites often proves uniquely

dangerous to human health. See id. at 1, 7; GAO-13633T, supra, at 9–10. It makes sense, then, that

military NPL sites are among the most costly to

remediate, with a “daunting” estimated price tag in the

hundreds of billions of dollars. Ohayon, supra, at 7–8.

14

Tacking on sites controlled by the Department of

Energy (the federal government’s other principal

polluter) and all other federal sources, the United

States’ liability totals approximately $500 billion. See

Gov’t Accountability Office, GAO-19-157SP, High-Risk

Series: Substantial Efforts Needed to Achieve Greater

Progress on High-Risk Areas 138 (2019).

B. For all federal NPL sites, the United States occupies odd territory under CERCLA, playing a “dual

role” as both “a liable party” and the law’s “primary

enforcer.” Atl. Research, 459 F.3d at 837, aff’d 551 U.S.

128. At the same time, the United States cannot be

held liable under most non-CERCLA law, such as the

CWA. Compare 42 U.S.C. § 9620 with 33 U.S.C. § 1319;

see U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 624

(1992).3 The interaction of these differing liability

schemes can lead to incongruous results, as this case

ably demonstrates. The United States chose to regulate

the Ordot Dump and settle with Guam under the CWA,

making no mention of CERCLA. Now that Guam has

invoked CERCLA against the United States, however,

the latter argues that the CWA-only settlement

3 Although Section 120(a)(4) subjects the United States to liability

under State cleanup law, courts have generally agreed that that

section applies only to sites currently—but not formerly—owned

or operated by the United States. See, e.g., City of Fresno v. United

States, 709 F. Supp. 2d 888, 909 (E.D. Cal. 2010); Gen. Motors

Corp. v. Hirschfield Steel Serv. Ctr., Inc., 402 F. Supp. 2d 800, 804

(E.D. Mich. 2005). But see Tenaya Assoc. Ltd. P’ship v. U.S. Forest

Serv., No. CV–F–92–5375 REC, 1995 WL 433290 (E.D. Cal. May

19, 1993).

15

triggered Guam’s sole—and conveniently now-stale—

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

Just like in Atlantic Research (where the United

States was sued by a co-responsible party under

CERCLA for its role in contamination at a military

site), the United States here proffers a reading of

CERCLA that would exploit its “dual role” to “insulate

itself from responsibility for its own pollution.” 459

F.3d at 837, aff’d 551 U.S. 128; see also Kiersten E.

Holms, This Land Is Your Land, This Land Is Mined

Land: Expanding Governmental Ownership Liability

Under CERCLA, 76 Wash. & Lee L. Rev. 1013, 1065

(2019) (“[T]he United States has made numerous

attempts to elude CERCLA liability.”). Choosing to

regulate and settle claims under non-CERCLA law,

such as the CWA, is of course the United States’

prerogative. But the fact that the United States

specifically chose to rely on non-CERCLA law here,

when it could have relied on CERCLA, counsels

against accepting its premise that non-CERCLA

settlements trigger a Section 113(f)(3)(B) claim.

C. Interpreting Section 113(f)(3)(B) to reach nonCERCLA settlements would allow the United States to

sidestep liability for many other sites where it shares

responsibility, leaving the financial burden to fall

entirely on unlucky parties like Guam. But federal use

of land—especially for military activity—inures to the

benefit of all Americans, not just those living in the

particular State where the land is located. See, e.g.,

U.S. Const. pmbl. (establishing the United States to

“provide for the common defense”); id. art. I § 8. To

that end, CERCLA’s equitable purpose of “ensur[ing]

16

that the costs of [] cleanup efforts [are] borne by those

responsible for the contamination,” Atl. Richfield, 140

S. Ct. at 1345 (citation omitted) (alteration in original),

supports interpreting CERCLA to call upon all American taxpayers to contribute to cleanup costs, see United

States v. Shell Oil Co., 294 F.3d 1045, 1060 (9th Cir.

2002) (“[C]leanup costs are properly seen as part of the

war effort for which the American public as a whole

should pay.”); FMC Corp. v. U.S. Dep’t of Commerce, 29

F.3d 833, 846 (3d Cir. 1994) (explaining that holding

the United States liable under CERCLA “simply places

a cost of war on the United States, and thus on society

as a whole,” a result “neither untoward nor inconsistent with the policy underlying CERCLA”). Obliging

any particular State or its residents to shoulder a

disproportionate share of such of cleanup costs, by

contrast, would be inequitable.

Ultimately, any interpretation of CERCLA that

leaves a responsible party—like the United States

here—to “bear no[ne]” of the cleanup costs, while

placing all those costs on the party that “actually

consented without litigation to remediate a contaminated site,” would upend CERCLA’s manifest purpose.

W.R. Grace, 559 F.3d at 95; see supra p. 7. States—and

all Americans—“rightfully expect” the United States

Government “to abide by the same environmental laws

and standards” as everybody else. Letter from Christine Todd Whitman, EPA, to James M. Jeffords, United

States Senate (Oct. 4, 2001), available at

https://bit.ly/37usrj4. The Court should therefore adopt

Guam’s reading of CERCLA, which comports with the

17

statute’s text, its purpose, and States’ interests by

ensuring the United States pays its fair share.

III. For sites addressed by State regulators

under State law, the decision below threatens

to run roughshod over federalism.

This case implicates federalism and respect for

State sovereignty. See Pet’r Br. 27–29. Consistent with

federalism, CERCLA preserves a substantial role for

States to regulate in their traditional areas of concern.

States routinely fulfill this role, tailoring policies to fit

their particular circumstances and needs. Starting

with common law and supplementing with legislation

and regulation as appropriate, States have developed

diverse approaches to environmental cleanup and

contribution. Some States’ laws resemble CERCLA;

others’ differ greatly. See generally Envt. L. Inst., An

Analysis of State Superfund Programs: 50-State Study,

2001

Update

(2002),

available

at

https://bit.ly/3ussMN0. Enforcing their respective laws,

States negotiate and settle with responsible parties.

Settling responsible parties often then bring State-law

claims against other responsible parties to recover a

portion of their costs.

The decision below, however, misreads CERCLA

and encroaches on the domain of State law. If, as the

D.C. Circuit held, settlements “never mention[ing]

CERCLA” can trigger a Section 113(f)(3)(B) claim, Pet.

App. 18a, then that section could even reach settlements solely under State law. Because Section

113(f)(3)(B) claims are “governed by Federal law,” 42

U.S.C. § 9613(f)(3)(C), the availability of that federal

18

claim raises the specter of preemption. But the D.C.

Circuit’s preemption-baiting interpretation finds no

support in CERCLA’s text or purpose. To the contrary,

bedrock principles of federalism implore this Court to

reverse the decision below.

A. Consistent with federalism, CERCLA preserves a substantial role for State law to

regulate cleanup and contribution.

“Federalism, central to the constitutional design,

adopts the principle that both the National and State

Governments have elements of sovereignty the other is

bound to respect.” Arizona v. United States, 567 U.S.

387, 398 (2012). Because “States are independent

sovereigns in our federal system,” they have “great

latitude” in exercising their police powers to regulate in

areas of traditional State concern. Medtronic, 518 U.S.

at 475, 485. Among these areas, perhaps none are more

vital than the protection of the public health and the

land and natural resources within a State’s borders.

Huron Portland Cement, 362 U.S. at 442 ; accord Atl.

Richfield, 140 S. Ct. at 1362 (Gorsuch, J., dissenting)

(“[T]he regulation of real property and the protection of

natural resources is a traditional and central responsibility of state governments.”). To operationalize

federalism’s envisioned balance of power, this Court

“presume[s] that Congress does not cavalierly pre-empt

state-law causes of action” or displace State laws’

distinct contours. Medtronic, 518 U.S. at 485.

Especially in environmental matters, federalism

serves many salutary purposes. Environmental issues

and needs inevitably vary by State, and federalism

allows for policymaking “sensitive to the diverse needs

19

of a heterogenous society.” Gregory v. Ashcroft, 501

U.S. 452, 458 (1991). Capitalizing on that diversity and

heterogeneity, federalism inspires innovation and

experimentation in governance. See id.; Jonathan H.

Adler, Jurisdictional Mismatch in Environmental

Federalism, 14 N.Y.U. Envtl. L.J. 130, 137 (2005). And

“by putting the States in competition for a mobile

citizenry,” federalism fosters government responsiveness and accountability. Gregory, 501 U.S. at 458; see

Michael W. McConnell, Federalism: Evaluating the

Founders’ Design, 54 U. Chi. L. Rev. 1484, 1491–1511

(1987). It thus comes as no surprise that States have a

“rich history” of “solving resource and environmental

problems.” Terry Anderson & P.J. Hill, Environmental

Federalism: Thinking Smaller, PS-8 PERC Policy

Series 10 (1996), available at https://bit.ly/2Md9UjW.

Through a framework of “cooperative federalism,”

CERCLA “supplement[s]”—but does not “supplant”—

States’ traditional role in environmental regulation.

Atl. Richfield, 140 S. Ct. at 1356 (citation omitted); id.

at 1363 (Gorsuch, J., concurring in part and dissenting

in part); see 42 U.S.C. §§ 9614(a), 9652(d), 9659(h)

(savings clauses); Pet’r Br. 27–29. Indeed, “[i]t is wellsettled that Congress did not expressly or impliedly

intend by enacting CERCLA to displace state law and

occupy the field of contaminated site remediation.”

Ronald G. Aronovsky, A Preemption Paradox: Preserving the Role of State Law in Private Cleanup Cost

Disputes, 16 N.Y.U. Envtl. L.J. 225, 277 (2008). To that

end, fundamental principles of American federalism

“counsel[] against reading” CERCLA in a way that

“restrict[s]” States’ authority to regulate cleanup and

20

contribution in the way they choose. CTS Corp., 573

U.S. at 12, 18.

B. States approach cleanup and contribution

in varying ways, sometimes similarly to,

but often differently from, CERCLA.

Sites listed on the EPA’s National Priorities List

(NPL)—including federal military sites like the Ordot

Dump—are often the most polluted and complex. See

supra pp. 12–14. Yet the overwhelming majority of the

country’s hundreds of thousands of contaminated sites

neither appear on the NPL nor feature the EPA’s

involvement. Instead, State regulators oversee cleanup

efforts in most cases. See, e.g., Brownfields Revitalization and Environmental Restoration Act, S. Rep. No.

107-2, at 15 (2001).

Although States can and do regulate directly under

CERCLA, 42 U.S.C. § 9607(a)(4)(A), they also enact

and enforce their own cleanup and contribution

regimes, see, e.g., W.R. Grace, 559 F.3d at 94–95. State

regulators enter into settlements with responsible

parties under State law, after which those settling

parties invoke State law to recover costs from other

responsible parties. Sometimes State statutory and

common law mimics or resembles CERCLA; other

times it “embrace[s] alternative policy choices for

cleaning up contaminated property.” Aronovsky, supra,

at 228; see W.R. Grace, 559 F.3d at 94 (observing that

the law governing environmental cleanup disputes

“will undoubtedly vary from state to state and be

subject to internal state modifications”). A sampling of

comparisons follows.

21

First, State law may differ from CERCLA with respect to what costs are recoverable. Under Section

113(f)(3)(B), a responsible party can recover costs only

if they were incurred consistent with the National

Contingency Plan (NCP). Chevron Mining Inc. v.

United States, 863 F.3d 1261, 1269 (10th Cir. 2017).

The NCP is a set of “methods,” “criteria,” “standards,”

and “procedures” that requires, among other things,

multiple detailed reports and public comment. 42

U.S.C. § 9605(a); see 40 C.F.R. Part 300. Intended

primarily for NPL sites, the NCP’s “cumbersome,”

“costly,” and “complex” requirements can add years to

the cleanup process. Becky L. Jacobs, Basic Brownfields, 12 J. Nat. Resources & Envtl. L. 265, 270 (1997);

accord 4 William H. Rodgers, Jr., Environmental Law:

Hazardous Wastes and Substances § 8.9 (1992 & Supp.

2007). For smaller, less complex sites—including the

nearly half-million “brownfield” sites vital for urban

redevelopment—the costs of NCP consistency often

outweigh the benefits. See EPA, Overview of EPA’s

Brownfields Program, https://bit.ly/3qM3eIy (last

updated Feb. 5, 2021); Aronovsky, supra, at 267–68.

States have taken varying approaches to whether

NCP consistency is required to recover costs. Some

have enacted cleanup programs that follow CERCLA

and limit recoverable costs to those incurred consistent

with the NCP. E.g., Ky. Rev. Stat. § 224.1-400; N.J.

Rev. Stat. § 58:10-23.11f(a)(3). In many other States,

however, settling responsible parties can recover

cleanup costs regardless of NCP consistency. E.g., Ariz.

Rev. Stat. § 49-285(B); Del. Code tit. 7, § 9105; Fla.

Stat. § 403.727; Ga. Code § 12-8-96.1; Mich. Comp.

22

Laws § 324.20126; Mont. Code § 75-10-724; Or. Rev.

Stat. § 465.257.

In addition, under Section 113(f)(3)(B), responsible

parties can recover only past costs already incurred;

any prospective relief is declaratory. See 42 U.S.C.

§§ 9607(a)(4)(B), 9613(g)(2). States, by contrast, often

authorize recovery of future costs. See, e.g., Restatement (Second) of Torts § 929.

Second, State law may differ from CERCLA regarding how recoverable costs are apportioned. In Section

113(f) cases, federal courts have developed an extensive

body of equitable factors for apportioning costs. See,

e.g., Envtl. Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d

503, 508 (7th Cir. 1992); United States v. Davis, 31 F.

Supp. 2d 45, 63 (D.R.I. 1998), aff’d, 261 F.3d 1 (1st Cir.

2001). See generally 2 RCRA and Superfund: A Practice

Guide §§ 12:69–12:74 (3d ed. 2020). States adhere to

varying common-law principles and statutory schemes

for apportioning costs among responsible parties. See

generally Restatement (Third) of Torts: Apportionment

of Liability § 17 cmt. a; Aronovsky, supra, at 322 n.434

(collecting authorities).

Third, States and federal courts may also credit

partial settlements differently. There are two primary

options: the “pro tanto” approach and the “pro rata” (or

“proportionate share”) approach. The pro tanto approach credits a partial settlement according to the

settlement amount; the pro rata approach credits a

partial settlement according to the amount of the

settling party’s responsibility. See, e.g., Great Lakes

Dredge & Dock Co. v. Miller, 957 F.2d 1575, 1579 (11th

23

Cir. 1992) (illustrating approaches).4 In Section 113(f)

cases, federal courts have split over which approach—

pro tanto, pro rata, or leaving the choice within the

district court’s discretion—governs partial settlement

credit. See, e.g., AmeriPride Servs. Inc. v. Tex. E.

Overseas Inc., 782 F.3d 474, 487–88 (9th Cir. 2015);

Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 897

(10th Cir. 2000); Akzo Nobel Coatings, Inc. v. Aigner

Corp., 197 F.3d 302, 307–08 (7th Cir. 1999). States,

likewise, have adopted varying approaches to crediting

partial settlements in State-law actions, with some

favoring pro tanto, others endorsing pro rata, and still

others backing different methods. See generally

Restatement (Second) of Torts § 886A cmt. m.

Fourth, States may elect to depart from CERCLA

and from each other with regard to contribution

protection. Under CERCLA, a responsible party that

settles with a regulator receives protection from

contribution liability. See 42 U.S.C. § 9613(f)(2)

(declaring that a settling party “shall not be liable for

claims for contribution regarding matters addressed in

4 Imagine, for instance, a contaminated site with three responsible

parties—A, B, and C, all equally responsible—and a total cleanup

cost of $120 million. Suppose A settles with a regulator, cleans up

the site, and sues B and C for contribution. Next, suppose A and B

settle at the beginning of trial for $30 million, after which A

obtains an $80 million verdict ($120 million minus its own share

of responsibility). How much C owes A depends on the jurisdiction’s chosen approach to crediting partial settlements. Under the

pro tanto approach, A’s verdict is reduced by $30 million (B’s

settlement amount), and C owes A the $50 million balance. Under

the pro rata approach, A’s verdict is reduced by $40 million (B’s

share of responsibility), leaving C with a $40 million bill.

24

the settlement”). States may choose to offer identical

contribution protection, qualified or conditional

protection, or no protection at all.

Finally, States may select alternative statutes of

limitations. Section 113(f)(3)(B) has a three-year

limitations period, triggered by the “entry” of settlement. 42 U.S.C. § 9613(g)(3)(B). States may set a

longer or shorter period, triggered by any number of

events, such as the entry of settlement, notice of harm,

incurrence of costs, or completion of remediation.

C. Interpreting Section 113(f)(3)(B) to reach

State-law settlements risks overriding

States’ preferred approaches.

1. Contrary to federalism, the decision below could

be read to “restrict” States’ authority to regulate

environmental liability. CTS Corp., 573 U.S. at 12, 18.

Per the D.C. Circuit’s interpretation, Section

113(f)(3)(B) can reach non-CERCLA settlements. See

Pet. App. 18a (“We therefore conclude that a settlement agreement can trigger section 113(f)(3)(B) even if

it never mentions CERCLA.”). By this expansile logic,

not only can settlements under other federal law (such

as the CWA) trigger a Section 113(f)(3)(B) claim, but so

too could settlements entered into solely under State

law. “[A] party who may bring a [Section 113(f)] action”

“must” bring that action, Pet. App. 10a–11a (citation

omitted),5 and Section 113(f)(3)(B) claims are “governed

5 This Court has never addressed whether or to what extent a

Section 113(f)(3)(B) claims preempts a State-law contribution

claim. Some lower courts have held that, at least in some

(footnote continued)

25

by Federal law,” 42 U.S.C. § 9613(f)(3)(C). The decision

below, then, opens the door to arguments that all the

unique State-law approaches catalogued above simply

vanish upon entry of a settlement.

For instance, interpreting Section 113(f)(3)(B) to

reach State-law settlements could oust States’ individualized approaches to the NCP. Even if a particular

State chooses to allow responsible parties to recover all

costs, the decision below could be read as disregarding

that choice in favor of a uniform federal standard

mandating NCP consistency. Never mind that “no

evidence” exists to suggest “Congress intended to make

the NCP the national model for toxic remediation

procedure.” Aronovsky, supra, at 293.

So, too, with future costs. The decision below could

limit recovery to only those costs already incurred (as

CERCLA dictates), even if State law would otherwise

permit recovery of future costs. Yet just like with NCP

circumstances, Section 113(f) preempts State law. See, e.g.,

Members of Beede Site Grp. v. Fed. Home Loan, Mortg. Corp., 968

F. Supp. 2d 455, 462 (D.N.H. 2013) (holding that “[p]laintiff’s

§ 113 claim under CERCLA preempts its state law claims”); cf.

Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d

112, 138 (2d Cir. 2010) (reasoning that CERCLA’s text “does not

compel the conclusion that Congress intended that parties who

have settled their CERCLA liability should have both a federal

and a state law based claim for recovery of the same response

expenditures”). But see, e.g., The Durham Mfg. Co. v. Merriam

Mfg. Co., 128 F. Supp. 2d 97, 103 (D. Conn. 2001) (holding that

plaintiff’s State-law statutory claim “is not preempted by

§ 113(f)(1)”). See generally Aronovsky, supra, at 308–21

(discussing Section 113(f)’s proper preemptive scope and collecting

cases).

26

consistency, no evidence evinces any Congressional

desire to displace State law on future costs. Cf. California v. ARC Am. Corp., 490 U.S. 93, 105 (1989)

(“Ordinarily, state causes of action are not pre-empted

solely because they impose liability over and above that

authorized by federal law.”).

Similar observations apply across the board. However federal courts resolve the circuit split over partial

settlement credit in Section 113(f) cases, the selection

of one (say, pro rata) could override the judgment of

States that have adopted the other (pro tanto). Likewise, the decision below could lock in Section 113(f)’s

specific approaches to apportionment, contribution

protection, limitations periods, and claim triggers.

Finally, by interpreting Section 113(f)(3)(B) such

that it could reach State-law settlements, the decision

below potentially excludes State courts as a venue.

Federal courts have exclusive jurisdiction over all

CERCLA claims, meaning a party cannot bring a

Section 113(f)(3)(B) claim in State court. 42 U.S.C.

§ 9613(b). Although State-law claims to recover costs

can be brought in State court, that option disappears if

those State-law claims are superseded by Section

113(f)(3)(B).

2. Nothing in CERCLA’s text or purpose countenances the D.C. Circuit’s threatened displacement of

State law. To the contrary, CERCLA’s multiple savings

clauses expressly leave “States’ judgments about

causes of action” and “the scope of liability” wholly

“untouched.” CTS Corp., 573 U.S. at 12, 18; see 42

U.S.C. §§ 9614(a), 9652(d), 9659(h). Simply put,

27

contribution under Section 113(f)(3)(B) is “derivative of

federal (CERCLA) liability, not state law liability.”

Aronovsky, supra, at 314–16 & n.406.

Importantly, not only does the decision below risk

overriding State law in a doctrinal sense, but it also

promises to influence how State regulators and responsible parties cooperate. Knowing that State-law

settlements with State regulators trigger a Section

113(f)(3)(B) claim may alter both States’ and responsible parties’ calculus for negotiating and structuring

settlements. Suppose, for example, that a responsible

party owns a contaminated site in a State where State

law permits recovery of costs regardless of NCP

consistency. If settling with State regulators under

State law would trigger a Section 113(f)(3)(B) claim,

thereby limiting recovery to NCP-consistent costs,

settlement may become comparatively less attractive.

Contrary to the D.C. Circuit’s view, there is simply

“no basis” to “interpret[] CERCLA in a way that would

discourage parties from entering agreements with the

states to ensure a proper cleanup.” W.R. Grace, 559

F.3d at 90, 95. Instead, consistent with CERCLA’s text

and “spirit of cooperative federalism,” Atl. Richfield,

140 S. Ct. at 1356 (citation omitted), States should be

able to experiment with policies directed at cleanup

and contribution. They should be able to implement

those policies by negotiating and structuring settlements under State law. And they should be able to do

all that without unwarranted—and textually indefensible—federal intrusion. Guam’s reading of Section

113(f)(3)(B), with its “limited view” of CERCLA’s

preemptive potential, “encourages voluntary cleanups

28

by promoting litigation efficiency and remedial flexibility, and respects the role of state environmental and

[contribution] law in a federalist system.” Aronovsky,

supra, at 230. To enforce federalism’s demands and

reinforce its positive effects, the Court should reverse

the decision below.

CONCLUSION

The Court should reverse the judgment of the court

of appeals.

Respectfully submitted,

EDWARD E. MANIBUSAN

Attorney General

LILLIAN A. TENORIO

Deputy Attorney General

J. ROBERT GLASS, JR.

Chief Solicitor

ALISON M. NELSON

Asst. Attorney General

OFFICE OF THE

ATTORNEY GENERAL

Caller Box 10007

Capitol Hill

Saipan, MP 96950

JASON A. FLOWER

HUSCH BLACKWELL LLP

190 Carondelet Plaza, 600

St. Louis, MO 63105

JOSEPH S. DIEDRICH

Counsel of Record

KIRSTEN A. ATANASOFF

ERIC M. MCLEOD

HUSCH BLACKWELL LLP

33 E. Main St., 300

Madison, WI 53703

(608) 255-4440

joseph.diedrich

@huschblackwell.com

DAVID A. LOPEZ

HUSCH BLACKWELL LLP

13330 California St., 200

Omaha, NE 68154

Counsel for Amici Curiae

(Listing Continued Next Page)

March 1, 2021

29

ADDITIONAL COUNSEL

TREG R. TAYLOR

Attorney General of

Alaska

DANA NESSEL

Attorney General of

Michigan

LESLIE RUTLEDGE

Attorney General of

Arkansas

DOUGLAS J. PETERSON

Attorney General of

Nebraska

KARL A. RACINE

Attorney General of the

District of Columbia

AARON D. FORD

Attorney General of

Nevada

KATHLEEN JENNINGS

Attorney General of

Delaware

GURBIR S. GREWAL

Attorney General of

New Jersey

CLARE E. CONNORS

Attorney General of

Hawaii

HECTOR BALDERAS

Attorney General of

New Mexico

LAWRENCE G. WASDEN

Attorney General of

Idaho

WAYNE STENEHJEM

Attorney General of

North Dakota

KWAME RAOUL

Attorney General of

Illinois

DAVID A. YOST

Attorney General of

Ohio

THOMAS J. MILLER

Attorney General of

Iowa

ELLEN F. ROSENBLUM

Attorney General of

Oregon

THEODORE E. ROKITA

Attorney General of

Indiana

PETER F. NERONHA

Attorney General of

Rhode Island

JEFF LANDRY

Attorney General of

Louisiana

JASON R. RAVNSBORG

Attorney General of

South Dakota

MAURA HEALY

Attorney General of

Massachusetts

SEAN D. REYES

Attorney General of

Utah

30

MARK R. HERRING

Attorney General of

Virginia

PATRICK MORRISEY

Attorney General of

West Virginia

BRIDGET HILL

Attorney General of

Wyoming