Petition for Writ of Certiorari — Georgia-Pacific Consumer Products LP, et al., Petitioners v. International Paper Company, Inc., et al.

Supreme Court briefSep 10, 2025

Ask Donna

What actually matters in this document.

Text

No. 25-___

IN THE

Supreme Court of the United States

GEORGIA-PACIFIC CONSUMER PRODUCTS LP, FORT

JAMES LLC, AND GEORGIA-PACIFIC LLC,

Petitioners,

INTERNATIONAL PAPER COMPANY

AND WEYERHAEUSER COMPANY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

AMANDA K. RICE

JONES DAY

150 W. Jefferson Ave.

Suite 2100

Detroit, MI 48226

MICHAEL R. SHEBELSKIE

DOUGLAS M. GARROU

GEORGE P. SIBLEY, III

HUNTON ANDREWS

KURTH LLP

951 East Byrd Street

East Tower

Richmond, VA 23219

NOEL J. FRANCISCO

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

SEAN P. TARANTINO

KOCH CAPABILITIES, LLC

4111 E. 37th Street N.

Wichita, KS 67220

Counsel for Petitioners

(Additional counsel listed on inside cover)

JOHN HENRY THOMPSON*

JONES DAY

1221 Peachtree St., NE

Suite 400

Atlanta, GA 30361

MATTHEW J. RUBENSTEIN

JONES DAY

90 South 7th Street

Suite 4950

Minneapolis, MN 55402

*Not admitted in Georgia.

Practicing under the

supervision of members

of the Georgia bar.

Additional Counsel for Petitioners

QUESTIONS PRESENTED

This case presents two questions that, separately

and together, have massive implications for the

allocation of Superfund site cleanup costs among

potentially responsible parties (“PRPs”) under the

Comprehensive

Environmental

Response,

Compensation, and Liability Act (“CERCLA”). They

are:

1. Does the theoretical availability of a

contribution action under CERCLA § 113(f) foreclose

recovery of costs under CERCLA § 107(a), even

where all of § 107(a)’s statutory criteria are satisfied?

2. Does a bare declaratory judgment that

determines liability but imposes no “costs” and

awards no “damages” count as a “judgment … for

recovery of such costs or damages” that triggers the

three-year statute of limitations for § 113(f) actions?

PARTIES TO THE PROCEEDING

Petitioners Georgia-Pacific Consumer Products

LP, Fort James LLC, 1 and Georgia-Pacific LLC

(collectively, “Georgia-Pacific”) were PlaintiffsAppellees in both Sixth Circuit proceedings below.

Respondent International Paper Company was a

Defendant-Appellant

both

Sixth

Circuit

proceedings below.

Respondent Weyerhaeuser

Company was a Defendant-Appellee in the first

Sixth Circuit proceeding below, and a DefendantAppellant in the second Sixth Circuit proceeding

below. 2

CORPORATE DISCLOSURE STATEMENT

Petitioners Georgia-Pacific Consumer Products

LP, Fort James LLC, and Georgia-Pacific LLC are

each indirect, wholly owned subsidiaries of Koch, Inc.

Neither Petitioners nor their corporate parents are

publicly traded corporations, and no publicly traded

company owns 10% or more of any of their stock.

STATEMENT OF RELATED PROCEEDINGS

Current Case

United States District Court for the Western District

of Michigan:

Georgia-Pacific Consumer Products LP, et al. v.

NCR Corporation, et al., No. 11-cv-483 (order

Fort James LLC was formerly known as Fort James

Corporation, including in the caption below.

2 NCR Corporation (“NCR”) was a Defendant in the district

court proceedings, but was not a party to the Sixth Circuit

proceedings and is not a party before this Court.

iii

finding

Defendants

potentially

responsible parties Sept. 26, 2013; motion for

summary judgment on statute of limitations

denied in relevant part Aug. 12, 2015; order

allocating costs among the parties Mar. 29,

2018; judgment entered June 19, 2018;

judgment on remand entered Apr. 9, 2024)

United States Court of Appeals for the Sixth Circuit:

Georgia-Pacific Consumer Products LP, et al. v.

NCR Corporation, et al., No. 18-1806

(reversing and remanding Apr. 28, 2021;

adding appendix on denial of rehearing July

14, 2022)

Georgia-Pacific Consumer Products LP, et al. v.

NCR Corporation, et al., Nos. 24-1403, 24-1404

(vacating in part and remanding May 12,

2025)

United States Supreme Court

Georgia-Pacific Consumer Products LP et al. v.

International Paper Co., et al. No. 22-465 (petition

for certiorari denied Oct. 2, 2023)

Prior Related Litigation

United States District Court for the Western District

of Michigan:

Kalamazoo River Study Group v. Rockwell

International, et al., No. 95-cv-838 (judgments

entered Dec. 7, 1998, June 3, 2000, and Aug.

29, 2002 (as amended June 9, 2003))

Pending Related Litigation

United States District Court for the Western District

of Michigan:

International Paper Company v. Georgia-Pacific

Consumer Products LP, et al., No. 18-cv-1229

(stayed pending final adjudication in this case

Aug. 10, 2022)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

PARTIES TO THE PROCEEDING .......................... ii

CORPORATE DISCLOSURE STATEMENT .......... ii

STATEMENT OF RELATED PROCEEDINGS....... ii

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................. 2

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE ................................... 4

Statutory Background .......................... 4

Factual Background.............................. 8

Procedural Background ...................... 10

THIS COURT SHOULD CORRECT

THE LOWER COURTS’ ERRONEOUS

RULE THAT § 107(A) AND § 113(F)

ARE MUTUALLY EXCLUSIVE. .................. 16

The Lower Courts’ Treatment Of

§ 107(a) and § 113(f) as Mutually

Exclusive is Grievously Wrong. .......... 16

This Important Issue Arises

Frequently. .......................................... 22

This Case Is an Excellent

Vehicle. ................................................ 23

TABLE OF CONTENTS

Page

II.

THIS COURT SHOULD GRANT

REVIEW AND RESOLVE THE SPLIT

ON THE STATUTE-OF-LIMITATIONS

ISSUE. ........................................................... 25

The Sixth Circuit’s Interpretation

Of § 113(g)(3)(A) Conflicts With

The First Circuit’s. .............................. 25

The Sixth Circuit’s Interpretation

Is Incorrect. ......................................... 28

The Sixth Circuit’s

Misinterpretation Of

§ 113(g)(3)(A) Has Real

Significance. ........................................ 31

This Case Is A Clean Vehicle To

Resolve The § 113(g)(3)(A)

Question. ............................................. 34

CONCLUSION ......................................................... 35

vii

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Sixth Circuit

(May 12, 2025) .................................................. 1a

APPENDIX B: Opinion of the United States

District Court for the Western District of

Michigan (Apr. 9, 2024).................................. 13a

APPENDIX C: Opinion of the United States

Court of Appeals for the Sixth Circuit

(Apr. 25, 2022) ................................................ 29a

APPENDIX D: Order of the United States

Court of Appeals for the Sixth Circuit

Denying Rehearing and Adding Appendix

(July 14, 2022) ................................................ 55a

APPENDIX E: Opinion and Order of the

United States District Court for the

Western District of Michigan

(Mar. 29, 2018) ............................................... 68a

APPENDIX F: Opinion and Order of the

United States District Court for the

Western District of Michigan

(Aug. 12, 2015).............................................. 157a

APPENDIX G: Opinion and Order of the

United States District Court for the

Western District of Michigan

(Sept. 26, 2013) ............................................. 179a

APPENDIX H: Statutory Provisions ................... 218a

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) ........................................ 24, 25

Am. Cyanamid Co. v. Capuano,

381 F.3d 6 (1st Cir. 2004) .................. 25, 26, 28, 30

Atl. Richfield Co. v. Christian,

140 S. Ct. 1335 (2020) .......................................... 22

Bernstein v. Bankert,

733 F.3d 190 (7th Cir. 2013) .......................... 17, 20

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

United States,

556 U.S. 599 (2009) .......................... 2, 5, 22, 31, 33

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) .............................................. 18

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ............... 5-7, 16, 17, 20, 22, 24

Est. of Ryan v. Heritage Trails Assocs., Inc.,

745 N.W.2d 724 (Iowa 2008)................................ 30

Gov’t of Guam v. United States,

950 F.3d 104 (D.C. Cir. 2020) .................. 17, 21, 24

Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co.,

240 U.S. 251 (1916) .............................................. 35

TABLE OF AUTHORITIES

(continued)

Page(s)

Hawaii v. Office of Hawaiian Affairs,

556 U.S. 163 (2009) .............................................. 19

Hobart Corp. v. Waste Management of

Ohio, Inc.,

758 F.3d 757 (6th Cir. 2014) .. 11, 14, 17, 21, 23, 24

Hui v. Castaneda,

559 U.S. 799 (2010) .............................................. 19

J.E.M. Ag Supply, Inc. v. Pioneer HiBred Int’l, Inc.,

534 U.S. 124 (2001) ........................................ 18, 21

Kalamazoo River Study Grp. v. Eaton Corp.,

258 F. Supp. 2d 736 (W.D. Mich. 2002)............... 10

Kalamazoo River Study Grp. v. Rockwell Int’l,

107 F. Supp. 2d 817 (W.D. Mich. 2000)............... 10

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ......................... 7, 16, 17, 20-23

Liu v. SEC,

591 U.S. 71 (2020) .......................................... 19, 24

Lorenzo v. SEC,

587 U.S. 71 (2019) ................................................ 21

Morrison Enters., LLC v. Dravo Corp.,

638 F.3d 594 (8th Cir. 2011) ................................ 17

TABLE OF AUTHORITIES

(continued)

Page(s)

Ohio Adjutant General’s Dep’t v. FLRA,

598 U.S. 449 (2023) .............................................. 24

Rumsfeld v. Padilla,

542 U.S. 426 (2004) .............................................. 29

Solutia, Inc. v. McWane, Inc.,

672 F.3d 1230 (11th Cir. 2012) ............................ 17

Territory of Guam v. United States,

593 U.S. 310 (2021) ...................................... 5, 7, 22

United States v. Atl. Rsch. Corp.,

551 U.S. 128 (2007) ............3, 5-7, 16, 18, 20-22, 30

United States v. Bestfoods,

524 U.S. 51 (1998) ................................................ 22

United States v. Naftalin,

441 U.S. 768 (1979) .............................................. 21

Whittaker Corp. v. United States,

825 F.3d 1002 (9th Cir. 2016) ........................ 16, 17

STATUTES

28 U.S.C. § 1254 .......................................................... 1

CERCLA § 107, 42 U.S.C. § 9607 ............... 2-8, 10, 11,

14-23, 29, 32, 34, 35

CERCLA § 113, 42 U.S.C. § 9613 .... 2-8, 10, 11, 13-23,

25-35

TABLE OF AUTHORITIES

(continued)

Page(s)

RULES

Sup. Ct. R. 10............................................................. 23

OTHER AUTHORITIES

Black’s Law Dictionary (8th ed. 2004)...................... 30

H. Rep. No. 99-253, pt. 3

(Judiciary Comm.) (Oct. 31, 1985)....................... 20

S. Rep. No. 99-11 (1985) ............................................ 20

16B Wright and Miller, Federal Practice

& Procedure § 4004.1 (3d ed.) .............................. 35

OPINIONS BELOW

The opinion of the Sixth Circuit following the

remand order (Pet.App.1a-12a) is reported at 136

F.4th 690. The decision of the District Court on

remand (Pet.App.13a-28a) is unreported but

available at 2024 WL 1521228. The prior decision of

the Sixth Circuit (Pet.App.29a-55a) is reported at 32

F.4th 534, with an opinion and order adding an

appendix to that decision and denying GeorgiaPacific’s petition for rehearing of that decision

(Pet.App.56a-67a) reported at 40 F.4th 481. The

decision of the U.S. District Court for the Western

District of Michigan allocating liability (Pet.App.68a156a) is reported at 358 F. Supp. 3d 613. The

decision of the U.S. District Court for the Western

District of Michigan rejecting the Defendants’

statute-of-limitations defense for certain claims

(Pet.App.157a-178a) is unreported but available at

2015 WL 11236845. The phase I liability decision of

the U.S. District Court for the Western District of

Michigan (Pet.App.179a-217a) is reported at 980 F.

Supp. 2d 821.

JURISDICTION

The Sixth Circuit issued its decision in this case on

May 12, 2025. On July 23, 2025, Justice Kavanaugh

granted an extension of time to file this petition

through September 10, 2025. No. 25A84 (U.S.). This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Sections 107(a), 113(f), and 113(g)(1)-(3) of

CERCLA (42 U.S.C. §§ 9607(a), 9613(f), 9613(g)(1)(3)) are set out in the appendix (Pet.App.218a-223a). 3

INTRODUCTION

This case presents two questions that cut to the

core of CERCLA’s regulatory regime. Separately and

together, the Sixth Circuit’s atextual answers to

those questions undermine the statute’s two primary

goals: “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.” Burlington N. & Santa Fe Ry.

Co. v. United States, 556 U.S. 599, 602 (2009)

(internal quotation marks omitted).

The first question—which this Court has

repeatedly reserved—concerns the interaction

between CERCLA’s two mechanisms for recouping

cleanup costs.

One, § 107(a), allows parties to

recover costs they have directly incurred in cleanup

efforts from others who share responsibility for the

pollution. The other, § 113(f), allows parties to

obtain contribution for disproportionate costs they

have paid pursuant to certain judgments or

settlements. As this Court has observed, these two

provisions “complement each other,” because each

This petition follows the decision below and this Court’s

recent CERCLA cases in referring to the statutory provisions as

they are numbered in CERCLA, rather than by their

codification at 42 U.S.C. § 9601 et seq. See, e.g., Pet.App.3a.

CERCLA § 1xx corresponds to 42 U.S.C. § 96xx.

covers some situations the other does not. United

States v. Atl. Rsch. Corp., 551 U.S. 128, 139 & n.6

(2007). But the Court has left open the question

whether the two remedies overlap, such that a party

that satisfies the requirements of both provisions can

seek relief under either, or whether they are

mutually exclusive, such that a party that

theoretically could bring a § 113(f) claim cannot

bring a § 107(a) claim for those costs. E.g., id. at 139

n.6.

Each circuit to have considered the issue,

including the Sixth, has taken the latter path and

treated the two remedies as mutually exclusive.

That result, however, cannot be squared with the

statutory text or history, neither of which imposes

any such limit on § 107(a) claims. The circuit

consensus is simply wrong. And the barriers it

erects to parties seeking to recover directly incurred

cleanup expenses makes them less likely to

voluntarily participate in cleanups in the first place.

Only this Court can correct course on this important

and frequently recurring issue.

The second question concerns the statute of

limitations for § 113(f) claims brought by parties who

pay more than their fair share of cleanup costs under

a qualifying judgment. Section 113(g)(3)(A) provides

that contribution claims “for any response costs or

damages” must be brought within three years of “the

date of judgment in any action under [CERCLA] for

recovery of such costs or damages.” According to the

Sixth Circuit, a declaratory judgment that awards no

costs or damages is enough to trigger that limitations

period.

As the United States has previously

acknowledged, however, the Sixth Circuit’s reading

of § 113(g)(3)(A) is both irreconcilable with the First

Circuit’s and badly wrong.

Each of the two questions presented is

independently certworthy. Taken together, they are

even more important. This case proves the point.

Despite the district court’s finding on an extensive

factual record that Petitioner Georgia-Pacific is

equitably entitled to tens of millions of dollars from

other responsible parties for expenses it has incurred

(and will continue to incur) cleaning up the

Kalamazoo River, it has no way to recover those

costs because it did not sue a decade before EPA

would even decide what the clean-up would entail.

According to the Sixth Circuit, Georgia-Pacific

cannot recover under § 107(a) because it once

theoretically had a right to recover under § 113(f).

And it cannot recover under § 113(f) because it did

not file suit long before it became clear whether it

would incur an obligation that exceeded its fair share

compared to other responsible parties. All this,

notwithstanding that CERCLA expressly provides

that subsequent cost-recovery actions may be

brought at any time “no later than 3 years after the

date of completion of all response action.”

§ 113(g)(2). This Court should grant certiorari on

one or both questions and confirm that CERCLA was

not intended to—and does not—work that way.

STATEMENT OF THE CASE

A. Statutory Background

1. First enacted in 1980, CERCLA “was designed

to promote the timely cleanup of hazardous waste

sites and to ensure that the costs of such cleanup

efforts were borne by those responsible for the

contamination.”

Burlington, 556 U.S. at 602

(internal quotation marks omitted). To achieve these

purposes, Congress laid out a “complex statutory

scheme” governing the imposition and allocation of

liability for cleanup costs at Superfund sites.

Territory of Guam v. United States, 593 U.S. 310, 312

(2021).

Under that scheme, “the Federal Government may

clean up a contaminated area itself, or it may compel

responsible parties to perform the cleanup” instead.

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S.

157, 160 (2004) (internal citations omitted). “In

either case, the Government may recover its

response costs under § 107,” which “lists four classes

of potentially responsible persons (PRPs)” and makes

them strictly liable for “‘all costs of removal or

remedial action incurred by the United States

Government’” and “for ‘any other necessary costs of

response incurred by any other person ….’” Id.

(quoting § 107(a)).

Section 107’s four classes

“define[] PRPs so broadly as to sweep in virtually all

persons likely to incur cleanup costs,” including

anyone who currently owns or previously owned

facilities that contributed to the contamination and

anyone who disposed or agreed to dispose of

hazardous materials from such facilities. Atl. Rsch.,

551 U.S. at 136; see § 107(a). Where pollution of a

site constitutes a “single, indivisible harm,” liability

is joint and several, meaning that any PRP can find

itself on the hook for all cleanup costs, regardless of

its share of sitewide responsibility. Burlington, 556

U.S. at 614.

2. Congress tempered that harsh result with two

provisions—§§ 107(a) and 113(f)—that “allow private

parties to recover expenses associated with cleaning

up contaminated sites.” Atl. Rsch., 551 U.S. at 131.

First, under § 107(a)(4)(B), a PRP can recover

“any … necessary costs of response incurred” from

other PRPs. Second, under § 113(f), a PRP can

correct “an inequitable distribution of common

liability among liable parties,” Atl. Rsch., 551 U.S. at

132, 139, by “seek[ing] contribution from any other

[PRP], during or following any civil action under

[provisions including § 107],” § 113(f)(1). Section

113(f) also allows PRPs that have resolved their

liability “to the United States or a State … in an

administrative or judicially approved settlement” to

pursue contribution claims. § 113(f)(3)(B).

“Courts have frequently grappled with” questions

that “lie at the intersection” of § 107(a) and § 113(f).

Atl. Rsch., 551 U.S. at 131. As initially enacted,

CERCLA included § 107(a), but not § 113(f), and

courts divided over “whether a private entity that

had been sued in a cost recovery action (by the

Government or by another PRP) could obtain

contribution from other PRPs” under § 107(a) or

federal common law. Cooper Indus., 543 U.S. at 162.

Congress responded to that division of authority by

enacting § 113(f) as part of the Superfund

Amendments and Reauthorization Act of 1986,

thereby “provid[ing] an express cause of action for

contribution.” Id. At the same time, Congress

enacted § 113(g)(2), which directs courts adjudicating

an initial cost-recovery action under § 107(a) to

“enter a declaratory judgment on liability for

response costs and damages that will be binding on

any subsequent action or actions to recover further

response costs or damages.”

Since then, this Court has explained that causes of

action under § 107(a) and § 113(f) “complement each

other by providing causes of action to persons in

different procedural circumstances.” Atl. Rsch., 551

U.S. at 139 (internal quotation marks omitted). For

example, a PRP that directly pays cleanup costs

without settling with the government or being sued

under CERCLA has a § 107(a) claim, but not a

§ 113(f) claim. See id. For a PRP that merely

reimburses others’ response costs pursuant to a

settlement or judgment, the reverse is true. Id. The

Court has recognized, however, that § 107(a) and

§ 113(f) may overlap in some circumstances—such as

when a PRP directly pays cleanup costs, but does so

pursuant to a qualifying judgment or settlement.

See id. at 139 n.6; see also Key Tronic Corp. v. United

States, 511 U.S. 809, 816 (1994) (observing that

§§ 107 and 113 may provide “somewhat overlapping

remed[ies]”); Cooper Indus., 543 U.S. at 163 n.3

(same, quoting Key Tronic). And the Court has

expressly reserved the question whether a PRP that

directly incurs cleanup costs “pursuant to a consent

decree following a suit under … § 107(a)” can recoup

those costs “under § 113(f), § 107(a), or both.” Atl.

Rsch., 551 U.S. at 139 n.6; see also Territory of

Guam, 593 U.S. at 315 & n.2 (“express[ing] no

opinion on” unchallenged “portions of the lower

court’s ruling,” which included those addressing this

issue).

3. Relevant here, each form of CERCLA relief

carries its own statute of limitations.

For

contribution claims under § 113(f), “[n]o action for

contribution for any response costs or damages may

be commenced more than 3 years after … the date of

judgment in any action under [CERCLA] for recovery

of such costs or damages.” § 113(g)(3)(A); see also

§ 113(g)(3)(B) (establishing a three-year statute of

limitations on contribution claims running from “the

date of an administrative order under [§ 122(g) or

§ 122(h)] or entry of a judicially approved settlement

with respect to such costs or damages”). Costrecovery claims under § 107, in turn, must be

brought within three years “after completion of the

removal action” or, “for a remedial action, within

[six] years after initiation of physical on-site

construction.” § 113(g)(2). Moreover, where a party

brings a “subsequent action or actions under [§ 107]

for further response costs” following a declaratory

judgment, it must do so “no later than 3 years after

the date of completion of all response action.” Id.

B. Factual Background

This case—like many CERCLA cases—has

involved decades of litigation winding its way up,

down, and throughout the federal court system. But

the facts relevant to the two purely legal questions

this Petition presents are straightforward.

1. In 1954, NCR began selling carbonless copy

paper (“CCP”), a product that permitted writing or

typing in duplicate. Pet.App.69a. To produce CCP,

NCR coated the back of the top sheet of paper with

an emulsion that, through 1971, included

polychlorinated biphenyls (“PCBs”). Id. In addition

to usable CCP, NCR’s process also produced scraps

called “CCP broke,” which NCR sold to paper mills to

recycle into new paper. Pet.App.87a. To facilitate

these sales, NCR developed a process for the mills to

wash the PCB-containing substance off the paper,

which resulted in PCBs collecting in the mills’

wastewater. Pet.App.76a. For at least a portion of

the relevant period, NCR “actively attempted to

conceal the hazards associated with CCP broke[]

from recyclers, the public, and even governmental

entities.” Pet.App.202a.

Some of the recycling mills to which NCR sold

CCP broke were located on Michigan’s Kalamazoo

River and its tributary, Portage Creek. From the

1860s through the early part of this century, this

area’s “ample water” supply and “prime location for

nationwide distribution” made it a hub of paper

manufacturing. Pet.App.31a. Mills active at the

relevant time included, among others, (1) a mill

owned by the Kalamazoo Paper Company, later

acquired by Petitioner Georgia-Pacific, Pet.App.72a;

(2) the Plainwell Mill, owned and operated during

the relevant time by Respondent “Weyerhaeuser or

by companies for which Weyerhaeuser has assumed

liabilities,” Pet.App.75a; and (3) the Bryant Mill,

owned by the St. Regis Company, which was later

acquired by Respondent International Paper,

Pet.App.73a-74a. The first two of these mills were

located on the Kalamazoo River itself; the Bryant

Mill was located on Portage Creek. Pet.App.72a-75a.

2. Georgia-Pacific has long worked with the

State of Michigan and the EPA to help clean up the

Kalamazoo River and surrounding areas.

In 1990, Georgia-Pacific formed the Kalamazoo

River Study Group (“KRSG”) with several other

paper companies. Pet.App.5a. The KRSG agreed

with state regulators to investigate the extent of

PCB pollution and study the feasibility of various

remedial actions, and it immediately began that

work. Pet.App.33a.

In 1995, the KRSG sought relief under § 107 and

§ 113 for investigation costs it had already incurred

and investigation and response costs it would incur

in the future. Some of the defendants in that

litigation, none of whom are parties to the present

case, filed counterclaims. Pet.App.33a. In a series of

orders between 1998 and 2002, the district court

found the KRSG and two of the defendants to be

PRPs under CERCLA, but allocated “‘the entire cost

of response activities’” to the KRSG’s members.

Pet.App.6a (quoting Kalamazoo River Study Grp. v.

Rockwell Int’l, 107 F. Supp. 2d 817, 840 (W.D. Mich.

2000)). This “bare declaratory judgment” did not

identify or quantify—much less actually award—any

such costs against Georgia-Pacific. Pet.App.49a. To

the contrary, the only costs or damages actually

awarded in the KRSG litigation were approximately

$62,000 from one of the defendants to the KRSG for

past investigation costs. Kalamazoo River Study

Grp. v. Eaton Corp., 258 F. Supp. 2d 736, 761 (W.D.

Mich. 2002).

C. Procedural Background

1. In the ensuing decades, Georgia-Pacific has

continued to clean up the site consistent with various

agreements with the state and federal governments.

By 2010, Georgia-Pacific better understood the

nature and source of the contamination, the

identities of other responsible parties, and the work

that would ultimately be required to remediate the

pollution. It therefore brought this suit seeking cost

recovery under § 107(a) and contribution under

§ 113(f) from three entities it had determined shared

responsibility for the contamination: International

Paper, Weyerhaeuser, and NCR. Pet.App.16a. In

the first stage of the proceedings, which concluded in

2013, the district court determined that all four

litigants

were

PRPs;

Georgia-Pacific

and

Weyerhaeuser conceded as much, and the court

rejected International Paper’s and NCR’s arguments

to avoid PRP status. Id.

The three defendants then sought summary

judgment, arguing that Georgia-Pacific could not

recover under either § 113 or § 107. On § 107, they

argued that Georgia-Pacific’s cost-recovery claims

were doomed by the Sixth Circuit’s recent holding in

Hobart Corp. v. Waste Management of Ohio, Inc., 758

F.3d 757 (6th Cir. 2014), that a PRP cannot bring a

§ 107 claim for expenses that could be subject to a

§ 113 contribution claim. See Pet.App.169a, 176a.

On § 113, they argued that the declaratory judgment

in the KRSG litigation had triggered the statute of

limitations

for

Georgia-Pacific’s

contribution

claims—which were thus time-barred.

The district court found Hobart controlling with

respect to Georgia-Pacific’s § 107 claim.

See

Pet.App.95a. But it denied the defendants’ motion

with respect to Georgia-Pacific’s § 113 claim, finding

that the bare declaratory judgment issued in the

KRSG litigation had not triggered CERCLA’s statute

of limitations. Affording that provision “such an

expansive interpretation,” the district court

reasoned, would exceed “the typical reach of

traditional res judicata principles.” Pet.App.170a.

“Indeed, it would effectively bar some contribution

claims even before they would normally accrue.” Id.

The district court “decline[d] the opportunity to read

CERCLA so broadly.” Id. 4

The district court then undertook the intensive

equitable process of determining how to allocate

costs among the PRPs. By September 2014 (the

cutoff date used at the allocation trial), GeorgiaPacific had incurred more than $105 million in

cleanup costs, of which approximately $50 million

remained to be allocated following the statute-oflimitations decision and other minor adjustments.

Pet.App.27; see supra at 12 n.4. Weyerhaeuser, for

its part, had spent approximately $10 million.

Pet.App.109a. NCR and International Paper had

incurred zero cleanup costs. Pet.App.107a-109a. 5

After a 20-day trial involving thousands of

exhibits, the district court concluded that “[n]o party

is uniquely culpable for PCBs in the Kalamazoo

River.” Pet.App.112a. The court acknowledged the

“physical reality that PCBs travel downstream, and

not upstream”—meaning, for example, that “PCBs

found in Portage Creek must be from the Bryant

mill,” which was owned by a predecessor to

International Paper.

Pet.App.131a (emphasis

added). Nevertheless, the court declined to treat the

pollution or cleanup costs as divisible, instead

4 In rulings not challenged on appeal, the district court also

granted in part and denied in part more targeted statute-oflimitations arguments premised on certain administrative

agreements. Pet.App.172a-177a.

5 Since

2014, Georgia-Pacific has spent multiple millions of

dollars more, and the cleanup is projected to continue long into

the future. Pet.App.88a n.5.

establishing “one overall equitable allocation” to

govern all cleanup costs incurred at the site as of the

cut-off date. Pet.App.126a. The court allocated 40%

of those costs to Georgia-Pacific, 40% to NCR, 15% to

International Paper, and 5% to Weyerhaeuser.

Pet.App.140a.

2. On appeal, the Sixth Circuit noted that Hobart

had already established as a matter of Sixth Circuit

law that “if a party may bring a suit under § 113(f), it

must do so,” and thus focused on one “question

alone”: “whether the … judgments of liability in the

KRSG litigation started CERCLA’s statute of

limitations to run for contribution claims.”

Pet.App.38a, 40a-41a. The court answered in the

affirmative, holding that “CERCLA’s statute of

limitations for contribution claims began running”

“[w]hen the district court entered the 1998

declaratory judgment” in the KRSG lawsuit.

Pet.App.55a. “Because the district court … did not

enforce that statute of limitations” in GeorgiaPacific’s later lawsuit, the Sixth Circuit “reverse[d]

its judgment and remand[ed] for further proceedings

consistent with [its] opinion.”

Id. (emphasis

omitted).

Georgia-Pacific petitioned for certiorari on the

statute-of-limitations question. See Georgia-Pacific

Cons. Prods. LP v. Int’l Paper Co., No. 22-465 (U.S.).

This Court called for the views of the Solicitor

General, who agreed with Georgia-Pacific “that a

circuit split exists” and that the Sixth Circuit had

“erred in holding that the 1998 declaratory judgment

in the

KRSG

litigation triggered

Section

113(g)(3)(A)’s limitations period.” SG Br. 8, 18 (No.

22-465). The Solicitor General asserted, however,

that the case was an unsuitable vehicle to resolve

that conflict, in part because, in her view, “it [was]

unclear whether and to what extent [GeorgiaPacific’s] current claims are properly viewed as

claims for contribution.” Id. at 18. This Court

subsequently denied Georgia-Pacific’s petition.

3. Back in the district court, the parties disputed

whether that court’s initial declaratory judgment

that all parties were PRPs survived the Sixth

Circuit’s statute-of-limitations holding.

GeorgiaPacific argued, among other things, that § 113(g)(2)

requires a court resolving “[a]n initial action for the

recovery of costs referred to in [§ 107]” to “enter a

declaratory judgment on liability.” The district court

“agree[d],” holding that “the statutory text of

CERCLA” required the declaratory judgment, that

“there [was] significant ongoing practical value to

having the liability issues resolved,” and that

“nothing in the Court of Appeals’ decision

undermine[d] the validity of” the declaratory

judgment. Pet.App.21a.

The Sixth Circuit vacated in part. It held that,

under Hobart, “a party that is already subject to a

judgment for cleanup costs ‘cannot proceed with a

§ 107(a)(4)(B) cost-recovery action.’”

Pet.App.4a

(quoting Hobart, 758 F.3d at 766). And according to

the Sixth Circuit, the fact “that Georgia-Pacific

cannot proceed with a § 107(a) claim means it cannot

obtain declaratory relief under that claim either.”

Pet.App.11a.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s ruling on the first question

presented—whether CERCLA prohibits PRPs that

theoretically could have brought a § 113(f) claim

from bringing a § 107(a) claim—recurs often and has

long been acknowledged and reserved by this Court.

It is a pure legal question that strikes at the heart of

CERCLA’s scheme for ensuring not only that

polluted sites are cleaned up, but also that cleanup

costs are equitably shared among those responsible

for the pollution. The circuit consensus on this

question conflicts with CERCLA’s text and history

and discourages cooperative participation in often

extended cleanup efforts, making this Court’s

intervention necessary.

As the Solicitor General has recognized, the second

question presented—whether a bare declaratory

judgment of liability triggers § 113(g)(3)(A)’s statute

of limitations—implicates a clean circuit split on

another purely legal question that the Sixth Circuit

answered incorrectly. If let stand, the Sixth Circuit’s

ruling will force PRPs to choose between pouring

immense resources into premature litigation and

forever losing their ability to seek contribution for

even grossly disproportionate liability.

Each question presented thus independently

warrants this Court’s attention. But they exceed the

sum of their parts. In concert, the Sixth Circuit’s

twin errors make it impossible for a PRP to recover

any costs where the information essential to assess

whether it has incurred an obligation that exceeds

its fair share—at a minimum, some indication of

what that obligation entails—is unavailable within

three years of an initial declaratory judgment. The

result is inequitable and draconian liability Congress

never could have intended. This Court should clarify

that PRPs striving to comply with CERCLA do not

face this gauntlet of procedural traps.

THIS COURT SHOULD CORRECT THE

LOWER COURTS’ ERRONEOUS RULE

THAT

§ 107(a)

AND

§ 113(f)

ARE

MUTUALLY EXCLUSIVE.

The time has come for this Court to resolve the

repeatedly noted and reserved question of whether

§ 113(f) implicitly precludes litigants from pursuing

otherwise-viable § 107(a) claims.

A. The Lower Courts’ Treatment Of

§ 107(a) and § 113(f) as Mutually

Exclusive is Grievously Wrong.

This Court has specifically reserved the question

whether § 107(a) and § 113(f) are mutually exclusive

in the sense that expenses theoretically recoverable

under § 113(f) cannot be sought under § 107(a). See,

e.g., Key Tronic, 511 U.S. at 816 (Sections 107 and

113

may

provide

“somewhat

overlapping

remed[ies]”); Cooper Indus., 543 U.S. at 163 n.3

(same, quoting Key Tronic); Atl. Rsch., 551 U.S. at

139 n.6 (“We do not decide whether [such]

costs … are recoverable under § 113(f), § 107(a), or

both.”). To be sure, “every federal court of appeals to

have considered the question since Atlantic

Research … has said that a party who may bring a

contribution action for certain expenses must use the

contribution action, even if a cost recovery action

would otherwise be available.” Whittaker Corp. v.

United States, 825 F.3d 1002, 1007 (9th Cir. 2016). 6

But CERCLA’s plain text and statutory history make

clear that, as this Court has repeatedly

acknowledged might well be the case, the two

remedies in fact overlap. See Key Tronic Corp. 511

U.S. at 816; Cooper Indus., 543 U.S. at 163 n.3.

1. Start, as always, with the text. Nothing in the

language Congress employed in § 107(a) or § 113(f)—

or in any other CERCLA provision—suggests that

courts should impose this atextual limit on § 107(a)

claims. Section 107(a) never mentions § 113(f), and

§ 113(f) never so much as hints that it is shutting off

any alternate remedy that would otherwise be

available. There is simply zero affirmative textual

support for the lower courts’ consensus rule. To the

contrary, as the Seventh Circuit has admitted, the

mutual-exclusivity rule overrides CERCLA’s “plain

meaning.” Bernstein v. Bankert, 733 F.3d 190, 206

(7th Cir. 2013) (holding that “a plaintiff is limited to

a contribution remedy when one is available” even

when, “giving the words their plain meaning,” the

plaintiff has “also incurred ‘necessary costs of

response’ as is necessary to sustain a cost recovery

action” (quoting § 107(a))).

6 See, e.g., Hobart, 758 F.3d at 767; Bernstein v. Bankert, 733

F.3d 190, 205-06 (7th Cir. 2013); Morrison Enters., LLC v.

Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011) Solutia, Inc. v.

McWane, Inc., 672 F.3d 1230, 1236-37 (11th Cir. 2012); Gov’t of

Guam v. United States, 950 F.3d 104, 111 (D.C. Cir. 2020), rev’d

on other grounds sub nom. Territory of Guam v. United States,

593 U.S. 310.

Nor would recognizing the two sections’ partially

overlapping remedies produce disfavored redundancy

in CERCLA’s statutory scheme. Each of § 107(a) and

§ 113(f) plainly covers some cases the other does not,

such that “neither remedy swallows the other.” Atl.

Rsch., 551 U.S. at 139 n.6. Section 107(a), but not

§ 113(f), applies to a party that has directly incurred

costs absent a qualifying judgment or settlement.

And § 113(f), but not § 107(a), applies to a party that

has been required by a judgment or settlement to

reimburse cleanup costs borne by others in the first

instance. Because “each section [reaches] cases that

the other section does not reach,” the canon against

superfluity “does not apply.” Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253 (1992); see, e.g., J.E.M.

Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534

U.S. 124, 144 (2001) (“[T]his Court has not hesitated

to give effect to two statutes that overlap, so long as

each reaches some distinct cases.”).

Indeed, it is the circuit courts’ misreading of the

interaction between § 107(a) and § 113(f)—

particularly when paired with the Sixth Circuit’s

statute-of-limitations

holding—that

improperly

renders statutory language meaningless. As noted

above, § 113(g)(2) directs a court adjudicating an

initial § 107(a) action to enter a “declaratory

judgment on liability for response costs or damages

that will be binding on any subsequent action or

actions to recover further response costs or

damages.”

It further specifies that such a

“subsequent action … under [§ 107] for further

response costs … may be maintained at any time

during the response action, but must be commenced

no later than 3 years after the date of completion of

all response action.” Id.

In the Sixth Circuit, however, a declaratory

judgment on liability triggers a § 113(f) claim. See

Pet.App.52a.

Under the lower courts’ mutualexclusivity rule, that means that the declaratory

judgment that § 113(g)(2) requires in every initial

§ 107(a) action always pretermits the “subsequent

action or actions under [§ 107] for further response

costs” that § 113(g)(2) expressly contemplates. An

interpretation of CERCLA that renders categorically

unavailable a set of claims the statute expressly

permits violates the “cardinal principle of

interpretation that courts must give effect, if

possible, to every clause and word of a statute.” Liu

v. SEC, 591 U.S. 71, 89 (2020).

2. CERCLA’s statutory history confirms the

point. As noted above, § 107(a) has been part of

CERCLA from the beginning. See supra at 7. Prior

to § 113(f)’s enactment, there was certainly no

carveout from § 107(a)’s scope for cases that might

later be brought under the then-nonexistent § 113(f).

Nor is there any reason to think that § 113(f)

changed § 107(a)’s scope by partially repealing it. As

this Court has repeatedly held, “repeals by

implication are not favored and will not be presumed

unless the intention to repeal is clear and manifest.”

Hui v. Castaneda, 559 U.S. 799, 810 (2010) (quoting

Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163,

175 (2009)). Nothing in § 113(f)’s text or legislative

history indicates any intent to limit § 107(a).

Quite the opposite: Section 113(f) was enacted to

encourage cleanup activities by expanding PRPs’

ability to recover disproportionate costs, not

discourage cleanups by diminishing that ability. See

Cooper Indus., 543 U.S. at 162 (explaining that

§ 113(f) was enacted “to provide an express cause of

action for contribution,” which some courts had

already recognized existed under § 107); S. Rep. No.

99-11, at 44 (1985) (“Private parties may be more

willing to assume the financial responsibility for

cleanup if they are assured that they can seek

contribution from others.”).

Moreover, Congress

enacted § 113(g)(2), which “contemplates that there

may be successive cost recovery actions brought at

various points during implementation of a remedial

action,” H. Rep. No. 99-253, pt. 3, at 21 (Judiciary

Comm.) (Oct. 31, 1985), at the same time it enacted

§ 113(f). It simply cannot be the case that Congress

simultaneously decreed (1) that these subsequent

suits would exist and declaratory judgments would

be binding in them and (2) that the very same

declaratory judgments would preclude such suits in

the first place.

3. The reasons the circuits have given for

deeming the two provisions mutually exclusive do

not withstand scrutiny.

Some courts have overread this Court’s statements

regarding the “procedural ‘distinctness’ of the

CERCLA rights of action.” E.g., Bernstein, 733 F.3d

at 205-06 (quoting Atl. Rsch., 551 U.S. at 138).

Again, however, this Court has expressly reserved

the question whether the two provisions overlap—

including in the very same passages where it noted

their “distinctness.” Atl. Rsch, 551 U.S. at 139 n.6

(“We do not suggest that §§ 107(a)(4)(B) and 113(f)

have no overlap at all.”); see, e.g., Key Tronic, 511

U.S. at 816 (stating that the two provisions provide

“similar and somewhat overlapping remed[ies]”).

This Court’s characterization of the two remedies as

“distinct” reflects nothing more than the

unremarkable point that “neither remedy swallows

the other” because each provision covers some cases

the other does not. Atl. Rsch., 551 U.S. at 139 n.6

(“For our purposes, it suffices to demonstrate that

costs incurred voluntarily are recoverable only by

way of § 107(a)(4)(B), and costs of reimbursement to

another person pursuant to a legal judgment or

settlement are recoverable only under § 113(f).”).

Other courts, including the Sixth Circuit, have

relied on the idea that, because § 107(a) claims have

various advantages over § 113(f) claims, § 113(f)

would be rendered superfluous in cases where both

provisions apply. E.g., Hobart, 758 F.3d at 767; Gov’t

of Guam, 950 F.3d at 111. Again, however, overlap

is not superfluity. See supra at 18-19. “[T]his Court

has not hesitated to give effect to two statutes that

overlap, so long as each reaches some distinct cases.”

J.E.M. Ag Supply, 534 U.S. at 144; see, e.g., Lorenzo

v. SEC, 587 U.S. 71, 80 (2019) (“[T]his Court and the

[SEC] have long recognized considerable overlap

among the subsections of [Rule 10b-5] and related

provisions of the securities laws,” and the Court has

“found ‘no warrant for narrowing alternative

provisions adopted with the purpose of affording

added safeguards.’” (ellipses omitted) (quoting

United States v. Naftalin, 441 U.S. 768, 774 (1979))).

In short, there is no sound basis for using § 113(f)

to read a limitation into § 107(a) that Congress did

not put there.

B. This

Important

Frequently.

Issue

Arises

CERCLA is an enormously consequential statute

that governs cleanup projects that often take decades

to complete and regularly cost hundreds of millions

of dollars. It is unsurprising, then, that this Court

has frequently stepped in to clear up confusion about

its proper interpretation. See, e.g., Territory of

Guam, 593 U.S. 310; Atl. Richfield Co. v. Christian,

140 S. Ct. 1335 (2020); Burlington, 556 U.S. 599; Atl.

Rsch., 551 U.S. 128; Cooper Indus., 543 U.S. 157;

United States v. Bestfoods, 524 U.S. 51 (1998); Key

Tronic, 511 U.S. 809.

The Court’s guidance, of course, is particularly

invaluable on issues that recur frequently. This is

just such an issue.

This Court has already

recognized that “[c]ourts have frequently grappled

with” questions that “lie at the intersection” of

§ 107(a) and § 113(f). Atl. Rsch., 551 U.S. at 131.

And the fact that the Courts of Appeals regularly

confront this issue proves the point in spades. See

supra at 17 & n.6.

The lower courts’ error really matters, too—in a

way that undercuts CERCLA’s goals.

If the

availability of a § 113(f) claim defeats resort to

§ 107(a), then PRPs may hesitate to voluntarily incur

cleanup costs whenever a § 113(f) claim is even

arguably possible. That concern is particularly acute

if, as the Sixth Circuit also holds, a bare declaratory

judgment of liability gives rise to a § 113(f)

contribution claim. Consider the plight of a party

that has such a declaration entered against it. The

lower courts’ rule means that such a party can

recover cleanup costs only through § 113(f)—and

only within three years of the declaration. After that

point, any costs it incurs will be virtually

unrecoverable. As a result, that party may hesitate

before committing to clean up pollution for which

others may be partially responsible—unless and

until a more specific judgment is entered against it

in a subsequent suit. That undermines a core

purpose of CERCLA, which this Court has

“recognize[d] … is designed to encourage private

parties to assume the financial responsibility of

cleanup by allowing them to seek recovery from

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

In short, the interplay of § 107(a) and § 113(f)

presents “an important question of federal law that

has not been, but should be, settled by this Court.”

Sup. Ct. R. 10(c).

C. This Case Is an Excellent Vehicle.

This case is an ideal vehicle for assessing the

purely legal question whether a party who at one

point could theoretically recover costs under § 113(f)

is thus precluded from recovering those costs under

§ 107(a). The Sixth Circuit’s most recent decision

expressly turned on the proposition that “a party

that is already subject to a [§ 113-triggering]

judgment for cleanup costs ‘cannot proceed with a

[§ 107(a)] cost-recovery action’”—the mistaken rule

that doomed Georgia-Pacific’s § 107(a) claim in this

suit. Pet.App.4a (quoting Hobart, 758 F.3d at 766).

Because Hobart’s binding Circuit precedent rendered

Georgia-Pacific’s § 107(a) “claim a legal nullity,” the

panel reasoned, Georgia-Pacific could not “obtain

declaratory relief

Pet.App11a.

under

that

claim

either.”

This Court’s denial of Georgia-Pacific’s prior

petition had nothing to do with this issue. Unlike its

most recent opinion, the Sixth Circuit’s first decision

purported to answer “alone” the question of “whether

the … judgments of liability in the KRSG litigation

started CERCLA’s statute of limitations to run for

contribution claims.” Pet.App.38a.

Nor does the absence of a split mean that this

Court should await further percolation. To the

contrary, that misguided consensus makes it

particularly unlikely that correction will come from a

lower court. See, e.g., Gov’t of Guam, 950 F.3d at 111

(relying on circuit consensus); This would not be the

first time the Court has resolved an important

CERCLA question without waiting for a division of

authority to develop. See Cooper Indus., 543 U.S.

157; Petition for a Writ of Certiorari, Cooper Indus.,

543 U.S. 157 (No. 02-1192), 2003 WL 23015035

(asserting no split). And this Court regularly grants

certiorari when a circuit consensus rests on shaky

ground. See, e.g., Ohio Adjutant General’s Dep’t v.

FLRA, 598 U.S. 449 (2023); Petition for Writ of

Certiorari, Ohio Adjutant General’s Dep’t, 598 U.S.

449, 2022 WL 1571211, at *28 (acknowledging that

“the courts of appeals have uniformly resolved” the

question on which this Court’s review was sought

and ultimately granted); Liu v. SEC, 591 U.S. 71;

Petition for a Writ of Certiorari, Liu, 591 U.S. 71,

2019 WL 2354737, at *2 (acknowledging that “[t]he

lower courts ha[d] accepted the SEC’s” position);

Alexander v. Sandoval, 532 U.S. 275, 295 n.1 (2001)

(Stevens, J., dissenting) (“Just about every Court of

Appeals has either explicitly or implicitly” reached

the same conclusion as the decision below, and “[n]o

Court of Appeals has ever reached a contrary

conclusion.”); Petition for Writ of Certiorari,

Sandoval, 532 U.S. 275, 2000 WL 33979586

(asserting no split).

II. THIS COURT SHOULD GRANT REVIEW

AND RESOLVE THE SPLIT ON THE

STATUTE-OF-LIMITATIONS ISSUE.

The Sixth Circuit’s misinterpretation of CERCLA’s

statute of limitations for § 113(f) claims also

warrants this Court’s attention. As the Solicitor

General recognized last time around, that

interpretation is both irreconcilable with the First

Circuit’s decision in American Cyanamid Co. v.

Capuano, 381 F.3d 6 (1st Cir. 2004), and badly

wrong. Any potential vehicle problems that may

have caused the Court to hesitate previously have

now resolved.

A. The Sixth Circuit’s Interpretation Of

§ 113(g)(3)(A) Conflicts With The First

Circuit’s.

Section 113(g)(3)(A) bars an “action for

contribution for any response costs or damages”

brought “more than 3 years after … judgment in any

action under [CERCLA] for recovery of such costs or

damages.”

holding—and

subsequently

reiterating—that a “bare declaratory judgment

cause[s] the limitations period … to begin to run,”

Pet.App.49a; see Pet.App.7a, the Sixth Circuit

diverged from the First Circuit’s decision in

American Cyanamid, which reached the opposite

result on materially identical facts. See 381 F.3d 6.

1. In American Cyanamid, the First Circuit held

that a “declaratory judgment” in a prior case that

deemed a party “‘jointly and severally liable for all

future costs of removal or remedial action by the

state relative to [a] site’” “did not trigger the statute

of limitations … because being held jointly and

severally liable for all future costs of removal or

remedial action is not a judgment for the recovery of

such costs.” Id. at 12. As the First Circuit explained,

§ 113(g)(2) directs courts to “‘enter a declaratory

judgment on liability for response costs or damages

that will be binding on any subsequent action or

actions to recover further response costs or

damages.’”

Id. at 12-13 (quoting § 113(g)(2)(B))

(emphasis added by American Cyanamid). Thus,

while a “declaratory judgment is binding on

subsequent actions to recover response costs or

damages,” that judgment does not trigger the statute

of limitations because it is “not itself a judgment for

the recovery of such costs or damages.” Id. at 13

(emphasis added). In sum, as the Solicitor General

explained, a bare “declaratory judgment d[oes] not

trigger” § 113(g)(3)(A) in the First Circuit—and as a

result, a PRP who obtains such a judgment there is

able “‘to seek contribution if a phase of cleanup

occurs’” more than three years later. SG Br. 20

(quoting Am. Cyanamid, 381 F.3d at 14).

2. In the Sixth Circuit’s view, by contrast, a “bare

declaratory judgment” requiring a PRP to “pay for

‘the entire cost of response activities relating to [a]

site” starts the statute of limitations running

because it is a judgment that “impose[s] … response

costs or damages” on the PRP.

Pet.App.50a.

According to that court, the fact that § 113(g)(2)

“discusses [a] declaratory judgment on liability for

response costs” in relative proximity to § 113(g)(3)’s

limitation that “no action for response costs or

damages may be commenced more than 3 years

after … judgment in any action under [CERCLA] for

recovery of such costs or damages” “strongly

suggest[s]” that a declaratory judgment, standing

alone, is enough to trigger § 113(g)(3)(A)’s limitations

period. Pet.App.45a-46a. (emphases and ellipses in

original). That is the case, the court added, even if

the “bare declaratory judgment” in question

“award[s] no specific amount of damages or costs.”

Pet.App.44a, 46a.

3. The Sixth Circuit—and Respondents in this

case’s first trip to this Court—tried to elide this clear

circuit conflict by suggesting that the two cases were

factually distinct.

They pointed to portions of

American Cyanamid holding that other (nondeclaratory) aspects of the prior judgment at issue

there did not trigger the statute of limitations

because they involved a different set of costs.

Relying on those portions of the opinion, they argued

that “American Cyanamid did not deal with a case in

which one declaratory judgment purported to assign

sitewide liability.” Pet.App.49a; see International

Paper BIO at 12; Weyerhaeuser BIO at 17-18.

As the Solicitor General correctly observed,

however, that sleight of hand rested on a different

portion of American Cyanamid, which separately

held that a judgment for one category of costs does

not trigger the statute of limitations for other costs.

The Solicitor General “agree[d] with [Georgia-Pacific]

that the Sixth Circuit’s decision in this case conflicts

with th[e] aspect of the First Circuit’s decision in

American

Cyanamid”

addressing

sitewide

declaratory judgments. SG Br. 20. The Solicitor

General’s conclusion was right then, and it is just as

right now. See Am. Cyanamid, 381 F.3d at 12

(describing the declaratory judgment as holding the

party “‘jointly and severally liable for all future costs

of removal or remedial action incurred by the State

relative to the … site’” (emphases added)). The split

on the question presented is thus square: A “bare

declaratory judgment” triggers § 113(g)(3)(A)’s

statute of limitations in the Sixth Circuit, but not the

First.

B. The Sixth Circuit’s Interpretation Is

Incorrect.

The Sixth Circuit’s interpretation of § 113(g)(3)(A)

not only deviates from the First Circuit’s, it is also

wrong. The text of the limitations provision itself,

contextual clues from elsewhere in CERCLA,

background common-law principles, and sheer

common sense all make clear that, as the Solicitor

General agreed, only a judgment that actually

awards the “costs or damages” at issue is a judgment

“for the recovery of such costs or damages” that

triggers the statute of limitations. § 113(g)(3)(A).

1. Start, again, with the statutory text. Under

§ 113(g)(3)(A), “[n]o action for contribution for any

response costs or damages may be commenced more

than 3 years after … the date of judgment in any

action under [CERCLA] for recovery of such costs or

damages.” The plain meaning of that language is

that the statute of limitations begins running only

once a judgment quantifies and awards costs such

that they can be recovered. Declaratory judgments

do not fit that bill. The text thus forecloses the Sixth

Circuit’s asymmetrical approach, under which the

limitations period for bringing a contribution claim

can be triggered by a judgment that does not even

create a contribution right. See SG Br. 10.

Further textual evidence that “bare-bones”

declaratory judgments do not trigger the limitations

period comes from § 113(g)(3)(A)’s use of the definite

article “the.” By tying the statute of limitations to

“the date of judgment”—not “a date of judgment”—

the statutory text presupposes that only a single date

of judgment will qualify. See, e.g., Rumsfeld v.

Padilla, 542 U.S. 426, 434 (2004) (“The [habeas

statute’s] consistent use of the definite article in

reference to the custodian indicates that there is

generally only one proper respondent to a given

prisoner’s habeas petition.”); see also SG Br. 9 (the

provision’s

reference

‘the

date

judgment,’ … rather than ‘a date’ or ‘any date,’

reinforces … that a single judgment is involved”).

A bare declaratory judgment cannot be that

singular judgment, because declaratory judgments in

this context always leave room for later judgments

actually awarding costs. Those judgments, unlike

declaratory judgments, are unquestionably “for

recovery of such costs or damages.” And as to any

particular set of costs, there will be only one. That

judgment is thus “the” only judgment for recoverable

costs that starts the limitations clock ticking.

2. Textual clues from elsewhere in CERCLA

confirm § 113(g)(3)’s clear meaning. Most notably,

§ 113(g)(2) provides that a court hearing an initial

§ 107(a) action “shall enter a declaratory judgment

on liability for response costs or damages that will be

binding on any subsequent action or actions to

recover further response costs or damages.”

§ 113(g)(2).

As American Cyanamid properly

recognized, that provision clearly distinguishes

between declaratory judgments on liability and

actions “to recover” response costs. Although a

§ 113(g)(2) “declaratory judgment is binding on any

subsequent actions to recover response costs or

damages, … it is not itself a judgment for the

recovery of such costs or damages.” 381 F.3d at 12.

It thus cannot trigger the limitations period. See

also SG Br. 14 (drawing the same distinction).

3. If any doubt remained as to the meaning of

CERCLA’s text, common-law contribution principles

would eliminate it. As this Court has observed,

“[n]othing in § 113(f) suggests that Congress used

the term ‘contribution’ in anything other than its

traditional sense”—i.e., to refer to “the ‘tortfeasor’s

right to collect from others responsible for the same

tort after the tortfeasor has paid more than his or

her proportionate share, the shares being

determined as a percentage of fault.’” Atl. Rsch., 551

U.S. at 138 (quoting Black’s Law Dictionary 353 (8th

ed. 2004)). Under the common law, “a cause of action

for contribution ordinarily accrues when one

tortfeasor has discharged more than that tortfeasor’s

proportionate share of a common obligation.” Est. of

Ryan v. Heritage Trails Assocs., Inc., 745 N.W.2d

724, 729 (Iowa 2008). But if a declaratory judgment

starts the limitations period running before a PRP

actually pays more than its share of overall liability,

then the three-year limitations period may expire

long before any contribution claim actually ripens.

See Pet.App.17a; see also SG Br. 11-12 & n.*

(explaining that § 113(g)(3)(A) should be interpreted

as “consistent with usual limitations principles”).

4. This case epitomizes the serious practical

problems the Sixth Circuit’s interpretation creates.

The declaratory judgments in question issued in the

late 1990s and early 2000s—when it was far from

clear what expenses Georgia-Pacific or any other

PRP would be asked to assume relative to pollution

caused by Respondents. See SG Br. 17 (agreeing

that this “practical realit[y] of CERCLA remediation”

renders the Sixth Circuit’s “early trigger” of the

limitations period “particularly untenable”). No sane

statutory scheme would preclude a contribution suit

unless brought at that premature stage. And there

is no reason—least of all the language Congress

actually used in § 113(g)(3)(A)—to think that

Congress intended such an absurd result. Left in

place, the Sixth Circuit’s regime will undermine

CERCLA’s central goal of expeditious and equitable

cleanup. See Burlington, 556 U.S. at 602.

C. The Sixth Circuit’s Misinterpretation

§ 113(g)(3)(A)

Has

Real

Significance.

1. If allowed to stand, the Sixth Circuit’s

treatment of bare declaratory judgments will force

parties in every circuit other than the First to file

premature, protective lawsuits to preserve their

contribution claims under § 113(f)(1).

Here, for

example, after an exhaustive factual inquiry, the

district court concluded that Georgia-Pacific should

be responsible for only 40% of the cleanup costs. But

according to the Sixth Circuit, the only way for

Georgia-Pacific to have recouped any of those costs

would have been to file suit by 2001—long before it

was clear who else was responsible for the pollution

or what remediation would ultimately entail.

Even if Georgia-Pacific had somehow had the

foresight to do so (despite § 113(g)(3)(A)’s plain text),

such a suit could only have sat in stasis, serving no

purpose until the record developed adequately. After

all, it can (and in this case did) take years for

evidence necessary to allow for an accurate cost

allocation to develop.

When investigation and

remedial work are only just beginning, parties and

courts will often have no practical way of knowing

the relative culpability of various PRPs. Indeed,

they will often have no way of knowing whether

entities with some connection to the site have any

responsibility for cleanup costs at all. So years of

delay are inevitable.

The Sixth Circuit’s rule will also impose needless

litigation costs on parties who are not ultimately

responsible for pollution. Because CERCLA defines

the universe of PRPs broadly, prudent PRPs seeking

to protect their right to seek contribution will have to

cast their net widely, sweeping in everyone with any

arguable connection to the site. Until the evidence

necessary to vindicate them emerges, innocent

parties will be forced to expend time and resources

defending against complex CERCLA claims. Just as

troubling, courts will be forced to babysit these

premature cases for years—or even decades.

2. The importance of the Sixth Circuit’s error in

interpreting § 113(g)(3)(A)’s statute of limitations is

only heightened by its error in treating § 107(a) and

§ 113(f) as mutually exclusive methods of recovery.

Absent that latter error, the statute-of-limitations

holding would remain important, as it would still

unfairly deprive PRPs of the ability to recoup costs

reimbursed to others under settlements or

judgments. But they would still at least be able to

recoup costs they paid directly. Together, however,

the Sixth Circuit’s answers to the two questions

presented effectively prevent any PRP with a bare

declaratory judgment against it from recouping any

costs it pays—no matter how disproportionate to its

share of responsibility—when it lacks the

information needed to file a § 113(f) action within

three years.

3. Even if this Court were to adopt the Sixth

Circuit’s rule on one or both questions presented,

that clarifying guidance would serve the important

purpose of putting PRPs on notice of the need—

notwithstanding contrary textual and contextual

considerations, see supra Sections I.A, II.B—to file

protective contribution suits immediately after any

“bare declaratory judgment.” That certainty would

further CERCLA’s aim of ensuring that cleanup

costs are shared equitably among responsible

parties, rather than happening to fall on the entity

that voluntarily or in cooperation with the

government incurs them in the first instance. See

Burlington, 556 U.S. at 602. It would, in other

words, arm PRPs with the knowledge they need to

avoid the inequitable result that the Sixth Circuit

has imposed on Georgia-Pacific here.

D. This Case Is A Clean Vehicle To

Resolve The § 113(g)(3)(A) Question.

This case is an excellent vehicle for resolving the

statute-of-limitations question. To start, there is no

dispute that the underlying judgment is just the sort

of “bare declaratory judgment” that squarely

presents it. See Pet.App.49a. And aside from the

argument—rejected by the district court and left

untouched by the Sixth Circuit—that International

Paper was not a PRP at all, Respondents have not

challenged the district court’s allocation of costs.

To the degree either of the two vehicle problems

the Solicitor General hypothesized with the prior

petition troubled this Court, both have now resolved.

First, the Solicitor General noted that, “[t]o the

extent that any of the costs for which [GeorgiaPacific] seek[s] reimbursement were incurred

‘voluntarily,’ [Georgia-Pacific’s] claims for those costs

arise under Section 107(a).” See SG Br. 20. That

posed a potential problem in the prior petition,

because the availability of a § 107(a) claim was not

before this Court. This petition, by contrast, offers

the Court the opportunity to take up the questions

together, thereby resolving in one fell swoop whether

conscientious PRPs like Georgia-Pacific have any

path to relief at all.

Second, the Solicitor General suggested that

“disputes about” the “precise meaning and legal

import of the various KRSG judgments” could

“complicate this Court’s analysis.” SG Br. 22-23.

But again, this amounts to little more than an

argument that the KRSG judgments may have left

intact Georgia-Pacific’s ability to recover under

§ 107(a). Because this petition allows the Court to

resolve that question, too, any question about the

legal import of the KRSG judgment provides no basis

to deny review. Regardless, the Sixth Circuit has

now made clear—in two published opinions—that its

resolution of this case has nothing to do with the

minutiae of the KRSG litigation, and everything to

do with the Circuit’s own, purely legal rules

(mis)interpreting § 107(a) and § 113.

See

Pet.App.12a; Pet.App.55a.

Finally, the fact that this Court denied review the

first time this question was before it is no reason to

do so again. “The rule that denial of certiorari does

not import any view on the merits means that the

Court is free to grant certiorari following a final

judgment after denying a petition directed to an

interlocutory court of appeals ruling in the same

case.” 16B Wright and Miller, Federal Practice &

Procedure § 4004.1 (3d ed.); see, e.g., HamiltonBrown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251,

257-58 (1916). This petition is a better vehicle for

answering the limitations question than the last one.

And as noted above, the prior denial certainly has no

import for the new question presented. The Court

should grant certiorari on both questions and clean

up this CERCLA mess once and for all.

CONCLUSION

The petition for a writ of certiorari should be

granted.

September 10, 2025

Respectfully submitted,

AMANDA K. RICE

JONES DAY

150 W. Jefferson Ave.

Suite 2100

Detroit, MI 48226

NOEL J. FRANCISCO

Counsel of Record

JONES DAY

51 Louisiana Ave., NW

Washington, D.C. 20001

(202) 879-3939

njfrancisco@jonesday.com

MICHAEL R. SHEBELSKIE

DOUGLAS M. GARROU

GEORGE P. SIBLEY, III

HUNTON ANDREWS

KURTH LLP

951 East Byrd Street

East Tower

Richmond, VA 23219

JOHN HENRY THOMPSON*

JONES DAY

1221 Peachtree St., NE

Suite 400

Atlanta, GA 30361

SEAN P. TARANTINO

KOCH CAPABILITIES, LLC

4111 E. 37th Street N.

Wichita, KS 67220

MATTHEW J. RUBENSTEIN

JONES DAY

90 South 7th Street

Suite 4950

Minneapolis, MN 55402

*Not admitted in

Georgia. Practicing

under the supervision of

members of the Georgia

bar.

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.